Texas Probate Legal Questions

The firm or attorney would not know if the client is deceased unless they see an obituary or someone tells them; that is your job.  If the scrivener attorney has also deceased, then presumably (hopefully) his law firm still has his file.  If not, then you are going to have to search for a Will, either an original or copy, in the Decedent's important papers.  If you do not find one and the lawyer is deceased and his firm or the person who took over his firm does not have the Decedent's file or an original or copy of it, then you are going to have to file an Application for Determination of Heirship to have the Decedent's heirs determined. You cannot put a stipulation on the Will as you stated - the Will is the Decedent's Will, not yours, so you cannot put a stipulation on it at all.  The only thing you could do is enter into a Family Settlement Agreement with ALL of the beneficiaries or heirs of the Estate to modify how th eproperty is divided.  Abent a Family Settlement Agreement, the Will controls. Sincerely, Kevin Spencer www.spencerlawpc.com  ... Read More

You are definitely an heir of your father, but I would not recommend going into his apartment and "claiming his property" until you have a court order probating a will or determining you to be an heir.  All inheritance is subject any administration of the Estate, so you cannot just go out and grab whatever you see, even if you are an heir.  You will be ordered to return it to the Estate if you do. I presume all property was ordered divided by the family court and the division was completed before your father's death.  If so, the issue is not with the ex-wife, because she has absolutely no interest in your father's Estate since they were divorced.  You and your 16 year old brother are your father's heirs, if you are his only children and he died unmarried. You need to file an Application for Determination of Heirship to be determined to be an heir and, if there is a necessity for administration, an Application for Administration. I hope this answers your question(s). Sincerely, Kevin Spencer www.spencerlawpc.com     ... Read More

Ms. Castleberry: I need to know more about what you mean when you say your dad's "financial guardian" - was he/she acting under a power of attorney or was he/she actually appointed as the Guardian of your Dad's Estate.  In any event, now that your dad is deceased there is no "financial guardian" any more.  All powers of attorney ceased to exist upon your father's death.  A guardianship, if one was in place, terminated as of your father's death and the Guardian of his Estate would only have authority to wrap-up the guardianship, file a final accounting and get the guardianship closed. Now, if your dad's "financial guardian" has possession of your father's will, and your father's Will has not been offered/filed for probate, then you, as an heir or interested person in your father's Estate, have the right to send written demand to your father's "financial guardian" to deliver the original will to you, so you can file it for probate.  If he/she refuses to turn the Will over to you after demand, you can file a motion to show cause against the "financial guardian" (or whomever has the original will) requiring him to appear in court and explain why he will not deliver the original to you; you can request that your attorneys' fees for being forced to file the motion.   There is no reason to wait and you do not have to wait.  You should hire your own attorney to do what you need to do to get possession of the Will and to file it for probate. I hope this answers your question(s). Sincerely, Kevin Spencer www.spencerlawpc.com ... Read More

Mr. Stenson: You have four years from the date of your wife's death to file her Will for probate.   If more than four years have elapsed from her date of death, you may still be able to probate her Will, if you can show that you were not in default for failing to file it within the four years; and, then, you may only probate it as a muniment of title, that is to say, have it found to be valid and probated to serve as a title document.  You cannot open an administration. If you cannot show that you were not in default for failing to file the will for probate within four years, then your only option is to file an Application for Determination of Heirship to have the court determine your wife's heirs and their share of her Estate. These are your only options. Sincerely, Kevin Spencer www.spencerlawpc.com ... Read More

Ms. Gatlin: Your inquiry is very basic and I would need much more information to properly respond to your question.  But, I can tell you the following:  there is no requirement that you be notified of the probate and there is never, really, an official "reading of the will"; the latter is from movies or TV.  In order to contest a will in Texas, there must be evidence that your father lacked testamentary capacity or was unduly influenced at the time the Will was signed.  I would need to speak with you further about whether you have such evidence.  The fact that you were left out of your father's will, absent a poor relationship or a falling out to explain it, will be evidence of a problem in and of itself, but I would need to explore this further with you. Contesting wills is our primary area of practice.  You can visit my website at: www.spencerlawpc.com and/or contact me at (214) 630-4554. Sincerely, Kevin Spencer... Read More

Please accept my sympathies on the deaths of your parents.  You need to go to a lawyer who practices in the area of guardianships and get advice on what needs to be done to ask the court to appoint you as guardian of your sister's person to have the ability to decide where she will live and guardian of her estate to decide what to do with whatever money she might have access to now that your parents are both deceased.... Read More

In many jurisdictions, the person preparing the Will cannot also be a beneficiary of the Will. Preparing a Will for someone else also would be considered practicing law without a license. Whether there are any legal repercussions for preparing a Will for someone else, you may unwittingly be disqualifying yourself from receiving anything from your mother's estate. If your mother wants to do a Will and to name you as a beneficiary, you should urge her to see an attorney. There are many issues to be considered in doing estate planning. Anyone can file in the blanks in a form, but a person who has not been trained in the law risks making big mistakes doing it on their own. Since you are doing this for your mother, there may be fiduciary duty issues that you have not considered and which pose problems for you in the future. Your mother should see a reputable attorney who regularly does Wills and express her wishes to the attorney so that the estate planning can be done right. This answer is not intended to create an attorney/client relationship and is not intended as legal advice. The answer only states general principals of law and is nothing but a starting point. Nothing takes the place of specific, personal legal counsel tailored for your specific situation.... Read More

Dear TX, If you have your home and bank account titled in Joint Ownership with right of survival, then those two items are not part of your probate estate and will pass directly to the survivor of the first to die in regards to the house and the remaining financial account funds will go to your designated beneficiary on the account.  The surviving joint tenant of the house will simply have to record an affidavit w/a certified copy of the death certificate of the first to go at the local recorder of deeds office.  Now, if it turns out that YOU are the last survivor with the home, make sure you have an estate plan in place to convey the property.   And by the way, if you were asking the question as the potential executor of someone's estate and that's all they had, then the same answer applies.  You are required by law to file the will with the clerk of the circuit court where the decedent lived within 30 days whether or not a probate estate is opened.  Hope that helps.... Read More

Dear Texas, Obey your parents.  If there are no debts in the estate, no taxes AND no real estate, you may be able to avoid even the expense of probate by utilizing a small estate affidavit if such are used in the state of Texas.  I advise you consult with an attorney in your state just to inquire if small estate affidavits are utilized there and if your situation qualifies for use of such......If it qualifies, honoring your parents wishes will be a breeze.  However, if it does not qualify for a small estate affidavit to be utilized and there are debts and/or taxes to pay or there's real estate that needs to be conveyed, consult an attorney and proceed to probate....because if probate is necessary, your parents made it impossible for you to honor their wishes by failing to establish a better estate plan.  Best wishes to you.... Read More

I think if you have a lot of changes, it gets confusing to put them all in a codicil and since you already have one codicil, the potential for confusion is greater.  When you are talking about cost, it depends on how complex your estate is.  A simple will would not cost you very much to just have a new one prepared with a testamentary trust contained within it.  It probably does not matter, cost wise, whether you go back to the lawyer who prepared your first will or a new one. Just find someone who is experienced at preparing wills. ... Read More

I'm guessing from your statements that there was no will.  You could go to the courthouse and asked to be named administrator of your grandfather's estate, but if it has been a long time since your grandfather died, the account may be at a point where it's going to be turned over to the state as unclaimed property.  You would then be able to apply to have it turned over to you.... Read More

My condolences on the death of your Mom.  Provided that the Will complies with the Texas Probate Code, you should have no trouble at all probating her will and if there are no problems, it should all be completed within a few months.   You will need to file an Application for probate within four years of her death and provide the statutory proof to the Court for probate and issuance of letters testatmentary or of administration.  Please take the Will to a lawyer who practices probate law for advice on how to proceed after they have reviewed the Will.... Read More

Was the will wholly in your Father's handwriting?  Is so, and it was signed by him, there is no need for witnesses. The parties interested in an estate may agree to dispose of the property in accordance with an invalid will.  If they do, it passes by agreement rather than by the will.  Were there any persons who were there when your Father signed the Will?  They could sign and file with the Court, Affidavits stating they saw him sign the will.  There are several options available to you and your sister but you need the advice of a lawyer who practices probate law in your area.  ... Read More

I am a California attorney but I will say, with great confidence, that you can leave all your money to one child in any state in this country. It's YOUR money. it's not your kids money. However, you should work with an experienced estate planning attorney as they might have some ideas to incorporate into the plan to make it work out exactly as you envision. ... Read More

Please take your wills to a lawyer who specializes in estate planning to make certain that your wills do what you believe they do.  If so, your bequest to your joint child would be fine so long as you complied with all the legal requirements, were both of sound mind when the will was executed and there was no undue influence exerted but be aware that his children from a prior marriage could always file a will contest to try to get a share of his estate.... Read More

No. But if the Will is very old, it should be reviewed anyway. Most estate plans benefit from a review and update every 5 years, or when a major life change occurs. To Your Success, Gale Allison, Principal AttorneyAllison Firm, PLLChttp://www.theallisonfirm.com http://www.linkedin.com/in/galeallison.com   ... Read More

Please contact a lawyer who practices probate law in Alabama in the jurisdiction where your Mom resided.  You need to get help quickly if the house is in foreclosure. The laws in Alabama may be very different than our laws here in Texas but you do have options if you act quickly enough.    ... Read More

So are you in probate? Where is your lawyer? He or she should explain this to you. As for your siblings, anyone can ask for anything. When people are angry, selfish or upset, if you refuse just because your feelings are hurt or without some legally sound reason, it's just like pouring gasoline on a fire. I would suggest you give full disclosure to diffuse the situation and stop them from filing a lawsuit. Prove your honesty in handling her funds. So what if the account is closed? I would provide as many months of back statements as they want/or you have. It takes the wind out of their sails and you may avert a lawsuit. But, you are correct. You are not required to do it. However, this situation is usually when people lawyer up. If you have nothing to hide, it is silly to let this happen. You say your sibling never offered your mother financial assistance. That sounds like your mother didn't have anything and you had to support her. It should be a fairly simple matter for you to demonstrate this with your records. Save yourself the legal fees, the time and grief, and be an open book. It is secrecy that makes people lawyer up. You just waste time, emotions and money. To Your Success, Gale Allison, Principal AttorneyAllison Firm, PLLChttp://www.theallisonfirm.comhttp://www.linkedin.com/in/galeallison.com ... Read More

I am not aware of any state that allows for one person under a Power Of Attorney to create a Will for another person. In any event, even if it was allowed, the Power Of Attorney document would need to specifically state the details of that power. I strongly doubt that those words are there. It may be possible for you to attend to some estate planning through a guardianship or titling of property owned in your father's name, but do not expect to be able to essentially disinherit someone or take it all for yourself. If you are an only child and your father is single, you are likely to inherit his whole estate anyway and you have much more leeway in what you do. See an experienced Texas estate lawyer right away. To Your Success, Gale Allison, Principal AttorneyAllison Firm, PLLChttp://www.theallisonfirm.comhttp://www.linkedin.com/in/galeallison.com ... Read More

Make an appointment with a lawyer in your area and bring everything you have related to the mineral rights.  Normally, the Inventory and Appraisement filed in the probate will have a legal description of the mineral rights but if not, perhaps you can obtain a copy of the division order for any payments that have been made in the past on the rights.   It would lead you to a legal description.  Also, look through the property records in the county where the mineral rights are located and you might find this information in a deed transferring the property to your great aunt. ... Read More

Get your Dad to an estate planning attorney in your area as soon as possible to get advice and explore his options.  As a rule, everyone needs to have a will with an independent executor appointed in the will so that you avoid the expense of a dependent administration in the probate courts.  He can have a simple will prepared if his estate is not complex and save his heirs a lot of expense and trouble.    ... Read More

As far as I can tell from your brief information, you need to hire a Texas estate lawyer immediately to file action in court against the Executor for disobeying court orders. To your success,Gale Allison, Principal AttorneyAllison Firm, PLLCwww.theallisonfirm.comwww.linkedin.com/in/galeallison.com... Read More