Texas Probate Legal Questions

You should definitely get a probate attorney in the state the decedent resided in to determine what the rules are there. Here in California if the life insurance policy was part of an estate totaling $150k or less than a full probate could be avoided. Otherwise a full probate would be required.  The state requires probate above that. The theory is not so much about who gets the assets but to make sure there are no liabilities that go unpaid the states wants the money going through the probate Court. Again, hire an attorney in the state where the decedent last resided. Good luck to you.  -John... Read More

Go to the County Clerk in the county where your grandmother resided at the time of her death and request a certified copy of her Last Will and Testament.  It will be on file there if the Will was probated after she died. You will have to pay for the copy.  Once you have obtained the Will, take it to a lawyer in your area who practices probate law and he or she will review the Will and tell you what your rights are with regard to any bequest.   ... Read More

There is no law that prohibits a will from being probated 5 years later.  I have probated wills 20 years after death!  In fact, I would encourage you to do the probate now. It may be easier to sell the house after probate is done and probate likely takes some time (here in California it takes 7 months minimum to complete a probate). I encourage you to find an experienced probate attorney in the area where your mom lived at death. Good luck to you!  ... Read More

Dear Lorena, My condolences on your mother's passing.  Now concerning how long you have to wait to open probate - Lorena you have already let four months pass you by....you could have opened probate as soon as the coroner or hospital provided you with the certified death certificate.....so run do not walk [to a probate attorney's office] & go handle the business.  I imagine the mortgage companies will not deal with you unless and until you have what's called Letters of Office in hand - those are something you get in the process of probating the estate.  The creditors (you stated your mom had debt) will have 6 months in which to file claims against the estate and the clock begins to tick upon your receipt of the letters of office (wherein you are named executor).  Hope that helps and good luck with everything.... Read More

Dear Anonymous, You have my condolences on the death of your father.  I hope that you have loved ones around you to help you through the grieving process.  I'd imagine having all the legal stuff to deal with makes life a little complicated right now.  I'll be remembering you in my prayers.  From your question, it sounds like your dad had no real property - only personal property.  It also sounds like none of his "stuff" is in your possession but possibly the "girlfriend" has it all and she isn't relinquishing it to you. In the eyes of the law you are your dad's sole heir and you should be entitled to everything he owned which is in his name soley (meaning things not owned jointly with someone else who now has a right to it because they survived your dad).  In the state in which I practice (Illinois) if an individual dies and has no real estate AND his/her assets are UNDER $100,000.00 (in value) then instead of taking a matter through the probate court, something called a small estate affidavit is used.  That affidavit along with the death certificates can be used at the Dept. of Motor Vehicles (DMV) to get the titles of the vehicles switched over to your name. I would first suggest you try a friendly phone call to the "girlfriend" and inquire if she will voluntarily give you all the stuff that is legally yours AND access to your dad's papers....getting the titles are imperative.  If she is hesitate or hostile, get an attorney immediately before she disposes of any of your dad' belonging.  If the items are sold to someone considered a bona fide purchaser (Google that yourself for the sake of time) you won't be able to get them back.  An attorney may need to be involved if any injunctions are needed to keep the "girlfriend" from selling your dad's property or subpoenas are necessary to obtain keys or titles to the vehicles.  In addition, you may need the sheriff to escort you to get what rightfully due you. Even with the above said, I would suggest you utilize a consultation with a local Probate Attorney to kick around all of your available options.  It may turn out that opening a probate estate is your best option in this case; however, the attorney would be better able to make that evaluation as s/he can ask you some pertinent questions to best make that determination. Again my condolences and I hope I was able to help in some small way.  Best wishes to you.  ... Read More

I practice in the state of Illinois and the answer is a resounding yes:  a beneficiary can also serve as the executor....and since everyone knows things are bigger and better in Texas, I'm going to surmise that the answer is also YES in Texas.  The prohibition you are probably thinking of is the one prohibiting a beneficiary as serving as a witness to the will.  If a beneficiary does also serve as a witness, there is a remedy-one that is not beneficial to the beneficiary, but it may vary from state to state, so check with a estate planning attorney in your locality for an answer to that one.  Hope this helps.... Read More

My condolences on the deaths of your Great Uncle and Uncle.  Was your Uncle living at the time of your great uncle's death? Look at the Will itself - there usually is a clause concerning survivorship and also a residuary clause for what happens with bequests that fail for some reason (i.e. as in your case - the beneficiary is deceased).  Obtain counsel from a lawyer in your area who is knowledgeable regarding wills so you can determine what your path should be.     ... Read More

It would be extremely unusual for a Will probated in July to be distributed by October. It usually takes more than 4 months, even in a state, like Texas, that has simplified its probate process. The condition of the stock market is not usually considered a valid reason to not distribute proceeds. However, there are likely to be other facts or reasons, which taken in context, could be valid. You are correct that you would need a lawyer well-versed in Texas probate law. To your success,Gale Allison, Principal AttorneyThe Allison Firm, PLLChttp://www.theallisonfirm.com http://www.linkedin.com/in/GaleAllison   ... Read More

The testator's emotional state at the time he wrote the will is not a factor used to determine its validity, unless it affected his ability to understand his actions. Generally, to make a will a testator must be at least 18 years of age and of sound mind. The will also must be signed in accordance with state law. Even though your father was grieving at the time, if he was of sound mind when he signed the will it is probably valid. If you believe that your father was not of sound mind at the time, or if there are other factors surrounding this issue that you did not mention, I encourage you to contact a lawyer in your area. A lawyer can explain the law in your state, help you determine if the will is valid, and explain any available legal options.... Read More

If you remarry, it would be best for you to execute a  new will stating that you are married and that you want certain property to still go to your children.  You should also consider entering into a premarital agreement that would specifically reaffirm your separate property and the fact that your new husband would not have any rights to the property.  Additionally, he would have the right, under Texas law to continue living in your separate property house (if that was the marital homestead when you died) for his life unless that right was specifically waived in the premarital agreement.  Contact a lawyer in your area and talk to him or her about the options that are available to you before you get married again. ... Read More