Fill in the blank Wills
Can I use a will from on-line or an office supply store? I never hear this question in my office. If my clients didn’t think a professional was necessary, they wouldn’t have scheduled an appointment to see me. However, this is the question I am most often asked outside my office, wherever people discover that I write wills. While almost everyone knows they should have a will, most people don’t. A form or store-bought will does seem like a cheap and easy alternative to an expensive lawyer. Nevertheless, my objection to such wills may be summed up in the words of a Taylor Swift song: “You don’t know what you don’t know.”
So, the quick answer to this question is that wills that promise they are “valid in all fifty states”, usually do, in fact, produce a will, which is valid in Texas. However, you may be letting your heirs in for a lot of heart ache if you actually use one.
There are five major reasons not to use prepackaged or fill-in-the-blank wills.
- It may easily end up costing more in the long run. Form wills often cost more to probate, and often take more of your (and your probate attorney’s) time. Texas has an unusual but effective probate process. A properly written Texas will is both quick and relatively inexpensive to probate. Those one-size-fits-all wills are often not written to take advantage of our Texas laws. Over the years, we have seen form wills from 11 different companies, including some of the most heavily advertised companies, and have yet to see a will which is written to take full advantage of Texas’s stream-lined probate system. In sum, having a valid will is not enough; it must also be the best will for probate proceedings in Texas.
- Your will may not say what you think it says. I have seen this in my practice when box wills are brought into me for revision. Do you know what “representation per stripes” means? If not, the extra money spent on a lawyer just make make a difference. A good example is a man with two children and three grandchildren. When interviewed, he wanted to split his property evenly between his two children. In the event one of his children died before him, he wanted the children of his dead child to inherit their parent’s share. He was unaware that, under the computer generated form he had had in place for the last several years, if one of his two sons died before him, the surviving child would inherit everything. Of course, with respect to the form wills that I have been asked to probate, I cannot tell my client whether or not the testator intended to disinherit his grandchildren, I can only tell them that he did.
- You probably have not thought of everything which should be addressed in your will, and most forms will not make the suggestions to you. The most common element left out of form wills is what should happen if a minor ends up inheriting property. Almost every will has at least some possibility that this will occur. Even if your children are grown, most people want their grandchildren to inherit if a child predeceases them. In that case, who will manage the money? Should it be the grandchild’s surviving parent? What if the surviving parent divorced your child, or if they were never married. Maybe you just don’t trust the other parent. At what age should the children/grandchildren come into their inheritance? What restrictions should be placed on the money? It is a rare eighteen year old capable of being responsible for more than one month’s living expenses. Any competent attorney will walk you through these questions and suggest solutions. Most form wills will not.
- When you see an attorney for a will, you usually get a lot more. By this, I mean a lot more documents. A power of attorney in particular is frequently needed in addition to any will, and, if you do not have one in place, it can cost your family thousands of dollars in fees and expenses for a guardianship proceeding.
- If you use an attorney, you have greater confidence that your will has been properly executed. This may seem like a very simple thing, but it ends up being a problem a lot more often than you would think. Not only must the witnesses be present when the will is signed, but the testator needs to be present when the witnesses sign. Also, people who inherit, cannot act as witnesses. The testator must state to the witnesses that he is signing a will. These issues and other have been used to hold an otherwise legal will, invalid. This is why most attorneys have wills signed in their offices, rather than sending a client home with an unsigned document.
As an aside, courts have also determine some fill-in-the-blank wills to be invalid holographic wills (wills written in the handwriting of the testator) and thus not subject to probate. If you have a fill-in-the-blank will for probate, we strongly urge you to have the assistance of counsel prior to attempting any probate.
Here is a good example of why you might want an attorney to assist you in drafting a will. Often, I have a client come in who owns a “special car,” and the client desires that a particular child inherit that special automobile. Drafted by himself, the will might plainly state: “To my son, John, I give my 1969 Corvette.” Well, the right 1969 big block Corvette can go for over $100K in the right market, so to compensate the client’s other kids for not getting the Corvette, the client then reduces the amount of other estate items that he gives John. Ten years down the road, however, the client makes a wonderful trade of that 1969 Corvette and gets a 1962 Ferrari in the deal. Now, he’s made a wonderful trade and John will be even happier, right? Wrong. Because the will mentioned a “Corvette” and not a “Ferrari,” John not only misses out on the Ferrari, but remember, the client reduced his share of the estate due to fantastic gift that he’s not going to be awarded. John gets less , not more. A properly drafted will might say: “I give to John most most valuable automobile at the time of my death.” Or perhaps, “I give to John my Corvette or any accession resulting from the disposal of that automobile.” Get a lawyer!
In many states, a person can make an oral or “nuncupative” will under the proper circumstances. However, I will not delve deeply into that arena since Texas has outlawed oral wills since 2007. In sum, do not delay drafting a proper Texas will because gifts made orally will no longer be recognized in a Texas probate court. In such circumstances, you will have to settle for an family settlement agreement, if possible, or perhaps a proceeding to determine heirship.
In sum, if you are contemplating a probate of a fill-in-the-blank will, and you are concerned, there may be options or alternatives available. As noted, a Family Settlement Agreement (or FSA) might be appropriate, or, if the will is declared invalid, then a proceeding to determine heirship may be needed. At any rate, we stand ready to assist in all these areas.
“And to my worthless son the only thing I leave is . .
my Bible in the hope that he will one day actually open it.” Such wording is an example of what we call a nominal gift. And they are more common than you might think. Gifts are not usually a Bible; I more often see gifts of $1, or perhaps $100. Such provisions often appear for two reasons: The first is a desire on the part of the person making the will to get one last dig in at someone they dislike. More frequently, however, the reason is that the testator is following an attorney’s advice. In such cases, the concern is that if you make no mention of one of your children (known in probate lingo as the “objects of your affection”), then it could be argued that you accidently forgot them. This, in turn, would open up an avenue for a will contest. As noted, part of the legal requirements for being sufficiently competent to make a will include knowing “the natural objects of your affection.”
So if you are not competent enough to know who your children or spouse is, then you are likely not competent enough to make out a will. And if you have four children, and divide all your property among three of them, maybe you weren’t all that competent to begin with. So there are attorneys out there who, over the centuries, have advised their clients “Don’t completely disinherit a child, leave them something. How about $1?” In one stroke, you have thus proven that you know they exist, and it was not senility or error that caused them not to inherit. Personally, I am cocerned with nominal gifts, although I have written them when a client requested. I think nominal gifts put the executor in a difficult emotional situation, and obviously increases the possibility of a will contest. Lets look at three scenarios where the nominal gift causes problems.
In the first case, dad was furious with Leo and instructed his executor to give Leo one handful of dirt from the family homestead. The executor, Leo’s sister was actually on pretty good terms with Leo. Does she now have to actually give him a handful of dirt? Well, yes. She took an oath to the Court to uphold the will. So now she has to choose between hurting her brother’s feelings or dishonoring the will, the Probate Court, and her own oath. Oftentimes, in such cases, the heirs will enter into a family settlement agreement and override dad’s wishes anyways.
But more commonly, the executor does not want to give the nominal gift, because they do not want to cause potential problems. Bart has not kept in contact with his mother at all. In fact, if had not been for the nominal gift that suddenly arrived, he would never have known his mother died. But now he does know. And he knows there is a will submitted to the Court, which means an inventory is on file, and Bart is curious, so he gets a copy from the Court and wow! Bart had no idea mom was worth that much. If his mother had given him half, instead of leaving everything to his rotten sister, Lisa he would have gotten . . . enough to see an attorney over, anyway. And since Mom lived with Lisa the last 5 years of her life, he is going to argue the Lisa exercised undue influence over Mom. And suddenly Lisa is facing a will contest, all because she sent a nominal gift. But mom doesn’t want Bart to get half. Just be aware that nominal gifts invariably cause hard feelings and much litigation.
In a third scenario, Uncle Jesse tried to write his own will, and he left his daughter, Daisy $1. Not being a lawyer, Uncle Jesse he didn’t do a very good job of the will. He didn’t provide for an independent administration, which means the Court has to oversee everything. The executor, Luke, will now need a performance bond, and the probate will also cost much more. (There is a way around even this, if you can get the agreement of all the beneficiaries) But wait! Daisy was left $1. That makes her a beneficiary. And why should she agree to an independent administration? She’s going to want something to be agreeable. Uncle Jesse’s $1 gift just cost his heirs many thousands of dollars.
The argument against a nominal gift is even stronger now. On September 1, 2007, the Texas legislature passed Texas Probate Code 128A, which requires that the executor send a copy of the will to every beneficiary of the will within 60 days of the will being admitted to probate. Then the executor has to file an affidavit with the court listing the beneficiaries and the addresses, and swearing that the notices have all been sent. Even if a disinherited child is aware of their parent’s death, there is something about holding a copy of the actual will in your hands that makes you think of contesting it. After all, you already have it, you may as well take it to a lawyer and just see what they think.
I never advise in favor of a nominal gift. Not only are there the three arguments listed above against it, but there really is no reason for it. The legal concerns that cause some attorneys to advise client to leave their child $1, can be addressed in other ways. For example, you can put in a paragraph that says essentially. “I have deliberately made no provision for my son, Zorro. I have a good reason for this decision, and he is familiar with it.”
If you have questions regarding this, or another matter, please contact my office at 936-435-1908 or 281-723-2791 to schedule an appointment with an attorney.
Visiting this blog does not create an attorney-client relationship. Information should not be considered legal advice.
Destroy your old will
Many attorney-drafted wills state that all previous wills are revoked. Nevertheless, I advise my clients to physically destroy their old wills. It doesn’t really matter how you do it. You can tear it up, burn it, shred it, or even write “I revoke this will” on each page and sign it. The point is that you do some “physical act” to indicate that you have revoked your old will. You do not need to wait until your new will is drafted. If you would prefer Texas intestacy over the terms of your old will, destroy the old will immediately (please be sure that you understand Texas intestacy laws first). Texas is replete with cases where a will is accepted despite convincing testimony that the testator was in the process of replacing it.
The purpose of destroying an old will is to prevent someone else from attempting to probate that will in Court. You would be amazed to know how often old wills are submitted for probate. You should avoid giving out or making copies of your will. This is because if an original will cannot be located, a copy can be probated, along with testimony of what happened to the original, and a statement that the will was not, to the applicant’s knowledge, revoked. But once a copy of your will leaves your possession, then you can never again be sure that all the copies have been destroyed. Even if you ask your disinherited child for the copy of your old will back, and he gives it to you, he may have made additional copies in the meanwhile. There is no way to tell. The result? A potentially expensive fight in probate court.
In addition to destroying copies which you may have of an old will, you should advise the attorney who drafted that old will that you have made a new one (thus allowing them to destroy, or otherwise annotate the old will with an eye towards preventing an unnecessary will contest).
Similarly, you should avoid signing multiple original wills. If a will cannot be located, the presumption is that the testator destroyed the will, intending to revoke it, which can make the will which is located susceptible to challenge.
Just as a missing original will raises the presumption that it was destroyed by the testator, an undestroyed original will, raises the obvious presumption that it was not revoked. If you have more than one undestroyed will, you run the risk not only that someone will deliberately probate a will which you have revoked, but the risk that they will do so accidentally, or even be forced into probating it. It is especially important to destroy your old will where you have made dramatic changes to who inherits, or where you would prefer Texas intestacy to operate over the terms of your prior will. This is because a person who finds a will of a deceased person has an obligation to submit it to the Court, and if they do not do so, they can be called into Court to show why the will has not been submitted, and then can be ordered jailed until the will is submitted.
There have been multiple cases where someone told us that they had found an old will, but knew a more recent will had been written, but had been unable to find it. If an undestroyed, original will is in existence, it is difficult to persuade the Court that it was revoked.
If you would like to speak to an attorney about challenging a probated will, or replacing an existing will, please contact my office at 936-435-1908 for an appointment in Conroe, Huntsville or The Woodlands. Sugar Land or Stafford residents may call 281-723-2791.
When you write a new will, it is important to make sure that you destroy your old one!
Family Settlement Agreement under Texas Law
A Family Settlement Agreement (FSA) is the term used for an agreement reached by all of the heirs as to how an estate should be distributed.
Oftentimes, an FSA is used to overcome the effects of a poorly drafted will. In other cases, it is somewhat like a magic wand for resolving probate disputes. There are few ills a properly drafted FSA cannot cure.
For instance, suppose a man dies with a second wife, but with children from his first wife. His will leaves everything to his children. The second wife claims a one-year family allowance, and the right to live in the man’s spacious and valuable home until she dies. She has that right, under Texas law. However,she is not really happy, because she knows she cannot afford to continue to live in the home, and would rather move near her own children, but if she did, she would have no place of her own to live. The children are not happy because the home is the most valuable asset of the estate, and they want to sell it now. Enter the family settlement agreement. The children and the wife can sit down together and agree that, in lieu of the family allowance and life estate, the wife can receive an annuity from the estate which would be sufficient to allow her to maintain a modest home near her own children. The children are now free to sell the home, use a portion of the proceeds to purchase the annuity, and distribute the entire estate.
A family settlement agreement is solid gold in probate court. The Court does not even have authority to approve or disapprove it. All the parties sign it, it is filed with the Court, and it acts both as a binding and enforceable contract. If properly drafted, it’s excellent protection against future liability and claims brought by heirs who spent their inheritance much faster than they ever thought they would (and now that they think about it, they really should have gotten more).
I have used family settlement agreements to quickly wrap-up cases that gave every indication of becoming nasty, protracted battles that would have made no one but me and the other lawyer happy. Actually, that is a myth. Most attorneys, myself included, hate cases where we can see our client is going to be unhappy at the other end, no matter how much money we might earn off their unhappiness. That is why I am such a fan of family settlement agreements. There is a much higher possibility that my client, and everyone else involved, will feel that justice was done.
Of course, all legal tactics, no matter how good, do have a downside. What are the downsides to a family settlement agreement?
- First, they require the agreement of ALL the heirs.
If you have one heir who is, for example, strung out on drugs, but living in his great aunt’s house, and not willing to do anything which would enable a sale of the home, the other 19 heirs cannot come together without him and sign a family settlement agreement. Instead, you will most likely end up with a dependent administration, where the judge may or may not allow you to take estate funds to make badly needed repairs before offering the house for sale, at a price which must first be approved by the judge, and in the meanwhile, you will need a bond, and will need a formal appraisal, and will need to file accountings and . . you get the idea. All for want of the signature of one miscreant with a 1/32 share of the estate.
- A second downside, is that if you give up something that you are clearly entitled to in a family settlement agreement, it may be seen as a gift for tax purposes.
A widow with a community estate worth 4 million cannot, for example, enter into a family settlement agreement with her children in which she changes her husband’s will to leave his half of the property directly to their children, thereby saving her heirs over $700,000 in taxes. Well, she can give her children one half of the property. And the court will allow it And it will be binding on her and the children. But it will not be binding on the IRS, and the taxes will still be owed. HOWEVER, if the same widow has a step child who was disinherited, and the will was made recently under circumstances which could arguably constitute undue influence then a reasonable agreement to surrender part of the inheritance to the step child most likely would be binding on the IRS, but that is going beyond the scope of this blog.
Suffice it to say, if you are probating or administering a taxable estate where the decedent did not invest in any tax planning, you will want to explore all your options.
All of this is not to say you should enter into a family settlement agreement in which your interests are not fairly represented. However, if you have an attorney, and a good idea of how the issue would come out, and what the costs might be without an agreement, they can not only save you a lot of money and time, but sometimes a family settlement agreement may also help you maintain a good, or at least a bearable, relationship with the other potential heirs. Or sometimes not.
In any case, you should have your own attorney review a proposed family settlement agreement before you sign. You may have rights you are not aware of.
If you would like to see an attorney to discuss a family settlment agreement, please contact my office:
Please call my Woodland office and set an appointment.
Visiting or reviewing this website does not create an attorney-client relationship.
Do I have to probate my mother’s will?
Probating a will accomplishes three basic ends. It transfers legal title to estate assets, such as real estate; it distributes property according to the wishes of the decedent; and it provides a vehicle for creditors to be paid. Where there are no debts, and if you are able to transfer legal title and distribute property without probating the will, there is perhaps no legal necessity that the will be probated. However,
all wills, whether probated or not, must still be filed with the court under Section 252.201 of the Texas Estates Code. Simply take the original will, and a copy of the death certificate to the county clerk and tell the clerk that you are filing the will under section 252.201. The clerk will take the will and provide you with a receipt. If the need for a probate soon becomes apparent, you now know where to find that will!
If you know of someone who is refusing to file a will under section 252.201, you may have them served by a constable and thereby called in front of a judge to explain why they have not filed the will. If they continue to refuse to file the will, the judge may order them to pay you all the costs of the suit, including attorney’s fees, and order the person incarcerated until the will has been filed.
A will which has been filed under Section 252.201 is a public record, and anyone may obtain a copy from the county clerk.
Moreover, there may be alternatives to formal probate available depending upon whether there are outstanding debts owed, and the amount of property involved. For example, there are Family Settlement Agreements which can serve in lieu of probate to address the distribution of assets outside of a formal probate proceeding (but they require universal agreement).
While there are some instances when probate may be unnecessary, please allow an attorney to assess the situation rather than just sitting on an unprobated will. Probating the estate of a loved one often gets harder, not easier, when it is delayed.
If you delay probating a will for too long, you may lose the ability to do so. If you delay and later find that that there’s a need to probate the will, then your delay will make things exponentially more costly. Moreover, if a will is not filed promptly, necessary witnesses may become harder to locate.
If you have any questions regarding this, or any other other legal topic, please contact our office at 936.435.1908 or 281-723-2791.
I am considering a will contest
There are a number of avenues open to challenge a will. One of the most common challenge is to assert that a will was made under duress or undue influence. Undue influence means that there is an influence (usually another person) who overpowers or subverts that of the testator (the person making the will) and causes the testator to make a will which he would otherwise not have made. Duress seems to be somewhat self-explanatory. If a person signs any document under the fear that if she or she does not do so then physical harm may come to them–such a feeling can rightly be termed “duress.”
An example undue influence in the will making process would be a situation wherein Granny is checked into a nursing home by her children, who, visit frequently, but cannot provide the round the clock care which Granny requires. Four months later, Granny dies, and to everyone’s astonishment, her nurse, Florence, produces a will which leaves everything to her, a “relative” stranger.
Such a will may be relatively easy to overturn because of the presence of a close family, the short length of time Granny knew Florence, the large amounts of time Florence spent alone with Granny, and Granny’s physical dependence on Florence. But with the removal of any of these elements, a challenge becomes more difficult.
Moreover, some wills have a “no contest” clause which functions to disinherit or greatly diminish the award of any beneficary who contests a will. However, in the event of a successful challenge, the no contest provision is often voided along with the will. But making such a decision requires knowing all of the facts.
If you are considering a will contest, please contact Andrew J. Bolton, Attorney at Law, at 936-435-1908 or 281-723-2791 to schedule an appointment.
Proceeding to Determine Heirship
If you die without a will, then it’s the State of Texas that determines who will be your heirs. This state-imposed arrangement is one of the many problems suffered by those left behind. For example: Suppose John Doe dies without a will. His wife, Jane Doe, then tries to access a bank account that is in John’s name. Since there is no payable on death beneficiary listed on the account, the bank won’t allow her access. Why? Just ask yourself: How does the bank know John and Jane were legally married? Ah, but Jane shows the bank manager a marriage license. Still, the bank manager says that a marriage license doesn’t prove they were never divorced! In sum, pre-planning is the best way to avoid this and other similar difficulties; and a will is an excellent means of planning for an inevitable future event.
Similarly, how does the bank know whether John had children born outside of his marriage to Jane? Under Texas law, such children may be entitled to a share of the estate. Often, to protect itself, a bank may require a court order which definitively lists the heirs. Oftentimes what the bank wants is: a “Judgment Declaring Heirship.”
To obtain a Judgment Declaring Heirship, our Applicant, Jane, must file a lawsuit called a “Proceeding to Determine Heirship.” In this proceeding, she will list basic information about her deceased husband, John, including the date of his birth and death, the date of their marriage, and any previous marriages, the names, birthdates, and addresses of his children, and, whether he was ever divorced. Each of John’s other heirs must either be served in person, or they must file a waiver stating that they have seen the application, and are waiving their right to be served. After the proceeding is filed, most courts will require that Jane request the appointment of an attorney ad-litem. The Ad-Litem’s job is to represent any “missing” heirs that Laura did not tell the Court about. Laura will also have to post a notice in the local paper that she has filed a proceeding to determine heirship. Then Jane will have to bring two witnesses, who are not related to her or John, and yet knew John well enough to be able to give testimony about any marriages, divorces, and children born inside or out of the marriage. At a scheduled court hearing, she will give evidence, as will the two witnesses, and the ad litem. Thereupon the Judge will enter a Judgment Declaring Heirship. This Judgment should recite all John’s heirs and the percentages which they should each receive of his separate and community property. In many cases, it will also list the property, and classify it as community or separate property.
If you have questions regarding this, or any other legal matter, please contact
Andrew J. Bolton, Attorney at Law, to schedule an appointment at either or Huntsville, TheWoodlands office at 936-435-1908. Sugar Land and Stafford residents may call 281-723-2791. Visiting or reviewing this blog does not create an attorney-client relationship. Information here should not be considered legal advice.
Things to condsider when writing a Texas will
This section is not intended to help you write your own will. Some items which may be discussed here may constitute things you might want to think about before going to see an attorney. Other items may be quirky considerations that struck me as funny. Or, they may just be unusual things that have come up in the past. You are advised to obtain competent legal counsel prior to drafting any will or testament.
When you do see an attorney, your attorney should, of course, listen to what you want. If your attorney does not know that you want to provide for your pet upon your death, or guarantee that your sister is not appointed the guardian over your children, then how can you make sure such things do (or don’t) happen? Listening therefore, is key. For your part, you too should be prepared to listen to your attorney. Indeed, while I have had clients who seem to show me too much deference, to the point of asking me how they should split up their property, or not wanting to actually read any of their documents, I am sometimes surprised to have clients show resistance to the oddest things which are necessary to the will-making process. So, before coming in, think about possible answers to the following questions (some of which are admittedly simplistic):
Q: Where should I safeguard my will?
A: There are several good places to keep your will, and even more bad ones. A home safe is one of the worst, unless there is plenty of access to it by others. Texas counties allow “safekeeping filings” and that’s a good place to keep a will, so long as loved ones know about it. Safe deposit boxes are also a good place to put a will. The law allows banks to open the box to allow an executor to obtain a will kept inside.
Q: At What Age should I let someone inherit in my will?
A: This answer depends upon the purposes which you want to accomplish in the will. Do you wish to keep the money safe from a spendthrift? Or provide for a child’s college education? Or perhaps make provision for a subsequent, unforeseen illness and recovery? Most clients say that 18 is too young; others feel comfortable with allowing a child to inherit free from restriction at the age of twenty-five. It’s your will and your family–you make the choice.
Q: Do I want my life insurance policy to “pour over” into my will?
A: It depends on what you want to do with it, of course. If it all goes to your spouse, then having him or her named as a beneficiary on the policy itself will speed up the “time it takes” to obtain this valuable asset. If you anticipate putting restrictions on the use of the insurance benefit, then such may be accomplished through a will and so the policy should, in such cases, “pour over” into the will.
Another example of a good question to ponder is the old probate adage: Avoid dividing ownership in real estate. Certainly, if you own real estate at your death, it is almost always best to either leave the entire property to one person, or to a trust, or to order that the property be sold and the assets divided. But from time to time, you have compelling reasons not to award real estate to just one person. Talk with your legal counsel to see what best fits your circumstances.
Q: Why it is a bad idea to make your children co-executors
A: While Texas allows you to name co-executors to probate your will, it is almost always a bad idea. Money often (there is a strong temptation here to say “invariably”) makes enemies of the best of friends. Put only one in charge, if possible.
Q: I have given a power of attorney, I don’t need a will anymore, right?
A: A power of attorney may be viewed as a mirror image of a will. Whereas a will is not valid until death, a power of attorney is generally valid immediately and dies when you die. In sum, you may need both to adequate take care of contingencies involved in your estate. In this connection, it is rarely wise to give a power of attorney to a non-spouse unless trust and family harmony are absolutely inviolate. An adult child with a parent’s power of attorney, can destroy the estate even before they’re gone. That is not the key to famly harmony at the furneral.
Q: We are not going to have any more children. Why should I list what will be inherited by children born after my will is written?
A: No one never knows what they don’t know. I guess if you and your husband are 70 years old or more, then it’s a safe bet to exclude after-born children. But I’ve seen dozens of times where grandparents have adopted their wayward son’s unwanted child, as their own. An adopted child is a “child” for purposes of inheritance.
What happens to my property if I don’t have a will in Texas?
If you die without a will, the state of Texas has thoughtfully written one for you. Not really, but the state imposes certain rules of inheritance in such cases. This is known as “dying intestate.” We call the laws governing the division in such instances “intestacy laws.” If you are a lawyer, it seems pretty straightforward. Joe dies, survived by his wife, Judy, and their three children. He has no children with anyone but Judy. Judy gets all of the community property. Joe also had some land and stocks he got from his parents. Judy gets one third of the stocks. The remaining two- thirds are split evenly among the three children. Judy gets a life estate in one third of the inherited land. The children get the rest of the inherited land.
Juan dies survived by his wife, Linda, their daughter, Sophia, and Juan’s daughter from an earlier marriage, Debbie. Because Juan had a child who was not also Linda’s child, Linda gets the one half of the community property she already owned. Juan’s one half is divided equally between Sophia and Debbie. Juan also had a collection of gold coins that were given to him as a gift, and a rental home that he owned before the marriage. Juan, Sophia and Debbie equally divide the coins. Sophia has a 1/3 interest in the rental home during her lifetime, and, at her death, it is equally divided between Sophia and Debbie.
Dolly has no children. She is survived by her husband, Al. Al inherits all of their community property, and all of Dolly’s separate, personal property. The house Dolly owned before their marriage goes one half to Al, and the other half is evenly divided between Dolly’s parents, or, if her parents are dead, the other half is divided among Dolly’s brothers and sisters. Orlando dies with no wife. His children evenly divide all his property. If he has no children, his parents inherit. If he has no parents, his siblings inherit. If he has no siblings, his nieces and nephews inherit. If he has no nieces and nephews, one half of his property goes to his father’s parents and their descendant’s, and the other half goes to his mother’s parents, and their descendants. And on it goes. If Orlando truly has no lineal ancestors leaving descendants, the state of Texas, ever helpful, steps in and collects. When this happens, we say the property escheated to the state. As you can imagine, this does not happen often. When it does happen, it is most often small bank accounts or a patial interest in land that is not very valuable. The more property people have, the more their relatives seem to keep track of them, and the more friends seem to be around to assist in trasporting them to a lawyers office to write a will.
If you are thinking that that sounded pretty simple, than, as you can imagine, I have not explained all the heirship possibilities. A surviving spouse is entitled to certain properties which will be the subject of a later blog. Also, critical is the fact that, without a will, you must have a court proceding to determine who the heirs, under the applicable statue, should be. This means an aditional action, called a proceeding to determine heirship, which I will also go into in a seperate entry. It also requires, in many circumstances, a dependent administration, which I will also go into in a separate entry.
In sum, if there is any property which will need to be legally transferred at your death, I can think of no circumstances where not having a will will not cause additional headaches and expenses to your heirs. And in many cases, it can result in your property being divided in a much different manner than you would have wanted. If only you had gotten around to telling everyone how to divide your property at your death. Perhaps by writing it down and signing it in front of two witnesses, and a notary, and with the guidance of an attorney. If you have questions regarding this, or another matter, please contact my office at 936-435-1908 or 281-723-2791 to schedule an appointment with an attorney. Visiting this blog does not create an attorney- client relationship. Information should not be considered legal advice.
What can I do in Texas if I think the executor is cheating me?
Although I regularly advise clients not to appoint their children as co-executors, I have a lot of sympathy for heirs who are not appointed executor, and feel that they have been left out of the loop. Trust this advice, being a co-executor with a trustee who you think is cheating you, will often not increase your recovery in probate , but will most certainly increase the lawyer’s fee. So, while most executors are honest, there are enough bad examples to listen carefully when someone sits across from my desk and tells me that they think their sibling or step parent is cheating them in probate. In such a case, there are remedies.
The first step is usually to take a close look at the inventory and appraisal. Executors are required to file an inventory and appraisal of all the assets in an estate within 90 days of being appointed. It is possible to get an extension on the 90 days, but in the vast majority of cases, an extension is not sought, and the inventory is either filed or delinquent by the 91st day. If there are assets that my client is aware of that were not included in the inventory and appraisal, this could be the first sign that the executor is not acting in good faith. I do, however, caution my client that life insurance policies and accounts that have passed by beneficiary designation or right of survivorship will not normally be located in the inventory and appraisal.
If the executor has either not filed the inventory and appraisal, or has filed a clearly fraudulent one, it is possible to ask the Court to remove the executor. Frequently, however, it does not get that far. I have had an executor file an amended inventory and appraisal, and cut checks to the other heirs within three days of my first contacting the executor’s attorney. An attorney contact does not always produce such dramatic results, but commonly, when the executor discovers that the other heirs have retained their own attorney, he is suddenly much more cooperative about listing and distributing assets in a timely manner.
The Texas Probate Code also allows any person interested in the estate to demand an accounting from an independent executor fifteen months after the administration is opened. The accounting must list all property belonging to the estate, and must list what the executor did with the property. The executor is also required to list all the debt that have been paid, and any debts or expenses that are still owing by the estate, and any property still being held that belongs to the estate. The accounting must also include any facts which would justify the failure to fully distribute the estate. The executor must also include “such other facts, as may be necessary to a full and definite understanding of the exact condition of the estate.” If the executor does not send a sworn accounting within 60 days, he may be taken to Court and the Judge will order the accounting.
If two years have passed since the estate was opened, an heir may petition the Court to order the assets of the estate distributed.
If an executor fails to comply with any of the provisions above, any interested person, or the Court on its own motion, may seek the removal of the executor. Costs, expenses, and attorney fees of incurred in seeking removal of the executor may be paid out of the estate.
An heir may also bring a suit for damages for failure to deliver property when ordered. The Court will then enter an order finding the executor liable for the original amount due, plus ten percent for each month after the date of the demand.
Unfortunately, if the executor has spent the money and is now judgement proof, it can be difficult to collect. For this reason, if you suspect that an untrustworthy executor has been appointed, it may be in your best interest to hire an attorney to represent you immediately. By communicating with the executor’s attorney, and making sure that the executor follows the requirements of his position, it may be possible to prevent a fraud from ever occuring.
If you would like representation in an estate for which you were not appointed executor, please contact my office at 936-435-1908 to schedule an appointment in our office in Huntsville or The Woodlands. Sugar Land or Stafford clients may contact our office at 281-723-2791. We represent clients from Magnolia, Montgomery, Spring, Klein, Humble, Conroe, Huntsville, Sugar Land, Stafford as well as other areas located in Harris Brazoria, San Jacinto, Trinity, and Montgomery Counties.
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