Rather than providing an impossibly short “how to probate” article, this section will instead address some of the concerns often expressed by clients, on behalf of the executor, as well as on behalf of one or more of the heirs.
When my loved one dies, what do I do?
If your loved one dies, first take care of yourself and don’t be afraid to seek counsel from a church leader or perhaps from a professional counselor. Notifying utilities, mortgage companies, and auto lenders will let them know what’s going on and will create needed good will. If your loved one was on social security, then the social security administration needs to be notified about the beneficiary’s death as soon as possible. Of course, if you are the executor or heir, then you should take affirmatives steps to safeguard property belonging to the estate, including the will, if any. Did your loved one live alone? Then lock the house, take photos of easily visible property (for both probate and insurance purposes), and seek legal assistance.
My parent passed away, but I can’t find the will. What do I do?
I assume in such cases, that you went through all of your parent’s personal papers. Was there a safe in the house, or out in the garage? Does another family member have the will? Does your parent have a safe deposit box at the bank? If none of these work, then try searching the county clerk’s records for a “safekeeping filing” of the will itself. Often family members, friends, or even neighbors, may have information as to whether there is a will and where it may be found.
What can I do if I think the executor (the person in charge over the estate) is cheating me, or is failing to do his or her duty?
If you believe that the executor is either planning to cheat you or the probate estate, or has already done so, then you are not without remedies. Often, by prompt action, you can minimize losses, and ensure that the executor lives up to his or her responsibilities. Oftentimes, the first step in this process is to demand a copy of the executor’s Inventory, Appraisement, and List Of Claims , required by the Probate Code. It sets forth the property contained in the decedent’s estate. If the Inventory does not meet with your own recollection of the estate’s assets, then there may be a problem. Also, if there is no distribution of an item included in the Inventory, then, logically, you will want to ask “why?” If an executor fails to live up to his or her obligation to distribute the assets of the estate in an efficient and timely manner, then your final remedy will be to seek the executor’s removal by court order. Moreover, if an executor fails to submit an inventory and appraisement, such delay may also constitute cause for the executor’s removal.
To discuss a probate concern please contact Andrew J. Bolton, Attorney at Law, to schedule an appointment at either or Huntsville, or Woodlands office at 936-435-1908. Sugar Land or Stafford residents may call 281-723-2791. Visiting or reviewing this site does not create an attorney-client relationship. Entries are provided to help you prepare for your initial attorney consultation, and should not be considered legal advice.
Where can I file for probate of my relative’s estate?
In law, the proper place for filing any lawsuit is called “venue.” The Texas Estates Code, Section 33.001, states that venue is proper in the county “where the decedent [last] resided if the decedent had a fixed place of residence.” Nevertheless, there are variations on this venue theme, so it is wise to allow a competent attorney to address the “where” of where to file for probate of a will.
Can We Avoid Probate After Our Loved One Has Died?
In many cases, yes. However, please note that probate in Texas is not the scary monster than most “avoid probate” radio ads have made it out to be. Indeed, in certain cases, where there is a will, you can avoid probate if that’s your decision. In other cases, even where there is no will (which is never recommended), it still may be possible to avoid probate. Please contact us to have a lawyer meet with you to discuss possible options to a formal probate proceeding.
If your departed loved one received medcaid prior to passing, then the medicaid estate recovery program (MERP) requires that a state attempt to collect medicaid payments made to enrollees. The potential good news is that the circumstances for recovery are rather narrow, but always, if medicaid has beeen involved, inform your probate attorney of a potential medicaid claim. A helpful primer on MERP claims may be found here: http://www.dads.state.tx.us/news_info/publications/brochures/DADS121_merp.html