Texas Probate Law Questions – FAQs

Yes. Unless title company will take affidavit of heirship, probate is the cheapest and quickest solution.

Assuming you have probated the will and been named executor by the Court, you can evict your sister. You will probably need an attorney to help with the eviction. A grandchild does not have homestead rights in her grandmother’s house.

We call our specialties different things: some call this elder law, probate law, estate planning, guardianship, etc. The thing to look for is experience with someone in handling guardianship matters in Court and estate planning services for the will and powers of attorney.

You will need to retitle, but the executor will need to deliver you the titles signed by the executor and a copy of the letters testamentary to do this. You will not be able to get your annual registration without updating the title.

You need to open probate either by probating a will or opening administration, if there is no will. Probating a will is very quick, but the administration can take longer depending on the heirs and other facts. You should start as soon as possible to be able to get the royalty checks started again.

At minimum, you need to probate your mother’s will in the county where she resided at the time of her death. An attorney’s assistance is required by the Court to appoint an executor, so you need experienced probate counsel. Further services could be required depending on what, if anything, was done with your dad’s estate.

Let me offer this guidance in general terms: the house apparently belongs to your father and mother. You aren’t the owner unless you are your father’s heir. Without a will, that depends on heirship law and I don’t know enough facts to tell you at this time. Mom, if she is the sole owner, can kick you out. She may be the sole heir of all of the assets. If she is incompetent, guardianship may be needed. You need to consult with an attorney to get closer to an answer.

JTWROS or POD are designations meaning the assets passes outside of probate by either “Joint ownership With Right of Survivorship” or “Payable on Death” to the other person(s) listed on the account. This is one of my least favorite things to see in Probate practice. We know that the will represents what the decedent wanted, but some boilerplate in a bank account agreement contradicts it. Unfortunately, as a general rule, a JTWROS agreement trumps the will. For the will’s directives to control, the JTWROS would have to be set aside on grounds that the owner lacked capacity at the time he signed the account agreement or was subject to undue influence. This is a trap in the law where people often don’t realize they are creating survivorship agreements and that they trump their will. But, there is no way to prove now that your father didn’t understand what he was signing UNLESS he was incompetent or unduly influenced. In other words, you can’t just argue, “he didn’t intend this.” You have to prove “he didn’t know what he was doing at all.” The law presumes he read the account agreement, understood it, and signed it willingly.

The trust may very well be an attempt to circumvent your community property rights. You need to consult an attorney to review the trust and possibly challenge the transfer of the homestead and possibly other assets into the trust.

If your father drafted the will while married leaving property to Wife X, then he divorces Wife X, then the gifts to Wife X are void.

The truck was a gift to you via will, so it is separate property. Possession does not change the character of the property.

If the policy is part of an employee benefit, the will does not control. Instead the Summary Plan Description should explain who receives the benefit, likely the surviving spouse. You should contact the employer benefits/ human relations department of the employer, and they will tell you who they will pay. If the policy is not part of an employee benefit, the will controls.

(?…) ur friend has a guardian, he has been declared incapacitated and has no ability to sign a power of attorney. In any event, to change a guardianship, you must file an appropriate application with the Court which created the guardianship to change or terminate the guardianship. If your friend wants you to be his guardian, the Court will consider his desire in making its decision.

If the will created a trust for your children, and it should, then the beneficiary should be 1) primary = spouse and 2) secondary = Trustee of Testamentary Trust per last will and testament. If you have ANY doubt about what you are doing, consult the attorney who drafted the will. If an attorney didn’t draft the will, hire one and be prepared to shred what you have.

No, attorneys develop forms we know and trust. Reviewing others’ documents to make sure they are good is time consuming. I wouldn’t touch an engagement to review documents drafted by a non-attorney. It would be cheaper to start from scratch using my well-tested forms.

Just for clarity because I don’t think the law is different anywhere, in Texas, a power of attorney terminates with the death of the principal, in this case your mother.

If the car identified in the will doesn’t exist, the gift lapses. You don’t substitute another car for the one described. The car that does exist, unless gifted by another bequest, becomes part of the residuary estate and goes to the person identified in that part of the will.

This could have been clarified by probate, which I gather didn’t occur. Regardless, you possess the item, they claim it belonged to your mother, that it then should be theirs (I don’t know why). But, it is too old to open an estate, and you aren’t legally or ethically obligated to turn it over to them. You do not need to surrender it to them and they can not get a court order to make you do so.

If you “can’t probate the will” that left you the house, then the house isn’t yours. In some circumstances, you can establish title by living in a place and paying taxes, which is called adverse possession. That is a risky way to try to establish title, and you would probably have to bring suit after the time period to clarify title. I’d say, it is highly likely that a better use of your money is to use it to be make a down payment on a new home. I definitely wouldn’t pay any more taxes without consulting an attorney.

Anything not specifically gifted to someone in the will is the “residue.” So the “rest, remainder, and residue” is the lawyer way of saying “everything else.”

Really making some guesses here, but a deed doesn’t have to say “$10 and other good and valuable consideration.” It can be “granted per terms of ___ Trust” or “gift per Will probated . . .”

If your father died and left all to his wife, then you are not automatically entitled to anything from either estate. A will effectively transfer property at death; it does not continue to transfer property down the line after others die. If stepmother’s will were challenged, you would still not be an heir to her estate.

As to the “stuff” this is a classic case of what I call the “pickup probate.” Which means: the first one to the house with a pickup wins. Cruel, but true. Yes, you can sue your grandparents and uncles, but pursuing such a case won’t be worth it unless the stuff includes some very valuable items.. You refer to probate of a will, so the will controls and an executor should be named. The house thus can be transferred to you by the will, but getting the stuff back is hard to impossible.

$1500 is a fair rate. You might find someone cheaper, or who would take payment in installments or see if the attorney would accept credit cards. You don’t explain why you need to probate your mother’s will, so I don’t have the information to tell you if less expensive probate alternatives are available.

It is split between wife and child. The exact percentages depend on the type and nature of the property, so you need legal advice.

In Texas, the answer is simple: this is not a valid will.

You have to think on the negative side to determine which attorney is best for you. The worst thing that could happen is that you get prosecuted for elder abuse or, more likely, get sued for breaching your duties on your power of attorney. If you feel you might be prosecuted, you need a criminal defense attorney. If you feel the only realistic situation is that the family might sue you, they will probably sue in Probate Court, if probate has been opened. If so, you want to find someone 1) who regularly appears in the Probate Courts of that County; and 2) has experience with fiduciary duty litigation. Most attorneys who advertise that they do “probate litigation” or “fiduciary duty litigation” will probably have the needed experience.

You need to establish the heirship of your mother’s estate. The 401k administrator will probably not accept anything less than a full court ordered Declaration of Heirship. You need to retain an attorney who practices in Probate in the County where your mother resided at the time of her death. Once you explain the full circumstances to the attorney, he can advise on the cost.

The house won’t be yours unless your mother leaves it to you in a will or you are her sole heir. POAs do not authorize you to use your mother’s assets for your personal benefit. If your mother needs the equity of the house to pay her medical care, you would be obligated to sell the house. So, neither the fact you have lived there, have her POA, or have been her caregiver give you any ownership interest in the house.

You’re focused on the mortgage, but you need to focus on the title. My question is, “why is the house only in the husband’s name?” If that is because he acquired it before marriage (likely) that means it is his separate property. If he dies without a will, then that property will be owned by his descendants, if any, but the wife would have a life estate. If you want your wife to have 100% ownership of the house upon your death, you need a will. Changing the mortgage won’t change title. See a lawyer about basic estate planning documents: wills and powers of attorney.

The original deed must be filed with the County Clerk to be effective. In most counties now, the clerk scans the deed and immediately returns the original to the filer. In other counties, the deed is recorded and eventually returned to the filer. You can request the original from the attorney, But you should confirm that is recorded, which is indicated by filing stamps or other notations on the original. If it is not filed, see to it that is filed.

In this situation, you need to think about living elsewhere. Stop paying 100% of taxes on a property that you own 1/8th! Go to probate court, establish your ownership, get a partition order, and collect your 1/8 of value and go buy a place that is 100% yours.

Well, for starters it isn’t self proving. It probably lacks independent administration language. It probably doesn’t gift all of the property or contain a residuary clause. It probably doesn’t do anything any decent attorney would do for a reasonable fee. Go ahead be cheap and don’t hire an attorney to draft the will. I will earn three times as much on your probate as opposed to the one with a well-drafted will.

Technically, no, but drafting them correctly is more difficult than it should (don’t blame me, I didn’t write the statute!) You can probably find the form and you need to read the probate code, section 137, very carefully. You can then file without an attorney, but if it is wrong, the Judge will reject it and it won’t be valid and your filing fee is then wasted.