Posts Tagged ‘texas probate’
Is it possible to prove a common law marriage after death?
Posted by: David Leon in Estate planning and probate, Insurance Law on December 25th, 2009
Yes. However, the burden of proof shifts after the second anniversary of the death of the purported spouse. If successfully proven, the date of the inception of the common law marriage may be determined by the court.
How will I know if an insurance company has accepted or rejected my claim?
Posted by: David Leon in Insurance Law, Personal injury, auto accident, slip and fall law on September 20th, 2009
An insurance company generally has fifteen days to accept or reject a claim, or ask for more information. If there is a reasonable suspicion of arson, then the time extends to 30 days. If a claim is rejected, the insurance company is obliged to tell the claimant the reasons why.
The controlling statute is Texas Insurance Code Sec. 542.056. NOTICE OF ACCEPTANCE OR REJECTION OF CLAIM. (a) Except as provided by Subsection (b) or (d), an insurer shall notify a claimant in writing of the acceptance or rejection of a claim not later than the 15th business day after the date the insurer receives all items, statements, and forms required by the insurer to secure final proof of loss.
(b) If an insurer has a reasonable basis to believe that a loss resulted from arson, the insurer shall notify the claimant in writing of the acceptance or rejection of the claim not later than the 30th day after the date the insurer receives all items, statements, and forms required by the insurer.
(c) If the insurer rejects the claim, the notice required by Subsection (a) or (b) must state the reasons for the rejection.
(d) If the insurer is unable to accept or reject the claim within the period specified by Subsection (a) or (b), the insurer, within that same period, shall notify the claimant of the reasons that the insurer needs additional time. The insurer shall accept or reject the claim not later than the 45th day after the date the insurer notifies a claimant under this subsection.
How does one qualify to be an administrator or executor of an estate?
Posted by: David Leon in Estate planning and probate on August 9th, 2009
If someone is appointed as an executor in a will, or someone applies to be an administrator of an estate, the person cannot be “disqualified” under Sec. 78 of the Texas Probate Code. This section specifically prohibits the following people from administering an estate:
(a) An incapacitated person;
(b) A convicted felon, under the laws either of the United States or of any state or territory of the United States, or of the District of Columbia, unless such person has been duly pardoned, or his civil rights restored, in accordance with law;
(c) A non-resident (natural person or corporation) of this State who has not appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate, and caused such appointment to be filed with the court;
(d) A corporation not authorized to act as a fiduciary in this State;
or
(e) A person whom the court finds unsuitable.
How is it decided who will administer an estate?
Posted by: David Leon in Estate planning and probate on August 9th, 2009
Sec. 77 of the Texas Probate Code handles the order of persons who can administer an estate of a deceased person.
The code provides (in order):
(a) To the person named as executor in the will of the deceased (assuming the person is available, and qualified to serve.)
(b) To the surviving spouse.
(c) To the principal beneficiary under the will, or the person who is to receive the majority of estate assets under the will.
(d) To any devisee or legatee of the testator.
(e) To the next of kin of the deceased, the nearest in order of descent first, and so on, and next of kin includes a person and his descendants who legally adopted the deceased or who have been legally adopted by the deceased.
(f) To a creditor of the deceased.
(g) To any person of good character residing in the county who applies therefor.
(h) To any other person not disqualified under the following Section.
If more than one person qualifies, the court has discretion in choosing an administrator.
Someone I know died having written a will. I know who has the will, but s/he refuses to file it for probate.
Posted by: David Leon in Estate planning and probate on August 9th, 2009
Unfortunately, this is not uncommon. If you have possession of a deceased person’s will, you have a duty to either file the will for probate (assuming you have standing or capacity to do so) or you should deliver the will to the clerk of the court.
If you fail to do so, a person may file an action in the appropriate county’s probate court and compel you to appear before a judge and explain why the will was not delivered to the county clerk in accordance with Sec. 75 of the Probate Code. If the custodian of the will fails to deliver the will to court, the court may find the person in contempt of court. A judge may find that any person refusing to deliver such will to be liable to any person aggrieved for all damages sustained as a result of such refusal.
For example, let’s suppose Jose dies after making a will, leaving his house to Anna. Jesse has Jose’s will, but refuses to deliver it to the county clerk. Anna misses an opportunity to sell Jose’s house because of Jesse’s refusal to deliver the will. Anna may have a cause of action against Jesse for his wrongful refusal to deliver the will to the court.
(See: Sec. 75 of the Texas Probate Code)
What is a ladybird deed?
Posted by: David Leon in Real Estate Law on July 4th, 2009
A ladybird deed is a type of life estate, with added features. In a normal life estate, the holder of the life estate interest may not sell, mortgage or encumber the property, absent permission from the remainderman. The life estate owner only has occupancy and use rights for the duration of the person’s life.
A ladybird deed (also called an enhanced life estate) allows the enhanced life estate owner to sell, mortgage or encumber the property. If the enhanced life estate owner sells the entire property, the remainderman’s interest is extinguished.
How is a life estate set up?
Posted by: David Leon in Real Estate Law on July 4th, 2009
There are a number of ways to set up a life estate. Most common are life estates that are set up by operation of law (under the Texas probate code) and life estate pursuant to a deed.
The most common life estates under the Texas probate code occur when a person dies without a will (called an intestate death.) In very specific circumstances, a surviving spouse may have a life estate in the deceased spouse’s homestead, with a remainder interest in the deceased’s children.
Otherwise, people may, as part of estate planning, or probate avoidance planning, set up life estates in land, and transfer them by use of a life estate deed.
What is a remainderman?
Posted by: David Leon in Estate planning and probate, Real Estate Law on July 4th, 2009
A remainderman, more commonly referred to as a remainder interest, is a person or entity that receives a property after a certain condition has been met.
The most common remainder interest occurs when someone who has a life estate interest in a parcel of land dies. The property then becomes owned by the remainderman.
For example:
John owns a farm. John grants Juan a life estate interest in the farm, with a remainder interest to Joe. Juan has the ability to occupy the farm for his lifetime. Upon Juan’s death, Joe inherits the property, because he is the remainderman.
What is a life estate?
Posted by: David Leon in Legal news and errata on July 4th, 2009
A life estate is the right to occupy or use a specified parcel of land for the period of a person’s life.
For example:
John owns a farm. John grants a life estate in the farm to Juan. This means that Juan can use or occupy the farm for the rest of Juan’s life. Upon Juan’s death, the property will either revert back to John, or will be passed to a “remainderman” (depending on how John set up the life estate.)
What is exempt personal property?
Posted by: David Leon in Estate planning and probate, Litigation and judgments on June 28th, 2009
Exempt personal property means that the property is (under most circumstances) unavailable for attachment by creditors.
Exempt personal property is covered by chapter 42 of the Texas Property Code. Section 42.001 provides that :
(a) Personal property, as described in Section 42.002, is exempt from garnishment, attachment, execution, or other seizure if:
(1) the property is provided for a family and has an aggregate fair market value of not more than $60,000, exclusive of the amount of any liens, security interests, or other charges encumbering the property; or
(2) the property is owned by a single adult, who is not a member of a family, and has an aggregate fair market value of not more than $30,000, exclusive of the amount of any liens, security interests, or other charges encumbering the property.
(b) The following personal property is exempt from seizure and is not included in the aggregate limitations prescribed by Subsection (a):
(1) current wages for personal services, except for the enforcement of court-ordered child support payments;
(2) professionally prescribed health aids of a debtor or a dependent of a debtor;
(3) alimony, support, or separate maintenance received or to be received by the debtor for the support of the debtor or a dependent of the debtor; and
(4) a religious bible or other book containing sacred writings of a religion that is seized by a creditor other than a lessor of real property who is exercising the lessor’s contractual or statutory right to seize personal property after a tenant breaches a lease agreement for or abandons the real property.
(c) Except as provided by Subsection (b)(4), this section does not prevent seizure by a secured creditor with a contractual landlord’s lien or other security in the property to be seized.
(d) Unpaid commissions for personal services not to exceed 25 percent of the aggregate limitations prescribed by Subsection (a) are exempt from seizure and are included in the aggregate.
(e) A religious bible or other book described by Subsection (b)(4) that is seized by a lessor of real property in the exercise of the lessor’s contractual or statutory right to seize personal property after a tenant breaches a lease agreement for the real property or abandons the real property may not be included in the aggregate limitations prescribed by Subsection (a).
My spouse died, owing a lot of debts. Can the creditors take my homestead?
Posted by: David Leon in Estate planning and probate, Real Estate Law on May 26th, 2009
Not necessarily. Sec. 271 of the Texas Probate Code offers protection for the surviving spouse regarding the homestead (and other exempt property as set forth in the Texas Constitution.) This applies whether or not the homestead is separate or community property (Sec. 282 of the Texas Probate Code.)
How long does a person have to be missing before they are presumed dead?
Posted by: David Leon in Estate planning and probate on March 8th, 2009
Any person absenting himself for seven successive years shall be presumed dead unless it is proved that the person was alive within the seven-year period. Texas Civil Practice and Remedies Code Sec. 133.001.
What happens to a mortgage when the borrower dies? Can the bank still foreclose?
Posted by: David Leon in Foreclosure, Real Estate Law on March 7th, 2009
The bank has several options in this scenario. If an administration has been set up, then the bank may proceed by notifying the estate administrator, and possibly filing a motion with the probate court. The bank or mortgage company can also force a creditor’s administration, if no administration is pending. Finally, under certain circumstances, the bank may proceed against the heirs of an intestate decedent.
If the bank has foreclosed and hasn’t followed proper procedure, an heir may be able to set aside the foreclosure and reclaim the property, if done timely.
What is a determination of heirship? Where can I get a determination of heirship done?
Posted by: David Leon in Estate planning and probate on March 6th, 2009
A determination of heirship is a proceeding in probate court. In this probate proceeding, an applicant will ask a court to determine which persons should inherit from a deceased person’s estate. The applicant must prove that the person is deceased. The court will typically appoint an attorney ad litem to represent any unknown or incapacitated heirs. The judge will then issue an order stating that the person is deceased, and declaring who may inherit from the person’s estate. Contact Us for more information.
How do I revoke a will in Texas?
Posted by: David Leon in Estate planning and probate on March 6th, 2009
In Texas, a will may be revoked by overt act (such as tearing it up) or by publication of a new will that expressly revokes the prior will. Contact Us if you would like to revoke a will, or draft a new estate plan.
Do wills have to be filed in order to be valid in Texas?
Posted by: David Leon in Estate planning and probate on March 6th, 2009
No. A person does not have to file his or her own will for it to be valid in Texas. In order for a will to be valid, it must be in writing, signed by the testator (the person writing the will) and various other formalities must be met. Some people choose to file their wills with the county clerk’s office for safe keeping, but this is optional. Other people choose to have the original wills filed with their law offices. Most people retain possession of their own wills. You should have your will reviewed by a law office to ensure that it complies with Texas law regarding the execution of the will. Contact Us for more information.
What is ancillary probate?
Posted by: David Leon in Estate planning and probate on March 6th, 2009
Probate actions in Texas can only effect title to property within the Texas borders. In order to collect property outside Texas, an additional probate proceeding must be done in an appropriate court located in that state.
For example, let’s suppose that you have a person who died in Texas, but had property in Oklahoma. If you instituted a Texas probate action in Texas court, the Texas probate court would not have jurisdiction over the Oklahoma property. In order to access the Oklahoma property, you would need to file an action in probate court in Oklahoma. This secondary action is referred to as “ancillary probate”.
Please Contact Us if you have an ancillary probate matter you would like to discuss.
I think someone is abusing a power of attorney. How would I override the power of attorney?
Posted by: David Leon in Estate planning and probate, Litigation and judgments on February 28th, 2009
A power of attorney grantor can grant broad powers under the power of attorney document to a power holder. The power holder owes a fiduciary duty to the power grantor. This means that the power holder must put the interests of the power grantor above his or her own interests. If a power holder is acting beyond the scope of the powers granted by the document, or the power holder is abusing the power, then the power grantor (or the power grantor’s representative) can hold the power holder accountable. If you have an issue such as this that you would like to discuss, please contact us.
What is considered a small estate in Texas?
Posted by: David Leon in Estate planning and probate on February 20th, 2009
This question often arises where a person dies without a will (intestate) and a court order is needed to clear title to property. In Texas, a small estate affidavit can accomplish this. To qualify, the intestate decedent must have less than $50,000 of assets (not including the homestead or exempt property), be solvent, and have no real property (aside from the homestead.) This is not available in all cases, and is subject to the discretion of the court. If you have an estate matter that you would like to discuss with our office, please contact us.
How do you dispose of a deceased person’s property if there was no will?
Posted by: David Leon in Estate planning and probate, Real Estate Law on February 20th, 2009
There are several ways to dispose of a deceased person’s property in Texas. Assuming the person died intestate (without a will), the Texas laws of decent and distribution would control the disposition. The types of procedures necessary to document the transfer of assets would depend on the status of the estate.
What is a muniment of title?
Posted by: David Leon in Estate planning and probate on February 20th, 2009
A muniment of title is a probate action in which no administration of the estate is done, and no personal representative of the estate is appointed. A muniment of title is a summary proceeding available to testate decedents (people who die having executed a valid will) who do not have any estate debts. The court simply enters an order showing the the will is valid, the person is deceased, and that the property should be divided per the terms of the will. A muniment of title is not appropriate if there are estate debts, or if there is a reason for an administration.
What are “letters testamentary”?
Posted by: David Leon in Estate planning and probate on February 15th, 2009
Letters Testamentary are letters issued by a probate court stating that a person has the ability to act on behalf of a deceased person’s estate, typically pursuant to the person’s last will.
What is a muniment of title?
Posted by: David Leon in Estate planning and probate on December 21st, 2008
A muniment of title is a summary proceeding in probate court. In this proceeding, a person trying to get a will admitted to probate will have to introduce evidence that (1) a person is deceased, (2) that person left a valid will, and (3) there is no reason to administer the person’s estate. Typically, number 3 means that there are no debts of the estate. If the court approves the application for probate as a muniment of title, then the court will issue an order, and the estate property is automatically considered transferred per the terms of the will. There is no executor or administrator of the estate.
In re Estate of Wilson — Lost Will
Posted by: David Leon in Estate planning and probate on August 24th, 2008
In re Estate of Wilson, 252 S.W.3d 708 (Tex. App.-Texarkana 2008, no pet.h.).WILLS — Lost WillAfter Husband died, Wife was successful in probating Husband’s will eventhough she could not locate the original will. Son (Wife’s step-son)contested the probate of the will claiming that the evidence was legallyinsufficient to rebut the presumption of revocation that arises when theoriginal will cannot be located.The appellate court agreed with Son. The court began its analysis byrecognizing that when a will was last known to be in the testator’spossession and cannot be located after death, a presumption of revocationarises which can be rebutted by a preponderance of the evidence. The courtalso explained that “the testator’s continued affection for the chiefbeneficiary [of the will], without evidence tending to show the decedent’sdissatisfaction with the will or any desire to cancel or change the will, issufficient to rebut the presumption of revocation of a missing will.”Wilson at 713.The court then examined the record and found it lacking of any directevidence of why the original will could not be located. Wife’s merestatement that as far as she knew and believed, Husband had not revoked thewill is not evidence of the asserted facts. In addition, there was noevidence of Husband’s continued affection for Wife or that Husband hadcontinued to recognize the will’s validity. Accordingly, the court heldthat the evidence was legally insufficient to rebut the revocationpresumption and remanded the case to the trial court.Note: This case also involved several procedural issues such as therequirements of a restricted appeal, when evidence is considered legallyinsufficient, and proper extent of a remedy (render or remand).Moral: Original wills need to be protected so that they are available atthe time of probate and are not inadvertently lost, destroyed, or located bydisgruntled heirs.For summaries of other recent Texas cases, please follow this link:http://www.professorbeyer.com/Case_Summaries/Texas_Case_Summaries.htm.Posted with permission of the author:Gerry W. BeyerGovernor Preston E. Smith Regents Professor of LawTexas Tech University School of Law
I executed a medical power of attorney. Can someone override my decisions?
Posted by: David Leon in Estate planning and probate on December 8th, 2007
No. So long as you are competent, you can revoke a power of attorney, medical or otherwise. Also, the medical power of attorney is only in effect if you are unable to make your decisions known.
What is a medical power of attorney?
Posted by: David Leon in Estate planning and probate on December 8th, 2007
A medical power of attorney is a document that allows someone to make medical decisions on your behalf if you are incapable of making them yourself.
Can I still use a power of attorney document after the person who executed it died?
Posted by: David Leon in Estate planning and probate on December 8th, 2007
No. A power of attorney dies with the power grantor. If you need to act on behalf of a deceased person, then you will need to do some sort of action in probate court. The type of probate court action depends on many factors.
I need to get a power of attorney for someone but that person is not competent. What can I do?
Posted by: David Leon in Estate planning and probate on December 8th, 2007
If the person is not competent, and will not be competent in the near future, you cannot obtain a power of attorney. A power of attorney can only be executed by a competent person. If you need to handle the affairs of someone who is incapacitated, then you will need to obtain a guardianship of the person.
Why are people telling me to avoid probate?
Posted by: David Leon in Estate planning and probate on December 8th, 2007
In Texas, probate can be a very simple and inexpensive process, if planned properly. As such, probate avoidance should not be the goal of an estate plan. A more appropriate goal should be tax avoidance or ease of estate administration. This allows an estate planner to use the full suite of estate planning vehicles in planning. In some instances, a person may be worried about their beneficiaries or heirs fighting over estate assets. In other cases, people just don’t trust the court system, or are unfamiliar with the probate process.
What is an estate?
Posted by: David Leon in Estate planning and probate on December 8th, 2007
An estate is simply the property that belongs to a person. In Texas, an estate is not a legal entity, so an estate cannot sue or be sued by someone.
I inherited a parcel of property. How do I put the house in my name?
Posted by: David Leon in Estate planning and probate, Real Estate Law on November 24th, 2007
The first step is to determine who is the titled owner of the property right now. Once you have determined who is listed, the second step is to determine who are the rightful owners of the property. If the person who owned the property dies, then the person’s will controls. If there was no will, then the Texas decedent and distribution laws would apply. Depending on the condition of the estate, there are several mechanisms to transfer ownership of the property and place title in the appropriate party’s name.
