Here’s an article that discusses end of life planning. Specifically, how to ensure that your last wishes are carried out. The article goes into detail about wills, living wills (physician’s directives), power of attorney, medical directive (medical power of attorney) and more.
Category Archives: Estate planning and probate
The executor of a will died. There’s no alternate listed in the will. Who can serve as the executor?
Texas Probate Code Sec. 77 governs the order in which people may serve as either executor or administrator of an estate. The order is as follows:
(a) To the person named as executor in the will of the deceased.
(b) To the surviving spouse.
(c) To the principal beneficiary of the testator.
(d) To any beneficiary of the testator.
(e) To the next of kin of the deceased, the nearest in order of descent first, and so on…
(f) To a creditor of the deceased.
(g) To any person of good character residing in the county who applies.
(h) To any other person not disqualified under the following Section.
When applicants are equally entitled, letters shall be granted to the applicant who, in the judgment of the court, is most likely to administer the estate advantageously, or they may be granted to any two or more of such applicants.
I am a beneficiary of a will. The person who wrote the will died. The person who has the will refuses to probate it. What can I do?
There are several things you can do. The easiest is to ask the person who has the will to either deliver it to you (so you can file it yourself) or to deliver it to the county clerk’s office. If that person fails to do so, you can petition the probate court to force the person who has the will to produce the will in court, under Texas Probate Code Sec. 75. If the person refuses, the probate judge has the power to have that person arrested for contempt. Additionally, if that person has destroyed the will, that action can be a state jail felony.
If the will is in your possession, or it is with the county clerk, but you are not the executor, you can still file it for probate because you are an interested party. See Texas Probate Code Sec. 76.
I have an original will belonging to someone who died. Can I refuse to probate it?
This is a bad idea. If you are in possession of an original will of a deceased person, you have a duty under Texas Probate Code Sec. 75 to deliver the original will to the county clerk’s office. A judge may issue a contempt order if you fail to comply.
If you are purposely hiding the will for a fraudulent purpose, then this may also constitute a felony (state jail) under Texas Penal Code Sec. 32.47 (d)(1)
What happens if I destroy someone else’s original will? What if I just white out the parts that are bad for me?
Texas Penal Code Sec. 32.47(d)(1) makes it a criminal offense (state jail felony) to destroy, remove, conceal, alter, substitute, or otherwise impair a will. Although emotions may be high, it’s not a good idea to trade liberty for property.
My sibling obtained letters of guardianship over my parent. I disagree with this. What happens if I pick my parent up without the guardian’s permission?
This can be a very, very bad idea. If you disagree with the court’s order, your appropriate remedy is to file a motion in probate court. Do not take the law into your own hands. If you interfere with guardianship rights, you can be charged with a felony.
Texas Penal Code Sec. 25.20 states that it is a state jail felony if the person takes, retains, or conceals a ward when the person knows that the person’s taking, retention, or concealment interferes with a possessory right with respect to the ward.
What is a Medicaid countable asset?
Countable assets (for purposes of Medicaid computations) are assets in which the Medicaid subscriber/applicant has (1) ownership, (2) has the legal authority to liquefy the asset, and (3) is not otherwise prohibited from using the asset for his/her own support.
There are also assets that are exempt from Medicaid computations and therefore not countable. Such assets include:
• equity in a home (the maximum amount varies by state), provided that the person maintains an intent to the home
Note that the home’s equity may be entirely exempt if there is a spouse, minor or disabled child living in the homestead.
• a small amount of tools used in a trade or business that earns at least a six percent annual return
• one vehicle
• life insurance that does not have a cash value
• whole life policies (provided that they do not have a combined value of $1,500)
• burial policies (irrevocable)
• $1,500 for a burial fund (if it is set up in a separate bank account.)
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What is the monthly allowable income for Medicaid eligibility in Texas?
As of 2009, the monthly income eligibility for Medicaid in Texas is calculated by multiplying the SSI for an individual (presently $674) times 3. Therefore, the income allowance in Texas is $2022.
My minor child died. The child’s other parent had nothing to do with the child after birth. Can that parent still inherit.
Possibly. Although Sections 41 and 42 of the Texas Probate Code allow for a parent to be disqualified from inheriting, a party must first petition the court to make it so. The disqualification only applies to children who die before their 18th birthdays. The statute provides that a parent may be disqualified if a court is provided with clear and convincing evidence of the following:
1. The parent voluntarily abandoned and refused to support the child in accordance with the law for at least three years prior to the child’s death. The parent also did not resume support prior to the child’s death.
2. The parent voluntarily and with knowledge of the pregnancy, abandoned the mother and did not provide adequate support or medical care for the mother before the birth, and remained apart and refused to support the child since birth.
3. The parent was convicted o or place on community supervision (probation) for being criminal responsible for the death or serious injury to any child, pursuant to the Texas Penal code.
(Please see: “The Basics of Texas Intestate Succession Law” by Gerry W. Beyer for a full discussion of this area.)
My parents were not married when they had me. Can I still inherit from them, if they do not have wills?
Texas Probate Code Sec. 42(a) states that a child born to an unmarried woman may inherit from that woman, if she does not have a will.
Although Texas Probate Code Sec. 42(b) allows a child of an unwed couple to also inherit from the father (assuming he does not have a will), the child must provide proof of paternity. The most common ways of proving paternity are via a court finding (such as a paternity suit), a child born within 300 days of the divorce (between the child’s mother and the deceased father), a court order (such as an adoption) or the father executes an acknowledgement of paternity. If the father is already deceased, the child must provide “clear and convincing” evidence of paternity (such as a DNA test.)
The child has four years from the date of death to establish paternity, per Tex. Civ. Prac & rem. Code Sec. 16.051
I am married. If I don't have a will, doesn't everything go to my spouse anyway?
Not necessarily. Property in Texas is described as either being community property or separate property. A married person dying intestate (i.e. without a will) would have the property divided as follows:
Community property:
The surviving spouse would get his/her 1/2 of the community estate. If the deceased spouse had children that were not also children of the surviving spouse, then the children of the deceased spouse would receive 1/2 of the community estate.
The surviving spouse would receive 1/3 of the non-real estate property, and the children would receive 2/3. Of the real estate, the surviving spouse would receive a 1/3 life estate in the property and the children would receive the 1/3 remainder interest (after the subsequent death of the surviving spouse) and a 2/3 outright interest in the real property.
See: Texas Probate Code Sec. 38
I hear probate is expensive. Do I still need a will?
Probate does not have to be expensive. Probate in Texas can be straightforward, efficient and cost-effective, if planned for properly. This means a valid will, prepared by someone who knows what they are doing. Probate problems arise when people attempt to use homemade wills, do it yourself kit wills or try to make changes to wills without following the appropriate procedures. Also, poorly written wills may tend to be vague or ambiguous, requiring court supervision.
I don't have much property. Do I still need a will?
Wills are always helpful, even if you have a modest estate.
There are a few reasons for this:
1. If you have children, you can appoint a guardian for them, should the need arise.
2. Even if your estate is small now, that doesn’t mean that it will be small at a later date.
3. If the death was related to the wrongful or negligent acts of another, then a will would dictate where your pre-death damages for a resulting lawsuit would go, and who would be responsible for prosecuting a civil lawsuit on your behalf.
4. Even if your plan is probate avoidance, there are likely assets that you may fail to place into a probate avoidance mechanism.
5. If you have a business, you can plan for the smooth transition to a friend or family member.
How long does it take to get letters testamentary in Texas?
Obtaining letters testamentary in Texas is a fairly straightforward process. Assuming a properly drafted will and an open schedule on the court (and with the attorney), letters can be issued within a month or so. If there are issues with the will, the process can take significantly longer.
My spouse is in a nursing home. I still live in our house. Can my spouse still qualify for Medicaid?
What is a Medicaid compliant estate plan?
A Medicaid compliant estate plan includes will, power of attorney and a HIPPA release. The plan would include a number of actions, including gifting, and asset planning such that the Medicaid rules are strictly complied with. Examples include shifting money from Medicaid countable assets to Medicaid compliant accounts, use of a Miller Trust, and Special Needs Trust.
What is a "rider 28"?
Also known as the “Money Follows the Person” rider. This section of law provides that if a person moves from nursing to community based care facilities, the funding for such a person will have such funding follow him/her from the nursing facility to the community care service.
The nickname refers to the number 28 rider in Article II of the General Appropriations Act (78th Legislature, Regular Session, 2003) that stipulates that as clients relocate from nursing facilities to community care services, the nursing facility funds will be transferred to the community care budget to cover the cost of their services. See also: House Bill 1867, 79th Legislature, Regular Session, 2005.
Under Medcaid, what is a "medical necessity"?
Medically Necessary (or Medical Necessities) per the Act are:
• Reasonably necessary to prevent illness or medical conditions, or provide early screening, interventions, and/or treatments for conditions that cause suffering or pain, cause physical deformity or limitations in function, threaten to cause or worsen a handicap, cause illness or infirmity of a recipient, or endanger life;
• Provided at appropriate locations and at the appropriate levels of care for the treatment of clients’ conditions;
• Consistent with health-care practice guidelines and standards that are issued by professionally-recognized health-care organizations or governmental agencies;
• Consistent with the diagnoses of the conditions; and
• No more intrusive or restrictive than necessary to provide a proper balance of safety, effectiveness, and efficiency.
What is an ADL?
In insurance and Medicaid/Medicare lingo, ADL is often used as an acronym for Activities of Daily Living. Activities of Daily Living are considered essential to daily personal duties of self maintenance. These duties including personal hygiene, getting dressed, using the restroom, and eating. Normally, these activities are placed on a checkbox style grid, and an applicable insurance policy will pay on an amount based upon the number of ADLs that a subscriber can or cannot perform on a daily basis.
What is the difference between Medicare and Medicaid?
Both are federal programs that help pay for medical needs.
However, Medicare, which is applied for at the Social Security Office, is for: People 65 and over, people of any age who have kidney failure or long term kidney disease and/or people who are permanently disabled and cannot work. There is no income requirements for Medicare.
Medicaid is for low income individuals including: pregnant women, children under the age of 19, people 65 and over, the blind, disabled and/or who need nursing home care. There are strict financial and income guidelines that have to be adhered to in order to qualify for Medicaid assistance.
I have possession of a will. The person who wrote it is deceased. What do I do with the will?
You have a few options. You can either file the will for probate, or you can deliver the will to the court clerk’s office. The former will initiate probate proceedings and the latter will have you comply with the minimum requirements under Sec. 75 of the Texas Probate Code (listed below.) Failure to deliver an original will to the court (or clerk) can result in a contempt of court charge.
Sec. 75. DUTY AND LIABILITY OF CUSTODIAN OF WILL. Upon receiving notice of the death of a testator, the person having custody of the testator’s will shall deliver it to the clerk of the court which has jurisdiction of the estate. On sworn written complaint that any person has the last will of any testator, or any papers belonging to the estate of a testator or intestate, the county judge shall cause said person to be cited by personal service to appear before him and show cause why he should not deliver such will to the court for probate, or why he should not deliver such papers to the executor or administrator. Upon the return of such citation served, unless delivery is made or good cause shown, if satisfied that such person had such will or papers at the time of filing the complaint, such judge may cause him to be arrested and imprisoned until he shall so deliver them. Any person refusing to deliver such will or papers shall also be liable to any person aggrieved for all damages sustained as a result of such refusal, which damages may be recovered in any court of competent jurisdiction.
Can a bank foreclose if the borrower dies?
Yes, eventually. If the borrower dies before a bank has followed the rules for a non-judicial foreclosure, then the bank either has to notify the personal representative of the estate (if there is one), open a dependent administration (if there is no pending administration), or proceed against the heirs (depending on the type of loan.)
How do I obtain letters testamentary in Texas?
In order to obtain letters testamentary in Texas, one needs to go to the appropriate court. (Many counties in Texas have statutory probate courts.) You will need to have an application prepared, and the original will. You will also need live testimony in court to prove that the will being presented is the last will of the deceased, and that the person is dead. You will also need to prove that less than four years have elapsed since the date of death.
If you would like to discuss an application for letters testamentary, please contact us for a free telephone conference regarding your matter. (214) 696-0021
A person died with a will. Who should go to probate court to probate the will?
The person who should make an application to probate a will is governed by Sec. 76 of the Texas Probate Code. If there is will, then the executor or any person interested in the estate may make an application for probate.
Section 76 of the Texas Probate Code provides the following:
Sec. 76. PERSONS WHO MAY MAKE APPLICATION. An executor named in a will or any interested person may make application to the court of a proper county:
(a) For an order admitting a will to probate, whether the same is written or unwritten, in his possession or not, is lost, is destroyed, or is out of the State.
(b) For the appointment of the executor named in the will.
(c) For the appointment of an administrator, if no executor is designated in the will, or if the person so named is disqualified, or refuses to serve, or is dead, or resigns, or if there is no will. An application for probate may be combined with an application for the appointment of an executor or administrator; and a person interested in either the probate of the will or the appointment of a personal representative may apply for both.
I have possession of a will. The person who wrote it is deceased. What do I do with the will?
If you are the executor named in the will, or a beneficiary listed in the will, you can file the will for probate in an appropriate probate or county court. If you do not wish to file the will, you can turn it over to the county clerk’s office, pursuant to Section 75 of the Texas Probate Code.
The code provides:
Sec. 75. DUTY AND LIABILITY OF CUSTODIAN OF WILL. Upon receiving notice of the death of a testator, the person having custody of the testator’s will shall deliver it to the clerk of the court which has jurisdiction of the estate. On sworn written complaint that any person has the last will of any testator, or any papers belonging to the estate of a testator or intestate, the county judge shall cause said person to be cited by personal service to appear before him and show cause why he should not deliver such will to the court for probate, or why he should not deliver such papers to the executor or administrator. Upon the return of such citation served, unless delivery is made or good cause shown, if satisfied that such person had such will or papers at the time of filing the complaint, such judge may cause him to be arrested and imprisoned until he shall so deliver them. Any person refusing to deliver such will or papers shall also be liable to any person aggrieved for all damages sustained as a result of such refusal, which damages may be recovered in any court of competent jurisdiction.
I am listed in a will of a person that died. The person who has the will won't probate it. What can I do?
Assuming the person who wrote the will is deceased, and the person who has possession of the original will is refusing to deliver it to the court You can file an action in probate court to “show cause” under Sec. 75 of the Texas Probate Code. Under this section, a person who has possession of a will has to appear in court and explain why the will has not been delivered to the court as of yet. If the person refuses, the court can hold the person in possession of the will in contempt of court.
Sec. 75 provides:
Sec. 75. DUTY AND LIABILITY OF CUSTODIAN OF WILL. Upon receiving notice of the death of a testator, the person having custody of the testator’s will shall deliver it to the clerk of the court which has jurisdiction of the estate. On sworn written complaint that any person has the last will of any testator, or any papers belonging to the estate of a testator or intestate, the county judge shall cause said person to be cited by personal service to appear before him and show cause why he should not deliver such will to the court for probate, or why he should not deliver such papers to the executor or administrator. Upon the return of such citation served, unless delivery is made or good cause shown, if satisfied that such person had such will or papers at the time of filing the complaint, such judge may cause him to be arrested and imprisoned until he shall so deliver them. Any person refusing to deliver such will or papers shall also be liable to any person aggrieved for all damages sustained as a result of such refusal, which damages may be recovered in any court of competent jurisdiction.
Are life insurance proceeds subject to the debts of the deceased person?
In most cases, no, life insurance proceeds are not subject to estate debts. The most common exception is when the “estate” is a listed beneficiary (which is improper under Texas law, but that’s a discussion for another day.) In most cases, life insurance is a contract between the insured and the life insurance company, to pay benefits to a beneficiary. The deceased person’s estate (to which most debts attach) is not involved in the process. The notable exceptions are life insurance policies specifically geared towards credits. A common example is a credit life policy. In this policy, an insured purchases a policy to cover a specific debt, such as a mortgage. This way, should the insured die, the mortgage is paid off in full.
Can a common law spouse be a beneficiary of a life insurance policy?
Yes. A life insurance applicant may appoint anyone (or any entity) as a beneficiary on a life insurance policy, even a common law spouse. Also, if a common law marriage was in existence, then a common law spouse may have community property interests in a life insurance policy (purchased after the marriage) if the spouse is not listed as a beneficiary.
Is it possible to prove a common law marriage after death?
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.
What is the law in Texas regarding a common law spouse and life insurance?
A common law marriage in Texas, if proven, carries the same validity as a ceremonial marriage. Accordingly, if there is a proven common law marriage, then the Texas rules regarding life insurance beneficiaries would apply.
How does one qualify to be an administrator or executor of an estate?
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?
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.
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)
Who can bring a lawsuit for wrongful death?
Wrongful death causes of action are controlled by Chapter 71 of the Texas Civil Practice and Remedies Code (CPRC).
Per Sec. 71.004, the surviving spouse, children, and parents of the deceased are the only ones who can bring an action for wrongful death.
If none of the individuals entitled to bring an action have begun the action within three calendar months after the death, then the personal representative of the estate shall bring and prosecute the action unless requested not to by all those individuals.
In most cases, it is advisable to have the wrongful death beneficiaries and the beneficiaries of the estate sign a family settlement agreement prior to taking any action.
What is separate property?
Community property versus separate property deals with marriages. Texas Constitution Art. 16, Sec. 15 gives a lengthy explanation. The definitions are further spelled out in Texas Family Code Sec. 3.001.
All property, both real and personal, of a spouse owned or claimed before marriage is separate property. Further, property acquired afterward by gift, devise or descent, shall be the separate property of that spouse. Additionally, damages for personal injuries are considered separate property (with the exception of loss of earning capacity.)
For example, Bobby and Allison are about to marry. Before marriage, Bobby buys a boat. After marriage, Bobby’s uncle gives Bobby a car. Bobby’s aunt then dies, leaving Bobby a house. Because the boat was purchased prior to the marriage, it’s separate property. Because the gift of the car was a gift to Bobby, it’s separate as well. Finally, because Bobby received the house by inheritance, it’s also Bobby’s separate property. If Bobby gets into a car wreck and receives a check for settlement of his personal injury, that would be (in most instances) his separate property as well.
What is a remainderman?
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 fiduciary duty?
A fiduciary duty is the highest standard of care one can owe to another. The fiduciary relationship is one of trust and confidence. The person or institution who owes the fiduciary duty must put the person’s interests above his or her own interests. Common examples of fiduciary duty include power of attorney holders, executors in wills, and trustees of trusts.
Where can I find a list of exempt personal property?
Section 42.002 of the Texas Property Code has a list of exempt personal property. Please note that this list is subject to conditions. The property’s status as exempt does not preclude attachment if the property is secured by a lien. For example, a person purchasing a car on credit can still have the car repossessed by the credit grantor. Sec. 42.0021 also provides protections for individual retirement accounts (IRA) and certain savings accounts.
Section 42.002 provides the following list of personal exempt property:
The following personal property is exempt under Section 42.001(a):
(1) home furnishings, including family heirlooms;
(2) provisions for consumption;
(3) farming or ranching vehicles and implements;
(4) tools, equipment, books, and apparatus, including boats and motor vehicles used in a trade or profession;
(5) wearing apparel;
(6) jewelry not to exceed 25 percent of the aggregate limitations prescribed by Section 42.001(a);
(7) two firearms;
(8) athletic and sporting equipment, including bicycles;
(9) a two-wheeled, three-wheeled, or four-wheeled motor vehicle for each member of a family or single adult who holds a driver’s license or who does not hold a driver’s license but who relies on another person to operate the vehicle for the benefit of the nonlicensed person;
(10) the following animals and forage on hand for their consumption:
(A) two horses, mules, or donkeys and a saddle, blanket, and bridle for each;
(B) 12 head of cattle;
(C) 60 head of other types of livestock; and
(D) 120 fowl; and
(11) household pets.
(b) Personal property, unless precluded from being encumbered by other law, may be encumbered by a security interest under Subchapter B, Chapter 9, Business & Commerce Code, or Subchapter F, Chapter 501, Transportation Code, or by a lien fixed by other law, and the security interest or lien may not be avoided on the ground that the property is exempt under this chapter.
What is exempt personal property?
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?
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.)
What is business succession planning?
In some cases, a family business is the most important asset in a family’s financial well being. Business succession planning is a type of estate plan for people with family owned businesses. The specific planning includes who takes care and runs the family business after the passing of the principal owner or operator. The business succession planning typically includes life insurance planning, estate planning and contract law. The cost and complexity of a business succession plan vary with the type of business, and the objective of the plan. Contact Us for more information.
How long does a person have to be missing before they are presumed dead?
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 is a determination of heirship? Where can I get a determination of heirship done?
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.
What is business insurance planning?
Business insurance planning includes insurance against the loss of a key person who is vital to the survival of a business. This type of policy can be used to inject cash into a business in order to survive while you replace the lost person. It can also cover buy/sell agreements, allowing the surviving member of the business to buy out the deceased member’s interest. Other types of insurance planning include wholly owned or captive insurance companies, umbrella insurance policy planning and commercial liability. Contact Us for more information.
How do I revoke a will in Texas?
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?
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?
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.
How do I know if the life insurance policy is community property or separate property?
If the initial premium was paid out of community funds, the life insurance policy may be a community asset. This means that one half of the policy “belongs” to the surviving spouse. If a third person is named beneficiary of a community owned life insurance policy, and the surviving spouse did not sign a waiver, then the surviving spouse may challenge the beneficiary designation. If naming the other person is found to be a fraud on the surviving spouse, the spouse may be awarded a share of the death benefits and the named beneficiary will be entitled to receive the remainder. If you have an insurance issue that you would like to discuss, please contact us.
What are the different types of powers of attorney?
There are a few different types of powers of attorney. Here are the more common ones:
1. General power of attorney: This document allows the power holder to sign the power grantor’s name on legal documents. The powers are broad and sweeping. The power holder owes a fiduciary duty to the power grantor. The power continues until the power ends on its own terms, or is revoked, the grantor dies or becomes incompetent.
2. Durable power of attorney: A power of attorney typically ends with the death or incompetence of the grantor. If the power is made “durable” then the power does not cease on the incapacity of the grantor. The power will end by either the death of the grantor, or the removal of the power holder by a court.
3. Springing power of attorney: This power of attorney comes into effect upon a future condition. Typically, this is the incapacity of the grantor. The power remains in effect until either the death of the grantor, removal by a court or capacity being restored to the power grantor.
4. Limited power of attorney: This power of attorney is limited to a specific transaction. Typically, this arises in a real estate context, where someone gives permission to sign closing documents on behalf of another.
5. Medical power of attorney: This is an entirely different type of document which allows a person to make medical decisions on behalf of another. These decisions cannot override the power grantor’s expressed wishes. The power only comes into effect if the power grantor is unable to make his wishes know. This document also does not allow one to make end of life decisions. If you have this document, you should discuss it with your primary care physicians ahead of any important procedure.
6. Guardianship declaration: This is document that appoints someone to care for your person if you are unable to care for yourself, or after a finding of incompetency.
7. Living will, physician’s directive, DNR: This is a companion document to the medical power of attorney. This document tells a health care provider whether or not you want to be kept alive in either an irreversible unconscious mental state, or use heroic measures to keep you alive if you are suffering from a terminal condition.
I think someone is abusing a power of attorney. How would I override the power of attorney?
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?
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.
What is a revocable living trust?
A revocable living trust is a mechanism in which a person can title assets to a trust, but can still terminate the trust and take back the assets during his or her lifetime. Most trusts provide that the trust will become irrevocable once the testator (the person who sets up the trust) becomes incapacitated or dies. These revocable living trusts are typically used in complex estates, older people or unmarried couples. Contact us for more information about setting up a revocable living trust.
How do you dispose of a deceased person's property if there was no will?
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?
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
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. The letters are typically issued pursuant to the person’s last will.
Letters Testamentary are essentially a court order. In order to get letters testamentary, a person who has an interest in a deceased person’s estate must make an application to a probate court. Letters testamentary are available to estates only if the application is made within four years of the date of death of the person who wrote the will.
The most common applicant for letters testamentary is going to be the executor named in the will. A beneficiary, alternate executor or creditor may also make an application for letters. In Dallas County, a lawyer must make the application to the court.
If you need to make an application for letters testamentary, or you would just like to discuss a probate situation, please contact us. We offer free initial telephone consultations. (214) 696-0021
I need to pursue a claim on behalf of a deceased family member. I’ve been told I need to go through probate. What is that?
Probate is the process by which you prove that a person is deceased and who should be entitled to the deceased person’s property (including ownership of a lawsuit for injuries sustained prior to death.) The deceased is commonly referred to as the “Decedent” and the property of the Decedent is called the “Estate.” If the Decedent had a will, then the will needs to be taken to probate court where a judge will rule on the will’s validity (called a “prove up”). During this process, the judge will appoint (typically per the terms of the will) a representative of the Decedent’s estate. This person is called an “executor” of the estate. Contact us for more information.
I was a common law spouse when my spouse purchased a life insurance policy. I wasn’t listed as a beneficiary. Is there anything I can do?
Possibly. If you meet the statutory requirements for being a common law marriage at the time the policy was purchased, and community funds were used to purchase the policy, then the policy may be considered community property. The surviving spouse would be considered a one-half owner. These tend to be fact specific matters. Please contact us if you would like to discuss this further.
Are insurance policies generally characterized as separate or community in Texas?
Texas follows “inception of title” when classifying life insurance proceeds. This means that ownership of the policy is established by the source of funds for the first premium. If that premium was paid prior to the marriage or with separate property, then the policy may be considered separate property. This is a highly technical area of law, and matters are case-specific. Please contact us if you would like to discuss a matter further.
My husband / wife died and designated someone else as the beneficiary of the life insurance policy? What can I do?
In Texas, a life insurance policy that is purchased after a person is married, and community funds were used to pay for it, then the surviving spouse may have an ownership interest in the policy. However, a spouse way waive rights to the policy by signing a waiver. If your spouse had designated another as the beneficiary of a life insurance policy without your consent, or if you have questions, please contact us at 214-696-0021
What are wrongful death and survivor suits?
If someone dies due to the act or omission of another, then there may be a cause of action by the heirs of the deceased for Wrongful Death. If the deceased suffered personal injury prior to death, then the deceased’s estate may have a cause of action called a survival claim. We can assist with either the prosecution of these matters. Some of the services include ancillary probate, appointment of personal representatives, appointment of an independent administrator of an estate, determination of heirs and determination of common law marriage. This also includes obtaining letters testamentary or letters of administration of an estate. Contact us if you have a situation that you would like to discuss in detail.
What is fiduciary litigation?
A fiduciary is someone who owes the highest duty of care to another person. In this type of litigation a fiduciary may be the person in charge of a retirment plan, a person who has been appointed power of attorney, guardian, administrator or executor of a ward or an estate. If this person puts his or her interest above those to whom s/he owes the fiduciary duty, then such conduct is actionable. For example, suppose John holds a power of attorney document to conduct the affairs of Steve. John uses the power of attorney for his own benefit. Steve has a cause of action against John for breach of fiduciary duty.
Please contact us if you have a situation that you would like to discuss further.
Does Texas law recognize a "common law" or informal marriage?
Yes. Texas law recognizes informal marriages. This issue most often after the death of one spouse, where the surviving spouse is attempting to prosecute a claim or where a surviving spouse is seeking a death related benefit from the deceased spouse.
The elements of a common law marriage are that a couple (1) agreed to be married, (2) lived together as husband and wife, (3) represented to others that they were husband and wife, (4) were more than 18 years old and (5) neither party was already married.
If a person is attempting to prove the existence of an informal marriage, then that person should do so within two years of the date the marriage ended (by either abandonment or death), as the burden of proof will shift.
I would like to change my name.
Texas law allows adults to change their names, pursuant to a court order. The applicant must be an adult and not subject to registration requirements of the Texas Penal Code. If the person has a criminal record greater than a class C misdemeanor, then the change is up to the discretion of the court. The name change does not change any obligations of the person, and must not be made for the purpose of defrauding creditors. Our office has handled numerous name changes for adults.
Our homestead is my separate property. May I sell or take a loan against it without my spouse's permission?
Generally, no. Whether the homestead is the separate property of either spouse or community property, neither spouse may sell, convey, or encumber the homestead without the joinder of the other spouse, unless there is a special circumstance.
(Texas Family Code Sec. 5.001)
Will destroyed by a disgruntled heir
Possibly. Texas law will assume that if an original will cannot be located, then the testator (the person who wrote the will) has destroyed or revoked it. However, a court may hear evidence that the will was destroyed or hidden by an heir. If the court finds that an heir destroyed the will, and you can prove what the original will contained, the court may (in its discretion) allow you to probate a copy of the will.
What is a muniment of title?
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
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
Case law updates from Professor Beyer
Professor Beyer, well known probate law professor and frequent contributor to the Texas Probate Lawyers listserv, has graciously allowed this site to publish his case law updates, which are available at his website: http://www.ProfessorBeyer.com
A heartfelt thanks goes to Professor Beyer for allow us to repost his updates here on our blog.
What is a living will?
A living will is a document that notifies your health care provider of your wishes regarding comfort care, and the provision of life support if you are ever in a persistent vegetative state. You can select whether to be kept alive or not, and whether or not to receive comfort care. This document is also called an Advanced Directive.
Can someone use a medical power of attorney to discontinue life support?
No. A medical power of attorney is only used to make medical treatment decisions. To make decisions regarding discontinuation of life support, you would need to execute a living will.
I executed a medical power of attorney. Can someone override my decisions?
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?
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?
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?
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. For more information about guardianship or a power of attorney, please contact us.
Can I get a power of attorney for an incompetent or incapacitated person?
No. You need to be competent in order to execute a power of attorney. If a person has degenerative disease, but has periods of competency, it may be possible to have that person execute a durable power of attorney during a period of lucidity. The durable power of attorney will continue to operate after the person is incapacitated. For more information about a power of attorney, please Contact Us.
What is a durable power of attorney?
A durable power of attorney is a document that allows someone to act on behalf of you. The power can take place immediately and continue to work if you are later declared incompetent, or it can spring into action if you are later declared to be incompetent. The “durable” portion means that if you are ever declared incompetent (incapable of managing your own affairs) then the person may act on your behalf. The person to whom the power is granted owes a fiduciary duty to the power grantor. For more information about a power of attorney, please contact us.
What is a power of attorney?
A power of attorney is a document that allows a person to act on behalf of another person. This power can be limited, which means that the person only has permission to do specific tasks (such as sign a document) or general (giving broad powers). The person holding the power of attorney owes a fiduciary duty to the power grantor. There are many types of powers of attorney. A power of attorney will not survive the death of the power grantor. Contact us for more information about a power of attorney.
Why are people telling me to avoid probate?
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 probate?
Probate is a process by which an estate is handled. Remember, an estate is just the property of a person. Â In many cases, probate consists of going to court, proving that a person is deceased and asking a court to appoint a personal representative of the estate to process the estate (collect estate assets, pay estate debts, and distribute property to heirs.) Probate avoidance is a technique to reduce the amount of work a personal representative of an estate will have to do. Contact us for more information.
I inherited a parcel of property. How do I put the house in my name?
The first step is to determine who is the titled owner of the property right now, according to the real property records. 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. Before meeting with a lawyer, you should collect the names of the deceased, the family members, the will (if any) and the death certificates. There are several mechanism to accomplish this, such as an heirship affidavit, small estate affidavit, and letters testamentary. We have extensive experience in title issues such as this. Please Contact Us to discuss your title issue.
