Posts Tagged wills
How do I obtain letters testamentary in Texas?
Posted by David Leon in Estate planning and probate on 13/06/2010
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
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A person died with a will. Who should go to probate court to probate the will?
Posted by David Leon in Estate planning and probate on 21/04/2010
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.
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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?
Posted by David Leon in Estate planning and probate on 21/04/2010
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.
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How does one qualify to be an administrator or executor of an estate?
Posted by David Leon in Estate planning and probate on 09/08/2009
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.
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How is it decided who will administer an estate?
Posted by David Leon in Estate planning and probate on 09/08/2009
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.
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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 09/08/2009
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)
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What is a fiduciary duty?
Posted by David Leon in Business law, Estate planning and probate, Insurance Law, Litigation and judgments on 28/06/2009
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.
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How do I revoke a will in Texas?
Posted by David Leon in Estate planning and probate on 06/03/2009
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.
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Do wills have to be filed in order to be valid in Texas?
Posted by David Leon in Estate planning and probate on 06/03/2009
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.
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What is ancillary probate?
Posted by David Leon in Estate planning and probate on 06/03/2009
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.
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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 20/02/2009
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.
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What is a muniment of title?
Posted by David Leon in Estate planning and probate on 20/02/2009
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.
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What are “letters testamentary”?
Posted by David Leon in Estate planning and probate on 15/02/2009
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. 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
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The original will was destroyed by a disgruntled heir. Can I probate a copy of the will?
Posted by David Leon in Estate planning and probate on 01/02/2009
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.
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What is a muniment of title?
Posted by David Leon in Estate planning and probate on 21/12/2008
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.
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I executed a medical power of attorney. Can someone override my decisions?
Posted by David Leon in Estate planning and probate on 08/12/2007
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.
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Why are people telling me to avoid probate?
Posted by David Leon in Estate planning and probate on 08/12/2007
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.
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