The Woodlands Probate Lawyer

How is Community Property Distributed for an Intestate Estate?

admin — Fri, 10 Dec 2010 21:13:25 +0000

The Executor or Administrator of a Woodlands Probate Estate is responsible for distributing the assets of the estate. If the deceased person was married, this distribution will likely involve distribution of the deceased’s separate property as well as distribution of community property. If the estate is intestate, the Texas Code distributes community property as follows:

(a) On the intestate death of one of the spouses, the community property estate of the deceased spouse passes to the surviving spouse if:

(1) no child or other descendant of the deceased spouse survives the deceased spouse; or

(2) all surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.

(b) On the intestate death of one of the spouses to a marriage, if a child or other descendant of the deceased spouse survives the deceased spouse and the child or descendant is not a child or descendant of the surviving spouse, one-half of the community estate is retained by the surviving spouse and the other one-half passes to the children or descendants of the deceased spouse. The descendants shall inherit only such portion of said property to which they would be entitled under Section 43 of this code. In every case, the community estate passes charged with the debts against it.

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TheWoodlandsProbate.com is here to help you solve your probate matter in The Woodlands, TX or other communities in Montgomery County. If you need assistance, call Attorney Richard Shea at (832) 426-3913.

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Get Answers from an Independent Executor with an Accounting

admin — Fri, 21 May 2010 23:37:22 +0000

Estates can take a long time to administer properly. It is not uncommon for a year or more to pass, sometimes due to complex issues and other times just due to neglect by the Independent Executor. Beneficiaries are often left in the dark during this period wondering: what is going on with the estate? What is taking so long? Is the Executor doing anything wrong?

There is help available. Your Woodlands Probate Attorney can help the beneficiaries of an estate pursue an administration accounting from the Independent Executor to answer some of these questions. Call (832) 426-3913 to get started today.

When Can Your Woodlands Probate Attorney Obtain an Accounting?

After the expiration of 15 months from the date that the order appointing an independent executor was entered by the court.

What Must Be Included in the Accounting?

The independent executor shall provide an exhibit in writing, sworn and subscribed by the independent executor, setting forth in detail:

1. The property belonging to the estate which has come into his hands as executor.

2. The disposition that has been made of such property.

3. The debts that have been paid.

4. The debts and expenses, if any, still owing by the estate.

5. The property of the estate, if any, still remaining in his hands.

6. Such other facts as may be necessary to a full and definite understanding of the exact condition of the estate.

7. Such facts, if any, that show why the administration should not be closed and the estate distributed.

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Court Refuses to Admit Will as Muniment of Title

admin — Wed, 12 May 2010 22:21:53 +0000

Muniment of Title is a popular alternative to the traditional full probate procedure for administering an estate in The Woodlands. However, in order for your Woodlands Probate Lawyer to take advantage of the Muniment of Title procedure the estate must meet certain requirements. One requirement is that the application for Muniment of Title is filed within 4 years of the date of death. If you wait until after four years you open a can of worms and risk the court refusing to admit the Will to probate. If the court does not admit the Will to probate, the estate is intestate. This can be a big deal in cases where the distribution plan in the Will does not follow the intestate distribution plan. Let’s take a look at what the Court of Appeals had to say about Jerry Rothrock.

Background

In 1986, Everett H. Rothrock, Jerry’s father, signed a will appointing Jerry as the independent executor of the will and naming him as the sole beneficiary of the estate. Everett died on June 5, 1994. In September 2008, Jerry was notified by an oil and gas landman that Everett owned mineral interests in Cherokee County, Texas. On October 6, 2008, Jerry filed an application to probate Everett’s will as a muniment of title.

At a hearing on the application, Jerry testified that he and his five siblings agreed they did not want to probate Everett’s will. He stated that he requested two cameras, which were the only property he wanted from Everett’s estate. None of his siblings objected. Jerry testified that, in gathering Everett’s assets between 1985 and 1986, he investigated whether Everett owned any land. According to Jerry, Everett told him that he had sold all of the real property he had received from his parents and that he did not have any real property left. Jerry stated that Everett never talked about any mineral interests. Jerry’s grandmother told him that she had given all her real property to her sons, Everett and his brother, and that “she was convinced” her sons had lost all their real property. After Everett died, Everett’s brother told Jerry that he and Everett had received a substantial amount of real property from their parents and that both of them had sold it or “gotten rid of it in some way.”

Jerry also testified that he “was a very successful lawyer in Washington, D.C.” and that about half of his practice dealt with oil and gas law. On cross examination, Jerry admitted that, at the time of his father’s death, he knew there could be separate ownership of the surface and mineral estates in Texas. At the conclusion of the hearing, the trial court denied Jerry’s application to probate Everett’s will as a muniment of title, stating that by filing the application thirteen years after Everett’s death, he was in default under section 73 of the Texas Probate Code. Jerry filed this appeal.

Default under Section 73 of the Texas Probate Code

In his sole issue on appeal, Jerry argues that the trial court erred in determining that he was in default under section 73 of the Texas Probate Code by not filing his application to probate Everett’s will as a muniment of title within four years of Everett’s death.

Applicable Law

Section 73(a) of the Texas Probate Code states as follows:

(a) No will shall be admitted to probate after the lapse of four years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years aforesaid; and in no case shall letters testamentary be issued where a will is admitted to probate after the lapse of four years from the death of the testator.

One purpose of the statute is to impose a reasonable limit on the time in which the property of a person dying testate should be distributed among his legatees, after payment of his debts. The statute also gives all persons interested in the testator’s estate an early opportunity to contest the will by living witnesses. Further, the policy of the law is to enforce the timely probate of wills. A person having custody of a will is charged with knowledge that it must be filed for probate within the statutory period in order to rely on it, whether the necessity for doing so is apparent to him or not. Unexpected events often happen and a person’s present conclusions may be wrong. By complying with the requirements of the statute, a person is afforded a way, and the only way, to foreclose all contingencies; choosing not to resort to it amounts to willful neglect.

It cannot be said that one who has custody of a will, and refrains for the statutory period from presenting it for probate for mere personal considerations or under the assumption that his title to property is safe without it, is not in default under this statute. Default means “a failure due to the absence of reasonable diligence on the part of the party offering the instrument.” The burden is upon the proponent of a will to show that he was not in default by not presenting a will for probate within the proper time. Family agreements to not to probate a will about which they had knowledge are not sufficient to excuse noncompliance with the four year limitation of the probate code.

Analysis

Section 73 of the Texas Probate Code allows the probate of a will as a muniment of title after four years if it is shown that the proponent of the will was not in default in failing to present it for probate within four years. Because Jerry filed the application to probate Everett’s will, he had the burden of showing an excuse to justify his failure to timely probate the will. Jerry argues that he showed reasonable diligence. Further, he contends that he was not in default based upon a mistake of fact that Everett did not own any mineral interests.

The evidence shows that Jerry and his siblings agreed not to probate Everett’s will. Jerry requested, and received, two cameras, the only property he wanted from Everett’s estate. A family agreement is not sufficient to excuse Jerry’s noncompliance with the four year limitation. In other words, Jerry cannot rely on the agreement with his five siblings as an excuse for noncompliance with the statutory period and for making what was, in hindsight, the wrong decision. Jerry testified that Everett stated he did not own any real property, that his grandmother was “convinced” Everett lost all his real property, and that Everett’s brother stated that both of them had sold or “gotten rid of” all their real property. Although these statements may have persuaded Jerry that there was no reason to probate Everett’s will, it does not provide a legal excuse for his failure to do so. Therefore, considering all the evidence regarding Jerry’s informal investigation into whether Everett owned property, we cannot say that the trial court’s refusal to find that Jerry showed reasonable diligence was contrary to the great weight and preponderance of the evidence.

Moreover, having been a successful attorney with an oil and gas practice, Jerry should have known that unexpected events often happen in life. To foreclose any unexpected contingencies, a will must be probated within the statutory period whether the necessity for doing so is apparent or not. Because Jerry did not probate Everett’s will within four years after his death, relied upon a family agreement, and failed to show reasonable diligence, the evidence is factually sufficient to support the trial court’s finding that Jerry was in default. The trial court did not err in denying Jerry’s application to probate Everett’s will as a muniment of title.

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Determining Claims Against the Estate

admin — Sun, 11 Apr 2010 19:17:47 +0000

During the administration of an estate in the Montgomery County Probate Court the claims against the estate must be formally classified based on the rules in the Texas Probate Code. Your Woodlands Probate Attorney will help guide you through the process to fulfill your obligations to the Probate Court. The Classification of Claims requirement is a step Executors in a Dependent Administration must complete as well as Independent Executors.

Claims against a Woodlands Probate estate are classified and have priority of payment, as follows:

Class 1. Funeral expenses and expenses of last sickness for a reasonable amount to be approved by the court, not to exceed a total of Fifteen Thousand Dollars, with any excess to be classified and paid as other unsecured claims.

Class 2. Expenses of administration and expenses incurred in the preservation, safekeeping, and management of the estate, including fees and expenses awarded under portions of the Probate Code, and unpaid expenses of administration awarded in a guardianship of the decedent.

Class 3. Secured claims for money under Section 306(a)(1), including tax liens, so far as the same can be paid out of the proceeds of the property subject to such mortgage or other lien, and when more than one mortgage, lien, or security interest shall exist upon the same property, they shall be paid in order of their priority.

Class 4. Claims for the principal amount of and accrued interest on delinquent child support and child support arrearages that have been confirmed and reduced to money judgment, as determined under Subchapter F, Chapter 157, Family Code, and claims for unpaid child support obligations under Section 154.015, Family Code.

Class 5. Claims for taxes, penalties, and interest due under Title 2, Tax Code; Chapter 8, Title 132, Revised Statutes; Section 81.111, Natural Resources Code; the Municipal Sales and Use Tax Act (Chapter 321, Tax Code); Section 451.404, Transportation Code; or Subchapter I, Chapter 452, Transportation Code.

Class 6. Claims for the cost of confinement established by the institutional division of the Texas Department of Criminal Justice.

Class 7. Claims for repayment of medical assistance payments made by the state to or for the benefit of the decedent.

Class 8. All other claims.

Formally classifying claims against the estate is a vital legal obligation for the Executor of an estate. Speak with a Woodlands Probate Attorney today if you need assistance with a probate matter in The Woodlands or anywhere in Montgomery County.

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How to Receive Letters Testamentary

admin — Fri, 19 Feb 2010 14:14:34 +0000

One of the first obstacles most families run into when administering the estate of a deceased loved one is a bank or other institution that requires “Letters Testamentary” in order to get control of and administer probate property. It may seem like an annoyance, but this documentation is used to prevent the wrong person from basically stealing property that does not belong to them.

How do you get “Letters Testamentary” to prove you are the person in charge of the Estate?

Section 178 of the Probate Code controls when the Montgomery County Probate Court in Conroe can issue Letters Testamentary. The law allows the Montgomery County Probate Court to issue Letters Testamentary to the Executor of the Estate within 20 days after the Last Will and Testament has been probated. If the Last Will and Testament is not probated, then you can not obtain Letters Testamentary. Your Woodlands Probate Attorney can help your family get the required documentation to get control of and administer the property in the probate estate.

If the deceased left no Will and is intestate, there are provisions for the Montgomery County Probate Court to issue Letters of Administration. Letters of Administration will be discussed in a separate article.

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How to Disqualify an Executor or Administrator

admin — Tue, 26 Jan 2010 21:21:12 +0000

Previously we reviewed the list of people that can serve as the Executor or Administrator of a Woodlands Probate Estate. In addition to being on that list, you have to be qualified to serve as the person in charge. There are several conditions that can make a person who may seem to be the Executor or Administrator of an estate disqualified from being appointed by the Montgomery County Probate Court. If any of the following conditions apply to the proposed Executor or Administrator then that person may be disqualified:

An incapacitated person;
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;
A non-resident (natural person or corporation) of Texas 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 Montgomery County Probate Court;
A corporation not authorized to act as a fiduciary in Texas; or
A person whom the Montgomery County Probate Court finds unsuitable.

Your Woodlands Probate Attorney can help you become Executor and administer the Estate of your loved one. Contact The Shea Law Firm at (832) 426-3913 to get started.

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Who is the Executor or Administrator?

admin — Mon, 25 Jan 2010 13:30:32 +0000

Property needs to be administered and distributed after a person passes away in The Woodlands. Many families keep this process private with a Woodlands Living Trust; however, if your family member did not take the proper steps to avoid the Montgomery County Probate Court watching over the administration of his or her estate then your Woodlands Probate Attorney must follow the court’s rules to administer the estate.

The person in charge of the estate receives all their legal authority from a document issued by the Montgomery County Probate Court. This document is called “Letters Testamentary” for an Executor appointed in a Will and “Letters of Administration” when the estate is intestate. Without the Letters Testamentary document the Executor named in a Will has no legal authority.

Who will the probate court issue the necessary documents to? The Court will issue letters testamentary or of administration to persons who are qualified to act, in the following order:

To the person named as executor in the will of the deceased.
To the surviving husband or wife.
To the principal devisee or legatee of the testator.
To any devisee or legatee of the testator.
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.
To a creditor of the deceased.
To any person of good character residing in the county who applies therefor.
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.

That little word in the beginning “qualified” can be a big deal and has led to many probate disputes over the years. We will review how courts have interpreted the “qualified” requirement at a later time.

Your Woodlands Probate Attorney can review your options to request appointment as Executor or Administrator of an Estate in The Woodlands if you fit in to any of the categories described above.

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Cremation and Burial Decisions

admin — Sun, 24 Jan 2010 14:54:05 +0000

Probate in The Woodlands is a process designed to resolve unanswered questions and issues. Usually these questions are in the form of how property is to be distributed or who is in charge of an estate, but sometimes problems can occur before long before property issues arise.

Who has the right to make decisions concerning cremation and burial decisions after a person passes away?

This is one of the items that is normally addressed by a Woodlands Living Trust Lawyer when a person creates an estate plan. Unfortunately, sometimes a person passes away before they complete a Will or Living Trust and they have left no legally valid instructions on who has the authority to determine burial and cremation issues. When this is the case your Woodlands Probate Lawyer can help.

If your family member failed to provide otherwise in their Will or Living Trust, the Texas legislature has determined a list of individuals that have this authority. The following persons, in the order listed, have the right to make burial arrangements including cremation and interment:

The person designated in a writing signed by the decedent;
The decedent’s surviving spouse;
Any of the decedent’s adult children;
Either of the decedent’s parents;
Any of the decedent’s adult siblings; otherwise
The person of closest kinship to the decedent (according to the intestacy statutes).

Who Should Make This Decision?

Burial and final arrangements are generally a very personal decision and each person should choose what is best for them. If your family member did not provide for burial arrangements or cremation in their Will or Living Trust then your The Woodlands Probate Attorney can help.

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