Blog Topic

Does a Surviving Spouse Always Need to File for Probate?
Posted by: Brittany Clark
February 24, 2010

I often receive calls from surviving spouses wanting to know whether they need to file probate. Most of them are surprised to find that there is not a quick and easy answer to that question. There are many factors that must be considered. This is true whether or not the deceased spouse had a valid will.

If a will is valid and was written and signed properly, the probate case can go quite smoothly. The attorney will draft and file the probate case, appear with you at the hearing, and guide you in the post-hearing procedure of transferring and distributing assets and filing documents in the county property records, if necessary.

Therefore, "filing for Probate" does not always mean high legal fees and a long, drawn-out procedure. And there may even be situations where the traditional "probate action" isn't the best course to take.

Even if the decedent died without a will, there are ways to sort out the debts and assets.

The most common "complicated" situation that is seen is the one in which the decedent died without a will, was married at the time of death but had children from a previous marriage or relationship. The surviving spouse must then deal with his/her stepchildren (who s/he may not know or get along with). A probate attorney can assist by explaining the probate laws and helping negotiate a family settlement or agreement, which will preserve the assets of the estate for the beneficiaries, rather than using them for legal fees.

If your spouse owned anything that had a title (real estate, vehicles, equipment, boats) you should determine what legal action should be taken to transfer the title of the property to yourself or the inheriting heir.

In some cases, there may be unknown heirs, or heirs who cannot be found. The Texas Probate Code provides specific procedures for dealing with those situations.

In any event, you should determine what needs to be done with your spouse's estate and take the necessary action within 4 years of the date of death. A probate attorney can guide you through all of the steps that are necessary in your situation.

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Planning for the Future with your Special Needs Child in Mind
Posted by: Bob Kalish
January 28, 2010

If you are the parent or guardian of a special needs child, you have no doubt experienced times of concern about what will happen in the future. You may worry about how to best help your child succeed as he/she grows to adulthood, and you may worry about what will happen if you were no longer around to take care of your child.

"Planning for the present" means that you should at the very least have a valid, up-to-date will from the moment that your child is born or adopted into your family! "Planning for the future" means two things: a) planning financially for your child's adulthood with you in it and B) planning for your adult child's situation after you are gone.

The terms "Special Needs" and "Disabled" cover a wide variety of issues and a wide variety of individuals.  A well-thought out plan will take the entire situation into consideration and will be tailored specifically for you and your family.

It is crucial that you have a well-thought-out plan in effect. In order to do that, you must realistically ask yourself the following questions:

1.  Is it likely that my child will be able to live independently as an adult? If not, will I need to consider a guardianship once my child becomes an adult? If s/he will be able to live independently, what will be his/her vulnerabilities and do I have a plan in place to address them?

2.  What will be my child's medical needs for the future? How will we be able to afford the care, supplies, medication, counseling, training, and assistance that s/he needs? What about after I am gone?

3.  What governmental or private sector assistance is available to meet my child's needs? Are there income requirements? Will it be likely that these programs will be around indefinitely or are they already at risk for being discontinued? What other options are there?

4.  Who will take care of him or advise him after I am gone? Who will take care of his/her finances? Is it wise to "just trust" my other children to do the right thing? What if they are unable? Do I have the proper legal documents in effect and are my wishes written specifically enough? Does the Guardian/Trustee have a realistic picture of exactly what they will be expected to do? Do my documents protect my family members from liability and my child from claims against the property?

5.  Do I need to draft a particular type of trust for my child? Is a Supplemental Needs trust appropriate?

Many associations and support groups have information about specific resources that are available for your child's special needs. By using those resources, your own research and experience, and getting professional advice from your lawyer and accountant, you will be able to make an informed decision. Your lawyer can explain the various legal options to you, as well as explaining the rights and responsibilities of trustees and guardians. You will want to reevaluate your plan from time-to-time to be sure that your plan is always appropriate and up-to-date.

The above list of list of questions are a good guide to use when making an appointment for a legal consultation and can help you decide what information to bring to the lawyer's office and what questions to ask while you are there.

Any professional that you choose to help your family, including a lawyer, should have the right blend of training, empathy and practicality, to best serve your child.

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When a Loved One Dies: A Practical Checklist
Posted by: Brittany Clark
January 11, 2010

During a time of grief, it can be difficult to function. If you are a surviving spouse, partner, child or named Executor and have the authority and duty to act, you may find this information helpful.  It can be printed and used as a checklist. 

IMMEDIATELY:

____Locate the decedent's Will and Powers of Attorney, if any exist. Read them to see if there are any wishes expressed about burial, cremation or funeral arrangements.

____Locate life insurance policies, if any.

____Make arrangements for care of decedent's pets.

____Make funeral arrangements (The funeral service will generally assist you with the following:

• Decide on burial or cremation, type of funeral service
• Decide on obituaries: Local newspaper, hometown newspaper, professional, societies or trade journal.
• Discuss any burial benefits decedent may have, including those for service in the armed forces.
• Obtain Death certificates
• Notify Social Security Administration
• Gather documents which show payment of funeral expenses.

AS SOON AS POSSIBLE:

_____Make arrangements for care of decedent's property and for mail pickup.

_____Have legal consultation:

• Bring will, if any exists
• Bring copy of death certificate
• Discuss generalities of decedent's family situation, heirs, assets and liabilities.
• Get advice on payment of pending bills, dealing with banks or creditors
• Bring contact information or names of heirs or potential heirs, if any.
• Discuss pension plans and life insurance the decedent had

_____Begin gathering list of property owned and how it is titled

_____Gather list of debts, including medical debts and funeral expenses.

Additional Information:

If the decedent put his/her will in a safe deposit box you may need a court order to open it (unless you have been authorized by the decedent)

If you are going to have to file an action in probate court, you should file within 4 years of the date of death.

CAUTION!!  There are certain legal requirements under Texas law which relate to notification of heirs and potential heirs, and notification of creditors. There are also laws relating to how a Decedent's estate is handled and persons who accept the responsibility of caring for the assets and debts in an estate can be held liable for wasting or mismanagement of assets.

It is always advisable to know the laws pertaining to your situation so that you can avoid problems and handle your loved one's estate efficiently.

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Transferring Texas Property with an Out-of-state Will
Posted by: Laura Kalish
December 07, 2009

When a non-Texas resident who owned property in the State of Texas dies out of state with a valid out-of-state will, the Executor will need to take the proper steps to take possession of and distribute the Texas property.

While the Executor can usually take possession of personal items and distribute them accordingly, he or she will have to satisfy certain legal requirements in order to take possession of real property, boats, autos, bank accounts, stocks and the like.

There are legal processes that can be taken to probate a foreign will. ("Foreign Will" means a will from somewhere outside of Texas- either another state or another country.)

First of all, the will must be valid in its own jurisdiction, under the laws of that state or nation. If it has already been to probate court in the other state/nation, then there is a procedure which may allow the existing court orders to be registered in the appropriate probate court in Texas.

Depending on the facts, it may be necessary to get additional court orders or copies from the original jurisdiction and file those with the Texas Judge.

In some cases, probate paperwork from the other jurisdiction can be used to transfer real estate or financial assets, without having to file anything in a Texas Probate court.

Situations vary quite a bit, depending on the other jurisdiction, the language of the will itself, the property that needs to be transferred, and other particular facts of the case.

An Executor should not hesitate to seek a legal consult early in the process so that his/her efforts in both the original jurisdiction and in Texas are coordinated and organized.

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Not Just "Any Old Will" Will Do!
Posted by: Laura Kalish
November 19, 2009

When a person who dies without a valid will, that person's estate will pass according to Texas law. The legal distribution of these assets may not be anything like what the person would have wanted!

Let's take an example: A man is married to his second wife. He has children from a prior marriage, who have not wanted or had a relationship with him for decades. He dies without a will. His spouse inherits on-half of his estate and his children inherit one-half. This could be a problem for the widow, especially if she is depending on the entire estate to support herself.

The words "valid will" are very important. A person may have a document that is a will in their own eyes, but that doesn't mean it's legally valid. Verbal deathbed promises and written notes scrawled on scraps of paper do not make a valid will, no matter how many people witnesses them.

Simply put, if you do not decide how you would like your property to be distributed and put this into writing it will be decided for you! So it is very important to be sure that you have a will that specifies your wishes.

Other issues that can be dealt with in your will include the following: whether you would like burial or cremation, where you would like to be buried, who should get specific items and who gets the family pets.

Texas law also has specific language regarding the wording and formalities for the proper execution of a will. If these formalities are followed, it can be much easier to transfer property with minimal expense and court involvement.

Texas does allow holographic, or handwritten wills, but certain specifications must be followed and these types of wills can easily create a need for court interpretation (and legal expense).

You and your spouse cannot write one will together. You each need one. Your wills can have the same terms in them, but each will must stand alone.

When to Update

If a named beneficiary (someone who is inheriting), an executor (person who will manage the distribution of the estate) or a trustee (person who you have named to manage a trust) dies, becomes ill, becomes untrustworthy, or no longer has a relationship with you, you will need to update the will.

Since probate law varies by state, if you move to another state you should execute a new will there.

If you add a child to your family and your will does not provide for that event, you should update your will.

If you have a significant change in your financial status, you should re-evaluate and update your will.

If you get divorced, or are in the process of divorce or separated, you should re-evaluate your will.

While you are updating or evaluating your will and trust documents you should also consider the following:

1. The need for a general power of attorney so that my spouse or someone close to me can conduct my day-to-day business in the event that I am incapacitated?

2. The need for a Power of Attorney for Health Care and/or Directive to Physicians ("Living Will").

3. The need to update beneficiary designations on retirement accounts, life insurance policies and the like.

Planning ahead now can save expense and stress later on.

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