Questions Answered by Terry Lynn Garrett

Q: Does the executor of the will have to be the one to probate the will or can the beneficiaries get the will probated?

2 Answers | Asked in Probate for Texas on
Answered on Mar 14, 2019
Terry Lynn Garrett's answer
If the person named as executor cannot serve, he can file an Affidavit of Executor Who Will Not Serve and the person named as alternate executor (or, if none, a beneficiary) can apply to probate the Will.

Although Texas probate can cost much less than most people imagine, it is possible to file an Affidavit of Indigency and obtain free legal representation through Volunteer Legal Services. Lawyer Referral Services also has a modest means program with discounted legal fees (you must...

Q: Discovery resps are deficient a year later, OC is proposing mediation order signed by judge; what grounds can I object?

1 Answer | Asked in Probate for Texas on
Answered on Mar 6, 2019
Terry Lynn Garrett's answer
IF mediation would indeed effectively close discovery (which it may not), the answer is in your question.

Q: My dad wants 2 sell me his home below FMV, & continue 2 live with us. Tax implications? Any better options?

2 Answers | Asked in Estate Planning, Tax Law and Real Estate Law for Texas on
Answered on Mar 2, 2019
Terry Lynn Garrett's answer
It might be better for him to transfer it to you effective on his death using a transfer on death or a Lady Bird Deed. If he makes any transfer of $200 or more for less than fair market value in the five years before he enters a nursing home (or hospital followed by a nursing home) and then, like 90+% of Texans, applies for Medicaid, Medicaid will treat him as still having the difference between the fair market value and the transfer/sale price. He won't qualify until he has been in the...

Q: My mother's property was divided without including 2 of her children,

1 Answer | Asked in Probate for Texas on
Answered on Feb 24, 2019
Terry Lynn Garrett's answer
A quit claim deed is not effective to transfer property whoever signs it. All it does is document that the person will quit saying that they have an ownership interest in the property.

Depending on what the decedent left and on the relationship among the heirs/ beneficiaries, an Affidavit of Heirship, Affidavit of Small Estate, Probate of a Will or Application for Determination of Heirship and Issuance of Letters of Administration should be used.

Please contact a local...

Q: AUNT IS TRUSTEE / EXECUTOR OF ESTATE. I AM NAMED AS A BENEFICIARY. HOW LONG MUST I WAIT BEFORE RECIEVE MY PART

3 Answers | Asked in Estate Planning and Probate for Texas on
Answered on Feb 19, 2019
Terry Lynn Garrett's answer
That depends on how long it takes the executor to collect the property and pay the debts (including filing the final income tax return). 15 months after the executor is appointed by the court you may request an accounting. If there is no distribution 24 months after the executor is appointed, you may ask to remove her. Nationwide, the average time to settle an estate is two years. This one may or may not take longer.

Q: If a will has already been probated, how can I find out who the lawyer is to contact him?

3 Answers | Asked in Probate for Texas on
Answered on Feb 15, 2019
Terry Lynn Garrett's answer
The probate or county court probate records will have the lawyer's name. In some counties these are online. Look by the name of the decedent.

Q: I am the Executor and heir to the decedent's estate in Texas. I have a Deed (unrecorded) to property. There is a will.

2 Answers | Asked in Estate Planning and Probate for Texas on
Answered on Feb 13, 2019
Terry Lynn Garrett's answer
You cannot sell property you do not own. A recorded deed is evidence of ownership. If the deed is recorded before death, the property passes by deed, not by Will.

If the person granting the deed has already died, maybe the title company will advise you to record Affidavits of Heirship to transfer the property. But you may need to present the Will for probate.

Please note that the Texas Estates Code requires that a Will be presented for probate (proving) within 30 days...

Q: My father committed suicide in 2006 & left No will how can we get my moms name on the deed or sell it?

3 Answers | Asked in Estate Planning and Real Estate Law for Texas on
Answered on Feb 11, 2019
Terry Lynn Garrett's answer
If your father's only children are also your mother's children, ask two people who can witness to this sign an Affidavit of Heirship before a notary public and record it in the county deed records.

Q: My brother died, no will. His son may have already contacted a probate lawyer, do I need my own separate attorney. ?

2 Answers | Asked in Probate for Texas on
Answered on Feb 6, 2019
Terry Lynn Garrett's answer
You do not need a separate attorney. However, you should be aware that since your brother died without a Will, his interest in the home will pass to his children (if he had no spouse), not to you. As heirs, they can bring a suit for partition. That means you must either buy them out or the house will be sold and the proceeds split. They may agree to lease their interest in the home to you for awhile -- or for life. For this, you will need a lawyer.

Q: If I create a trust as a Texas resident, then move to AR, is it still tax exempt?

1 Answer | Asked in Estate Planning for Texas on
Answered on Feb 1, 2019
Terry Lynn Garrett's answer
It is not clear what kind of trust you contemplate creating and what taxes (income, gift, estate, generation skipping transfer) you hope it will not have to pay.

Q: How Do I exercise DPOA limit to a family member whom is trying to move in my mothers home w four children and self.?

1 Answer | Asked in Elder Law for Texas on
Answered on Jan 23, 2019
Terry Lynn Garrett's answer
Who lets her in? It is still your mother's house. If your mother lets her in the door, will it help to put a padlock and a no trespassing sign on the gate?

On the other hand, if the niece has harmed your mother while "living" there, get a temporary restraining order based on domestic violence.

Q: can a family member give a Notice To Quit when I don't pay rent.

1 Answer | Asked in Estate Planning, Real Estate Law and Landlord - Tenant for Texas on
Answered on Jan 23, 2019
Terry Lynn Garrett's answer
The owner can give this notice to anyone.

Q: How long before I cant file fraud against my stepmom over my dads will?

1 Answer | Asked in Probate for Texas on
Answered on Jan 21, 2019
Terry Lynn Garrett's answer
Consult a probate litigator immediately.

Q: what does she need to do now?

1 Answer | Asked in Estate Planning for Texas on
Answered on Jan 21, 2019
Terry Lynn Garrett's answer
If your friend thinks she is in further need of legal representation, she should contact the local probate court. Lawyers have a form to file with the court when they take over a deceased lawyer's practice. If this is a dependent administration, there are further steps she must take. If this is an independent administration, she should at least get a Receipt and Release in exchange for the checks. She must also file the 1040 and perhaps a 1041.

Q: In a Texas will, when do monthly payments need to be made - after probate approved or after death?

2 Answers | Asked in Probate for Texas on
Answered on Jan 19, 2019
Terry Lynn Garrett's answer
Take the Will to a local probate lawyer. It may provide for payment to commence with death. Please also note that all creditors must be paid before distributions can be made. Sometimes it is clear that there is enough in the estate to pay all the creditors and distributions (including those owing since the death) can commence immediately. Sometimes it is not.

Q: Good day.....does the probate attorney typically take care of the change of deed for property willed to defendant?......

2 Answers | Asked in Probate for Texas on
Answered on Jan 4, 2019
Terry Lynn Garrett's answer
A decendent is someone who died. A defendant is someone who is sued.

You may mean beneficiary or distributee, someone who inherits.

Many probate attorneys do prepare a distribution deed to be signed by the person settling the estate (called the executor, administrator or personal representative) and recorded in the county deed records.

Q: I'm a home healthcare provider in 2013 my client died. Before her death i helped her find her 2 nieces. And she revised

1 Answer | Asked in Probate and Estate Planning for Texas on
Answered on Dec 29, 2018
Terry Lynn Garrett's answer
Take the more recent Will to a local probate lawyer and ask him to contact the nieces. It is more difficult to straighten things out at this late date but may not be impossible.

Q: My step brother has had my grandmother transfer land and possibly other property to him and she doesn’t remember it

1 Answer | Asked in Civil Litigation and Elder Law for Texas on
Answered on Dec 24, 2018
Terry Lynn Garrett's answer
Contact APS. Take your grandmother to her physician. Ask him to complete a Physician's Certificate of Medical Examination (available on my website or from any probate court or Approved Guardianship Attorney). Hire an attorney to possibly file (1) a correction deed, (2) a Motion for a Temporary Restraining Order and Permanent Injunction and, if needed (3) a Guardianship.

Exploitation of an elderly person is a first degree felony in Texas.

Q: What can I do if my family is keeping my trust a secret from me??

1 Answer | Asked in Estate Planning for Texas on
Answered on Dec 22, 2018
Terry Lynn Garrett's answer
In Texas if you are 25 or older and a current beneficiary (not someone who might receive benefits in the future), the trustee must give you an annual accounting. If you know that the trust exists and know who the trustee is and know that you are a current beneficiary and are 25 or older, you can demand an accounting and, if it is not produced, hire an attorney to file a Motion for an Order to Show Cause ordering the trustee to explain to a judge why the annual accounting has not been produced.

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