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Texas Estate Planning Questions & Answers
1 Answer | Asked in Estate Planning for Texas on
Q: I have received a consent to independent administration. Should I sign?

How long does the independent administrator have to distribute proceeds to heirs?

Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Jul 20, 2021

You should ascertain with your own attorney what Texas' Independent Administration statute allows. In my state of Louisiana, it is generally limited to selling estate property without the consent of the judge. It does not affect the proceeds of the sale, which would be distributable to the... Read more »

1 Answer | Asked in Estate Planning for Texas on
Q: Is a Will invalid if a legal name of a child is incorrect
Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Jul 19, 2021

Generally, no. Is it a mere missepelling? Or is the entire name incorrect?

If a mere misspelling, a scrivner's error, that will not invalidate it. If it is an entirely different name, possibly someone who is not even know by the testator (resulting perhaps from the attorney using...
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1 Answer | Asked in Estate Planning for Texas on
Q: If yes, then the answer is: after the sale, the proceeds are put into an estate account. Then, any estate expenses are

Deducted..How long does the administrator have to send to heirs?

Isaac Shutt
Isaac Shutt answered on Jul 18, 2021

You can "demand an accounting" per the Code after the expiration of 15 months from the time the executor was appointed as executor. That's really the first chance you have to flex any muscle. Before that, you can always get a probate attorney to write a letter on your behalf--that... Read more »

1 Answer | Asked in Estate Planning for Texas on
Q: How are assets (real estate) distributed to heirs when properties are sold under an independent administrative situation
Isaac Shutt
Isaac Shutt answered on Jul 18, 2021

If the properties are sold to a third-party, then there would not be real estate to distribute. Are you asking how the money from the sale of the real estate gets transferred to the heirs?

If yes, then the answer is: after the sale, the proceeds are put into an estate account. Then, any...
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1 Answer | Asked in Criminal Law, Federal Crimes, Social Security, Estate Planning and Probate for Texas on
Q: Is it fraud to apply for benefits from a commen law marriage if they were not even commen law married and the man died.

I have a friend who was a caregiver for an elderly couple and she was also dating their grandson and they lived with the couple. The lady died and the man knowing his time was soon as well decided to leave everything to my friend. He had papers drawn up stating that he and my friend were comnen law... Read more »

Stanley Franklin Denman
Stanley Franklin Denman answered on Jul 17, 2021

The account here is a little hard to follow. It is highly unlikely the social security administration would recognize this arrangement as a common law marriage entitling your friend to social security benefits. A common law marriage under Texas law is not created just because someone declares it... Read more »

1 Answer | Asked in Real Estate Law and Estate Planning for Texas on
Q: If you do a buy out for an inherited property how is the buy out determined ? On date of death for market value ?

My brothers portion is 12.5% is his portion determined on equity in the house we still owe 142k and is that based on market value on date of death ? Or today’s market

Nina Whitehurst
Nina Whitehurst answered on Jul 14, 2021

The buy out price is whatever the buyer and seller agree upon. If the co-owners cannot agree, then one of them can take the other to court to force a sale, in which case the court will decide and everyone loses because attorneys' fees and court costs come off the top.

1 Answer | Asked in Estate Planning and Real Estate Law for Texas on
Q: how do I buy out my brother on a home that is inherited with a mortgage. His share is 12.5 % in Texas
Teri A. Walter
Teri A. Walter answered on Jul 14, 2021

First, you get an agreement from your brother about the value of his interest. Then have a deed prepared by a lawyer, and pay your brother for his interest in the property.

2 Answers | Asked in Estate Planning, Energy, Oil and Gas and Probate for Texas on
Q: My niece was in my grandma's will 30 yrs ago to receive oil lease. It was not probated. Is the will valid? Can contested

This is in Texas. She has been receiving royalties. But can it be contested by heirs since it was not probated within 4 years?

Aimee Hess
Aimee Hess answered on Jul 5, 2021

First, be aware that your niece may also be an heir of your grandmother even if the will was not probated. The oil company may have accepted a certified copy of the grandmother's will filed in the deed records or an affidavit of heirship as evidence of your niece's entitlement to... Read more »

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1 Answer | Asked in Estate Planning for Texas on
Q: Revocable Living Trust, one spouse dies, question.

Will the child of the deceased parent be entitled to any proceeds from the sale of the house. The property is in wife and husband's name. Should I contact a lawyer? Thank you.

Nina Whitehurst
Nina Whitehurst answered on Jul 4, 2021

There is absolutely no way of knowing what the plan of distribution is under a trust without reviewing the trust instrument itself. But if the house is in the names of the two individuals as husband and wife, then that means it is not in the trust and so the terms of the trust do not matter. In... Read more »

1 Answer | Asked in Estate Planning and Probate for Texas on
Q: Is there recourse if a trustee tells a beneficiary they aren't in the will when in fact they are?
Terry Lynn Garrett
Terry Lynn Garrett answered on Jul 4, 2021

The person named to settle an estate in a Will is called an executor. The person named to administer a trust is called a trustee. What someone said or did not say is difficult to prove. However, once submitted for probate, a Will is a public document. Once appointed administrator, an executor... Read more »

1 Answer | Asked in Estate Planning for Texas on
Q: How much life estate is the surviving spouse is entitled to?

There is two properties. One where the diseased reside and the other on county road where he had a business. Is the surviving spouse entitled to life estate on both properties?

Teri A. Walter
Teri A. Walter answered on Jul 2, 2021

As with most things, it depends.

If the deceased person was married with children, And the real estate is separate property, Then the surviving spouse gets a life estate in 1/3 of All the separate property real estate.

If the real estate is community property, And all the children...
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2 Answers | Asked in Estate Planning for Texas on
Q: As a surviving child...how can I be deemed tbe executor of my fathers estate?
Terry Lynn Garrett
Terry Lynn Garrett answered on Jul 1, 2021

If your father had a Will in which he named you executor, present that to the local probate court. If not, file an Application for Determination of Heirship and Issuance of Letters of Administration. Hire a local probate lawyer to help you.

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1 Answer | Asked in Real Estate Law, Land Use & Zoning, Probate and Estate Planning for Texas on
Q: I have a home on my grandmother's property that was left to be inherited by my mother and aunt equally. What happens?

Aunt wants me evicted. Mom wants me to stay. I cannot upgrade septic for house I own (no land payment agreement from deceased grandmother) or move mobile home onto same acreage without aunt's signature or do anything at all without causing a fuss. What do I do? Its a Ladybird will with no... Read more »

Teri A. Walter
Teri A. Walter answered on Jun 29, 2021

The property owners (your mother and aunt) both have rights to use the property, which include the right to lease it out. If there's a written lease, that will govern who can evict you and why. If there's not, you're a month to month tenant, and the oral lease agreement can be... Read more »

2 Answers | Asked in Wrongful Death, Estate Planning, Family Law and Real Estate Law for Texas on
Q: The Frail Elderly Family Protection Act: Can it over turn the appointment of the POA & MPA due to wrongful death?

Forensic pathologist reported youngest sibling murder my mother.

Terry Lynn Garrett
Terry Lynn Garrett answered on Jun 24, 2021

A power of attorney expires with the person who granted it.

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1 Answer | Asked in Estate Planning, Adoption and Probate for Texas on
Q: I was adopted after my mother married my dad 1964. They had a natural to both daughter 10 yrs later. My father passed a

My mother and her mother is not dividing things up evenly she’s partial to her youngest. I was promised things by my dad but my sister has ended up getting 3/4 of things what can I do

Terry Lynn Garrett
Terry Lynn Garrett answered on Jun 22, 2021

The answer turns on what the Will said. Adopted and born children are both the couple's children under the laws of heirship, which would apply if there was no Will.

From your description, it is not clear that either estate was probated. You may be writing about small items of greater...
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1 Answer | Asked in Estate Planning for Texas on
Q: Dads will gives estate to mom and then by 3 sons. One son has since passed away. Does his widow have heirship to his?
Terry Lynn Garrett
Terry Lynn Garrett answered on Jun 17, 2021

It depends on what the Will says. It is common to state that the children or the siblings of a predeceased beneficiary inherit. It is uncommon to state that the spouse does.

1 Answer | Asked in Civil Litigation, Contracts, Estate Planning and Probate for Texas on
Q: Can I sue for my grandmas ashes? Her new husbands family took them when he passed.

My grandma passed (in Texas 2015) first and then her new husband had changed around everything in the will (when my grandma was sick he got her to sign stuff). He cut multiple family members from my grandmas side out and made his son the executor. When her husband passed (in Texas 2017), the son... Read more »

Isaac Shutt
Isaac Shutt answered on Jun 14, 2021

It's definitely worth having free (or inexpensive) consultation with a probate attorney. I'd recommend trying to schedule a meeting with an attorney that focuses on probate and estate planning law.

You would be an heir to your grandmother's estate, so it's important...
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1 Answer | Asked in Estate Planning and Real Estate Law for Texas on
Q: Can I give my dad a notice to leave my moms home? She has passed away and left no will but I pay the mortgage.

My mom died last year and left no will. He has created an argument over nothing and feels like he is entitled to everything. He lived with her for a few months last year before he decided that he could no longer care for her and verbally told me I was responsible for her. He decides to come back a... Read more »

Isaac Shutt
Isaac Shutt answered on Jun 11, 2021

Definitely consult a probate attorney. I do think you'll need to involve the probate court so that your inheritance rights are protected. Many probate attorneys offer free or inexpensive consultation meetings.

Your father probably just assumes that everything of your mother's...
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1 Answer | Asked in Estate Planning for Texas on
Q: I am a co-trustee. The beneficiaries have agreed to forgive a trust loan. Can I protect myself from future litigation?

I am a co-trustee of a trust created by my mother and step father. One beneficiary owed a rather large sum to the trust. The beneficiaries have chosen to forgive this debt to the trust. I'm afraid that in the future they will change their minds and take the co-trustees to court to go after... Read more »

Nina Whitehurst
Nina Whitehurst answered on Jun 8, 2021

You are right to be concerned. My best advice would be to have an attorney help you draw up an iron-clad instrument for the successor trustee and beneficiaries to sign agreeing and consenting to the forgiveness of debt.

2 Answers | Asked in Estate Planning for Texas on
Q: What is the difference between an Affidavit of Heirship and Application for Determination of Heirship.
Beth Ann Serafini-Smith
Beth Ann Serafini-Smith answered on Jun 3, 2021

Briefely:

An Affidavit of Heirship is used when there is no Will, filled out/completed by two disinterested witnesses, and then the affidavit is filed with the real property clerk. The affidavits are used to transfer property to the rightful heirs after the owner's death.

An...
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