Texas Probate FAQs

FREQUENTLY ASKED QUESTIONS

Texas Probate FAQs
 

Do I need to probate a will if all the estate has is a home?

Yes. Unless title company will take affidavit of heirship, probate is the cheapest and quickest solution.


My sister lived in my grandma’s house before she died, but grandma left the house to me in her will. Does my sister own my grandma’s house?

Assuming you have probated the will and been named executor by the Court, you can evict your sister. You will probably need an attorney to help with the eviction. A grandchild does not have homestead rights in her grandmother’s house.


What type of attorney would I need to deal with a possible guardianship issue regarding an elderly parent and handling their financial issues? It would also likely involve dealing with a will and a non durable POA.

We call our specialties different things: some call this elder law, probate law, estate planning, guardianship, etc. The thing to look for is experience with someone in handling guardianship matters at Court and estate planning services for the will and powers of attorney.


My stepfather already gave me the keys to the two cars my mom left me. Can I get in trouble for driving them if not in probate yet?

You will need to retitle, but the executor will need to deliver you the titles signed by the executor and a copy of the letters testamentary to do this. You will not be able to get your annual registration without updating the title.


I need a lawyer to help me retain the royalty checks that are to come to me but they have stopped (my husband has passed away).

You need to open probate either by probating a will or opening administration, if there is no will. Probating a will is very quick, but the administration can take longer depending on the heirs and other facts. You should start as soon as possible to be able to get the royalty checks started again.


My dad passed away 5 months ago, my mom just 3 weeks ago. Her will states she wanted me to have the house valued at $200,000.

At minimum, you need to probate your mother’s will in the County where she resided at the time of her death. At attorney’s assistance is required by the Court to appoint an executor, so you need experienced probate counsel. Further services could be required depending what, if anything, was done with your dad’s estate.


Can I legally still live in my fathers house even though he has passed away?

Let me offer this guidance in general terms: the house apparently belongs to your father and mother. You aren’t the owner unless you are your father’s heir. Without a will, that depends on heirship law and I don’t know enough facts to tell you at this time. Mom, if she is the sole owner, can kick you out. She may be the sole heir of all of the assets. If she is incompetent, guardianship may be needed. You need to consult with an attorney to get closer to an answer.


What does “JTWROS” or “POD” mean in Texas

JTWROS or POD are designations meaning the assets passes outside of probate by either “Joint ownership With Right of Survivorship” or “Payable on Death” to the other person(s) listed on the account. This is one of my least favorite things to see in Probate practice. We know that the will represents what the decedent wanted, but some boilerplate in a bank account agreement contradicts it. Unfortunately, as a general rule, a JTWROS agreement trumps the will. For the will’s directives to control, the JTWROS would have to be set aside on grounds that the owner lacked capacity at the time he signed the account agreement or was subject to undue influence. This is a trap in the law where people often don’t realize they are creating survivorship agreements and that they trump their will. But, there is no way to prove now that your father didn’t understand what he was signing UNLESS he was incompetent or unduly influenced. In other words, you can’t just argue, “he didn’t intend this.” You have to prove “he didn’t know what he was doing at all.” The law presumes he read the account agreement, understood it, and signed it willingly.


My husband made me trustee of the family trust but only our children beneficiaries.

The trust may very well be an attempt to circumvent your community property rights. You need to consult an attorney to review the trust and possibly challenge the transfer of the homestead and possibly other assets into the trust.


My father’s will gives his second wife controlling interest and a large portion of his estate to her. He’s been divorced from her for 25 years.

If your father drafted the will while married leaving property to Wife X, then he divorces Wife X, then the gifts to Wife X are void.


I inherited my father’s truck after his death. Would this be considered separate or community property in a Texas divorce?

The truck was a gift to you via will, so it is separate property. Possession does not change the character of the property.


My father died and has a life insurance policy with no named beneficiary!!!

If the policy is part of an employee benefit, the will does not control. Instead the Summary Plan Description should explain who receives the benefit, likely the surviving spouse. You should contact the employer benefits/ human relations department of the employer, and they will tell you who they will pay. If the policy is not part of an employee benefit, the will controls.


What are the laws regarding dropping a guardianship in Texas??

ur friend has a guardian, he has been declared incapacitated and has no ability to sign a power of attorney. In any event, to change a guardianship, you must file an appropriate application with the Court which created the guardianship to change or terminate the guardianship. If your friend wants you to be his guardian, the Court will consider his desire in making its decision.


Do I name my Last Will and Testament as the beneficiary of my insurance/retirement/bank accounts?

If the will created a trust for your children, and it should, then the beneficiary should be 1) primary = spouse and 2) secondary = Trustee of Testamentary Trust per last will and testament. If you have ANY doubt about what you are doing, consult the attorney who drafted the will. If an attorney didn’t draft the will, hire one and be prepared to shred what you have.


I have created a will, living trust and warranty deed, and I want to have them reviewed by a lawyer. Am I saving money?

No, attorneys develop forms we know and trust. Reviewing others’ documents to make sure they are good is time consuming. I wouldn’t touch an engagement to review documents drafted by a non-attorney. It would be cheaper to start from scratch using my well-tested forms.


How long can someone have power attorney after a person dies? My mother died and her sister had power of attorney and tells us she controls everything.

Just for clarity because I don’t think the law is different anywhere, in Texas, a power of attorney terminates with the death of the principal, in this case your mother.


In the probated will my brother gets the old car, but Mom got rid of it and got a newer one. Does he get that one or does it go to whom gets the rest of the estate?

If the car identified in the will doesn’t exist, the gift lapses. You don’t substitute another car for the one described. The car that does exist, unless gifted by another bequest, becomes part of the residuary estate and goes to the person identified in that part of the will.


Can my brothers take claim of estate property 5 years after our mother’s death after deciding that they didn’t want it 5 years ago?

This could have been clarified by probate, which I gather didn’t occur. Regardless, you possess the item, they claim it belonged to your mother, that it then should be theirs (I don’t know why). But, it is too old to open an estate, and you aren’t legally or ethically obligated to turn it over to them. You do not need to surrender it to them and they can not get a court order to make you do so.


I was left a house, can’t probate the will and was told if I pay taxes and live in it for 7 years it would be mine. True or not?

If you “can’t probate the will” that left you the house, then the house isn’t yours. In some circumstances, you can establish title by living in a place and paying taxes, which is called adverse possession. That is a risky way to try to establish title, and you would probably have to bring suit after the time period to clarify title. I’d say, it is highly likely that a better use of your money is to use it to be make a down payment on a new home. I definitely wouldn’t pay any more taxes without consulting an attorney.


What does “rest, residue, and remainder of my estate, real and personal” mean?

Anything not specifically gifted to someone in the will is the “residue.” So the “rest, remainder, and residue” is the lawyer way of saying “everything else.”


Does there need to be monetary consideration in order to transfer a Texas property into a trust?

Really making some guesses here, but a deed doesn’t have to say “$10 and other good and valuable consideration.” It can be “granted per terms of ___ Trust” or “gift per Will probated . . .”


My father (deceased) married my stepmother who left me out of her will. Am I entitled to anything from my father’s will?

If your father died and left all to his wife, then you are not automatically entitled to anything from either estate. A will effectively transfer property at death; it does not continue to transfer property down the line after others die. If stepmother’s will were challenged, you would still not be an heir to her estate.


My grandparents and uncles went to my Mom’s house the day she died in the hospital and cleaned all the stuff out. They took everything! What can I do? The will leaves everything to me and my sister.

As to the “stuff” this is a classic case of what I call the “pickup probate.” Which means: the first one to the house with a pickup wins. Cruel, but true. Yes, you can sue your grandparents and uncles, but pursuing such a case won’t be worth it unless the stuff includes some very valuable items.. You refer to probate of a will, so the will controls and an executor should be named. The house thus can be transferred to you by the will, but getting the stuff back is hard to impossible.


My Dad died of cancer early last year and did not leave a written will. What should my brother and I do about his land in Texas?

You will need to contact a lawyer who can explain the various options, but it is likely that you will need to file an application to declare heirship and depending on facts may or may not need to open administration on the estate. It isn’t scary or too expensive.


I need to probate my mother’s will and I will be honest, I don’t have $1500 that was quoted to me. Isn’t this too high?

$1500 is a fair rate. You might find someone cheaper, or who would take payment in installments or see if the attorney would accept credit cards. You don’t explain why you need to probate your mother’s will, so I don’t have the information to tell you if less expensive probate alternatives are available.


Husband dies intestate leaving a wife and one child and two children from a previous marriage. Who gets the property?

It is split between wife and child. The exact percentages depend on the type and nature of the property, so you need legal advice.


Is a typed 4 page will legal in Texas if signed only on the last page by the person whom it was for (no witness, no notarization)?

In Texas, the answer is simple: this is not a valid will.


I am being accused of fraud by someone who I took care of in my home for 6 months. Which kind of attorney do I need?

You have to think on the negative side to determine which attorney is best for you. The worst thing that could happen is that you get prosecuted for elder abuse or, more likely, get sued for breaching your duties on your power of attorney. If you feel you might be prosecuted, you need a criminal defense attorney. If you feel the only realistic situation is that the family might sue you, they will probably sue in Probate Court, if probate has been opened. If so, you want to find someone 1) who regularly appears in the Probate Courts of that County; and 2) has experience with fiduciary duty litigation. Most attorneys who advertise that they do “probate litigation” or “fiduciary duty litigation” will probably have the needed experience.


How do I set up an estate for my mother who passed away as there was no will left? She left a 401K but no beneficiary.

You need to establish the heirship of your mother’s estate. The 401k administrator will probably not accept anything less than a full court ordered Declaration of Heirship. You need to retain an attorney who practices in Probate in the County where your mother resided at the time of her death. Once you explain the full circumstances to the attorney, he can advise on the cost.


When my elderly mother enters a nursing home, can I keep her house? I am her 24/7 caregiver and have no home otherwise.

The house won’t be yours unless your mother leaves it to you in a will or you are her sole heir. POAs do not authorize you to use your mother’s assets for your personal benefit. If your mother needs the equity of the house to pay her medical care, you would be obligated to sell the house. So, neither the fact you have lived there, have her POA, or have been her caregiver give you any ownership interest in the house.


What happens to the wife if the house is in the husband’s name and he passes away while still owing on the mortgage?

You’re focused on the mortgage, but you need to focus on the title. My question is, “why is the house only in the husband’s name?” If that is because he acquired it before marriage (likely) that means it is his separate property. If he dies without a will, then that property will be owned by his descendants, if any, but the wife would have a life estate. If you want your wife to have 100% ownership of the house upon your death, you need a will. Changing the mortgage won’t change title. See a lawyer about basic estate planning documents: wills and powers of attorney.


I gave a land deed to my lawyer to transfer the deed to my sister’s name through an affidavit of heirship. Is the original land deed kept by the lawyer?

The original deed must be filed with the County Clerk to be effective. In most counties now, the clerk scans the deed and immediately returns the original to the filer. In other counties, the deed is recorded and eventually returned to the filer. You can request the original from the attorney, But you should confirm that is recorded, which is indicated by filing stamps or other notations on the original. If it is not filed, see to it that is filed.


How can I remove 7 people from property if I can’t find them or if they are unemployed and can’t afford the upkeep? My Dad died and had 8 children from several relationships. Most of them I never knew or can hope to find. I’ve been paying the taxes by myself and what the property all in my name.

In this situation, you need to think about living elsewhere. Stop paying 100% of taxes on a property that you own 1/8th! Go to probate court, establish your ownership, get a partition order, and collect your 1/8 of value and go buy a place that is 100% yours.


I am told that a handwritten will is still legal and enforceable in Texas. Is this the case and what is the drawback of it?

Well, for starters it isn’t self proving. It probably lacks independent administration language. It probably doesn’t gift all of the property or contain a residuary clause. It probably doesn’t do anything any decent attorney would do for a reasonable fee. Go ahead be cheap and don’t hire an attorney to draft the will. I will earn three times as much on your probate as opposed to the one with a well-drafted will.


Do I need a lawyer to file a small estate affidavit?

Technically, no, but drafting them correctly is more difficult than it should (don’t blame me, I didn’t write the statute!) You can probably find the form and you need to read the probate code, section 137, very carefully. You can then file without an attorney, but if it is wrong, the Judge will reject it and it won’t be valid and your filing fee is then wasted.

Texas Probate FAQs