San Antonio TX Probate Law Blog

Monday, May 23, 2016

Two Common Issues With Handwritten Wills


Most handwritten Wills generally do a good job indicating the testator's (i.e. the Will-maker's) intent to make a testamentary distribution of property after death, name an Executor and name the intended beneficiaries.  Unfortunately, most handwritten Wills fall short in two other important areas: (1) the fail to authorize an Independent Administration, and (2) fail to authorize the Executor the power to sell estate property.

Both of these deficiencies can be solved.


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Tuesday, May 10, 2016

Can a Person Under Guardianship Ever Make (or Update) A Will?


Is it possible for a person under a guardianship (i.e. a "ward") to make a valid Will?  Yes, it is possible if testamentary capacity can be proven.
Read more . . .


Saturday, April 30, 2016

Agent under Durable Power of Attorney's Relationship to Guardian of Estate


An Agent's authority under a Statutory Durable Power of Attorney terminates upon qualification of a court-appointed Guardian of the Estate for the incapacitated principal.  This feature of the law should be kept in mind during estate planning, so unintended consequences don't emerge.

The Agent's whose authority has been terminated must deliver assets of the incapacitated principal (the "ward") under the Agent's control to the Guardian of the Estate.  The Agent also is liable to provide an accounting to the Guardian of the Estate in the same manner that the Agent is liable to the principal.

To learn more about this and other estate planning topics, speak with a qualified probate and estates attorney.


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Sunday, April 3, 2016

When Do Letters Testamentary or Letters of Administration Expire?


They don't.  Letters Testamentary issued to the estate's Executor (for a person who died having left a valid Will) and Letters of Administration issued to the estate's Administrator (for a person who died without a Will) remain valid so long as the estate remains open.  However, it's common for institutions dealing with the estate, such as banks and brokerage houses, to require "current" letters be presented by the Executor or Administrator.  Generally, letters are considered "current" if they are no more than 90 days old.  Getting "current" letters is an easy administrative task.


Read more . . .


Sunday, March 20, 2016

Determining Heirship: What to Do When Witnesses are in Distant States?

When a Decedent dies without a Will, an Application to Determine Heirship must be filed with the probate court.  An Heirship proceeding requires the testimony in open court from two disinterested witnesses as to the Decedent's family and marital history.  This testimony helps the court validate not only the identity of the Decedent's heirs, but each heir's respective percentage entitlement to the Decedent's separate and community real and personal property, if any.

I've successfully helped family member's file Applications to Determine Heirship for the Decedent when the only available witnesses live in States far beyond Texas.  How can this be done when the Estates Code calls for the witnesses to testify in "open court?"

The Code permits an exception, whereby the witnesses' testimony may instead by taken by deposition.  In such cases, the deposition is taken by telephone.  My firm coordinates with a certified stenographer in the witness' local area who goes to the witness' home or business to take the deposition.  The parties' attorneys dial-in by conference call to conduct the deposition.  Parties have the option of dialing-in to monitor the deposition, if desired.  A deposition in an Heirship proceeding generally last about 10 to 15 minutes.  Upon completion, the deposition is filed with the probate court and satisfies the requirement for testimony to be taken in open court.

Speak with a qualified probate attorney to learn more if your situation fits this scenario.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Sunday, March 13, 2016

Accessing the Deceased's Safe Deposit Box Without Court Order Is Possible

Some people believe that storing a Will in a safe deposit box is a bad idea since it might be near impossible to get possession of the Will after the box owner's passing.  Not true.

The Estates Code provides a bank with authority--even without a court order--to permit certain persons to examine the contents of the deceased's safe deposit box.  Those persons permitted to examine the contents include:

  1. The surviving spouse;
  2. A parent of the deceased;
  3. A descendant of the deceased who is at least 18 years old; or,
  4. A person named as Executor in a copy of the Will that appears valid and is presented to the bank official.

Examination of the box must occur in the presence of the bank official.  If the original Will is found inside the box, the bank official may deliver it to the clerk of the Probate Court.  The bank official also is permitted to hand it over to the person named in the Will as Executor.  The Executor must provide the bank official with a receipt for the document.  Incidentally, if a life insurance policy is found, the bank official may hand it over to the named Beneficiary.  Likewise, the Beneficiary must provide a receipt for the document. 

The Estates Code also contains provisions for the Court to order examination of the deceased's safe deposit box in cases where the bank opts not to permit inspection without a court order.  Talk with a qualified probate attorney to learn more.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 


Sunday, February 21, 2016

Durable Power of Attorney: How Long Does It Last?

A Statutory Durable Power of Attorney does not lapse simply because of the passage of time.  In general, a Statutory Durable Power of Attorney continues in full force and effect until one of three conditions occurs, as follows:

  1. The Agent's authority under the Statutory Durable Power of Attorney is revoked by the Principal;
  2. The Principal dies, which automatically terminates the Agent's authority to act; or,
  3. A Guardian of the Estate is appointed by a Court for the Principal, which terminates the Agent's authority to act under a Statutory Durable Power of Attorney.

For questions or more information on this subject, speak with a qualified estate planning attorney.

Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC.  The firms provides families throughout the greater San Antonio region with Will and Probate services, and a spectrum of other family law-related services.


Wednesday, February 10, 2016

Independent Executor's Notice to Secured Creditors: What Generally Happens Next?

An Independent Executor must give notice to Secured Creditors as follows:

  • Within one month of receiving letters testamentary—by publishing a notice that meets the requirements of Estates Code Sec. 308.051 in a newspaper of general circulation in the county in which the letters testamentary were issued; and,
  • Within two months of receiving letters testamentary—by sending a notice by certified mail/return receipt requested that otherwise meets the requirements of Estates Code Sec. 308.503 to the Secured Creditor's last known address.

The Secured Creditor, either within six months from the date letters testamentary were issued or within four months from the date of notice under Estates Code Sec. 308.053, should give notice to the Independent Executor whether the Secured Creditor wishes the secured claim to be administered as a "matured secured claim" or "preferred debt and lien."

In general, status as a matured secured claim means the Secured Creditors is looking for the Independent Executor to see the property to pay the claim, unless the Secured Creditor seeks court approval to effect sale.  Any deficiency resulting from the sale becomes a class 8 claim (lowest priority, ranking with other unsecured claims). 

In general, status as a preferred debt and lien means the Secured Creditor retains the right to judicial or extrajudicial foreclosure in order to collect the debt.  The Secured Creditor, however, cannot execute an nonjudicial foreclosure (i.e. foreclosure under a Deed of Trust that gives the Trustee power of foreclosure without court permission) within six months after the date letters testamentary were issued.

Speak with a qualified probate and estates attorney for more information about the duties and options of an Independent Executor when dealing with secured claims against estate property and Secured Creditors.

Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC.  The firms provides families throughout the greater San Antonio region with Will and Probate services, and a spectrum of other family law-related services.

 


Wednesday, January 20, 2016

Small Estate Affidavit: Restrictions on Transfer of Homestead

When the Decedent died without leaving a valid Will (also known as dying "intestate"), a Small Estate Affidavit can only be used to transfer the Decedent's homestead to a surviving spouse or minor children.  This change in the law became effective September 1, 2015. 

If the intestate Decedent has no surviving spouse or minor children and, for example, the Decedent's homestead will be inherited by other relatives, such as brothers/sisters or nieces/nephews, then a Determination of Heirship becomes necessary.  While a Determination of Heirship will get the job done to transfer title to the homestead, that probate procedure generally costs more and takes longer than does processing a Small Estate Affidavit.  

Before closing it's worth noting that this type of dilemma could have been eliminated had the Decedent specified the plan for disposition of his or her property in a valid Will.  Speak with a qualified probate attorney for further questions on how the change in law effects your unique situation if your loved one died intestate and title to the intestate Decedent's homestead needs to be transferred. 

Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC.  The firms provides families throughout the greater San Antonio region with Will and Probate services, and a spectrum of other family law-related services.


Monday, January 11, 2016

Effect of Will Provisions Made Before Divorce

People often ask if they need to make a new Will immediately after divorce.  Making a new Will after divorce is a prudent but not necessary step in all cases. 

The Texas Estates Code provides that, if after making a Will, the testator gets divorced and later dies, then every  provision in the Will that benefited the ex-spouse and/or any relatives of the ex-spouse who are not also relatives of the testator are void.  This includes not only gifts but also fiduciary appointments.  In other words, had the now-deceased testator named the ex-spouse as the testator's executor, that appointment is void.

In a probate proceeding, the now-deceased testator's Will would be read as if the ex-spouse and all relatives of the ex-spouse who are not also relatives of the now-deceased testator had died before the testator.  The only way to overcome this protection in the law is if the testator had made a new Will post-divorce that added one or more of these persons back into the Will.

This protection in the Texas states Code doesn't necessarily cover "all the bases."  For example, if an ex-spouse remained as the now-deceased testator's beneficiary of a Federal life insurance policy (e.g. Servicemembers/Veterans Group Life Insurance Policy or Federal Employees Group Life Insurance Policy), then the ex-spouse most likely would still receive the insurance proceeds.  In simple terms, Federal law says, "pay the named beneficiary."  So, in that respect, it's prudent for a newly divorced person to not only execute a new Will, but also review all non-probate dispositions of property, such as right-of-survivorship and pay-on-death contracts with financial institutions (e.g. banks and brokerage houses) and life insurance beneficiary designations.

Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC.  The firms provides families throughout the greater San Antonio region with Will and Probate services, and a spectrum of other family law-related services.


Wednesday, December 30, 2015

Concluding the Independent Executor's Role: Closing the Estate

First, know that an Independent Executor is not required to close the estate1.  It can remain open for years and decades into the future in case a matter presents itself that requires the Independent Executor's attention (e.g. think of the estate of a popular recording artist, where the estate continues to receive royalties for decades; this is not something most of us have to worry about).

Next, if the Independent Executor wishes to close the Decedent's estate, the Estates Code provides several methods for doing so.  The simplest method is for the Independent Executor to file a "Notice of Closing the Estate" with the court.  The filing must include a verified (i.e. sworn) affidavit that sets forth the following2:

  1. That all known debts have been paid to the  extent of the estate's assets;
  2. That after payment of debts, all remaining assets, if any, have been distributed to beneficiaries named in the Will; and,
  3. That the names and addresses of beneficiaries who received the remaining assets of the estate have been included in the affidavit.
At time of filing, the Independent Executor must include proof that the "Notice of Closing the Estate" has been provided to each beneficiary.  A signed receipt or certified mail/return receipt "green card" suffices as proof of notice to each beneficiary.
 
The estate is then considered closed 30 days after the Independent Executor files the "Notice of Closing the Estate," unless a beneficiary files an objection with the court.   Once closed, the Independent Executor's power and authority to act on behalf of the estate is terminated.  Speak with a qualified probate and estates attorney if you have further questions about closing an estate.
 
Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC.  The firms provides families throughout the greater San Antonio region with Will and Probate services, and a spectrum of other family law-related services.

___________________________________________ 

Note1 - See Estates Code Section 405.012.

Note2 - See Estates Code Section 405.006.

 


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The Cramp Law Firm is located in San Antonio, Texas and assists clients throughout Bexar, Comal, Guadalupe and Kendall counties.



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