Probate Archives - Skeen Law

Why Every Married Person Needs a Will

While it can be somber to think about our own mortality, I assure you that talking about death won’t kill you! In fact, for married couples, having an estate plan in place can help prevent some pretty disastrous results at the death of your spouse.

Harry is a dentist. He has been married to Wilma for fifteen years and all of their property is community property. Harry is 60 and Wilma is 47. Harry and Wilma have never had kids of their own, but Wilma’s two by a prior marriage, Dotty and Sam, are now grown. And Harry says, “thank goodness,” because Sam has turned out to be quite the handful. Sam has been running with a bad crowd and has been thrown out of school. He is 17. Dotty is 24. She dropped out of college during sophomore year to get married. She is now divorced and has two kids, ages 3 and 5. Wilma gives her money and babysits often.

What happens to Harry if Wilma passes away without a will? When a married parent dies without a will in Texas, one-half of the total community estate goes to the decedent’s children and one half goes to the surviving spouse, unless all of the deceased’s children are also children of the surviving spouse. This comes as a surprise to most people; the surviving spouse inherits NOTHING from the deceased. The children of the deceased take the entire one-half interest of the deceased to split among them. The surviving spouse is left with the one-half interest in the community that he or she already owned.

This is no longer true, however, if the children are both Harry and Wilma’s children. In this case, the surviving spouse will receive all of the community property. If the children are Wilma’s but not Harry’s children, then Wilma’s share of the community will go to the children.

When Wilma died without a will, Harry took one-half of the homestead, Dotty and Sam each received one-quarter interest in the homestead. However, only Harry and Sam are entitled to occupy the homestead because the surviving spouse and any children living in the home when the owner died receive a homestead interest under Texas law.

Any other real estate, including vacation, investment, or business property would be divided between Wilma’s children and Harry. Personal property, such as the furnishings, boats, cars, jewelry, china, and silver would all be divided between Wilma’s children and Harry. Stocks, bonds, and cash deposits, whether in Harry’s name or Wilma’s, or both names, would go one-half to Harry and one-quarter to both Dotty and Sam.

Normally, Harry would receive the checking account, which is usually set up as a survivorship account, any insurance naming him as beneficiary, and Wilma’s IRA (if she named him the beneficiary).

Assets which Harry will have to split with the children include the cash value of insurance on HIS life and HIS dental business.

Wilma’s separate property (property owned before marriage, gifts, and inheritances) is handled differently. Separate personal property, such as china, silver, and jewelry is divided one-third to Harry and two-thirds among the children. Harry would also receive a life estate in any separate real estate, with the children taking the remainder. This division is true whether or not the children belong to Wilma alone or to both Harry and Wilma.

Wilma, like most married people, wished to leave her estate to her spouse and to her children. Harry, like most married people, expected to receive most of his spouse’s estate upon her death. However, the community property laws give all of the decedent’s community property to his or her descendants. Often this results in the surviving spouse having insufficient funds for his or her support. Wilma certainly wished to leave something to her children, but she probably did not want them to receive a large sum until they were older and wiser. She certainly did not intend to completely exclude her husband.

Wilma could have provided for her husband and children by leaving a will. Harry could have insured that he would have sufficient funds for his retirement years by insisting that Wilma have a will. Wilma, of course, should have the same guarantees by making sure that Harry has a will.

Do these examples leave you questioning your own situation? Call Skeen Law Firm today at 210-202-1141 to get wills made for you and your spouse. You can’t afford to wait!

What Happens if You Divorce After You Make Your Texas Will?

If you have been divorced, and you haven’t made a new Texas will since, it’s a good idea to take care of that as soon as possible. It’s likely that some of your wishes have changed and that you’d like to see your ex-spouse’s name removed from your documents.

But what would happen if you passed away before you had the chance to remove your ex-spouse from your will? I recently handled a case where this was precisely the situation. Mom had recently passed. She had remarried to step-dad some years ago, and had her will created during their marriage, leaving everything to step-dad and naming him as the Executor. Mom and step-dad later divorced, and Mom didn’t change her will before she passed. Does step-dad still get all of mom’s assets and get to serve as Executor of her estate? The answer is no. Under Section 123.001 of the Texas Estates Code, the ex-spouse is treated as if they had predeceased Mom. The alternate executor and alternate beneficiaries named in Mom’s will are entitled to her estate, and step-dad is essentially ignored. Whew! What a relief for the family. Note, however, that this only pertains to Mom’s Texas probate estate. It does not apply to any beneficiary designations that mom made on her life insurance policies, retirement accounts, and the like. If step-dad is still listed as a beneficiary, unfortunately he takes.

It’s important to review your estate plan after a big life change. Even though there are thankfully some safeguards in Texas Probate Law, they sometimes do not save 100% of the estate from unintended results. Moreover, you likely want to name someone else, not your ex, to be your Agent in your Durable and Medical Powers of Attorney. Sitting down with an attorney to review your estate planning documents and coordinate your beneficiary designated accounts after a big life change is imperative.

What Will Happen To Your Kids If You Pass Away?

Your children are important to you. You will spend a good part of your life sacrificing and caring for them. But, what will happen to them when you are gone?

Typically, when people think of Estate Planning, they think of wills and property, probate and money, burials and wakes. As a parent, however, you should be thinking about your children, and custody, and guardians, and trusts, and caring for their future if you are not around.

Who Gets the Children?

A married person generally assumes that his or her spouse will care for the children if the married person dies. However, with the many complicated family situations that exist today, nothing should be taken for granted. If a mother passes away, the natural or adoptive father has a right to custody of the children, even if he does not live with the family. If the father dies, the mother gets custody.

For example, Joan and Henry have been married for 10 years. Joan has two children by a previous marriage to Frank. They are Bill, 12 years old, and Susan, 11 years old. Joan and Henry have three children together- 7, 8 and 9 years old. If Joan dies, Bill and Susan will pack their bags, leave the brothers and sisters they have grown up with, and go live with Frank.

In another case, Suzy divorced Sam and took their two children with her. If she dies, Sam gets the children back, and may get control of all the money and property Suzy leaves behind.

On the other hand, a married couple may die in the same accident leaving their children with no parents. Similarly, a widow or widower may pass on, leaving the children orphaned. If the parent or parents have not planned ahead, the grandparents are first in line for custody, then uncles and aunts and other relatives.

A recent case in San Antonio involved an orphaned child we’ll call Billy. Billy’s paternal grandfather lives in California. Billy’s paternal grandmother lives in San Antonio. Billy’s maternal grandparents live in Idaho. They all want custody.

Billy now has a lawyer (called an attorney ad litem). The lawyer’s job is to help the judge find out who is best qualified and suited to take care of Billy. The lawyer had to visit each grandparent, with a professional social worker or family counselor in tow, and make recommendations to the judge. The cost of the trips, the lawyer’s fees, the payments for the counselor, the court costs, and other expenses will all come out of Billy’s inheritance.

Billy’s parents could have kept this situation from arising by designating a guardian for Billy in their wills. The will of the last parent to die takes precedence, but with foresight, the two parents would be in agreement as to who the guardian would be.

Who Gets the Money and Property?

The person who gets custody of the children is called the Guardian of the Person. The person who gets custody of the children’s money and property is called the Guardian of the Estate. They are usually the same person.

A natural parent who becomes Guardian of the Person has the legal right to be Guardian of the Estate. However, there are ways to prevent them from managing the bulk of the estate.

Let’s look at Suzy again. Her ex-husband will get custody of the children. He will also be Guardian of the Estate. Suzy, however, was a hard worker and smart lady. In her will, she set up a trust for her children and named her Uncle Patrick as the Trustee. Sam gets the children, but the money goes to the trust. Uncle Patrick is there to make sure that the children are well cared for.

Parents of older children are often concerned with the money management abilities of their children and the children’s spouses. A trust, created in their parent’s will, can provide a means of professional management of the parent’s assets. The trust can be established in the will naming a reliable individual or bank as Trustee. This would ensure that the assets are used in the manner the parent desires.

Left Out in the Cold

Finally, consider the case of Harry and Dotty. Harry married as a young man and had children. He divorced and lost contact with his children. Later, he remarries to Wanda.

Although they did not have children together, Wanda had a small daughter, Dotty. Harry raises Dotty as his own, but does not adopt her. When Dotty is eight years old, Wanda dies with a will leaving her entire estate to Harry.

Harry and Dotty were very close. When Dotty is 14, Harry dies without a will. His entire estate goes to his children by his first marriage. Dotty inherits nothing from Harry. Not a dime. Not even her mother’s jewelry. Not even her grandmother’s china. Nothing.

Planning Ahead

Estate Planning is, as you can see, more involved and more important for parents. Parents have to plan where the money and property goes. More important, however, parents must plan for their children’s future. A few minutes now can prevent years of heartache later. Are your children worth those few minutes?

Probating A Will Four Years Later

I recently had a client, Mary, whose husband passed away ten years ago in San Antonio, Texas. Afterwards, she suffered from enormous grief, spiraled into depression, and rarely left her home. The fog had just recently lifted and Mary realized she needed to turn her attention to settling her husband’s affairs. Her husband had a validly executed Texas will, and she wanted to know if I could help her probate that will. Unfortunately, I told her that in Texas, a person’s Will’s “expires” four years after they pass away. She was shocked! She really had no idea about that law, like so many people I speak to.

So how do we proceed now that it has “expired?” Mary has several options to settle her husband’s affairs. She can:

1. Proceed as if husband passed away with a will. This means that I, as the attorney, will need to open an Administration of the Estate and complete a Proceeding to Determine Heirship. We would have to use this option if Mary’s husband had any unsecured debts (for example, credit card debt). However, he did not. We would also need to use this if Mary’s husband left any bank accounts or other financial assets in his name. Financial accounts are often “frozen” by the bank when someone dies, and a bank will only give the estate’s representative access to the accounts if they have special papers from the court. Mary’s husband did not have those assets.

2. There is a narrow exception to probate the will after four years! I could probate the will as a Muniment of Title. Under Section 256.003(a) of the Texas Estates Code, a will can be probated as a Muniment of Title so long as the person in possession of the will was not in default. Mary was not in default!

3. I could complete an Affidavit of Heirship. This is a viable option, but we don’t know how a title company will respond if Mary wants to sell her homestead in the near future. In Texas, title companies must accept these Affidavits after they have been on file for at least 5 years. But what would happen if Mary wanted to sell her home next year? Because each title company varies in their requirements, Mary did not want to take her chances.

We proceeded with option number 2. Mary’s relieved to know that her husband’s affairs will finally be taken care of once and for all. If you have any questions about how this might apply to your situation, don’t hesitate to reach out to me, Amanda M. Skeen, Estate Planning and Probate Attorney, at 210-202-1141 or Amanda@skeenlawfirm.com

What To Do When Someone Dies in San Antonio?

I get phone calls and emails each week from people in Bexar County who are grieving the death of a family member. They’re often confused and overwhelmed about what to do next.

The Texas Young Lawyers Association has an informative guide about probate, which answers many questions about just that.

The first section of the guide explains the importance of estate planning and the disadvantages of dying without a Will. The second section deals with probate and discusses:

1. What to do after someone has passed away;
2. How property is divided if there is no Will;
3. What probate is and the situations when it is necessary;
4. How the probate process is initiated;
5. The timeline for probating a simple estate in Texas; and
6. Various alternatives to probate and when they are applicable.

The guide is written in plain English and is an excellent summary of steps to take when someone dies. You can read it by clicking on the following link: The Texas Probate Passport.

Please pass it on to anyone you know who may benefit from the information contained in it.

What is an Overview of the Probate Process in Texas?

If you have an individual you trust to handle your estate, you can name that person your “Independent Executor” in your Last Will and Testament. An Independent Executor acts independently of the probate court. Once you pass away, your Will is filed for probate and approximately two weeks later, a hearing can be set. Under oath, your Executor or member of your family states a) the facts concerning your death; b) your residence; c) your family situation; d) the filed document is your Will and has not been revoked; and e) the Executor is qualified to serve.

Your Independent Executor signs an oath stating that he/she will perform his/her duties properly. Your Independent Executor never goes to court again; no further hearings are required. The only other required action required is that your Independent Executor must notify the heirs of the estate and prepare an Inventory of your assets which are subject to probate. The Inventory can either be filed of record or given to all heirs of the estate. Assets such as retirement plans and life insurance policies with a beneficiary designated pass directly to the beneficiary and are not part of your probate assets. The cost for probate in Texas is $3,000 to $5,000. The cost has increased in recent years due to the addition of a provision requiring notice be given to all beneficiaries of an estate. This amount does not include costs related to the administration of an estate, transferring title, funding the trust, or preparation of tax returns.

The probate hearing usually takes place about a month after filing the Will with the court. This time frame assumes there is no Will contest. Texas statute requires that the Will be on file until the Monday after the lapse of ten days. In Bexar County the available dates for the probate hearing are about 3-4 weeks after the Will is filed for probate. Depending on the court’s docket the hearing may be further delayed. However, with a Revocable Living Trust in place, the successor Trustee can begin to act immediately.

A Checklist for Survivors

Losing a loved one is among the most heartbreaking experiences we must face in our lifetime. When an event like this occurs, you understandably have a lot on your mind. Notifying other friends and family members, taking care of funeral arrangements, and trying to cope with your own grief can all feel overwhelming. Add in the additional strain of taking care of the deceased’s affairs, and you may not know where to even begin. The following is a basic checklist for Texans that will help you organize and track the various items that need your attention immediately following the passing of your loved one.

Immediately following the death, you should:

1. Contact the funeral home to take your loved one into their care.
2. Contact your minister.
3. Alert immediate family members and close friends.
4. If the deceased had any dependents, arrange for their immediate care.
5. If the deceased had any pets, arrange for their immediate care.
6. If employed, contact the deceased’s employer.
7. Alert the Successor Trustee of your loved one’s Trust.
8. Notify religious, fraternal, and civic organizations that of which your loved one was a member.
9. Remove valuables from the deceased’s home, secure the residence, and take steps to make the home appear to be occupied (for example, use lamp timers).
10. Arrange for the disposal of any perishables left in the deceased’s home, such as food, refrigerated items, and be sure to take out the trash.
11. Locate the loved one’s important documents:

a. Trust
b. Birth Certificate
c. Social Security Card
d. Marriage License
e. Military Discharge Papers (DD-214)
f. Deed to burial property
g. Copy of funeral prearrangements
h. Life insurance policies

12. Compile the following information that the funeral home will need in order to finalize the death certificate:

a. Deceased’s first, middle, and last name
b. Deceased’s Maiden name (If applicable)
c. Deceased’s home address
d. Deceased’s Social Security Number
e. Deceased’s Date of Birth
f. Deceased’s Age
g. Deceased’s Gender
h. Race/Ethnicity
i. Marital Status
j. Spouse’s first and last name
k. Deceased’s highest level of education attained
l. Deceased’s occupation
m. Deceased’s Father’s Name

i. Birth City
ii. Birth State

n. Deceased’s Mother’s Name

i. Birth City
ii. Birth State

13. If your loved one was a Veteran:

a. Entered service date
b. Entered service place
c. Service number
d. Separated from service date
e. Separated from service place
f. Grade, rank, or rating
g. Organization and branch of service

14. Obtain at least 12 copies of the certified Death Certificate.
15. Alert the Post Office to forward the deceased’s mail.

Within One Month of the Death, You Should:

1. If the deceased’s home is unoccupied, cancel unnecessary home services, such as newspaper delivery, cable service, etc.
2. Contact the Social Security Administration and other government offices that may have been making payments to the deceased. If the decedent was your spouse, inquire about eligibility for new benefits.
3. If your loved one was a Veteran, inquire about benefits that you may be entitled to through the VA.
4. File claims with life insurance companies.
5. Cancel deceased’s prescriptions.
6. Contact the Department of Motor Vehicles to cancel deceased’s drivers license and transfer titled of all registered vehicles.
7. Contact the deceased’s employer, if applicable. Inquire about any 401(k), pension, or company benefits that the survivors may be entitled to.
8. If death was accidental, verify whether benefits are available of existing insurance policies.
9. Check for any life insurance benefits available through existing credit card or loan accounts.
10. File any outstanding claims for health insurance or Medicare.
11. Obtain copies of deceased’s outstanding bills.
12. Update your estate planning documents
13. Update your beneficiaries on life insurance, IRA, and 401(k) accounts
14. Send thank you letters for flowers, donations, food, and kindness. Also remember to thank pall bearers.
15. Meet with an accountant to discuss the deceased’s final tax return and any estate taxes that are applicable.
16. Organize and distribute deceased’s personal belongings in accordance with their letters of instruction.
17. Notify the Register of Voters.
18. Notify all three credit reporting agencies and obtain a copy of their credit report.

Working with an experienced probate attorney through this process can help you navigate these unfamiliar waters so that you have more time to care for yourself. A lot of time can be saved and frustration prevented by calling an attorney early on. Moreover, if your loved one had a Will, an attorney may be required to represent the estate in Bexar County Probate Court. If your loved one has recently passed and you’d like professional help for your family, contact Skeen Law today for a free consultation at 210-202-1141 or info@skeenlawfirm.com.

The Shocking Truth About Owning Property in Multiple States

I often work with people that own a home in Texas and also real estate in other states. If you fall into this category, it is important to know the most efficient way to title the out-of-state real estate so there is a smooth transition to your heirs. Not doing so, will add additional hassle, costs and frustration for your loved ones in order to get your estate settled.

I’m working on establishing a Revocable Living Trust for a San Antonio family. They own a home in Texas and they also own real estate in Colorado and Florida. Their primary concern is to get the titles of the real estate in the two other states transferred to the trust in order to avoid the ancillary probate that would be necessary when they pass away. The ancillary probate is an additional probate that is required when someone dies a resident of one state and they own real estate in their name in another state. In order to eliminate the additional expense and time involved with an ancillary probate, they need to retain the services of a lawyer in Colorado and Florida to transfer the property in those states to the trust and have it recorded in the proper county. Their Texas attorney cannot transfer the Colorado and Florida real estate to their trust. If your assets are set up the right way and your trust owns all of your real estate when you die, not only will the costs and time involved with a Texas probate be avoided, but ancillary probates in other states will be unnecessary.

Additionally, I am working on a Texas probate for a San Antonio resident who died owning property in California. The Texas probate transferred the assets and the Texas real estate to the appropriate family members. The California property could not be transferred. Like always, I advised the family to seek out and retain an attorney in California to handle the ancillary probate and get the real estate transferred to the appropriate heirs. A Texas probate attorney cannot handle the ancillary probate in another state.

So what should you do if you are alive and well and you own real estate in multiple states? In order to avoid multiple probates when you die, consider creating a revocable living trust and working with different attorneys in each state where you own real estate to get all of the real estate “funded” into the trust. A little effort now can avoid multiple court proceedings in multiple states when you die.

To help take the confusion out of things for your family, contact me at (210) 202-1141 to arrange for an appointment or visit my website, www.skeenlawfirm.com to register for an educational seminar.