Probate

The Art of the Claim: Arduous Probate Process Unfriendly for Creditors

Had Sun Tzu been a 21st century lawyer rather than an ancient Chinese military strategist, he would have applauded the claims system used in Texas probates.  It is designed to build an almost impenetrable defense for the probate estate assets against a primary aggressor: creditors.  In Sun Tzu’s own words “The supreme art of war is to subdue the enemy without fighting.” By gosh, the Texas Estates Code makes sure...

Bad Choices Defeat Standing – Beneficiary Can’t Have it Both Ways

Speaking of costly decisions……. Dad had 3 sons. He wrote a will that left one of his sons, Charlie, a savings account worth about $150,000.     Then Dad died leaving a total estate of $1.5 million. His will was admitted to probate and shortly thereafter the executor transferred the $150,000 savings account to Charlie.   After Charlie assumed ownership of the savings account, he sued to set aside the will. He calculated that his...

The Probate Talk Administrators, Creditors and Beneficiaries Need to Know

Let’s talk probate. At some point in your life, you may find yourself an administrator, a beneficiary or a creditor of a probate estate. You may even want this information for planning your own estate. Listen up.   Administration of a Probate Estate At its most basic, probate involves assets, debts and distribution. The administration of a probate estate involves the collection of all assets owned by and all claims owing to...

How To Fund A Trust

You have done your research, sought out and considered competent legal and tax advice, and finally decided to sign off on a revocable living trust-based estate plan. Now comes the hard part: funding the trust. What Is A Trust? To understand what and why you are doing that, you need to first visualize the basics of a trust. A trust is simply a written letter to the trustee with your instructions on...

Probate Homestead – The Right of Occupancy

Home. Your home is where your family resides. If it happens that your home is one on a piece of land that you or your spouse owns, then your home is considered your homestead. There is a lot of Texas law about homesteads. The Texas Constitution, the Texas Property Code, and hundreds of cases define homestead rights. That brings us to the subject of probate homesteads. For purposes of estate planning, you...

Doctrine of Exoneration – Legal Definition & What You Need To Know

Sometimes the law changes and an existing document, such as a will, is caught right in the middle. Consider the saga of the common-law Doctrine of Exoneration. What Is A Doctrine of Exoneration? The Doctrine of Exoneration addresses who is responsible for paying the debt attached to an inherited asset if the will is otherwise silent. Suppose John Smith, a single man, owns a house with a mortgage. John wants his...

What Is An Independent Administration in Texas?

(This is the second in a series regarding probate procedures in Texas) In California, probate of a will for a simple $1 million estate takes 2 years and costs $23,000 in attorneys’ fees.  In Florida, the probate of the same estate takes at least 9 months and costs $30,000. Then there is Texas, where the same probate takes less than 6 months and costs under $5,000. Can we get an Amen? Texas can...

Pulling off a Muniment of Title in Texas

(This is the first in a series regarding probate procedures in Texas) Going through probate is never convenient. For many families it is the first time that they hire an attorney. Add to that the timing, which often comes amid grieving the dearly departed, and the archaic court procedures, and it is no wonder that probate falls somewhere below limb amputation on the pleasure scale. The most common probate procedures are...

Estate Planning Around an Addict

Dealing with an addict in the family is, to put it mildly, challenging. The impact on a family can range from mere nuisance to major disruption. It is no wonder that the reaction of many is to cut the addict out of their estate plan. There is a better way. Create a written revocable living trust naming the troubled relative as the beneficiary. This is by no means a cookie-cutter document. Think...

Types of Probate in Texas

In the public mind, the term “probate” is often associated with expense, delay, suffering and, sometimes, prolonged legal disputes. While there are many probate myths and misconceptions, it is basically a court-supervised method of handling the property of a deceased individual. During probate, the court will appoint someone to be in charge of the deceased person’s financial affairs, property, assets, and debts. Outstanding debts are addressed, and the remaining...

Keeping Track of Your Estate Planning Documents

You did the right thing: you went to an estate planning lawyer and had documents prepared. What you do now? Perhaps it is easier to describe what you should not do. What You Shouldn't Do With Your Estate Planning Documents You should NOT lose them. You should NOT put them in a place where they cannot be easily found. You should NOT interlineate changes, mark through names or addresses, or spill coffee...

Beware the MERP – Texas offers Huge Loophole to Recovery Program

MERP is the Texas Medicaid Estate Recovery Program. Its sole purpose is to seize money from the estates of deceased Medicaid recipients and then plop the recovered funds back into the state’s coffers. The government, acting through a contractor called Health Management Systems, Inc. (HMS), does this by filing a claim in probate.       Why is this a prudent financial maneuver by the government? Because although Medicaid is a needs-based program,...
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