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In the Estate of Dempsey Johnson, Deceased: The Acceptance-of-Benefits Doctrine

July 16, 2021/in Probate and Probate Litigation/by Matthew Griffeth

In February of 2021, the Texas Supreme Court heard arguments concerning whether a beneficiary of a will has standing to contest the will despite having already accepted benefits under it. In the case, the contestant argued that the “acceptance-of-benefits” doctrine did not bar her claim because she had not accepted all her benefits (under the will or via intestacy), and she therefore retained her standing to challenge the will. In making this argument, the contestant relied on the previous case of Holcomb v. Holcomb, which provided that a contestant may challenge a will if the benefits she accepted are worth less than those to which she is entitled under the challenged will or intestate laws.[1] The Court in Johnson, however, overturned Holcomb and expressly denied contestants the right to take partial benefits under a will while simultaneously bringing a challenge to its validity. The Johnson holding attempted to emphasize that the doctrine enforces the terms of the will and its bequests, not just the value conferred on each beneficiary.

To contest any will, a contestant must have standing as an interested party that is not barred by an affirmative defense. One such affirmative defense is the acceptance-of-benefits doctrine. If the will proponent can show that the contestant accepted benefits, the contestant bears the burden of rebutting that claim. As the Johnson court explained, “[e]quity does not permit the beneficiary of a will to grasp benefits under the will with one hand while attempting to nullify it with the other.” Thus, a beneficiary is estopped from bringing suit to challenge a will if and when they voluntarily accept any benefit under the will, unless the contest is consistent with the claim that the will is invalid. It should be noted, then, that if a beneficiary is entitled to some benefit outside the will, accepting such a benefit does not, according to Johnson, preclude that beneficiary from bringing a contest. In other words, if a beneficiary accepts some asset to which they would otherwise be entitled under intestacy, for example, their actions should not be inconsistent with contesting the will, so the contest should be allowed. The Johnson court goes even further and says that accepting something that one would not have legal entitlement to without the bequest cannot be consistent with contesting a will and is thus barred by the acceptance-of-benefits doctrine.[2] Additionally, the acceptance-of-benefits doctrine requires voluntary acceptance of a benefit. In this way, the beneficiaries are effectively given a choice: they can accept a bequest, implicitly accepting the will’s validity, or they can reject the bequest and bring a contest. There is no option for both. The Johnson court, however, did not elaborate on when an acceptance of benefits is voluntary.

In Johnson one of the decedent’s daughters, Tia MacNerland, was bequeathed a mutual fund account under the will. Importantly, MacNerland would not have been entitled to that account but for the will. However, the total amount to which MacNerland was entitled under the will was substantially less than what she would have been entitled to if the decedent had died intestate. After voluntarily receiving the mutual fund account, MacNerland contested the will’s validity, claiming that her father lacked testamentary capacity. The executor of the estate (another of the decedent’s daughters) successfully argued that the acceptance-of-benefits doctrine applied because MacNerland had already benefitted from the will by accepting the mutual fund account, and the trial court dismissed MacNerland’s contest for lack of standing.

The appellate court, however, reversed the trial court’s holding. Citing Holcomb, it held that the contest was consistent with the acceptance of the mutual fund account and could therefore be brought if the benefits accepted were worth less than those to which MacNerland was entitled under the will or intestacy laws (which they were).

The Texas Supreme Court, however, did not agree with MacNerland and elected to overturn Holcomb. It held that, because MacNerland accepted the mutual fund account voluntarily, the acceptance-of-benefits doctrine should apply. This shifted the burden to MacNerland, to show that her acceptance of the mutual fund account—which she admitted was the result of the will and nothing more—was consistent with also invalidating the will. But since MacNerland had no legal right to the mutual fund account other than through the will, she could not show the requisite consistency needed to maintain the contest. According to the Court, “a beneficiary must firmly plant herself on the side of the will’s validity or invalidity and accept the consequences of that election.” The Texas Supreme Court ultimately agreed with the trial court and dismissed the case for lack of standing under the acceptance-of-benefits doctrine.

Ultimately, the Texas Supreme Court decided that a beneficiary cannot take through a will they also seek to invalidate. Such a result would be inconsistent with the laws surrounding effective wills. A beneficiary “must adopt the whole contents of the instrument, so far as it concerns [her].” Thus, as a general rule, the voluntary acceptance of a benefit through a bequest precludes a beneficiary from bringing a will contest under the acceptance-of-benefits doctrine.

[1] Holcomb v. Holcomb, 803 S.W.2d 411 (Tex. App.—Dallas 1991, writ denied.).

[2] See Trevino v. Turcotte, 564 S.W.2d 682, 686–87 (Tex. 1978).

Matthew Griffeth is a clerk at FGHW. Mr. Griffeth is a 2022 candidate for a Juris Doctor at SMU Dedman School of Law, where he is the Managing Editor for the International Law Review Association’s Year in Review publication. He holds a B.A. in history from the University of North Texas.

Wills v. Trusts: What’s the Difference?

May 25, 2021/in Estate Planning/by Spencer Turner

What is a Will?

Often, the first 10 minutes of an estate planning consultation involve explaining the differences between a Last Will and Testament (or, simply a “Will”) and a trust. Each may have a critical role to play in a client’s estate plan. A Will is a testamentary instrument, which is a lawyerly way of describing a document that does not become effective until an individual’s death. In other words, a Will is merely a stack of paper with words and a few signatures until the individual executing it (called the “testator”) has passed away. Texas law provides stringent requirements for the proper execution of a legal, valid Will.[1] After the testator’s death, his or her Will must be “admitted to probate” by a court of appropriate jurisdiction. This requires someone (usually the executor) going before a judge and proving up all the various requirements of the Will. Only then can a personal representative take control of the deceased testator’s property, wind up his or her affairs, and distribute the estate in accordance with the Will’s provisions.

What is a Trust?

By contrast, a trust describes a relationship between three parties: (i) the settlor, (ii) trustee, and (iii) the beneficiaries. Thus, a trust is an abstract intangible thing, so it is not a document at all. Also, unlike a Will, a trust may become effective during the grantor’s life, or at death, and there is no requirement that a trust be proved up, authorized, or otherwise sanctioned by a court. To establish a trust, a settlor simply entrusts property to a trustee, who accepts a legal obligation to manage, administer, and distribute that property for the benefit of the beneficiaries. Each of these parties may be a single individual or a group of people. Even though the trust itself is amorphous, the terms, conditions, standards of distributions and other guidelines for this trust relationship are often memorialized in a written document called a “trust instrument.” A trust instrument may be a stand-alone document, or it may constitute a section in a testator’s Will. Either way, a single trust instrument will often govern many different trusts.

Trusts can take an endless variety of forms and serve myriad purposes. Many trusts are created to achieve special tax, asset protection, or wealth transfer goals. But when clients are weighing their options between a Will and a trust for estate planning purposes, they are generally thinking of a “revocable living trust.” This is commonly structured to have an individual or couple simultaneously serve as the settlor, trustee, and initial beneficiary. Revocable living trusts are similar to Wills in that they dictate what will happen with a person’s property when he or she dies. Thus, they remain a standard tool of estate planning attorneys.[2]

Deciding whether a Will or a (revocable living) trust best matches a given situation will depend on the particular client’s needs, goals, outlook and other circumstances. Often, a Will is all that is needed in Texas to plan a person’s estate. In some circumstances, however, a revocable living trust will better address the situation. Understanding the fundamental distinctions between a Will and a trust is an important starting point to both a client’s decision about the overall structure of his or her estate plan, as well as the client’s ability to maintain that estate planning structure in the years to come.

Spencer Turner is an associate attorney at Farrow-Gillespie Heath Witter LLP. Since obtaining his license to practice law in 2016, Mr. Turner has focused his legal efforts primarily in the trust and estates arena. He has been featured as a speaker on various aspects of the probate process at several seminars hosted by the National Business Institute. Spencer is a graduate of from Baylor University School of Law.

[1] See Ch. 251 of the Texas Estates Code.

[2] Mr. Turner and Christian S. Kelso, Esq., a partner at Farrow-Gillespie Heath Witter LLP, recently co-authored an article for the State Bar of Texas’ Continuing Legal Education program. The article is entitled The Alchemy of Revocable Trusts: Creating the Perfect Solution for Each Client’s Problem, and may be found among the written materials for the “Handling Your First (or Next) Trust 2021” webcast.

Beware Fill in the Banks Will Chris Wilmoth

Beware Fill-in-the-Blank Wills!

February 1, 2021/in Estate Planning, Probate and Probate Litigation/by Chris Wilmoth

In 2015, the Texas Legislature passed a law requiring the Supreme Court of Texas to make available to the public simple forms for preparing wills. In the six years since, however, the Supreme Court has not published these model wills online. If and when these free model wills are published, it will become easier and more affordable for Texans to prepare a will by simply filling in the blanks.

Of course, fill-in-the-blank form wills are much older than the internet and can be found in form books available at your local bookstore. When blanks in a draft or form will are completed in handwriting, the question sometimes arises whether the handwriting was inserted before or after the will was signed.

In 1837, in the absence of evidence as to when blanks were filled in, the Supreme Court of Missouri presumed that the blanks were filled in before the will was signed.[1] Other state courts have followed this presumption, including South Carolina (1921), Illinois (1929), Wisconsin (1939) and Montana (1960).[2] A legal treatise published in 1954 described this presumption as “well settled.” However, no reported Texas case has adopted or rejected this presumption.

There are many published cases from Texas courts addressing “interlineations” in wills – that is, handwritten (or even typewritten) insertions to the text of a will (as opposed to merely filling in blanks). When such a will is challenged, courts require testimony that the insertions were made before or at the time the will was signed because insertions made after signing are considered void. Even in uncontested cases, probate courts typically admit wills with interlineations “as originally written,” leaving questions about insertions to be resolved by agreement or subsequent litigation.

People making a will should not count on a Texas probate court accepting handwritten insertions, even if they are merely filling in the blanks. This could lead to ineffective provisions in the will or, worse, the complete failure of the document to be admitted to probate, resulting in an intestacy.

Attorneys experienced in the drafting and execution of wills take steps to avoid the issue entirely. With word processing programs, it is easy to make corrections and minimize handwritten insertions during signing ceremonies held at the attorney’s office.

If the will is being signed in someone’s home and blanks need to be filled or corrections need to be made, it is best to initial and date those insertions and refer to them in the self-proving affidavit. Even then, the witnesses might be called upon to testify in court that the handwriting was part of the will when it was signed.

If the Supreme Court someday makes form wills available to the public online, or if you use a form from a book, your will stands a better chance of being admitted to probate at less cost and inconvenience if it contains no handwriting except for the signatures of the testator and the witnesses. The experienced estate planning attorneys at FGHW are prepared to help you minimize these risks.

[1] Graham v. O’Fallon, 4 Mo. 601 (1837).

[2] Guerin v. Hunt, 110 S.E. 71 (S.C. 1921); Martin v. Martin, 165 N.E. 644 (Ill. 1929); In re Home’s Will, 284 N.W. 766 (Wisc. 1939); In re French’s Estate, 351 P.2d 548 (Mont. 1960).

Hon. Chris Wilmoth is a seasoned probate, guardianship, and trust litigator. He also conducts mediations and accepts appointments as a special judge. Mr. Wilmoth served as Judge of Dallas County Probate Court No. 2 from 2011 through 2014. He has been named one of the best lawyers in Dallas by D Magazine each year since 2018.

How to Solve the Probate Homestead Conundrum

Resolutions to the Probate Homestead Conundrum

December 10, 2020/in Probate and Probate Litigation/by Jessica Dunne and Spencer Turner

Under Texas law, a surviving spouse has the right to reside in the marital home until the surviving spouse either abandons the home or dies. But this so-called “probate homestead” right does not extinguish the ownership interests of remaindermen (co-owners, heirs, or beneficiaries) under the decedent’s will.

The responsibilities of the homestead claimant (the surviving spouse) include paying ad valorem property taxes, costs of maintenance and repair, and interest on any existing encumbrances (e.g., a mortgage), avoiding “waste” and preserving the property, and funding any permanent improvements on the property. The homestead claimant is also entitled to all fruits, rents, and revenues derived from the property. The remaindermen must maintain insurance on the property and pay the principal on any existing encumbrances, such as mortgage principal. Texas law permits the surviving spouse to sell the homestead and use the proceeds to acquire a new homestead with the same rights and obligations as before.

These dynamics can strain a relationship, particularly between a stepparent and stepchildren. To lessen the strain, Texas law does not permit remaindermen to force a partition of a probate homestead. A common resolution to this conundrum is for one party to buy out the other party’s interest in the home, if both sides are willing.

Assuming the surviving spouse is the personal representative of the decedent’s estate, another option is for the surviving spouse to request authority from the court to purchase the home from the estate. Under Texas law, a personal representative of an estate may purchase estate property if the court determines that the sale is in the estate’s best interest.

If the home needs to be sold to satisfy debt associated with the property or the decedent’s estate, the personal representative can offer to purchase the property for an amount that would satisfy the debts or by assuming the debt associated with the property itself. Some factors weighing in favor of the purchase of the property by the personal representative include, but are not limited to, co-ownership of the property by the estate and the surviving spouse, as well as probate homestead rights. Both factors can greatly diminish the marketability of the property to a third-party buyer. The court is likely to find that a purchase of the property by the personal representative is in the estate’s best interest if the proposed purchase is the only viable option for settling the debts of the estate.

The lawyers in our firm have successfully assisted individuals in negotiating a buyout of either the homestead claimant or remainderman’s interests in the property; selling the probate homestead and using the proceeds to acquire a new homestead; and obtaining court authority for the purchase of estate property by a personal representative. Should you find yourself in a probate homestead conundrum, the attorneys at Farrow-Gillespie Heath Witter are here to help you navigate a resolution.

Jessica Dunne | Farrow-Gillespie & Heath LLP

Jessica Dunne is a senior associate attorney at Farrow-Gillespie Heath Witter LLP. Jessica has substantial experience in probate, guardianship, and trust litigation, with a special interest in adoptions. Jessica graduated cum laude from Baylor Law School in 2011 where she was the recipient of the Presidential Scholarship.

Spencer Turner is an associate attorney at Farrow-Gillespie Heath Witter LLP. Since obtaining his license to practice law in 2016, Spencer has focused his legal efforts primarily in the trust and estates arena. He has been featured as a speaker on various aspects of the probate process at several seminars hosted by the National Business Institute. Spencer is a graduate from Baylor Law School.

Is it Too Late to Probate the Will?

June 9, 2020/in Probate and Probate Litigation/by Chris Wilmoth

You’re going through a loved one’s papers and come across a will. The person who wrote the will (a Texas resident) died years ago. What do you do?

First Things First

First, you should surrender the will to the county probate court where the deceased person lived. Texas law requires you to file with the court the original version of the will of anyone whom you are aware is deceased.[1] Surrendering a will to the county makes it available for any beneficiaries who might want to probate the will.

To Probate or Not to Probate

Texas imposes no legal obligation to probate a will. If a will is never offered for probate, the property of the testator, the person who made the will, passes according to the Texas laws of intestacy as if they died without a will. However, you might want to offer the will for probate if it has favorable terms, or to transfer title of any real property that belonged to the testator.

You don’t have to go to court for title to pass by intestacy. But if you try to sell real property you inherited, the title company might require you to take steps to clear title. That might include asking the probate court to determine the heirs of the person who died and how his or her property passed under Texas law. If you must go to court anyway, you might consider probating the will you found.

Four-Year Deadline

As a rule, courts are not supposed to admit a will into probate more than four years after the testator has died.[2] If it has been more than four years, an exception permits wills to be probated if the applicant offering the will for probate provides an equitable explanation for the delay.[3]

Unfortunately, the reported cases in this area of law do not provide a predictable basis for determining whether the applicant is “in default” for the delay. This is because these cases are so fact specific.

For example, in one case an impoverished widow was permitted to probate her husband’s will, even though he died more than five years before she learned he owned royalty interests.[4]

In another case, a successful attorney with an oil and gas practice, who learned about mineral interests 14 years after his father died, was told he could not probate his father’s will. The applicant was found to be in default because the son “should have known that unexpected events [like discovering mineral interests] often happen in life.”[5]

A recent case from the Supreme Court of Texas provides another example of how courts focus on the particulars of the applicant’s situation.[6] In this case, the independent executor tried to probate the will of a deceased man’s wife because the husband failed to probate his wife’s will during his lifetime. The courts held that the executor could not probate the will on behalf of the husband because the husband had failed to do so within four years of the wife’s death. However, the supreme court also found that, in this particular case, the executor had standing to offer the will in the executor’s personal capacity and was not at fault for the delay.

Even if the person who made the will died more than four years ago, it might be worthwhile to try and probate the will anyway, particularly if the applicant did not personally delay in offering the will for probate.

If you have found a loved one’s will long after their passing, and need help surrendering it to the court or would like to probate the will, seek the counsel of an experienced probate attorney.

[1] Tex. Estates Code § 252.201.

[2] Tex. Estates Code § 256.003(a).

[3] St. Mary’s Orphan Asylum of Tex. v. Masterson, 122 S.W. 587, 592 (Tex. Civ. App. 1909, writ ref’d). The Estates Code provides that the applicant not be “in default” in offering a will for probate more than four year after the death of the person who made the will.

[4] Kamoos v. Woodward, 570 S.W.2d 6 (Tex. Civ. App.—San Antonio 1978, writ ref’d n.r.e.).

[5] In the Estate of Rothrock, 3112 S.W.3d 271 (Tex. App.—Tyler 2010, no pet.).

[6] Ferreira v. Butler, 575 S.W.3d 331 (Tex. 2019).

Executing Texas Estate Plans in the Era of COVID-19

April 28, 2020/in Estate Planning/by Spencer Turner

These are unprecedented times, even for estate planning attorneys. The advent of COVID-19 has “persuaded” many clients to either consider establishing an estate plan for the first time or to re-assess their current estate plans. As a result, estate planning attorneys across Texas are working hard during this period of great uncertainty to develop and protect their clients’ legacies.

Yet a finely crafted estate plan is useless if it is not properly signed and executed. Texas law has strict parameters for the signing of certain estate planning documents. For example, a valid will in Texas must be in writing, signed by the individual making the will (the testator), and attested by two or more witnesses. The witnesses must be within the physical presence of the testator when witnessing the execution of the will. A notary public signs the will as well (though this is technically not a requirement under Texas law). Between the testator, witnesses, notary, and estate planning attorney, a total of five or more people typically attend a will-signing ceremony. In the era of COVID-19, that’s a social faux pas. Government regulations may forbid a gathering of such size, and in the author’s experience, clients are presently uncomfortable with exposure to more than one non-family member at a time. Therein lies the chief problem facing estate planners: how to safely convene with clients to sign and execute their essential documents?

Governor Greg Abbot’s Emergency Order

In recent weeks, Texas Governor Greg Abbot has attempted to provide estate planners with a method for electronically notarizing wills, powers of attorney, and other estate planning documents. Typically, a notary public must also be in the physical presence of a client while he or she is executing a will. Governor Abbot’s emergency order enables a notary to instead observe a will-signing ceremony over Zoom or similar “electronic means.” The notary would then need to receive a faxed or scanned copy of the will (or other estate planning document) and affix his or her signature and stamp to the same. The notarization process is complete upon the notary’s return of the will and other estate planning documents to the client by scan or fax. This temporary fix aims to alleviate the need for large gatherings and can help clients execute their estate plans without undue delay.

Concerns with Electronic Notarization

But as with any temporary amendment to the law, Governor Abbot’s relaxation of notarial standards remains fraught with questions and legal concerns. For one, the required witnesses must still physically attend a will-signing. That fact alone may still dissuade clients from pursuing execution of their estate plan during the pandemic. Questions also remain about the extent of Governor Abbot’s authority to authorize such a suspension of Texas law. Probate litigators may later capitalize on the legal uncertainty surrounding wills notarized by electronic means and initiate a contest in probate court[1]. All this to say, estate planners must proceed with caution when utilizing electronic notarization for estate plans. Certain clients and potentially contentious dispositions of property in an estate plan may not warrant this unproven method of execution.

Trusts and Holographic Wills

However, estate planners have developed another creative approach to this executionary quandary brought on by COVID-19. Trusts can provide a workaround for the more stringent execution requirements of a will. A valid trust in Texas only requires the signature of the client seeking to establish the trust. As a result, clients may print the final version of a trust instrument and sign in the safety of their own home. No public gatherings are necessary.

A trust’s terms provide for the disposition of the client’s property upon death, much like a will. But for a trust’s terms to be effective, a client must transfer his or her assets into the trust. This can be a tedious task involving the drafting of deeds, assignments of interest, and many more documents. A client might also need to personally visit a financial institution to change accounts into the name of the trust: another no-no in the era of COVID-19.

A holographic will might serve as the catchall for assets that have yet to be transferred into a client’s trust. Unlike typewritten wills, a holographic will is entirely in a client’s handwriting. Texas law does not require witnesses or a notary to sign holographic wills. A client could then print and sign the trust while also drafting his or her own holographic will (with an attorney’s instruction) to sign as well.

These homemade, holographic wills are only intended as an interim solution. But they ensure that the assets in a deceased client’s estate will “pour over” into the trust that he or she established, thereby making the estate assets subject to the trust’s dispositive terms. In short, a properly drafted trust and holographic will can provide clients with a temporary fix to the dangers of gathering in larger groups for signing a will and other estate planning documents. Together with the electronic notarization of wills and estate planning documents, these methods give estate planners a chance to achieve their clients’ goals in the midst of the current pandemic.

[1] Few things excite probate litigators more than a video of an elderly testator executing his or will. An astute attorney can use a recorded Zoom session to sow doubt and concern among members of the jury regarding the elderly testator’s mental capacity.

What Happens to Your Real Estate Property If You Die Without a Will?

July 15, 2019/in Probate and Probate Litigation/by Elaine Price

If you reside in the state of Texas and die leaving a valid will that disposes of real estate property, then the real estate ownership will pass to the person who is to receive the land according to the will. However, the will must be probated in a court for this transfer to be effective.

If you die without a valid will, or if your will is never probated, then your real property is distributed under the intestacy laws of the state of Texas.

The applicable rules of “descent and distribution” under Texas law vary depending on whether you are single or married and if had children or other heirs at the time of death. Depending on your particular circumstances, your heirs could include a surviving spouse, your parents, siblings, aunts, uncles, nieces, nephews, or even distant relatives you may not know. Only in the worst-case scenario, when no heirs exist, will your real estate property go to the state of Texas.

If You’re Single

If you are single (whether never married, divorced, or widowed) and you have children at the time of your death, then your real estate property will go to your children to share in equal parts. If any child has died before you, and that child has any children, then that child’s share will go to his or her descendants. If not, the deceased child’s share goes to his or her siblings.

If you are a single person with no children who is survived by both parents, then your father will receive half of your real estate property and your mother will receive the other half.

If you are single and have one surviving parent, but no siblings or descendants of deceased siblings, then all of your real estate property goes to your surviving parent.

If you are a single person survived by only one parent and by siblings (or a sibling’s descendants), then your siblings and the descendants of deceased siblings are entitled to one-half of the real property, and your surviving parent is entitled to the other half. If you are single and both your parents died before you, your real property goes to your siblings and/or their descendants. In either event, if you are at least survived by one sibling, the siblings’ portion is divided by the number of siblings; descendants of a predeceased sibling divide that sibling’s share equally. If all your siblings predeceased you, the siblings’ share is divided equally among all your nieces and nephews.

The foregoing rules apply when you and your siblings share the same parents. If you have half-siblings, your full siblings get a double share as compared with your half siblings.

If You’re Married

Community Property

If your real estate property is community property, in most cases the property goes entirely to your surviving spouse. But if you have children who are not also children of your surviving spouse, then the children will take your community real property share and the surviving spouse retains his or her share.

Separate Real Property

If it’s separate real property, it may be split between your surviving spouse, siblings, parents, and children. For example, if you have separate real property and you are married with children at the time of your death, your separate real property will all go to your children and your surviving spouse will get one-third interest in a life estate. All of your separate real property will be owned outright by your children when your surviving spouse is no longer living on the property. If you have no children, your surviving spouse receives one-half of your separate real property and the other half passes as if you were single (see above).

Unmarried Couples

If you are an unmarried couple living together, the surviving individual will not have any ownership rights to your real estate property. When you die without a will, your interest in the real property will be divided among your heirs. Texas intestacy laws only recognize the right of relatives to inherit property. Therefore, unmarried couples do not have any real property rights in their partner’s assets if they die, unless a will or other legal document clearly states otherwise. This rule applies to persons in domestic partnerships as well.

Avoid Dying Without a Will. Consult an Attorney.

Preparing estate planning documents can be complicated and it would be wise to talk to an estate planning attorney licensed to practice law in Texas. An experienced estate planning attorney can assist you in preparing a valid will and other estate documents to meet your specific needs.

Elaine Price | Farrow-Gillespie & Heath LLP | Probate Proceedings

Elaine Price practices in the areas of probate, heirship determinations, and guardianship proceedings. She is certified by the State Bar of Texas as eligible to represent applicants and guardians for guardianship matters and to serve as a court-appointed attorney in guardianship proceedings in all Texas courts. Ms. Price is a graduate of the Thurgood Marshall School of Law and holds a Bachelor of Arts in political science from Prairie View A&M.

Adoption | Farrow-Gillespie Heath Witter

Where Adoption and Inheritance Cross Paths

February 14, 2019/in Adoption, Estate Planning, Probate and Probate Litigation/by Jessica Dunne

When a Texan dies without a will, the decedent’s property passes to his or her heirs in accordance with the laws of intestate succession. Adoption may affect inheritance if either the decedent or an heir is a part of what is known as the adoption triad. The adoption triad consists of the biological parents, the adoptive parents, and the adopted child. This article explains the effects of adoption on inheritance for each member of the adoption triad. Additionally, this article suggests best practices for attorneys who find themselves responsible for, as well as individuals who want to avoid, the legal effects of an intestate estate.

The Adopted Child

An adopted child is the son or daughter of their adoptive parents for all purposes, including inheritance. An adopted child and the adopted child’s descendants inherit from and through the adoptive parents and their kindred as if the adopted child were the biological child of the adoptive parents. An adopted child also may inherit through his or her biological parents, if the right to inherit was not terminated in the adoption court’s order terminating parental rights.

The Adoptive Parents

The adoptive parents and their kindred inherit from and through the adopted child as if the adopted child were the biological child of the adoptive parents.

Biological Parents

Biological parents may not inherit from or through the child they placed for adoption.

Adopted Adult

In the case of adult adoption, which is generally defined in Texas as the adoption of a person age 18 or older, an adopted adult may not inherit from or through the adult’s biological parents, and the biological parents may not inherit from or through the adopted adult.

Determination of Heirs Through Court Proceeding

When a decedent dies without a will, the decedent’s heirs, as well as the heirs’ respective shares and interests in the decedent’s estate, may be determined through a proceeding to declare heirship. In a proceeding to declare heirship, the court is required to appoint an attorney to represent the interests of any unknown heirs. The court-appointed attorney will perform an investigation into the identity and location of the decedent’s heirs, including any heirs who were adopted or placed for adoption.

Practical Considerations for Attorneys

An adoption placement may be difficult for an attorney to ascertain for various reasons. Sometimes women do not share that they placed a child for adoption, even with close family members or friends. Sometimes men are not aware of the existence of a biological child that was placed for adoption by the biological mother. Moreover, it is difficult to unseal parental termination orders, especially from years past, to determine if the child’s right to inherit from their biological parents was terminated. Despite these potential roadblocks, attorneys representing the applicant or the unknown heirs in a proceeding to declare heirship should make reasonable inquiries into whether the decedent ever: (1) placed a child for adoption, (2) adopted a child, (3) had a biological child that was adopted as an adult, or (4) adopted an adult. Such inquiries are required for due diligence, and if discovered, these actions can significantly impact inheritance under the laws of intestacy.

Avoid Surprises by Executing a Will

Texas inheritance laws do not prevent biological or adoptive parents from disposing of their property in any manner of their choosing through a valid will. Thus, if a decedent has a valid will, the scenario discussed above should never become an issue. Regardless of whether adoption is part of your story, all individuals are advised to obtain a comprehensive estate plan to devise their estate as they wish. The attorneys at Farrow-Gillespie Heath Witter LLP are here to help.

Jessica Dunne is an associate attorney at Farrow-Gillespie Heath Witter. Jessica has substantial experience in probate, guardianship, and trust litigation, with a special interest in adoptions. Jessica graduated cum laude from Baylor Law School in 2011 where she was the recipient of the Presidential Scholarship. Jessica is uniquely equipped to represent individuals who are pursuing adoption because she is an adoptive parent herself.

The Effects of Divorce on Wills and Estate Plans in Texas

May 21, 2018/in Estate Planning/by Elaine Price

Here is a guide to the legal effects of divorce on Wills, Trust instruments, and financial accounts in Texas.

Wills and Divorce in Texas. When a person’s marriage is dissolved by divorce, the former spouse cannot receive any payments, benefits or inherit property from that person’s will unless it expressly states otherwise. Not only is the former spouse not allowed to take any benefits or serve in a fiduciary role with regard to the estate, but neither can a relative of the former spouse do so, unless the relative is also a relative of the testator.

Trust Instruments and Divorce in Texas. A person can create a trust through provisions in a will. However, if that person’s marriage is dissolved by divorce, Texas law will operate as if the former spouse has disclaimed his or her interest in the trust. The divorce cancels the former spouse’s right to receive any property from the trust, to act as trustee, or to be appointed in any other fiduciary capacity. However, this rule applies only to trusts created in a will, and not to trusts created during one’s lifetime.

Divorce on P.O.D. and Multiple-party accounts. If a deceased individual has established a “pay on death”, multiple-party account, or any other beneficiary designation during a marriage that ends in divorce, the beneficiary designation of the former spouse, as well as of relatives of the former spouse who are not a relative of the decedent, are no longer effective.

Exceptions to the Rule. Some exceptions to the general rules occur under the following circumstances:

The Court’s divorce decree so orders.
Express terms in a trust instrument grant rights regardless of divorce.
An express provision of a pre-nup or post-nup relates to the division of the marriage estate.
The decedent reaffirms the survivorship agreement in writing.
There are express provisions in joint trust documents.
The former spouse is re-designated as the P.O.D. payee or beneficiary after a divorce.

This article brushes the surface of the many estate planning issues that can occur after a divorce in Texas. Be sure to review your estate planning documents yearly and seek the counsel of an attorney when there has been a major life event, such as marriage, birth, death, changes in investment accounts, property changes, or divorce.

Elaine Price practices in the areas of probate, heirship, and guardianship proceedings. Ms. Price is a graduate of the Thurgood Marshall School of Law and holds a Bachelor of Arts in political science from Prarie View A&M. Elaine was formerly with the law office of Rhonda Hunter.

How to Probate the Copy of a Lost Will

February 12, 2018/in Probate and Probate Litigation/by Chris Wilmoth

Illustration by Chris Elam

You’ve searched everywhere –the desk, file cabinet, footlocker, safe, attic, shed, and safe-deposit box at the bank. But you can’t find the original will.

You call the attorney who prepared it. No luck. No original can be found anywhere.

Or maybe you can’t tell whether the document you have is the original or a copy.

Can you still probate the will?

The good news is: Yes! You can probate a copy of the will.

The Steps to Probate a Copy of the Will

To probate a copy of the will in the state of Texas, first your application must include the names and addresses of both the beneficiaries and the heirs at law. While the beneficiary is anyone who receives something under the will, the heirs at law are determined by the laws of the state. The heirs might or might not be named in the will. If you are unsure of the testator’s heirs, consult your state’s probate code. After you have completed the application, you can give the application to an attorney to file with the court.

Second, the testator’s heirs need to be personally served with citation. This step usually includes a copy of the will and the filed application. Paying a process server or the sheriff or constable to serve citation can be expensive. You can avoid this expense by getting the heirs to sign a waiver of citation.

If there are heirs who don’t live in Texas or heirs for whom you don’t have an address, you can serve citation by publication.

The best approach is to get all the heirs to sign a waiver of citation. But if there’s any chance the heirs are going to oppose probate of the copy, it might be cheaper to do citation by publication.

After you have completed the necessary requirements, the next step is the hearing.

The Prove-up Hearing

Explanation

At the prove-up hearing, you will need to explain why the original will cannot be produced. Judges are generally lenient on this point if no one is contesting the will.

What the judge wants to know is that you looked for the original, couldn’t find it, and there’s no reason to believe that the testator, the person who wrote and executed the will, destroyed the original with an intention to revoke it.

When I was judge of Dallas County Probate Court #2, I heard everything from “The original was destroyed in a fire” to “It got lost while I was packing everything up to work for the President.”

You will also need to present evidence about the contents of the will. That’s not a problem when you have a true and correct copy of the original will.

The Testimony

Finally, you will need to offer testimony about the execution of the will. Typically, a will is accompanied by a “self-proving affidavit,” an affidavit that proves the testator’s witnesses have sworn under oath that they have signed and witnessed the will. The self-proving affidavit substitutes for live testimony about the manner in which the will was signed.

But wait, can a copy of a will be self-proved?

Self-proving Affidavit

When the original will is missing, the original self-proving affidavit is missing too.

Some courts let you offer evidence that your copy of the self-proving affidavit is a true and correct copy and that no one is questioning its authenticity. In that case, no live testimony concerning the execution of the will is required.

Judges who let you use a copy of a self-proving affidavit rely on Texas Rule of Evidence 1003 and case law applying that rule.[1]

Other probate judges make you bring a witness with personal knowledge of the facts and circumstances surrounding the execution of the will. These witnesses are commonly the subscribing witnesses who were in attendance when the original will was signed or the notary.

If the hearing is successful, the judge signs an Order admitting the copy to probate.

Conclusion

Every state has different rules, every court has different requirements, and every judge has different preferences. When seeking to probate a copy of a will, it is best to hire experienced counsel who understand the special rules that apply to copies to avoid surprises at the prove-up hearing.

_________________________________________________________________________________

Hon. Chris Wilmoth is a seasoned probate, guardianship, and trust litigator. He also conducts mediations and accepts appointments as a special judge. Mr. Wilmoth served as Judge of Dallas County Probate Court Number 2 from 2011 through 2014. He earned a Bachelor’s degree, master’s degree in English, and Juris Doctorate from Southern Methodist University, where he was a member of the Order of the Coif.

[1] See, e.g. Vince Poscente Int’l, Inc. v. Compass Bank, 460 S.W.3d 211, 216-17 (Texas. App. – Dallas 2015) (refusing to apply a local rule that requires “good cause” for admission of a copy).

Estate Planning | Farrow-Gillespie & Heath | Dallas, TX

Capacity to Sign

June 14, 2017/in Estate Planning, Guardianship, Probate and Probate Litigation/by Christian Kelso

Different legal actions require different levels of mental capacity to be valid. For example, the level of mental capacity required to sign a will, referred to as “testamentary capacity,” is lower than the level of capacity required to sign a contract, called “contractual capacity.” The various standards are discussed below.

Capacity to Sign a Will – Testamentary Capacity

To have testamentary capacity, the will signer must satisfy five requirements. First, the signer must understand the business in which they are engaged. Second, the signer must understand the effects of making a will. Third, the signer must understand the general nature and extent of their own property. Fourth, the signer must know to whom their property should pass or is likely to pass. And fifth, the signer must be able to collect all of this information in their mind at once and understand the how it all connects. They also must not suffer from an “insane delusion” that affects the will, nor be under undue influence from an outside party.

A person signing a will may do so during a lucid interval (sometimes also known as a “moment of clarity”), which is a time of mental capacity that is both preceded and followed by periods of mental incapacity. As long as the signing occurs during this lucid interval, the person has capacity to execute the document at issue.

Testamentary capacity must be proven only if the will is challenged by someone during the probate process. The party seeking to uphold the will (the will proponent) is the party who must prove that the testator did, in fact, have capacity at the time of the will signing. To guard against claims to the contrary, the estate planning attorney should be certain that the testator has capacity at signing, and should not allow someone with questionable capacity to execute a will.

Capacity for Other Legal Arrangements

In contrast to testamentary capacity, the standard for legally signing other documents is generally higher.

Contractual Capacity

Contractual capacity is the mental capacity required to validly execute a contract. Contractual capacity requires that the contracting person appreciates the effects of the act of signing the contract, and understands the nature and consequences of signing the contract as well as the business that they are conducting.

Power of Attorney

Although not entirely clear under Texas law, proper execution of a power of attorney probably requires contractual capacity. The reason is that the POA is valid during the signer’s lifetime and can have a profound effect on business and financial transactions.

Donative Capacity

Donative capacity, or the capacity to make a gift, is an elusive concept in Texas, but other states require something that appears to be higher than contractual capacity. Common requirements are that the donor of the gift must understand the nature and purpose of the gift, the kind and amount of property given, who is a reasonable recipient of the gift, and the effect the gift will have on the donor. Some states go so far as to require that the donor understand that the gift is irrevocable and that it will reduce the donor’s own assets.

Health Care Decisions

The capacity required to make health care decisions is more than mere mental capacity. Patients must give “informed consent” to all health care procedures, which requires that the patient be competent and that the consent be given voluntarily. The consent is informed when the health care provider gives the patient the information the patient needs to make the right choice.

The Effect of a Lack of Capacity

If a person does not meet the requisite mental capacity requirements when he or she enters into a legal arrangement, the arrangement and its supporting documents are generally void and unenforceable. Third parties can challenge these documents if they believed the person lacked capacity when the documents were signed. For a will, that means bringing a contest during the probate process.

Michael H. Wald, The Ethics of Capacity, 77 Tex. B.J. 975 (2014).
Rudersdorf v. Bowers, 112 SW2d 784, 789 (Tex. Civ. App.—Galveston, 1938).
Tieken v. Midwestern State Univ., 912 SW2d 878, 882 (Tex. App.—Fort Worth, 1995).

Catherine Parsley was an intern at Farrow-Gillespie Heath Witter, LLP in 2017. Catherine served as a judicial extern for Chief Justice Nathan L. Hecht, of the Supreme Court of Texas. She holds a B.S. in communications studies, cum laude, from the University of Texas at Austin.

Christian S. Kelso, Esq. is a partner at Farrow-Gillespie Heath Witter LLP. He draws on both personal and professional experience when counseling clients on issues related to estate planning, wealth preservation and transfer, probate, tax, and transactional corporate law. He earned a J.D. and LL.M. in taxation from SMU Dedman School of Law.

Estate Planning | Farrow-Gillespie & Heath LLP | Dallas, TX

Do I Need a Will?

January 17, 2016/in Estate Planning, Guardianship/by Christian Kelso

One of the most common misunderstandings about estate planning is the belief that it is only for the wealthy. Anyone who owns property of any kind has an estate. Basic estate planning is an important component of an organized and responsible life, whether or not your estate is large enough to be subject to federal estate taxes. If you own any property, or have minor children, you should have a Will. Estate planning includes more than just a Will, however. It includes planning for potential disability during your lifetime, designating trusted individuals as medical and/or financial agents with power of attorney, designating a guardian to take care of your minor children in the event both you and your spouse die or become incapacitated, and other critical decisions. For those reasons, we include an entire package of the basic estate planning documents with your Last Will and Testament.

See list of basic estate planning documents.

Many people (as much as half of the population) will experience a period of either physical or mental disability before their death. Lack of planning can make caring for a disabled individual expensive and inconvenient for the caregiver. Good planning preserves a person’s dignity, as well as his or her assets, which can be used for the person’s care and can be preserved to the full extent possible for the next generation. Your loved ones will be grateful to you for having your affairs in order.

Probate Law | Farrow-Gillespie & Heath LLP

Dallas Probate FAQs

January 13, 2016/in Probate and Probate Litigation/by Jessica Dunne

Can I probate a Will in Dallas without an attorney?

Unfortunately, no. The Probate Courts do not allow individuals to appear on behalf of themselves. For all purposes in Probate Court, you must hire a lawyer.

I’ve been appointed as the Executor of a Will. What am I supposed to do?

The first things you should do are (1) find and secure the original Will; and (2) contact a probate attorney to assist you. Your probate attorney will explain exactly what will happen, and exactly what you need to do.

I am the Executor, and I have the original Will. Why does it need to be probated? Why can’t I just give away the property according to the Will’s terms?

Although the Will names you as Executor, the law says you are not officially the Executor until you qualify and receive your Letters Testamentary from the probate court. You need authority from the probate court to transfer the property to the new owner — especially if any of the property to be distributed is held under a “title,” such as a house, vehicle, bank account, or real estate. By probating the Will, you obtain the authority (by receiving Letters Testamentary) to legally distribute the decedent’s property and to transfer ownership to the Will’s beneficiaries.

What if I want to contest a Will?

Contact a probate attorney immediately. If you want to contest a Will, you have a limited time in which to do so; and under the rules of Probate Court, you cannot proceed without the assistance of an attorney.

What if the Will doesn’t provide for an independent representation?

If the Will does not provide for an independent representation, or if the Will is otherwise not in order, the process is lengthier, more difficult, and significantly more expensive. (This situation emphasizes why it is important for anyone who owns property to have a properly drawn-up Will.)

What if there is no Will?

If there is no Will, and the decedent owned property worth less than $50,000, it is possible to file a “Small Estate Affidavit” to transfer the property. If the decedent owned property worth more than $50,000, the next of kin (or other person with an interest in the estate) must retain an attorney to have the Probate Court legally declare the names and shares of the decedent’s heirs.

All the deceased person owned was his or her home. Does the Will still need to be probated?

Yes. Otherwise, it is not possible to maintain the “chain of title” necessary to protect and transfer ownership in the house. However, an abbreviated and less expensive form of probate is available in Texas when a decedent owns only a home and no other significant property. The procedure is called a “Muniment of Title.” Be sure to tell your probate attorney at the initial consultation that you believe the only property in the estate is the decedent’s house.

I have looked everywhere for the original of the Will and can’t find it. What should I do?

It may be possible to probate a copy of the Will. Also, it may be that the decedent had a safety deposit box to which you do not have access. We can assist you in finding the box and obtaining a court order to gain access to it.

Jennifer Lewis | Farrow-Gillespie & Heath LLP | Dallas, TX

What do “Basic” Estate Planning Documents Include?

January 2, 2016/in Estate Planning/by Jennifer Lewis

Even if an estate is not large enough to be subject to the Federal Estate Tax — and most are not — estate planning is a component of an organized and responsible life.

Good estate planning enables a person to transfer his or her property at death in the fastest, easiest, least expensive manner possible; and it also enables a person to take advantage of the powers granted by the state of Texas to make healthcare choices and to plan appropriately for disability, whether temporary or permanent.

Your loved ones will be grateful to you for leaving your affairs in order. Completing these estate planning documents can provide peace of mind for you and your family.

We prepare the following basic estate planning documents at an affordable fixed fee for individuals and families with estates valued at less than the federal estate tax threshold.

Last Will and Testament, validly prepared and executed under Texas law
Statutory Durable Power of Attorney
Medical Power of Attorney
HIPAA Authorization
Directive to Physicians (often called a Living Will)
Appointment of Guardian for Minor Children
Designation of Guardian Before Need Arises
Burial Instructions

The Will

Every adult who has legal capacity has the authority to designate how his or her assets and liabilities will be distributed at the time of death. To protect that right, the state requires that a Will be properly executed to be considered valid. A valid Texas will can name an Independent Executor to serve without bond and with minimal court supervision. Probate is the legal process of proving the Will in court, settling the estate, and distributing the assets. In Texas the cost of probating a Will is very reasonable. Probate can be very expensive, however, if an individual has assets and dies without a valid Will. Executing a valid Texas Will can go a long way toward preserving your assets for the intended beneficiaries.

Statutory Durable Power of Attorney

The Texas Statutory Durable Power of Attorney is a document that allows you to designate someone to manage your financial affairs or transact business on your behalf in the event it should become necessary or convenient. The powers granted in the document can become effective immediately, or can be designated to become effective only if you become incapacitated. In either case, the powers will remain effective even after your incapacity – hence the use of the word “durable.” This document can be very powerful. The state of Texas has provided a statutory format to be used to help improve acceptance of the document by third parties. Without a Statutory Durable Power of Attorney, a Guardianship would likely be required to take over an incapacitated person’s financial affairs. Guardianships require continuing oversight by the Court, are very expensive, and open a person’s private business to public scrutiny. Having a Texas Statutory Durable Power of Attorney is the estate planning equivalent of a “stitch in time.”

Medical Power of Attorney

The Medical Power of Attorney allows you to designate the person who will make your healthcare decisions in the event you are unable to do so – and only in that event. This document is always important to have. It is particularly valuable where someone other than a spouse will be making those decisions, or when members of a family have differing views of what should happen. If you remember the case of Terry Schiavo in Florida, you should be aware that if she had only executed a Medical Power of Attorney – whether in favor of her husband or her parents – those parties would not have spent the 15 years and untold amounts of money they ultimately spent fighting in court over control of her healthcare decisions.

Directive to Physicians

The Directive to Physicians is sometimes called a Living Will. It allows an individual to decide in advance if he or she wishes to have artificial measures used to sustain life when the person is near death. Many people do not wish to be kept alive by means of artificial respirators or feeding tubes if they are not able to sustain life on their own. Without a Directive to Physicians the doctors involved may be required to use all measures available to sustain life. Proper execution of this document can help maintain a person’s dignity and preserve assets for loved ones. Most importantly, the document allows you to exert maximum control over what happens to you in the event you are unable to speak for yourself.

Designation of Guardian Before Need Arises

The Designation of Guardian Before Need Arises is a relatively new statutory document in the state of Texas. It allows you to designate in advance who your guardian will be should you ever need one – for example, in the event of a debilitating stroke, or an injury that results in incapacity (in which state individuals sometimes linger for many years). The document also allows you to disqualify certain individuals from ever becoming your guardian. This document can bring peace of mind to the maker, and can assist the court in making a proper guardianship designation if the need ever arises.

Appointment of Guardian for Minor Children

If you have minor children, and both you and their other parent die or become incapacitated, the children will need to be cared for by someone until they reach the age of majority. The Appointment of Guardian for Minor Children allows you to choose who that person should be – whether it is a family member or a friend. In the event you do not designate someone yourself before the need arises, your family members may dispute the matter; and in that case, a court of law would decide who will raise your children. You can avoid that possibility and maintain control over your children’s future by executing a Guardian appointment.

Burial Instructions

It is possible to designate a particular person to be in charge of decisions affecting burial and funeral arrangements; and once designated, that person can enforce the right to do so. Within the same document, you may specify your burial instructions.

Conclusion

The documents discussed above form the basic estate planning package. If the estate is large enough to be taxable, certain complex estate planning documents and techniques can minimize and in some cases eliminate the tax liability. For most of us, however, the bottom line is this: Good advance planning significantly eases the emotional and financial burden of disability and death on our loved ones.

The Probate Process for a Valid Texas Will

November 17, 2015/in Probate and Probate Litigation/by Jennifer Lewis

The Executor of a Will has the responsibility of submitting the Will for probate. Under the rules of the probate courts, an individual desiring to probate a Will must be represented by an attorney; and the attorney must appear in court on behalf of the executor of the will whenever a court appearance is required. The first steps an Executor should take are (1) finding the Will and putting it in a secure place; and (2) contacting a probate attorney.

If a Texas Will properly provides for an Independent Representation, the role of the probate court (and thus the expense to the estate) is minimized — and the procedure is quick and easy. If the Will is in order, and no will contest is filed, the Will can be probated in as little as two or three weeks, at a fixed fee.

Assuming that there is no will contest or other significant delay or complexity, the usual procedure for probate and administration of a valid Texas will naming an independent executor is as follows:

As your attorneys, we file the original will and an application for probate with the probate court.
A 10-day waiting period ensues while the court publishes notice that the will has been filed.
After the 10-day waiting period, a hearing is held on the application for probate.

The Executor of the will (or someone close to the decedent whom the Executor designates) must accompany us to the hearing.
If the will is being probated in Dallas County, the hearing is held on the 2nd Floor of the Records Building, on the corner of Main Street and Houston, in downtown Dallas.
The Executor must testify as to the date of death and other facts. We will go over the testimony with the Executor in advance of the hearing, and we will answer any questions that the Executor has about the hearing or any other aspect of probate.
To serve as Executor, a person must not be
- a legally incapacitated person;
- a convicted felon;
- a non-resident of Texas, unless the person appoints a resident agent in this State; or
- a person whom the court finds unsuitable.

The Executor must sign the Executor’s Oath, which will be notarized and filed with the court clerk.
After the hearing and the filing of the Oath, the court clerk will issue “Letters Testamentary.” The Letters Testamentary are certified documents that serve as authority for the Executor to do everything that must be done – e.g., transfer title to property, access bank and brokerage accounts, sell assets, distribute cash and other assets to the beneficiaries, etc. — to administer the estate.
We will send the following notices; and we will then file with the court clerk proof that the notices were sent:

Mandatory published notice (in the Daily Commercial Record) to general unsecured creditors.
Mandatory notice by certified mail, and a copy of the will, to each of the named beneficiaries.
Mandatory notice by certified mail to each secured creditor, such as mortgage holders.

The Executor must arrange for a final tax return to be filed for the decedent, and possibly for a tax return to be filed on behalf of the estate. We can recommend a CPA for those tasks, if you do not already have one who is experienced in filing estate returns, or we can do the returns ourselves, as you prefer.
The Executor must contact all insurance companies with which the decedent held life insurance policies, and all institutions at which the decedent held retirement accounts, to ascertain whether the proceeds are probate assets or non-probate assets. We will do these tasks for you if you prefer; and we can advise how to distribute the proceeds from these assets.
The Executor is responsible for making a written Inventory of the estate. We can assist in this process to whatever degree the Executor prefers.
In the event the deceased person owed money to creditors, and the creditors file a valid claim with the Executor, the Executor must pay those valid claims out of the estate’s funds.
After the Inventory is completed and filed (or an affidavit of completion and delivery is filed instead), and valid creditors are paid, the Executor must proceed to carry out the terms of the will. The Executor may need to sell certain assets, but in any event, the Executor must transfer and distribute all of the bequests to the named beneficiaries. We can assist you in that process at an hourly charge, including drafting any deed transfers or other documents that are necessary. Once Letters Testamentary are obtained in an Independent Representation, no permission from or involvement by the court is necessary to sell any of the assets, or to distribute the bequests. However, the Executor should keep good records of every transaction; and in some estates, it is a good idea to obtain receipts and releases from each beneficiary as his or her distribution is completed.
Once the terms of the will are satisfied, the process is complete. Nothing further needs to be filed with the court.