News & Resources

Do I Really Need to go to Probate Court?

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Most people who lose a loved one invariably wind up having to determine how to settle their deceased loved one’s estate. Here are some answers to the most frequently asked questions regarding what to do.

My family member died without a will. Do I need to go to Probate Court to handle the estate?

Often times, there will be property that the deceased family member owned that must be properly titled through a probate court. Most typically, it is a home. Many families find this out when they try to sell the home and a prospective buyer or title company objects to the seller’s ability to sell it. Even though the family may have the will, which clearly spells out their right to inherit the home, this is not enough. In order to satisfy the buyer or title company, the deed must be corrected to show proper ownership and chain of title. In addition, it may be difficult to gain access to all of the deceased family member’s financial accounts unless the surviving family member(s) has formal letters issued by a probate court authorizing him or her to act on behalf of the estate.

My family member died with a will. Do I need to go to Probate Court to handle the estate?

The answer is generally the same as above, as it relates to property. A will by itself will typically not be enough to convince others to transact business with a representative of the estate. What’s more, as an executor named in a will, there are very important reasons for ensuring that the will is valid, binding and is administered properly. This is best done under the supervision of a probate court.

My family member’s estate is small. I don’t want to spend too much in legal fees because there is not much there to begin with.

Under Texas law, there is a process for small estates, which are generally defined as those under $50,000. Also, if the only meaningful asset is a home, there is a process called “Muniment of Title” which allows a representative to effectively obtain correct title, without observing all of the administrative procedures typically involved in probating a will. Other processes, such as “independent administration” may allow for a cost effective, expedient settlement of the estate.

Child Support and Visitation

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Here is a question that I often hear: “If my ex-husband has stopped paying child support, can I prevent him from visiting our child?”

The answer is no. Though it might seem unfair on its face, failure to pay child support is not a defense to violating a court’s order with respect to the possession of and access to a child.  Child support and visitation should be considered separate obligations. If there is a court order in place granting a parent access to the child, failure to deliver the child to that parent as ordered could result in being held in contempt of the court’s order. Under the Texas Family Code §157.007, the only statutory defenses for failure to comply with an order for possession and access are:

  • The involuntary inability to comply with the order; and
  • The voluntary relinquishment of actual possession and control of the child by the parent entitled to possession.

From a moral standpoint, a parent should not deliver the child if he or she feels that it would place the child in imminent danger, but the parent withholding access should immediately revisit the court where the order was issued, since it is safe to assume that something else is going on that the court should be informed of.

As a practical matter, it is not uncommon for a parent with a child support obligation to fall behind in their scheduled payments, and courts are loathe to permit a parent to enforce payment on their own by using access to the child as leverage. The remedies for failure to pay child support are to contact the Child Support Division of the Texas Attorney General’s Office (where support is paid if the parent has set up with the AG’s registry) or to return to the court that issued the order regarding child support. Rest assured that the arrearages or “back support” can be counted as costs against the nonpaying parent, with interest.  Denying the other parent access to his or her child without court permission is a sure fire way to attract a negative response from a judge.

What are Probate Courts and why are they different?

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The Texas Constitution grants the State Legislature the authority to determine which courts have jurisdiction over probate matters, including wills, guardianships, mental health commitments and other matters concerning the deceased or incapacitated.

In most counties, the constitutional County Court has original probate jurisdiction.  This is a court that hears a wide array of civil cases in addition to probate matters.  In larger counties and metropolitan areas, there are Statutory Probate Courts (typically referred to as simply “Probate Courts“) that are dedicated exclusively to probate matters.  This is due to the volume of probate matters in these counties and the necessity to have specialized courts to deal with them.  Since probate cases are a unique and often complex area of the law, it is beneficial to have judges that exclusively administer probate matters.  The judges in these courts typically have a background in probate practice, so they are familiar with the intricacies of the Texas Probate Code.  There are 16 of these Probate Courts in Texas.  They are located in 10 out of the state’s 15 largest metropolitan areas and have original and exclusive jurisdiction over their counties’ wills, probate matters, guardianship cases, and mental health commitments.

The Probate Courts will generally have their own division of the clerk’s office and require a practitioner that is familiar with the court’s local rules, procedures and staff.  The Probate Courts in Texas are:

County       Major City (#Probate Courts)

Bexar          San Antonio (2)
Collin          Plano/McKinney (1)
Dallas          Dallas (3)
Denton        Denton (1)
Harris          Houston (4)
Hidalgo        McAllen (1)
El Paso        El Paso (2)
Tarrant       Fort Worth (2)
Travis         Austin (1)

If you reside in one of these counties, it is likely that these probate courts can have jursidiction over your probate matter.

Designating a Guardian

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A guardianship is a court-supervised administration for a minor or incapacitated person.  There are two types of guardianship in Texas.  Guardianship of the Person is where a guardian is appointed to take care of the physical well-being of the minor or incapacitated person.  A Guardianship of the Estate is where a guardian is appointed to take care of the property of the minor or incapacitated person and make financial decisions on his or her behalf.  Although many guardianship actions involve a single guardian for both types of guardianships, they can be separated administered by different individuals.

Some of the most frequently-seen incapacities seen in probate courts are Alzheimer’s Disease, dementia and victims of stroke.  In these instances, it is possible to have a pre-designated guardian in place to ease the already challenging guardianship process.  If a court determines that a guardianship is required, Texas law provides a priority list for selecting the guardian.  If the person that is the subject of the guardianship (called the “Ward”) is an adult, then the priority for selecting a guardian is as follows: the person designated by the Ward in a properly executed Designation of Guardianship, the Ward’s spouse, next of kin, then suitable non-relative.  Much like having a priority set forth in a will, a designation of guardianship ensures that selection of a guardian is not left in the control of a court.

A Designation of Guardian form must be properly drafted and executed in order to be valid.  Much like medical directives and powers of attorney, a Designation of Guardian is an important piece of one’s estate planning and should be considered as a planning mechanism.  Bearing in mind that there may be different individuals that can take care of the physical and emotional needs versus the financial needs of the ward, or that there may be “co-guardians” who serve jointly, a person designating his or her future guardians should carefully consider how they would like to be taken care of in the event of an incapacity.

Simple Divorce in Texas: Do It Yourself?

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So you’ve tried everything and as far as you are concerned, your marriage is over.  What now?  Well, you know that you will need a divorce so you can separate out your property and debts and  go your own way.  You would like a simple divorce unaccompanied by dilemmas and complications. You hope to bring the whole thing to a speedy but satisfactory conclusion.  But should you do it yourself or hire someone?  Here are some things to consider.

The filing fee, in most counties, is around $250.  That is simply the fee to file your petition for divorce.  There are very specific allegations that you will have to “plead” in your petition for divorce in order for the court to have jurisdiction.  Without proper jurisdiction, your divorce goes nowhere.  Among other things, you will have to plead that you have been domiciled in Texas during the preceding six months and a resident of the county you are filing in for 90 days preceding the divorce.  You will also have to allege the grounds for your divorce, whether fault is involved or not.  Texas permits “no fault” divorces, but they must be plead with proper language.  Other formalities such as discovery and protective order statements must be made in the petition.  As with any other lawsuit, you are required to “serve” the other party with the lawsuit in an official manner, such as though a Sheriff or Constable authorized to serve lawsuits.  This can involve time and additional cost.  You may obtain a “Waiver of Service” from the other party to avoid this step, but the waiver will have to be properly drafted and executed.  You are then required to wait the statutorily-required 60 days before your divorce can proceed to trial.

Should you have children or a significant amount of property, an agreement of the parties is helpful, but you must have some familiarity with what courts will permit.  A lot of decisions must be made concerning custody and property division.  Although courts give parties some latitude in agreeing to terms, not everything will be permitted.  Some courts are inclined to follow “standard” child visitation guidelines, so you must be prepared to demonstrate why your visitation preference should “trump” standard guidelines.   You will then be required to present the court with a properly drafted decree or order for the judge to review, approve and sign.  This is often where “do it yourself” forms are a problem.  Since the divorce decree is the document upon which your divorce and property and custody agreement will stand, it is important that it be drafted correctly.

If your divorce is uncontested and terms have been agreed upon, you may proceed to a rather expedient “prove-up” before the court, where testimony is presented about the agreed upon divorce decree. County courts often have specific local rules or standing orders that must be followed, so it is important to be aware of these.  Otherwise, contested issues must be worked out at a trial.  Sometimes, what seems like a simple, uncontested matter, even if it is only one issue in the overall divorce, becomes confrontational when unforeseen issues regarding custody or property arise.  All it takes is one issue to force the case to trial.

In conclusion, parties can handle their own divorce efficiently is they are willing to do spend significant time and effort researching pleadings and navigating the procedures.   Simply stated, there are no “one size fits all” forms out there.  It is often easier to engage an attorney to handle a simple divorce and work on negotiating a reasonable, fixed fee in the event that the divorce remains simple and uncontested.  Should the nature of the divorce change to a contested matter, a different fee arrangement or agreement to dismiss the suit may be worked out.

 

Statutory Durable Powers of Attorney

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Planning for what happens upon your death is important, but what about an accident or even that causes you to be unable to handle your affairs? A Statutory Durable Power of Attorney becomes effective during a period of disability or incapacity, thereby avoiding a guardianship. Guardianship can be an extremely expensive and burdensome process, so having a well-drafted Statutory Durable Power of Attorney is a critically important part of a well-drafted estate plan. The Statutory Durable Power of Attorney permits an agent to act for you from the moment of your disability or incapacity until revocation or death. It also lets your specifically control what your agent can and cannot do for you, a power which you might not have in a court-supervised guardianship proceeding.

A Statutory Durable Power of Attorney typically contains thirteen specific powers that your agent may exercise on your behalf after incapacity or disability. The only limit on exercise of any of those powers is if you specifically delete any such power, which you may do by striking that power from the list. The Statutory Durable Power of Attorney can take effect immediately or be effective on a “springing” basis, that is, upon the disability or incapacity of the principal.

There are a number of ways to ensure that you can protect yourself from someone abusing their authority or trying to initiate the Power of Attorney prematurely. A discussion with a qualified estate planning attorney should help you in making sure that your agent is aware of the document, but not being able to present it until such time as your disability or incapacity.

2011 Legislative Update

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A host of issues were addressed by the 82nd Session of the Texas Legislature.  A few of the significant changes to the Family and Probate Codes follow.

Spousal Maintenance.  Similar to what some states refer to an alimony, “spousal maintenance” may be ordered if the spouse seeking maintenance will lack sufficient property, on dissolution of marriage, to provide for the spouse’s minimum reasonable needs.  Changes to the duration and amount of spousal maintenance were made by House Bill 901, including an amendment to Texas Family Code § 8.054 relating to the duration of maintenance, which now depends upon whether a marriage lasted 10, 20 or 30 years – and changes to § 8.055 of the Family Code dealing with the limit of spousal maintenance, which increased from $2,500 to $5,000 [and includes clarification of “gross” income].

Access to a Child Under Three.  Senate Bill 820 amended the Family Code so that in rendering a possession and access order, the court shall consider evidence of all relevant factors, including 13 factors set forth in the § 153.254 of the Texas Family Code.

Self-Proving Wills.  Revisions to Texas Probate Code § 59 make it easier to execute a self-proving will as the testator and witnesses only need sign once, rather than twice under the traditional method.  This method is optional, and the traditional two-step method will continue to be valid.

Notice to Beneficiaries.  The beneficiary notice requirements of § 128A of the Texas Probate Code have been simplified so that the Personal Representative of a decedent does not have to provide notice to beneficiaries 1) whose aggregate gifts total less than $2,000, 2) who have received all of their gifts within 60 days of an order admitting the will to probate or 3) who are sent a written summary of their gifts and waive right to notice in an instrument signed by the beneficiary and filed with the court.

Probate Inventories.  Some of the requirements of Texas Probate Code § 250 have been eased.  For example, inventories are no longer required to list whether a decedent’s property is owned in common with others and is no longer required to list names and relationships of those co-owners.