Texas Wills

Asset Protection Secrets Revealed

Here’s yet another story on why avoiding probate is a good idea.  I represent a North Dallas, Texas man whose wife died in an auto accident.  She died “intestate” meaning without a Will.  In fact, she didn’t have any estate planning in place.  She didn’t have a Will, Trust, Power of Attorney, Medical Power of Attorney, Advance Directive / DNR (Do Not Resuscitate Order) or anything else.  It just so happens that the wife purchased their family home before she and her husband married, making it her separate property and not their community property.  The difference is really big in the eyes of the law.  The husband wants to sell the house and move out-of-state near his parents so that he can get some help raising their young children. 

Under the Texas Law of Intestacy, and the law of Descent and Distribution, since the house was separate property, the children will receive ownership of the house subject to the husband’s life estate.  But, since they are minors, the court is going to likely require that the estate be administered, that a guardian ad-litem is appointed for the children, and the court will scrutinize any sale of the house to make sure that the children’s best interests are protected.  In short, the process is going to be long, expensive and frustrating because of the court oversight.

Since she didn’t have a Will or a Trust or any other legal planning, we will never know what the wife wanted, but, like most people, we believe that she would have wanted it to be easy on her husband and children and not lengthy and expensive.  Her husband is now in a real bind because he has to continue to make house payments on the house note while he pays rent on a rent house down the street from his parents.  It will likely be six months before he’s in a position to put the house on the market and, the process is even more complicated because he’s now living out of state and has to travel back and forth to Dallas for court.

If they had been clients of ours before the wife passed away, through the use of a Trust, the husband could have sold the house immediately without the delays from court intervention or oversight and without legal expense.  They would likely have had a Will too, but as a “secondary” document, with pour-over provisions.  That means that their primary estate planning tool would have been their Trust with the Will serving as a back-up.

It’s a sad story made even sadder by the predicament that the family is left with.  The frustrating thing is that it all could have been easily avoided.  If you want your family to avoid complications like these, contact our office so that we can speak about the options available to you.

Donald R. Jones, Attorney

The Jones Law Firm

3109 Carlisle St., Suite 100

Dallas, Texas 75204

214.220.2130 office | 214.220.2131 fax

don@jonesestateplanning.com

www.JonesEstatePlanning.com

www.GetMyAffairsInOrder.com

www.NoLawyersNoJudgesNoCourtrooms.com 

Texans Experience Estate Planning Mishap

Here’s another story and another reason to avoid Probate.  I was handling an out-of-state probate (I’m licensed to practice in Texas and a couple of other states) for my deceased cousin a few months ago.  My cousin had been represented by another attorney in the preparation of his Will and had spent a good bit of money on legal fees in the process.  (I would have advised against a Will and for a Trust instead!)  After he passed away, his immediate family came to me for help with his estate and to probate the Will.  

I began preparing the pleadings and the accountings and worked closely with my cousin’s family.  We filed the original of the Will with the Clerk of Court, as we are required, and the Clerk acknowledged receiving it.  Several weeks went by while we waited on the Court to “confirm” the appointed Executor.  When it got to the point that it appeared that it was taking too long, (two months) we contacted the Clerk to see if there was a problem.  The Clerk called us back and said that the original Will was missing from the Court’s records.  The Clerk went on to say that since the Will was missing that we would have to re-draft and re-file our pleadings to change from a “testate” proceeding to an “intestate” proceeding (meaning without a Will). The Clerk told the family the same and they were inconsolable.  

They knew how much effort and expense my cousin had gone to in preparing the Will.  They also knew that if the Clerk was correct and the matter had to be re-filed as an intestate matter, that the law of descent and distribution would control, that his estate would be divided amongst many heirs rather than the few that had been named in the Will and that they would likely receive significantly less than my cousin had intended. 

Fortunately, the Clerk was wrong in her opinion that we needed to re-file the matter, and, about two weeks later, the Will was found.  It had been placed in another probate file by accident.  We eventually worked through the matter but not before the family endured the additional worry of the lost Will and the fear of having to share my cousin’s estate with other heirs.  If my cousin had relied upon a Trust instead of a Will for his estate planning vehicle, all the angst and all the probate expenses could have been avoided.