Husband dies with no will, leaving wife with inheritance questions

Ron Lipman is a Houston attorney that I have turned to for assistance on various legal matters.  He writes a column for the Houston Chronicle and recently addressed a question on inheritance rights in Texas.  Here is that article.

houston-chronicle1

Q: My husband and I were married for 48 years when he died without a will. We have one child together. He was married previously and had two children by that marriage, but they were adopted by their new stepfather over 50 years ago. Are those two children still considered my husband’s legal heirs? The only asset in my husband’s name is our community property home that we have owned for decades. I need to have his name removed from the deed to sell it. How can I accomplish this?

A: Under Texas law, your husband’s two children from his prior marriage are considered to be his heirs, and they do inherit from him, with one exception.

That exception applies if your husband’s parental rights were terminated by a court and that court eliminated the children’s inheritance rights. Therefore, you need to find the paperwork associated with the adoption of the two children back in the 1960s to see what the court’s order stated.

If your husband’s two children do inherit from him, then your child will also inherit from him. The three children would become equal owners of your husband’s half interest. But if the two children don’t inherit, then your husband’s half of the home would pass entirely to you (and your child would not inherit).

Clearly, it is important for you to find out what the court order stated before you do anything else.

You also need to understand your homestead rights as a surviving spouse. When your husband died, you became entitled to live in the home for as long as you want (assuming the two of you never signed a marital property agreement to the contrary). No one can force you to move out, even his two children if they did inherit a portion of the home.

Therefore, if your husband’s half of the home did pass to the three children, you might want to consider not selling the home. When you move out, you forfeit your homestead right.

With regard to your second question, removing your husband’s name from the deed might not be necessary. Instead, you might simply need to establish who owns the home in a manner which is sufficient for a title company to insure title when you sell it.

An Affidavit of Heirship might be good enough, or a Small Estate Affidavit might work. If you have to go through probate, it will be very complicated and expensive because your husband died without a will. You would therefore be best served by talking with a title company or an attorney to determine which approach is the quickest and least expensive way to clear up title.

Ronald Lipman, of Houston law firm Lipman & Associates, is board certified in estate planning and probate law by the Texas Board of Legal Specialization.

Problems like these can be avoided by having a well prepared will.  If you or your spouse have children from a prior marriage, it’s very important that you prepare a will.  Otherwise, you too may be in a situation like this lady.

Posted in Community Property, deed, Divorce, Estate Planning, Homestead, Inheritance, Marital Agreement, Probate | Tagged , , , , | Comments Off

Planning for the Long Term

As with so many aspects of planning long-term_planningfor our futures, many people try to hide their head in the sand when it comes to planning for living a long life that might involve a period of time when our expenses are high and our resources are not as robust was we would like.  So take your head out of the sand and think about these planning ideas for the long term.

1. Life Insurance or Annuities.  Life insurance products have changed dramatically over the years.  In addition to protecting our families during our earning years, insurance products can also be used as a resource in later years if an unexpected need arises.  An insurance expert can discuss how one product might be able to change over time to serve different purposes for you.  Long term care can be built in to life insurance policies or separate long term care policies can be purchased.  Medicaid qualifying annuities are also available.  In many of these products any money that’s not spent on care during your life gets passed to heirs as a death benefit.

2. Long-Term Care Insurance.  As noted above, insurance products are available specifically to help cover the cost of long term care.  A large percentage of us will spend at least some time in a facility for which long term care coverage will apply.  This insurance product helps provide for the cost of long-term care. Long term care is not simply for a nursing home at the end of life.  If you have an extended rehab from surgery, you may need qualifying care for several months before returning to your normal life.  Long-term care insurance is for people who can’t perform basic daily activities and need someone to help them. Many people don’t feel comfortable relying on family members financially so start planning now to have money available for your long-term care.

3. Medicaid.  Medicaid covers long-term care costs for people whose income and assets fall below a certain level. It can only be used when you have no other financial resources to cover the cost of your care and your options may be limited by the programs that are available to Medicaid patients. It’s a good idea to save as much money as possible in your younger years so you’re not fully dependent on Medicaid to help you in your later years.  If you think you might eventually need government assistance to pay your medical expenses, you should contact an attorney who specializes in this area.  Many people think they know what they need to do and end up impoverishing themselves unnecessarily.  Through careful and expert planning many assets can be retained for the other spouse or family members.  But don’t wait until the last minute and don’t do planning on your own in this area.

4. Personal Savings and Investments.  Some people will be able to use their own assets for long-term care by calculating an amount of money to set aside to pay for their care, or by savvy investment plans over the years. Just make sure you understand the Medicaid guidelines that might affect your spouse and other family members.  As with Medicaid planning discussed above, it is a good idea to consult with an elder law attorney when doing this planning.

Each option has its advantages and disadvantages and can be very complicated to understand. Make sure you talk to an attorney, insurance agent, and financial advisor to discuss what long-term care plan works best for you and your family.

Posted in Debts, Elder Care, Estate Planning, Financial Planning, life insurance | Tagged , , , , , | Comments Off

Do You Know Your Probate Terminology?

The Dallas Morning News had a great column this week written by Virginia Hammerle on terms heard when talking about probate.  I am reprinting below that entire article.

Cracking the code

The special language of probate

LEGAL TALK TEXAS

At least 99 percent of you will, at some point, have your life touched by a probate estate.  If you are very unlucky, then you might even be appointed as an executor or administrator. This article is a clip-and-keep for when that time comes.

Here is your key to the mysterious terminology of Texas probate.

Decedent: the person who just passed away.

Estate: the assets and debts of the decedent.

Probate: the court proceeding to handle the decedent’s estate.

Texas Estates Code: the source of all wisdom in the world, according to more than one Texas probate judge.

Will: a written document either signed by a decedent or completely in the decedent’s handwriting and signed by decedent, that disposes of the decedent’s estate upon death. Hopefully not based on an internet form.

Executor: the person appointed by the court to execute the terms of a will in a probate estate.  There are two flavors: independent and dependent.  The independent Executor acts without court supervision.  The Dependent Executor has to obtain court permission before performing any duty or taking any action.  Generally speaking, if the estate is solvent, then it is much better to be an Independent Executor than a Dependent Executor.

Administrator:  the person appointed by the court to handle an estate when there is no valid will.  An Administrator’s life is always more difficult than that of an Executor, simply because there is no will.

Letters Testamentary:  This is a document prepared by the county clerk that states the executor or administrator is authorized to act.  Most third parties demand to see original Letters Testamentary; thus the executor usually orders at least six.  The Letters are technically good for only 60 days, and new Letters may have to be requested when the old ones expire.

Devisee: the person the decedent designated in writing to inherit an asset.

Heir:  This is someone who inherits as a matter of law because the decedent did not leave a will.  Heirs and Administrators go hand-in-hand into the wilderness of “no will.”

Fiduciary:  the executor or administrator.  A fiduciary’s duty is the highest duty in law.  Think of it as the rope used to legally hang a crooked executor or administrator.

Citation: a formal notice issued by the court clerk about the probate.

Notice to Creditors: a formal notice given by an executor or administrator to all secured creditors, and some unsecured creditors.  This is the first of many probate pitfalls, because if notice is not timely given, then the executor or administrator can be held personally liable for damages.

Inventory:  a list of all probate assets, together with values as of the date of death.

Estate Tax Return, Decedent’s Income Tax Return, Federal Fiduciary Tax Return:  the reason every probate estate has a CPA on retainer.

And that should be enough to get you started down the probate path.

hammerleVirginal Hammerle received her J.D. (Juris Doctor) from SMU in 1982.  Find more articles at hammerle.com.  To receive the monthly email newsletters, send your request to legaltalktexas@hammerle.com

 

The information contained in this article is general information only and does not constitute [legal advice.]

Posted in Debts, Estate Tax, Income Tax, Inheritance, Probate, Tax, Wills | Tagged , , , , , , | Comments Off