Given the availability of the "related to probate proceeding" jurisdiction and venue rules, the legal practice of Probate can be complex. A Probate Court can technically, if it involves an estate or ward, hear just about every kind of legal controversy. This makes the practice of Probate more complex because the Probate practitioner must be competent in many areas of the law. Listed below are a few of the complex matters this firm has resolved within estate and/or guardianship matters:
1. Divorce in Probate. Death can happen at anytime, even during a divorce. We represent personal representatives who, having "stepped into the shoes" of an individual who was going through a divorce, must finish an incomplete divorce. These cases are very contentious because the surviving spouse (and sometimes the children too) has his or her own expectations, irrespective of what the law says, for how their spouse's property should be divided. Of particular difficulty in these types of cases occurs when the surviving spouse has total control of the property belonging to the deceased spouse (or at least keys to the deceased spouse's house) and plenty of time to "lose" or "sell" the property before someone can be appointed to represent the Estate of the deceased spouse. The matter can also become even more tricky when the deceased spouse and surviving spouse ran a business together and the surviving spouse is selling assets of the business and/or collecting accounts receivable and is unwilling to share this information with the personal representative.
2. Theft of Estate Property. Theft of estate property happens a whole lot more frequently than many recognize. This type of theft is hard to recognize because it often occurs by family members who many assume inherited the property anyway. As is the law, property can be left to anyone; there is no requirement to leave property equally to children or to any child at all. Therefore, when property is taken from a deceased person's house before a personal representative has been appointed or without all the necessary parties' consents, the act of taking the property is theft. Marold Law Firm often files motions/lawsuits with Probate Courts to order the appearance in court of a family member to take their testimony under oath regarding allegations of estate property having been taken by him or her without the legal authority to do so.
3. Murder by Heir or Beneficiary. Also more often occurring than one might expect, our firm has had to represent estate representatives who must file a lawsuit against an heir or beneficiary of a deceased person's estate seeking a constructive trust over proceeds which would otherwise have been inherited by the heir or beneficiary who caused the death of the deceased person (i.e. murdered the decedent). These scenarios also sometimes involve murder-suicide scenarios in which two estates must be formed and the murderer's estate sometimes sued in order to compensate the victim's estate for the wrongful death and/or to implement some form of constructive trust for the murder.
4. Eviction of Heir or Beneficiary. In many cases this firm has represented an estate when an heir or beneficiary is refusing to move out of estate real property. In these types of cases, an eviction or forcible detainer lawsuit must be filed against the uncooperative heir or beneficiary. Often times the Court will award attorneys' fees and expenses which can be offset against the inheritance of the uncooperative heir or beneficiary. An even trickier scenario occurred once where the uncooperative heir would not move out of the estate real property and on the eve of the eviction suit, the uncooperative heir filed bankruptcy and listed the estate real property as his asset. Ultimately, the personal representative got a ruling that the estate could in fact continue the eviction suit because the debtor did not in fact have an ownership interest in the estate real property. However, the hassle in terms of time and expenses were high.
5. Family and Minor's Allowances. In Texas, a surviving spouse and minor children are owed a certain sum of money, in addition to anything else provided for under the will, sufficient to maintain them for one year after the passing of their spouse/parent. In the surviving spouse context, these cases typically arise when a "friend" has been named as the executor and/or been named as the sole beneficiary of a Will, to the detriment of the surviving spouse. In these cases, the surviving spouse, usually through a court appointed guardian, is entitled to seek an allowance from the deceased person's estate sufficient to care for the surviving spouse. In these types of cases a claim for fraud on the community is also often meritoriously pled.
6. Admitting Wills to Probate after 4 years. In Texas, one must Probate a Will within four years of the person's passing. However, you may admit a Will after the expiration of four years as a muniment of title (a more simplified probate proceeding), but only after you have proven that you were not in default for failing to probate sooner and that the muniment process is available. The admittance of a Will versus the non-admittance can make a BIG difference in terms of who inherits estate property. This firm has had cases where Wills were not probated because the estate was thought to be insolvent, but later, after four years, assets are discovered (e.g. rich natural resources). The persons entitled to take under the Will can be different persons than those who inherit without the Will - this can prove to be a big problem!
7. Void/Voidable Foreclosure. The power of sale in a deed of trust is, if exercised by a mortgage company upon a deceased person's interest in real property (i.e. foreclosed upon non-judicially), while a dependent administration is open, is void. If the power of sale is exercised prior to the opening of a dependent administration, the foreclosure is voidable if sued upon to set-aside within four years of the decedent's passing. This is an area of the law that few people know - mortgage companies included! If a mortgage company forecloses on property owned by a deceased individual, the mortgage company may be liable for any losses to the estate - such as equity in the real property, loss of rent otherwise receivable to the estate from the renting of the real property, and even loss of personal property if the loss was approximately caused by the foreclosure. The property itself may also be recoverable in lieu of a cash award.
The tactics and tools necessary to advocate and protect an estate in these more complex areas of Probate law truly require the employment of an experienced complex probate attorney. Marold Law Firm, San Antonio Probate Attorneys .com, are experienced complex probate attorneys and we are ready to meet with you to discuss your complex probate matter. Give us a call, 210-701-0829, or send us an email, email@example.com, today, to discuss how we can assist you with your Complex Probate matter.
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310 S. St. Mary's St., Ste. 835
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*Attorneys are not certified by the Texas Board of Legal Specialization