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Probate

Monday, February 13, 2017

Transfer on Death Deeds Part 3


This is part three of a three part series on Transfer on Death Deeds. In part one, you learned about what a Transfer on Death Deed was and how a person could validly create one.  In part two, you learned about what happens after a grantor signs a Transfer on Death Deed but the grantor is still alive.
Read more . . .


Monday, February 6, 2017

Transfer on Death Deeds Part 2


This is part two of a three part series on Transfer on Death Deeds.  In part one, you learned about what a Transfer on Death Deed (TDD for brevity) was and how a person could validly create one.  Part two will explain what happens after a grantor signs a Transfer on Death Deed but the grantor has not passed away.

First and foremost, a Transfer on Death Deed (TDD for brevity) passes no rights to the beneficiary while the grantor is still alive.  Up until the grantor of a TDD passes away, the grantor has ultimate authority over their property.


Read more . . .


Thursday, February 2, 2017

Transfer on Death Deeds Part 1


This is part one of a three part series that will explain: (1) What  Transfer on Death Deeds are and how they are created; (2) What happens after a Transfer on Death Deed is created (when the grantor is still alive); and (3) what happens when the grantor of a Transfer on Death Deed passes away. New law was enacted in Texas in 2015 which affects all Transfer on Death Deeds created on or after September 1, 2015.  

What is a Transfer on Death Deed?

A Transfer on Death Deed ("TDD" for brevity) is a document that any person, over the age of 18 and in his right mind at the time of creation, ("grantor" for brevity) can use to transfer property after grantor's death and avoid the probate process.  Any property named in a TDD, if still in the possession of Grantor at his death, will pass to the named beneficiary in the TDD, which I will explain further in part three of this series.  The TDD must be in writing, it must contain a sufficient description of the property to be transferred and it must be signed by the grantor.


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Sunday, October 23, 2016

How is a Will Proven to be Valid During Probate?


You have a valid will, what steps must be taken to make sure that it can properly be admitted into probate?  

For a valid will to be admitted into probate, it must be proven to the court to be the last will and testament of the testator.   Before I explain that, here are the two types of valid wills in Texas. 

  1. A holographic will is a testamentary instrument written solely in the testator’s own handwriting.  It can be attached to a document with typed writing on the document, however to be valid, the will itself must only be in the testator’s handwriting.
  2. An attested will is a testamentary instrument that can be typed or hand written, but is not entirely in the testator’s handwriting.

Read more . . .


Monday, July 11, 2016

Fraudulent Concealment, Destruction or Alteration of a Will


Family dynamics can turn nasty, particularly after a parent or relative dies and a struggle for a portion of the decedent's estate among family members looms.  What, if any, consequences are there if a person deceives others about the existence or content of the decedent's Will?

The Texas Penal Code Section 32.47 establishes that:

  • "A person commits an offense if, with intent to defraud or harm any person, he, destroys, removes, conceals, alters, substitutes, or otherwise impairs the verity [i.e. "truth"], legibility, or availability of a writing, other than a governmental record.

Read more . . .


Sunday, March 20, 2016

Exemption for Probate Fees for Certain Military Members

In Texas, estates of military servicemembers who die in active service in a combat zone are exempt are exempt from the following fees:

  1. Any fee for filing for probate of the deceased servicemember's Will; and,
  2. Any fee charged by the probate court for rendering its normal services.

"Combat zones" are designated by the President by Executive Order under authority granted by 26 U.S.C. Section 112, which is the section of the IRS code that excludes gross compensation received in a combat zone from taxable income.  Currently, there are three designated "combat zones" (including airspace above) as follows:

  • Arabian Peninsula Areas, beginning Jan. 17, 1991 -- the Persian Gulf, Red Sea, Gulf of Oman, the part of the Arabian Sea north of 10° North latitude and west of 68° East longitude, the Gulf of Aden, and the countries of Bahrain, Iraq, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates.
  • Kosovo area, beginning Mar. 24, 1999 -- Federal Republic of Yugoslavia (Serbia and Montenegro), Albania, the Adriatic Sea and the Ionian Sea north of the 39th Parallel.
  • Afghanistan, beginning Sept. 19, 2001.

Information on the three areas above and others previously designated as combat zones is available from the IRS.  Speak with a qualified Wills, estates and probate attorney to learn more.

Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC.  The firm provides a spectrum of family law-related services to clients in the greater San Antonio region, across the United States and throughout the world.  The firms also provides Wills and Estates and Probate services.


Sunday, November 30, 2014

Accessing the Deceased's Safe Deposit Box

Some people believe that storing a Will in a safe deposit box is a bad idea.  They believe that it will be near impossible to get possession of the Will after the box owner's passing.  Not true.

The Estates Code provides bank's authority--even without a court order--to permit certain persons to examine the contents of the deceased's safe deposit box.  Those persons include:

  1. The surviving spouse;
  2. A parent of the deceased;
  3. A decendent of the deceased who is at least 18 years old; or,
  4. A person named as Executor in a copy of the Will that appears valid and is presented to the bank official.

Examination of the contents of the box must occur in the presence of the bank official.  If the original Will is found inside the box, the bank official may deliver it to the clerk of the Probate Court.  The bank official also is permitted to hand it over to the person named in the Will as Executor.  The Executor must provide the bank official with a receipt for the document.  Incidentally, if a life insurance policy is found, the bank official may hand it over to the named Beneficiary.  Likewise, the Beneficiary must provide a receipt for the document. 

The Estates Code also contains provisions for the Court to order examination of the deceased's safe deposit box in cases where the bank opts not to permit inspection without a court order.  Talk with a qualified probate attorney to learn more.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 


Thursday, November 20, 2014

Accessing the Deceased's Funds to Help Pay Funeral Expenses

Families occasionally lack funds to pay for a loved one's funeral expenses.  Sometimes the only money available is in the deceased's bank account which is now frozen.  Is there any way to tap into those funds to pay funeral expenses?  Yes.  The Estates Code labels it an "application for emergency intervention."

Not anyone can file an application for emergency intervention with the Probate Court.  Persons who qualify include:

  1. The person named as executor in the decedent's Will (even though the Will has yet to be probated);
  2. The decedent's surviving spouse;
  3. Any devisee in the Will (i.e. a person named to receive a gift); or,
  4. The decedent's next of kin.

The Probate Court will review the application.  Once approved, the Court can order an individual, employer or financial institution holding the decedent's funds to pay those funds directly to a funeral home for:

  1. Funeral and burial expenses not to exceed $5,000;
  2. Resonable attorney's fees for the attorney who obtained the order; and,
  3. Court costs in obtaining the order.

Talk with a qualified probate attorney to learn more about filing an emergency intervention.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.  


Saturday, September 20, 2014

Locating A Missing Life Insurance Policy

Sometimes the person tasked with handling the estate's affairs after the death of a loved one isn't quite sure whether all of the decedent's life insurance policies have been identified.  Substantial amounts of money could be lost by one or more beneficiaries if a claim is never filed against a valid policy.  The Texas Department of Insurance (TDI) offers a service that might help via its "insurance policy locator."

A requester simply has to submit a Consumer Request Form to TDI.  Then, TDI shares the information about the decedent with participating life insurance companies.  A company will contact the requester with policy information if it determines it holds a valid policy on the decedent's life.  According to TDI, most policies are located within 90 days of a request.  If no response is received within 90 days, it generally means that no policy existed or the requester is ineligible to receive the information.

 Click here to view the list of participating companies on TDI's website.  Click here to obtain a copy of the Consumer Request Form from TDI's website.  Click here to read tips from TDI for tracing missing or old life insurance policies.

To avoid this type of dilemma, it's prudent to keep a list of life insurance policies in the same place that the person stores their estate plan, whether it be a Will or Trust document (e.g. in a safe deposit box, for example).

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Wednesday, September 10, 2014

Claims During Probate: Medicaid Estate Recovery Program (MERP)

During probate, the executor or heirs often must certify whether the Medicaid Estate Recovery Program (MERP) has a claim against the decedent's estate.  MERP stems from Federal law.  MERP requires States to submit claims against the estate of dededents who received "covered long-term care" for persons age 55 or older paid for by Medicaid.  A few examples of covered long-term care include the following:

  1. Nursing facility services;
  2. Community Living Assistance and support services;
  3. Home and Community-based services; or,
  4. Hospital and prescription drug services received while on the above programs.

Exceptions exist where a MERP claim will not be filed against the estate.  Two examples of exceptions follow:

  1. There is a surviving spouse; or,
  2. There is a surviving child or children under age 21.

In Texas, MERP is administered by the Department of Aging and Disability Services (DADS).  DADS publishes a form that can be sent to its MERP contractor to obtain certification of whether or not a claim exists.  Even if the family is "certain" that no covered long-term care was paid for by Medicaid, obtaining certification is a prudent step during probate.  Click here to get a copy of the MERP certification form from DADS' website.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a
spectrum of family-related legal services in the greater San Antonio Region.


Saturday, August 30, 2014

Assisted Reproduction - Part 3: Death

This is the last in a three-part series that describes legal issues in assisted reproduction.  In this blog, we'll explore the parental status of a "deceased spouse."

If a spouse dies prior to the eggs, sperm or embryos being placed, then the deceased spouse is not a parent of the resulting child unless two conditions are met.  First, the deceased spouse must have given written consent to becoming the parent of a child that might be born by assisted reproduction after his or her death.  Second, a record of the deceased spouse's written consent must be on file with the licensed physician providing assisted reproduction services.

Why is this distinction important to someone once they're deceased?  It is important because--if the deceased spouse is the parent--the child born after their death is a "pretermitted child."  We'll delve into the nuances of exactly what it means to be a "pretermitted child" in a later blog.  For now, know that it can impact the inheritance of the surviving spouse and children under the deceased spouse's Will (or the laws of intestacy if there was no Will).  A qualified family law, probate and estate planning attorney can explain options for safeguarding the now-deceased spouse's plan for distribution of their property during lifetime estate planning.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


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