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San Antonio Probate, San Antonio Estate Planning, San Antonio Elder Law

 Brief Answers!
to your more Straightfoward Questions

 9/08/2013 Question: Can any creditor file for probate for an intestate or does it have to be a secured creditor?

Answer: Usually the will is filed for probate by the person nominated as Executor. If that has not happened, the Probate Code allows "any interested person" to initiate the probate proceedings. An "interested person" includes heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered. Hence, any creditor, secured or unsecured, has standing to initiate a probate.

5/08/2012 Question: In one of your recent columns you said that in 2012 we can give/receive a gift of up to $5 million without paying taxes. I thought the gift allowance amount was $13,000 a year. Is it really $5 million for 2012 and why is that different than other years? - GF

Answer: There are two separate and distinct gift tax breaks. The "annual exclusion" is $13,000 (in 2012; in 2013 the exemption has increased to $14,000). Gifts at or below that amount do NOT need to be reported to the IRS. The "lifetime exemption" is $5 million. Anytime you give a gift greater than $14,000 you must file a gift tax return with the IRS to report the gift. The lifetime exemption can then be claimed to offset the tax, so you pay no gift tax until you use up your $5 million exemption.

4/11/2012 Question: I have letters Testamentary that I am indepent executrix of the will, copy of a Warranty Deed to property signed by both me and husband, but the record clerk wants complete copy of will. Do I need to show the will? -- LLJ

Answer: I assume that you are independent executrix of your husband's estate, and that the warranty deed signed by both of you is on your home. I also assume that his Will left the home to you, and your goal is to use your authority to have the "deed put in your name". The clerk at the courthouse wants a copy of the Will in order to see who inherited the property, but both of you are taking the wrong approach. What you need is an "Independent Executor's Deed", and you should go to the attorney who filed the probate for you to obtain it. It says, essentially, that as the executor, and to fulfill the terms of the Will, you hereby convey the property to yourself, individually, as the heir named in the Will. Go to the lawyer to get an Executor's deed, and file the deed with the county clerk.

1/31/2012 Question
: We had a durable power of attorney drawn up in 2003 by a attorney. using your "Senior Texan Legal Guide" forth edition which states "filing a durable POA with the county clerk is not required unless your agent is using it to sign some other document that must be filed" (page 3). My attorney did not file it. My wife passed away in Oct. 2011. I am now being asked for a certified copy of her POA for an oil lease, which is not possible. What options do I have? -- BLS

Answer: First, whenever a durable power of attorney is used for a real estate transaction it must be filed with the county clerk at the time of that transaction (unless it is already on file). An oil lease is a real estate transaction. However, second, a durable POA is valid only while its maker is still living. When your wife died, her durable POA died with her and you cannot use it for any purpose after the date of her death. Even if you had a certified copy, you could not use it after the date of her death. So the people who are asking your for it are not following the law. Third, any transaction involving your wife's share of this oil property (or any other asset she owned) must either a) be handled by her executor under the terms of her probated will, or b) be handled by the person who held right of survivorship if it existed, or c) be handled by the trustee of her trust if she had one and assigned her ownership of that asset to the trust. Conclusion: you cannot use the power of attorney, even if it had been filed. You must use a probate or other "post death" procedure for this oil lease.  

10/28/2011 Question: How do you do small probate without a lawyer? My father has recently died and there are two bank accounts left. All of his outstanding bills are paid up in full. I need to become the executor and my sibbling is in prison for murdering my mother. AM

Answer: If you are the named Executor in the Will, you do not have the legal right to represent the estate without a lawyer. The estate is not "you" and thus, if you try to go to court without a lawyer, you are trying to represent the estate without having a law license. You can represent yourself, but the estate is not "you" it is a separate entity. In addition, the court is not there to advise you on "how to" probate, and the clerks cannot answer your legal questions. I wouldn't tell you how to do a probate yourself any more than a dentist would tell you how to pull your own tooth; it is complex and too much can go wrong. If the bank has demanded "letters testamentary" to release the accounts, you'll need to hire a lawyer since it is illegal to do it yourself. Your best choice is to hire an attorney who is experienced in these matters and pay a reasonable fee for services that you need.

9/29/2011 Question: I am probating a will for my grandparent's estate. All they have is a house, car and some savings bonds. Their four children along with myself are listed as beneficiaries. If we decide to sell the house (my mom is currently living in the house), will the proceeds from the sale have to be used to pay the debts before funds can be divided amongst the beneficiaries? What if I sell their car? AC

Answer: Yes, legitimate debts must be settled during probate. There is a process under the law, and your probate attorney should explain it to you. Essentially, you can 1) voluntarily pay a creditor who you know about and who you know has a legitimate claim, or 2) require all creditors to submit a written claim to the Executor, who classifies them according to law and pays them according to the priorities set by law. Legitimate creditors who have submitted a claim are entitled to receive payment - whether from the sale of the house or sale of the car, or just from money sitting in a bank account - before the beneficiaries of the will receive payment.

9/29/11 Question:
I purchased and paid off a home here in Bexar county. I have since moved my aging mother in to look after her. In order to be afforded an "over 65" property tax exemption for her living in my home, I set up a life estate in her name. Now her health has declined and she is getting help from the state for her meds (low income subsidy). In the event of her death, am I vulnarable to the medicaid state recovery program coming after my property? -AC

Answer: No. Her life estate ends at the moment of her death, which leaves nothing agains which Medicaid can bring a claim in probate court. This strategy (gifting a parent life estate) is not a typical Medicaid strategy. Rather, an adult child will sell a life estate to a parent in exchange for some of the parent's savings. The parent must reside in the home (before moving to the nursing home) in order to make it a legitimate exchange. Even then the home is not at risk from MERP when the parent dies, at least under the rules that exist today.

9/21/2011 Question:
What is the minimum amount of estate upon death where no federal estate tax or state inheritance tax is due? TLG

Answer: Texas currently has no inheritance tax. The United States has an estate tax but the first $5 million of assets are exempt (in 2011 and 2012) per individual. A husband/wife who both die in 2011/2012 are supposed to be able to claim $10 million of exempt assets (but the law is new and the procedures are not well established). Congress must decide in 2012 what the law will be thereafter.

9/21/2011 Question:
Home owned by medicaid. Owners passed away. Home is vacant. How do I buy from it medicaid before this nice house gets demolished? - M

Answer: Medicaid does not take ownership of homes. Rather, it makes claims in court for payment of the debt owed to it. The Executor of the estate would sell the house and use the money to pay Medicaid. Even if the Executor signed title over to Medicaid to pay its claim (which I have never heard of happening anywhere in Texas) Medicaid would want to sell the house promptly to recover its cash. Talk to the Executor to see what the real facts are regarding this house.

9/16/2011 Question:
What avenues do I take in inquiring if Medicaid or Medicare have attached a lien on a person's home over the age of 65 who goes into the hospital with subsequent move to a nursing home in 2002, living all these years in a nuring home facility, then passes away at the age of 88 of this year still at a nursing home. Does Medicaid or Medicare still have an attachment to this elder's residence? - T

Answer: Medicare does not pay for long term nursing home care, and does not have a reimbursement program. Medicaid does, but it only applies to patients who began recieving benefits after March, 2005. If this elder started Medicaid in 2002, there should be no legally authorized claim. (Also, even with a valid claim, Texas Medicaid cannot legally place a lien. Rather, it seeks reimbursement as a claimant in probate court.)

7/31/2011 Question:
My husband and I have decided that in the best interest of our three year old daughter  -- after giving my inlaws a choice of settling some family issues or giving up the freedom to be a part their granddaughter's life -- to not allow the inlaws to see her. I am afraid they will try to take us to court over this issue. What rights do I have as a parent by Texas law to say that I do not want them around my daughter? Would the state side with the parents or the grandparents? - NW, San Antonio

Answer: Under almost all circumstances, the law enforces the parents' choice and not the grandparents' choice. Read the second part of my column from July 7, 2009 for the full legal explanation by clicking here.

6/12/2011 Question: I have a reverse mortgage which, of course, requires I pay Home Owner Insurance. Recently the insurance cost increased to over $300 monthly and I can't afford it or find a cheaper rate. I am terrified. Is there a solution? JLO,  Galveston

Answer: Whether you have a reverse mortgage, a regular mortage, or no mortage, you should protect your home by insuring it. Your explicit problem is that you are in Galveston, subject to hurricanes and flooding, so the rates are higher in your area. I do not have a solution, but refer you to the Texas Department of Insurance (click here) for consumer information and to their special "" website for rate comparisons.

6/9/2011 Question: Is it still the law in Texas that a disgruntled would-be beneficiary does not have the legal right, or standing, to challenge post-mortem dispositions made by a decedent's properly funded living trust? At one time, legal commentators gave this as one of several reasons for using a living trust to dispose of assets, as opposed to a will. MM, San Antonio

Answer: If the trust does not identify this "would-be" as a beneficairy, then the person is not a beneficiary of the living trust. The only challenge that could be brought is a claim that the trust is a fraud or forgery, that it did not express the true intent of the grantor, or that the grantor was incompetent when it was made. The challenger can file suit to bring these claims. A trust is not immune from this type of challenge. However, challenging a trust is procedurally different than challenging a Will, because the Will is already before a court (which is considering or has admitted it to probate). The trust is not already before a court, so the challenger must initiate the court proceeding from scratch (which takes more time and is more expensive).

6/8/2011 Question: Is an annuity considered to be an item that would need to go through probate since it has it's own beneficiary? DC, Paris, TX

Answer: When an annuity has a designated beneficairy, the insurance company will pay the annuity to that beneficiary (under whatever terms are allowed in the annuity contract). Probate is not necessary for that beneficiary to collect on the annuity. The only exception is when the named beneficiary is "the estate" or "the executor"; for that claim to be paid, probate is necessary.

5/29/2011 Question: Does a Texas will have to be probated in the county in which it is registered? -CRM, Longview, TX

Answer: Venue for probate is in the county in which the Decedent resided. Generally wills are not "registered" anywhere while a person is still alive (though they can be placed in "safekeeping" with the county clerk). For more, use our search utility and look for "venue".

5/28/2011 Question:  My Mother is in the nursing home on medicaid in Texas with alzheimers. I have power of attorney. If I sell her house can my brothers and sisters divide the money? What would it do to her medicaid status? CB, Iowa Park, Texas

Answer: While the house is "for sale" there is no problem with her staying on Medicaid. But the moment that it is SOLD, she now has money instead of a homestead. The homestead was "exempt" and did not interfere with her ability to qualify for Medicaid. The cash money is not exempt. It is "countable" and will cause her to lose her Medicaid benefit. Even if the money is given away (by you as her Agent) she will still have owned it for a short time, which is enough for her to lose Medicaid. The mere act of giving away money which she owns triggers a Medicaid disqualification. Simply put, selling the house causes her to lose Medicaid.

5/12/2011 Question:  When we notice my mom having problems remembering things, we had a durable power of attorney made out. In Jan 2011 she was dianosed with advanced alzheimers, and is now living in a memory care facility. My she capabable of signing legal documents and would they stand up in court? TB, Schertz, TX

Answer: Technically she is competent until a court rules otherwise. But in reality, any document she signs now that she has advanced Alzheimer's and is in a facility can be questioned legally. Fortunately she signed a durable power of attorney naming you as Agent. This should authorize you to sign - on her behalf - any business transactions that are necessary now. So use that authority from now on, and don't rely on her understanding or signing any new papers herself. [But note, as Agent you cannot make a Will for her.]


Answer: The power of attorney itself should give you broad authority to handle real estate issues for your father, including processing a reverse mortgage. But before you can do so, he needs to be sole owner of the house after your mother's death. Probate of her Will may be necessary to clear the way for the reverse mortgage. Even then, think twice before you ask for a reverse mortgage since the bank is very likely to end up owning his house when he dies (to repay the loan and repay all of the interest that was accruing until he died).

4/23/2011 Question: What if the executor never files the will in probate court? B.S.,  Converse, Texas

Answer: Not all wills have to be filed for probate. Sometimes there are no assets, or all the assets are held in other arrangements like a living trust or joint accounts with rights of survivorship. But if there are assets that can only be accessed by probating the Will and having an Executor appointed, and the Executor refuses to do so, you can 1) ask the alternate Executor named in the will to file it, or 2) file your own application for probate, and have the court order that the Will be filed by its custodian. You'll need an experienced probate attorney to assist.

2/22/2011 Question: Can real property be sold if one party becomes incapacitated (i.e., stroke) when a Right to Survivorship document is in place? I've been told that such a document precludes sale of property UNTIL the other party has expired. Thank you! MSO, San Angelo

Answer: When land is held with right of survivorship, all parties are co-owners of the land. There is no buyer out there who would desire to purchase only one of the co-owner's interests knowing that when that person dies, the share that was just purchased gets transferred to the other co-owner. Why buy it if your share will - sooner or later - belong to someone else? [Technically, the share can be sold... but no one would buy it under these circumstances.] After the "other party" has expired, the whole property is owned by the survivor. The survivor can sell or keep the property.

1/12/2011 Question: The enhanced life estate deed protects the homestead from medicaid claims. How much homestead can be protected? Is it a matter of a house and lot or a couple of acres or can it also be homestead as protected by texas law, ie, 100 acres if widowed or single? MK, La Grange

Answer: Medicaid is actually more generous in defining "homestead" than is general Texas law. An unlimited number of acres can be protected, so long as the acres are contiguous (that is, they are all one unbroken piece of land). The only limit is on value. A person whose homestead is valued at more than $500,000 cannot qualify for Medicaid. The size of the homestead does not matter; it is the overall value of the homestead that affects Medicaid.


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