Houston Probate: a look at Harris County probate law by a Houston probate lawyer - by Daniel L. O’Neil

by News Editor
in Blog
on 16 May 2017
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I spend a lot of my time in business development going out into the community to network with business owners and decision makers in larger companies. 

We closely track marketing investments (including time) so we really focus on certain practice groups based on reading the audience. When I introduce myself as an estate planning lawyer everyone knows what I do, and often they have at least ten other local estate planning lawyers’ business cards in their rolodex. When I introduce myself as a tax controversy lawyer the C-level executives understand that well, and they keep my business card in their rolodex since they don’t have a go-to guy like me with a Master of Laws in Taxation. But when I introduce myself as a probate lawyer I receive blank looks more often than not. Here we attempt to pull back the veil on Houston probate in a SEO-friendly writing style.

A Houston probate lawyer is typically needed when someone (the “decedent” in our jargon) has died. This someone usually has left behind people that loved and cared for them such as parents, siblings, children, a spouse, or perhaps an unmarried romantic partner which was much more common pre-Obergefell. The loved ones left behind are then trying to sort out the issues left behind the decedent’s death.

If the decedent had planned ahead well and had a Will and other documents in place – and communicated the particulars of that with the people left behind – then in most (not all!!!!) cases it is a simple process to take the Will to a probate lawyer, the probate lawyer does some paperwork, some signatures are done, some things are e-filed, the lawyer delivers the original Will downtown, a court appointment is scheduled, a drama-free court appearance comes and goes, the Will is admitted to probate, the Oath is taken, and some more paperwork happens to otherwise wind up the estate.

In some (but not all!) cases things get a lot more complicated. Someone can contest the Will – there is often easy motivation for someone (e.g. an adult child struggling to make ends meet) to do that if they would receive a larger share of the estate under intestacy than what was given to them in the Will (e.g. the parent remarried a cruel stepparent and left everything to them in the Will.) Someone can contest the fitness of the named Executor to serve in that role – if the decedent had named their drinking buddy with a history of bad decisions, there might be a concern from other family members. If the decedent left behind minor children then in nearly all cases the court is going to be a lot more involved than they would if there were three adult siblings (all without legal disabilities) that were splitting everything equally.

When there is not a Will (in our jargon we say the decedent died “intestate”) the first step is a determination of heirship. This is a completely unnecessary expense if a well drafted valid Will is left behind. But without a good Will, it’s a process to determine who the heirs of the decedent that died intestate are. It’s mandatory that the court appoint an attorney ad litem in heirship cases, so you are paying them to do something that they wouldn’t need to do had there been a good Will left behind. They will investigate the claims made in the Application and talk with at least two disinterested witnesses to determine if everyone is telling the truth about the family structure and identity of people. In some cases (but not all) people can lie – especially if they will benefit from it, they will pretend like the “black sheep” family member just doesn’t exist. The attorney ad litem’s responsibility is to use public records and other investigative techniques to make sure who the heirs are and that those are all of the heirs. I really enjoy when I get appointed to be an attorney ad litem in cases – and I work fast so I don’t hold up things in the court system – but not everyone does. An attorney ad litem that is disinterested in working the case can drag out an heirship for a long time. Even worse, when you are finally ready for the hearing, if they do not show up then you have wasted a day to get downtown, wait, and find out you can’t actually do what you took off from work to do.

Those are the most common kinds of cases that go through probate related to the death of a decedent: if there is a Will then getting it admitted to probate if it is uncontested or litigating it if there is a contest; if there is no Will then at least starting with the determination of heirship but depending on the estate there may be a need for an administration too; and then rarer substitutes like a small estate affidavit or using the Will as a muniment of title only. Beyond that there are a number of other kinds of cases that can go in front of the Probate Court involving trust and fiduciary litigation.

The other main type of case involves when a person has not died – they are definitely still alive – but they are disabled or incapacitated in some way. This is a guardianship case. Most often a guardianship case arises for a 17 year old about to turn 18 years old (“proposed ward” in our jargon) that is going to need (most often parents, or if divorced, one parent) making decisions for them for the rest of their life since they are unable to make their own decisions about certain important things; and the other main group of proposed wards would be aging elders with declining faculties where most often an adult child will step up to make important decisions for them. Guardianship abuse is a serious issue in the Harris County Probate Courts – so much so that is an important part of my campaign for judge in 2018 as a progressive Democrat against the Republican incumbent – so guardianship cases are always flavored with the seriousness of how bad guardianship abuse is, and how it needs to be prevented at all costs. These are serious issues that affect the lives and livelihood of hardworking Texan families, so a probate lawyer needs to be taking that under advisement when they consider taking on a guardianship case or serving the court as a guardian ad litem or attorney ad litem.

If our premier estate planning, probate, trusts & estates, and guardianship practice group with experience in resolving difficult family conflicts can help you and your family please give us a call today.


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