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James Brian Thomas

James Thomas’s Answers

591 total


  • Do I have rights as decedents only child seperate from probate?

    My Father was married at time of death. I am his only child from a previous relationship. Do I have rights other than that with which deals with probate? This may be an ignorant question but I do not know if probate is the sum of EVERYTHING that w...

    James’s Answer

    Mr. Frederick is correct. There are a number of additional facts that any probate attorney would need to learn to answer your questions fully. And I wouldn't worry about your ignorance. Most individuals experience probate law only once or twice during their entire lifetimes. The professionals that deal with these issues every day hardly expect their clients to be experts.

    Whether or not a Will exists is the big question. Next, as my colleague points out, a person can have a substantial amount of what we refer to as "non-probate" assets. These assets, if any, pass under the terms of a designation your father made while alive, and not by Will or other law. Life insurance, or "payable on death" bank accounts are great examples.

    Texas does not force heirship. Unfortunately, this means that your father may have lawfully taken steps to create an estate plan that does not provide for you. At the other end of the "what if" spectrum is a default system that would provide you with rights if your father never created his own estate plan. Contact an attorney and discuss some of these basic facts with them. You may not get all of the answers that you're looking for, but you will certainly learn what questions you should be asking. Good luck!

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  • How do I submit DNA paperwork to prove that legally I am heir of decedent?

    My father and mother were never married. My father's name is not on my birth certificate. My father had paternity test done in 1999, results being positive. He has recently passed. Do I need to submit the DNA paperwork to the courts? Is there a t...

    James’s Answer

    As with virtually all requests from our courts, there is always a time frame. The sooner that you retain an attorney to help you with this, the better off you'll be. Bear in mind that establishing that you are your father's child may or may not be of significant consequence. If your father left a Will, for example, leaving his estate to his church, a friend, your mother, etc., your status as an heir may not make you entitled to anything. Visit with an attorney as soon as you can to get a full understanding of the facts and your rights under them.

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  • What can be done when an attorney is the executor of a will and he hands it over to his wife and family members work for her?

    It was made clear by my mother this attorney was not to handle anything of her. Her husband is still the executor. Family that works for her has been stealing out of home and paperwork being manipulated. This attorney has just received another ...

    James’s Answer

    I agree with my colleagues that fast action is appropriate. You need to visit with your own attorney immediately, and the quick and free responses here probably won't address all of the concerns that you have. Executors are held to a very high standard in Texas. Our probate courts remove them all the time for improper activities.

    You don't mention whether or not you are a nominated successor executor, or even a beneficiary of the Will. These facts may impact your ability to complain about the Executor's acts, since the Court must determine that you have an interest in the Estate before hearing your complaints. All the more reason to sit down with an attorney and learn precisely what rights and options you have.

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  • Can 85yr old be forced by magistrate to allow visition of adult children that filed temp./emergency guardianship on him?

    Temporary/emergency guardianship applic claimed eminent danger. Proposed ward is upset at thought of having to visit w/children who have conspired to take away his independence/freedom and take over his assets. We have neurologist assessment that ...

    James’s Answer

    Could the Court order that access to the Proposed Ward be permitted for all family members? Sure. Even the Court might recognize, however, that unsupervised access is not in the Proposed Ward's best interests, and those best interests are the Court's chief concern.

    It sounds like you're in the early stages of a disputed guardianship case. If you think that tensions are running hot now, wait until the Court is asked to approve attorneys' fees from the Proposed Ward's Estate. These fights are emotionally and financially draining, and you'd do well to speak with your own attorney to learn what rights and options you may have to assist the Proposed Ward.

    I see that you're posting this question from Fort Worth. Our attorneys frequently practice in the Tarrant County probate courts, and I'd be happy to visit with you in more detail if you'd like.

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  • Does signing a "Receipt of Distribution" affect any rights to contest a Will?

    Executor is asking me to sign a document, stating that I received some personal effects of my Grandfather. There is no "release" language in the Receipt of Distribution, just an acknowledgement of receiving some items. Due to legal problems with...

    James’s Answer

    Sadly, it's difficult to answer your question with just the quick facts that you've given. Your inclination to accept parts of the Will while disputing others raises a whole bunch of new questions that any competent probate attorney would want to visit with you about. Or, your dispute may be less focused on the language of the Will, and more focused on the behavior of the Executor or personal representative. The point is that this is an area where you do not want to tread without having your own representation. The other responses are all correct -- spend the time to sit down with an attorney and learn just what rights you may be waiving or bargaining away. You might find one or two worth enforcing.

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  • Texas Probate - Does the Independent Executor have to make Annual report to court at 12 Months?

    by report I mean an accurate accounting of all assets. Also must the Independent Executor report to the court after selling House and Real Estate? thank you very much

    James’s Answer

    No, neither of these things is required of an independent executor. The obligations that you've just described are precisely what a dependent administrator must do. These court-supervised administrations are very different from their independent counterparts.

    If you are looking for information (including an accounting) from an independent executor, you will likely find yourself waiting until 15 months after the date that Letters Testamentary are granted. Beyond this time, however, you will also find that interested persons may have several remedies to compel the production of information from even an independent executor.

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  • Will, probate

    my husband claims that he has written a will and he has put my name and his adopted child as beneficiary in his will . but he never showed me the will , how can I be sure that he didn't update the will that his son inherit everything ? if one d...

    James’s Answer

    Mr. Zelinger makes a great point. It is also crucial that you understand what your husband's Will can and cannot dispose of. A Texan's Will can dispose of 100% of their separate property and their 50% of the community property that they share with their spouse. That is, your husband cannot give your property away through his Will.

    You might do well to visit an estate planner for yourself. Although your husband has no obligation to show you his Will, or even include you in it, you could always get a little more educated on spousal rights and community property in Texas. Best of luck.

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  • Estate is 2 yrs in probate. The Texas estate has no debts. Executor refuses to disclose & distribute assets to heirs.

    all assets have been liquidated since July 2012 without mutual consent or prior notification. All requests by the other 3 heirs have been ignored. Every couple of months the executor comes up with a new reason she can't distribute the estate to th...

    James’s Answer

    I hate to answer your question with the usual "get a lawyer" response, but you are going to find that some investment in professional help will go a long way here. My colleague has excellently laid out your rights and remedies. If you're serious about protecting and pursuing them, you'll contact an attorney that practices in this area near you to hire the help that you'll need.

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  • How do I view a listed inventory in a probate case? I'm from texas.

    The state website lists that "Inventory (Dep.)" was posted in a case I am an heir to, and it is 4 pages, but how do I view it? Do I need to legally request it or will the court send me it?

    James’s Answer

    Contact the county clerk and ask if it can ordered over the phone, but be prepared for a no. Most likely, you can send in a written request with the appropriate fee (usually $1 per page), or you can walk on up to the clerk's desk and order a copy in person.

    The Court does not work for you, and you should not expect the Court to take any steps to make sure that you are aware of documents that have been filed. In fact, because the documents are public, the Court presumes that you have had an opportunity to review anything included in the clerk's file.

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  • What to do if the executor of my mothers will is not truthful?

    My mother has stated in her will that my uncle is the executor. Her investments are to be split half to my uncle and the other half to myself. How do I ensure that all her investments are split equally?

    James’s Answer

    As my colleague points out, Executors in Texas are required to prepare an Inventory of the Estate. Under some new legislation, and depending on the language of the Will, this Inventory might or might not become a public record. But, as a beneficiary, you are entitled to know (1) what the Executor collected as assets of the estate, (2) what debts and expenses were paid with the estate property, and (3) what's left. Depending on the time that passes during the administration, you might even be entitled to a supplemental accounting prepared by the executor.

    Executors in Texas are fiduciaries. They owe some of the highest legal obligations that the law can impose upon a person, and once appointed, your uncle will owe these legal obligations to you as a beneficiary. If you think that there is even a chance that your uncle will be less than transparent and forthcoming, you should consult with and retain an attorney early in the process. Stopping bad behavior in its tracks is much easier than putting the pieces back together after the fact. I'm sorry for your loss, and I wish you the best of luck.

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