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James Brian Thomas

James Thomas’s Answers

591 total

  • Can a widow be sued by children of the deceased, even if she has a will stating she is the executor of the estate after passing?

    My mother, recently widowed, is being threatened by her late husband's children for what they believe to be theirs. The last will of my step-father clearly states she is the sole executor and can distribute his belongings at her discretion. The wi...

    James’s Answer

    I'm so sorry for your recent loss, and even more sorry that your step-siblings have taken a poor approach toward resolving their concerns. The first and most important thing that your mother can do is consult with a probate attorney near her. Many, if not most, will offer her a free consultation.

    By and large, the probate process in our states is relatively efficient and straightforward. The Will likely needs to be offered for probate, and your mother likely needs to request appointment to her nominated position as Executor. Not only will most jurisdictions require that she be represented by an attorney, your mother will gain a significant peace of mind by retaining one. How nice would it be for her to tell her step-children "go talk to my lawyer?"

    As other posters have pointed out, interested parties will always have the right to complain -- even sue. Whether or not their complaint has any merit obviously relies heavily on facts that you simply don't have the space in this forum to fully discuss. All the more reason to put the matter in the hands of an attorney experienced in dealing with blended family situations like yours. Best of luck.

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  • How can i prove the bruises were from willing rough sex and not an assault?

    two weeks ago my exgirlfriend and i had rough sex like she wanted. the next morning she started yelling at me attacked me then called the police and said i 'choked' her. i was in jail for a week and a half and when i got out she had an emergency ...

    James’s Answer

    Do yourself a favor. Consult with a criminal defense attorney immediately. You'll find many experienced ones that have very complete profiles on this site, or contact your local bar association for a referral. Talk to as many as you like, but get an attorney on your side immediately. The responses on this forum could never replace the advice and service of an actual attorney that you hire.

    And this is public. The facts and tidbits that you post here are out there for everyone to see -- even prosecutors. The damage that you could do to your own case simply by sharing is tremendous.

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  • How can i evict a tenant that hasnt paid rent in over 3 years

    we have a tenant that hasnt paid rent in over 3 years. my husband has tried to work with them and tenants say they are trying to get government assistance but has not shown us proof of assistance. they never give us any updated info. they just ign...

    James’s Answer

    The eviction process is fairly straightforward and pretty user-friendly, as most landlords do not always have the luxury of an attorney to assist them. You and your husband have big hearts, but its time to get these crooks out the door. Fortunately, the law is going to be with you on this one, even though you're at least 3 years late in taking care of this.

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  • Will was probated in NC, want to sell property in SC and TX must we probate in those states also

    When my father died we probated his wil in NC where he lived. When we tried to sell some property in FL we were required to probate the will again in FL. Now we want to sell a Time Share in SC and a lot in TX. Can you tell me please if we will hav...

    James’s Answer

    I can't speak to your South Carolina time share. As a practical matter, time shares are usually a pain to deal with in probate. Their value is often so low as to foreclose the idea of even fooling with them.

    I can tell you that Texas may be a relatively easy matter. As far as ancillary probate goes, you might be looking at having the Will admitted here simply as a muniment of title. This alternative to formal probate is most-often used in cases where there is no debt and only real property to dispose of. Depending on the value of the Texas lot, you may still be able to come out ahead, since you'd be looking at a fairly reasonable filing fee and not too much in the way of attorney time spent on the matter.

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  • HOW Does one contest a will? is it done thru the courts?

    i already am sure this is a difficult process< i first want the information cuz i am not an attorney but i wouldnt just higher one not knowing whats involved

    James’s Answer

    Yes, a Will Contest is very much like any other lawsuit. Since the laws concerning Wills and the administration of a decedent's estate are state-specific, you will want to visit with a probate attorney that practices in the state and county where the decedent resided at death.

    Each state has its own twist on the permissible grounds or reasons for a Will Contest. By and large, most contests are brought forward either to challenge the document itself or the circumstances surrounding the execution of the document. You might claim that the signature on the Will is a forgery, or that the Will fails for its failure to include some critical element. Or, you might claim that the decedent lacked the required capacity to make a Will on the date in question, or that another person exerted such influence over the decedent, that they effectively forced the decedent to sign a Will he or she did not agree with.

    Whatever your claim(s), you will most assuredly need the help of an attorney to present and prosecute them. I wouldn't call the process difficult, but your success is heavily-reliant on sound evidence. Most Will Contests that fail do so because it is often difficult to separate what we "know" from what we can "prove."

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  • About a will

    ?is in Texas I have 2 older kids hehas 2 older kids the house we live in was owned by my dad signed over to me with a clause at the end of the deed that only blood heirs can get the house in the event of my death done legally by a attorney similar...

    James’s Answer

    It's a little tough to track your facts, but the home that you live in sounds like your separate property. When your husband dies, his estate will consist of all of his separate property and his 1/2 of the community property. This is the estate that he can pass to any individual(s) in his Will. In the absence of a Will, his estate will pass in accordance with the default rules of descent and distribution. In that case, his children would be entitled to a significant share of his estate. Unless he has adopted your children, formally or equitably, nothing would pass to your children unless his Will specifically provided for them.

    Debts don't really pass along to beneficiaries and heirs like property does. Property will sometimes pass to them subject to indebtedness, but in most cases, the debts of a decedent are paid during the course of administration of the estate. It is the remainder that passes to the beneficiaries and heirs. When you think of it this way, it's a little easier to understand that beneficiaries and heirs are not responsible for the decedent's debts, unless they agreed to be so responsible during the decedent's lifetime (co-signed a note, joint credit cards, etc.)

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  • Can common law husband have a legal will changed if she can't remember that her house is HER HOUSE?

    her common law husband managed to have 3 attorneys say she was competenant when for months prior to the new will drawn up to give him 100% of POA over everything and estate and possessions she was found wandering the streets and didn't know where ...

    James’s Answer

    You need to separate your concerns here. Wills are of no effect until they are offered for and admitted to probate. If, after the wife's death, a Will is offered for probate, and there are issues regarding the wife's TESTAMENTARY capacity at the time of their execution, that's an issue to be decided then. If you have standing to contest a Will at that point, that's when you'd bring up the issue regarding disposition under the Wills.

    The more pressing issue is the current care of the wife -- her ability to handle her personal affairs and financial matters. If you have reason to believe that the wife's husband is passively or actively endangering the wife, guardianship is very likely your best legal recourse. An application may be filed by any interested person. The husband would receive notice of the proceeding by virtue of his relationship as well as his standing as agent under the Power of Attorney. He would likely use the POA as a defense to guardianship, and/or assert that if a guardianship is necessary, he should be the guardian.

    You do not mention your relationship to the wife, but rest assured that given your description of the facts, the husband would defend against the imposition of a guardianship. The wife might do the same thing. Courts are not quick to grant guardianships, but this last resort is often the only alternative that adequately protects an incapacitated person from themselves and others.

    I see that you're posting from the Crowley area. I encounter issues like yours regularly in my Dallas/Fort Worth practice. If you'd like for me to elaborate on my response, or just point you in the right direction, feel free to contact me through the link below or through my profile on this website.

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  • If your brother is executor of your parents will and the will states that everything is to be divided equally amonst 2 children

    does the executor have the right to decide who gets what and chose what he wants and then offer the rest to the other sibling?

    James’s Answer

    Much of your answer lies within the Will itself and the language used by the decedent. It isn't uncommon at all for a Will to leave "my estate in equal shares to my two children." Take every probate asset owned by the decedent and draw a line down the middle of it. That's what you would be entitled to under the Will. Dad had a car? You get half a car. He left a house? You get half the house.

    Obviously, while cash can easily be divided, many assets are not so easy to carve up. The Will might provide for the executor to distribute assets "in kind," which would allow far more flexibility in the management of the estate. $100k in cash to son A and $100k house to son B, or something similar. Many executors are afforded a significant amount of freedom in managing estates, while others are subjected to far more supervision by the Court.

    The real trick comes down to items and assets that are difficult to appraise or assign a value to. In the end, communication and cooperation by all parties will avoid 99% of the headache that can come along with things like this. No, the executor cannot treat himself any better as a beneficiary than he can treat you as a beneficiary. But, if there is a dispute, the executor could very likely just liquidate everything and cut the money down the middle. Nobody really wins in that scenario, and so a good deal of horse-trading might be needed in order to honor the 50/50 language without selling some of the items that are difficult to allocate.

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  • Can my legally incompetent mentally ill son make decisions for himself ?I am his legal guardian. Does he have any civil rights?

    Has been seriously mentally ill for over 30 years. Social sevices has come to our house recently and questioned him when I was not there.We have never had any contact with social services. My son cannot stay alone for long intervals. I employ qual...

    James’s Answer

    Many people use the term "legal guardian" and mean very different things when they say it. A guardian, in the strictest sense of the word, ordinarily means an individual appointed by the Court to make certain and explicit decisions on behalf of another person. Those decisions may be personal and medical in nature, or they might also be with respect to any property currently owned by the ward or owned in the future.

    When a guardianship is created, two major events happen. The incapacitated person (ward) is judicially determined to lack the capacity to engage in certain acts and make certain decisions. Those acts and decisions are spelled out very explicitly in every guardianship Order, and courts are very careful not to unnecessarily limit the decision-making ability of an adult. The second event is the transition of that same decision-making authority to another person -- the guardian. During the process, many of the "civil rights" that you mention are transferred from the ward to the guardian as a result of the removal of authority from the ward.

    Based only on your few facts, it isn't clear if you are a court-appointed guardian or have simply informally continued in your role as parent to your son. If you were appointed by the Court, I'd say that the agency probably overstepped themselves by not coordinating their work through you, or at least contacting you first. But social services and adult protective services are not extensions of the same court that appointed you. They might not be aware of your status, and their reason for visiting with your son had to come from somewhere. I'd be less concerned with the propriety of the agency talking to your son and more concerned about the reason why they are in the picture at all.

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  • In Texas Husband passed away in May 2008 have never went to probate is it true I have 4 years or committing fraud?

    Me and my husband were married, he died in May 2008, me and my son (which is his) remain in the home we have lived in for 15 years and I have continued to pay the mortgage. The mortgage is only in his name, The taxes are in mine. If I go to prob...

    James’s Answer

    Mr. Geffen has given you a great response. Unless you've made some statement or given some indication that your husband is still alive, I'm not hearing anything in your facts that sounds fraudulent. If anything, you're guilty of procrastination, which is very common under circumstances just like yours.

    The four-year period that you might be referring to is the time within which a Will must be offered for probate, if an executor needs to be appointed. Even then, the concern would not necessarily be fraud, but rather default, or failure to bring forward such an important document within those four years.

    In many cases like your own, where the house is the only asset and there are no unsecured debts, formal probate procedures can often be avoided. Texas offers quite a number of options that are less formal than the creation of an administered estate. Most importantly, these procedures can clear up title issues with real property, so that the rightful owners can borrow against the house or sell it without problems if they desire. At worst, you might not be listed as a co-borrower on the mortgage, and the terms might only be based on your husband's credit. In that event, the mortgage company has policies and procedures in place for assumption of the existing loan, and they can walk you through those procedures.

    It sounds like you've either heard and misunderstood something, or you might be receiving knee-jerk advice from a non-lawyer. Do yourself a favor and contact a probate attorney near you to learn just how this situation can be resolved. I think you'll find that your options are easier to handle than you think.

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