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James Brian Thomas

James Thomas’s Answers

591 total


  • Can you change guardianship of children in TX under a Codicil? If so, what is required and can I use an on-line form for TX?

    Any certain language required, etc?

    James’s Answer

    Yes, you may nominate a guardian for your children in your Last Will and Testament, and you could change this preference in a Codicil to that Will. You should be mindful of the fact that you are not naming a guardian when you do this. A Court will do that, if necessary. All that you're doing is making your preference known, which carries significant weight with the Court.

    Please don't do this online. You're talking about taking measures to protect your children and their future property. It's worth the time that it takes to visit with an attorney, and it's worth the modest investment to have this step accomplished correctly.

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  • Does signing and returning a "Waiver of Citation and Consent to Independent Administration" void the entitlements of heirs?

    My father passed away in November 2013 in Tarrant County, Texas. My sisters and I are from Michigan. We received this waiver in the mail and are being asked to sign it, have it notarized and return it. I spoke with the court appointed attorney...

    James’s Answer

    The document that you've likely been asked to sign is commonly used, but you may wish to be cautious relying on the advice or guidance of the attorney representing your stepmother or the attorney ad litem appointed to represent unknown heirs. Neither of these attorneys represents you, and you have the right to seek your own legal counsel on the issue.

    Independent administrations in Texas, which is what is being sought here, are often the most efficient means of administering a decedent's estate. They are so useful that many people mandate their use in their Wills. Even in the absence of a Will, or the absence of instructions in a Will, an independent administration can be created when all of the people entitled to inherit agree to the advisability of this procedure. It's your agreement, as an heir presumably, that your stepmother is probably asking for here.

    While your consent to administration won't alter the distribution scheme of your father's estate, you will be consenting to a procedure that you may or may not agree with. From the sound of things, it seems that you may not fully agree with providing your consent, and you should know the consequences of providing (or withholding) that consent. Use this opportunity to seek out the advice of an attorney experienced in these matters.

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  • If you are a beneficiary to a trust, how do you get documents disclosed if there is no official trustee?

    If you are a beneficiary to a trust, how do you get documents disclosed if there is no official trustee?

    James’s Answer

    As the other attorneys have pointed out, it's critically important for any attorney engaged in this matter to know who the Trustee is. The Trust document itself should address who this person is, was or should be in the event of a trustee resigning or dying. Often, as a last resort, our courts can take this issue up and ensure that the lawful terms of the Trust are properly carried out. No responsible attorney would recommend that you try to solve your issues with "self help." Seek out and contact a probate and/or trusts lawyer to gain some meaningful insight.

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  • Common law marriage. Is it hard to prove in court in Texas.

    My spouse and I have been living together since 11/2010 and have purchased multiple vehicles in both are names, I have copies of the contracts and applications from the lenders showing she signed the application as spouse. We also have multiple ba...

    James’s Answer

    Sure, it can be hard to prove. It can also be fairly easy to prove. You've previewed some of your evidence, and much of that tends to support a claim for common law marriage. Unfortunately, this website works better as a way to contact and retain good counsel, rather than use us as a sounding board. We don't get to decide your case.

    If you're headed to court next month, you need to act quickly to hire an experienced attorney that has worked with similar situations before. Attempting to do this alone, simply because you like the answers you received to your question, is not a wise choice.

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  • Probate closed for 8 yrs, how do I get my father's spouse to pay property taxes, she waived homestead rights & lives in the home

    Father died, he left a will. He & his wife(not my mom) filed a marital agreement were she waived her homestead rights. His will state that the wife has a Gift to stay in the home that they shared doing their marriage own solely by him & that the w...

    James’s Answer

    Mr. Pyke is correct. Your money would be better spent on retaining a good lawyer than paying the tax. What you want to accomplish here is not in the "self-help" category. Start making a few calls and relate your facts to an attorney. You're bound to find one that is willing to help you and be sensitive to your finances.

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  • Can a will be contested for leaving everything to two natural children and nothing to the adopted child?

    Mom and dad divorced when I was a teenager. Dad adopted me because I was from my mothers previous marriage. I was three at the time. Until they divorced when I was thirteen I thought he was my biological father. After the divorced he completely di...

    James’s Answer

    There is no requirement to leave any inheritance to anyone in Texas. Parents can exclude their children (natural or adopted) from their estate plan. This act, by itself, does not invalidate a Will and may not, by itself, give you the foundation required to challenge the Will in Court.

    You should take your facts (as few as they may be) to an experienced probate attorney familiar with Will Contests and probate litigation. Even though your father may have had the right to exclude any person he chooses from his estate plan, there may be other facts upon which a contest to the Will could be brought. Your potential interest in his estate is at least worth the time that it takes to call an attorney or even spend an hour or so consulting with one in person. Best of luck.

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  • How have I disobeyed the law. I rent out the property w/o, 3 of 5 heir & a Will . I want to sell my portion. can I do that?

    I want out ASAP The family advised letting the neighbor buy the house after repairs. Now they do not want him to buy it.

    James’s Answer

    You don't provide nearly enough facts for the attorneys that review these questions to give you any real meaningful insight. You should contact a lawyer and take the time to visit with them immediately.

    Off the cuff, it isn't at all clear what authority you have to enter into a valid lease agreement. It doesn't sound like you own the property -- or at least all of it. From the few facts you give, it doesn't sound like any person has this authority, since no Executor or Administrator has been appointed. These are not steps that you want to take without the advice of an experienced probate attorney. Move on from the quick and easy answers that can often be found on this site. If you want real advice, real answers and real guidance, get to an attorney now.

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  • Contested probate,I can't afford counsel,

    Judge set up community mediation.set up now, I have proof the it will is fraudulent.as parent has Alzheimer's,when their will e as done.what chances that their will be overthrowi n court,also the deceased left that will prior to her death, but ...

    James’s Answer

    Both attorneys that have addressed your question are correct.

    First, you are at a serious disadvantage if you proceed without a lawyer. The benefit of counsel is an expense that you are either able and prepared to incur or not. Some attorneys may be willing to accept your case on a contingent fee arrangement -- meaning they are paid a percentage of what you receive IF you win. Since this is often a big risk for the attorney, a stronger case will be more attractive than a weaker one. I would encourage you to visit with a few attorneys to evaluate the strength of your case. Many attorneys would briefly visit with you for free, or for a small consultation fee.

    Second, evidence of Alzheimer's -- either a diagnosis or treatment, will likely NOT, by itself be enough evidence to overturn a Will based upon diminished mental capacity. People with the disease can still execute perfectly valid Wills. A claim of diminished mental capacity is extraordinarily fact-specific. Your lawyer would need to review the Decedent's medical history and compare that history with the Decedent's mental state on the date that the Will was signed.

    Take the time to visit with a few attorneys to understand the road in front of you with a bit more information. The more prepared and informed you are, the better your chances for what you consider a successful result.

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  • My father passed away in September 2013. My oldest sister was his guardian since 2008 (Court Appointed) due to Alzhiemers.

    I know my father had assets, yet my sister has not mentioned anything about his assets to me or any of my six other brothers and sisters. My father lived in Maryland with my oldest sister when he passed. It is now six months and I just wonder how...

    James’s Answer

    Your question doesn't mention where the guardianship for your father was created, and it may make a tremendous difference if your sister was appointed in Texas or Maryland. You might repost with a bit more detail, if you know it, and gain some better insights from the attorneys that routinely check these questions.

    If your sister was a Texas guardian, she has certain reporting requirements (depending upon what type of guardian she was). You, as an heir, have the right to review any report or accounting that she submits to the Court for approval. You also don't mention whether or not your father had a Will, and you might not even know if he did or not. In Texas, there are procedures to move the matter forward, or participate in any hearing if the process has already begun.

    Don't try to do this alone, and I wouldn't stop at simply asking questions in a forum like this. Seek out and speak with an attorney regarding these issues (either in Texas or Maryland, depending on the facts). Best of luck.

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  • Can I get proof of death of a trustee without getting a subpoena for a death certificate?

    There is a trust created by grandparents, both now deceased, and the person appointed trustee is also deceased. I am filing a motion to appoint a successor trustee because the trust document did not provide for one. Do I have to get a subpoena f...

    James’s Answer

    Evidence is evidence, and while a Death Certificate might certainly be most persuasive to a Court, it doesn't mean that the Certificate is the only way to prove that someone has died. How did you learn that the Trustee was deceased? Did you read an obituary? Did someone tell you, and would they come to Court to testify to the same fact?

    From your question, it doesn't sound as though you are represented by an attorney, and I strongly encourage you to revisit the wisdom of this decision if that is, in fact, the case. An attorney experienced in trust and probate matters might make this road quite a bit easier for you to travel.

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