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James Brian Thomas

James Thomas’s Answers

591 total


  • What is the executor's compensation managing a Will?

    I am 52 and preparing my Last Will & Testament. I live in Arizona, and my executor is in Florida. What is the customary compensation he should receive from my estate? Do I have to file the Will in Pima County? carmela

    James’s Answer

    Mr. Zelinger has given you a terrific response. If only to highlight his first thought, writing your own Will often spells disaster, and can easily undermine the intentions that you've carefully considered and put down on paper. If you're willing to do the estate planning (which is admirable,) do yourself a favor and get it done right with the assistance of an attorney.

    I might also add that while foreign (out-of-state) executors are not universally prohibited, I've been constantly surprised at the number of my colleagues that have posted here advising that non-resident executors are not permitted in their particular jurisdictions. All the more reason to have your plan constructed with the help of an estate planner familiar with the laws of the state that you reside in.

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  • MY NIECE'S FATHER DIED HE WAS REMARRIED AND THERE WAS NO WILL WHAT RIGHTS DOES MY NIECE HAVE AND WHAT IS SHE ENTITLED TO

    REMARRIED HAS TWO DAUGHTER BY PREVIOUS MARRIAGE NONE WITH SECOND WIFE

    James’s Answer

    I'm assuming that the decedent died in Texas. When a person dies in Texas without a Will, we apply a set of statutes of descent and distribution, and the situation is commonly referred to as "intestacy." This is the Will written for you by the government, and it's yours until you change it by writing your own Will.

    Applying that Will requires at least a little education on our community property principles. Separate property is property that a person acquires before a marriage, or during a marriage by gift or inheritance. Community property is everything else.

    Under your facts, the decedent was married with two children from a previous marriage. The community property shared by the decedent and his wife is split down the middle. The surviving spouse retains her one-half of this property, both real and personal. The decedent's half of the community property passes to his children in equal shares. If the decedent owned separate property, it passes in thirds -- 2/3 to his children and 1/3 to his surviving spouse, both real and personal. The catch with separate real property is that the 1/3 that passes to his surviving spouse is ultimately only a life estate. The surviving spouse has the right to live in the home, but at her death or abandonment, the property reverts back to the decedent's children. The link below is provided by the Harris County probate courts, and it often helps explain all of this division.

    Our probate laws and homestead provisions can heavily favor a surviving spouse in situations like this, often making things difficult for years when the decedent's children do not have a good relationship with their step-parent. You would be well-advised to encourage your niece to locate an experienced probate attorney near her to walk her through what is likely going to happen next.

    I see that you're posting from Mount Vernon, which is not all too far from my Dallas/Fort Worth practice area. If you'd like, I wouldn't mind elaborating on my answer and pointing you in the right direction. Feel free to contact me through the link below or through my profile on this site.

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  • I cared for my aged and infirm parents for years and now the trust will put me out of the home after two years that is if the es

    I live on disability and I have cared for both parents who are now deceased. In the trust two years paid for me to live in the home. How can I remain in the home. I am also a veteran and am 65 years old. I have 5 living siblings who before this cl...

    James’s Answer

    • Selected as best answer

    If I understand your question correctly, you are the present beneficiary under the terms of a Trust created by your parents. By that Trust's terms, your interest (the right to live in the home) is going to expire and you want to know how to keep it from expiring.

    One of the first things that you need to realize is that your parents' intent here still plays something of a role. It's their Trust, their terms, and is designed to represent what they wanted. Courts throughout our country routinely defer to and enforce these intentions and wishes, even if the beneficiaries might hold different intentions and wishes.

    That said, the modification and even termination of trusts is not impossible, and can even be quite easy in some cases. You don't mention it, but very particular attention should be paid to the terms of the Trust that discuss what happens when your 2 years are up. Who is entitled to the property? These beneficiaries of the future are your chief concern. They might consent to changing the Trust to provide you with more time, or they might consent to terminating the Trust and give or sell you their interest in the home. Or, they might surprise you and tell you that you're out.

    In any event, do yourself a favor and get a copy of the Trust instrument in front of an experienced probate attorney. That attorney can guide you through the possible outcomes and try to navigate you through whatever options you've got available. Best of luck.

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  • Known heirs and unknown heirs

    I am an heir and I am named in the Will. I paid for the funeral of the deceased because the Executor refused. I pay the property tax on the house because the executor's attorney put the house in my name. The executor has sued me and unknown heirs....

    James’s Answer

    It sounds like you've already been through quite a lot, but it may get more complicated before it gets any easier. Funeral expenses are almost universally a prioritized claim in every jurisdiction that I have encountered. That said, there are often some very strict timelines and form procedures regarding the proper presentation of claims against an Estate. Even if everyone knows that you paid for the funeral, you should consult with an attorney immediately to ensure that you've taken the necessary steps to perfect this claim against the Estate. Otherwise, depending on how supervised the administration is, the Executor might not be able to pay the claim even if he wanted to.

    As for the suit to the heirs, I can understand how you might be a little bit perplexed. Where this a Texas case, I might take your facts to suggest that the Decedent's Will somehow failed to address all of his or her property -- resulting in a partial intestacy. This is an odd situation where a Will exists to some of the Estate, but not to all. For the part that passes outside of the Will, the Court might need to judicially determine who the heirs are, and this often requires an action in the probate court that appears very much like a lawsuit, because it basically is one. All the more reason to consult with a probate attorney immediately.

    You've clearly got an executor doing his own thing without much information funneling down to you. This sort of stuff happens all the time, and it's one of the primary reasons that I always encourage beneficiaries and creditors like yourself to seek good counsel. The executor is working to get his job done, and should be doing so with an eye toward avoiding liability. At the same time, the executor is not there to make sure that your rights are advocated or even properly protected. You need to be proactive about this and get your information in front of somebody on your side.

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  • Idaho - My mother died intestate in Nevada. She had 1 burial plot in Boise ( Morris Hill) . Must it be probated in Idaho?

    Plot (approx value <$700) constitutes the only property in Idaho. It was left to her by her Step-Mother (d. 1947). Mother did not wish to use it and will be cremated in Nevada. Balance of her estate in is Nevada, is <$20,000 and can be transferr...

    James’s Answer

    You might also consider re-posting your question under the real estate heading. I'm afraid that I don't know how they treat burial plots in Idaho, but in Texas, we consider them real property. Sadly, this means that some level of probate is often involved in order to pave the way for any transfer of the property. It's quite likely that an alternative procedure to formal probate, like the Affidavit that you're using in Nevada, is available in Idaho. Best of luck tracking down a solid response.

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  • Who should pay the maintenance fee for a co-op apartment during the probate process?

    The apartment was left to a specific beneficiary who does not live in the apartment, and the estate has enough liquid funds in the residuary to pay the expenses during the 7-8 months of the probate process. Is it the estate's responsibility to pay...

    James’s Answer

    Stick around for a response from any of the several experienced New York probate attorneys, but I believe that you're going to find that the answer is largely universal regardless of the jurisdiction. Until such time as the Estate no longer owns the property, the Estate is liable for the expenses of administration, including the upkeep and preservation of Estate assets. When the property is actually transferred to a beneficiary, the beneficiary accepts that property subject to indebtedness and ongoing expenses, absent some contradicting language in the Decedent's Will. Bottom line: It's likely the Estate's problem until it's actually transferred to the beneficiary.

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  • Why in the state of Il. when 2 people own a home equally left to them by their parents ,as stated in the trust,one can live

    in the home and the other is still expected to pay half the taxes and insurance?The mortgage is paid off. It seems one person benetfits and the other does not.I have my own mortgage and taxes. I think I am owed money.Isn't the person living in th...

    James’s Answer

    Your answer lies within the terms of the Trust itself, and you should seriously consider taking the Trust document and your concerns to an attorney. The Trust's terms might be written in any of a variety of ways, and the terms should evidence the intent of the person(s) that made the Trust to begin with.

    Does the Trust document include any provision about occupancy? Is this live-in arrangement the product of the Trust's terms or simply a product of one beneficiary taking advantage of another? Does the Trust document discuss the items that concern you, including the mortgage, taxes and expenses of upkeep?

    If the Trust truly distributes the property in equal shares, then the beneficiaries should be equally liable for the expenses that come along with the property. Nobody benefits from a vacant house, but if one beneficiary is receiving a premium by virtue of occupying the house as well, then certainly that benefit should be taken into consideration when allocating the expenses. You'd be well-served to take your concerns to an attorney near you in order to fully appreciate the situation that you find yourself in.

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  • My lawyer will not proceed with the necessary steps to finalize the will. He is dragging his feet. What must I do?

    I am the executor of my Dad's will. It has been 2 years since his death (January 17, 2010) I have had appraisals done on the 37 properties, paid all the taxes and debts, gave an inventory and now it is time to set a court date. I have four heirs...

    James’s Answer

    Mr. Morgan is absolutely correct. You aren't married to your attorney, although it certainly would seem as though this Estate might come with something of a learning curve for a new professional. Ineffective communication is hands-down the number one reason why attorneys fall into disfavor with their clients. Year after year, across our entire country, failure of communication lies at the heart of fee disputes, grievances and malpractice claims.

    If you are not satisfied with the level of attention that your attorney is providing to you, feel free to change that equation. Do yourself a favor and document your concerns to your present attorney. Give your attorney something in writing that cannot be as easily ignored as a phone call or email. Concrete deadlines and expectations may remedy this matter for you, and save you the trouble of finding somebody new.

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  • At what point do you hire an attorney if you are having issues with a family member named executor of will you are a beneficiary

    My grandmother's will states my Uncle doesn't have to file an inventory so he is being vague about the amount of oil/gas wells royalties owed to me and my brothers. He also hasn't distributed stocks. He also stated her personal checking account wa...

    James’s Answer

    • Selected as best answer

    A good answer really depends on some additional facts. First, it's incredibly important to know where the estate is being administered. Second, many states have altered or amended their inventorying statutes over the years. Texas, for example, has caught on to this trend by recently relieving the executor from making specific asset property public in certain circumstances. This should never be confused with an executor's fiduciary obligations, as those have only been broadened if anything. If you're a beneficiary, you're actually entitled to a pretty fair amount of information. If you aren't getting it, or if you have the feeling that something isn't quite right, there is no such thing as "too early" to contemplate visiting with an experienced probate attorney near you.

    I notice that you're posting from the Fort Worth area, which is one of several areas that I serve clients in. You don't mention where the estate is pending, but if it is a Texas estate, feel free to contact me through the link below or through this site. I'd be happy to learn a bit more about your case and see if we can't make sure things are moving forward appropriately.

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  • Is there a way to change title without probate?

    There are only two children and the oldest is the executor. The will states to share and share alike equally. There are no debts, the estate is right at $200,000 and everything including car, house and furnishings will need to be sold and procee...

    James’s Answer

    • Selected as best answer

    Formal probate is your best solution, and the process is likely easier than you might imagine. Given your facts, an actual administration of the estate might not even be necessary. In many circumstances like you describe, it is perfectly appropriate for the Will to be offered and admitted to probate as a "muniment of title." In such a proceeding, the Will is admitted and made effective, but no executor is appointed. The Order appointing the Will, and the Will itself, serve to transfer title to the beneficiaries thereunder. This method is not only effective, but highly efficient, as the attorney involvement and required fees are relatively low.

    Unfortunately, simply taking the Will to an attorney isn't likely to yield anything more than an educational outline of the procedure I've mentioned. On occasion, specific affidavits can be used, but the effectiveness of their use really depends on the third-party (like a title company) that you're trying to convince of your ownership interest. Muniments of title, as a general rule, are probably preferred more than the alternatives. Transferring title following death is precisely what probate is designed to accomplish, and while there are a handful of ways to avoid it, your case doesn't sound like one that can be handled without at least a little court involvement.

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