Skip to main content
Steven Drew Baker

Steven Baker’s Answers

338 total


  • No will what to do

    there is no will three grown children one of which has not been seen or heard from in 20 years.we have property, bank accounts, stocks need to get the life insurance money but cant without the proper papers. what do we do?

    Steven’s Answer

    You need to visit with an experienced probate attorney, who will need to look at all of the documents you do have and discuss further details regarding the family situation (that you may not feel comfortable with discussing here) and should be able to provide you with the legal and practical options with respect to the proper disposition of each asset. Generally speaking, if the assets are payable to the estate of the decedent and there is no will, then (1) there is a statutory priority as to who may be appointed as administrator, who would be required to approve of that appointment, and how the assets are to he distributed; and (2) an attorney ad litem will always be appointed by the court to represent potentially undisclosed heirs and heirs who cannot be found, and as such, if there are sufficient assets in the estate, then there will be an investigation to track down the heirs who have not been seen or heard from in 20 years (i.e., you should not informally distribute assets to certain heirs just because you cannot easily track them down).

    See question 
  • We have been waiting 3 months for an attorney to complete a trust. What can we do to get him to complete this?

    He will not return our calls.

    Steven’s Answer

    I agree with the comments above with the caveat that you should first make sure the attorney has ALL the information the attorney requested from you to prepare the document. I would also look at the terms of the written engagement agreement regarding termination (e.g., unbilled fees and any retainers). If you have provided all the requested information, then yes, in a manner consistent with the engagement agreement, I would send formal written correspondence to the attorney requesting (a) a response by a certain date or (b) terminating the engagement and requesting the return of any documents your provided and any retainer balance.

    See question 
  • Intestate probate, inheritance of a minor child and duties of estate administration?

    My daughter's father passed away last month, we were not married, he died intestate and our 13 month old daughter is his only heir. His parents recognize that my daughter is entitled to everything in his house and have said they need my permission...

    Steven’s Answer

    I agree with the others, although I would emphasize that the most important task right now is determining whether and to what extent there are sufficient assets of value to administer and what those assets are. That fact is critical because it dictates whether or not you would be spending time and money to actually accomplish something on behalf of your daughter (as opposed to, for example, collecting assets to pay the creditors of a bankrupt estate). Whoever has lawful access needs to go through his paperwork and mail to get a picture of what there.

    I would point out that, depending on the circumstances, it is not necessarily the case that you would have to have a full-blown guardianship of the estate for your daughter (e.g., the court could establish a management trust).

    I would also reiterate that, without knowing anything more about your relationship with the decedent, if you and the father were living as husband and wife - even if not formally - you may be considered the surviving spouse; but common law marriage is a very fact specific inquiry, and you need to discuss such issues with an attorney.

    See question 
  • If a husband dies in Texas, without a will does the wife get the house automatically ?

    my husband believes he doesn't need a will , my husband believes it becomes my automatically . is this true ?

    Steven’s Answer

    You and your husband should see an attorney; but you need an attorney who is well-versed in ALL of the available means of passing title upon death, the availability in your situation, and the pros and cons of each - and let YOU make the informed decision for yourself. It may be the case (e.g., if there will be tax or other creditor issues) that the probate process should be used wind up affairs and the like, so one should always have a will, at least as a backup. However, believe it or not, there are other means for passing title at death that avoid unnecessary probate proceeding for simple estates and which can be particularly useful when the intended beneficiary is the surviving spouse - e.g., community property with right of survivorship, joint bank accounts with rights or survivorship and pay on death designations, etc. (NOTE: Contrary to popular myth, spouses CAN establish rights of survivorship to real estate in Texas by agreement; and no, title companies cannot simply "refuse to accept" it. Also contrary to popular myth, the surviving spouse doesn't need to be appointed as "executor" or "administrator" in order to file a final joint income tax return.)

    Unfortunately, in Texas, most of the lawyers you are likely to encounter are quite parochial about the exclusive use of wills in estate planning. As an attorney who studied law under Professor Johanson at the University of Texas AND also practiced for a decade in other jurisdictions, I can tell you that the notion that Texas probate is uniquely inexpensive and easy because it offers "independent" administration is - oh, what's a good Texas term - hogwash. For example, in many other jurisdictions (unlike "independent" administration in Texas), an executor of an estate can initiate an "informal" probate without even having to attend a hearing AND use notice procedures that actually shorten the limitations periods on the claims of creditors of the estate. Indeed, most states (unlike Texas), have a simple non judicial small affidavit procedure for passing title by WILL when the estate is under a certain amount (usually $50,000). Yet you don't see the aversion to the use of nonprobate alternatives in those states that you do in Texas. I suspect there are three reasons for this: (1) in Texas, folks have a cultural fondness for tradition ("this is the way it's always been done, son"); (2) under Texas law, a trustee or executor must be represented by counsel in a judicial proceeding unless he or she is the sole beneficiary, so probate means more attorney's fees down the road (no matter how "independent" the proceeding is); and (3) the Texas bar seems to be heavily influenced by the statutory probate court judges, many of whom seem intent on seeing everything pass through their doors. Whatever the reasons, as I have been told by several clients, it can be difficult to find a lawyer in Texas who doesn't subscribe to the will as the one-size-fits-all approach to estate planning.

    See question 
  • Do I have to designate my spouse as the sole beneficiary for an inherited IRA?

    My mother's IRA custodian is allowing the beneficiaries of her estate to set-up individual "Traditional Beneficiary" accounts for our respective distributions. In order to create an account with this custodian, I am required to fill out an applic...

    Steven’s Answer

    While it is true that ERISA (federal law that governs 401ks and the like) does not require spousal consent to designate a beneficiary of an IRA and it is true that the assets in the IRA passing to you upon the death of the original owner are you sole and separate property, in Texas, future income (interest and dividends) earned on the IRA during the marriage will be community income unless you and your spouse have a written agreement to the contrary. This COULD be why the custodian is asking for her waiver.

    See question 
  • Is it absolutely necessary to acquire an attorney when handling a proof of heirship proceeding with the probate court?

    I am the daughter of the deceased and have two other siblings. Formally, I am the next of kin listed as such on her death certificate.

    Steven’s Answer

    If you are seeking the appointment of an administrator of the estate, under the circumstances you have described, the administrator would have to be represented by a lawyer. Otherwise, there is no such requirement under Texas law.

    That said, whether you SHOULD be represented by counsel is another issue altogether. A declaration of heirship proceeding is not as simple as it sounds (eg, attorney ad litem must be appointed, the testimony of disinterested witnesses is required).

    See question 
  • Father died 1988 with no will an we're probating in 2013. Will court use 2013 community property section 45 laws or 1988 laws.

    All of seven children belong to both parents and living spouse want to write will to give house to only on person.

    Steven’s Answer

    As Mr. Schwartz said, the law at the time of death will define who the heirs were.

    In this situation (where there is no will), an administrator of the estate may not be appointed unless necessary to collect or claim assets of the estate, and although there is no statutory impediment (as there is with the probate of a will), it is my understanding that some courts in Texas may not issue a declaration of heirship more than 4 years after the date of death.

    See question 
  • Is there a relatively new Texas law which allows the beneficiary of an irrevocable trust to collect more principle if necessary?

    If there is, what is the specific name of the law, and what are the details of it.

    Steven’s Answer

    There is a new statute on the Texas Trust Code that uses the term "distribution" to refer to what is actually "decanting" (transferring the assets of an old trust to a new trust), but that statute has a very limited scope.

    See question 
  • Are offshore asset protection schemes fully legal? Do they actually work?

    For years I've run a tiny hedge fund out of my home, track record good, just now starting to see interest from entities that don't know where my kids go to school. Concerned about a variety of low-probability, high-impact events eg business or inv...

    Steven’s Answer

    • Selected as best answer

    The upside:
    Foreign asset protection trusts in a jurisdiction with the International Trusts Act like the Cook Islands do offer more creditor protection than domestic asset protection trusts, which when push comes to shove are ultimately going to be subject to US bankruptcy proceedings regardless of what state law says. You will hear a lot from critics of FAPTs about a case out of Nevada a decade ago involving a Cook Islands trust where the court jailed a trust protector for contempt for not recovering the funds for a creditor before the court; but what you won't hear from critics is that the judge had to release the trust protector because the foreign trustee refused release the funds to a party under duress, and even the FTC could not recover the funds in the Cook Islands courts. That brings me to ...

    The downsides:
    You have to find a trustworthy independent trust protector - who controls the distributions - willing to go to bat for you.
    If push really came to shove with respect to litigation or bankruptcy, you would probably have to go offshore to benefit from the funds.
    With the reputable institutional trustees, practically speaking, the minimum investment is at least $10M and no more than about a third of all your assets.

    See question 
  • Generally speaking, what is the average cost for the appraisal of property?

    My family has 12 acres of land that needs to be appraised. What is the ballpark figure that Appraisers generally charge to do this? Also, will they mark off exactly where the acres begin and end so that we will know where the property line begi...

    Steven’s Answer

    The cost could run from a fee hundred to a few thousand - it's like anything else - it depends on the type of property (eg, whether mineral interests are included), the purpose of the appraisal, and the availability and qualifications of the appraiser. You tend to get what you pay for.

    As for your second question: probably not. It sounds like you may need a surveyor.

    See question