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James Brian Thomas

James Thomas’s Answers

591 total

  • What are the responsibilities of an Executor of a Will/Estate in Texas?

    My mother passed away in 2010 and my Uncle (her brother) was names as Executor of her Will and Estate. According to the Will a few small personal items went to various people with "the residue of my estate, real, personal and mixed, whereever s...

    James’s Answer

    Having an attorney is never a bad idea, and you should certainly consult with one at a minimum. Executors in Texas have 3 basic jobs. Collect assets belonging to the Estate, pay and resolve proper debts against the Estate and distribute the remaining property in accordance with the Decedent's Will. Wrapped up in those 3 jobs could be a little or a lot of management, depending on a number of facts.

    If your mother co-owned a home with another person, and if you received your mother's interest in the house under her Will, the Executor should have executed and recorded a Special Warranty Deed to reflect the change in ownership as a result of the distribution. Obviously, this assumes that the remaining property (including the house) is sufficient to cover the proper debts of the Estate and the expenses of administration. In the end, you wouldn't own any greater interest in the home than your mother did.

    Divided ownership issues in probate are very common. Many times they present practical problems. Who wants to own 1/2 of a house? It isn't likely that the other co-owner wants to share the residence with you, and nobody wants to buy your 1/2 from you. Most issues like yours are resolved by one co-owner purchasing the outstanding interest, or the co-owners selling their interests to a single third-party. You don't mention the other co-owner much. Have you addressed this concern at all with them?

    If no agreement can be reached, the Court could ultimately order a partition and sale of the property, and the proceeds would be divided at that point. Executors in Texas (except in only some very rare cases) must be represented by an attorney. You might make an effort to contact this attorney to gain a better understanding of where things stand. With your mother passing away nearly two years ago, many of the beneficiary timelines that permit you to request and compel information have lapsed -- meaning that you are now likely entitled to quite a bit of information and action.

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  • Is it illegal to put married on death certificate if deceased was divorced?

    If so, who do we contact to correct the information? Deceased had been divorced for over 30 years. They were still living in the same house, but not married. Now we are thinking this was done intentionally so that everything the deceased owned wen...

    James’s Answer

    You need to visit with a probate attorney very soon. The notation on the certificate may have been a mistake, or you may be correct that there is an intent behind it in order to benefit through fraud. At the same time, the probate attorney that you visit with will be able to tell you more about informal marriages (if they even exist in the decedent's jurisdiction).

    Issues like this can be cleared up in many ways. For example, the decedent may have left a Will, where he or she affirmatively acknowledged a marriage or specifically stated that the individual was not married. In the absence of a Will, an heirship proceeding might be needed in order to judicially determine the decedent's marital status and heirs at the time of death.

    In any event, marital status can carry significant consequences in many states. Surviving spouses are entitled to very specific benefits under many circumstances. I would make your first contact to a probate attorney to further develop your facts and learn just what steps you can take to ensure that the facts are brought to light.

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  • Is settling with charities named in a will possible if they are receiving a substantial amount?

    My father died and appointed me as executor. I have two siblings. There are monetary provisions in the will for each of us. However, after the dollar amounts given to each of us, he left the rest to two charities. The rest is a substantial amount ...

    James’s Answer

    I suppose that nothing keeps you from asking, but I wouldn't expect to find any charitable beneficiary willing to accept less than the Will provides to them. It isn't as though you're negotiating a debt. Further, you might even be careful asking without the thoughtful advice of counsel. Being both executor and beneficiary does not create a conflict per se, but your approach already seems to be tilted toward favoring one set of beneficiaries above another. That's a recipe for breach of fiduciary duty, and any beneficiary under the Will would keep a very watchful eye on your activities as executor.

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  • How to get guardianship?

    My sister died in July and her two daughters are living with me. They have seperate fathers and neither pays child support nor live in state. How can i get guardianship?

    James’s Answer

    Guardianships can certainly be complex, but they are inevitable in so many cases. To answer your question, the process begins with retaining a guardianship lawyer near you. An application would need to be filed for each of your nieces, requesting that you become the guardian of their person and/or estate. As it is unlikely that the children have any property of their own, you might be able to avoid guardianship of the estate.

    Notice of the proceedings would absolutely need to be given to their fathers. Deadbeat as they might be, these men are entitled to the same due process as any other biological parent. When considering your qualifications as guardian, the Court would also consider the best interests of the children and the unavailability of the fathers.

    I see that you're posting from the Plano area. I see issues like yours regularly in my
    Dallas / Fort Worth practice, and I'd be happy to elaborate on the process if you'd like. You may reach me through the link below or through my profile on this site.

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  • My spouse closed our joint account three years ago, keeps "his" money to himself. Is that legal?

    Three years ago, when I was pregnant, my spouse closed our joint bank account and put all the money into a new account without telling me. I was visiting my mom out of state. He called me and said, "ha ha, the account's closed". I have a small par...

    James’s Answer

    Whether your spouse's actions are illegal or just ill-informed really isn't the issue. Calling it a name doesn't get you your money. And a chunk of whatever is in that account is very likely your money.

    Texas is a community property state, and I'll assume that you and your husband do not have any sort of prenup or marital agreement. One of the many rules of community property that may apply to your situation is what is usually called the "income rule." Generally, income earned during a marriage is community property, and wages are a great example. If your husband is depositing his or your wages into his secret account, he's hiding your money from you.

    You need to get a handle on this before it gets out of hand. You might begin by educating your husband on community property, or directing him to any of the many resources on Texas community property principles that are widely available.

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  • Power of Attorney

    If a personal representative, trustee has valiated there duties of a decedent trust. If the beneficiary can not get any information from different institution about there mohters estate. Can a lawyer or judge appoint a beneficiary power of attor...

    James’s Answer

    I agree with all of the previous responses. Some of your terminology suggests both an open probate administration, perhaps a Will, and maybe even a Trust. In any event, they all fall under the same radar of the probate courts. The actions of a personal representative, executor, administrator, trustee, etc. are all reviewable by the Court, and the options for relief are several.

    Unfortunately, your concerns are going to continue to fall on deaf ears to third-parties and especially to the fiduciary that you're concerned about here. You need an attorney to bring your concerns in front of the Court. At that point, based upon proper evidence, the Court can remove and replace the fiduciary, compel a specific action, or take whatever steps are necessary to provide the beneficiaries with the information that the beneficiaries are actually entitled to. Bear in mind that the information that you're seeking may not be something that the beneficiaries are entitled to under our laws, but you won't ever see it if you don't start asking the right way.

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    James’s Answer

    When a person dies without leaving a valid Will, their estate passes under the intestacy statutes for the particular state that they resided in. It isn't clear whether you live in Missouri, or whether your aunt resided in Missouri. Maybe both. I've provided you with a link to Missouri's statute on descent and distribution, which spells out who is entitled to receive what share of your aunt's property based upon several family facts that you don't really get into.

    If you're concerned about protecting an interest that you or others might have in your aunt's estate, you should seriously consider taking your concerns to a probate attorney near you. Intestate estates are not complicated to calculate (given all of the facts) but they can certainly be confusing for a family that is distant, separated or just unclear on how the law actually works.

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  • Is an Attorney supposed to be on the side of his client?

    We hired an Attorney to represent my Son0in-Law and when the Attorney met with him in jail yesterday he had a very negative attitude and told my Son-in Law he would be spending a lot of time in jail and that there was nothing the Attorney can do f...

    James’s Answer

    First, as my colleague has pointed out, the truth can sometimes sting. This is particularly true in the case of criminal charges, as there may or may not be an alternative to the punishment fitting the crime.

    That said, attorneys are hired and fired every day. While another attorney might not be able to do anything more for your son-in-law than the first, there's nothing that should stop you from seeking a second, third or fourth opinion. If you aren't satisfied with the attorney that you've hired, fire him. Do it in writing. Send your mail certified, and take avoidance out of the equation. Carefully review the agreement that was signed to understand what part of the retainer might be subject to a refund, and request an itemized invoice of the charges incurred to date.

    Finally, be wary of what non-lawyers tell you. While many of these individuals might be well-versed in how these sorts of things usually play out, it's illegal for them to offer legal advice, and it's immeasurably dangerous for you to rely too much on what they promise you.

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    James’s Answer

    Not sure why this is posted under the Wills subject area, but perhaps the father in this scenario is deceased. If you broke into anyone's home, whether that person is living or dead, and took these items, you've committed theft and likely a string of other offenses, both criminal and civil. It's illegal everywhere, and none of the outcomes are good. I'm also not sure if you're posting as a concerned bystander, an interested party or if you are actually the person that engaged in these acts. If you did these things, you might carefully consider that the Internet and this forum are hardly confidential, and admitting something here is just as bad (worse even) as walking out your front door and yelling it as loud as you can.

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  • Brother threatening to sue for custody of mother's dog due to will discrepancy

    The will names me as the inheritor of the dog so long as I provide "a caring home, food and any medical needs" for the dog. I pay for all food and necessities for the dog, but can't keep the dog with me. My father takes care of the dog as I inst...

    James’s Answer

    Stories like this never cease to amaze me, and I'd feel bad for chuckling a bit at the idea of a lawsuit over a dog if I didn't think you'd laughed at how ridiculous that proposition sounds as well. Put yourself in the shoes of the judge that this end up in front of, and ask yourself how quickly you'd bury your face in your hands.

    My colleagues have hit the nail on the head by directing you to the terms of the Will. Based on the little information that you've provided, it sounds fairly easy enough to argue that the gift might be contingent, or that some sort of trust relationship was created. Since you've quoted the "caring home" language, I'll assume that's precisely the extent of the language used. If it is, and if you were my client, I'd tell your brother to jump in a lake.

    Here's a universal truth: You can't keep people from suing. The deck may be stacked against them in every way, and it will never be enough to keep them from chasing down the issue "on principle." At some point, your brother has probably told you that it "isn't about the dog, but about what Mom wanted."

    For my two cents, I think you've got an easily-defensible position. As others have pointed out, only you can decide how much of that "principle" you're willing to invest in. Aggravating as it might be, your brother could invoke a legal process that hurts both sides, and you'll need to decide how badly you want to pay in order to defend your choices. It's not a nice spot to be in, and I wish you the best of luck. Anybody ask the dog what he or she thinks about all of this?

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