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Lawrence Frederick Dietlein Jr.

Lawrence Dietlein’s Answers

122 total


  • I have an out-of-date Letter Testamentary. Can I get a new one (preferably without using mail) ?

    I need to transfer some stock ownership. Date on the LetTest is July 2012, Asset management company says the Letter Testamentary needs to be dated this year. I'd like to go to the courthouse myself and pick it up, rather than trust the mail. Is th...

    Lawrence’s Answer

    Hello. As long as the probate estate has remained open (and was not closed) and you have not been discharged as the executor/executrix, then you may drop by the probate clerk's office (county clerk if it is in a county with no statutory probate court) and order additional Letter Testamentary. I believe the cost is $2.00 per Letter. Most of the time they can probate the Letter while you wait. Good luck.

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  • Our mother passed and had property with our stepfather. Theres no will, what happens to her half of the property?

    Our mother passed in 2006. She had no will but her and my stepfather had joint property (car, house, and land) My sister and I do not have a good relationship with our stepfather and he wants us to sign our "rights" over. The question we both have...

    Lawrence’s Answer

    I am sorry for your loss of your mother. In Texas, there are several choices with respect to what type of probate is best in any particular matter. Choosing the correct option depends upon the assets (and debts) involved and if the heirs are in agreement on certain matters. If no formal administration of the estate is necessary, there are two options: 1. Small Estate Affidavit (estates of $50,000 or less, excluding homestead, and no debts other than perhaps a mortgage); or 2. Proceeding to Determine Heirship. If an administration is necessary, as may be the case here, there are still two options: 1. Independent Administration (if all heirs agree on the appointment of an IA); or 2. Dependent Administration (when all the heirs do not agree on the appointment of the administrator, as may be your situation; or if the Administrator wants the Court to be involved with managing the debts and creditors; DA is the more expensive route). If either of these latter two options (IA or DA) is chosen, then along with the administration filing/proceeding, the administrator will also need to file an Application to Determine the Heirs (and the appointment of an ad litem attorney to assist the Court in determining the heirs of the estate). Often, when dealing with lots of debt and many creditors, a Dependent Administration is best since there are very strict guidelines that creditors must follow or their claims against the Estate are bared.

    How the property will be distributed in an intestate estate, depends upon the circumstances. For instance, in Texas, if the children of the Decedent are not the children of the surviving spouse, then the Decedent's property (that is subject to probate) is distributed as follows:

    Community Property:
    Real Property: 1/2 to Decedent's children, equally; 1/2 retained by surviving spouse (SS).
    Personal Property: 1/2 to Decedent's children, equally; 1/2 retained by SS.

    Separate Property:
    Real Property: All to Decedent's children, equally, subject to life estate for SS; SS gets a life estate.
    Personal Property: 2/3 to Decedent's children, equally; 1/3 to SS.

    I suggest that you speak with an experienced probate attorney to help you through this journey. Again, I am sorry for your loss and wish you the best of luck.

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  • In what state do we contest a will?

    My father lives in Colorado but will be buried in Georgia. His descendants live in Texas. If the will needs to be contested in which state would that need to take place?

    Lawrence’s Answer

    I am sorry for your loss. If your father died in Colorado, then you should contact an attorney licensed to practice in Colorado (probably best if the attorney practices in the County where your father lived). Just for your information, in Texas, the proper venue for probating a Will (and for bringing a Will contest) is: 1. in the county where the decedent resided; or 2. if no domicile or fixed place of residence in this State but died in this State, then either in the county where the decedent's principal estate was at the time of the decedent's death, or in the county where the decedent died; or 3. if the decedent had no domicile or fixed place of residence in this State, and died outside the limits of this State: then a. in any county in this State where the decedent's nearest of kin reside; or b. if there are no kindred of the decedent in this State, then in the county where the decedent's principal estate was situated at the time of the decedent's death. Again, this is Texas law (Texas Probate Code Section 6), not Colorado law. I wish you the best of luck.

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  • Can heirs (son and daughter) NOT mentioned in a will of deceased father claim intestate share in Texas? What would process be?

    My father passed away 2 months ago. My brother and I (daughter) are the only children (adult) from his two marriages. He apparently left all his estate to 2 charities and maybe something small to his grandchildren - my brother and I have 2 childre...

    Lawrence’s Answer

    No.

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  • Am I responsible for my Grandmother's bills if she recently passed away.

    I have lived with and taken care of my Grandmother for the past year and she passed away recently. She left me what few items she owned, now I am getting hospital bills, etc. from when she was alive. Am I responsible for these bills?

    Lawrence’s Answer

    Hello Georgetown Texas! I have fond memories of your city since it is where I first opened my law practice before moving to Houston. I am sorry for the loss of your grandmother. In Texas, your grandmother's estate (all of her probate assets, both real property and personal property), must be liquidated to pay her creditors before any of her assets are distributed to her heirs (if no Will) or her devisees (if there was a Will). There is an order in which creditors get paid back … for instance, medical expenses and funeral expenses are paid first, up to $15,000, … but unsecured creditors (such as credit card debt) are 8th in line. (See Texas Probate Code 320 and 322 for more information about classification of claims against estate of decedent.) If there is not enough money to pay off all creditors, then a pro-rata distribution is likely, with no money left to distribute to heirs or devisees. Who is responsible for doing this, you might ask: Usually an heir or a devisee of Grandmother’s estate, but if no one initiates the probate proceeding in the Court, a creditor may do so! (See Texas Probate Code 77 for the order of persons qualified to serve.) I suggest that you hire a competent probate attorney who practices in the county where your grandmother died to assist you in this journey. I wish you the best of luck.

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  • Mother died 8 years ago n ive come to find out that the will which states every thing is left to me is not probated what do i do

    My mother taxes are paid and she never had any special deductions on her taxes i in other words she died young. no one is fighting for the house but how do i get this probated in my name? Whats weird my mother always said it was probated but can ...

    Lawrence’s Answer

    I am sorry for your loss. There is only one way to probate a Will 8 years after the date of death: Muniment of Title (where no executor is appointed and no letters testamentary are issued) and that is only if the applicant satisfies the requirements under section 89A, 89B and 89C and 73. Texas probate code section 73, Period for Probate, provides that:
    "(a) No will shall be admitted to probate after the lapse of four years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four year aforesaid; and in no case shall letters testamentary be issued where a will is admitted to probate after the lapse of four years from the death of the testator.
    (b) If any person shall purchase real or personal property from the heirs of a decedent more than four years from the date of death of the decedent, for value, in good faith, and without knowledge of the existence of a will, such purchaser shall be held to have good title to the interest which such heir or heirs would have had in the absence of a will, as against the claims of any devisees or legatees under any will which may thereafter be offered for probate."
    I suggest that you immediately hire a competent probate attorney to assist you with your matter. I wish you the best of luck

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  • How do I get heirship of my fathers estate?

    My father passed away ten years ago, he did not have a will. Now, he was not married, so I'm aware that his property does go to me and my sister. I haven't been aware of his assets until recently. He has two properties in two different counties an...

    Lawrence’s Answer

    I am sorry for your loss. In Texas, there are several choices with respect to what type of probate is best in any particular matter. Choosing the correct option depends upon the assets (and debts) involved and if the heirs are in agreement on certain matters. If a Decedent dies without a Will, there is no way to have an executor; however, without a Will, it is still possible to have an administrator appointed (either independent or dependent). It may be better to step back a moment and consider all the options. If no formal administration of the estate is necessary, there are two options: 1. Small Estate Affidavit (estates of $50,000 or less, excluding homestead, and no debts other than perhaps a mortgage); or 2. Proceeding to Determine Heirship. If an administration is necessary, there are still two options: 1. Independent Administration (if all heirs agree on the appointment of an IA); or 2. Dependent Administration (when all the heirs do not agree on the appointment of the administrator; or if the Administrator wants the Court to be involved with managing the debts and creditors; DA is the more expensive route). If either of these latter two options (IA or DA) is chosen, then along with the administration filing/proceeding, the administrator will also need to file an Application to Determine the Heirs (and the appointment of an ad litem attorney to assist the Court in determining the heirs of the estate). Often, when dealing with lots of debt and many creditors, a Dependent Administration is best since there are very strict guidelines that creditors must follow or their claims against the Estate are bared.

    In Texas, if the Decedent dies unmarried with children, then the children of the Decedent (or the children’s descendants, as the case may be), share equally in both real property and personal property. I suggest that you speak with an experienced probate attorney to help you through this journey. Again, I am sorry for your loss and wish you and your siblings the best of luck.

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  • My wife has a judgement against her that had to do with her deceased husband state. how can I own a house in my name alone.

    My wife has a judgement against her that had to do with her deceased husband state. this judgement was obtained against her after we had been married. I have the money and would like to buy a house but Texas being a community property state th...

    Lawrence’s Answer

    There may not be any reason for alarm, depending upon if this home purchase is your primary residence, or a second (fun) home since you and your wife have exempt assets that are protected from 3rd party creditors under several Texas Codes (statutes) and the Texas Constitution; these include, but not limited to, your residence (home), a car, a certain amount of personal property, including food, cash, tools, clothes, guns (this is Texas after all), 120 fowl, 12 head of cattle, 2 horses, 60 head of “other “ livestock, and don’t forget the household pets, etc. There are a few exceptions with respect to creditors attaching to a homestead (see Texas Property Code 41.001/real property, & 42.001 – 42.002/personal property).
    However, if you are purchasing a second home, them consider entering into a postnuptial agreement, particularly if you are using community funds to purchase the home (NOTE: you and your wife should each have your own SEPARATE and independent attorney to advise you of your rights under Texas law prior to entering into this agreement). If you are using separate property funds to purchase this home, then this too should be memorialized in a written agreement drafted by an attorney and signed by you and your wife, again with separate counsel. As with any legal agreement, you should seek counsel from a competent attorney in estate planning, family law, or property law. I wish you and yours the very best.

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  • I recently filed for divorce but my husband unexpectantly passed away ,what happens to legal proceedings?

    I tried asking my lawyer but he will not answer my e-mails.

    Lawrence’s Answer

    I suggest reading Section 69 of the Texas Probate Code: WIll provisions made before dissolution of Marriage. Other important factors include whether or not there was a settlement agreement prior to final decree of divorce by the district court, or possibly an antenuptial or postnuptial agreement or other similar settlement agreement. There may also be case law that may pertain to your specific situation. For instance, in Spiegel v. KLRU Endowment Fun, 228 S.W.3d 237 (Tex. App.---Austin 2007), although the wife died before the final decree of divorce was entered, settlement agreement making non-probate assets wife's separate property revoked beneficiary designations in favor of husband.

    If no divorce decree was entered, then it may be that you are still entitled to inherit from your husband since you were still legally married. Note that if your husband had children from a prior marriage, they may file a contest to any attempt made by you to inherit (either by will or through intestacy) from your husband. If your family law attorney continues to avoid your email and phone calls, contact a competent probate lawyer to research your situation and advise you accordingly. You may also wish to contact the Court where you filed your divorce matter and let them know that you are having difficulty reaching your attorney and are not sure how to proceed with the divorce proceeding (which may be dismissed due to his death). I wish you the best of luck.

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  • If a beneficiary is deceased in a will does it pay to the estate?

    Our grandmother passed with a will, giving to 3 people equally. One of those is deceased do we pay that 1/3 to the estate as there are no alternate beneficiaries. This is a Texas Will and resident

    Lawrence’s Answer

    I am sorry for the loss of your grandmother (testator). The answer to your question depends greatly on 1. The type of devise/bequest (specific/general v. residuary) in the Will; 2. Anti-lapse clauses in the Will; and 3. The relation between the deceased devisee (beneficiary) and the testator, that is, whether or not the beneficiary was a descendant of the testator, or of no blood relation. You may wish to review Texas Probate Code 68: Prior Death of Legatee (anti-lapse statute).

    1. If the devise is of a specific (thing) or general (money) devise, and the beneficiary predeceases the testator and the devise lapses, the lapsed devise goes to the residuary estate.

    2. If the devise is a residuary devise and the beneficiary predeceases the testator and the devise lapses, the deceased beneficiary’s share goes to the other residuary beneficiaries! If all residuary beneficiaries are deceased, then the devise passes as if the decedent had died intestate.

    3. If the devise is to a class of persons, and one member of the class predeceases the testator, the surviving members of the class divide up the gift UNLESS the predeceased member is within the relationship of the anti-lapse statute (unless the predeceased member dies prior to the execution of Testator’s Will). For instance: “to my children” and if one child dies after will was executed, then that child’s child takes (T’s grandchild) as long as the child's child survived the Testator by at least 120 hours. However: “to kids of my great aunt betty” and if one child dies after will was executed, then that child’s share goes to others in the class.

    4. If the gift is to a beneficiary that is a dog, cat or some other non-human animal, the devise is void. Void devise is treated same as lapsed devise. (I just thought you might like to know.)

    5. If the Will specifically addresses what happens if a beneficiary predeceases the Testator, then that language supersedes all of these stated rules and statutes. So, drafting is not limited by any of the above rules.

    First, READ the will, then APPLY any relevant testamentary clauses, and if none, then APPLY the anti-lapse statutes. NOTE: anti-lapse statutes do not prevent or reverse a lapse, they merely substitute beneficiaries (usually descendants) for the dead beneficiary if certain requirements are met (unless Testator specifies otherwise); anti-lapse statutes protect beneficiaries who are also descendants of Testator’s parents. If this all seems a bit confusing, it certaily is; the rules are confusing. I suggest that you contact an experienced probate attorney in the county where your grandmother’s estate is to be probated. I wish you the best of luck.

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