any probate lawyers or gurus out there? i need some information

[philip964]

Its hard to get more letters of testamentary, so getting only what you now think you will need is risky. Get more they are cheap.

Why you make accounts with another person with survivorship. (need to trust the person though) Elderly people have done this with a son or daughter and low and behold the son or daughter takes all the money.

It is definitely not hard to get additional letters testamentary, as long as the estate has not been formally closed. Most experienced probate attorneys never close an estate, because there is always a possibility that other assets for which letters are needed will be discovered, even years later.

The executor or the executor’s attorney can obtain new letters testamentary from the probate clerk in the county in which the Will was probated.

It may not make sense to obtain a large number of letters testamentary initially because many third parties (brokerage companies in particular) will require that recent letters be presented (within last 60 days).

Don T

Yes the attorney can get more. But then you have to pay him for doing that. The OP was only going to get one.

[puma guy]

All of the involement of probate and lawyers are moot if there was a POD with the grand kids listed as beneficiaries, but we don't know if there was a one. A POD is not subject to a will or testamentary letters. We had similar situations when my mom passed and one bank tried to deny payments correctly and and changed the account listing as the estate of my mom without notice. We didn't notify the bank of her death and how they knew she dies was a mystery. They made the change just a few days after her death. Took quite a while to get it corrected and even then they pulled some shenanigans, by making us get Medallion Guarantee Signatures. Chase Bank which I will never use. I am not a lawyer, just relating my experiences.

A Payable on Death (POD) account is an informal revocable trust account owned by one or more people expressing the intent that upon
the death of the owner(s), the deposited funds will pass to one or more named beneficiaries. A revocable trust account can be revoked,
terminated, or amended at the discretion of the owner(s).
Upon the death of the sole account owner on an individual account, or the last account owner on a joint account:
A. Any funds remaining in the account referenced above belong to the POD Beneficiary or Beneficiaries, if both surviving, or to the
survivor of them if one or more dies before the death of the sole Account Owner or the last surviving Account Owner;
B. If two or more POD Beneficiaries survive, any funds remaining on deposit belong to them in equal shares, subject to applicable law;
and
C. If two or more POD Beneficiaries survive, there is no right of survivorship in the event of death of a POD Beneficiary.

Until final payment is made to the POD Beneficiary or Beneficiaries, the Bank shall continue to operate the account according to the terms of the applicable Account Agreement and disclosures, and these POD Designation Terms and Conditions. The terms of the account may not be altered by Will or other testamentary instrument.

https://seicashaccess.mybankingservices ... nDeath.pdf

[Don T]

Its hard to get more letters of testamentary, so getting only what you now think you will need is risky. Get more they are cheap.

Why you make accounts with another person with survivorship. (need to trust the person though) Elderly people have done this with a son or daughter and low and behold the son or daughter takes all the money.

It is definitely not hard to get additional letters testamentary, as long as the estate has not been formally closed. Most experienced probate attorneys never close an estate, because there is always a possibility that other assets for which letters are needed will be discovered, even years later.

The executor or the executor’s attorney can obtain new letters testamentary from the probate clerk in the county in which the Will was probated.

It may not make sense to obtain a large number of letters testamentary initially because many third parties (brokerage companies in particular) will require that recent letters be presented (within last 60 days).

Don T

Yes the attorney can get more. But then you have to pay him for doing that. The OP was only going to get one.

The person serving as executor does not have pay an attorney. As I noted, the executor can go in person to the probate clerk’s office himself and get one himself without engaging an attorney to do so.

Don T

[C-dub]

Its hard to get more letters of testamentary, so getting only what you now think you will need is risky. Get more they are cheap.

Why you make accounts with another person with survivorship. (need to trust the person though) Elderly people have done this with a son or daughter and low and behold the son or daughter takes all the money.

It is definitely not hard to get additional letters testamentary, as long as the estate has not been formally closed. Most experienced probate attorneys never close an estate, because there is always a possibility that other assets for which letters are needed will be discovered, even years later.

The executor or the executor’s attorney can obtain new letters testamentary from the probate clerk in the county in which the Will was probated.

It may not make sense to obtain a large number of letters testamentary initially because many third parties (brokerage companies in particular) will require that recent letters be presented (within last 60 days).

Don T

Yes the attorney can get more. But then you have to pay him for doing that. The OP was only going to get one.

The person serving as executor does not have pay an attorney. As I noted, the executor can go in person to the probate clerk’s office himself and get one himself without engaging an attorney to do so.

Don T

That is interesting to know. I will also check into that.

[The Annoyed Man]

My mother's estate is contained in two trusts…a decedent's trust created when my dad died 34 years ago, and a survivor's trust created to meet my mom's needs until she passes. Both are already set up to pay out in 1/3 shares to my two brothers and me when my mom passes. There’s not going to be any fighting over it. Probate in this case…even in California…is pretty much limited to however long it takes for a death certificate to be issued and received by the bank holding the funds (in this case, Merrill Lynch). The lawyer, financial advisor, and taxes are already taken care of, and having the estate in a trust also affords considerable tax advantages. Both trusts have been carefully managed, and we'll end up having to pay a small amount of capital gains on the increase in value in the decedent's trust earned since my dad's passing.

I’m no lawyer, but the experience has been positive enough that as soon as my share of the estate's assets transfer to me, I will be setting up something similar to protect my wife's and son's interests against the time when I leave this body and go home.

I lived most of my early life like the grasshopper in the tale of the grasshopper and the ant. I never made enough money that I could salt away any significant amount, so I enjoyed what I could, when I could. It never occurred to me to consider how to protect any legacy I might have. Today, in the final 10 or 20 years of my life, I wish I had paid more attention to these things, but I am VERY blessed that my parents did. I can’t take credit for it, but I am thankful, and I would heartily recommend to anyone considering end-of-life financial issues to give trusts of various kinds a good hard look.

[puma guy]

My mother's estate is contained in two trusts…a decedent's trust created when my dad died 34 years ago, and a survivor's trust created to meet my mom's needs until she passes. Both are already set up to pay out in 1/3 shares to my two brothers and me when my mom passes. There’s not going to be any fighting over it. Probate in this case…even in California…is pretty much limited to however long it takes for a death certificate to be issued and received by the bank holding the funds (in this case, Merrill Lynch). The lawyer, financial advisor, and taxes are already taken care of, and having the estate in a trust also affords considerable tax advantages. Both trusts have been carefully managed, and we'll end up having to pay a small amount of capital gains on the increase in value in the decedent's trust earned since my dad's passing.

I’m no lawyer, but the experience has been positive enough that as soon as my share of the estate's assets transfer to me, I will be setting up something similar to protect my wife's and son's interests against the time when I leave this body and go home.

I lived most of my early life like the grasshopper in the tale of the grasshopper and the ant. I never made enough money that I could salt away any significant amount, so I enjoyed what I could, when I could. It never occurred to me to consider how to protect any legacy I might have. Today, in the final 10 or 20 years of my life, I wish I had paid more attention to these things, but I am VERY blessed that my parents did. I can’t take credit for it, but I am thankful, and I would heartily recommend to anyone considering end-of-life financial issues to give trusts of various kinds a good hard look.

We have trusts set up that divides the estate between our three daughters, but excludes any spouses from deriving benefits.

[C-dub]

TAM, Puma Guy, Rex B, et al.

Thanks for all the information. We won't be able to change how my mom set things up now, but this definitely gives us ideas for how to set things up for our stuff to our daughter and grandkids. It sounds like Trusts are the way to go and looks like we ma be setting at lest one of those up afterall.

FYI, I struck out at the probate court this morning as far as requesting a letter myself. They said it has to be done by an attorney. The clerk did alert me to something called Muniment of Title that I could do myself. After looking it up and going through some of the details I don't think we will meet the criteria to do that. I haven't checked with the bank yet either regarding that, but they would have to accept a Muniment of Title in lieu of the Letter of Testamentary, which the clerk said some do, but many banks do not.

I tried contacting Rex B's lawyer this morning after striking out myself only to find they are closed on Friday's. I'll call Monday morning.

[JDstar]

In order to obtain letters testamentary you first have to file suit and submit the original will to the probate court. Notice has to be posted, and after that a hearing will be held where a judge will determine that the will is original. At the point the court will sign an order accepting the will and appointing an executor. After an oath has been signed by the executor, letter testamentary can be requested. The process isn't difficult, but is very detailed in the Estate Code and unless all elements are done correctly, letters will not issue. After letters are issued there are specific things that must be accomplished by certain deadlines: 30 days to notify creditors and publish in the paper a notice to creditors; 60 days to give notice to beneficiaries of the will; 90 days to provide a sworn inventory of the estate assets to the court. The process isn't difficult so long as the original will is valid. A defect in the will or not having a will will cause delays and likely be more much more expensive. Out of pocket expenses for filing and posting notices generally cost between $450 -$500 depending on the county. Attorney fees on top of this can fluctuate wildly.

You can not just go in with the will and purchase letters without submitting the will to the probate court and having it accepted by that court. Until the will is accepted by the court, the executor named in the will has no power. The will merely nominates an executor, it does not by itself grant any special powers or privilege until the will is probated and an order is signed by the court appointing/approving of the proposed executor. Nothing prevents you from filing the probate for yourself, but the rules are strict and there are many pratfalls that can occur... and even with everything going right can take weeks, if not months to navigate. Best of Luck

[Don T]

JDstar's explanation is excellent. I'm going to expand on it a little bit.

The term "probate" comes from a Latin word meaning "to prove." "Probating" a Will essentially means proving to the court that the purported Will is actually the deceased person's last Will. The court will have to determine several important issues involving the Will and the decedent. Is the decedent actually deceased? Is the document which purports to be a Will actually intended as a Will, and if so, is it a valid Will under Texas law? In other words, does it meet the required formalities (signed and witnessed, or wholly in the decedent's handwriting)? Was the document the last Will the decedent signed, or did he later sign a new Will? Did he ever revoke the Will, or amend the Will with a "codicil?" Does the Will name an executor? Is the person named as executor legally qualified to serve? These are a few of the routine issues which are addressed. and one or more witnesses will have to provide this information to the court.

That is why you cannot just take the Will and a death certificate into a bank, show it to the banker, and then collect the money in the decedent's account. The bank does not know whether it is a valid Will, or the decedent's last Will, or that the executor is entitled to serve, etc., until the probate court makes those determinations. A copy of Letters Testamentary is essentially evidence that the court has made those determinations and that the person named as executor is entitled to serve as executor. That is why banks and other third parties almost always request Letters Testamentary.

In Texas, if the deceased person had no unpaid debts, then it may be possible to probate the Will as a "Muniment of Title," in which case no executor may be needed to collect the assets, pay the decedent's debts, and distribute the assets to the proper persons. Instead of presenting Letters Testamentary, one would present certified copies of the Will and the Order Admitting the Will to Probate to the bank or other third party. But it is more challenging for the bank, because it has to review the Will and figure out who is entitled to funds on deposit.

Most probate courts in Texas will require the involvement of an attorney if the person applying for probate is seeking to be appointed as executor and to receive Letters Testamentary. In the case where there are no debts and the person applying for probate as a muniment of title is the only beneficiary of under the Will, it may be possible to proceed without hiring a lawyer.

It may be possible to completely avoid the probate process by using survivorship accounts, beneficiary designations, transfer on death deeds, and similar techniques, but if persons don't die in the expected order, or if there are debts which need to be paid, these may not be the best way to proceed. It is also possible to use a fully funded revocable living trust (sometimes referred to as a "living trust" or "revocable trust") as a substitute for a Will and thereby avoid the probate process entirely.

The most important takeaways: If you plan in advance, you may be able to make it easier for your family. In some cases, good planning may involve using a Will to dispose of your property. If your planning involves using a Will, the probate process will likely be necessary but important part of the process.

Don T.

[C-dub]

It is looking more and more like we will have to go with an attorney to get this done. It just chaps me because my mom’s Will stipulates that I and my sister are co-executors. I don’t understand why a court would have any say in the matter. Her will was handled by a law group that used to do probate, but no longer does. The group they recommended me to wants nearly half the amount we’re needing the Letter for to open an estate account to disperse to the grandchildren.

It is all very frustrating.

I do appreciate everyone’s advice and information.