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Step Mom vs Surviving Children

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Bruin fan

Junior Member
What is the name of your state? Texas

A friend of mine has just found out that their father's "WILL" was not notarized. Instead a relative of family signed an affidavit, verifying the father’s signature on the “WILL” In order for the probate to close, the relative is being asked by the POA’s attorney to validate the signature in court. Since the relative s not happy with the outcome of the ‘WILL’ and is the only witness to sign an affidavit, will they required by Texas’ law to attend the hearing?

If the relative refuses to go to the hearing in court, would the "WILL" be thrown out and would all of the father's assets go to the wife (step mother) or the surviving children?
 


Bruin fan

Junior Member
Rephrased:

Their father's "will' was not notarized. If the "will" is not validated in probate, who receives the estate? Step mom or children?
 

seniorjudge

Senior Member
Texas Intestate Succession Laws

If any part of a Texas decedent's estate is not effectively disposed of by will, the intestate share will be distributed in the following order and manner:

1. Surviving spouse. A surviving spouse is generally first in line to get any assets from the intestate estate. However, the amount a surviving spouse is entitled to depends on these situations:

* If there are surviving children or direct descendants of the decedent, the surviving spouse takes one-third of the personal property in the estate, with the balance going to the children and descendants. The surviving spouse is also entitled to an interest in one-third of the land in the estate for the rest of his or her life (a.k.a., a life estate), with the remainder going to the decedent's children and descendants.
* If there are no children of decedent or their descendants, the surviving spouse is entitled to all the personal property in the estate. The surviving spouse also gets outright ownership of one-half of the decedent's lands. The other half of any lands passes according to the distribution rules below (except that the surviving spouse gets everything if there are no surviving father, mother, or siblings, and their descendants, of decedent).

2. Heirs other than surviving spouse. Any part of the intestate estate not passing to the surviving spouse as indicated above, or the entire intestate estate if there is no surviving spouse, passes in the following order to:

1. Decedent's children and their descendants.
2. Decedent's parents equally if both survive. If only one parent survives, however, the estate is divided into two equal portions, one of which passes to the surviving parent and the other half passes to the decedent's brothers and sisters and their descendants If no siblings or their descendants exist, the whole estate is inherited by the surviving parent.
3. Decedent's siblings and their descendants.
4. If none of the above are available, then the inheritance is divided into two equal shares ("moieties"), one for decedent's paternal kin and one for decedent's maternal kin, and distributed in the following order:
1. To the grandfather and grandmother in equal portions.
2. If only one of the grandparents is living, then the estate is divided into two equal parts, one of which goes to the survivor and the other goes to the descendants of the deceased grandparent. If there be no such descendants, then the whole estate is inherited by the surviving grandparent.
3. If both grandparents are deceased, then the entire portion goes to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.
4. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.

3. State of Texas. If there is no taker under any of the above provisions, the intestate estate passes to the state of Texas.

Texas Intestate Succession Law Fun Facts

* Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
* Decedent's children or lineal descendants conceived before decedent's death, but born thereafter, inherit as if they had been born in decedent's lifetime. Other persons, however, have to be alive at the time of decedent's death and be capable in law to take as heirs.
* An individual who fails to survive the decedent by 120 hours is considered to have predeceased the decedent for purposes of Texas' intestate succession laws. However, these rules don't apply if the end result is that the state of Texas gets the intestate estate.
* Texas' intestate succession laws, as well as other laws dealing with wills and decedents' estates, can be found in the Texas Probate Code.



Copyright 2002 - 2008, CCH Incorporated, a Wolters Kluwer business. All Rights Reserved.

http://www.finance.cch.com/pops/c50s10d190_TX.asp
 

Bruin fan

Junior Member
If the property still has mortgage that needs to be paid for, How will the property be distrubted between the heirs?

Will the life estate rule still apply to the step mom? If so, what would happen if the children want to put the house up for sale and the step mom does not want to sale? What happens from that point?
 

divgradcurl

Senior Member
If the property still has mortgage that needs to be paid for, How will the property be distrubted between the heirs?
The mortgage is irrelevant to the property distribution. The heirs will have to refinance the mortgage into their own names, or pay off the property.

Will the life estate rule still apply to the step mom?
Of course. The step mom is the surviving spouse.

If so, what would happen if the children want to put the house up for sale and the step mom does not want to sale? What happens from that point?
Well, the step mom can't stop the sale of the property -- she won't be an owner. But any purchaser would have to take the property with the life estate intact. In other words, the heirs would need to find a buyer who was willing to buy the property with the step mom living on the property for the rest of her life. That might be tough.

Realistically, if the heirs want to sell, they will need to buy out the step mom's life estate.
 

Bruin fan

Junior Member
If the step mom remarries and moves out of the house, does she lose her life estate and homestead rights?

What happens if the step mom does not want to sale and the children do? What course of action should the children take? It seems unfair to pay on a property that is not being occupied by the children.
 

divgradcurl

Senior Member
If the step mom remarries and moves out of the house, does she lose her life estate and homestead rights?
Not based on the intestate rules posted above. You would need to look at the Texas proabte statutes to find out for sure.

What happens if the step mom does not want to sale and the children do? What course of action should the children take? It seems unfair to pay on a property that is not being occupied by the children.
The children can opt to buy out the stepmom's life estate. There really isn't anything else they can do until the stepmom dies.
 

Bruin fan

Junior Member
Since the children live in another state, should they send a notice of appearance to the county clerk office to receive information on the probate? And if so, how much information will they receive?

I am guessing they may get everything if the "will' is thrown out of probate court, due to the fact that marriage lasted only for one year and the step mom has remarried.

Also, can they request some type of account statement of the estate to verify if the step mom has been abusing the monetary assets?
 

divgradcurl

Senior Member
Since the children live in another state, should they send a notice of appearance to the county clerk office to receive information on the probate? And if so, how much information will they receive?
They could, although if there are any significant assets involved, it might be worthwhile to hire a lawyer to handle things.

I am guessing they may get everything if the "will' is thrown out of probate court, due to the fact that marriage lasted only for one year and the step mom has remarried.
Why? If the step mom was married to the decedent at the time of death, then she is the surviving spouse, and is entitled to a surviving spouse's share of the estate. What happens after death -- remarriage, etc. -- is irrelevant to the property distribution.

The shortness of the marriage will effect how much stuff is determined to be "community property" -- if any -- but won't have any impact on the surviving spouse's take under the intestacy rules.

Also, can they request some type of account statement of the estate to verify if the step mom has been abusing the monetary assets?
Who is the executor of the estate?
 

Bruin fan

Junior Member
I think the step mom is the executor of the estate; that is why the children are upset with the step mom. She has not called them or accepted their calls.

The estate is not worth more than 30k, but the children believe the step mom has misused the assets of the estate and sold everything from the house. I thought everything that is sold needs recorded on an inventory list and disclosed to the heirs of the estate. Should an inventory list be available and also an accounting of the estate for the children to verify that the estate is not being abused?

I think they should send a letter of appearance, requesting everything that is involved with the probate is sent to them and then follow-up if things are not going accordingly. A lawyer also told them to do the same thing.


Since the will is in probate and the will is not notarized, the should be thrown out if witnesses do not come forward. If a witness refuses to validate the signing of the will, can they be supoenaed? if not, would the will be thrown out?

Being proactive may help with the break in communication between both parties.
 

divgradcurl

Senior Member
I think they should send a letter of appearance, requesting everything that is involved with the probate is sent to them and then follow-up if things are not going accordingly. A lawyer also told them to do the same thing.
That is the best course of action if they are not going to hire their own lawyer.

Since the will is in probate and the will is not notarized, the should be thrown out if witnesses do not come forward. If a witness refuses to validate the signing of the will, can they be supoenaed? if not, would the will be thrown out?
What does notarization of the will have to do with anything? If the will was signed by the decedent, and was witnessed by two people who also signed the will, then the will should be valid. http://law.onecle.com/texas/probate/59.00.html

"§ 59. REQUISITES OF A WILL. (a) Every last will and
testament, except where otherwise provided by law, shall be in
writing and signed by the testator in person or by another person
for him by his direction and in his presence, and shall, if not
wholly in the handwriting of the testator, be attested by two or
more credible witnesses above the age of fourteen years who shall
subscribe their names thereto in their own handwriting in the
presence of the testator."

In your original post, you wanted answers for the situation if the will were thrown out, or found invalid. If the will is signed by the decedent and witnessed by two witnesses, the will should be valid. Even if the witnesses won't come forward, the will may be valid unless someone can prove that one or the other witness was not competant, or not credible.
 

Bruin fan

Junior Member
Good point. But i am still confused about the notary tool.

If the will was signed by witnesses and notarized by the POA without them (witnesess) being present, how can the will be valid?

I thought a notary republic is required by law to verify identification from each witness that signs a document; since that did not happen, what makes the will valid now? The will may have been altered without the witnesses knowledge.
 

divgradcurl

Senior Member
If the will was signed by witnesses and notarized by the POA without them (witnesess) being present, how can the will be valid?
This doesn't make any sense. The witnesses have to sign, which attests that the witnesses saw the decedent (or his or her agent) sign the will in their presence. That's what makes a will valid.

A notary might help if someone later contests the will, and says that the witness signatures are made up, or if, for some reason, one of the witnesses tries to disavow their signature. But there is no requirement under the statute that a will be notarized.

Besides, how can some one with power or attorney notarize a document unless they are also a notary?

I thought a notary republic is required by law to verify identification from each witness that signs a document; since that did not happen, what makes the will valid now? The will may have been altered without the witnesses knowledge.
The witnesses were required to attest that they saw the testator (the decedent) sign the will. That's it. If the will was altered in some way after the witnesses signed the will, how would having a notary's mark make any difference?
 

Bruin fan

Junior Member
It makes a lot of sense after reading the probate code. I will direct my friend's attention to Texas probate code.

Since the notarization of the will is irrelevant , then why is one of the witnesses to the signing of will is being asked by the POA's attorney to appear at the probate hearing to give a statement? I do not understand why? That is why I questioned the notraization of the will.

From what I know and was told by my friend, both witnesses of the will signed some type of affidavit to verify the validty of the will. Now, one of the witnesses is unsure about what they have signed and is refusing to show up for the probate hearing. Since one of the witnesses refuses to show up for the probate hearing, what is going to happen? Will the probate be held up? or will the probate hearing proceed?
 

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