17
   

Brother dies, leaves no will, son is taking it all

 
 
Reply Wed 22 May, 2013 12:09 pm
We live in Texas and my brother passed away about 2 weeks ago with no will and he has property and other assets. Along with only one son, age 22, 4 siblings and no marriages. The son has went in and taken over, kicked everyone aside and has denied anyone from getting anything, not even sentimental things or heirlooms. What are the laws governing the distribution of property of the deceased. I hear that if the state finds out there are other relatives then it will go into probate and/or they will choose the next living relative, such as a sibling to be an executor of property? Please let me know what I, his youngest brother, can do to make sure we get something before he dispenses it all?!
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Type: Question • Score: 17 • Views: 4,020 • Replies: 51

 
tsarstepan
 
  2  
Reply Wed 22 May, 2013 12:16 pm
@duffycando,
READ THIS QUOTE!

Quote:
D. THIS SERVICE DOES NOT PROVIDE PROFESSIONAL LEGAL ADVICE. All of the services' content, including postings, is for informational purposes only. The service is not intended to be a substitute for professional legal advice, and no attorney/client privilege is to be inferred from any postings herein. Always seek the advice of a qualified legal professional with questions you have regarding a legal matter. You should not disregard professional legal advice because of something you have received from or read in the able2know service.

I'm going to tell you what everyone else is going to tell you. Don't waste your time looking for a FREE answer. Go to a real world law firm and HIRE a lawyer.

It seems you need to do it ASAP and get the lawyer to write some kind of cease and desist letter to the son. Waiting for our nonprofessional/free advice won't get you any legitimate answer or at least not in a timely authoritative fashion.
roger
 
  1  
Reply Wed 22 May, 2013 12:38 pm
@duffycando,
What tsarstepan said, you definately need a lawyer. I'm not at all sure of the relationships you describe, but a lawyer will be a big help to you.
0 Replies
 
duffycando
 
  1  
Reply Wed 22 May, 2013 12:43 pm
@tsarstepan,
I'm wanting to know if there is a law that says that if there is no will then the next of kin, such as a sibling, not a young son, shall be appointed by the state to be executor of property?
boomerang
 
  6  
Reply Wed 22 May, 2013 01:00 pm
@duffycando,
The son is his next of kin. In most states, absent a will, property goes to the spouse, if there is no spouse it goes to the children.
0 Replies
 
tsarstepan
 
  1  
Reply Wed 22 May, 2013 01:04 pm
@duffycando,
duffycando wrote:

I'm wanting to know if there is a law that says that if there is no will then the next of kin, such as a sibling, not a young son, shall be appointed by the state to be executor of property?


Quote:
SEPARATE PROPERTY – there is NO surviving spouse:

If no spouse survives the decedent then Texas Probate Code section 38(a) controls who receives the decedent’s entire estate. Section 38(a) provides as follows:

(a) Intestate Leaving No Husband or Wife. Where any person, having title to any estate, real, personal or mixed, shall die intestate, leaving no husband or wife, it shall descend and pass in parcenary to his kindred, male and female, in the following course:

1. To his children and their descendants.

http://greunerblog.estates-trusts.com/die-without-a-will-in-texas/
0 Replies
 
firefly
 
  1  
Reply Wed 22 May, 2013 03:47 pm
@duffycando,
Quote:
If you die without a valid will while residing in the State of Texas, you are said to have died “intestate.” In order to determine who will receive your property if you die intestate, the State of Texas has established a number of laws known as “intestacy laws” or “laws of intestate succession.”
http://www.jackrobinson.com/wp-content/uploads/2012/01/images.jpg

PERSONS WHO TAKE UPON INTESTACY

If the Intestate Leaves No Husband or Wife.

Where any person, having title to any estate, real, personal or mixed, shall die intestate, leaving no husband or wife, it shall descend and pass in parcenary to his kindred, male and female, in the following course:

1.To his children and their descendants.

2.If there be no children nor their descendants, then to his father and mother, in equal portions. But if only the father or mother survive the intestate, then his estate shall be divided into two equal portions, one of which shall pass to such survivor, and the other half shall pass to the brothers and sisters of the deceased, and to their descendants; but if there be none such, then the whole estate shall be inherited by the surviving father or mother.

3.If there be neither father nor mother, then the whole of such estate shall pass to the brothers and sisters of the intestate, and to their descendants.

4.If there be none of the kindred aforesaid, then the inheritance shall be divided into two moieties, one of which shall go to the paternal and the other to the maternal kindred, in the following course: To the grandfather and grandmother in equal portions, but if only one of these be living, then the estate shall be divided into two equal parts, one of which shall go to such survivor, and the other shall go to the descendant or descendants of such deceased grandfather or grandmother. If there be no such descendants, then the whole estate shall be inherited by the surviving grandfather or grandmother. If there be no surviving grandfather or grandmother, then the whole of such estate shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.
http://www.jackrobinson.com/how-the-property-of-a-person-who-dies-without-a-will-is-distributed-in-texas/


It does appear that your brother's son may be entitled to the whole of the estate.
You should call an estate attorney and find out whether you or your siblings can make any claims against the estate. They may be able to give you that info on the phone.
engineer
 
  5  
Reply Wed 22 May, 2013 03:53 pm
@firefly,
Or you could call the son and make nice. From a legal point of view, it looks like you are out of luck, but you might be able to offer fair value for things with sentimental value or get things like picture albums for free if you can establish some sort of relationship.
0 Replies
 
firefly
 
  5  
Reply Wed 22 May, 2013 04:04 pm
@duffycando,
Actually, your brother's son may be acting very appropriately by preventing anyone from taking any assets of the estate only two weeks after your brother's death. Your brother's debts must first be paid, and the estate must go through probate.

In Texas, it appears there must be a probate process, even if the person dies without a Will.
Quote:
Texas Probate Process

An estate in Texas is comprised of all of the assets owned by someone at the time of their death—for example—cash, real estate, stocks, bonds, life insurance, retirement accounts, cars, etc.

The probate of someone’s estate refers to the process by which a Court recognizes that person's death and authorizes the administration of that person's estate. The probate process applies both when:

Someone dies leaving a Will or
When Someone dies without a Will

The Texas Probate Process requires that:

All of that person’s property will be gathered
Their debts paid
The remaining assets distributed according to either the provisions of his or her Will, or
If they died without a Will, then the property will be distributed according to Texas law regarding intestacy (dying without a Will).

Initiating the Probate Process....

Initiating the probate process is actually fairly easy. Whether or not the Decedent died with a Will, an application for probate will need to be filed in a Texas Probate Court.

Once the Application has been filed, Texas probate law requires that you must wait approximately 2 weeks before you can have a hearing on the Probate Application for the Court to determine the necessity to open the Administration of the Estate and/or to recognize the Decedent's Will as valid.

During the 2 week waiting period, the County Clerk posts a notice at the courthouse that an application has been filed for probate. This posting serves as notice to anyone who might want to contest the Will or administration that they have a certain number of days to do that. If they fail to file their contest within that period of time, the Court can move forward in opening the administration and/or recognizing the validity of the Will.

Once the waiting period has passed, a hearing will be conducted before the probate Judge. At that time, he will recognize that the Decedent has died, that the Court has jurisdiction of the case, that the person applying to be the Executor is qualified to serve, and that either the Decedent died without a Will or that the Will he left was valid.

As a practical note, the local rules of most of the Courts hearing probate cases in Texas require that a person applying to administer an estate or admit a Will to probate must be represented by an attorney. Because the Executor has important duties to all of the beneficiaries and heirs of the estate, the Courts want to ensure that they are properly advised as to their obligations and duties as the Executor.

The complexities that can be presented in the probate process (especially when someone dies without a Will) can be difficult to properly address. Accordingly, we caution our prospective clients to take care in hiring an experienced Texas probate attorney who can competently advise you through the probate process. The consequences of receiving incomplete or inaccurate advice in this process can be unfortunate.
http://www.fordbergner.com/legal-practice-areas/texas-probate/probate-process


As I said in my last post, you need to consult an estate/probate attorney to advise you of any options you might have.
0 Replies
 
firefly
 
  2  
Reply Wed 22 May, 2013 04:35 pm
@duffycando,
If you wish to apply to probate court to be appointed the Executor of your brother's estate, you probably can do that--but you will need a probate attorney to assist you. And your brother's son may well challenge your application, and request that he be appointed Executor (something he may have already done). The final determination would be made by the court.

However, even as Executor, you must follow Texas law in the distribution of assets--and that will likely mean that the assets must all go to your brother's son. You have no discretion in the matter as Executor--you must follow the law regarding the distribution of assets.

As Executor, however, you might be eligible to receive a small fee--which is determined by the court--for your services. You would be required to pay your brother's bills and debts from his assets, file all necessary personal income and estate tax returns, etc.
roger
 
  2  
Reply Wed 22 May, 2013 04:50 pm
@firefly,
And don't forget that all bills and liabilities must be settled before disbursement to any heirs. If not, the executor can be liable for payment from hissorher own pocket.
Finn dAbuzz
 
  1  
Reply Wed 22 May, 2013 04:53 pm
I'm trying to figure out why the man's son is not entitled to the entire estate.
firefly
 
  2  
Reply Wed 22 May, 2013 05:07 pm
@roger,
Quote:
And don't forget that all bills and liabilities must be settled before disbursement to any heirs. If not, the executor can be liable for payment from hissorher own pocket.


That's not necessarily true.

I was the Executor of an estate where the decedent did not have sufficient cash or liquidatible assets to pay his final outstanding bills and debts, but he had non-probatable assets, IRA's and annuities, with designated beneficiaries. Those non-probate assets passed to those beneficiaries even though his debts were not paid. As Executor, I paid the bills I was able to, from the cash in the estate, and notified the other creditors that the estate was insolvent. I was not held liable for the decedent's unpaid debts, nor would I have been responsible for them.
firefly
 
  1  
Reply Wed 22 May, 2013 05:07 pm
@Finn dAbuzz,
Quote:
I'm trying to figure out why the man's son is not entitled to the entire estate.

He is entitled to it.
Finn dAbuzz
 
  1  
Reply Wed 22 May, 2013 05:13 pm
@firefly,
I agree, I was trying to be droll.
0 Replies
 
jespah
 
  2  
Reply Wed 22 May, 2013 06:06 pm
@tsarstepan,
tsarstepan wrote:

READ THIS QUOTE!

Quote:
D. THIS SERVICE DOES NOT PROVIDE PROFESSIONAL LEGAL ADVICE. All of the services' content, including postings, is for informational purposes only. The service is not intended to be a substitute for professional legal advice, and no attorney/client privilege is to be inferred from any postings herein. Always seek the advice of a qualified legal professional with questions you have regarding a legal matter. You should not disregard professional legal advice because of something you have received from or read in the able2know service.

I'm going to tell you what everyone else is going to tell you. Don't waste your time looking for a FREE answer. Go to a real world law firm and HIRE a lawyer.

It seems you need to do it ASAP and get the lawyer to write some kind of cease and desist letter to the son. Waiting for our nonprofessional/free advice won't get you any legitimate answer or at least not in a timely authoritative fashion.


This cannot be repeated enough.
Finn dAbuzz
 
  2  
Reply Wed 22 May, 2013 06:38 pm
@jespah,
I disagree.

duffycando should avoid consulting a lawyer. They only cause trouble.

What can he possibly want from his brother's estate than he cannot secure from his nephew through good will, good grace and, if necessary, a a lot less money than he will pay a lawyer to contest the claim of a son.
0 Replies
 
roger
 
  2  
Reply Wed 22 May, 2013 06:38 pm
@firefly,
Yes, yes, yes, but if you had disbursed the probate estate before paying creditors, and then come up short, you would have the situation I described.
0 Replies
 
glitterbag
 
  1  
Reply Sun 26 May, 2013 05:18 am
How does Texas define 'next of kin'?
firefly
 
  3  
Reply Sun 26 May, 2013 06:41 am
@glitterbag,
"Next of kin" is generally replaced by legal terminology when discussing the laws of inheritance in Texas--it's “laws of intestate succession” when someone dies without leaving a Will.

Under those laws, property would pass to the spouse, if there is no spouse it passes to the deceased person's children, or to the grandchildren or to the great-grandchildren, if there are no children or grandchildren, it passes to the deceased person's parents, if there are no parents, then it passes to the deceased person's siblings.

That's also how one would determine the degree of "next of kinship"--it starts with the spouse, then come the children, then the parents, then the siblings etc.

It may differ slightly for other matters.
http://en.wikipedia.org/wiki/Next_of_kin


 

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