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Questions on executing a will and/or estate distribution
Posted on 12/2/14 at 1:12 pm
Posted on 12/2/14 at 1:12 pm
A while back I had posted some questions about an uncle with cancer and got some amazing feedback. My uncle recently passed, so I am now back with a few questions.
My uncle was a resident of Texas, but I don't know if my aunt changed her residency from Louisiana. They both had wills leaving all property to the surviving spouse, but the will was not signed by either of them or witnesses; however, they did have self-proving affidavits which were notarized. In my opinion, the will isn’t valid. Am I correct?
Their only child, whom is 39, is now hinting as if he plans to use Louisiana’s forced heirship to get a portion of the estate.
For the tricky part, they own a home and 3 vehicles in Texas; they own ~160 acres, a tractor and a few small items in Louisiana. To my understanding, in Texas, any property goes to the surviving spouse if there is no valid will. Louisiana’s law seems a bit vaguer, leaving me under the impression that it goes to their son with the surviving spouse having access to use the property.
Any advice on this will be deeply appreciated. I do understand that any advice is not to be considered legal advice and that the best option is to seek legal advice. My aunt did contact a lawyer, in Louisiana, today, but I’m not sure if he will be familiar with Texas also. Thanks in advance.
My uncle was a resident of Texas, but I don't know if my aunt changed her residency from Louisiana. They both had wills leaving all property to the surviving spouse, but the will was not signed by either of them or witnesses; however, they did have self-proving affidavits which were notarized. In my opinion, the will isn’t valid. Am I correct?
Their only child, whom is 39, is now hinting as if he plans to use Louisiana’s forced heirship to get a portion of the estate.
For the tricky part, they own a home and 3 vehicles in Texas; they own ~160 acres, a tractor and a few small items in Louisiana. To my understanding, in Texas, any property goes to the surviving spouse if there is no valid will. Louisiana’s law seems a bit vaguer, leaving me under the impression that it goes to their son with the surviving spouse having access to use the property.
Any advice on this will be deeply appreciated. I do understand that any advice is not to be considered legal advice and that the best option is to seek legal advice. My aunt did contact a lawyer, in Louisiana, today, but I’m not sure if he will be familiar with Texas also. Thanks in advance.
This post was edited on 12/2/14 at 1:20 pm
5
Posted on 12/2/14 at 2:11 pm to TigerFanatic1
Was he a legal resident of TX or of LA? You need an attorney, stat. Preferably one licensed to practice in both TX and LA....lots of attorneys in Lake Charles and/or Houston are.
As I understand it, the 39 year old is way too old to invoke the forced heirship thing. To be a forced heir, he'd have to be under 24 years, or infirm or incapacitated in some way (mentally or physically). The old forced heirship was repealed in '95. New version is severely limited.
He sounds like an ungrateful sort. No one is entitled to any of their parents money, capisce? Mom n dad can give it all to the cat, the church, or the neighbors. If more children understood this, they might take better care of their parents.
As I understand it, the 39 year old is way too old to invoke the forced heirship thing. To be a forced heir, he'd have to be under 24 years, or infirm or incapacitated in some way (mentally or physically). The old forced heirship was repealed in '95. New version is severely limited.
He sounds like an ungrateful sort. No one is entitled to any of their parents money, capisce? Mom n dad can give it all to the cat, the church, or the neighbors. If more children understood this, they might take better care of their parents.
Posted on 12/2/14 at 2:41 pm to TigerFanatic1
One of the more complex situations I've seen. I'd be real surprised if anyone here can give you sound advice. I would echo what the other poster said; try to find a lawyer barred in both Texas and Louisiana.
Good luck!
Good luck!
Posted on 12/2/14 at 2:45 pm to TigerFanatic1
If the wills are not valid, the property passes as intestate property according to the laws of the state the property is located.
Texas Intestate Succession Chart
Louisiana Intestate Succession
Assuming it's all community property, then his community half of the Louisiana property will pass to the son, leaving the wife with her 1/2 interest and a usufruct over the other half. The son will be a "naked owner" until the usufruct expires.
His half of the Texas property passes to the wife.
***NOT AN ATTORNEY***, but I am in oil & gas, so I deal with this fairly frequently, and I did stay at a Holiday Inn last night
ETA: Corrected my TX intestate succession statement- I was looking at the wrong thing.
Texas Intestate Succession Chart
Louisiana Intestate Succession
Assuming it's all community property, then his community half of the Louisiana property will pass to the son, leaving the wife with her 1/2 interest and a usufruct over the other half. The son will be a "naked owner" until the usufruct expires.
His half of the Texas property passes to the wife.
***NOT AN ATTORNEY***, but I am in oil & gas, so I deal with this fairly frequently, and I did stay at a Holiday Inn last night
ETA: Corrected my TX intestate succession statement- I was looking at the wrong thing.
This post was edited on 12/2/14 at 3:13 pm
Posted on 12/2/14 at 3:03 pm to TigerFanatic1
If he was a TX resident, TX laws will apply to everything except land in LA. Thus, TX law will determine if his will is valid (seems doubtful) and TX intestacy rules will dictate who gets the property. If the chart linked by previous poster is correct, your aunt may inherit all of his property (if it is community). For LA property, aunt would get 1/2, son the other 1/2 subject to aunt's use for her lifetime or until remarriage.
Forced heir is generally not applicable in someone of that age. Also, it isn't really necessary since he inherits anyway if will is invalid.
Forced heir is generally not applicable in someone of that age. Also, it isn't really necessary since he inherits anyway if will is invalid.
Posted on 12/2/14 at 3:13 pm to TigerFanatic1
This is going to be dictated by the resident state of the decedent, not the wife. So if the decent was a Texas resident, Texas law applies, except to the extend of LA fixed property.
My parents divorced years ago, but if they were still together, I could not imagine fighting my mom for my dad's stuff.
My parents divorced years ago, but if they were still together, I could not imagine fighting my mom for my dad's stuff.
Posted on 12/2/14 at 3:15 pm to lsujro
Thanks everyone. He is indeed a resident of Texas. The son is claiming that he will sign everything over, I just want to be prepared in the event that he doesn't. I'm certain all of the possessions are community.
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