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Gratia Schoemakers

Estate Planning

How To Get Letters Testamentary

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Letters testamentary are legal documents issued by a probate court that give an executor the authority to manage the estate of a deceased person. These letters are important because they allow the executor to take actions such as paying bills, collecting assets, and distributing property to beneficiaries. Here’s a step-by-step guide on how to get letters testamentary:

Letters Testamentary
  1. File the Will: The first step in obtaining letters testamentary is to file the will with the probate court in the county where the deceased person lived. This must be done within a certain timeframe, usually within a few months of the person’s death.
  2. Petition the Court: After filing the will, the executor must file a petition with the probate court requesting to be appointed as the executor of the estate. The petition should include information about the deceased person, the will, and the proposed executor.
  3. Attend a Hearing: The probate court will schedule a hearing to review the petition and any objections that may have been filed. At the hearing, the executor will need to prove that the will is valid and that they are qualified to serve as the executor.
  4. Receive the Letters Testamentary: If the court approves the petition, the executor will receive letters testamentary, which give them the legal authority to manage the estate. The executor can then begin the process of collecting assets, paying debts, and distributing property to beneficiaries.
  5. Manage the Estate: As the executor, it is important to keep accurate records of all financial transactions and to act in the best interests of the beneficiaries. This includes filing tax returns, paying bills, and making distributions to beneficiaries according to the terms of the will.

In conclusion, obtaining letters testamentary is an important step in the probate process that gives an executor the legal authority to manage the estate of a deceased person. By filing the will, petitioning the court, attending a hearing, and managing the estate responsibly, the executor can ensure that the wishes of the deceased are carried out and that the beneficiaries receive their rightful inheritance. If you are unsure about how to obtain letters testamentary or have questions about the probate process, it is recommended to consult with an experienced probate attorney for guidance.

We have helped hundreds of people with their probate process; we can help you too! Our office is located at 1100 E. NASA Pkwy. #420J, Houston, TX 77058.

Call our office at 832.408.0505 or you can also book your Legal Strategy Session today just click here!

How To Collect Your Inheritance When The Executor Fails To Act

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When a loved one passes away, it can be a difficult and emotional time for their family and friends. If you are a beneficiary of the deceased person’s estate, you may be entitled to receive an inheritance. However, if the executor of the estate fails to act, it can be frustrating and stressful.

Here are some steps you can take to collect your inheritance when the executor fails to act:

Executors of estates
  1. Review the Will: The first step is to review the will to determine who the executor is and what your rights are as a beneficiary. If the will is not available, you can contact the probate court to obtain a copy.
  2. Contact the Executor: If the executor is not fulfilling their duties, the first step is to contact them and ask them to take action. It’s important to do this in writing, so you have a record of your request.
  3. Contact the Probate Court: If the executor fails to act after you have made a request, you can contact the probate court and file a petition asking the court to order the executor to take action. The court can also remove the executor and appoint a new one if necessary.
  4. Hire an Attorney: If you are having difficulty collecting your inheritance, it may be necessary to hire an attorney to represent you. An attorney can help you navigate the legal process and ensure that your rights as a beneficiary are protected.
  5. Seek Mediation: If you are having a dispute with the executor, you may want to consider mediation as a way to resolve the issue. Mediation is a process in which a neutral third party helps parties reach a mutually acceptable agreement.

In conclusion, if you are having difficulty collecting your inheritance because the executor has failed to act, there are steps you can take to protect your rights. By reviewing the will, contacting the executor, seeking assistance from the probate court or an attorney, and exploring mediation, you can ensure that your inheritance is distributed according to the wishes of your loved one.

We have helped hundreds of people get their inheritance; we can help you too! Call our office at 832.408.0505 and book your Legal Strategy Session today! We are located at 1100 East NASA Parkway, Ste. 420J, Houston, TX 77058.

What To Do When Executors and Breach Of Fiduciary Duty

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Executors play a critical role in administering an estate and distributing assets to the beneficiaries. As a fiduciary, the executor has a duty to act in the best interests of the estate and its beneficiaries. However, executors can sometimes breach this duty, either intentionally or unintentionally. Here’s what you need to know about executors and breach of fiduciary duty:

What is a Fiduciary Duty?

Executors and Breach of duty

A fiduciary duty is a legal obligation to act in the best interests of another party. In the context of probate, the executor has a fiduciary duty to act in the best interests of the estate and its beneficiaries. This includes managing the assets of the estate, paying any debts or taxes owed by the estate, and distributing assets to the beneficiaries according to the terms of the will.

Breach of Fiduciary Duty

A breach of fiduciary duty occurs when the executor fails to act in the best interests of the estate and its beneficiaries. This can happen in a variety of ways, including:

  1. Mismanagement of Assets: If the executor mishandles the assets of the estate, including failing to account for assets, failing to pay debts or taxes owed by the estate, or otherwise mismanaging the assets, they may be liable for breach of fiduciary duty.
  2. Conflict of Interest: If the executor has a personal interest in the estate, such as being a beneficiary, and this interest conflicts with their duty to act in the best interests of the estate, they may be liable for breach of fiduciary duty.
  3. Failure to Distribute Assets: If the executor fails to distribute assets to the beneficiaries according to the terms of the will, they may be liable for breach of fiduciary duty.

Remedies for Breach of Fiduciary Duty

If you believe that an executor has breached their fiduciary duty, you may be able to take legal action to hold them accountable. This may include:

  1. Filing a Lawsuit: You may be able to file a lawsuit against the executor to recover any losses you have suffered as a result of their breach of fiduciary duty.
  2. Seeking Removal: You may be able to seek the removal of the executor if they have breached their fiduciary duty. This may require filing a petition with the probate court and providing evidence of the breach of fiduciary duty.
  3. Pursuing Other Legal Remedies: Depending on the circumstances, you may be able to pursue other legal remedies, such as filing a complaint with the state bar association or seeking criminal charges against the executor.

Conclusion

Executors have a fiduciary duty to act in the best interests of the estate and its beneficiaries. If you believe that an executor has breached their fiduciary duty, it is important to consult with an experienced probate attorney. An attorney can help you understand your legal options and protect your rights as a beneficiary.

Afraid your executor isn’t doing their job correct? We have helped heirs, beneficiaries and devisees get their rightful share; we can help you too! Our office is located at 1100 East NASA Parkway, Ste. 420J, Houston, TX 77058 you can also call our office at 832.408.0505 and book your Legal Strategy Session Today!

Can Executors and Administrators Be Removed For Conflict Of Interest?

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Executors and administrators are responsible for managing the assets of a deceased person’s estate and distributing them to the beneficiaries. However, conflicts of interest can arise when the executor or administrator has a personal stake in the estate, such as when they are a beneficiary. In these situations, it may be necessary to remove the executor or administrator to prevent any further conflicts of interest. Here’s what you need to know about removing an executor or administrator for a conflict of interest:

Legal Grounds for Removal

Under Texas law, an executor or administrator can be removed for a variety of reasons, including:

Conflict of Interest
  1. Conflict of Interest: When an executor or administrator has a personal interest in the estate, such as being a beneficiary, it can create a conflict of interest that may make it difficult for them to act impartially.
  2. Mismanagement: If an executor or administrator mismanages the estate, including failing to properly account for assets, failing to pay taxes or debts, or otherwise mishandling the estate’s assets, they can be removed.
  3. Failure to Perform Duties: Executors and administrators have a duty to act in the best interests of the estate and its beneficiaries. If an executor or administrator fails to perform their duties, including failing to distribute assets in a timely manner or failing to follow the terms of the will, they can be removed.

How to Remove an Executor or Administrator

If you believe that an executor or administrator should be removed for a conflict of interest or other reason, you can file a petition with the probate court. The court will hold a hearing to determine whether the executor or administrator should be removed. At the hearing, you will need to provide evidence of the conflict of interest or other grounds for removal.

In some cases, the executor or administrator may voluntarily resign before the court makes a decision. In this case, the court will need to approve the resignation and appoint a new executor or administrator.

Conclusion

Executors and administrators play a critical role in managing the assets of a deceased person’s estate. However, conflicts of interest can arise when the executor or administrator has a personal stake in the estate. If you believe that an executor or administrator should be removed for a conflict of interest or other reason, it is important to consult with an experienced probate attorney. An attorney can help you navigate the legal process and protect your rights as a beneficiary.

Looking to remove an executor? Or Do you have concerns about them being able to do their job?; we can help! Call our office at 832.408.0505 and book your Legal Strategy Session today! Our Clear Lake office is located at 1100 NASA Parkway, Ste. 420J, Houston, TX 77058.

3 Examples of Executor-Beneficiary Conflict of Interest and What Happens When This Arises

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An executor is a person appointed in a will to manage the estate of a deceased person. They have a fiduciary duty to act in the best interests of the estate and its beneficiaries. However, conflicts of interest can arise when the executor is also a beneficiary of the estate. In this situation, the executor may be motivated to act in their own interests, rather than in the best interests of the other beneficiaries. Here are some examples of executor-beneficiary conflicts of interest and what happens when they arise:

Executor Beneficiary Conflict
  1. Self-Dealing: Self-dealing occurs when the executor uses their position to benefit themselves at the expense of the other beneficiaries. For example, the executor may sell estate assets to themselves or a related party at below market value, or they may charge excessive fees for their services as executor. When self-dealing occurs, the other beneficiaries can file a lawsuit against the executor for breach of fiduciary duty.
  2. Unequal Distribution: If the executor is also a beneficiary, they may be tempted to distribute assets unequally in their favor. For example, they may take a larger share of the estate or withhold assets from other beneficiaries. In this case, the other beneficiaries can challenge the distribution in court.
  3. Delaying Distribution: Executors have a duty to distribute the assets of the estate in a timely manner. However, if the executor is also a beneficiary, they may delay distribution in order to increase their share of the estate. When this happens, the other beneficiaries can petition the court to remove the executor and appoint a neutral third party to manage the estate.

When an executor-beneficiary conflict of interest arises, it can lead to disputes and legal action. In order to prevent conflicts of interest, it is recommended to choose a neutral third party to act as executor or to include a provision in the will that prohibits the executor from benefiting from the estate. If a conflict of interest does arise, it is important to consult with an experienced probate attorney for guidance. An attorney can help you navigate the legal process and protect your rights as a beneficiary.

Afraid your executor isn’t doing their job correct? We have helped heirs, beneficiaries and devisees get their rightful share; we can help you too! Our office is located at 1100 NASA Parkway, Ste. 420J, Houston, TX 77058. Call our office at 832.408.0505 and book your Legal Strategy Session today!

Are Any of These 11 Mistakes Lurking in Your Estate Plan?

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1) Lack of Healthcare and Disability Planning. The majority of deaths occur in hospitals or other institutions. Patients may be incapacitated to the point where they can no longer communicate their healthcare wishes. Advance Directives and a Healthcare Power of Attorney can identify healthcare proxy decision-makers, specify wishes for end-of-life care, and provide a formal plan to control financial and property matters.

2) No will or estate plan. Without proper planning, your estate may be tied up in probate court for months or years after your death, at a great emotional and financial cost to your family.

3) Lack of attention to digital assets. Without a plan for digital assets and social media, you may lose critical documents, photos, memories, and family records.

4) Lack of attention to your children’s possible future divorces or lawsuits. It’s not fun to think about, but if your children divorce or are sued at some point in the future, their inheritance may be decimated and end up in the hands of those you never intended. A trust can help protect your legacy and your children’s inheritance.

5) Lack of attention to the conscious transfer of family values. Comprehensive estate planning can include family meetings, a family mission statement, and custom planning for children.

6) IRA funds wasted. Retirement account beneficiaries often receive these account funds in a lump sum, creating the potential for a huge and unexpected tax bill. A standalone retirement trust (sometimes called an IRA trust) can protect these funds while still providing for your beneficiaries.

7) Chaotic record-keeping. Good planning is essential to make sure your heirs do not spend months or years trying to make sense of what you left behind. A comprehensive estate plan provides you with a framework for maintaining your vital legal and financial records.

8) Surviving spouse creditors and predators. If your surviving spouse remarries and then divorces, your estate could end up in the hands of people you never intended. Likewise, if your surviving spouse is victimized by financial predators – something increasingly common as the population ages – your family may discover too late that your legacy is gone. A trust can ensure family money stays in and benefits the family.

9) Family feuds over sentimental items. This problem can be avoided with a Personal Property Memorandum, which can account for tangible items like artwork, family heirlooms, and jewelry. In addition to the financial assets, your plan should include careful consideration of important family items.

10) HIPAA privacy lockout. If incapacity leaves you unable to communicate, family members—even your spouse—may not be able to access your medical records because of HIPAA privacy rules. Executing a HIPAA authorization ensures access to medical information.

11) Outdated Estate Plan. You may have a will and estate plan already. Does it reflect your current circumstances, goals, and needs? A comprehensive review by an estate planner ensures that your estate plan reflects your current situation, desires, and needs.