El Paso Legal Blog | Kubinski & Associates, P.C.

Do You Need to Probate a Will?

Mon, 17 Aug 2020 18:34:07 GMT

What is Probate?

Probate is the legal process of validating the last Will of the deceased person. The purpose of Probate is to determine which Will (if there are multiple) was the most recent and to identify if the Will meets the statutory requirements of the Texas Estates Code. For example, the Texas Estates Code requires two witnesses to testify that they witnessed the deceased person signing the Will or a Self-Proving Affidavit be attached to the Will.

If I have a Will, do I need to go through Probate?

Probably. If there is a property that you need to transfer the title to sell it, such as a house, a car, a bank account, you need to probate the Will. Under Texas law, a Will is not self probating and must be probated within 4 years of death. By probating the Will the judge legitimizes your Will as the Last Will and authorizes an Independent Executor to act on behalf of the estate without court supervision and allows the executor to sell and/or transfer the title of the properties.

It has been more than 4 years since my family member’s death, can we still Probate the Will?

It depends. A court may allow a Will to be probated after four years only if:

1. The executor was not in default in failing to present the will for probate within 4

years of death; and

2. All interested parties agree and consent to probate the Will.

Default is a broad term that has been applied generously by the courts. If the will excludes any children, it is unlikely they will consent. The estate then will be distributed by intestacy and those excluded children in the Will will receive a share of the estate, which is not what the testator (dead person) wanted.

What happens if I die Intestate (without a Will)?

If you die without a will, this is called intestacy and Texas law provides how your property will be divided. For example, if you were married but had children from a prior marriage or out of wedlock, then your half of the community property will be divided between all your children equally and not your spouse. This is not what most people want for their spouse and shows why it is important to have a Will. If you die without a Will, your loved ones will be required to file a Declaration of Heirship with Administration, which is an expensive process compared to probating a Will.

If you need help with probating your family member’s Will or you

need a Will for yourself, call our office at 915-593-8883.

I want a Divorce from my abusive spouse

Tue, 28 Jul 2020 23:29:01 GMT

What is considered Family Violence?

Under the Texas Family Code, family violence is an act by a member of a family against another member of the family that was intended to result in:

• physical harm;

• bodily injury;

• assault;

• sexual assault; or

• a threat that places a family member in fear of immediate and unavoidable harm.

Family violence includes abuse. Abuse occurs when the act or failure to act that results in:

• the mental or emotional injury to a child,

• causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury,

• physical injury that results in substantial harm to the child, or

• failure to make a reasonable effort to prevent an action by another person that results in physical injury to the child.

I need out of this marriage now, is there a waiting period?

In Texas, there is a mandatory 60 day waiting period to get divorced, however, there is no waiting period when the court finds that your spouse has been finally convicted or received deferred adjudication for family violence against you or your family.

HELP, this is an emergency!!!

If you are currently experiencing family violence, you have two immediate options:

1. A Protective Order; and

2. A Temporary Restraining Order as part of your Divorce.

The main difference between a Protective Order and a Temporary Restraining Order is that if your spouse violates the Protective Order, they can be arrested on the spot. If your spouse violates a Temporary Restraining Order, you need to file a separate Enforcement action for your spouse to be punished.

Each order can order your spouse to stay away from you or your children, move out of the house, and/or not threaten or harass you or your children. The County Attorney’s Office (915- 546-2050) handles Protective Orders at no cost .

If you need more assistance regarding seeking protection from

your abusive spouse, please call us at 915-593-8883.

5 Things to Know About Common Law Marriage in Texas

Tue, 30 Jun 2020 00:16:47 GMT

What is Common Law Marriage?

Common Law Marriage allows couples that did not have a ceremonial marriage to have the same rights and protections as a traditional marriage.

What qualifies a Common Law Marriage in Texas?

In Texas, Common Law Marriage requires three elements:

A present intent to be married by the couple
Living together as husband and wife
Holding out to others that you are married, for example, filing a joint tax return.

If any element is missing, then there is no Common Law Marriage.

What are the benefits of a Common Law Marriage?

Common Law Marriage in Texas allows couples to receive the same rights and protections as couples that had a traditional wedding and/or ceremony. Common Law Marriage allows couples to file a joint tax return, apply for medical benefits on each other’s medical plans, and acquire community property.

I have lived with my partner for 'X' years, am I Common Law Married?

It depends. Unless you have met all three elements listed above at the same time, you are not Common Law Married. There is a common myth that if you live with your partner for a certain number of years, for example, 7 years, you are Common Law Married. This is incorrect and still requires you and your partner to have met all the elements listed above.

My Common Law Marriage has ended, do I need to file for Divorce?

It depends. The time period in Texas to file for a Divorce of a Common Law Marriage is two years from the date of separation from your partner. It may be beneficial to file for Divorce if you have a child with your partner or you want to divide the property acquired during the marriage.

There are a lot of myths about Common Law Marriage, if we didn't answer your question here feel free to schedule an appointment so we can understand your situation more and better advise you.

Do I Need a Will?

Fri, 12 Jun 2020 20:23:22 GMT

I have some assets.

If you have assets that involve titles such as a house, car, bank accounts, or substantial personal property then most likely you will need a Will. However, if all of your assets have a beneficiary such as a life insurance policy, retirement account, or bank account with a designation of payable on death a Will may not be necessary.

If I have a Will, do I need to go through probate?

Yes. Under Texas law a Will is not self probating and must be probated within 4 years of your death. By probating the Will the judge legitimizes your Will as the your last Will and authorizes an Independent Executor to act on behalf of the estate without court supervision.

If I die without a Will, won’t my spouse inherit everything?

It depends. If you had no children or had only children from your current marriage then your spouse will inherit your share of the community property and a portion of your separate property.

If I die without a Will, where does my property go?

If you die without a will, this is called intestacy and Texas law provides how your property will be divided. For example, if you were married but had children from a prior marriage or out of wedlock, then your 1⁄2 of the community property will be divided between all your children equally and not your spouse. This is not what most people want for their spouse and shows why it is important to have a Will. In addition, if you die without a Will, your loved ones will be required to file a Declaration of Heirship with Administration, which is an expensive process compared to the probate of a Will.

There's still so much that goes into deciding if a Will is right for you. You can find more information on our Wills & Probate page, or call so we can answer your questions directly.

Does COVID-19 Really Affect Your Court-Ordered Visitation?

Fri, 12 Jun 2020 19:10:29 GMT

Does the Stay Home Order affect my visitation with my child?

No. The Texas Supreme Court issued the Twelfth Emergency Order on April 27, 2020, ordering “any person’s right to possession of and access to a child under court-ordered possession schedule in a Suit Affecting the Parent-Child Relationship, the existing trial court order shall control in all instances.” Therefore, any court order regarding possession and access of the child supersedes any Texas Stay Home Order. Any parent that refuses the other parent’s court-ordered visitation and access of the child is in violation of the order.

I live in a different Texas city than my child, am I still allowed visitation and access?

Yes. Most Stay at Home Orders have an exception that allows for “Essential Travel” that includes travel required by court order, including an administrative court order. Make sure to check your local county’s Coronavirus Orders before making any arrangements.

What happens if the other parent in possession of the child refuses to release the child because of the Coronavirus?

If the other parent in possession of the child is refusing to release the child, you need to hire a Family Law Attorney to file an Enforcement action against the other parent to enforce possession and access. Be sure to document the denial of visitation rights by email, text, etc. Also, try to only communicate about possession and access in writing.