Estranged Complications

Seeking information to resolve issues arising from death of estranged father.

The deceased lived in Texas and owned property there. His ex-wife currently lives 2 streets over from said property and we are told by his/their lawyer in Ohio to be listed as executor of his will. The will was written before the divorce and purchase of property in Texas. However, we have been unable to obtain a copy from this lawyer. Ex-wife has proven to be difficult and untrustworthy as well.

Father's final arrangements are being made and paid for by us. We are very unsure and confused as to how to proceed at all and what our rights are.

Once the will is filed for probate it becomes a matter of public record and you can obtain a copy from the court in which it is filed.  There's no law that says that an ex-wife can't serve as the executor of the estate.  If, once the will is filed and she is appointed as the executor, you feel that she is not fulfilling her fiduciary duty to the estate you are free to petition the court to appoint someone else.

If you have paid for the funeral, you have the right to submit a bill for the expenses to your father's estate for reimbursement.  Except for a limited exception in Louisiana, no state requires a parent to leave anything to his/her children.

Unless will includes EX for some reason she is NOT in legal loop.

Nobody is formally in charge until the court issues formal appointment-albeit usually routine..

The original of the will is critical--it counts-copies may not. Where is original-with who?

No will--equals intestacy.

Children probably have a preference to seek administrators  role under intestacy--EX not so --

Prior lawyer owes you no specific service--avoid signing for service unless you know what you are doing.

If your father's domicile was Texas, then probate should be opened in Texas.  It's not clear what an attorney in Ohio has to do with this.

As to the effect of the divorce:

Sec. 69.  WILL PROVISIONS MADE BEFORE DISSOLUTION OF MARRIAGE.

(a) In this section, "relative" means an individual who is related to another individual by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, respectively.

(b)  If, after making a will, the testator's marriage is dissolved, whether by divorce, annulment, or a declaration that the marriage is void, all provisions in the will, including all fiduciary appointments, shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator failed to survive the testator, unless the will expressly provides otherwise.

(c)  A person whose marriage to the decedent has been dissolved, whether by divorce, annulment, or a declaration that the marriage is void, is not a surviving spouse unless, by virtue of a subsequent marriage, the person is married to the decedent at the time of death and the subsequent marriage is not declared void under Section 47A of this code.

I suggest that one of you get to Texas to open probate.

From what we have been told, the Ex-wife has the original copy of the will. If she is unwilling to file with probate, what is the next step? I feel as though we are going to need a good lawyer. Any suggestions on a good place to start?

We are 2 children of the deceased, one in Ohio and one in Georgia / home from Afghanistan for a couple of weeks.

How do we open probate without a will? -I know this is very elementary. Will there be any issue with only one of us filing since we are both considered to be his next of kin? Also, what if we run into problems (as I expect we will) wil his ex contesting the proceedings?

You petition the court to order the ex to produce the will.  Maybe communicating the statute will motivate her:

Sec. 75. DUTY AND LIABILITY OF CUSTODIAN OF WILL.  Upon receiving notice of the death of a testator, the person having custody of the testator's will shall deliver it to the clerk of the court which has jurisdiction of the estate.  On sworn written complaint that any person has the last will of any testator, or any papers belonging to the estate of a testator or intestate, the county judge shall cause said person to be cited by personal service to appear before him and show cause why he should not deliver such will to the court for probate, or why he should not deliver such papers to the executor or administrator.  Upon the return of such citation served, unless delivery is made or good cause shown, if satisfied that such person had such will or papers at the time of filing the complaint, such judge may cause him to be arrested and imprisoned until he shall so deliver them.  Any person refusing to deliver such will or papers shall also be liable to any person aggrieved for all damages sustained as a result of such refusal, which damages may be recovered in any court of competent jurisdiction.

Mojo8981:

Will there be any issue with only one of us filing since we are both considered to be his next of kin?

Should not be a problem as long your sibling is on board.

Mojo8981:

Also, what if we run into problems (as I expect we will) wil his ex contesting the proceedings?

You deal with it when it happens.  But, unless she can come up with some evidence that any provisions in the will favoring her were intended to survive the divorce, she should not get very far.

Harrylime you are fantastic, thank you.

One more issue is at hand. Our father expired in his home and was not found for a couple of days. There is extensive amounts of cleanup required that the police has told us of. Should we hire someone to take care of that asap as recommended? Should/can we also have the locks on the home changed to discourage "looting"?

By all rights, only the personal representative appointed by the court should be doing that.  I am not certain if there are some statutory provisions in TX to this effect, but courts usually cut some slack for pre-appointment actions if the only purpose is to protect the estate's assets.

In other words, it is easier to ask forgiveness than permission.

Just a suggestion:  It would be extremely smart to guess that original of will may never turn up and that kids proceed to seek control under "intestacy"  and in your shoes I'd get somebody in there tomorrow to make a very good video invenory and lock the place up well--you have very good odds there will be "visitors" if there have not been same already to raid place. Remove any small valuables and any larger items of any great value like tomorrow to secure place.

Thank you Drew. We are in the process of getting all the way down there and sorting this mess out. The sooner the better.

Sooner than that if you anticipate raids by EX or others...

I doubt the process to get named administrator is very quick --in theory one can do it ones self (unless TX requires one be a TX resident) but it may be prudent for estate to hire legal talent to do it.

In Texas, local court rules determine whether an attorney is required.  In most counties, the personal representative will be required to have representation.

Besides, this sounds like it may get ugly.

It IS getting ugly.

There are extreme costs involved in just taking care of Father's residence. (Likely 10k+ for biological and "Other" cleanup + extermination)

We have now seen the will. Father's ex-wife has 3 adult children that may be included in his estate. They are specified as his step-children and one of their names is misspelled. Now the issue is figuring out whether or not the divorce dissolved the parent/stepchild relationship and removing the ex-wife as executor of the will. Their lawyer is persuing a 5 way split.

Are you going to fight or compromise?

If fight, you need an attorney.  And, while this case involves a stepchild as a contingent beneficiary, your attorney's eyes should brighten a bit if you mention it.

In re Estate of Nash

http://caselaw.findlaw.com/tx-supreme-court/1108538.html