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This takes place in Texas. I have been seperated from husband but remained married. His sister has power of attorney. He just died Monday. He made a will and now she is refusing to probate and has taken over the small amount of cash involved. His will stated our daughter, age 31, to be the sole beneficiary.
I have stayed out of it until she has decided to not probate will, but now have my doubts as to what is going on. She signed a check on his behalf as "by my spouse" to me for money owed before he passed.
I am just wondering if it's worth contacting a local attorney and spending the money if indeed the accounts were POD, and if that invalidates my community property right.
She can't be the executor until she does probate - it's the act of probating the will which names her the executor or executrix which allows her to do anything on behalf of the estate. Unless she does probate the will - she absolutely has no authority to do anything whatsoever.
That the bank account was individually owned by him - that money goes into his estate.
If any part of a Texas decedent's estate is not effectively disposed of by will, the intestate share will be distributed in the following order and manner:
1. Surviving spouse. A surviving spouse is generally first in line to get any assets from the intestate estate. However, the amount a surviving spouse is entitled to depends on these situations:
2. Heirs other than surviving spouse. Any part of the intestate estate not passing to the surviving spouse as indicated above, or the entire intestate estate if there is no surviving spouse, passes in the following order to:
3. State of Texas. If there is no taker under any of the above provisions, the intestate estate passes to the state of Texas.
In the nine "community property states," including as Wisconsin, Arizona, Nevada, Texas and California, a surviving spouse automatically owns 50% of the assets either spouse acquired during the marriage upon death.
So, does he have much in the way of assets?
Not much in assets, around $5000 in cash. She wrote a check to pay for the cremation after the death which would come out of that. She informed my daughter that she would keep anything "after the bills are paid". We have no idea how much that would be.
She is claiming that she is going to "pay his bills", but since she won't perform as executor and do the work involved, I question what bills she will pay if any. I looked it up and there are certain procedures to follow.
What would be my move to shut this down and proclaim my community property rights? Would a notice to the bank involved work? Would that be valid if it came from me personally? How would I see to it that she stops acting in the name of being "executor"?
As I understand your reply, even if he did sign a POD in her behalf, I would STILL be entitled to 50%, right? The POD is what has stopped me from acting and the bank won't even tell me if there is a POD clause in effect.
I hate to say it, but you will have to petition for probate of the estate yourself and ask that you be named the administrator because of her failure to perform her fiduciary duties.
She's operating like a "loose canon" and who knows what she is doing and how much there really is. There may be other assets that you don't know about - doubtful - but one never knows.
Here's what I would do:
1) Inform her that you will petition the court for probate of his estate if she doesen't give you fill access to any information you want. Additionally, inform her that she is committing forgery and potential theft of funds by signing his name or hers without court authorization. That the POA ended upon his death. That if you do petition the court - you willhold her personally accountable for everything she's done and pursue her for such
OR - if she doesn't do such
2) contact a local attorney and ask that they petition the court for you to act as administrator of the estate given what she's done and doing
I think that the threaqt of #1 should put the fear of God in her and she should give you any and all information you want.
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