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Ray
Ray, Lawyer
Category: Legal
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Experience:  30 years in civil, probate, real estate, elder law
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My aunt died and left my cousin, who is not her son, as Power

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My aunt died and left my cousin, who is not her son, as Power of Attorney and Executor of Her Will. In the will, she wants her son to have her home, at the discretion of the POA; however, her son is an addict and does not have stable employment.

My aunt died two days ago. Is there a way that my cousin, who is in charge of her estate, change the ownership of the home from my aunt, who is now deceased, to a family trust?
We only ask because if my cousin, who has spent nearly half his life in prison, is now claiming that everything is his and wants the keys to the home. The major concern is that as an addict without stable employment, the home my aunt worked her life to pay for is in risk of being lost.

Thanks for any advice you can offer.

RayAnswers :

Thanks for your question and good afternoon.My sympathy here for your loss and dilemma.

RayAnswers :

I am a Texas lawyer and will assist you today.

Customer:

Thank you, XXXXX XXXXX appreciate the prompt response.

RayAnswers :

The will here unfortunately controls disposition of her estate.Once the person deceases a trust cannot be created.This is something she could have done while alive but not once she deceases.

RayAnswers :

I wish I could tell you otherwise but here in Texas the executor once the will is admitted to probate has a fiduciary duty to carry out the terms of her will.

RayAnswers :

The court would insist on it.Once the creditors here and taxes are paid the executor is duty bound to distribute the remaining assets to the heirs under the will as she set out.

RayAnswers :

Again I wish I could tell you otherwise.I understand that this is frustrating to everybody.

RayAnswers :

The POA ceased on her death.You would also want to make sure the estate claims her social security death benefit here.Its a small one time payment.

Customer:

One of the provisions she outlined in the will and to my cousin as POA, is that he had discretion to turn over the keys to the home to her son, when he felt that he was able to take care of the property. How long can that discretion be carried out?

Customer:

We love our cousin, but we're looking for a legal recourse - should one exist - that would give him a certain amount of time to get his act together before he can have the keys to the home. She also outlined that the money she had left should go to pay the taxes and home insurance, not for her son's personal use. Is that enough to give us a slither of opportunity to protect her home before we have to give everything to him?

RayAnswers :

Thats his call here.Eventually the son may hire his own lawyer here and force the court to transfer it.But from what you post this is pretty discretionary.The problem would be that the estate cannot be closed until all the disbursements, etc are made.Realistically 15 -24 months would be about the maximum unless there is some other good cause here to keep it open.l

RayAnswers :

The estate can pay taxes until the transfer deed is filed.After that he is on his own.

RayAnswers :

Again I wish I could tell you otherwise but since she did not establish a trust here eventually it will have to be transferred.

Customer:

Thanks, XXXXX XXXXX makes sense. We are saddened by her sudden death, but truly frightened about the possibility that her home will become a boarding house or a drug den.

RayAnswers :

Reference to Death benefits I mentioned above.

RayAnswers :

The law here just doesn't support an indefinite probate.After a couple of years the judge may start asking questions.

RayAnswers :

I do wish you good luck here.I appreciate the chance to help you today and provide you the information you asked for.I wish I had better news.

RayAnswers :

He doesn't get the keys until the executor deeds him the property.

Customer:

Understandable. My cousin, who is in charge, said that he would tell him he'd give him everything in six months - hoping that would encourage him to get everything he needed together. We just wanted to know if there was anything else we could do, legally, to help protect our aunt's property.

Customer:

Your advice has been helpful.

RayAnswers :

Six months at least is reasonable here.You would want to make sure there are no claims and all bills , taxes paid.

RayAnswers :

He does not have legal right to access the property here it belongs to the estate.

RayAnswers :

I wish you the best.I appreciate the chat.If you can leave a positive rating it is much appreciated.Take care and try to stay cool.

RayAnswers :

Texas is burning up today at least in Austin.

Customer:

Here in Houston as well! Have a great weekend! More so in Houston...

RayAnswers :

You too.

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