wee a1 mL. nm Pappop > Per AM ae EE Senay aene TABLE OF Ci INTRODUCTION GUARDIANSHIP AVOIDANCE Compendium of Directives, Documents and Statutes that Avoid Guardianship Court-ordered Recognition of Surrogate Decision Maker under Consent to Medical Treatment Act (I-H.&S. §313.002) Payment of Claims Without Guardianship (T-P.C. 887) Sale of Property of Minor Without Guardianship (T.P.C. 889) Sale of Property of Ward Without Guardianship (T.P.C. 890) Receivership (T.P.C. 885) Representative Payment Community Property Administration of Spouse's Estate After Adjudication of One Spouse’s Incapacity (T-P-C. 883) Section 142 Trusts Managing Conservatorship of a Minor PROBATE AVOIDANCE Decedent Dies Intestate Small Estate Affidavit (I.P.C. 137) Determination of Heirship (I.P.C. 48) Family Settlement Agreement Resolution of Title to Vehicles, Boats and Manufactured Homes Community Property Survivorship Agreements (T.P.C. 451) Non-Qualified Community Administration Affidavit (T.P.C. 160) Affidavit of Heirship Order of No Administration (I.P.C. 140) Emergency Intervention for Burial Funds and Personal Property (T.P.C. 108) Safe Deposit Entry and Examination (T-P.C. 36B-F) Decedent Dies With a Will Probate of Will as a Muniment of Title (T-P.C. 89A) Family Settlement Agreement Resolution of Title to Vehicles, Boats and Manufactured Homes Community Property Survivorship Agreements (T.P.C. 451) Non-Qualified Community Administration (T.P.C. 160) Ancillary Probate Techniques (T-P.C. 95-99) Order of No Administration (T.P.C. 140) Emergency Intervention for Burial Funds and Personal Property (T.P.C. 108) Safe Deposit Entry and Examination (T.P.C. 36B-F) Page 23 25 28 29 32 35 36 38 40 a2 44 46 46 46 46 46 48 48 48IL INTRODUCTION When a client’s loved one dies or becomes incapacitated, the client must resolve the loved one’s estate or make financial and medical decisions for the incapacitated person. To the client, the need for action seems so obvious that the client assumes that the law gives him or her the necessary authority. Then, when misinformed by third parties that he or she must file an expensive court action to obtain the needed authority, or when told, however accurately, that advance planning techniques would have avoided the problem entirely, the client understandably becomes frustrated. By the time the client comes to the lawyer’s office, the client often wants immediate action based on an incomplete but exigent set of facts (and has a less than an adequate supply of patience for normal process). This paper will help Texas practitioners reassure their clients that many efficient, relatively uncomplicated, and inexpensive procedures do exist to resolve basic probate and guardianship problems with minimal court involvement. The forms supplied with this paper will help Texas practitioners to quickly apply these procedures to the particular facts of the clients case. While this paper assumes a basic knowledge of probate and guardianship administration, its focus is on avoiding such administration, and thus will not address the intricacies of administration. Similarly, because this paper focuses on helping the client who has not planned to avoid probate or guardianship, the paper does not discuss common probate and guardianship avoidance tools like advanced directives and powers of attorney. Finally, the paper does not address holding assets by joint tenancy with right of survivorship or other pay-on-death distribution techniques because they are well covered in other papers and require lengthy discussion. One caveat: while the techniques described in this paper may appear to be simple (and we have tried to simplify their use), the analysis of when and whether they can, or should be applied is not simple. We strongly discourage the use of these techniques and forms by non-lawyers. This paper is not a prescription for a certain technique or procedure without adequate consideration of how that technique interacts with others, without analysis of all relevant facts, including family dynamics and the property, liabilities and claims of the estate, and without anticipation of the future legal consequences of any present action. This analysis is within the lawyer’s expertise and the lawyer, not a lay-person, should make these tactical legal decisions. This is especially true in situations of death and incapacity when the emotional repercussions of the loss of a loved one, or his or her deterioration, may prevent the lay-person from focusing on the larger, legal picture, without professional guidance. wee~ wwe ~e es GUARDIANSHIP AVOIDANCE R A. Compendium of Directives, Documents and Statutes that Avoid Guardianship Form No. 1 The attached list of guardianship avoidance techniques serves as a checklist for the practitioner seeking to determine which technique will best fit his or her client's situation. Some of the techniques necessarily require advance planning, while others do not. Since most of these techniques are statutory in nature, practitioners should check for legislative changes to the underlying statutes after every legislative session. 1. Court-ordered Recognition of Surrogate Decision-Maker under Consent to Medical Treatment Act. Texas Health and Safety Code §313.002 Forms No. 1A-C Brief Description of Technique: ‘The Consent to Medical Treatment Act (Texas Health and Safety Code §313.002) provides a priority listing of persons who may make medical decisions for a comatose or incapacitated person in a hospital or nursing home, While the Act provides next of kin or clergy members with authority to act, it does not provide for any other non-related person to make decisions on behalf of such incapacitated persons unless that individual is, “clearly identified to act for the patient by the patient before the patient became incapacitated...” (H&S §313.004 (a)(5)). The statute provides further that any disputes as to the right of a person to act as a decision maker may be resolved under a court of record having jurisdiction under Chapter V of the Texas Probate Code. What if family members with similar standing under the Act assert conflicting demands to act as a surrogate decision-maker? Or what if the incompetent person previously told friends that he or she wanted a non-related person who is not a clergy member, to act as a surrogate, but never reduced that wish to writing? (Under the Act, there is no requirement of a written designation). Assuming that the hospital refuses to choose between two proposed surrogates of similar standing or, in the second case, to recognize a non-family member’ authority to consent to medical treatment, the surrogate applicant should bring an action in the statutory probate court (or other court of competent jurisdiction) to declare his or her authority to act on behalf of the incapacitated person. If there are next of kin or others with statutory priority over the applicant, each of those individuals who do not consent in writing to the application should be served with the application and with a notice of hearing. The applicant should also serve the hospital Administrator, To satisfy the Act’s definitions of incapacity, the applicant should also obtain a letter fromthe Patient’s doctor describing the Patient's medical conditions and concluding that the Patient meets one of the incapacity definitions under the Act. Given the emergency nature of decisions made under the Consent to Medical Treatment Act, the author assumes that such actions would be given priority on the court’s docket, If, however, all interested persons consent to the application, the Court should be able to enter an order declaring the surrogate decision-maker without a hearing. 2B. Payment of Claims Without Guardianship Texas Probate Code Section 887 Form Nos. 2-4 Brief description of technique: The entity or person who owes funds to a minor or incapacitated person may tender those funds to the county clerk of the county in which the minor or incapacitated person resides, along with an affidavit of deposit explaining the obligation owed to the ‘minor or incapacitated person (Form 2). Such child or incapacitated person is referred to in the statute as a “creditor.” The clerk's receipt operates as a release of the debtor's, obligations to the creditor to the extent of the payment made. To be accepted by the clerk, the affidavit of deposit must provide certain information. The affidavit should also specify that the funds be deposited in an interest-bearing account for the benefit of the minor or ward. It is incumbent upon the clerk and the court to properly receive and invest the funds, and then to deliver them to the creditor when the creditor reaches the age of 18, or when his or her disabilities have terminated. Uses for technique: This technique assists persons holding funds payable in a lump sum to a minor or incapacitated person who lacks a representative with authority to receive those funds. Obligations to minors and incapacitated persons may arise from simple (but liquidated) debts, previously adjudicated judgment obligations, estate distributions, inheritance of assets or funds, or from insurance proceeds payable to a minor, or incapacitated, named beneficiary. The proliferation of reliance on beneficiary designations and survivorship arrangements, with little thought to the overall scheme of estate planning, make resulting obligations to these incapacitated individuals commonplace. This technique is limited, however, to liquidated obligations $100,000 or less. Planning techniques to avoid the problem: 1. Durable power of attorney executed by incapacitated person, with receipt and release byagent under the power. 2. Creation of a testamentary trust to receive bequests and insurance proceeds payable by reason of death. 3. Creation of a trust under Texas Property Code §142, for the purpose of receipt of funds or other assets resulting from a suit on the behalf of the creditor (see Section ILE. below). 4, Beneficiary designations which specifically mention: (a) a special needs trust for the incapacitated person; (b) a trust created for the minor; or c) a Texas Uniform Transfers to Minors Act ("T.U.TM.A") custodian, pursuant to Tex. Prop. Code §141.004 5. Fiduciary transfers for the benefit of a minor to a custodian under T.U.T.M.A., Tex. Prop. Code §141.007(b),c). Caveats to consider:~ wet ~ 1. The clerk's receipt given to the debtor for the deposit of funds in the registry does not release the debtor from any liability other than for those funds paid to the creditor. Also, a tortfeasor, or one who owes an unliquidated debt, pays the funds at his or her peril of a later suit by the creditor or someone acting on his or her behalf to establish that the funds were insufficient to discharge the liability owed. 2. The system works well for a debtor who owes funds to a minor. The creditor who is a minor is entitled to receive those funds from the clerk at age 18. While some 18 year olds can manage funds sensibly, others cannot. Concems about the ability of a particular minor to manage funds payable to him or her must be addressed by careful planning. By the time a Section 887 deposit is made, itis too late, 3. The purpose of this statute is to avoid guardianship of the estate for minors and incapacitated persons owed money by a debtor but who have no other need for a guardianship of the estate. While it is clear that "incapacitated" includes those individuals adjudicated incapacitated for purposes of guardianship and for community property administration under Section 883 (see Section II.G. below), it is implicit that a debtor can make a deposit for a creditor whom the debtor believes to be incapacitated, even without an adjudication of the creditor's incapacity. Otherwise, the debtor would bear the expense of obtaining a guardianship for the creditor just to pay him or her a liquidated debt pursuant to Section 887. Difficulty may arise, however, when this "alleged" incapacitated person claims that his or her disability has terminated and that he or she is entitled to the funds under T.P.C. §887(f). With no guidance in the statute, it is not clear what evidence the court will require before releasing the funds. In contrast, a minor need only file an informal written application with the court stating that he or she has reached the age of 18, and present a picture identification card and a certified copy of a birth certificate. Once the person's "identity and credentials" have been proved to the court's satisfaction, the court will then order the funds released to the minor (Form 4), 4, Removing funds from the registry for the benefit of the incapacitated person requires the custodian to post a bond for double the amount removed and to file, and obtain approval of, an accounting of the money spent for the incapacitated person before the bond will be discharged. Courts are reluctant, however, to approve withdrawals under T.P.C. §887(d) because the funds will go essentially unaccounted for over a long period of time (until they are "expended"), and the custodian removing the funds usually has some built-in conflict of interest which must be carefully explained. Bonding companies are also naturally reluctant to take such an open-ended risk. The ability to remove funds for a minor is also severely limited by the obligation of the child's parent to provide all necessaries for the child during minority. One alternative, upon proof that the child’s custodian cannot pay for certain necessities for the minor and needs money from the registry to do so, is for the custodian to provide bills due from medical or other providers. ‘The Court can then order those bills paid directly from the registry to the provider, without requiring the custodian to post a bond for the withdrawal. 5. Given that the custodian, who is likely to have little accounting experience, will need counsel to present the application for withdrawal of, and the accounting for, any funds withdrawn under Section 887, it may be less expensive and less cumbersome for the custodian to obtain a guardianship of the estate, even if only a limited one, to access the ward or spouse's funds to meet regularly recurring financial obligations. A 4guardianship also provides the court and the ward with the protection of annual accountings pursuant to a statutory format. 6. Under Section 887, the clerk can accept only funds, not brokerage shares, mutual fund stocks, annuity contracts or other documents reflecting an intangible obligation to the creditor. 7. The clerk is not likely to deposit the person's money in accounts that bear much interest. Normally, the standard clerk depository arrangement is used. Presumably, those interested in the welfare of the creditor could search for a more lucrative investment and request that the creditor's funds be deposited there. If growth or income production is of primary concern, however, deposit into the court registry is not the best investment technique. 8. The clerk will issue a Form 1099 for income eamed during each year, If the registry income, either by itself, or coupled with other income or assets of the creditor, will require the filing of a tax return, then an accountant should determine whether the tax return can be handled without a guardian. Avoiding the need to file a tax return may be a reason to deposit the funds with the clerk, since the rate of return on registry investments may produce insufficient income to exceed annual tax thresh-holds. Of course, other income attributable to the creditor (or his parents, if the creditor is younger than 14) should also be considered. 9, The limit of $100,000 cannot be exceeded by aggregating two different deposits by the same debtor. 10. Thus far, Texas courts have not held that attomeys representing fiduciaries have a duty to the fiduciary's principal, although attomeys in other jurisdictions are being held liable for the misfeasance of guardians they represent, The requirement of a bond and court scrutiny of the accountings for money withdrawn under Section 887(d) should provide some protection for the creditor against unscrupulous use of his or her funds. However, the prudent practitioner should not represent a parent, spouse or custodian seeking payment of a third-party debtor's claims to the creditor under Section 887, without first advising the client of his fiduciary obligations to the creditor should the client withdraw any of the creditor's money from the registry. Similarly, on being discharged, the careful attomey should reiterate the custodian's continuing obligation to spend the funds in the creditor's best interest, to avoid any conflict of interest or self- dealing so common in situations where one family member cares for another, and to account for those funds. The discharged attomey should also ensure that the former client has a continuing relationship with another attomey or an accountant to prepare the accountings. The attomey should also retain all written records of the client's use of the creditor's funds longer than the firm's normal record retention policy would dictate, since the minor or incapacitated person has four years after the removal of incapacity or minority to sue the client for misuse of funds withdrawn from the registry. Necessary facts to gather: 1, Full name (obtain birth certificate of minors and any name change orders or divorce decrees changing names) of creditor. 5 ~ weewwe 2, Social Security number of creditor. 3. Residence (include custodian’s name, physical and mailing address of a custodian, contact persons and telephone numbers) of creditor, and county of creditor's domicile, 4, Proof of incapacity (birth certificate for minor) or reference to court order finding incapacity. 5. If custodian seeks to remove assets from the registry, have custodian fill out bonding application fully, including all financial information. 6. Names of other relatives who will always know the address of custodian and creditor, even if they move and do not tell the practitioner, court or clerk. 7. Name of debtor, and physical and mailing address of same, including contact persons and telephone numbers. 8. Proof of obligation owed to creditor, and that it is unliquidated. If representing the debtor, describe the obligation well in the debtor's affidavit and attach exhibits documenting the obligation, This clarifies exactly what obligation the debtor is discharging by payment, and protects the debtor from future claims once the disability of minority or incapacity is removed and the statute of limitations on bringing those claim begins to run. Alternative procedures to consider: 1, Guardianship. 2. Guardianship with Management Trust. 3. Disclaimers, if the funds should not pass to the person at all (such as by reason of potential disqualification for public benefits.) 4, Section 142 Trusts. 5. Convincing a third party debtor to arrange to hold the funds until an older minor is 18, rather than going through this process. 6. Convincing a third party debtor to arrange with a managing conservator to create an annuity for a minor. 7. Asking for guardianship of the estate with limited authority to create an annuity for an incapacitated person. 8, Settle a lawsuit with the creation of an annuity that will not create income until the child is eighteen, and establish a limited guardianship for holding that asset. 9. Deposit with custodian under T.U.T.M.A., Tex. Prop. Code §141.008.C. Sale of Property of Minor Without Guardianship Texas Probate Code Section 889 Form Nos. 5-7 Brief description of technique: This procedure is used to sell a minor's interest in real or personal property. The natural parent of a child, or his or her managing conservator, may apply to the court for an order to sell the minor’s property without the appointment of a guardian, if the net interest of that child in the property is $100,000 or less. ‘The parent or conservator must file a sworn application to sell the property that describes the property and the minor’s interest in that property, and that states that the sale of the minor’s interest is for cash and that all funds received from the sale shall be used for the minor’s benefit. The Section 889 application may be heard and considered by the court after the expiration of the posting period (the first Monday after 10 days from posting), or, if citation is not required by the court (an unlikely event), after five days from filing. Legal fees for filing the Section 889 application should be assessed, pro rata, against each co-owner’s share of the proceeds, as well as the real estate commissions and closing costs involved in handling the sale. Such equalization of costs is appropriate because all of the owners, not just the minor, benefit from the sale, which could not have occurred without the Section 889 proceedings. The purchaser of the property must pay the remaining proceeds of the sale into the registry of the court for the minor’s benefit. The minor’s funds may be removed from the registry pursuant to T.P.C §887 (described in §I1.B. above), when the minor has reached the age of 18 Uses for technique: This is a helpful technique where the minor has inherited a share of real or personal property, which the other co-owners would like to sell, and the minor has no guardian to consent to the sale of the minor’s interest. This technique can also be used for the transfer of oil, gas or mineral leases belonging to a minor because an oil, gas, or mineral lease is not really a lease but a sale of a determinable fee interest in the mineral estate, Cherokee Water Co. v, Forderhause, 641 $.W.2d 522 (Tex. 1982). See also Texas Probate Code §848(a)(telating to guardianships, “...the court may authorize the making of oil, gas and mineral leases at a private sale...”) (emphasis added). Planning techniques to avoid the problem: 1, Placing property interest into a trust for minor. 2. Will creating independent administration with explicit power of sale, Caveats to consider: 1. Many courts, including Travis County Probate Court No. One, routinely appoint an attomey ad litem to represent the interests of the minor heir. 2. While the Probate Code states that, “the court may cause citation to issue,” ‘most statutory probate courts require citation by posting in these sales as they would for 1 ~~ wwe ~ sales conducted during a formal guardianship. Similarly, while the statute does not mention filing a report of sale and obtaining a decree confirming that sale from the court as required in guardianship administrations, this is the best practice, and the one followed by most Probate Courts, Judicial review protects all parties from any potential claims that the closing costs were not accurate or not evenly assessed against all co-owners. 3. Most statutory probate courts require an independent appraisal of the property to establish a minimum price (although T.P.C.§889(d) makes this an optional requirement). Indeed, it is difficult to understand how an attomey ad litem could consent to the sale on the minor’s behalf without such an independent appraisal. The most authoritative appraisal is one by a certified (MAI) appraiser. Approval without an appraisal will depend upon providing to the court independent proof of value, such as letters from independent realtors with comparable sales data attached. 4. The order approving the sale should direct the title company (or other agent for the seller) to deposit the sale’s proceeds directly into the court registry, rather than to distribute them to the minor’s parent or conservator for later deposit into the registry. Since the parent or conservator is not bonded, direct deposit avoids any possible mismanagement of the funds by the parent or conservator. 5. This statute requires deposit into the court registry, which as noted above, is a relatively low yield, but safe investment. Removal of funds from the court registry to purchase a more lucrative investment is difficult. For greater investment flexibility, the parties should consider creating a guardianship and T-P.C. §867 trust for management of the sales proceeds. 6. Itis normal for real property sales to proceed without scrutiny by counsel until after legal obligations have been incurred, since competent brokers, in order to bind the deal before a buyer loses interest, tend to try to push the process to the stage where the title company receives the eamest money contract and the eamest money. Be sure that the co-owners, and the parent or conservator who lists the property for sale, specify in both the listing agreement and in the eamest money contract that the listing agreement and the contract for sale are contingent on court approval. Failure to do so can lead to liability to the third parties involved in the sale if the court prohibits it for some reason. Necessary facts to gather: Minor’s name, address, and Social Security number. Legal description of real property to be sold. ‘Name of purchaser (and attach contract for sale if available). Allegations required by T.P.C.§889 (b) must be in application. Application attested by parent or managing conservator. Proof of value — appraisal or letter from independent realtor with comparable sales data attached. 7, Name of broker or realtor, and title company involved. ae beeAlternative procedures to consider: 1. Guardianship of the estate, if the minor has other assets that need protection and management, or if the minor’s share of property is over $100,000. 2. Creation of a management trust to hold the assets, pursuant to T.P.C.§867. The Probate Court could then order the clerk to pay the funds from the court registry to fund the trust. Remember, however, you need a guardian to create and monitor a Section 867 trust. See T.P.C. §§867; 868A. 3. Ask for authority to deliver the funds to an annuity company, and have the resulting annuity held by a management trustee for the minor. Presumably, the Court could issue an order that the clerk pay the fund from the Court registry to fund the annuity. A guardian would still be necessary to create and monitor the Section 867 trust. 4, Partition action in district court by co-owners pursuant to Texas Property Code §§23.001-23.005, with a determination of the owner's equities in the property, a sale by commissioners, and the commissioners’ direct deposit of the minor's proceeds into the court registry under T.P.C. §887, or the creation of a Section 142 bonded management arrangement or trust, (see Section LH. below), or the transfer by court order of unlimited proceeds to a T.U.TM.A. custodian under Tex. Prop. Code §141.007 or §141.008. Note — sometimes, after a determination of the parties’ equity in an inexpensive property, and the pro rata assessment of the fees for the commissioners, the surveyors, and the attomeys, the minor may end up with no net proceeds, eliminating the need for any management arrangement. D. Sales of Property of a Ward Without Guardianship Texas Probate Code Section 890 Form Nos. 8-10 Brief description of technique: This procedure is used to sell the real or personal property interests of a ward subject to a guardianship of the person. The guardian may apply to the court for an order to sell the ward’s property without the appointment of a guardian of the estate, if the ward's net interest is $100,000 or less. The guardian must file a swom application to sell the property that describes the property and the ward’s interest in the property, and that states that the sale of the interest is for cash and that all funds received from the sale shall be used for the benefit of the ward, The Section 890 application may be heard and considered by the court after the expiration of the posting period (the Monday after 10 days from posting), or, if citation is not required by the court (an unlikely event), after five days from filing. Legal fees for filing the Section 890 application should be assessed, pro rata, against each co-owner's share of the proceeds, as are the real estate commissions and closing costs involved in handling the sale, Such equalization of costs is appropriate because all of the owners, not just the ward, benefit from the sale, which could not have ‘occurred without the Section 890 proceedings. The purchaser of the property must pay the remaining proceeds of the sale into the registry of the court for the ward’s benefit The ward’s funds may be removed from the registry pursuant to T.P.C §887 (described above at Section Il. B.) weeweve Uses for technique: This is a helpful technique if the ward has his name on a deed for some reason, or has received a gift, or inherited a share of real or personal property, which the other co- owners would like to sell, and there is no other need for a guardian of the estate. This is also a helpful technique for selling non-exempt assets of the ward (¢.g., non-homestead real property) so that the ward can purchase exempt "resources," like a burial contract or homestead improvements, that will not disqualify the ward under the rules of the agency providing him or her with public benefits. While the statute does not mention the filing of a report of sale and obtaining a decree confirming that sale from the court, as is required in guardianship administrations, this is the best practice, and the one required by most Probate Courts, Judicial review protects all parties from any potential claims that the closing and closing costs were not accurate or fair as to all co-owners. This technique can also be used for the transfer of oil, gas or mineral leases belonging to a ward because an oil, gas, or mineral lease is not really a lease but a sale of a determinable fee interest in the mineral estate. Cherokee Water Co. v. Forderhause, 641 S.W.2d 522 (Tex. 1982). See also Texas Probate Code §848(a) (relating to guardianships, “...the court may authorize the making of oil, gas and mineral leases at a private sale. ..”) (emphasis added). Planning techniques to avoid problem: 1, Refrain from deeding property to an incapacitated person. 2. Durable power of attomey executed before incapacity. 3. Placing the incapacitated person's interest in property into a trust or special needs trust for incapacitated person. 4, Will creating independent administration with explicit power of sale. 5. Will creating testamentary trust for incapacitated person that permits sale by trustee. 6. Disclaimer by the guardian, with attomey ad litem involved, and court approval. 7. Exercise of powers of appointment to redirect assets which otherwise will pass to incapacitated person. 8. Will which leaves property to another person entirely. 9. Partition action in district court by co-owners pursuant to Texas Property Code §§23.001-23.005, with a determination of the owner's equities in the property, a sale by commissioners, and the commissioners’ direct deposit of the ward's proceeds into the court registry under T.P.C. §887, or the creation of a Section 142 bonded management arrangement or trust. (See Section LH. below.) Note — sometimes, after a determination of the parties’ equity in an inexpensive property, and the pro fata assessment of the fees. for the commissioners, the surveyors, and the attorneys, the incapacitated person may end up with no net proceeds, eliminating the need for any management arrangement. Caveats to consider: 1. Many courts, including Travis County Probate Court No. One, routinely appoint an attorney ad litem to represent the interests of the incapacitated person. 102. While Section 890(d) states that, “the court may cause citation to issue,” most statutory probate courts require citation by publication in these sales like those conducted during a formal guardianship. Similarly, while the statute does not mention filing a report of sale and obtaining a decree confirming that sale from the court as required in guardianship administrations, this is the best practice, and the one followed by most Probate Courts. Judicial review protects all parties from any potential claims that the closing costs were not accurate or not evenly assessed against all co-owners. 3. Most statutory probate courts require an independent appraisal of the property to establish a minimum price (although TPC §§889(d),890(e) makes this an optional requirement), Indeed, it is difficulty to understand how an attomey ad litem could consent to the sale on the ward's behalf without such an independent appraisal. Action without such an appraisal will depend on providing independent proof of value, such as. realtor letters from non-involved realtors with comparable sales information given in detail. 4. The order approving the sale should direct the title company (or other agent for the seller) to deposit the sale’s proceeds directly into the court registry, rather than distributing them to the ward's guardian for later deposit into the registry. Since the ‘guardian of the person is not bonded for the sales proceeds and has no authority as estate guardian, direct deposit avoids any access and possible mismanagement of the funds. 5. This statute requires deposit into the court registry, which as noted above, is a relatively low yield, but safe investment. Removal of funds from the court registry to purchase a more lucrative investment is difficult. For greater investment flexibility, the parties should consider creating a guardianship and Probate Code §867 trust for ‘management of the sales proceeds. 6. It is normal for real property sales to proceed without scrutiny by counsel until after legal obligations have been incurred, since competent brokers, in order to bind the deal before a buyer loses interest, tend to try to push the process to the stage where the title company receives the eamest money contract and the eamest money. Be sure that the co-owners, and the guardian who list the property for sale, make it clear in the listing agreement and in the earnest money contract that the offer (listing agreement) and the contract for sale are contingent on court approval of the sale. Failure to do this can lead to liability to the third parties involved in the sale if the court prohibits it for some reason. Necessary facts to gather: 1, Ward’s name, address and Social Security number. 2, Legal description of real property to be sold. 3. Name of purchaser (and attach earnest money contract or contract for sale if available). 4, Allegations required by T-P.C.§889(b) must be in Section 890 application. 5. Application attested by guardian, 6. Venue facts showing venue in the Probate Court. re~- wh lS Alternative procedures to consider: 1. Guardianship of the estate, if the ward has other assets that need protection and management, needs special management of the proceeds to avoid loss of public benefits, or if the ward’s share of property is over $100,000. 2, Creation of a management trust to hold the assets, pursuant to T.P.C.§867. ‘The Probate Court could then order the clerk to pay the funds from the court registry to fund the trust. 3. Ask for authority to deliver the funds to an annuity company, and have the resulting annuity held by a management trustee for the incapacitated person. Presumably, the Court could issue an order that the clerk pay the fund from the Court registry to fund the annuity. E. _ Receivership Texas Probate Code Section 885 Form Nos. 11-13 Brief description of technique: When the estate of a minor or incapacitated person “appears in danger of injury, loss, or waste,” and in need of a guardianship but none has been created, the probate court can enter an order appointing a receiver to protect the person's interest until the danger abates. Like a guardian, the receiver must post bond, can expend an allowance for the person’s support, and must account in writing for expenditures made and income received for the person’s benefit. When the estate is no longer liable to injury, loss, or waste, the receivership terminates and the property is returned to a custodian for the minor or incapacitated person. Uses for technique: Receivership is helpful where a minor or incapacitated person must make a one- time federal tax election. A receiver can also assist a minor or incapacitated person with short-term but important decisions regarding inherited business interests. A receiver also could be appointed to bind a minor or incapacitated person to a settlement agreement. ‘See Form Nos. 11-13 for sample pleadings for a receivership affecting a minor's trust. Finally, a receivership could be used to sell property in Texas owned by a minor or incapacitated person who is the subject of a foreign guardianship, since the proceeds of the property would be paid to the foreign guardian, leaving no necessity for guardianship administration in Texas. Planning techniques to avoid the problem: 1, Durable power of attomey. 2. Trust for minor. Caveats to consider: 121. Ifa person’s estate is endangered by imminent theft or fraud, a temporary restraining order coupled with a temporary/permanent injunction would seem a simpler, more cost effective method than a receivership to prevent future loss. The TRO under T.R.CP. 680 can bar the alleged wrongdoer from access to the person’s estate and a temporary injunction can extend the period of prohibited conduct. Because the T.R.O. merely maintains the status quo without awarding anyone authority over the person’s property, TRO bonds (and those for injunctions) are relatively inexpensive. Moreover, at the end of a TRO or temporary injunction, there is no accounting required since no one has had access to the endangered assets. 2. Receivership is not cheap. ‘The application, hearing, accounting, and final settlement requirements make this no simpler than a temporary guardianship. While the receivership section is silent as to what, if any, citation is necessary to institute a receivership, the court is likely to use its power under T.P.C §632(a) (allowing the court to prescribe the form and manner of service in guardianship matters) to require, at a minimum, that the order appointing a receiver be served on the custodian of the minor or incapacitated person, much as the Court requires a temporary restraining order issued without notice to be served subsequently on all parties. 3. The rules relating to receivers generally apply to qualification and bonding of receivers under T.P.C. §885. See Tex. Civ. Prac. Rem. §64.021 et seq. 4. If there is a predictable, long-term threat to the estate of the minor or incapacitated person that will require active management, then a guardianship of the estate is more appropriate than a receivership. A guardian, but not a receiver, may sell or lease property, pay claims against the estate, institute and settle legal actions on behalf of the ward, and exercise other powers specified in T:P.C. §74, 5. Pursuant to Texas Probate Code §37A, a receiver cannot disclaim property from the estate of a Decedent. Only a guardian, a personal representative of a deceased person or the guardian ad litem of an unborn person have that authority. Necessary facts to gather: It is important to document in the application both the threat to the estate and the qualification of the proposed receiver. While the ultimate choice of receiver is up to the court, the applicant could suggest a qualified third party possessing whatever expertise the receivership demands (accounting or tax experience, for example). Alternative procedures to consider: 1. Temporary restraining order. 2. Temporary guardianship. 13 wee~wet F. Representative Payment 20 C.E.R. Sections 404.2001 et seq. (OASDI) 20 C.F. R, Sections 416.601 et sea. (SSI) 38 CR. Sections 13.55 et seq. (Veterans Benefits) Form Nos. 14-15 Brief description of technique: If an incapacitated person receives certain government benefits, including Social Security retirement, disability, or Veterans’ benefits, the government agency paying those benefits can appoint a representative payee (or “fiduciary” for VA benefits) to manage those benefits without the need for guardianship. Representative payees currently manage the government benefits of almost 7 million Americans. Uses for technique: Old Age Survivors and Disability Insurance ("OASDI") and Supplemental Security Income ("SSI"), both administered by the Social Security Administration (“SSA”), have similar requirements for representative payment. In both programs, SSA claims representatives initiate representative payment either directly, in one of the agency's 1200 field offices, or in response to an application for representative payment initiated and signed by the proposed payee. Situations where SSA would initiate representative payment include: a minor receiving Social Security benefits on behalf of a deceased parent; a beneficiary declared legally incompetent by a state court in a guardianship proceeding; and, a person found incapable of managing his or her benefits in the decision by SSA awarding those benefits. SSA has discretion to appoint a representative payee in other cases after inquiring into the beneficiary's ability to manage his or her funds, While a hearing is not necessary to appoint a representative payee, the agency must investigate the necessity for representative payment and the qualification of the proposed applicant, must conduct a face-to-face interview with the proposed representative payee to fill out Form 14 (and the beneficiary, whenever possible), and must review medical evidence of incapacity. The beneficiary is entitled to notice of the application for representative payment and to an opportunity to contest that application. Once the payee is appointed, the payee is obligated to use the beneficiary's funds only for the beneficiary's benefit. Planning technique to avoid the problem: In a trust or durable power of attomey, a person could designate the trustee or the attomey in fact to serve as his or her representative payee. SSA would then consider the beneficiary's designation when choosing a representative payee. See 20 CER. §404.2020(). Caveats to consider: 1. Since govemment benefits are not part of a ward’s guardianship estate (see e.g, T.P.C.§§665(a),(B)(1)), an incapacitated person does not need a guardian to receive these benefits, 142. A person need not be mentally incapacitated or a minor to qualify for representative payment. The Social Security Administration can appoint a payee for someone who is legally competent but unable physically to take care of himself. 20 CFR. §404,2010(a)(2). 3. While SSA gives family members high priority to serve as payees, many institutions, including nursing homes, serve in that capacity. 4, SSA has documented numerous cases of financial abuse by representative payees over the years. Such abuse is possible because the reporting requirements for representative payees are minimal and oversight of the required “annual reports” is limited. Each payee must account annually on a short form (Form 15) as to the amount of benefits received on behalf of the beneficiary, the amount of expenditures made on behalf of the beneficiary (broken into three broad categories), and any changes in the beneficiary's residence. Because of limited SSA resources, annual reports are rarely audited; only incomplete responses, the complete failure to file a report or a third party complaint of fraud or mismanagement will trigger an investigation. Since no federal regulation requires payees to file their annual reports with courts having guardianship jurisdiction of a ward receiving benefits through representative payment, those courts may have no knowledge of the payee’s use or abuse of those benefits. One solution is to include in the order creating a guardianship of the estate a requirement that the representative payee who is also the guardian file a copy of its SSA annual report with the court. If the payee is not the guardian, the court would have no jurisdiction to require him to file his annual reports. However, SSA would likely be receptive to an application. to change the payee to the guardian since the legal guardian is the preferred payee of an adult beneficiary. See 20 CFR. §404,2021(a)(1). Review of the annual reports will allow the Court Investigator to observe any irregularities and contact SSA to initiate an investigation. 5. Guardianship and payee benefits must be kept in separate accounts. If a guardian who is also the payee commingles Social Security and guardianship funds, the Court will require the guardian to account for those funds along with other guardianship assets Necessary facts to gather: Contact the local offices of the Social Security Administration or access its web site (http://www.ssa.gov), ot contact the local offices of the Department of Veterans Affairs ot access its website (http:/www.vagov), to obtain applications for representative payment/appointment of a fiduciary, and for assistance in applying for these services. Alternative procedures to consider: 1. Guardianship, if the incapacitated beneficiary of government benefits has other assets that need management and protection. 2. Community property administration after adjudication (see Section ILG. below). If all other assets of an incapacitated person are community assets, this 15 ewewwe technique, coupled with representative payment, can avoid a guardianship over those community assets. G. Community Property Administration After Adjudication of One Spouse’s Incapacity and Finding of No Necessity for Guardianship Texas Probate Code Section 883 Form Nos. 16-17 Brief description of technique: This process judicially declares one spouse incapacitated and establishes the authority of the remaining spouse over all community property, without the necessity of a guardianship of the estate, and without the guardianship requirements of a bond, mandatory inventory, and required annual and final accountings. Under the statute, the spouse is presumed suitable to serve (T.P.C.§883(b)), and if appointed, is named as community administrator. The Court must also determine whether or not there is a necessity for guardianship. This will depend on the presence or absence of separate property, evidence that rebuts the presumption of the spouse's suitability to serve as community administrator, and the existence of a medical power of attomey. If the court finds the spouse suitable and finds no necessity for guardianship of the person and estate, the court will appoint the spouse as community property administrator. For the benefit of third parties, the order stating that there is no separate property and that there is no necessity for guardianship should recite the specific property found to ‘be community property subject to management by the spouse. If the community estate is disputed or otherwise unclear, an application for community administration should be coupled with an application for declaratory judgment. The statute prescribes a procedure to establish guardianship of the estate if the spouse is not suitable or is removed as community administrator, T.P.C. §883C. It also provides a procedure for the tumover of the incapacitated spouse's share of community property to the non-spouse guardian of the estate for that incapacitated spouse, T.P.C. §883(c)(2). On the motion of an interested person "for good cause shown" or on its own motion, the court may order the community administrator to file inventories and accountings, T.P.C. §883B. The administrator may be removed for many of the same reasons a guardian may be removed, including breach of trust, mismanagement, or failure to file required inventories or accountings, Because the court can order the community administrator to account for his or her actions, and then can remove the administrator for mismanagement, the administrator should keep accurate records and receipts to prove, when challenged, that he or she has prudently handled the incapacitated person's community share. Uses for technique: This process gives the non-incapacitated spouse the power to manage community funds and assets without the expense of a continuing guardianship administration. Since the spouse has what the statute describes as "full power to manage, control, and dispose of the entire community estate” (T.P.C.§883(a)(1)), in theory, this community 16management could save money for the estate of both spouses. It is unclear whether the presumption that the non-incapacitated spouse is suitable and qualified to be a community administrator will forestall frivolous claims by disaffected or greedy offspring, Changes to Section 883 from the 2003 legislative session make it clear that an order dividing community property management is not a partition of community property, that the property given to a competent spouse to manage is considered that spouse’s sole- management community property, that the incapacitated spouse’s property given to a guardian to manage is considered the incapacitated spouse’s sole-management community property, and that an order allocating management of community property under Sections 883(d) and (g) does not affect the enforceability of a creditor's claim existing on the date the court renders the order. Planning techniques to avoid the problem: 1. Durable power of attomey in favor of spouse, preferably with authority to create a revocable trust, or that directs assets of the spouses into such a trust. Note that the Family Code community property management section appears to infer the right of spouses to resolve potential fact questions about their community property by use of a power of attomey. Tex. Fam. Code §3.102 (c). 2. Revocable trust into which both spouses have directed their assets, which contains clear authority to each spouse to manage the community assets, on proof of one spouse's incapacity (as defined by the trust), 3. Marital property agreement delineating the spouses’ joint and sole management community property, and their separate property. 4, Community property survivorship agreement specifying the spouse's joint and sole management community property. See Section IILA.5 below. This specification will assist in identifying the community estate subject to later community administration under T.P.C. §883. By allocating authority for the community property between the spouses, it will also eliminate claims that the non-incapacitated spouse overstepped his or her authority by managing certain assets, preventing the spouse's disqualification as. community administrator. Caveats to consider: 1, Because the only context in the Probate Code for adjudicating incapacity is in the guardianship sections, some courts may refuse to adjudicate incapacity without also appointing a guardian of the person. Probate Court No. One of Travis County, for example, will not appoint a community administrator without also appointing a guardian of the person, unless there is a valid medical power of attorney in favor of the surviving spouse. 2. Avoid community property administration where family members do not support unanimously and wholeheartedly the actions of the spouse who retains capacity. ‘The one exception is where the non-incapacitated spouse and the children of the 17 o weewht incapacitated spouse wish to forestall future litigation by obtaining a judicial declaration of ownership and authority over the marital property right away, using Section 883 with a declaratory judgment action under Tex. Civ. Prac. Rem. Code Chapter 37. 3. One difficulty with community administration lies in understanding the standard of care to which a community administrator must adhere while in possession of this "full" power over the marital assets, other than the negative injunction not to “mnisapply” or “embezzle” (T.P.C. §883C(a)(2)), or engage in “gross misconduct or mismanagement” (T.P.C. §883C(a)(3)).! Section 883() also states that, "the duties and obligations between spouses, including the duty to support the other spouse. ..are not affected by the manner in which community property is administered under this section." Even after establishing that the property is joint management community property and subject to the full control of the community administrator, what should the administrator spouse do to avoid being charged with mismanagement or breach of fiduciary duty under the Probate Code sections established here? Presumably, the spouse can spend community property of all types for the care and support of both spouses. Disputes can arise, however, if, for example, the non-incapacitated spouse uses community funds to take a "frivolous" trip without the incapacitated spouse, or uses community income for insurance premiums on a policy payable to one child and not the other. Practitioners should approach this untested standard of care with caution. Alternative procedures to consider: 1. Declaratory judgment to declare the spouses’ joint and sole management community property, and their separate property, and to settle any potential reimbursement claims 2. Guardianship of the person and estate, especially if other processes than normal management are needed, such as transfer of assets for public benefits purposes, or if estate planning or gifting is to be done after incapacity to effectuate the previously expressed intentions of both spouses. 3, The non-incapacitated spouse may resolve to use, during his or her lifetime, only his or her sole management, and not joint management, community property. The spouse using sole management community property should leave very clear and defensible records of such fact, preferably with an accountant, and should avoid any court-involved procedures like Section 883. H. Section 142 Bonded Management and Trusts-Management of Property Recovered in Suit by Next Friend or Guardian ad Litem Texas Property Code Sections 142.001 to 142.007 Brief description of technique: This section provides a court with jurisdiction over a suit the broad discretion to ‘manage judgment proceeds recovered in that suit on behalf of a minor or incapacitated person who does not have a legal guardian, and who is represented by a next-friend or guardian ad litem, Under Section 142, the court can: (1) authorize that person or any 18other person to take possession of the personal property or money recovered, after posting a double indemnity bond or a surety bond equal to the value of the funds (no bond is required where assets are safe-kept); or (2) require investment by the district or county clerk; or (3) authorize the establishment of a trust, with a trust company or bank with trust authority, as trustee. If the beneficiary is a minor, the trust terminates on the death of the beneficiary or the beneficiary's attaining the age stated in the trust, but no later than the beneficiary's 25" birthday. ‘Tex. Prop. Code §142.005(b)(4), The trust for an incapacitated beneficiary terminates on the beneficiary's death or restoration to capacity. The court maintains jurisdiction over a Section 142 trust even after a guardianship is established. Tex. Prop. Code §142.005(). Pursuant to its oversight authority, the court can adjudicate the validity of claims against assets managed under this section. Note that the definition of incapacity (Tex. Prop. Code §142.007) that the court applies to determine the eligibility of a person for Section 142 asset management, is different from that in Probate Code Section 3(p), although the difference may be immaterial in most cases. Since Probate Courts have management trust authority under T.P.C. §867, Probate Courts rarely utilize the Section 142 procedure, Uses for technique: Some practitioners employ Section 142 asset management because of its perceived efficiency and flexibility. The same court awarding the judgment can create a Section 142 trust or bonded management plan for a minor or incapacitated person; the patties need not institute a new guardianship action in Probate Court. The trust manager under the Section 142 trust has considerable freedom to administer trust assets. The trustee is entitled to reasonable compensation,” (Section 142(b)(6)), with no prescribed limitations on what is "reasonable," and need not regularly account to the court for its management actions.” Moreover, under Section 142, parents and other custodians for the trust beneficiary can obtain access to the trust funds for the "benefit, support and maintenance" of the beneficiary from the trustee without justifying such withdrawal to the court. Other practitioners with guardianship experience, however, view Section 142 trusts less favorably than guardianships coupled with T.P.C. §867 management trusts for the following reasons: 1. Because of the significant drafting expense involved in creating the Section 142 trust and the relative standardization of forms for creating a guardianship, the 142 trust can cost significantly more in terms of legal fees up front. 2. The administrative expenses for a guardianship of the person coupled with a Section 867 management trust are considerably less than for a Section 142 trust. This is because the trustee's fees under Section 867 are limited by the "5 in and 5 out" guardianship standard, which in most cases is significantly less than the going “reasonable” rate of trust fiduciaries. 3. A guardianship in the Probate Court is often more efficient that a Section 142 ‘trust. Where a minor has been injured or incapacitated because of an action that kills his or her parent, the Probate Court can hear not only the wrongful death and the survival action (pain and suffering of decedent) but also any personal injury action for the minor. 19w~wer Concomitantly, the Probate Court can determine the decedent's heirs or probate his or her will and, through guardianship, can manage the assets of the minor received as a result of both inheritance and the personal injury action. 4. Investment opportunities are no more limited under a Section 867 management trust than they are under a Section 142 trust. The difference is that the 867 trustee must account to the beneficiary and the court for its investment and management decisions, the 142 trustee need not. Court oversight of regularly scheduled accountings and disbursements from trust proceeds is advantageous not only to the beneficiary but to the guardian as well; a minor or incapacitated person will have difficulty challenging those actions upon the removal of his or her disability if the court, having reviewed those actions, approves them. 5. Itmay be difficult to assess the suitability of a next friend or guardian ad litem to serve as an investment manager under the Section 142 bonded management technique, creating a risk of mismanagement. 6. Section 142 trusts are no more flexible than Section 867 trusts. For example, both can be fashioned as, "special needs trusts" to protect government benefits, T.P.C. §868(d), Tex. Prop. Code §142.005(g). The Probate Court can also modify a Section 867 trust to extend it until the minor ward reaches 25, just as the District Court, under a Section 142 trust, can delay termination until age 25. 7. Without a systematic way to monitor the Section 142 trusts, poor investment decisions could reduce the assets of the trust, and improper asset distribution (to parents, with a duty to support their children out of their own personal funds, or others) could go undetected until it was too late, Guardianship management has the advantage of imposing systematic controls over those spending the ward's money, and Probate Courts have the man-power to enforce those controls. Planning techniques to avoid the proble: 1, Durable power of attomey and medical power of attorney. 2. Typically Section 142 trusts arise because of the unforeseen events of death or accidental injury, so that planning techniques would depend upon the planning which an claimant had done to control his or her own estate in the event of incapacity, or whether the person who died (in whom the incapacitated person or minor had an interest as a ‘wrongful death claimant) had a will, and whether the judgment resulted in a distribution to his or her estate by reason of a survival action. A minor, by definition, could not plan to avoid these issues. Caveats to consider: 1, These bonded management mechanisms and trusts arise in County or District Courts, after personal injury actions are tried or settled there. Those courts have busy dockets, seldom have assigned law clerks, legal assistants or staff accountants, and the judge will necessarily depend, as a result, on the continued diligence and interest of the guardian ad litem, if one is kept in place, for adequate scrutiny of the investments and 20distributions by the bonded manager or the trustee. If the judge leaves, so goes the judge's knowledge of the administrations of trusts in that court. Bonds may be difficult to obtain, since the level of scrutiny of Section 142 , depending upon the vigilance of a particular court in monitoring the long term performance of the investment mechanism in place. 3. No statutory mechanism exists for the release of the bonded manager or the trustee when the assets are delivered to the beneficiary. This potential exposure may deter some professionals and trust companies from service. Alternative procedures to consider: 1. Guardianship of the estate. 2. Guardianship with Section 867 management trust. 3. Section 887 deposit of funds with Probate Clerk. 4, T.U.T.M.A. transfer to a custodian with court approval. Tex. Prop. Code. Ch. 141. I. Managing Conservator of a Minor Texas Family Code Section 153.001 et sea. Brief description of technique: ‘Managing conservatorship is a court-ordered relationship between a child and an adult who is often the child's parent that bestows on that adult (or adults, in the case of joint managing conservatorship), the right to possession of, and access to, the child, and the right to make medical, placement and certain financial decisions for the child in the absence of a guardian. See Tex. Fam. Code ("T-F.C.") §§153.073; 153.132 (parent as managing conservator); T.F.C. §153.371 (non-parent as conservator). A parent who is also the managing conservator has the authority of a parent to, “manage the estate of a child to the extent the estate has been created by the parent or the parent’s family”, T.F.C. §153.073(a)(8), as well as the right of any managing conservator to act as the child’s agent for estate purposes when required by a goverment agency. The managing conservator also has the right to receive and disburse child support for the benefit of the child, the right to the services and earnings of a child, the right to consent to legal action on behalf of the child, and the right to "make other decisions of substantial legal significance conceming the child?." See TF.C. §153.371(5-8). Uses for technique: Managing conservatorship usually results from a custody dispute arising out of a divorce or the dissolution of a relationship between non-married parents. Occasionally, non-parents (including grandparents and child protective agencies) may petition for conservatorship, alleging that such a court-ordered relationship is in the best interest of a child, While a managing conservator can continue to make personal and medical decisions on behalf of a child even after the death of a child’s parent (or parents), the conservator has no power over the child’s inherited property. Instead, the court 21 wwewwe with probate jurisdiction over the parent’s estate will appoint a guardian to manage and control the child’s inheritance. Note, however, that a managing conservator can consent to the sale of a minor’s interest in real or personal property under T.P.C. §889. See discussion at Section I1.C above. Techniques to avoid the problem: Parents should plan for disposition of their estate at death by executing a will with a trust for minor beneficiaries. Caveats to considel ‘A managing conservator has little authority to manage a minor’s estate under the Family Code unless he or she is also a parent, in which case the parent conservator can manage the child’s estate only to the extent it derives from that parent or his family. Thus, managing conservatorship is of most use as an alternative to guardianship of a minor’s person, not estate. Necessary facts to gather: Consult a family law attorney, the State Bar of Texas Family Practice Manual, or family law treatise for guidance in applying for managing conservatorship. Alternative procedures to consider: Guardianship, if the minor inherits property, or if the child has a non-parent managing conservator and a substantial estate. 22Ill. PROBATE AVOIDANCE A. — Decedent Dies Without a Will 1, Small Estate Affidavit Texas Probate Code Section 137 Form Nos. 18-20 Brief description of technique: A Small Estate Affidavit, when approved by the court, adjudicates the identity of a decedent's heirs and their respective shares of the decedent’s property. The Small Estate Affidavit is filed with the Probate Clerk and reviewed by the Court, but is approved without any hearing. There is no citation or posting requirement. The Affidavit is only effective where the assets of the estate, exclusive of homestead and exempt property, exceed the known liabilities of the estate, exclusive of liabilities secured by homestead and exempt property. Additionally, the estate’s non-exempt assets (including cash) cannot exceed $50,000. T.P.C. §137(a). There is, however, no limit on the value of exempt assets that pass by Small Estate Affidavit. Exempt assets are those exempt from forced execution under Chapter 42 of the Texas Property Code and that pass by will or intestacy to decedent's surviving spouse, minor child or unmarried child who lived in decedent's home. T.P.C. §271. Exempt assets include home furnishings, farm animals, and other property in the possession of the decedent at death, as well as decedent's pension benefits and IRA’s. Insurance benefits payable to the estate are also exempt under Tex. Ins. Code Art. 21.22. Uses for technique: The Small Estate Affidavit is most often used for estates with small bank accounts, homestead real property, and few debts. Since all of the distributes must sign the Affidavit, this technique does not work where family members cannot cooperate in the execution of the document and the subsequent payment of debts and distribution of assets. Planning techniques to avoid the problem: 1. Will. 2. Community property agreement. 3. Trust. Caveats to consider: 1, Attomeys should understand the significant limitations of a Small Estate Affidavit. It cannot be used for an insolvent estate (one where the debts exceed the value of the non-exempt assets) or where the decedent died testate, unless the decedent's will is patently invalid. Moreover, “decedent's homestead” is the only real property that can be transferred by Affidavit. While this phrase could be interpreted as passing title by Small Estate Affidavit to any property decedent considered his “homestead,” the legislative history belies this broad interpretation. Until 1993, no real property could pass by Small 23 ~ wee~ weer Estate Affidavit. In that year, legislators broadened the statute to include “homestead” real property to give a simple and inexpensive procedure to obtain title to homestead property to the surviving spouse, minor child, or unmatried adult child who had shared the homestead of the decedent and who still lived there, and who could claim it as homestead free of almost all debts of the decedent. No legislator anticipated the use of the Small Estate Affidavit to pass title to the decedent’s homestead to his or her siblings, married adult children, or to collateral relatives who would take that property subject to all creditors’ claims. Use of the Small Estate Affidavit in such situations deprives creditors of statutory notices afforded by the procedures to determine heirship and for administration. 2. The receipt of property by minors under a Small Estate Affidavit poses a special problem. Banks or other transfer agents may be leery of paying account proceeds or other funds to a minor heir who has no guardian of the estate. One solution is to draft the order to require the transfer agent to deposit the money into an interest-bearing account in the registry of the court for the benefit of the minor under T:P.C. §887. The order that approves the Affidavit and transfers the minor's property into the registry should contain the minor’s birth date and Social Security number. 3. While the distributees may designate the assets of the estate as “separate” or “community” in the Small Estate Affidavit, the Probate Court cannot adjudicate the nature of that property in its order approving the Affidavit. Characterization of property as community or separate can only result from a declaratory judgment proceeding (Coupled with an heirship proceeding under T.P.C §48). However, if the distributees describe in detail the source of the funds or property in the Affidavit, and provide the dates of any marriages or divorces, the separate or community nature of the property will be readily apparent to those holding decedent’s property. For example, the Affidavit could identify the source of funds in a bank account as derived from decedent's salary during marriage, Similarly, the distributees could designate a community homestead by the description, “purchased 5/1/84 with community funds during the marriage of decedent and surviving spouse.” Conversely, heirs could identify separate, inherited property in the Affidavit, for example, “as devised to decedent by will of Jane Doe, admitted to probate, Cause No. 11111, Probate Court No, One of Travis County.” 4, Because the court cannot adjudicate the separate or community nature of decedent’s property, the Affidavit must list the interests of the distributees in the decedent’s separate and community property, even if the distributes believe all the property to be of one type or the other. To support the characterization of the estate as being solely community property, Decedent’s adult children may file written statements attached to the Affidavit that confirm their knowledge that the property was purchased or eamed during marriage, and, if they are the children of both the surviving spouse and decedent (dying after 1993), that they recognize that they have no interest in the property listed as community property. Or, if the property at issue is separate property, the surviving spouse could acknowledge in writing the separate nature of the property and waive any claim to it as a community asset, See Form 20. Note: these acknowledgements of lack of interest in assets are not disclaimers under T.P.C. §37A, and should not be combined with disclaimers without careful analysis. Improperly used, disclaimers can result in unintended consequences! 245. The distributees under the Small Estate Affidavit are “entitled” to the estate only to the, “extent that the assets exceed the liabilities.” T.P.C. §137(a). Failure to pay creditors could result in creditor lawsuits against the individual distributees receiving, estate property. T.P.C. §138. A bank or other entity or person holding funds of the Decedent would be prudent to release funds to the distributees in an amount only sufficient to pay the debts, releasing the remainder upon proof of payment of those debts. Alternatively, a prudent transferor might issue checks directly to the creditors named in Affidavit, releasing the remainder of the funds to the distributes. 6. The natural guardian (parent) or next of kin of a minor can sign the Affidavit on behalf of the minor without appointment of a guardian. Necessary facts to gather: Additional requirements of a Small Estate Affidavit: no petition for the appointment of a personal representative can be pending or have been granted; 30 days must have elapsed since the death of the decedent; the Affidavit must list all of the assets and all of the liabilities of the estate; the Affidavit must describe the family facts sufficiently to show entitlement by the distributes to the decedent’s property; the Affidavit must be signed and attested to by all of the distributees, or the natural guardian of a minor, or the guardian of the person of an incapacitated person; and, the Affidavit must be attested to by two disinterested witnesses who are familiar with the decedent’s family history. The distributes should file a death certificate with the Affidavit. Some Courts, like Travis County Probate Court No. 1, prepare their own orders approving Small Estate Affidavits; others require that the distributes submit a proposed order. The order declares the distributees right to receive the property of the decedent, to the extent that those assets exceed the liabilities of the estate. Alternative procedures to consider: Heirship under T.P.C. §48 (coupled with a dependent administration) will be necessary if there are minor heirs and non-cash personal property (which can’t be placed in the registry of the court). An heirship also will be necessary if the decedent's homestead passes to non-exempt heirs (those other than the spouse, minor or unmarried children living at home) and there is no other necessity for administration. Moreover, if the debts exceed the non-exempt assets, a Small Estate Affidavit is not permissible. Instead, some type of administration will be necessary to sort creditor claims and to take advantage of exempt and family allowance protections against creditors. 2. Determination of Heirship Texas Probate Code Section 48 Form Nos. 21-24 Brief description of technique: ‘An heirship determination is a judicial determination of the heirs of a decedent who died intestate (either wholly or partially) and the shares those heirs inherit. The first step is to file of the application to determine heirship with the clerk. All of decedent's known heirs must be made a party to the heirship proceeding; those who do not join in the application must be served with citation by registered or certified mail. T.P.C. §§49, 25 eeere-wwr 50. Citation must also be posted, and citation on unknown heirs must be published in the county in which the heirship proceeding is filed. The court appoints an attomey ad litem to represent the interests of the unknown heirs and the heirs suffering a disability. ARer the expiration of the publication and posting periods, and at the conclusion of the attorney ad litem’s investigation, the court hears the testimony of two disinterested witnesses as to decedent's family history. ‘The attorney ad litem also testifies as to his or her efforts to verify the family history. Based on the evidence presented, the court issues a judgment declaring the names and addresses of decedent’s heirs and their respective interests in the real and personal property of the decedent. T.P.C.§54. If the court finds no necessity for administration, then the court's order will recite that there is sufficient authority for the transfer of decedent’s property to the declared heirs. Uses for technique: 1. Anheirship determination must be used in lieu of a small estate affidavit in the following situations: 1) where decedent’s non-exempt assets exceed $50,000; 2) where decedent had homestead real property but decedent was not survived by either a spouse or minor or unmarried children who lived with him in the home; 3) where decedent ‘owned non-homestead real property; and 4) where decedent owned non-cash personal property that passes to minors. (There will need to be a dependent administration and possibly a guardian appointed for the minors because the property cannot be deposited in the registry of the court.) Note that where a minor inherits an interest in real property and no other assets, and there is no current plan to sell the property, there may be no need for an administration, if the order adjudicating heirship describes the heir as a minor and states the minor's birth date, This will alert potential buyers and title companies to the heir’s minority, requiring a proceeding under T.P.C. §889 to sell the property. See Section II.C. above. Without the oversight and scrutiny of a representative or guardian, however, there is always the danger that the other co-owners will not pay the property taxes or adequately insure the property, endangering the minor's interest. This technique works best if the minor resides in the property with a responsible parent co-owner, who has a personal interest in the property's upkeep. 2. Where there is a necessity for administration (i.c., the existence of two or more debts against the estate, the necessity for partition of the estate or otherwise a need for the appointment of a representative under T.P.C. §178 (b)), an application for heirship can be combined with an application for administration. If all of the heirs are over 18 years of age and all consent to the appointment of one individual as an independent administrator, then independent administration is available under Texas Probate Code §145(e), and the administrator may serve without bond under T.P.C. §145(p). Where there is no agreement as to an administrator, or there are minor heirs, then a dependent administration is appropriate under T.P.C.§178(b), However, no administration is available more than four years after the death of decedent under T.P.C. §§74; 48(b). Planning techniques avoid the problem: 1. Will. 2 Trust. 3. Community property agreement. 26Caveats to consider: 1. All persons who own any share or interest in any real property co-owned by decedent must be made patties to the action. T.P.C.§49(b). This is problematic where decedent owns a mineral interest in land along with many others, who then must be served or must file waivers of citation, 2. Where an application seeks both an heirship determination and independent administration, the heirship must be determined first before the independent administration can be granted (T-P.C. §145(g)). However, where there is a pressing need for the appointment of a personal representative, the court can grant a dependent administration and determine the heirs later. So that the heirship is resolved expeditiously, Travis County Probate Court Number One specifies in the order appointing an administrator that the heirship be filed within 60 days. 3. While the Probate Code does not specify a statute of limitations for bringing a heirship determination, it clearly contemplates the filing of an application for determination of heirship more than four years after a decedent’s death. Thus, the Code provides that an applicant may request the court to determine a necessity for administration, “[iJf (emphasis added) an application for heirship is filed within four (4) years from the date of death of a decedent”. T.P.C. §48(b). This statement would be unnecessary if all heirships had to be filed within four years of decedent's death. But see, Professor Stanley M. Johanson’s, Texas Probate Code Annotated, at 87 (West, 2003), relying on Smith v. Little, 903 S.W.2d 780, 787 (Tex. App.-Dallas 1995, no writ), and stating that the default limitations period of four years is applicable to heirship determinations. In practice, however, courts frequently determine the heirs of decedents who have been dead more than four years as an essential method of clearing title to property. Necessary facts to gather: Section 49(a) specifies the facts to be included in the application for determination of heirship. The easiest way to make all known heirs parties to the proceeding is for all of them to sign and attest to the truth of the application. A death certificate should be filed with the application. If an Affidavit of Heirship has been recorded for more than five years, it should be submitted in the heirship determination as. prima facie evidence of the family history and genealogy stated therein. T.P.C,§52(a). The court cannot enter the judgment determining heirship until after the return date for citation by publication, Alternative procedures to consider: 1. Small Estate Affid 2. Affidavit of Heirship 27~ wwe 3. Family Settlement Agreement Form No. 25 Brief description of Technique: All parties interested in the estate of a deceased person may enter into a family settlement agreement to memorialize their resolution of current or anticipated disputes. Such documents may be may be arranged informally, or filed of record and/or approved by a court with probate jurisdiction of the underlying litigation. Texas courts have long favored such settlements and will enforce them. See Shepherd v. Ledford, 962 $.W.2d 23, 32 (Tex. 1997); Estate of Morris, 577 S.W.2d 748 (Tex. Civ. App. - Amarillo 1979, writ ref'd nur.e.); Salmon v. Salmon, 395, $.W.2d 29, (Tex. 1965); Kellner v. Blaschke, 334 8.W.2d 31 (Tex. Civ. App. ~ Austin, 1960, writ ref'd n.r.c.); Robbins v. Simmons’ Estate, 252 $.W.2d 970 (Tex. Civ. App. -- Galveston 1952, writ refd nr.e.); Stringfellow v. Early, 40 S,W, 871 (1897, writ dism'd). Uses for technique: 1, To settle disputes over wills without litigation, 2. To settle disputes about, or rearrange dispositions of, property under intestate succession. 3, To resolve disputes concerning the characterization of property of the deceased and his or her spouse. 4, To resolve concems as to the partition and distribution of assets. 5. To resolve advancement claims or claims owed by family members to the estate of a deceased. 6. To resolve competing claims to insurance proceeds. Caveats to consider: All persons who have an actual or potential interest in the settlement of the dispute involved must join in the family settlement agreement. For this reason, parties should make sufficient investigation to ensure that everyone with an interest has been identified and joined. It is also important for all participating counsel to be both forthcoming and creative in determining all of the claims and causes of action to be settled, so that counsel obtains the proper release of liability for such claims from each necessary participant. Not all family settlement agreements need to be filed with the clerk or made part of the court record. An agreement not to file a will for probate and to distribute the property according to the settlement agreement, for example, would not need to be filed with the court, assuming decedent had no real property to be re-titled in the heirs. However, if the parties want the agreement to be included in the court record, they should file a probate lawsuit, if they have not done so already, so that the lawsuit can be settled on the record by the family settlement agreement. Much time may pass from the negotiation of the settlement agreement to its execution and approval by the court, during which time all parties must be served ot waive service of citation and representation. During this period, the potential exists for the settlement to fall apart. ‘Advance preparation of settlement documents before settlement discussions or mediation 28is very helpful, as is building sufficient time to close the deal into the settlement timetable. Where the potential for federal income tax and estate taxation and/or inheritance tax exists, it is important that the lawsuits and causes of action being settled are actual, and not collusive to avoid paying taxes, and that the factual underpinnings for the dispute are set out in the pleadings. To demonstrate to the federal government the bona fides of the claims resolved by settlement, it is often the best practice to file suit on these claims before settlement is reached. See, Representing the Estate Beneficiary,, prepared by Louis M. Ditta, presented at Wills and Probate Institute, University of Houston Law Center, 1995, pages 20-21; Selected Tax Issues in Will Contest Litigation, prepared by Stephen Jody Helman, presented at the Meeting of the Estate Planning and Probate Section of the Travis County Bar Association, May 12, 1994, pages 8 through 33. Planning techniques to avoid the problem: Generally, family disputes and disputes among beneficiaries and heirs can be avoided by good estate planning and record keeping, and by the honest and straightforward activity of those appointed to carry out the estate plan. The situations and disputes which can be settled by family settlement agreements are variable and numerous. But, in almost all cases, such disputes can be avoided by clear planning documents, which comprehensively settle the testator's plans, especially if the testator discusses those plans with the heirs and beneficiaries who expect to inherit from the testator. Facts to determine before filing: 1, All assets and all liabilities in which the deceased had an interest. 2. All persons who are related to deceased, with names, addresses, telephone numbers and social security numbers. 3. Potential tax liabilities. 4, All persons who have potential claims 5. All documents which affect the estate of the deceased or dictate the passage of funds at death. 4, Resolution of Title to Vehicles, Boats and Manufactured Homes A. Resolution of Titles to Vehicles Texas Transportation Code Sections 501.074 and 501.031 Form No. 26 1. If the Estate has been probated, the executor or administrator may assign the title, provided that a certified copy of the probate proceedings, or letter testamentary or letter of administration, is attached to the Original Title and an Application for Texas Certificate of Title - Form 130-U, and submitted to the County Tax Assessor-Collector. 2. If there has been no administration on the estate and no administration is necessary, the heir(s) should complete the Department's Affidavit of Heirship form, and submit it along with the Original Title and an Application for Texas Certificate of Title - Form 130-U, to the County Tax Assessor-Collector: 29 weewe To order forms by fax: Dial 888-232-7033 Select option 2 for the Fax on Demand Request # 0130 for the 130-U form Request # 0262 for the Affidavit of Heirship 3. Since 1995, spouses have been able to own title to vehicles in survivorship form. In August, 1999, this form of survivorship title became available to every non~ married Texan. All survivorship owners are required to transfer title. After the death of one owner, the Department issues a new certificate of title. All that must be presented is a new application for title signed by the survivors and a death certificate. ‘The survivors ‘may designate the new owner's name on the new application for title. B. _ Title to Boats Texas Parks and Wildlife Code Sections 31.037 to 31.049 Form No. 27 1. If the Estate has been probated, the executor or administrator may assign the title, provided that a certified copy of the probate proceedings, or letter testamentary or letter of administration, is attached to the Original Title, and submitted to the Texas Department of Parks and Wildlife. 2. If there has been no administration on the estate and no administration is necessary, the heir(s) should complete the Department's Affidavit of Heirship form, and submit it along with the Original Title to the Texas Department of Parks and Wildlife. 3. Although the Department of Parks and Wildlife will issue a title with survivorship to a husband and wife, there is no statutory basis for this form of ownership. Where such title exists, title will transfer to the survivor upon proof of death certificate, and application for new title. 4. To apply for a new title, each person whose name will appear on the title must complete a PWD 143 (Vessel) or a PWD 144 (Outboard Motor) application to transfer the title. C. Title to Manufactured Homes Texas Property Code Sections 2.001, et seq. V.A.TS. article 5221f, Section 19(1) Form No, 28 1. More and more middle class persons own manufactured homes and are leaving them in their estates. For this reason, it is important to be familiar with the means of resolving such titles. Since January 1, 2002, the law conceming evidence of title to ‘manufactured homes has changed dramatically. The date and form of the title document held by the decedent is paramount in determining the rights of the new owners. 2, Decedents may have owned title only to the home, or to both the home and the underlying real property. If only the home is owned, and it is affixed to realty owned by another, then the Texas Department of Housing and Community Affairs should have issued a Document of Title to the home in the decedent's name. If the home is being 30affixed, or has been affixed, to realty also owned by decedent, then no Document of Title will have been issued, but instead a Certificate of Attachment will exist. 3. If the land and home were both owned by the deceased, and a Certificate of Attachment had been issued, then a normal executor’s deed to the property will automatically convey title to the manufactured home. 4. If a Certificate of Attachment has not already been issued, but the home and land are both being conveyed, then the old document of title for the manufactured home must be surrendered together with the evidence of attachment required by the Department. This must be submitted with proof of inheritance, either by statement of inheritance (Form 28) or by letter testamentary or of administration. The new title will be issued in the form of a Certificate of Attachment. 5. As shown on the original title document, husband and wife may have exercised a survivorship election. Receipt by the Department of a copy of the death certificate and aproperly executed title application will suffice to clear title in the surviving spouse. 6. Theoretically, in an intestate situation, a Small Estate Affidavit could be used to resolve the title, but the Affidavit should be drafted only after the practitioner knows the form by which the decedent owned title to the home and/or the underlying realty. This way, the Affidavit can clearly refer to that form of ownership, clarifying passage of title. Note: The Department employees contacted by the authors were unfamiliar with Small Estate Affidavits, so the practitioner should consider whether an Affidavit would be helpful. Contact: Texas Department of Housing and Community Affairs Manufactured Housing Division 507 Sabine #400 Austin, TX 78701 512- 475-2200 Facts to determine before filing: 1. How is the home titled by the Texas Department of Housing and Community Affairs? 2. Has the home been affixed and a certificate of attachment issued? 3. What is the legal description of the land? 4. Does the personal representative or distribute need to obtain an inspection of the home to confirm installation, or is there a Certificate of Attachment signed by the decedent and the real property lender certifying that the home is permanently attached to the land? 5. Iso, has the Certificate been filed? 31 ~weed ~~ wwe 5. Community Property with Right of Survivorship (Adjudication and Memorandum to Clear Title) ‘Texas Probate Code Sections 451 to 462 Form Nos. 29-32 Brief description of technique: Texas spouses may execute an agreement that all or part of their community property becomes the property of the surviving spouse upon the death of one spouse. Since the statute permitting the creation of community property with right of survivorship hhas now been in effect for 12 years, we may begin to see more of these agreements in decedent's estates. The purpose of the agreement is to permit spouses to pass title to community property to one another without having to probate a will. Where an agreement exists, and one party to the marriage has died, counsel should consider how best to effectuate the agreement as discussed below Uses for technique: Affidavit filed in deed records only: No action in Probate Court is necessary to pass title to community real property to a surviving spouse under a survivorship agreement. The statute specifically states that the Agreement is effective without adjudication. See T.P.C. §458. However, to clarify title to community property that passes by survivorship agreement, we recommend a two step process. During the lifetime of both spouses, they should file a Memorandum (Form 29) in the deed records in the county in which land is located that is subject to the Agreement. The filing of the Memorandum will serve to memorialize the Agreement while the spouses are living without revealing its terms. Additionally, the filing of the Memorandum in the deed records in the couple’s county of residence may facilitate the identification of the community estate subject to the control of one spouse upon the other spouse’s incapacity under T.P.C. §883 (see Section IL.G. above). The court would be more likely to rely on the Agreement as an accurate statement of the community estate if the Agreement specifically provided that, for revocation to be effective, notice of revocation must be filed in the deed records. See T.P.C. §455 permitting agreements to specify terms for revocation. After the death of one spouse, the surviving spouse should file either the ‘Agreement or an Affidavit (Form 30) with the deed records to clear title to the real and personal property covered by the Agreement. The advantages of filing the Memorandum and then the Affidavit, without filing the Agreement itself or adjudicating the ‘Agreement's validity, is not only the avoidance of a Probate Court procedure, but also the ability to preserve the confidentiality of the information in the Agreement, since the ‘Agreement itself is never of public record. Note, however, that the Code appears to require that the parties” entire agreement be filed in the deed records for notice to be effective as to third parties. T.P.C. §460 (). If confidentiality is of paramount importance to a client, the attomey should check with title company underwriters to ensure that the filing of the Affidavit without the agreement will be sufficient. Otherwise, caution dictates the filing of the agreement and any amendments. 32Adjudication in Probate Court: While no adjudication is required, the Probate Code states that if the agreement's validity is adjudicated, that adjudication is sufficient authority to all persons with property subject to the agreement, for payment or transfer of that property to the surviving spouse. T.P.C. §458. If there is a question about the agreement's validity or a contest is anticipated, it may be better to anticipate these objections by filing an application for adjudication and letting the court be the final arbiter of the agreement’s authority. There are some clear benefits of an adjudication of a survivorship agreement over the probate of a will. The proof required of the surviving spouse for an adjudication includes the testimony, affidavit, or deposition of one witness to the authenticity of the signature of the deceased spouse. Texas Probate Code §456 (c). Therefore, by statute, an affidavit can be used in lieu of a live witness, an alternative not permitted in a probate proceeding. Additionally, unlike an order admitting a will to probate which can be challenged for two years after the date of probate (T.P.C.§93), it appears that the adjudication, like any other judgment, would be final after 30 days. Also, the Probate Code imposes no specific citation requirements for an adjudication, and given that a community property survivorship agreement is specifically not a probate matter, (T.P.C. §454), it is questionable whether the catch-all citation provision in Section 33(d) of the Probate Code would apply.* If a contest to the agreement is anticipated, however, the best practice would be to bind all persons who might later object by making them parties to the adjudication (either by personal service or by waiver of citation), including any heirs at law and the personal representative of the estate under any will. Citation by posting might also be advisable. See T.P.C. §460, One drawback to adjudication is that the original agreement must be attached to the adjudication application, thus revealing the parties’ community assets. Further, the adjudication requires a hearing, similar in nature and extent to that required for probating a will, resulting in filing and attomey fees. The statute does not specify the defenses available to heirs or devisees to challenge the validity of a community property agreement. However, traditional contract defenses, such as incapacity, mistake, fraud, and impossibility should apply. Caveats to consider: 1. There is no mechanism in the statute for the parties to restate, ratify or add to the agreement if additional community property is obtained or if the initial property is transmuted, sold, or exhausted. The parties could certainly execute another agreement, but that subsequent one would also need to be memorialized in the deed records to provide notice to third parties. 2. If the agreement is not adjudicated or filed with the deed records in the counties where property subject to the agreement is located, third parties do not have notice of its application to particular parcels of real estate, and title company underwriters will not recognize ownership of that real property in the surviving spouse. To encourage acceptance by title companies, to ensure notice to personal representatives, to alert bona fide purchasers to the existence of the agreement, and to cure creditor disputes, the initial agreement should require the filing of a Memorandum (Form No. 29) in the deed records 33wwve before either spouse dies, require notice of revocation to be filed before it is effective and require the Agreement to be filed or adjudicated after the death of the first spouse. 3. The Probate Code does not require that the written agreement recite the consideration for the parties’ agreement. If proof of due consideration is a potential issue (ie,, a future contest to the validity of the agreement is possible), the Agreement should specify the consideration, and the surviving spouse should offer testimony as to that consideration in any later adjudication procedure. 4, If the deceased also owned separate property, more traditional methods of probate will be necessary, such as a determination of heirship or the probate of a will. It is possible for the surviving spouse to serve as the administrator ot executor for decedent's separate property while simultaneously receiving the community property under a survivorship agreement. Such a bifurcated probate process could be confusing to some clients, especially the allocation of debt between the community and separate estates. 5. The Probate Code does not specify the detail in which the community property must be described in a survivorship agreement. T.P.C. §452. In many marriages, (and for a title company, in all marriages), a general statement that, “our community property is subject to this agreement" may be too vague to clear title to, or resolve, all questions among will beneficiaries or heirs, as what property is in the community estate. While the parties may resolve such ambiguity by including in their agreement a precise listing of their community property, the agreement must be careful to refer only to community property. If any property in the agreement is successfully challenged as separate property, then the community property survivorship agreement will not pass title to that property and will have instead served as a flawed marital property agreement. See Tex. Fam. Code §§4.101-4.106, for the requirements of such agreements. 6. Where a community property agreement does not refer to specific assets, ot fails to adequately describe them, a declaratory judgment may be necessary to determine the assets that comprise the community estate. An adjudication of a community property agreement coupled with a declaratory judgment action is certainly less efficient, more costly and more time consuming than the probate of a will leaving all property to the surviving spouse. 7. Unintended and costly litigation may also arise where one spouse executes beneficiary designations and signature cards that leave assets covered by a community property survivorship agreement to someone other than the spouse. Under T.P.C. $453, the agreement does not deprive the spouse of his or her right to control and dispose of the property unless the agreement provides otherwise. Therefore, counsel should draft the agreement to prevent such unilateral dispositions of sole management community property. 34» Non-Qualified Community Adi Texas Probate Code Section 160 Form No. 33 Brief description of technique: By statute, the surviving spouse of a decedent has authority to handle any community property in which the decedent had an interest, without any form of administration, and with no court-issued process. This authority is called, "non-qualified community administration," since no court orders the surviving spouse to serve in this capacity.® The spouse may sue to recover community claims and sell or mortgage community property. By presenting an affidavit of this community authority to any person who owes wages to the decedent's community estate, the surviving spouse can obtain those wages, including unpaid sick pay or vacation pay. The affidavit method is not available if anyone has qualified as a personal representative of the estate. Uses for technique: 1, The surviving spouse's power as a community administrator will depend on the spouse's ability to persuade third parties in possession of decedent's community property to relinquish the property to him or her. ‘The technique works best if the decedent had no property other than community property and had no children who were not the children of both the decedent and the surviving spouse. Assistance of counsel in this matter may be of great help to the spouse. This type of non-qualified community administrator has. its drawbacks. If the community administrator obtains property belonging to the decedent under Section 160, the administrator may be asked to account for those funds, often much later, as in the case of minor children of the deceased who later attain adulthood. Retaining documents that prove the community nature of such funds may prevent such future challenges. 2. Given the proliferation of survival beneficiary forms with regard to many kinds of property, the property of many decedents never passes through probate. We will not debate the wisdom of this trend here, except to note that if all of a decedent's property passes by survivorship agreements except for the decedent's last wages, the surviving spouse may obtain those wages and the rest of decedent's survivorship assets, without the expense of opening an administration. This will give the surviving spouse immediate access to funds for funeral and burial costs. 3. Where the surviving spouse suspects that he or she might have difficulty collecting the deceased's wages because of the reputation of the deceased’s employer, the spouse should present the community authority affidavit as soon as possible after the worker's death, when the employer is most sympathetic to the spouse. 4, A community property agreement which specifically details the property that the spouses considered to be their community estate, can reassure third parties that the surviving spouse is entitled to that property as surviving community administrator. 35 wheweve Planning techniques to avoid the problem: 1. Will. 2. Revocable trust, with appropriate funding documents. 3. Community property agreement. 4, Most spouses have some “just in case" funds in a joint account, with survivorship rights, so that pressing needs can be met without immediate resort to the last paycheck. Caveats to consider: 1, The employer may demand a release or receipt that attempts to compromise the rights of the estate or of the spouse's one-half community interest in those funds. Because the spouse may not know how much money the employer owed to the decedent, the spouse should refrain from signing any documents purporting to release the decedent's claims against the employer. 2. The spouse may be untrustworthy and unwilling to account (T.P.C. 160(b)) for his or her actions to the subsequently appointed estate representative, if different from the spouse. 3. The characterization of property as community or separate property may be later disproved, and the spouse will have a subsequent duty to account for and restore such property. 4, This section, "does not affect the disposition of the property of the deceased spouse," T.P.C. §160(c). A surviving spouse who disposes of any community property to which the spouse is not entitled by will or intestacy, does so at his or her peril. Facts to determine before filing: 1. Name, address, telephone number of the spouse. 2, Name and address of the last residence of the decedent. 3. Name, address and telephone number of the employer. 4. Check whether any probate application has been filed in the county clerk’s office of the county in which the decedent last resided. 5, Indicators that each item of property is actually community in nature, such as date of marriage, date property acquired and source of funds used to acquire property. 7. Affidavit of Heirship Texas Probate Code Sections 52, 52A Form Nos. 34-35 Brief description of technique: Affidavits of heirship are a time-honored means of clearing title to real estate after the death of a person dying intestate, Affidavits stating the family history of the decedent must be swom to by disinterested persons, and filed in the deed records of the county in which the decedent’s real or personal property is located. While Affidavits do not bar 36subsequent action by a creditor, heir or beneficiary, or a subsequent probate administration, title companies, oil and gas landmen, and tax assessors accept them to clear gaps in title, even many years after the death of the Affidavit’s subject. Uses for technique: 1. Affidavits are most frequently used to clear gaps in title to real property caused by lack of any probate action following the death of the property owner. 2. Swom affidavits of family history are prima facie evidence of that family history if the affidavit has been on file for more than 5 years. T.P.C. §52. They can be used in lieu of live testimony in heirship and probate proceedings. 3. Where the decedent had property in a county other than the county of his domicile, an affidavit as to the death of the decedent, or the administration or probate of his estate in the home county, should be recorded in that other county to alert any title researchers in the non-domiciliary county to the facts in the affidavit. Planning techniques to avoid the problem: 1. Prompt probate action after death, 2. Wills. 3. Conveying property by deeds into “living” trusts. Caveats to consid 1. Affidavits do not work for personal property. Banks and other transfer agents are very hesitant to pay over funds on deposit or transfer title to stock without a court order (via either Small Estate Affidavit, Muniment of Title, or to a personal representative). 2. The use of an affidavit is contra-indicated where a will leaves property to persons other than intestate heirs. Such use could result in a cloud on the title to decedent’s property. 3. Omitted heirs are not bound by affidavits. T-P.C. §52(c). ‘Therefore, attorneys should caution their clients to list all heirs (even illegitimate ones) in the Affidavit or risk its validity. 4. Affidavits cannot clear title to real property outside of Texas nor can they resolve disputes among beneficiaries. Questions to consider: 1. Is there real property in which the deceased owned an interest? 2. In what state is the real property located? 3. Are there title issues other than the death of the Deceased that must be resolved or should be resolved presently? 4, Are there any possible intestate heirs other than those identified for you? 37 eee-~ weer ~ 5. Did the deceased leave a will? 6. Ifthere is a will, can it be probated? 7. Tf there is a will, does the distribution of the estate by will differ from the disposition by intestate succession? 8, Are there debts or tax filings which must be accomplished by a personal representative for the deceased? 9. Are there two disinterested persons who can attest to the family history needed for the affidavit? ° How credible are they? 8. Order of No Necessity for Administration Texas Probate Code Sections 139-142 Form Nos. 36-38 Brief description of technique: An order of no administration is familiar to most practitioners in the contexts of heirships and muniment of title, where the absence of estate debt or any other reason for the appointment of a representative results in title transfer without administration. However, an order of no administration can also be useful in intestate situations where the estate will be insolvent once a family allowance is paid to the surviving spouse or minor children. In intestate estates, an Order of No Administration must be coupled with a determination of heirship under T.C.P. §48. Once the heirs of the decedent are declared, the surviving spouse and minor children may apply to the court for an order setting aside all of the non-exempt property of the estate for a family allowance and declaring that no administration is necessary. Uses for technique: This technique is useful in an insolvent estate with a surviving spouse and minor children and where all non-exempt assets would otherwise go to pay creditors of the 2nd through 8" classes. See T.P.C. §322. By ordering the payment of a family allowance that equals the amount of the non-exempt assets, the court protects the spouse and children and removes all those non-exempt assets from the estate, thereby eliminating the necessity for administration. This technique is especially useful where there is significant credit card debt and only limited funds in a bank account. If, however, there are funeral expenses or expenses of last illness (Class 1 claims) not to exceed $15,000, these must be paid in preference to a family allowance (T.P.C. §290), and the court cannot find that no necessity for administration exists. T.P.C. §140. This technique can be combined with an order setting aside the homestead or exempt assets (T.P.C. §§271,272), or setting an allowance in lieu of exempt property (T-P.C. §§273-276), depending on the facts of the particular case, Planning techniques to avoid the problem: Dying debt free. Necessary facts to gather: Section 139 requires that the application state the names of the heirs or devisees, a list of creditors of the estate together with the estimated value thereof, and the liens and 38encumbrances thereon. At the hearing, the surviving spouse and/or minor children must prove that the funeral and last illness expenses of decedent have been paid and prove the amount to which they are entitled as a family allowance. This would include evidence of their reasonable and necessary living expenses and sources of income, Note that under T.P.C. §288, no allowance can be paid to the surviving spouse if he or she has separate property adequate to the survivor's maintenance, or to minor children if they have property in their own right adequate to their maintenance. Such property would include Social Security benefits they receive on account of their spouse/parent. If the application for no necessity of administration under Section 140 is combined with an application to set aside exempt property and homestead, the applicant should also provide information as to the nature and value of the exempt assets or the assets which will be used in lieu of exempt property, as well as the homestead legal description, and all facts which prove the homestead qualification, Caveats to consider: 1. The facts which must be gathered and presented to the Court for this technique are so comprehensive and complex that its use will rarely result in savings in attomey's, fees to the family over an independent administration. One significant benefit to a Section 140 order, however, is that no fiduciary is responsible to creditors. 2. Make sure that you have accurately stated the value of the estate’s assets in the application. T.P.C. §142 provides that, at any time within one year after the entry of no administration, any interested person may file an application to revoke the order alleging: 1) that other property has been discovered; 2) that property belonging to the estate was not included in the application for no administration; or 3) that the property was incorrectly valued, so that the actual total of the property exceeded the amount set aside as an family allowance. On proof of any of these allegations, the court may revoke the order. 3. Be conservative in assessing the “facts and circumstances existing and those anticipated to exist during the first year after [decedent's] death,” as required to determine the amount of a family allowance under T.P.C.§287. Bring in W-2 forms, bills, mortgage and car expenses and other documents to support the claim. Alternative procedures to consider: Remember that if the court does not award a family allowance that exhausts the non-exempt assets of the estate, and there are minor heirs, the court will find a necessity of administration and will require a dependent administration (and possibly, 2 guardianship for the minor) since minors cannot consent to an independent administration. If, however, the surviving spouse is the only person entitled to a family allowance, and all of the heirs consent to an independent administration, the court could order an independent administration. The independent administrator could then set a family allowance without approval of the court. 39d ) ) ) ) ) ) ) ) ) 9, Emergency Intervention for Burial Funds and Personal Property Texas Probate Code Section 108-114 Form Nos, 39-41 Brief description of technique: ‘Any person who could qualify as an administrator may file an emergency application to obtain funds belonging to the deceased to pay for the deceased’s funeral or to obtain access to his property stored in rental premises. No emergency intervention is possible if any type of application for administration has already been filed. An emergency intervention can be filed no earlier than 3 days after decedent's death but no later than 90 days after the date of death. Applicant must present evidence of the necessity for the burial funds and/or for access to the rental premises. An order of emergency intervention terminates after 90 days or when a personal representative has been appointed and has qualified, whichever occurs first. A bank or employer holding decedent’s pay check, must pay the amounts stated in the order to the funeral home. The applicant may obtain, as part of the order, an amount for necessary attomey’s fees. Uses for technique: 1. Emergency intervention is used when the decedent died without a pre-paid burial contract and no heir or devisee is willing or able to pay the funeral costs out of their own funds (and seek reimbursement later from the estate), and it is not clear if, when or how a personal representative will be appointed with the authority to pay those burial costs. With the availability of emergency intervention, there is never a need for a temporary administration to obtain decedent’s funds for his burial. 2. If decedent’s only assets are a bank account with sufficient funds for his or her burial, and personal effects in a rental unit, then emergency intervention to pay burial costs and retrieve personal property and effects will obviate the need for any subsequent probate administration. If decedent had other property and there remains a necessity for administration after emergency intervention, then prompt appointment of a representative will terminate the emergency intervention. Planning techniques to avoid the problem: A form provided by Texas Health and Safety Code §711.002 designates an agent with authority to make burial and funeral decisions, although without authority to obtain funds for that purpose or to obtain entry into rental premises after death, The form has the slight drawback of also making the designated agent responsible for burial costs, rather than the surviving spouse or other relatives (listed in order of priority) who are otherwise statutorily liable for these expenses. To complete the funeral plan, the client should either prepay for funeral or burial arrangements or arrange to have a joint account payable to a surviving signatory whom the client trusts to make such payments. To assist families, most funeral homes will accept an assignment from a life insurance beneficiary of the proceeds of a valid life insurance policy. Before advising assignment of those proceeds to the funeral parlor, however, attomeys should remember that insurance proceeds are exempt from creditor’s claims in probate, according to Texas Ins. Code. Art. 21.22, and that under T.P.C. §320A, the expenses of burial and funeral are a liability 40against the property of the deceased only, and not a charge on the surviving spouse's assets. Caveats to consider: 1. Despite the rising cost of burial and funerals, the statute provides that a maximum of only $5,000 can be obtained by emergency intervention for burial expenses, 2. The emergency intervention for rental premises requires that the applicant work with the owner/agent of the rental premises to prepare the inventory. A reluctant rental agent could hinder the process, causing additional stress to family members. Moreover, while the Probate Code states that the owner or agent of the rental accommodation shall grant access in accordance with the order, no enforcement mechanism exists in the statute. 3. The applicant, or the owner or agent of the rental accommodations, may remove and store the decedent’s property until claimed by decedent’s heirs, or, upon expiration of the intervention without an appointment of a personal representative, may release the property to the decedent's heirs. T.P.C. §§113(b)(3); 114()(1). If heirship is unclear or disputed, however, more formal probate proceedings may be necessary before distribution of the personal property. 4, No statutory mechanism exists to protect the person obtaining emergency ervention against later claims by the deceased's heirs or will beneficiaries alleging unintended misuse of the deceased's burial funds. For example, the person obtaining emergency intervention might be held liable for the burial costs of the emergency intervention burial if a pre-paid funeral contract is later discovered, or if that burial contravenes the terms of later-discovered funeral instructions. Make sure that the applicant has made a thorough search for burial contracts and funeral instructions before proceeding (perhaps applying first for examination of the deceased's safe deposit box under T.P.C. 36B-F -Section III.A.10 below.) 5. While the person obtaining property of the decedent from rental premises must file an inventory of that property with the Court, that person is under no statutory obligation to account for his storage and distribution of the property and has no statutory right to discharge from his responsibilities for the property. 6. Any person receiving a certified copy of an emergency intervention within 90 days after the order is signed or before the date a personal representative is qualified, whichever occurs first, is not personally liable for actions taken in reliance on that emergency intervention. T.P.C.§113(d). Even if this language is incorporated in the order, it may not satisfy a prudent rental agent who fears liability for releasing property without a court order identifying decedent’s intestate heirs or appointing a personal representative. Furthermore, how can that same prudent rental agent ever know positively that a personal representative has not been appointed in some other jurisdiction, thus voiding the order? Finally, if the applicant resorted to a lawsuit against the reluctant and prudent rental agent to enforce the emergency intervention order, would the applicant be stuck paying his own attorney's fees? Texas Probate Code §113(a) only 41 ewe) ) ) ) ) y ) ) ) ) ) ) -~ wwe provides for attorney’s fees to be reimbursed for obtaining the order of intervention, not enforcing it. Alternative procedures to consider: Even without a pre-need burial contract or a burial fund, intervention can be avoided if one family member advances his or her own personal funds for the burial and applies for reimbursement from the personal representative, or, when there is no administration, seeks family contributions. Facts to determine before filing: 1. Applicant’s name, address, Social Security number and his interest in the decedent's estate. 2, Name, address, Social Security number of the deceased and date of death. 3. Place where deceased died, and name and address of funeral home. 4, Names of all known heirs or devisees of the decedent. 5, Reason why the heirs or devisees either cannot be contacted or have refused to provide for the funeral or the protection of the deceased’s personal property. 6. Statement from proposed funeral home of burial procedures and costs. 7. Deceased’s written instructions, if any, concerning burial or funeral. 8. Name and address of financial institution, employer or other entity or person who has funds belonging to the deceased or due him, along with account numbers and balances, if known. 9. Type and location of decedent’s personal property and name of person or entity in possession of such assets. 10. Amount of attorney’s fees needed or estimated 11, Amount of likely storage costs for personal property to be removed from rental premises. 12. Statement of the eligibility of the applicant to serve as administrator 13, Statement that no administration has been initiated. 11, Safe Deposit Entry and Examination Texas Probate Code Sections 36B-F Form Nos. 42-44 Brief description of technique: Often a decedent leaves a will, or a burial or life insurance policy, in a safe deposit box without designating a co-owner of the box. The only way for heirs or family members to obtain access to the box and to these documents is under Probate Code Sections 36B-36F, which authorizes two types of access. The first, under Probate Code Sections 36B and 36C, requires an order from the court authorizing a person to open the box in the company of bank personnel, and to remove any wills or insurance or burial policies in the box. Pursuant to the statute, the person removing the documents must deliver them as follows: a will must be delivered to the clerk of the court; a burial deed to the person designated to receive it in the order; and the insurance policy to a named beneficiary. Altematively, under T.P.C.§§36D and 36E, a spouse, parent or descendant of a decedent may have access to a safe deposit box without court order but cannot take 42custody of any will found in the box. Instead, the person permitting examination (the bank officer), upon the request of the family member, must file the will directly with the clerk or named executor. The bank officer then distributes the burial deed to the person making the examination, and provides the insurance policy to the named beneficiary. Generally, banks will require a court order for examination of a safe deposit box, and the court will name the attorney filing the application to be the court’s representative to take possession of the documents, Uses for technique: This technique is used most frequently to retrieve a will from a safe deposit box or to verify that the box contains no will. It can also be used to obtain burial policies or instructions, or life insurance policies from a safe deposit box or from someone with custody of those documents.* This section would thus grant decedent’s spouse, parent or adult descendant access to original documents in a lawyer’s possession for safekeeping. See T.P.C.§36D. The statute does not require the examiners to make an inventory of the safe deposit box, but it is a good practice to both inventory the contents and to file that inventory with the clerk. Form 44 can be used for this purpose. The bank officer permitting the examination must copy any original will found in the box, must retain a copy for 4 years, T.P.C. §36E(b), and may not deliver any other documents to anyone else unless requested by the person examining the document (family member), and unless the family member issues a receipt to the bank officer, T.P.C. §36E(c). Planning techniques to avoid the problem: If the decedent makes a trusted partner, spouse or friend a joint owner of the box, the surviving owner will have access to enter the box and may deposit the will with the executor or with the clerk, pursuant to T.P.C.§75 or T.P.C,§36D. Decedent should inform the co-owner of his or her obligation to deliver the document to the clerk or to the executor named in the will. Facts to determine before filing: 1, Decedent’s date of death, 2. Address and telephone numbers of decedent’s last residence, and name, address and telephone numbers of executor named in decedent’s known wills, if any. 3. Name, address, and telephone numbers of decedent’s spouse, parents, or descendants. 4. Any evidence that decedent had a safekeeping arrangement with a bank or other person, had a will, burial policy, or life insurance policy. 5. Location of safe-Kept documents, including full name of bank or attorney, 6. Location of any key for box. 4B weewwe B. Decedent Dies With a Will 1 Probate of Will as a Muniment of Title Texas Probate Code Section 89A-C Form 45-47 Brief description of the technique: ‘A muniment of title is a transfer of decedent's interest in property to the distributes named in the will without the appointment of a personal representative. The order admitting the will to probate as a muniment of title is sufficient authority for those holding decedent’s assets to transfer the assets to the distributes named in the will. An application is filed with the clerk, who posts citation for ten days. After the expiration of the posting period, the applicant appears before the court and testifies to the facts contained in the Proof of Death (Form 46), which the proponent will later swear to before the clerk. The court must find that the will is self-proved: 1) by a properly executed self authenticating affidavit (T.P.C. §59(a)); 2) by the testimony of one subscribing witness; or 3) ifno subscribing witness is available, by two witnesses familiar with the decedent's handwriting who can attest that the will was signed by decedent and that decedent was over the age of 18 and of sound mind when the will was executed. See T.P.C. §84(b) for alternate methods of proof of proper attestation. The Court must also find that the estate of decedent owed no debis other than those secured by liens on real property and that there is no necessity for administration upon the estate, Before the 181st day after the date the will is admitted to probate, the applicant must file an affidavit of fulfillment of the terms of the will, showing what terms of the will have been fulfilled and what remain unfulfilled. T:P.C. §89C(d). Courts routinely waive this requirement where the applicant is the sole distributee of decedent's will. Because no inventory is required where a will is admitted as a muniment of title, there are no attomeys fees associated with inventory preparation, making probate as a muniment of title even cheaper than an independent administration. Uses for technique: Probate as a muniment of title is most common in simple estates where the decedent owned only real property and bank accounts passing debt-free to the distributes, This technique is also used to probate a will more than four years after decedent’s death. While no probate administration can be granted after four years, a will can be probated as a muniment after four years” if the, “...party applying for such probate was not in default in failing to present the same for probate within four years...” T.P.C. §73(a). Thus, an adult child could apply to probate her mother’s will more than four years after the mother’s death where it was the mother’s spouse, and not the child, who hhad custody of the will and who failed to offer it for probate. Alternatively, someone 44misinformed by a lawyer as to the need to probate a will, might not be in default for failing to offer it for probate within four years. Caveats to consider: 1. Because only persons acting on their own behalf, and not as agents for others, may appear pro se, all devisees under the will must join in an application to probate the will as a muniment of title, if the devisees which to proceed without an attomey 2. If probate as a muniment of title is sought more than four years after decedent’s death, then the applicant must give notice by service of process pursuant to T.P.C. §128B to all of the intestate heirs, informing them that the testator’s property will pass to them if the will is not admitted to probate and that the applicant may not be in default for failing to offer the will for probate within four years. An heir may file a waiver of such notice. If the heirs cannot be ascertained by the applicant with “reasonable diligence,” then the court will appoint an attorney ad litem for the unknown heirs. At the hearing, one disinterested witness familiar with decedent's family history is needed to testify as to decedent’s heirs, so that the court will know that all have been served or have waived citation. 3. Where the will is ambiguous or the distributes cannot be ascertained solely by reference to the will (ie., “my children,” who are otherwise not named), the applicant must file an application for declaratory judgment along with the application to probate the will as a muniment of title See T.P,C.§89C(b); Ch.37, Tex. Civ. Prac. & Rem. Code. ‘The posting period is twenty days for a declaratory judgment to construe a will. Note that a Probate Court would not require a declaratory judgment to construe a will if it were probated as an independent administration. In that situation, the independent executor would construe the will and distribute estate property free of court control, unless the executor or beneficiary sought the guidance of a declaratory judgment from the court. 4, Brokerage houses and insurance companies outside of Texas may not understand the muniment process and may refuse to transfer property to anyone other than a court-appointed personal representative. In such cases, a probate administration will be necessary. Necessary facts to gather: The application must allege all of the facts required by T.P.C. §89A(a), including the absence of debts other than those secured by real property. If decedent owed only minimal debts and decedent's estate would otherwise qualify for probate as a muniment of title, the heirs can pay the debts themselves. While technically the heirs would then become creditors of the estate to the extent they paid estate debts, many heirs would prefer to assume this minimum debt or informally allocate it among themselves so that the estate can be probated as a muniment of title. Alternative procedures to consider: Independent Administration. 45 wee~~ wwe 2, Family Settlement Agreement See Section III.A.3 above. 3. Resolution of Title to Vehicles Boats and Manufactured Homes See Section III.A.4 above. 4. Community Property Survivorship Agreements (Adjudication and Memorandum to Clear Title) Texas Probate Code Sections 451 to 461 ‘See Section III.A.5 above. 5, Non-Qualified Community Administration Texas Probate Code Section 160 ‘See Section III.A.6 above. 6. Ancillary Probate Procedures — Foreign Wills Texas Probate Code Section 95(d)(1) Texas Probate Code Sections 96-99 Brief description of technique: ‘A will probated for a deceased in a foreign jurisdiction can be filed with a Texas probate clerk to effect the probate of that same will in Texas, without the necessity of a court order from any Texas court, provided the testator was domiciled in the jurisdiction in which the will was probated. T.P.C. §95(d)(1). Similarly, such a will may be filed in the deed records of any Texas county in order to clear title to real estate of the deceased in that county, without court order. T.P.C. §96-99. The will and the court order admitting it to probate in the foreign jurisdiction must be attested by the clerk of the foreign court, bear the seal of that court, and bear a certificate of the foreign judge that states that the clerk’s attestation is in due form. Uses for technique: To establish public notice of the existence of a probated foreign will and the resulting passage of title. Caveats to consider: 1. Clearing title to real estate often requires that the document filed in the deed records or the probate records clearly state the legal description and owner of the affected property. This permits an unambiguous chain of title for ease in future transactions. It also may be advisable to file an executor’s memorandum in the deed records of the county where the land lies, in order to explain clearly the history and other missing 46information. This is indicated when the testator’s name on the foreign will is different from the name of the title owner on the most recently recorded deed for the property, or when there is no property specifically described in the will. The memorandum could incorporate court orders or inventories filed or approved in other jurisdictions, if these supplied the missing information, 2. There is always the potential that other persons who assert current ownership of the real property will claim that the filing of the will slanders their title, If there are co-owners, or potential adverse owners, it is best to analyze potential disputes before filing the foreign will in Texas. 3. Potential contests to the will cannot be avoided by this method. If actual disputes lurk in the fact situation, the practitioner should analyze whether this procedure helps or hurts. Planning techniques to avoid the problem: 1. An executor, though operating in a foreign jurisdiction, can execute and file in Texas a deed transferring title to estate property in Texas to the estate beneficiaries. The deed should clearly set forth the date of death of the testator/initial owner, the legal description of the property, the probate of the will, and the name of the beneficiary/grantee. An executor's deed, however, should not substitute for the "shortcut" probate since title companies will still insist on a certified copy of the foreign will prior to issuing a title policy, and it is more convenient to have already filed that will of record in Texas. When filed with the foreign will in Texas, an executor’s deed would clearly establish title in the beneficiary. 2. Revocable trusts that hold title to Texas real estate of a foreign decedent. 3. Holding title to real estate in a corporate or partnership structure, so that entity ownership passes without action by a Texas court. 4, In the will, the foreign testator should clearly describe the beneficiary of the Texas real property and the full legal description of that real property. Facts to determine before filing: 1. Is there a potential for a contest of the will upon which the title will rely? 2. Are there other co-owners of the property? 3, What is the legal description of the real property involved? 4, What is the current state of title of the real property involved? 5. Was the will probated in the jurisdiction, which was the domicile of the testator? 47 eel-Ve wwe 7. Order of No Necessity for Administration Texas Probate Code Sections 139-142 Form Nos, 36-38 Brief description of technique: See Section IMI(A)(8) above for information on this technique. When the decedent left a will, the will is filed for probate along with the Application for Order of ‘No Necessity for Administration. Uses for technique: ‘See Section I1I(A)(8) above for information on this technique. Planning techniques to avoid the problem: Dying debt free. Necessary facts to gather: See Section I1I(A)(8) above for information on this technique. Where there is a will, Section 139 requires that the application state the names of the devisees. 8 Emergency Intervention for Burial Funds and Personal Property Texas Probate Code Section 108 See Section III.A.9 above. 9. Safe Deposit Entry and Examination Texas Probate Code Section 36B-F ‘See Section IIL.A.10 above. 48"The Texas Family Code (Sections 3.001, through 3.102) establishes a useful and comprehensive framework of evidentiary presumptions and rights governing management of community property, but a court would not adjudicate rights in community and separate property without a controversy or a request for declaratory judgment relief. Provoking dispute to resolve matters may result in an unweleome remedy, however. ? Section 142 does not specifically authorize the retention ofa guardian ad litem to oversee the trust once it is established. If the court were to retain such a watchdog, however, the cost tothe beneficiary of the guardian ad litem’ fees would significantly increase the expense of the Section 142 trust in comparison to a Section 867 management tus, The parent’ right toa child's earnings is a relic ofthe feudal apprentice system; its hard to imagine any oder employer ofa minor paying the child's parents, and not the child, for work performed. Moreover, ‘hile a managing conservator can sue on behalf of a minor, itis not clear whether the conservator has the power to make litigation decisions that bind the minor when he or she reaches adulthood, as the "next fiend" can under TRCP. 44 * The Probate Code does not specify any method or form for citation for Small Estate Affidavits either, and Probate Courts do not require any citation + A surviving spouse may apply for qualified community administration pursuant to TPC. §161 et seq, ‘when an interest in community property passes to someone other than the surviving spouse, and there is no executor named in the will or able to serve, or the deceased died intestate, Tr may make a difference to us purists, but ttle companies are requiring that the 2 disinterested witnesses only atest to the family history fats and that the othe, interested party, attest to al of the facts stated in the Affidavit “Tin allocating financial responsibility for the burial of a decedent against the decedent's share of community assets, not that of the surviving spouse, the Probate Code seems to conflict with the Health and Safety Code §711.002(a) and (4) which designates the surviving spouse personally liable for those burial expenses (in the absence of other writen instructions), regardless of whether payment would necessarily come from the surviving spouse's community estate. The authors are not aware of any decisions resolving this ambiguity 5 The person possessing a will must deposit it with the clerk after decedent's death, pursuant to Texas Probate Code §75, which also prescribes a statutory method to enforce that obligation, ? While T-P.C. §89B(a)(1) requires thatthe Cour find that "...four years have not elapsed since the ppetson’s death and prior to the application,” this requirement conflicts with T-P.C, §73(a), and the recognition in T.P.C, §128B(c)(2) that wills can be probated beyond that period ifthe applicant is notin default. Since the Code clearly contemplates the probate of wills after four years and prohibits administrations after that date, the only method to accomplish such tite transfer is by muniment of title and the §8913(a) requirement is ignored. 49yamFORM 1 COMPENDIUM OF DIRECTIVES, DOCUMENTS AND STATUTES THAT AVOID GUARDIANSHIP OF THE PERSON OR ESTATE, AND SECURE EMERGENCY TREATMENT Substitute decision-makers can make medical treatment decisions in the following circumstances: a) Medical Treatment for Minors Tex. Fam. Code §151.001; Tex. Fam. Code §32.001, et seq; and Tex. Fam. Code §§153.073(a)(7), 153.074(3); Tex. Health & Safety Code §§576.025,773.008(3). But see HCA, Inc. v. Miller ex rel Miller, 36 $.W.3d 187 (Tex.App.- Houston [14" Dist.]). b) Medical Treatment by Guardian's Decision Tex. Probate Code §767; and Tex. Health & Safety Code §313.003 (a) (6). ©) Abortion Abortion is not criminally restricted: V.A.T.S. art. 4495b Sec. 3.08, 4.01, and 4.011; and Atty. Gen. Op. 1974 No. 1-1-369, and it appears to be a ‘medical procedure that one's family members can consent to as decision- makers (see part e. below and Texas Health & Safety Code §313.004(d); but see contra 166.049 Texas Health & Safety Code (part h. below) and Tex. Health & Safety Code §166.152 (f) (4) (part d. below). 4) Medical Power of Attorney - Decision making by attomey in fact previously appointed by the person to be treated. Texas Health and Safety Code §166.151 ef seq. ©) Consent to Medical Treatment Act - Medical Treatment while hospitalized or in a nursing home authorized by family members or designees as surrogate decision- makers, Tex. Health & Safety Code §313.001 through 313.007 f) Medical Treatment for Mentally Retarded Persons in an ICF-MR F: Texas Health & Safety Code §597.001 through 597.055 g) Emergency Medical Services Texas Health & Safety Code §773.008; and V.A.T.S. article 4590i, Sec. 6.07(a)(2). h) Consent to Withdraw or Discontinue Treatment — Life-Prolonging Treatment (Natural Death Act), Texas Health & Safety Code §166.031 through 166.051 i) Consent for Emergency Healthcare to be Delivered by Adult Protective Services ‘Texas Human Resources Code §$48.002(5); 48.203; 48.208(b) and (f). wee-~ wwe i kK) Dd P) FORM 1 For residents in a Nursing Home -- the Texas Administrative Code imposes on Long Term Care Facilities the duty to allow the exercise of all of the Nursing Home Residents rights by his or her "legal surrogate” in accordance with state law. Presumably this requires that nursing homes honor the structure for substituted decision-making without guardianship which was established by the Consent to Medical Treatment Act (see subpart e. above). 40 T.A.C. §19.202(g). For resident of TDMHMR residential facilities -- The Texas Administrative Code imposes on MHMR facilities the duty to have the doctor establish the "code," or resuscitative status, before an cmergency situation occurs, or provides a framework for such decisions by a substitute decision-making committee, 405 T.AC. §405.51. ‘Mental health treatment on an emergency inpatient basis must be by court order pursuant to the commitment process of the Texas Mental Health Code, or on a voluntary basis by a patient with capacity to consent to such services. Texas Health & Safety Code Chapters 571 through 577. A guardian cannot voluntarily admit a ward to an inpatient mental health facility, although a guardian can consent to psychoactive medication and outpatient services for the ward. Texas Probate Code §767. Electro Convulsive Therapy must be voluntarily agreed to by the patient or approved by a court appointed guardian, Texas Health & Safety Code §§578.002(c); 578.003. Anatomical Gifts may be made by family members of the patient under certain circumstances. Texas Health & Safety Code §692.004. Out-of-Hospital Do Not Resuscitate Order Act, of 1995. Texas Health & Safety Code §§166.081 through 166,101 This statute authorizes a competent person and his physician, or the representative or family members of such a person, to designate on a form that the person has a terminal illness and to identify those procedures that the physician has specified should not be used for that person. A bracelet or necklace bearing a distinctive logo is supposed to alert any EMS worker that such a form has been executed. The form is to be kept with the patient at all times, including during any medical transport. ‘This should prevent unnecessary harsh medical procedures from being used to preserve life against the express wishes of the patient. Forms may be purchased in bulk from the Texas Medical Association. ‘Nursing home residents cannot be deprived of rights as elders in the medical care provision process. Texas Health & Safety Code §242.501; Texas Human Resources Code §102.003.FORM 1 4) _ Managing Conservatorships — provide authority to consent to medical care for minor, but no monitoring mechanism exists for property management. Texas Family Code §153.132 et. seq. 1) School Admission Procedures - School districts may adopt guidelines to allow admission of non- resident children to school without the need for a guardianship. Texas Education Code §25.001, Exceptions to the usefulness of these statutes in avoiding guardianships will arise: a) when third party providers are reluctant to abide by or implement the medical treatment decision arrived at by the decision-maker, or are so reticent that their care is not the best; b) when nursing homes perceive they are under federal or state mandate to require guardianship or their Medicaid funding will be in jeopardy; ©) when there is a conflict as to treatment appropriateness among the patient's decision-makers who have equal ability to assert authority over the incapacitated person under the statute involved. 4) when there is a medical need for psychoactive drugs, psychiatric care or electroshock therapy, each of which must be specially authorized, either by court ) order or by a guardian, depending on the type of care needed, Texas Health & ) Safety Code Ch. 574 and §578.003 et seq. Financial and property decisions ean be made in a variety of situations without guardianship: 1) For Minors -- Texas Probate Code §889 ~- useful if minor's interest in property to be sold is not valued at more than $100,000.00. The court will order the proceeds of the sale to be placed in the registry of the Probate Court. A minor's interest in his or her earnings are subject to parents’ management. Tex. Fam. Code §3.103. , 2) For Financial Authority over Incapacitated Persons ~ Durable Powers of Attorney ~ comprehensive array of powers under Texas Probate Code §§481-506; requires capacity to execute the Power of Attomey; effective upon or during later incapacity. 3) For Married Persons -- Community property can be managed by spouse after judicial declaration of incapacity. Texas Probate Code §883-884. See also Tex. Family Code §5.003 (homestead management) and Tex. Family Code §3.102 (community property management) 4) For any minor or incapacitated Person who has no Guardianship -- Texas Probate Code §887 -- up to $100,000.00 can be deposited in the Clerks registry. wee 3wwe ) 6) 0) 8) » 10) 1) 12) 13) 14) ) 2 3) 4) FORM 1 For a minor — transfers by fiduciaries to a custodian under the Texas Uniform Transfers to Minors Act of benefits payable to a minor up to $10,000.00, can be made without court order. Texas Property Code Ch. 141. Revocable Management Trusts -- Texas Probate Code §867 — set up by a guardian, with a financial institution or other qualified person as fiduciary. For Adults with Guardianship of the Person only - Texas Probate Code §890 -- useful to sell the adult's interest in property if not valued at more than $100,000. Trust ("Living Trust") - Texas Property Code §112.001- must be executed by settlor with mental capacity. Section142 Trust - §142, Texas Property Code -- Where no guardianship exists and a “next friend” suit has been brought. Cannot be created by Probate Court. Medicaid Qualification Trust - 42 USC 1396p (1)(d)(4)(B)(i) & (ii) - allows a person to qualify for Medicaid in a nursing home where available income is otherwise too high for qualification. Receivership - Texas Probate Code §885. If incapacitated person’s estate in danger of injury, receiver can manage it until danger subsides. Representative Payee - 42 USC §1383(a)(2) - A Representative Payee may be appointed by the Social Security Administration to manage Social Security/SSI benefits without the appointment of a guardian, Veteran’s Benefits Fiduciary - 38 USC §5502(a)(1) - The Department of Veterans Affairs allow the appointment of a person to handle the administration of veteran’s pension benefits without the appointment of a guardian. ‘Suit by Next Friend - Rule 44, Tex. Rules Civ. Pro. -- for minors and incapacitated persons without a guardian to maintain a civil suit. Different types of guardianships can be obtained if necessary: Minor's Guardianships, Texas Probate Code §676. Limited - All Guardianships for adult wards are limited unless stated to be otherwise. Texas Probate Code §§675; 693(b) With full authority -- if totally without capacity, Texas Probate Code 693(a). Temporary Guardianships. Texas Probate Code §875-879.FORM 1A CAUSE NO. FOR THE BENEFIT § IN PROBATE COURT OF 4 NO.____ OF Sanne nanan SEE EET H ______ COUNTY, TEXAS [incapacitated person} APPLICATION FOR DECLARATION OF AUTHORITY TO CONSENT. TO MEDICAL TREATMENT, Applicant ("Applicant"), submits this Application for Declaration of Authority to Consent to Medical Treatment under Texas Health and Safety Code §313.002 (‘‘the Act”), and in support thereof would show the Court as follows: 1. » (the “Patient") is currently located at [name and address of hospital or nursing home) in this county and is suffering from [describe conditions which causes the Patient to be incapacitated, comatose and/or otherwise mentally or physically incapable of communication]. Such conditions make the Patient incapacitated and/or comatose and/or otherwise mentally or physically incapable of communication [choose appropriate description]. A letter from the Patient’s doctor is attached hereto, 2. The Applicant is eligible to act as a surrogate decision-maker under the Act because he/she [has priority under the Act as the next of kin] [is the Patient’s clergy member, absent next of kin] has been designated as Patient’s surrogate decision-maker as follows: (describe circumstances of designation), and/or [is more qualified to act as decision-maker than , another individual of~ wwe FORM 1A similar or greater priority who seeks recognition of his/her own decision-making authority (provide grounds for such allegation)]. 3. The following individuals who have greater than, or equal priority to, Applicant to act as a decision-maker under the Act, have received notice of this hearing: [list individuals and the relationship of each to the Patient). Of those individuals, the following have filed written waivers of their right to serve in favor of the Applicant: [list those individuals]. The following individuals have contested this application in writing: [list]. WHEREFORE, Applicant requests this Court to appoint hinvher as surrogate decision-maker for the Patient after a hearing on this application [or without a hearing, because all of the individuals with priority equal to, or greater than, Applicant's, have consented to Applicant's service as decision-maker for Patient.] Respectfully submitted, ‘Attorney for Applicant [Signature Block] ‘Applicant’s Signature [Applicant's Name] SUBSCRIBED AND SWORN TO before me by [Applicant]] on the _, day of , 200_, to certify which witness my hand and seal of office. [SEAL] Notary Public, State of TexasFORM 1B CAUSE NO. FOR THE BENEFIT § IN PROBATE COURT OF : NO.____ OF : ___COUNTY, TEXAS [incapacitated person] ORDER DECLARING AUTHORI CONSENT TO ICAL TREATMENT. On this day, the Court considered the Application for Declaration of Authority to Consent to Medical Treatment filed by Applicant. After hearing the evidence, the Court finds that the notice has been given to all interested persons; that (the “Patient) is a person in a hospital or nursing home who is incapacitated and/or comatose and/or otherwise mentally or physically incapable of communication. The Court further finds that {name of Court’s choice as surrogate] is qualified to serve as decision-maker under the Consent to Medical Treatment Act (Texas Health & Safety Code §313.002) (“the Act”) because [state reasons for so finding]. [If applicable: The Court further finds that [name of contestant or counter-applicant} should not be designated as the surrogate decision-maker for the Patient because [state reasons], It is therefore ORDERED, ADJUDGED AND DECREED, that the Application is GRANTED, and that [Applicant], is authorized to consent to medical treatment on behalf of » Patient, for so long as Patient remains in a hospital or nursing home and remains incapacitated and/or comatose and/or otherwise mentally or physically incapable of communication. This authority shall terminate, without ~ weewwe Se FORM 1B the necessity of further Court order, immediately upon the Patient’s departure from a hospital or nursing home, or upon his/her regaining capacity, or becoming capable of mentally or physically communicating. SIGNED this__ day of 200_. JUDGE PRESIDINGFORM 1C CAUSE NO. FOR THE BENEFIT § IN PROBATE COURT OF ; NO.____ OF : ___COUNTY, TEXAS incapacitated person] NOTICE OF HEARING ON APPLICATION FOR DECLARATION OF AUTHORITY TO CONSENT TO MEDICAL TREATMENT. You are hereby notified that [Applicant] has filed an application for authority to consent to medical treatment on behalf of. . a patient at [name of hospital or nursing home] pursuant to the Texas Consent to Medical Treatment Act. A copy of the Application is attached hereto, A hearing on this application has been scheduled for the __day of imonth], 200_, at _m, [time], in the Probate Court of County, Texas, located at [provide address]. If you have any objections to the Application, you must either appear at the hearing or file, before the hearing, a written objection to the Application, which shall be considered by the Court in its decision whether to grant the Application, You should consult an attomey if you have any questions about your legal rights or responsibilities concerning the attached Application or the upcoming hearing. Respectfully submitted, Attorney for Applicants [SIGNATURE BLOCK weeww’ FORM 2 CAUSE NO. FOR THE USE AND BENEFIT § IN PROBATE COURT OF : NO.____ OF 5 : COUNTY, [CREDITOR] AFFIDAVIT FOR DEPOSIT OF FUNDS INTO THE REGISTRY OF THE, ‘COURT UNDER TEXAS PROBATE CODE §887 STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF § BEFORE ME, the undersigned authority, on this day appeared ("Debtor"), who, being duly swom, states as follows: i [minor's name] ("Creditor"), is a minor, born [date], who is now _ {age written in text] (__) [number] years old, OR [incapacitated person's name] ("Creditor") is alleged by Debtor to be an incapacitated person OR has been adjudicated incapacitated by the [Name of Court] in {cause number] on___[date of order finding incapacity). 2. Creditor is a resident of ____[the county where this Affidavit is filed) County, Texas, and is without a legal guardian of his estate. 3. Creditor is entitled to money in the amount of {number written in text ]($. {number]), the right to which is liquidated and is uncontested in any pending lawsuit. 4, Creditor’s mailing address is,FORM 2 5. Creditor’s Social Security number is 6. The nature of Creditor's disability is his minority [OR, The nature of Creditor's Aisability is his alleged OR adjudicated incapacity as specified above]. Debtor hereby requests that, pursuant to the provisions of Section 887 of the Texas Probate Code, the County Clerk of __County, Texas: accept payment of the said money for the account of the said Creditor and issue a signed receipt for such money; notify the Creditor of Debtor's payment; call the Court's attention to the receipt of the Debtor's payment; and invest the money in an interest bearing account as authorized under Texas Probate Code §887 in the name and for the account of the minor or other person entitled to the money. {name of Debtor] By: [name of agent] SWORN TO AND SUBSCRIBED BEFORE ME by , for » [name of Debtor], on this day of , 200_, to certify which witness my hand and seal of office. Notary Public, State of Texas {SEAL} ~ weewee FORM 2 CAUSE NO. FOR THE USE AND BENEFIT § IN PROBATE COURT OF : NO.____ OF : COUNTY, [CREDITOR] ORDER TO HOLD FUNDS DEPOSITED PURSUANT TO PROBATE CODE SECTION 887 IN AN INTEREST-BEARING INVESTMENT It has come to the attention of the Court that on [date] [debtor] made a deposit with the Clerk of the Court for the benefit of [creditor] ("Creditor"), in the amount of $, » pursuant to Texas Probate Code §887. The Court ORDERS the Clerk to invest such funds in the name of, and for the account of, the Creditor as follows: (a) in the registry of the Court in an interest-bearing account; OR (b) (other investment as directed by the Court, for example, savings bonds or zero coupon bonds]. Any increase, dividend or income from this investment shall be credited to the account of [creditor] and shall only be withdrawn pursuant to Texas Probate Code §887 or by other order of the Court. Signed this___day of __, 200_. JUDGE PRESIDINGFORM 3 CAUSE NO. FOR THE USE AND BENEFIT § IN PROBATE COURT OF § NO.____ OF ——_> ; COUNTY, [CREDITOR] APPLICATION FOR RELEASE OF FUNDS FROM THE COURT REGISTRY UNDER TEXAS PROBATE CODE SECTION 887 NOW COMES, [father/mother/spouse/custodian/guardian of the person- see Texas Probate Code §887(c)] ("Applicant") of [Name of Minor/Incapacitated Person], a Minor/Incapacitated Person, and seeks the release of approximately $ (8__) of the Minor/Incapacitated Person's funds in the registry of the Court, For grounds therefore, Applicant would show the Court as follows: L [State reasons why Applicant needs money from the Court registry for the use and benefit of the Minor/Incapacitated Person. I. Applicant will submit a bond as required by Texas Probate Code §887(c) and will account for all such expenditures faithfully to Minor/Incapacitated Person and to this Court, as appropriate and required, and will expend all funds solely for the benefit of the Minor/Incapacitated Person. WHEREFORE, PREMISES CONSIDERED, Applicant prays that this Court authorize the Clerk to release the funds now in the registry of the Court to Applicant upon the approval of the surety bond for double the amount of the assets withdrawn. The Court is further requested to authorize the Clerk to remove from such sum weewwe FORM 3 the amount of any required administrative fees accrued to date. Respectfully submitted, ‘Attomey for Applicant [SIGNATURE BLOCK]FORM 3 CAUSE NO. FOR THE USE AND BENEFIT § IN PROBATE COURT OF : NO.____ OF —__» ; COUNTY, [CREDITOR] ORI COURT REGISTRY UNDER TEXAS PROBATE §887 On this the day of. 200_, came on for consideration the Application of the [father/mother/spouse/custodian/guardian of the person- see Texas Probate Code §887(c)|("Applicant") of [Name of Minor/ Incapacitated Person], a Minor/Incapacitated Person, seeking the release of funds held in the registry of the Court. After consideration of the application and evidence thereon, this Court ORDERS that: (Name of Applicant], as [father/mother/spouse/ custodian/guardian) of [Name of Minor/Incapacitated Person] is authorized to receive, and the Clerk is authorized to release, $___from the funds now held in the registry of this Court, conditioned that Applicant shall first have filed with the Clerk and the Court shall have first approved a corporate surety bond in the amount of $ [double the amount of money withdrawn] payable to this Court in conformity with Section 887, Texas Probate Code, The Applicant shall use the funds for the benefit of the Minor/Incapacitated Person and shall account for such funds by sworn report filed with this Court when Applicant has expended such funds or at such other time as ordered by this Court. weeweet FORM 3 Further, the Clerk is authorized to remove from such funds the amount of the required clerk’s administrative fees accrued to date. Signed this___day of __, 200_. JUDGE PRESIDINGFORM 4 CAUSE NO. FOR THE USE AND BENEFIT § IN PROBATE COURT § OF § Ne OF § —_____ § COUNTY, [CREDITOR] ORDER AUTHORIZING WITHDRAWAL OF FUNDS FROM THE REGISTRY. OF THE COURT UPON TERMINATION OF MINOR'S DISABILITY On this the __day of __, 200_, came on for consideration the Application of, {minor/creditor)]("Creditor") for the withdrawal of funds from the registry of the Court as provided by Probate Code Section 887(f). It has been proved to the satisfaction of this Court that the Creditor has reached the age of 18 years, and is entitled to receive funds due, plus accrued interest from the registry of the Court, less court costs and any administrative fee due the registry of the Court. It is, therefore, ORDERED, that the Clerk of the Court pay from the Court registry, the sum of all funds on account, plus accrued interest, for [creditor], less court costs, filing fees and any administrative fees due to the Clerk. Signed this___day of __, 200_. JUDGE PRESIDING weeJ 2 a) FORM 5 CAUSE NO. INRE § IN PROBATE COURT —_—_____ ; NO.____ OF AMINOR i _____ COUNTY, TEXAS APPLICATION FOR SALE OF PROPERTY OF A MINOR WITHOUT GUARDIANSHIP (“Parent”) of a minor child parent (“Minor”), applies to the Court for the sale of property of the Minor pursuant to Texas Probate Code §889, on the following grounds: 1. The name, sex, date of birth, address and Social Security number of the Minor . Venue is proper in this county because the Minor resides here. 2. The Minor’s property consists solely of an undivided/divided [state fractional share] in the following real property: [provide legal description of real property or specific description of personal property]. The value of the Minor's interest in such property does not exceed $100,000.00. 3, Minor obtained an interest in the above-described real property by inheritance from who died on in County, Texas, and whose estate was subject to probate in Cause No,__, Probate Court No.__,___ County, Texas [or otherwise state source of Minor’s interest in property.] 4, The sale of the property is to be made for cash to {name of purchaser] on the terms of the attached Contract for Sale (Exhibit A) for$_. After estimated expenses of sale, the net amount estimated to be paid to the Minor isFORM 5 5. The Applicant certifies to the Court that the funds received from the sale of the property shall be for the use and benefit of the Minor and will be placed in the registry of the Court for the Minor. WHEREFORE, Applicant prays that after consideration of the application and hearing thereon the Court approve the sale of the Minor’s property. [parent or managing conservator] STATE OF TEXAS COUNTY OF BEFORE me, the undersigned authority, personally appeared Applicant, known to me to be the person whose name is subscribed to the above Application for the sale of property of the minor child {name}, without Guardianship, and after being duly sworn by me stated that the facts contained therein are true and correct. SUBSCRIBED AND SWORN to before me this day of + 200_. [SEAL] NOTARY PUBLIC, STATE OF TEXAS weewwe FORM 6 INRE § IN PROBATE COURT § > § NO.____ OF § AMINOR § COUNTY, TEXAS ORDER APPOINTING ATTORNEY AD LITEM ON APPLICATION FOR SALE OF PROPERTY OF A MINOR WITHOUT GUARDIANSHIP On this day came to the attention of the Court, the Application for Sale of Property of a Minor Without Guardianship, in the above numbered and entitled cause, and the Court finds that an attomey ad litem should be appointed to represent the best interests of a minor, in this proceeding. Itis, therefore, ORDERED, that is hereby appointed such attorney ad litem. It is further ORDERED that compensation shall be taxed as costs. JUDGE PRESIDINGFORM 7 CAUSE NO. INRE § IN PROBATE COURT § § NO. OF § AMINOR § COUNTY, TEXAS ORDER FOR SALE OF PROPERTY OF A MINOR WITHOUT GUARDIANSHIP On this day, the Application for Sale of Real Property of a Minor Without Guardianship filed by , Applicant, was heard and considered by the Court, and after hearing the evidence in support of the Application, the Court finds that the citation has been issued and served as required by law; that the Application and Exhibit[s] meet all requirements of law; that the real property ("the Property") is fully described as: [insert legal description of real property] OR that the personal property is described as [insert specific property description]; that it is in the best interest of , (“Minor”) for the above property to be sold for cash in the total sum of $ , as described in the contract for sale attached as an exhibit to the Application; that the sale is advisable; and that the Court should, pursuant to Texas Probate Code §889, authorize Applicant, the [parent/managing conservator] of the Minor, acting pursuant to this Order, to direct the purchaser, closer at the title company, attomey or other party handling the sale, to deposit with the Clerk of this Court the remaining funds payable to , Minor, by the purchaser after costs of sale and closing are deducted and after payment of any approved claims on file with this Court at the time of closing. It is therefore ORDERED, ADJUDGED AND DECREED, that the Application is GRANTED, and that [Applicant], as parent/managing conservator, Minor, acting pursuant to this Order, is authorized to sell the interests of, in the above stated property to [name of purchaser), at the wee) ) y ) ) ~ whew ~ FORM 7 price of $___. After the sale is made, the [parent/managing conservator] shall file a report of sale with the Court, and upon the Court's approval of the decree confirming sale, the parent/managing conservator shall execute a deed to the purchaser of the Minor's interest in the property, which will be fully effective to pass title to the interest of the Minor in such property, and the closer at the title company, attorney or other party handling the sale, shall deposit with the clerk of this Court the remaining funds payable to [Minor] by the purchaser after costs of sale and closing are deducted and after payment of any approved claims [including approved attomeys' fees] on file with this Court at the time of closing, The Clerk of this Court is ordered to accept such funds tendered on behalf of, [Minor], and to issue a receipt therefore to the remitting party, and to deposit such funds into an interest bearing account for the benefit of the Minor pursuant to Texas Probate Code §889. After the sale is made and confirmed by the Court, neither the Minor or the [parent/managing conservator] nor his representatives, may disaffirm the sale. JUDGE PRESIDING Approved: ‘Attomey Ad Litem for Minor {Signature Block] ‘Attomey for Applicant {Signature Block]FORM 8 CAUSE NO. IN THE GUARDIANSHIP OF § IN PROBATE COURT § § NO. OF § An Incapacitated Person 8 COUNTY, TEXAS APPLICATION FOR SALE OF PROPERTY OF WARD Guardian of the Person (“Guardian”) of Ba Ward of this Court (“Ward”), applies to the Court for the sale of property of the Ward pursuant to Texas Probate Code §890, on the following grounds: 1. The name, sex, date of birth and address of the Ward are: Venue is proper in this county because the Ward resides here and is the subject of a Guardianship of the Person in this Court. 2. The Ward’s property consists solely of an undivided/divided [state fractional share} in the following real property: [provide legal description of real property or specific description of personal property]. The value of the Ward’s interest in such property does not exceed $100,000.00. 3. Ward obtained an interest in the above-described real property by inheritance from , who died on in County, Texas, and whose estate was subject to probate in Cause No.__, Probate Court No._, County, Texas. [or otherwise state source of Ward’s interest in property. ] 4, The sale of the property is to be made for cash to [name of purchaser] on the terms of the attached Contract for Sale (Exhibit A) for$_. After. estimated expenses of sale, the net amount estimated to be paid to the Ward is $. .wwe FORM 8 5. The Applicant certifies to the Court that the funds received from the sale of the property shall be for the use and benefit of the ward. WHEREFORE, Applicant prays that after consideration of the application and hearing thereon the Court approve the sale of the Ward’s property. , Guardian of the Person ] STATE OF TEXAS COUNTY OF BEFORE me, the undersigned authority, personally appeared Applicant, known to me to be the person whose name is subscribed to the above Application for the sale of property of an incapacitated person [name], without Guardianship, and after being duly swom by me stated that the facts contained therein are true and correct. SUBSCRIBED AND SWORN to before me this day of 200_. [SEAL] NOTARY PUBLIC, STATE OF TEXASFORM 9 CAUSE NO. IN THE GUARDIANSHIP OF § IN PROBATE COURT > ; NO.____ OF An Incapacitated Person § __ COUNTY, TEXAS ORDER APPOINTING ATTORNEY AD LITEM ON APPLICATION FOR SALE OF PROPERTY OF AN INCAPACITATED PERSON WITHOUT GUARDIANSHIP OF THE ESTATE On this day came to the attention of the Court, the Application for Sale of Property of An Incapacitated Person Without Guardianship, in the above numbered and entitled cause, and the Court finds that an attorney ad litem should be appointed to represent the best interests of a Ward of this Court, in this proceeding. It is, therefore, ORDERED, that is hereby appointed such attorney ad litem. It is further ORDERED that compensation shall be taxed as costs. JUDGE PRESIDING ~ HO~ wwe ~ FORM 10 CAUSE N IN THE GUARDIANSHIP OF IN PROBATE COURT NO. OF —______ An Incapacitated Person COUNTY, TEXAS ORDER FOR SALE OF PROPERTY OF WARD WITHOUT GUARDIANSHIP On this day, the Application for Sale of Real Property of A Ward Without Guardianship filed by Guardian of the Person (“Guardian”) of the Ward (“Ward”) was heard and considered by the Court, and after hearing the evidence in support of the Application, the Court finds that the citation has been issued and served as required by law; that the Application and Exhibit[s] meet all requirements of law; that the real property ("the Property") is fully described as: [insert legal description of real property] OR that the personal property is described as [insert specific property description]; that it is in the best interest of the Ward for the above property to be sold for cash in the total sum of S. , as described in the contract for sale attached as an exhibit to the Application; that the sale is advisable; and that the Court should, pursuant to Texas Probate Code §890, authorize Applicant, the guardian of the person, acting pursuant to this Order, to direct the purchaser, closer at the title company, attomey or other party handling the sale, to deposit with the Clerk of this Court the remaining funds payable to Ward, by the purchaser after costs of sale and closing are deducted and after payment of any approved claims on file with this Court at the time of closing. It is therefore ORDERED, ADJUDGED AND DECREED, that the Application is GRANTED, and that , [Applicant], Guardian of the Person of Ward, acting pursuant to this Order, is authorized to sell the interests of , Ward, in the above stated property to [name of purchaser], at the price of §___. After the sale is made, [Applicant], Guardian of the Person of Ward, shall file a report of sale with the Court, and upon the Court's approval of the decreeconfirming sale, [Applicant], Guardian of the Person of Ward shall execute a deed to the purchaser of the Ward's s interest in the property, which will be fully effective to pass title to the interest of the Ward in such property, and the closer at the title company, attomey or other party handling the sale, shall deposit with the clerk of this Court the remaining funds payable to [Ward] by the purchaser after costs of sale and closing are deducted and after payment of any approved claims [including approved attomeys' fees] on file with this Court at the time of closing. The Clerk of this Court is ordered to accept such funds tendered on behalf of [Ward], and to issue a receipt therefore to the remitting party, and to deposit such funds into an interest bearing account for the benefit of the Ward pursuant to Texas Probate Code §890. After the sale is made and confirmed by the Court, neither the Ward nor the [Applicant], Guardian of the Person of Ward, nor his representatives, may disaffirm the sale. SIGNED this__ day of. » 200_. JUDGE PRESIDING Approved: Attomey Ad Litem for Ward for Ward weewet FORM 11 No, IN THE ESTATE OF § INTHE PROBATE COURT NO.1 § § OF § DECEASED § TRAVIS COUNTY, TEXAS APPLI 0 APPOINT A RECEIVER UNDER TEXAS PROBATE CODE §885 (FOR MINOR) » applicant ("Applicant"), submits this Application to Appoint a Receiver for a Minor under Texas Probate Code §885, and in support thereof would show the Court as follows: ie (the “Minor”) is the minor child of. ("Decedent"), who died on 200_, and is also the child of Applicant herein, who was married to Decedent at the time of his death. 2. The Decedent left a will dated , Which Applicant has filed for probate in this cause, One of Decedent's children from another marriage has filed a will contest alleging that Decedent lacked testamentary capacity at the time Decedent executed the will, and that the will was procured by the fraud of Applicant herein, 3. The Minor has an interest in this proceeding because the will creates a trust for the benefit of the Minor. 4, Applicant and Decedent’s child by another marriage have reached an agreement to compromise and settle all controversies now pending in this probate proceeding. A copy of that Compromise and Settlement Agreement is attached to this Application. 5. The Minor does not have a guardian of her estate and there is no present necessity to appoint a guardian for the Minor’s estate, since all the property passing by Decedent's will to theFORM 11 ‘Minor passes into the trust for the Minor’s benefit. 6. Due in part to the likelihood of protracted and costly litigation and to the risk of losing the benefits provided under the will to the Minor without a settlement of this litigation, the estate of the jury, loss or waste and in need of a representative. 7. There is an immediate need for the appointment of a receiver for the Minor to review and evaluate the Compromise and Settlement Agreement and related documents on behalf of the Minor, and determine that such agreement is in the best interest of the Minor. 8. Decedent's child from a prior marriage consents to the appointment of a receiver as evidenced by that party’s signature below. 9. an attomey and resident of Travis County, is a citizen and qualified voter of this State, and is a suitable person to serve as receiver for the Minor. 10. Because the receiver will never possess or control any property or assets belong to the Minor, the receiver's bond should be set in the sum of $2,000 or in such minimum sum as the Probate Court deems necessary for the protection of the Minor’s estate, 11. The receiver shall be granted only such powers as are necessary and appropriate to allow the receiver to review and evaluate the Compromise and Settlement Agreement and related documents, and if the receiver determines that such agreement is in the best interest of the Minor, to execute and ratify the Compromise and Settlement Agreement on behalf of the Minor. 12. The Probate Court’s order appointing the receiver shall provide that any execution and ratification of the Compromise and Settlement Agreement by the receiver shall not be binding upon the Minor unless and until the receiver’s execution and ratification of the Compromise and Settlement Agreement is approved and ratified by the Probate Court, and such order becomes final and non-appealable within thirty (30) days after it is signed by the Probate Court,whet FORM 11 Prayer for Relief WHEREFORE, Applicant respectfully requests that: (a) an order be entered pursuant to Section 885 of the Texas Probate Code appointing receiver for the Minor, with powers and authority to review, evaluate, execute and ratify the Compromise and Settlement Agreement on the Minor’s behalf and to execute, acknowledge and deliver any and all documents that may be required to effect the provisions of the Compromise and Settlement Agreement; (&) _ anorder be entered approving and ratifying the receiver’s execution of the Compromise and Settlement Agreement; directing the receiver to perform all obligations imposed on the receiver by the Compromise and Settlement Agreement; and approving and confirming the Compromise and Settlement Agreement in all respects; (© TheProbate Court grant applicant such other and further relief, at law or in equity, to which they may show themselves justly entitled. Respectfully submitted, ‘Attorney for Applicant [Signature Block] APPROVED: Attorney for Deceased’s Adult Child [Signature Block]FORM 12 CAUSE NO. IN THE ESTATE OF § IN PROBATE COURT 2 ; NO. OF DECEASED H _____ COUNTY, TEXAS ORDER APPOINTING ATTORNEY AD LITEM ON APPLICATION FOR APPOINTMENT OF A RECEIVER On this day came to the attention of the Court, the Application to Appoint a Receiver, in the above numbered and entitled cause, and the Court finds that an attomey ad litem should be appointed to represent the best interests of +a minor/incapacitated person, in this proceeding. Itis, therefore, ORDERED, that , is hereby appointed such attorney ad litem. It is further ORDERED that compensation shall be taxed as costs, ) JUDGE PRESIDINGweet FORM 13 No. IN THE ESTATE OF § INTHE PROBATE COURT § § NUMBER ONE OF § DECEASED § TRAVIS COUNTY, TEXAS ORDER APPOINTING A RECEIVER UNDER TEXAS PROBATE CODE §885 (FOR MINOR) The Application to Appoint a Receiver Under Texas Probate Code §885 (“the Application”) was filed herein on 200_, by ("Applicant"), the natural parent of, a minor (the "Minor), who was the child of Decedent herein, On the day signed below, a hearing was held before the Court at which Applicant appeared, by and through her attomey of record; the Minor appeared by and through her court-appointed attorney ad litem, and : adult child of Deceased (“Adult Child”), appeared by and through her attorney of record. ‘After considering the pleadings on file and the evidence presented by the parties, the Court finds: 1. Due notice of this hearing has been given to all parties. 2. Applicant is the natural parent of minor and the surviving spouse of Decedent. Applicant is also the proponent of the will of Decedent dated __, (“the Will”). 3. Adult child has filed a will contest alleging that Decedent lacked testamentary capacity when the Will was executed and that the Will was procured by the fraud of Applicant.4. 9, FORM 13 Minor receives property under the Will via a trust for her benefit until she reaches the age of 18, Applicant and Adult Child have entered into a compromise and settlement agreement (the “Compromise and Settlement Agreement”) to settle all controversies now pending in these proceedings, subject to approval of the Court. The Minor does not have a guardian of her estate qualified to act in this State and there is no present necessity to appoint a guardian for the estate of the Minor. Due in part to the likelihood of protracted and costly litigation and to the risk of losing the benefits provided to the Minor under the Will, the Minor’s estate is in danger of injury, loss, or waste and is in need of a representative. There is an immediate need for the appointment of a receiver for the Minor to review and evaluate the Compromise and Settlement Agreement on behalf of the Minor, and if the receiver determines that such agreement is in the best interest of the Minor, to execute and ratify the Compromise and Settlement Agreement on behalf of the Minor. Adult Child consents to the appointment of a Receiver. 10. a resident of Travis County and an attorney in good standing and licensed to practice before this Court, is a citizen and qualified voter of this State and is a suitable person to serve as receiver (the “Receiver”) for the Minor. 11. Because the Receiver will not possess or control any property or assets belonging to the Minor without further order of the Court, the Receiver’s bond should be set in the sum of $2000.00. wheew~evt FORM 13 12. The Court makes all other findings required to support the relief granted in this Order. It is, therefore, ORDERED: 1. That is appointed as Receiver for Minor pursuant to Section 885 of the Texas Probate Code; 2. That Receiver shall give bond in the amount of $2000.00, conditioned as required by law; 3. That Receiver shall not, without further order of the Court, take possession, control or custody of any property or assets belong to Minor; 4, That the Receiver shall have the following powers: (@) to review an evaluate the facts and circumstances leading up to the Compromise and Settlement Agreement; (b) to review and evaluate on behalf of Minor the terms and provisions of the Settlement Agreement and any other documents and agreements in connection with the Compromise and Settlement Agreement; (©) to execute and ratify the Compromise and Settlement Agreement on behalf of Minor; and (@) to execute, acknowledge and deliver any and all documents that may reasonably be required to effect the provisions of the Compromise and Settlement agreement; and It is further ORDERED that: 5. If the Receiver executes and ratifies the Compromise and Settlement Agreement pursuant to the preceding provisions of this Order, the provisions10. M. FORM 13 of the Compromise and Settlement Agreement shall not be binding upon Minor unless and until the Receiver’s execution and ratification of this Compromise and Settlement Agreement is approved and ratified by this Court, and such order of approval and ratification becomes final and appealable within 30 days after it is signed by the Court; all necessary expenses incurred by the Receiver in the discharge of her duties be rendered monthly and in the Receiver’s final swom account and report; that when the threatened danger has abated and Minor’s estate is no longer liable to injury, loss, or waster for want of a representative, the Receiver shall promptly file a final account and report pursuant to Texas Probate Code Section 885(e); the Receiver shall be compensated for her official services rendered in the same manner and amount as provided by the Texas Probate Code for similar services rendered by guardians of estates; that the expenses incurred by the Receiver and the compensation of the Receiver, upon allowance and approval by the Court, shall be taxed as costs; that the Clerk of the Court shall forthwith enter and record this Order upon the minutes of the Court; that the Receiver shall forthwith make her bond, submit the same to the Judge for approval, file the bond, when approved, with the Clerk of the Court, and aeswt FORM 13 12, proceed to discharge the duties and exercise the powers vested in her by this Order and by such subsequent orders as the Court shall from time to time make. JUDGE PRESIDING ‘Approved: ‘Attomey for Applicant [Signature Block] Attorney for Adult Child [Signature Block] Attomey Ad Litem for Minor [Signature Block]FORM 16 CAUSE NO. IN THE GUARDIANSHIP OF § IN PROBATE COURT § 2 § NO.___ OF § An Incapacitated Person 8 COUNTY, TEXAS APPLICATION FOR ADJUDICATION OF INCAPACITY PURSUANT TO TEXAS PROBATE CODE §883 [AND APPOINTMENT OF GUARDIAN OF THE PERSON OR FOR FINDING OF NO NECESSITY FOR GUARDIANSHIP] , Applicant in this cause, shows the Court as follows: 1 {Name of Incapacitated Spouse], (the “Incapacitated Spouse”), is an adult male/female ,__ years of age, who resides at {address and county}. Jurisdiction and venue are appropriate in this Court for the relief requested in this application because the Incapacitated Spouse resides in this, county. The Incapacitated Spouse's Social Security number is The Incapacitated Spouse's date of birth is 2. The Incapacitated Spouse is married to [name of Applicant/spouse] who resides at [address and county], Texas. 3. A necessity exists for the appointment of a guardian of the person for Incapacitated Spouse, because the Incapacitated Spouse is totally incapacitated and is unable to care for himself/herself as a reasonablly prudent person. The facts supporting the need for a guardianship are set forth in Exhibit “A” [Physician’s Certificate] and incorporated herein. Incapacitated Spouse has not been previously adjudicated incapacitated by this or any other court, 4 Guardianship of the person only is sought because Incapacitated Spouse and Applicant, the surviving spouse, own only community property of a value in excess of $____, generally described as: [generally describe property, including source of any income]. To the best of Applicant's knowledge, no person holds a power of attomey 1 ~ wee~~ FORM 16 signed by the Incapacitated Spouse. NOTE: If Ward has separate property, Applicant should request a guardianship of the estate for the separate property only. [IF NO NECESSITY FOR GUARDIANSHIP, use paragraph 5 instead of 3 and 4] 5. Incapacitated Spouse is totally incapacitated and is unable to care for himself/herself as a reasonable prudent person. The facts supporting incapacity are set forth in Exhibit “A” (Physician's Certificate] and incorporated. Incapacitated Spouse has not been previously adjudicated incapacitated by this or any other court. No necessity exists for the appointment of a guardian of the person because Applicant is the agent under a valid Medical Power of Attomey executed by [name of now Incapacitated Spouse] on the __dayof__,__[date], a copy of which is attached hereto as Exhibit "BY, There is no necessity for a guardianship of the estate because Incapacitated Spouse and Applicant, the surviving spouse, own only community property of a value in excess of $____, generally described as: [generally describe property, including source of any income]. Applicant can manage Incapacitated Spouse's interests, in such community property as Community Property Administrator. 6. The Incapacitated Spouse has [no surviving siblings] OR [has the following surviving siblings: [list names and addresses]. The Incapacitated Spouse has [no surviving parents] OR [has the following surviving parent(s) [list names and addresses]. The Incapacitated Spouse has [no children OR no surviving children] OR [has the following _ surviving children: [list names and addresses]. The following persons are also entitled to service under Texas Probate Code §633(0),(4): (list names and address of nursing home administrator, and others required to be served by the Probate Code}. 7. As aresult of Incapacitated Spouse's inability to manage his/her property and financial affairs, the community estate is suffering from lack of proper managementFORM 16 and control, which is detrimental to the entire community estate, As the competent spouse, [name of Applicant/spouse] should be decreed to have the right, as community administrator, to manage, control, and dispose of the entire community estate as the surviving partner of the marital relationship. 8. Applicant is eligible and not disqualified to serve as Guardian of the Person AND/OR Community Property Administrator. WHEREFORE, Applicant requests that citation issue as required by law to the Incapacitated Spouse and to all persons interested in the welfare of the said Incapacitated Spouse; that the Court adjudicate the Incapacitated Spouse a totally incapacitated person; find that the Applicant as the surviving spouse, is eligible and not disqualified to serve as, Guardian of the Person of the Incapacitated Spouse; that Applicant be appointed Guardian of the Person with full authority over the Incapacitated Spouse; [OR find that there is no necessity for guardianship of the person]; find that there is no necessity for a guardianship of the estate; that Applicant, as surviving spouse, be decreed to have full power to manage, contro! and dispose of the entire community estate, including the part that the Incapacitated Spouse would legally have power to manage in the absence of such incapacity; and that the Court enter other proper orders as it deems necessary. Respectfully submitted, [ATTORNEY FOR APPLICANT] [SIGNATURE BLOCK] [PRINTED NAME OF APPLICANT]ww’ State of Texas County of. SWORN AND SUBSCRIBED BEFORE ME BY on this day of and seal of [SEAL] FORM 16 [Applicant], 200_, to certify which, witness my hand , State of TexasFORM 17 CAUSE NO. IN THE GUARDIANSHIP OF § IN PROBATE COURT : NO.___ OF An Incapacitated Person ; _____ COUNTY, TEXAS ORDER ADJUDICATING INCAPACITY UNDER T.P.C. §883, DECREEING THE RIGHT OF THE SURVIVING SPOUSE TO ACT AS COMMUNITY PROPERTY ADMINISTRATOR [AND APPOINTING GUARDIAN OF THE PERSON OR FINDING NO NECESSITY FOR GUARDIANSHIP] On this day, the Court heard and considered the Application for Adjudication of Incapacity Pursuant to Texas Probate Code §883 filed by Applicant, who is also the surviving spouse of , [name of Incapacitated Spouse], the Proposed Incapacitated Spouse (“Incapacitated Spouse"). ‘The cause was tried to the Court, a jury having been waived. Applicant, the proposed Guardian/Community Property Admnistrator, was present and represented by his/her attomey, [name]. The Incapacitated Spouse was present and appeared through his/her attorney ad litem, [name]. [OR The Court accepted the waiver of the presence of the Incapacitated Spouse, who appeared by attomey ad litem but not in person]. After hearing the evidence in support of the Application, the Court finds the following by a preponderance of the evidence: 1. Citation has been issued and served as required by law; 2. The Court has jurisdiction and venue to appoint a Guardian of the Person and to adjudicate incapacity pursuant to Texas Probate Code §883. 3. That Incapacitated Spouse’s surviving spouse [name of Applicant], is the surviving partner of the marital relationship of Incapacitated Spouse and____ [surviving spouse], is not incapacitated, [is eligible and not disqualified to serve as Guardian of the Person] and can manage all of the Incapacitated Spouse's interest in community property as community administrator, wee~ wwe wee FORM 17 4, That there is a necessity for the appointment of a guardian of the person for the Incapacitated Spouse [OR That there is no necessity for the appointment of a guardian of the person for the Incapacitated Spouse because of a valid Medical Power of Attorney naming Applicant as agent] and no necessity for the appointment of a guardian of the estate because the Incapacitated Spouse has no separate estate and all of the property is community property which the surviving spouse can manage as community property administrator. The Court finds the following by clear and convincing evidence 3. The Incapacitated Spouse is a person: totally without capacity as provided by this Code to care for herself/himself and to manage the individual’s property [OR, who lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself or to manage the individual’s property]. It is in the best interest of the Incapacitated Spouse to have the Court appoint a Guardian of the Person for hinvher and a Guardian of the Person will protect the rights of the Proposed Ward, [OR, If NO guardianship of the person is sought: The rights of the Incapacitated Spouse will be protected by the adjudication of incapacity under Texas Probate Code §883, and the recognition of Applicant's authority as community property administrator]. Itis, therefore, ORDERED: [if guardianship of the person is sought]: That , surviving spouse of the Incapacitated Spouse, is appointed Guardian of the Person of [Incapacitated Spouse’s name] and is hereby granted full authority over Incapacitated Spouse’s person with all powers to act on her behalf (OR if guardianship of limited authority, list powers retained by Incapacitated Spouse and powers ceded to Guardian). That Guardian shall give surety bond in the amount of $__. That upon Guardian filing the oath as required by law and approval of his/her bond as required herein, the Clerk of the Court shall issue to Guardian Letters of Guardianship certifying that he/she is qualified as Guardian of the Person. That Guardian shall report to this Court on theFORM 17 condition of the Incapacitated Spouse every year by filing an annual report by swom affidavit not later than the 60 day after the expiration of 12 months from the date of qualification, and annually thereafter. (If NO guardianship of the person is sought]: There is no necessity for a guardianship of the person and none shall be ordered, That , surviving spouse of the Incapacitated Spouse, has the full power to manage, dispose and control of the entire community estate, including the part of the community estate that the Incapacitated Spouse legally has the power to manage in the absence of the incapacity, without an administration. SIGNED this__ day of, 200_. JUDGE PRESIDING ~ wee- wwe ~ FORM 18 NO. ESTATE OF § IN THE PROBATE COURT , § NUMBER DECEASED 8 COUNTY, TEXAS SMALL ESTATE AFFIDAVIT On the dates written below, the distributes of this estate and two disinterested witnesses personally appeared and, on their oath, did swear or affirm the following facts 1, Decedent, , died intestate on the ___ day of , 200_in County, Texas; 2, Decedent was a resident of and domiciled in ____ [county where Small Estate Affidavit filed] County, Texas, at the time of Decedent’s death [OR provide other facts supporting venue in county where Affidavit filed); 3. No administration is pending or has been granted in Decedent’s estate and none appears necessary; 4, More than 30 days have elapsed since the death of Decedent; 5. The value of the entire assets of the estate of Decedent, not including homestead and exempt property, does not exceed $50,000.00, and those assets exceed the known liabilities;FORM 18 6. The assets of Decedent's estate and their value are as follows Asset Value Status! 1 2. 3 7. The liabilities of the Decedent's estate are as follows: Creditor Amount of Liability 1 2. 3 8, The names and addresses of each of the distributes of Decedent's estate, being all of the Decedent’s heirs at law, and their fractional interest in Decedent’s estate are as follows: Name _and Address Share of Separate Share of Separate Share_of Community of Distribute Personal Property Real Property Property (if applicable) 1 2. , " To claim real property as decedent's homestead, its legal description and street address should be listed ; here, along with an affirmative assertion that it was decedent's homestead, For ttle to such homestead to ‘pass to decedent's heirs by Small Estate Affidavit, the Affidavit must show that Decedent was survived by ) his of her spouse, minor heirs, or unmarried child who lived in Decedent's homestead. If property is claimed as exempt, community, or separate property, it should be so characterized here. Remember to support characterization with facts in the Small Estate Affidavit. weewwe ME FORM 18 9. The right of the distributees to be entitled to Decedent's estate, to the extent that the assets, exclusive of homestead and exempt property, exceed the liabilities of Decedent’s estate, is shown by the following facts regarding Decedent's family history: (@ Devedent was ( ) a single person on the date of Decedent's death, or ( ) Decedent was married to at the time of death; (b) Decedent had the following children born to or adopted by Decedent during Decedent’s lifetime: (list child’s name and date of birth, if known) OR Decedent had no children by birth or adoption and did not take any children into Decedent’s home to raise as a child. (© The following children were born to or adopted by Decedent but predeceased the Decedent and left children surviving them, such deceased children of Decedent and their surviving children are as follows: () none, or (list names and birth dates of those surviving grandchildren): (@ In the event Decedent was not survived by a spouse or children or grandchildren, the following information is furnished () The Decedent was survived by both his parents (mother) and (father), or (_) Decedent was survived by only one parent, . and the following brothers and sisters, including half-brothers and half-sisters who were born to either of Decedent’s parents (ist names, with birth dates if known), or (_) Decedent was survived by no parent, but by only the following brothers and sisters, including half-siblings,FORM 18 who were bor to either of Decedent's parents (list names, with birth dates if known): and/or (_) Decedent was survived by the following nephews and nieces who were the children of a deceased brother or sister, the names of such deceased brothers and sisters being as follows (list names of deceased brother or sister, and name of surviving nephew or niece, with birth dates, if known) and/or () the Decedent was not survived by either of his parents or brothers or sisters or nieces or nephews but was survived by the individuals listed below, with Decedent’s family history with respect to such survivors also indicated below (list names, birth dates and relationship to Decedent) Wherefore, the undersigned distributees of this Estate pray that the Court approve this Small Estate Affidavit as evidence of their right to inherit the property of Decedent as described above. DISTRIBUTEES:~ wwe FORM 18 SWORN TO AND SUBSCRIBED before me by a distribute, on this the day of, » 200_, (SEAL) Notary Public, State of Texas SWORN TO AND SUBSCRIBED before me by _ a distributee, on this the day of. » 200_ (SEAL) Notary Public, State of Texas 1 am familiar with the family history of Decedent, and have no interest in Decedent’s estate under the laws of descent and distribution. I swear or affirm that the foregoing statements of fact concerning Decedent are true and correct Disinterested Witness SWORN TO AND SUBSCRIBED before me by a disinterested witness, on this the day of. . 200_. (SEAL) Notary Public, State of Texas 1 am familiar with the family history of Decedent and have no interest in Decedent’s estate under the laws of descent and distribution I swear or affirm that the foregoing statements of fact concerning Decedent are true and correct. Disinterested Witness SWORN TO AND SUBSCRIBED before me by a disinterested witness, on this the ___ day of ,200_. (SEAL) Notary Public, State of TexasNO. ESTATE OF § IN THE PROBATE COURT i 8 NUMBER ONE DECEASED § TRAVIS COUNTY, TEXAS ORDER red the Small Estate Affidavit of the distributees of On this day, the Court con: the above estate, and the Court finds that the Affidavit complies with the terms and provisions of the Texas Probate Code, that this Court has jurisdiction and venue, that this estate qualifies under the provisions of the Probate Code as a Small Estate and that the distributees are entitled to the personal property of the decedent, to the extent the assets exceed known liabilities, exclusive of homestead and exempt property. Nothing herein transfers title to real estate, except as to realty that is homestead, nor affects the disposition of property under a will or other testamentary instrument, nor does the Court make any determination as to the separate or community nature of any property. The Court further finds that one of the heirs, (name) (Social Security number) is a minor, and that his share of decedent’s property should be directly deposited into the registry of the Court, in an , interest-bearing account, according to Texas Probate Code §887. It is ORDERED BY THE court that the Affidavit is hereby APPROVED AS SET OUT ABOVE. The Affidavit shall forthwith be recorded in the records of the County Clerk, and the Clerk of this Court shall issue certified copies thereof to all persons entitled thereto. It is further ORDERED that any person or entity owing money or property to the ) estate shall pay that money or property to (name) and (name) [adult heirs] outright, anddid shall pay money or property belonging to decedent's minor heir, (name), into the registry of the Court, into an interest-bearing account for the benefit of the minor heir pursuant to Texas Probate Code §887. SIGNED this day of » 200_, JUDGE PRESIDINGFORM 19 NO. ESTATE OF § IN THE PROBATE COURT , § NUMBER ONE OF DECEASED § TRAVIS COUNTY, TEXAS ORDER On this day, the Court considered the Small Estate Affidavit of the distributes of the above estate, and the Court finds that the Affidavit complies with the terms and provisions of the Texas Probate Code, that this Court has jurisdiction and venue, that this estate qualifies under the provisions of the Probate Code as a Small Estate and that the distributees are entitled to the personal property of the decedent, to the extent the assets exceed known liabilities, exclusive of homestead and exempt property. Nothing herein transfers title to real estate, except as to realty that is homestead, nor affects the disposition of property under a will or other testamentary instrument, nor does the Court make any determination as to the separate or community nature of any property. Itis ORDERED BY THE court that the Affidavit is hereby APPROVED AS SET OUT ABOVE. The Affidavit shall forthwith be recorded in the records of the County Clerk, and the Clerk of this Court shall issue certified copies thereof to all persons entitled thereto. SIGNED this day of + 200__ JUDGE PRESIDING —wwe CAUSE NO. THE ESTATE OF § PROBATE COURT ’ ‘ NO.____ OF DECEASED 3 ___ COUNTY, TEXAS AFFIDAVIT SUPPORTING HOMESTEAD EXEMPTION BEFORE ME, THE UNDERSIGNED NOTARY PERSONALLY APPEARED, [Affiant], who on oath did depose and say as follows: [ am an adult child of the Decedent. I am over the age of 18 years, and am qualified to give testimony concerning my interest in the Decedent's property. I am familiar with the homestead property of the Decedent listed in the Small Estate Affidavit filed on + 200_. T was unmarried and living in Decedent's homestead with Decedent at the time of his/her death Further affiant sayeth not STATE OF TEXAS COUNTY OF BEFORE ME, the undersigned authority, on this day personally appeared , who is personally known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same for the purposes and considerations therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of ,20_. {SEAL} Printed Name of Notary PublicFORM 20 (CAUSE NO. ‘THE ESTATE OF § IN PROBATE COURT § 5 § No. oF § DECEASED § COUNTY, TEXAS AFFIDAVIT SUPPORTING COMMUNITY/SEPARATE PROPERTY CHARACTERIZATION OF DECEDENT'S PROPERTY BEFORE ME, THE UNDERSIGNED NOTARY PERSONALLY APPEARED, [Affiant], who on his/her oath did depose and say as follows: "Tam , {name of child or surviving spouse] ("Affiant"), who is [state relationship to the Decedent) of {name of Decedent] ("Decedent"). I am over the age of 18 years, am of sound mind, and have not been convicted of a felony within the last ten years, nor of a misdemeanor involving moral turpitude. I am qualified to give my testimony concerning my interest in 1, Tam familiar with the property of the Decedent listed in the Small Estate Affidavit filed on ____, 200_, having known Decedent as his [child/spouse] for over ____years 2. Alll of the property listed in the Small Estate Affidavit as "community property" was acquired by Decedent and his surviving spouse {insert name] during their marriage to one another, other than by gift or inheritance. 3. I have no interest in the property listed in the Small Estate Affidavit as "community property" [use only if child is the child of a decedent dying after 1993 who is also the child of the surviving spouse] ) ~weewwe FORM 20 [OR, if surviving spouse is admitting that property listed in the Agreement is separate property, substitute the following paragraph for the above paragraphs 2 and 3: 2. confirm that all of the property listed in the Small Estate Affidavit as “separate property" was the separate property of Decedent, having been acquired by Decedent before marriage, by inheritance or by gift to Decedent.] Further affiant sayeth not. ature of child/ surviving spouse] STATE OF TEXAS § § COUNTY OF § BEFORE ME, the undersigned authority, on this day personally appeared , the child/surviving spouse of (Decedent], who was personally known to me to be the person whose name is subscribed to the foregoing instrument ,and acknowledged to me that he executed the same for the purposes and considerations therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of +20. {SEAL} Printed Name of Notary Public AFTER RECORDING RETURN TO: ‘Name and address of Counsel NOTE: This form should not be used as a disclaimer or assignment of interest under Texas Probate Code §§37A, 37B. Be careful of disclaimers; carelessly used, they result in unintended consequences!!!FORM 21 CAUSE Nt THE ESTATE OF § IN PROBATE COURT 5 ; NO.____ OF DECEASED H __ COUNTY, TEXAS APPLICATION TO DETERMINE HEIRSHIP TO THE HONORABLE JUDGE OF SAID COURT. , ("Applicant") is an individual who resides at in ______ County, Texas. Applicant furnishes the following information to the Court: 1 . the Decedent, died on _ ____. Decedent died intestate. It is necessary and in the best interest of the Estate for the Court to determine who are the heirs of Decedent. [OR Decedent died leaving a will dated which was admitted to probate in (provide Cause No, Court and Estate name OR state other disposition of the will). This will created a partial intestacy and it is necessary and in the best interests of the Estate to determine the heirs of Decedent.] 2. No administration is pending upon Decedent's Estate and none appears necessary, 3. At the time Decedent's death, Decedent was a domiciliary of this County, and had a fixed place of residence here and the Decedent’s principal estate was in this County {OR state other grounds on which venue is based pursuant to Texas Probate Code §48(a).] J~ wwe FORM 21 4. Applicant claims to be the owner of part of Decedent's estate. The names, and residences of all of Decedent's heirs, the relationship of each heir to Decedent, and the true interest of the Applicant and of each of the heirs in the Estate of Decedent are as follows Names ai idences Relationship Share of Estate 5. At the time of Decedent's death, Decedent owned the following property [provide general description of all real and personal property of Decedent]}, 6. Decedent was: [provide Decedent’s complete marital history, including date of marriage, name of spouse, and if the marriage was terminated. If the marriage was terminated, state the date and place of termination, and other facts showing whether spouse has an interest in Decedent’s property] 7. Decedent had the following children: [“None,” or provide names of all children of Decedent, including children who predeceased the Decedent. For each child, provide name of other parent and state whether child was born during the marriage of Decedent and that parent, or other grounds for paternal inheritance under Texas Probate Code $42). 8. All children born to or adopted by Decedent have been listed. Each marriage of Decedent has been listed. 9. The Application does not omit any information required by Texas Probate Code §49. 10. There are no debts owed by Decedent that are not secured by liens upon real estate and there is no necessity for administration. 2FORM 21 Applicant prays that citation be issued as required by law; that an attorney ad litem be appointed to represent Decedent's living heirs whose names and whereabouts are unknown and for heirs who are suffering legal disability; that upon hearing hereof, this court determine who are Decedent’s only heirs, and their interests in Decedent’s estate, and that no necessity exists for an administration of Decedent's Estate, Respectfully submitted, Attorney for Applicants [SIGNATURE BLOCK [Add the following Affidavit and jurat for Applicant and for each heir named in the Application who will sign the Application.] STATE OF TEXAS § ) § COUNTY OF TRAVIS § z BEFORE ME, the undersigned authority, on this day personally appeared and after being duly sworn, she stated that: "Insofar as is known to me, all of the allegations of the foregoing Application are true in substance and in fact and that no material fact or circumstance has, within my knowledge, been omitted from the Application." Name of Applicant/Heir Subscribed and sworn to before me, by . Applicant/Heir, on this the day of, , 200_, to certify which witness my hand and seal of office. (Seal) Notary Public - State of Texas d J 3 aonwwe FORM 22 CAUSE THE ESTATE OF § IN PROBATE COURT § : § NO.___ OF § DECEASED § COUNTY, TEXAS PROOF OF DEATH AND OTHER FACTS [HEIRSHIP] On this day ““Affiant") personally appeared in open court and Ps after being duly sworn stated the following: 1 ("Decedent") died on » in , County, Texas, at the age of, years, Decedent died intestate [OR Decedent died leaving a will dated which was admitted to probate in (provide Cause No., Court and Estate name OR state other disposition of the will). This will created a partial intestacy and it is necessary and in the best interests of the Estate to determine the heirs of Decedent.] 2, Decedent was domiciled and had a fixed place of residence in this county at the date of death. [OR State other grounds for venue under Texas Probate Code §48(a).] 3. Decedent was: [provide Decedent’s complete marital history, including date of marriage, name of spouse, and if the marriage was terminated. If the marriage was terminated, state the date and place of termination, and other facts showing whether spouse has an interest in Decedent's property.]FORM 22 4, Decedent had the following children: [“None” or provide names of all children of Decedent, including children who predeceased the Decedent. State the name of the other parent of each child.) 5. Thave personal and full knowledge of the financial affairs of Decedent, There are no unpaid debts owing by the estate of Decedent, excluding debts secured by liens on real estate, There is no necessity for the administration of this Estate. Signed this day of » 200. , Affiant SUBSCRIBED AND SWORN (AFFIRMED) before me by. (Affiant) on this the day of , 200_, to certify which witness my hand and official seal HE PROBATE COURT OF COUNTY, TEXAS By: Deputy~ wwe FORM 23 CAUSE NO. THE ESTATE OF § IN PROBATE COURT § , § NO.____ OF § DECEASED § COUNTY, TEXAS STATEMENT OF FACTS On this day, ("Afiant") personally appeared in open Court and, after being duly sworn, stated that: 1, Tam well acquainted with the family history of , Decedent, who died in County, Texas on [date]. To the best of my knowledge, Decedent died intestate [OR state other circumstances requiring a determination of heirship] 2. Decedent was: [provide Decedent’s complete marital history, including date of marriage, name of spouse, and if the marriage was terminated. If the marriage was terminated, state the date and place of termination, and other facts showing whether spouse has an interest in Decedent’s property.] 3. Decedent had the following children: [‘None” or provide names of all children of Decedent, including children who predeceased the Decedent. State the name of the other parent of each child and whether that child was born during the marriage of the Decedent and the other parent, or other grounds for paternal inheritance under Texas Probate Code $42(0).] 4, [IF DECEDENT WAS NOT SURVIVED BY DESCENDANTS]FORM 23 Decedent's mother was: [Insert name, birth date, current address or date of death of mother, as applicable.] 5. [IF DECEDENT WAS NOT SURVIVED BY DESCENDANTS]: Decedent's father was: [Insert name, birth date, current address or date of death of father, as applicable.] 6. [IF DECEDENT WAS NOT SURVIVED BY DESCENDANTS OR BY BOTH MOTHER AND FATHER]: Decedent had the following siblings: [Insert name, birth date, current address or date of death of each sibling, and parents of each sibling, and descendants of each deceased sibling, as applicable, or state "NONE" ]] 7. All children born to or adopted by Decedent have been listed, Each marriage of Decedent has been listed. 8, Each of Decedent's heirs survived the Decedent 9, Thave no interest in the estate of Decedent. SIGNED this day of » 200_ , Affiant SUBSCRIBED AND SWORN TO BEFORE ME by Affiant in open Court on this day of 200_, to certify which witness my hand and seal of office. Clerk of the Probate Court of County, Texas By: Deputy ~wee~ wwe FORM 24 CAUSE NO. THE ESTATE OF § IN PROBATE COURT § , § NO.____ OF § DECEASED § COUNTY, TEXAS DETERMINE HEIRSHIP On this day came to be heard the sworn Application to Determine Heirship of the Estate . Deceased, filed by [Applicant). The Court makes the following findings of fact and conclusions of law: 1, All parties interested in the Estate of Decedent have entered their appearance, have been duly and legally served with citation as required by law, and/or have waived citation and notice. 2. The Court-appointed attorney ad litem appeared and answered as the legal representative of unknown heirs and heirs under legal disability 3. This Court has jurisdiction of the subject matter and all persons and all parties. 4, The evidence presented and admitted fully and satisfactorily proves each and every issue presented to the Court. 5, Decedent died intestate on [date], in County, Texas. 6. The heirship of Decedent has been fully and satisfactorily proved as well as the identity and the nature of Decedent’s property and the interest and share of each of the heirs therein. ‘The Court finds and it is ORDERED that the name and addresses of the heirs of Decedent and their respective shares and interests in Decedent's real and personal property are as follows: [provide fractions, not percentages] Name and Address. Share of Separate © Share of Separate Share of Community of Heir Personal Property Real Property Property (if applicable) is 2.FORM 24 The Court finds that there are no debts owed by Decedent that are not secured by liens upon real estate and ORDERS that there is no necessity for administration. The Court finds that was appointed as the attorney ad litem to represent the interests of Decedent’s heirs whose names and/or whereabouts are unknown and heirs who are suffering legal disability, and ORDERS that the attorney ad litem be awarded a reasonable and necessary attorney's fee of $ to be taxed as costs, and that the attorney ad litem is hereby discharged SIGNED day of , 200_, JUDGE PRESIDING Approved: Attorney for Heirs [SIGNATURE BLOCK] Attorney ad Litem [SIGNATURE BLOCK] ~ weewv FORM 25 FAMILY SETTLEMENT AGREEMENT Parties The parties to this Family Settlement Agreement are *Names of Parties* (sometimes hereinafter referred to as" *"); Recitals WHEREAS the Children's mother, *Dec’d Name*, died on *Date*, and WHEREAS *Dec’d Name* left a will dated *Will Date*, appointing *Named Executor* as Independent Executor of her estate, and her prior will dated *Date*, ‘appointed *Will Opponent Name*, and the wills’ dispositive schemes are different, and WHEREAS, the parties have disagreed about the validity of the *Will Date* will, and the handling of the assets of Mrs, */Dec'd Name*’s estate, including the benefits payable under a life insurance policy with *Life Ins.* company, which was paid for during the marriage of the Mr. and Mrs. *Will Opponent Name*; and about the marital property determination and characterization of the assets and debts of the estate, including liens affixed against the homestead property and personal property which might have been used to satisfy the family allowance authorized under the Probate Code; and WHEREAS, the solvency of the estate appears doubtful, given the exemption of the homestead, and the family allowances which take precedence over the debts of the estate, and litigation would be inefficient to resolve such issues; and. WHEREAS the parties believe and agree that it is in the best interests of their mother’s estate for *Named Executor* to serve as Independent Executor, and for the + Will Date* will to be probated; and WHEREAS the Children believe and agree that it is in the best interests of their mother’s estate and of the beneficiaries for the Independent Executor to set aside the homestead of *Dec’d Name* at *Home description*, in *City*, Texas to the surviving spouse of *Dec'd Name*, *Will Opponent Name*, in full satisfaction of the all claims of *Will Opponent Name* against said estate, including the homestead survivor's probate homestead, the family allowance, allowance in lieu of exempt property and the community ‘Named of Dec'a® FAMILY SETTLEMENT AGREEMENT PAGE 1FORM 25 reimbursement claims, and in satisfaction of the debts owing against the property by *Will Opponent Name*; and WHEREAS, *Will Opponent Name* asserts a claim against the remaining parties concerning his personal property claims and post-death homestead payment claims against them and against the estate, and the remaining parties wish to retain the personal property and discharge any obligation for post-death homestead payment claims, and WHEREAS the Life Ins. Co. policy is subject to claims of the *Children, *Will Opponent Name* and Life Ins, Co, ; and WHEREAS, the * Children, * and *Named Executor* affirmatively represent that they have not acted or contributed, individually or collectively, to any action which would have the effect of placing any lien, claim or encumbrance of any type on the homestead property from and after *Relevant Date*; and, WHEREAS the parties desire to resolve all of such claims, cross-claims and exemptions allowances, duties and obligations, as well as the homestead issues, in order to reach a fair and equitable distribution of the estate assets, debts and life insurance claim among them, and WHEREAS the parties desire to resolve any and all disputes among them concerning the administration and distribution of their mother's estate. NOW THEREFORE, BE IT KNOWN BY THESE PRESENTS, that the 's aforementioned, intend and execute this undersigned do, in reliance on these pre Family Settlement Agreement to resolve all potential and actual claims by any of them against the estate of *Dec’d Name*, and one another and hereby agree as follows 1. *Named Executor, will serve as sole Independent Executor of the Estate of *Deo'd Name*, without bond, subject to qualification by the court, 2. The assets of *Dec’d Name*’s personal property have been divided among the * Children* equally according to their earlier determination of same by agreement; 3. *Will Opponent Name* shall file all documents necessary and proper to relinquish his claims to the life insurance proceeds paid into the registry of the Probate Named of Dec'd* FAMILY SETTLEMENT AGREEMENT PAGE? ~ whi~ wee ~~ FORM 25 Clerk by Life Ins. Co. in Cause No.*, and these proceeds, together with any liabilities against them shall belong to the * Children* and shall be divided among them as follows: a. The interest of * b, The interest of * .. « The interest of *... 4, The Independent Executor shall convey by execution of a Special Warranty Deed, in the form attached as Exhibit __, conveying all the right, title and interest of *Dec’d Name*’s estate in the homestead at *Home Description* ("Property") to *Will Opponent Name*, the surviving spouse, and discharge all claims of the surviving spouse for his homestead rights under the Probate Code, and for his one-half interest in the community property of the estate, and his reimbursement claims for payment of community property against the assets of the estate which are separate property, including the life insurance policy and its proceeds; and the * Children* agree to execute and join in this conveyance to convey all rights they may have in such property; and *Will Opponent ‘Namet shall take all steps necessary to expressly assume such liability as may be secured by any lien against such property which was incurred by either *Dec’d Name* or by himself or by them jointly; and hereby agrees to indemnify the *Children* and the Independent Executor against such liabilities; and the Independent Executor and the *Children* agree to execute all necessary documents to permit *Will Opponent Name* to assume such liabilities; and 5, *Named Executor*, and the *Children* hereby indemnify *Will Opponent Name* against all liabilities of the estate of *Dec’d Name* except those debts or liabilities which were incurred by *Will Opponent Name* himself and will defend him from all of such liabilities; and include in their agreement their indemnity and agreement to use the first proceeds of the policy payment into the registry of the court to discharge and satisfy any claims of *Life Ins.* Co. from the proceeds and/ or from their own resources and without claim for contribution against *Will Opponent Name* and to indemnify him from any claims of *Life Ins.* Co. against him or against such proceeds for any reason; ‘Named of Dee'd* FAMILY SETTLEMENT AGREEMENT PAGESFORM 25 6. The Independent Executor shall set aside to *Will Opponent Name* as his sole and separate property any interest that the estate has in the following assets: a, The personal property, improvements, fixtures, landscaping or any other property currently in the possession of *Will Opponent Name* or affixed or located at *Home Description*; and b, The * vehicle, VIN . which is currently in his possession; and c. The stock brokerage account at brokerage, having a current value of, . and bearing the account number 7. To the extent this agreement is performed by *Will Opponent Name*, the *Children* and *Named Executor*, hereby waive and release all claims held by any of them against *Will Opponent Name* for any and all matters including but not limited to claims or causes of action that were filed or could have been filed against him in connection with or relating to the probate, collection of assets and claims held by the Estate of *Dec’d Name*, claims that *Dec’d Name* may have had or could have asserted against *Will Opponent Name*, if any, the claims or causes of action that were filed or could have been filed against him in connection with or relating to the lawsuit filed by *Life Ins. Co, under Cause No.*, in connection with the life insurance policy number * on the life of *Dec’d Name*; and 8, To the extent this agreement is performed by the *Children* and *Named Executor*, *Will Opponent Name* hereby waives and releases all claims held by him against the * Children and *Named Executor* for any and all matters including but not limited to claims or causes of action that were filed or could have been filed against any of them in connection with or relating to the handling of the homestead and personal property by them after the death of *Dec’d Name*, the probate, collection of assets and claims owed to the Estate of *Dec’d Name*, the claims or causes of action that were filed or could have been filed against them or any of them in connection with or relating to the proceeds of the insurance or relating to the lawsuit filed by "Insurance Co.* under Cause No. *, all in connection with the life insurance policy number * on the life of *Dec’d ‘Name*; and the parties further agree that *Will Opponent Name* and *Named Executor* ‘Named of Dec'd® FAMILY SETTLEMENT AGREEMENT PAGES we.- wee FORM 25 will cooperate to file a joint final tax return for the year 200_for *Will Opponent Name* and *Dec’d Name* and that each will pay that portion of the tax which is derived by applying to the tax the proportion that the relative income of each party to the marriage bears to the whole of such adjusted gross income. *Will Opponent Name* SWORN TO AND SUBSCRIBED BEFORE ME, the undersigned authority, *Will Opponent Name* did personally appear on this day of 200*. Notary Public--State of Texas [SEAL] *Named Executor* SWORN TO AND SUBSCRIBED BEFORE ME, the undersigned authority, Frank *Named Executor*, did personally appear on this day of 1999, Notary Public--State of Texas [SEAL] *(CHILD - PRINT NAME] SWORN TO AND SUBSCRIBED BEFORE ME, the undersigned authority *[Child - PRINT NAME] did personally appear on this, day of 200%. Notary Public--State of Texas 7 [SEAL] REPEAT ATTESTATIONS FOR ALL SIGNATORIES TO AGREEMENT FAMILY SETTLEMENT AGREEMENTFORM 29 MEMORANDUM OF COMMUNITY PROPERTY SURVIVORSHIP AGREEMENT Date: Grantor: [name of wife] Grantor: Iname of husband] Grantee: [name of wife] Grantee: {name of husband] This Memorandum of Community Property Survivorship Agreement is made and entered into between [name of wife] _(""Wife") and , [name of husband] ("Husband") as Grantors and Grantees. This Memorandum of Community Property Survivorship Agreement is subject to the terms, conditions, and provisions of that certain unrecorded instrument known as Community Property Survivorship Agreement, [hereinafter sometimes called “the Agreement") executed between Wife and Husband, as Grantors, and Grantees, dated , 20___, such Agreement being a revocable Agreement during the lifetimes of Grantors, according to the following terms, and created under the provisions of Texas Probate Code Sections 451 through 461 Revocation of such Agreement can occur as follows: (1) Revocation must be filed in the deed records of, County; (2) Revocation must be signed by one or the other of the two Grantors, and (3) Revocation must be {add other conditions] Such Agreement states that the following listed real property is the community property of the Grantors, and that all [OR, the below-listed] community property of either Grantor will vest in and belong to the surviving spouse, the remaining Grantor, upon the death of either Grantor: q) [legal description realty parcel number 1} @) [legal description realty parcel number 2] [repeat as necessary] Such Agreement was executed by both spouses, and is a written document executed on the day of 200__ The document reflects the agreement between the Grantors that all [OR, a designated portion] of the communityFORM 29 property of the spouses, whether then existing or to be acquired, is the property of the surviving spouse on the death of a spouse. Executed on » 20. GRANTOR 1 GRANTOR 2 STATE OF TEXAS § § COUNTY OF § BEFORE ME, the undersigned authority, on this day personally appeared [Grantor 1], one of the Grantors, known to me to be the persons whose name is subscribed to the foregoing instrument, and acknowledged to me that they executed the same for the purposes and considerations therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of ,20_. [SEAL] Notary Public Appointed in Travis STATE OF TEXAS § § COUNTYOF___ § BEFORE ME, the undersigned authority, on this day personally appeared *, the BEFORE ME, the undersigned authority, on this day personally appeared [Grantor 2], one of the Grantors, known to me to be the persons whose name is subscribed to the foregoing instrument, and acknowledged to me that they executed the same for the purposes and considerations therein expressed GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of + 20_. [SEAL] Notary Public Appointed in Travis AFTER RECORDING RETURN TO: Name and address of CounselFORM 30 Affidavit Concerning Survival of Party to Community Property Survivorship Agreement STATE OF TEXAS § COUNTY OF § AFFIDAVIT OF [insert name of affiant] BEFORE ME, THE UNDERSIGNED NOTARY PERSONALLY APPEARED, [affiant], who on his/her oath did depose and say as follows: "1 am, [insert name of surviving spouse), the surviving spouse of [insert name of deceased spouse], who is deceased. I am over the age of 18 years, am of sound mind, and have not been convicted of a felony within the last ten years, norof a misdemeanor involving moral turpitude, I am qualified to give my testimony concerning the death of my spouse and the existence and continued validity of our Community Property Survivorship Agreement, based on my personal experience with my spouse and our property during our marriage The Community Property Survivorship Agreement, a written document, was made and entered into between {insert name of surviving spouse], and [insert name of deceased spouse), on [insert date] The original of the Community Property Survivorship Agreement is kept at [insert location]. A true copy of same is filed herewith, as Exhibit ___. The document reflects the agreement between the Grantors that all [part] of the community property of the spouses, whether then existing or to be acquired, is the property of the surviving spouse on the death of a spouse. This Community Property Survivorship Agreement, executed during the marriage of my spouse and I, was a revocable agreement, according to the terms of the document, and the document was created under the provisions of and with the formalities required by Texas Probate Code Sections 451 through 461, According to the terms of the Agreement, any revocation was required to be made a matter of public record, filed in the deed records of County, but such revocation never occurred. [add as necessary ~ The Agreement was amended on , and a true copy of such amendment is attached hereto, as Exhibit. ] Such Agreement [and Amendment] state[d] that the following listed real property was the community property of my spouse and I, and the listed community property vests in and belongs to the surviving spouse, upon the death of either spouse [OR, Such ; wey.) ~wwtr FORM 30 Agreement [and Amendment] state{d] that all of the community property of either spouse vests in and belong to the surviving spouse, upon the death of either spouse.} Such community property includes: 0) legal description realty parcel number 1 Q legal description realty parcel number 2 [repeat as necessary] My Spouse, . died in County, Texas, on [date], as evidenced by the Death Certificate issued by the State of Texas, which is attached as Exhibit __. 1 file this document in order to evidence the survivorship arrangement as to the community property owned by my spouse and I, including that community property stated in the Agreement, and any community property after acquired. The Agreement is efffective without an adjudication, pursuant to Texas Probate Code Section 456, and creates a perfected right of survivorship in the community property. Further affiant sayeth not. [Signature of surviving spouse] [printed name of surviving spouse] STATE OF TEXAS § § COUNTY OF § BEFORE ME, the undersigned authority, on this day personally appeared » the surviving spouse of , who was personally known fo me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and considerations therein expressed GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of .20_. {SEAL} ~~ Printed Name of Notary Public AFTER RECORDING RETURN TO: ‘Name and address of CounselFORM 31 CAUSE NO. THE ESTATE OF § IN PROBATE COURT § . § NO. OF § DECEASED § COUNTY, TEXAS APPLICATION FOR ADJUDICATION OF COMMUNITY PROPERTY SUVIVORSHIP AGREEMENT PURSUANT TO TEXAS PROBATE CODE $456 TO THE HONORABLE JUDGE OF SAID COURT: . Applicant [name of surviving spouse] ("Applicant"), applies to this Court for an Order that the Community Property Survivorship Agreement (the “Agreement") executed by [name of Decedent] ("Decedent") and Applicant satisfies the requirements of Texas Probate Code §452-459. In support of this Application, Applicant states as follows: 1, Applicant, the surviving spouse of Decedent, is domiciled at [address and county], 2. Prior to death, Decedent was domiciled at [address and county], 3. Decedent died on » —__ [date], in [county of death], A copy of Decedent's death certificate is attached as Exhibit A 4, Decedent was domiciled and had his fixed place of residence in this county [OR other grounds for venue under Texas Probate Code §§6,456(4).] 5. The Decedent’s Social Security number is __ 6. The Applicant and the Decedent executed the Agreement, the original of which is attached as Exhibit B, establishing that their property listed in the Agreement waswwe community property, held by each with right of survivorship. The App! executed the Agreement with the formalities required by Texas Probate Code §452 7. The agreement was not revoked as of the time of Decedent's death. WHEREFORE, premises considered, Applicant requests that citation issue as required by law, and that after hearing, the Court find that the Agreement is valid and is effective to create a right of survivorship on behalf of Applicant in the property set forth in the Agreement Respectfully submitted, Attorney for Applicant {Signature Block] NOTE: An Application for Declaratory Judgment may be combined with this Application if there is a question as to which property is subject to the Agreement, or a question as to the community nature of property listed in the Agreement,FORM 32 CAUSE NO. THE ESTATE OF § IN PROBATE COURT § . § NO.____ OF § DECEASED § COUNTY, TEXAS ORDER ADJUDICATING COMMUNITY PROPERTY SUVIVORSHIP AGREEMENT PURSUANT TO TEXAS PROBATE CODE §456 On this the day of . 200__, came on for consideration the Application for Adjudication of the Survivorship Agreement (the "Agreement") between [name of Applicant/Surviving Spouse] ("Applicant") and , Deceased. Citation was served and returned as required by law. The Court, after having listened to the testimony of Applicant and [name], a disinterested witness in open court, and having reviewed the Agreement, is satisfied and finds as follows: 1 [Decedent] died on [date]. Applicant is the Decedent's surviving spouse. 2. This Court has jurisdiction and venue to adjudicate the validity of the Agreement 3. The Agreement was executed with the formalities required by law; 4, The Agreement was not revoked; 5. Citation has been served and returned in the manner and for the length of time as required by the Texas Probate Code. It is, therefore, ORDERED, that the Agreement attached as Exhibit B to the Application is valid. ‘This Order shall be binding upon any and all persons owing money,) FORM 32 having custody of any property, or acting as registrar or transfer agent of any evidence of interest, indebtedness, property, or right, that is subject to the provisions of the Agreement, and to persons purchasing from or otherwise dealing with the surviving spouse for payment or transfer to the surviving spouse, and the surviving spouse may enforce his or her right to such payment or transfer. The Agreement and this Order shall be deposited in the office of the County Clerk unless removed pursuant to Texas Probate Code §459. ) SIGNED this___ day of + 200_, ) JUDGE PRESIDINGFORM 33 STATE OF TEXAS eon conten COUNTY OF __ AFFIDAVIT OF [insert name of surviving spouse - affiant] BEFORE ME, the undersigned notary personally —_ appeared, . [name of surviving spouse-affiani], who on his/her oath did depose and say as follows: “Lam [name of surviving spouse-affiant], the surviving spouse of [name of Deceased}, Deceased. 1 am qualified to state the facts in this affidavit, based on my personal knowledge. I am over the age of 18 years, am of sound mind, and have not been convicted of a felony within the last ten years, nor of a misdemeanor involving moral turpitude, I have been married to . Deceased, since , the date of our marriage, We remained married until his/her death. He/She died in County, Texas, on, [date of death]. No person has qualified to serve as executor or administrator of the estate of my deceased spouse in any jurisdiction, My deceased spouse was entitled, at the time of his! her death, to current wages, or a final paycheck for wages, including unpaid sick pay or vacation pay, from the following creditor: , [name of Employer], whose business address is 1 offer this testimony by affidavit in connection with my right as surviving spouse, pursuant to Texas Probate Code Section 160, I understand that the creditor owing wages, sick pay or vacation pay to my spouse will be released from liability to the same extent as if the payment or delivery of the funds in reliance on this affidavit were made by the creditor to a personal representative of the estate of my deceased spouse, I further understand that, as to the funds I will receive from creditor by reason of creditor's reliance on the statements I make in this affidavit, I am answerable to any person having a prior right, and accountable to any personal representative who may be appointed, and that I am liable for any damage or loss to any person that arises from a payment or delivery made in reliance on the affidavit." Further affiant sayeth not [signature of surviving spouse-affiant] [printed name of surviving spouse-affiant] [address of surviving spouse-affiant] [telephone of surviving spouse-affiant] eer-“ww. FORM 33 STATE OF TEXAS COUNTY OF SUBSCRIBED AND SWORN to before me, the undersigned notary public, by the said. [name of surviving spouse-affiant], personally known to me, on this the day of. 200. {SEAL} [printed name of Notary Public]FORM 34 STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF § AFFIDAVIT OF FACTS CONCERNING THE IDENTITY OF HEIRS (This form complies with Section 52A, Texas Probate Code) Before me, the undersigned authority, on this day personally appeared and (Affiants") who, being first duly sworn upon their oath, state: 1. My name is [Affiant One}, and I live at [address], Iam personally familiar with the family and marital history of, ("Decedent"), and I have personal knowledge of the facts stated in this affidavit, I knew Decedent for years OR from __ [date] to [date]. I neither have nor claim any interest in the estate of Decedent. 2. My name is [Affiant Two}, and I live at [address], Iam personally familiar with the family and marital history of ("Decedent"), and I have personal knowledge of the facts stated in this affidavit, I knew Decedent for years OR from __ [date] to [date]. }. I neither have nor claim any interest in the estate of Decedent. a Decedent died on [date]. Decedent's place of death was [city and county of death]. At the time of Decedent's death, Decedent's residence was [name of County). 4. Decedent's marital history was as follows: [Insert marital history and, if decedent's spouse is deceased, insert date and place of spouse's death] 5. Decedent had the following children: [Insert name, birth date, name of other parent and current address of child, or date of death of child and descendants of deceased child, as applicable, for each child] 6 —_Decedent did not have or adopt any other children and did not take any other children into Decedent's home or raise any other children, except: NONE [OR insert name(s) of child). 7. [IF DECEDENT WAS NOT SURVIVED BY DESCENDANTS}; Decedent's mother was: [Insert name, birth date, current address or date of death of mother, as applicable.)wee FORM 34 87. {IF DECEDENT WAS NOT SURVIVED BY DESCENDANTS} Decedent's father was: [Insert name, birth date, current address or date of death of father, as applicable.) 9. [IF DECEDENT WAS NOT SURVIVED BY DESCENDANTS OR BY BOTH MOTHER AND FATHER]: Decedent had the following siblings: [Insert name, birth date, current address or date of death of each sibling, and parents of each sibling, and descendants of each deceased sibling, as applicable, or state "NONE".}} 10. Decedent died without leaving a written will. 11. There has been no administration of Decedent's estate. 12, Decedent left no debts that are unpaid, except: [insert list of debts, or state "NONE" 12. There are no unpaid estate or inheritance taxes, except: [insert list of unpaid taxes, or state "NONE"] 13, To the best of my knowledge, Decedent owned an interest in the following real property: [Insert list of real property in which decedent owned an interest, or state "NONE" } 15. The following were the heirs of Decedent and their fractional interests in Decedent's estate: [insert the heirs' names and their fractional shares of interest in both separate and community property, as applicable. ] 16. {INSERT ADDITIONAL INFORMATION AS APPROPRIATE, SUCH AS SIZE OF THE DECEDENT'S ESTATE. ] {Affiant One] Address SUBSCRIBED AND SWORN TO before me by __ . [Affiant One} on the __, day of, , 200_, to certify which witness my hand and seal of office. [SEAL] Notary Public,FORM 34 [Printed name: Affiant Two} Address; SUBSCRIBED AND SWORN 70 before me by [Affiant Two] on the __, day of, , 200_, to certify which witness my hand and seal of office. [SEAL] Notary Public, State of Texas PREPARED IN THE LAW OFFICES OF: [ATTORNEY SIGNATURE BLOCK] AFTER RECORDING, RETURN TO: [name and address of attorney or other interested person who will receive original Affidavit from Clerk after recording] ~ weeJ ) ) FORM 35 INFORMATION NEEDED FOR HEIRSHIP AFFIDAVIT NOTE: If any information is unknown, so state. Information about the Affiant (person who is giving the affidavit): Full Name: Complete Address: Age: Relationship to Decedent: spouse, child, sibling, . friend, neighbor, etc. cera Acquainted with Decedent from to _. ie ce Information about Decedent: Full Name: Date and Place of Birth: Date and Place of Death: ‘Address before death, and for how many years Died without leaving a will? ‘Was there any probate action ever filed with probate court? Decedent=s marital history Spouse=s full name: Spouse=s complete address: Date of Marriage Spouse=s date and place of death (if deceased): Ever divorced/remarried? List prior spouse(s) full name, complete address (if living), date of marriage, date of divorce (if applicable), date and place of death (if deceased). Decedent=s children: Full Name/ Other Parent Current Address (if living) Date of Birth Date of Death (if applicable) & Descendants Other children adopted, taken into home, or raised by Decedent:FORM 35 Full Name/ Other Parent(s) Current Address (if living) Date of Birth Date of Death (if applicable) & Descendants 6. [IF DECEDENT WAS NOT SURVIVED BY DESCENDANTS] Decedent's mother was: Full Name/ Current Address (if living) Date of Birth Date of Death (if applicable) & Descendants 7. [IF DECEDENT WAS NOT SURVIVED BY DESCENDANTS] Decedent's father was: Full Name/ Current Address (if living) Date of Birth Date of Death (if applicable) & Descendants 8. __ [IF DECEDENT WAS NOT SURVIVED BY DESCENDANTS OR BY BOTH MOTHER AND FATHER] Decedent had the following siblings: Full Name/ Parents Current Address (if living) Date of Birth Date of Death (if applicable) & Descendants 9, The following 2 persons have knowledge regarding the Decedent, the identity of Decedent's children, parents, or siblings (if any), and are not heirs of Decedent, and can serve as witnesses to the Affidavit: Full name: Complete Address: Relationship to Decedent (relative, friend, neighbor, etc.): How long acquainted with Decedent? Full name: Complete Address: Relationship to Decedent (relative, friend, neighbor, etc.) How long acquainted with Decedent?we 10. i 12. 1B 14, 15. FORM 35 Decedent left no debts that are unpaid, except: There are no unpaid estate or inheritance taxes, except Decedent owned an interest in the following real property (list both the property address and legal description, if known, for each property): The following were the heirs of Decedent (if known): The total dollar value of the Decedent=s estate (if known): Additional information (optional):FORM 36 CAUSE NO. THE ESTATE OF § IN PROBATE COURT . ‘ § NO.___ OF DECEASED i __ COUNTY, TEXAS APPLICATION FOR ORDER FIXING FAMILY ALLOWANCE, FOR ORDER SETTING ASIDE EXEMPT PROPERTY, FOR ALLOWANCE IN LIEU OF EXEMPT PROPERTY, AND FOR ORDER OF NO ADMINISTRATION TO THE HONORABLE JUDGE OF SAID COURT: , surviving spouse of the Deceased, furnishes the following information to the Court: 1 ‘State who the Deceased was, the residence of the Deceased as of the date of death, and county, state and the date of death. 2. State that the Deceased was survived by a spouse, his or her name and address, 3. State the marriage date of the Deceased and the surviving spouse. 4. State whether Deceased died testate or intestate. 5. State whether the Deceased's will has been probated or offered for probate, and/ or whether the heirs have been declared or a declaration of heirship of the Deceased is sought with this application. 6. State whether or not the surviving spouse is the parent of all surviving minor children of the Deceased, and the names and addresses of each minor children, 7. State whether or not the Deceased was the parent of any surviving minor children, the name of the guardian or guardians of each 8. State that the Class One debts of the Deceased, namely funeral and burial expenses and expenses of last illness not in excess of $15,000.00 have been paid, or assets or funds have already been set aside, delivered or assigned for the payment of same.) ) , FORM 36 9. State that no Inventory, Appraisement and List of Claims of the Deceased’s estate has been filed. 10, State that the estate consists of the following assets [LIST], and state that the values listed opposite each item are accurate so far as the Applicant knows or believes. The Applicant has stated opposite each item which items are exempt pursuant to the laws and constitution of this state, and has stated the extent of such exemption as to each asset: Type Description Value Exemption of Asset of Asset of Asset Amount of Asset 1. Homestead 2. Cash 3. Furnishings 4, Automobiles 5. Provisions 6, Farm/Ranch Vehicles, Implements 7. Tools or trade 8. Apparel 9. Jewelry 10. Firearms 11, Athletic equipment 12. Animals and forage 13. Retirement Plan 14, Current Wages 15, Health Aids 11, The value of the entire assets of Deceesed’s estate, not including (CHOOSE] the homestead of the Deceased and Deceased’s exempt property, as set forth by law in the Texas Property Code, Chapter 42, fand/or) an amount of cash sufficient to serve as an allowance in lieu of exempt property, does not exceed the amount to which the surviving spouse and minor children are entitled as a family allowance. The interest of the surviving spouse in each of the above listed assets by reason of spouses's community one-half interest in same is not included in the value given above. Each item of separate property of the Deceased is so identified above, and all other property was the community property