COVID-19 and Family Law
As COVID-19 (commonly referred to as the new “Coronavirus”) has continued to spread, businesses, schools, and even the courts are taking precautions to mitigate the effects of the disease. Right now, most businesses and schools are employing a policy of Social Distancing. The Center for Disease Control is recommending that citizens avoid unnecessary in-person contact. Obviously, this will create some challenges for conducting mediations, depositions and client meetings.
As of March 13, courts throughout the state of Texas are closing their contested dockets absent an emergency situation. If you’re in the middle of a family law case, this can be extremely jarring. Don’t panic! You have options, and we’re here to help you navigate these changes. If you have a non-emergency hearing in March, that hearing is cancelled. Due to the uncertainty of the situation, we are unable to to determine dates for rescheduling.
The best thing you can do right now is work on settlement. Try to work on a “band-aid” agreement for temporary orders regarding child custody while your case is pending. If it’s agreed on, no court hearing is necessary. You can also try to go through a mediation. Mediation is a necessary step before a final hearing in all Texas family law cases. The goal is to resolve every issue, though it’s okay if you walk out only agreeing on some. We offer remote mediation services and online booking, so no travel is necessary.
The State Bar of Texas has also issued the following orders, listed below:
· The first order empowers Texas courts to modify or suspend certain deadlines and procedures, allow parties to participate remotely in proceedings, and take other reasonable steps to avoid exposing court proceedings to the threat of coronavirus.
· The second order applies to and clarifies possession schedules in Suits Affecting the Parent-Child Relationship.
· The third order amended the original order to establish court proceedings that may be conducted away from the court’s usual location with reasonable notice and access to the participants and the public. The change omits reference to the county-venue limitation in the original order.
· The fourth order supplemented the three previous orders, addressing hearings, trials, and deadlines for residential-property evictions.
· The Office of Court Administration has released updated guidance on court procedures for the coronavirus. You can read the guidance here.
If you have questions about what to do in your particular case, give us a call. We’ll help you navigate settlement to make the most out of this process.
COVID-19 and Child Custody
*This blog is being constantly updated with the most recent and available information, but please call and speak to an attorney for help prior to making any decisions due to the constantly changing legal landscape during the Covid-19 (coronavirus) Pandemic.
During the coronavirus pandemic, families everywhere are asking “How long do I keep my kid?” and “What if the other parent doesn’t return our child?” Courts and attorneys have worked to come up with solutions and answers as the situation evolves.
UPDATE: 3/25/2020
On the evening of March 24, 2020 the Texas Supreme Court issued its seventh emergency order. This order makes it clear that in Texas, exercising possession and access of your child is an essential activity, as is the travel for any exchanges of the child. Austin’s Stay Home — Work Safe Order does not give a parent the right to fail to surrender or to fail to return a child pursuant to an underlying custody order. Follow your child custody orders as written. If the other party fails to comply, be sure to follow the advice of your attorney and document each instance in which you are denied possession and access of your child. If you do not have an attorney, please contact our office if you need legal assistance.
UPDATE: 3/24/2020
On March 24, 2020 a Shelter In Place order has been issued for Travis County (Austin, Round Rock, Pflugerville, Texas etc.) and Williamson County (Austin, Cedar Park, Leander, Georgetown, Liberty Hill, Pflugerville, Hutto, Texas etc.) which goes into effect at 11:59 p.m.
Exchanges of children per a court ordered custody agreement is considered essential travel. Governments are asking parents to try and come to other agreements that minimize travel, but that’s not always possible for every co-parent. As it stands, if you and members of your family are not positive for COVID-19, there is nothing about a Shelter In Place order that will change the way you handle your child custody schedule. Continue to follow your order exactly as it’s written. If the other party fails to comply, be sure to follow the advice of your attorney and document each instance in which you are denied possession and access of your child.
However, if you, your child, your child’s other parent, or a member of either of your individual households are positive for COVID-19 (coronavirus), or have COVID-19 symptoms, please contact your family law attorney or our office to discuss what this means for your child custody issues.
UPDATE: 3/23/2020
Dallas County has recently issued a Shelter In Place Order. The order issued in Dallas County is similar to state-wide orders issued by California,Illinois, and Ohio.
UPDATE: 3/18/2020
During the coronavirus pandemic, families everywhere are asking “How long do I keep my kid?” and “What if the other parent doesn’t return our child?” Courts and attorneys have worked to come up with solutions and answers as the situation evolves. On March 17, The Supreme Court of Texas issued an Emergency Order detailing how the COVID-19 outbreak will affect possession schedules. All courts in Texas must follow the Supreme Court’s order. All cancelled school days are being treated as simply that – these are not holidays, vacation days, or in-service days. Parents are expected to follow the official school calendar and continue their exchanges as normal during the school year. Check your court order and follow it closely. For example, if you are required to return the child from spring vacation to the other parent at 6:00 p.m. at their residence the Sunday before school resumes, then you would return the child on the Sunday prior to when school would have resumed after spring break according to the school calendar – whether classes are cancelled or not. If your order requires you to return the child to school, then you would exchange the child with the other parent at the place designated in your order for non-school exchanges. Almost all possession and access orders include exchange terms for when exchanges at school are not possible. This information can often be found in the “General Terms and Conditions” section of the order, towards the end of the possession and access schedule. If you have questions, be sure to contact your attorney. There have already been issues in counties all over Texas regarding parents failing to return the child after spring break or failing to surrender the child for spring break. These incidents are being taken extremely seriously by judges. Willingly refusing to return or surrender the child in accordance with your possession order will be treated as contempt of court. You will likely face one, more, or all of the following consequences: be jailed, be put on probation, be forced to pay a substantial fine, be forced to pay the other parent’s attorneys fees. Many parents have already faced these consequences. Judges are issuing writs of habeas corpus and writs of attachment in such cases as applicable. A writ of habeas corpus is a legal tool that removes a child from one parent’s custody when they are in unlawful possession of the child – i.e. refusing to follow the possession order. A writ of attachment does something similar, except the Court will issue this particular writ when there is an element of possible immediate harm to the child. Of course, none of this is to say that new agreements or arrangements cannot be made. The Supreme Court of Texas has permitted changes of possession and access orders by agreement of the parties, if the order allows it. Check your order carefully before seeking alternate arrangements. If you are not currently represented by an attorney, you’ll want to discuss any changes in writing, preferably through a co-parenting app such as AppClose or Our Family Wizard or through email or text message. If you are represented by an attorney, consult with them about creating a Rule 11 Agreement that provides for a change of the order during the COVID-19 pandemic that suits your family if you and your co-parent are in agreement or need help coming to an agreement.
The State Bar of Texas has also issued the following orders, listed below:
· The first order empowers Texas courts to modify or suspend certain deadlines and procedures, allow parties to participate remotely in proceedings, and take other reasonable steps to avoid exposing court proceedings to the threat of coronavirus.
· The second order applies to and clarifies possession schedules in Suits Affecting the Parent-Child Relationship.
· The third order amended the original order to establish court proceedings that may be conducted away from the court’s usual location with reasonable notice and access to the participants and the public. The change omits reference to the county-venue limitation in the original order.
· The fourth order supplemented the three previous orders, addressing hearings, trials, and deadlines for residential-property evictions.
· The Office of Court Administration has released updated guidance on court procedures for the coronavirus. You can read the guidance here.
· The seventh order makes it clear that parents are required to continue following their custody orders during any Shelter in Place orders anywhere in the State of Texas. Exercising possession and access is an essential activity under ALL Shelter-In-Place orders in the state of Texas as is the travel required to exchange the child with the other parent.
The goal for all families is to keep them safe and stable during these uncertain times. At any time, the rules of the game may change, and this very post may be changed to reflect that. Make sure to contact an attorney like us to obtain real time help. Keep following your possession and access order as it’s written, but don’t hesitate to contact an attorney for legal advice if you’re unsure about what to do. We’re here for you.
Shelter in Place and Child Custody
More and more states and counties are issuing “Shelter In Place” orders to mitigate the spread of COVID-19 (or the new strain coronavirus). While such orders don’t require you to never leave your home, they do put some restraints on your activities. These orders are designed to prevent all unnecessary travel and activity.
A major question for many families now is: “How does Shelter In Place affect my child custody order?”
UPDATE: 3/25/2020
On the evening of March 24, 2020 the Texas Supreme Court issued its seventh emergency order. This order makes it clear that in Texas, exercising possession and access of your child is an essential activity, as is the travel for any exchanges of the child. Austin’s Stay Home — Work Safe Order does not give a parent the right to fail to surrender or to fail to return a child pursuant to an underlying custody order. Follow your child custody orders as written. If the other party fails to comply, be sure to follow the advice of your attorney and document each instance in which you are denied possession and access of your child. If you do not have an attorney, please contact our office if you need legal assistance.
UPDATE: 3/24/2020
March 24, 2020 a Shelter In Place order has been issued for Travis and Williamson Counties.
Exchanges of children per a court ordered custody agreement is considered essential travel. Governments are asking parents to try and come to other agreements that minimize travel, but that’s not always possible for every co-parent. As it stands, unless someone in your family is positive for COVID-19 (coronavirus), there is nothing about a Shelter In Place order that will change the way you handle your child custody schedule. Continue to follow your order exactly as it’s written. If the other party fails to comply, be sure to follow the advice of your attorney and document each instance in which you are denied possession and access of your child.
However, if you, your child, your child’s other parent, or a member of either of your individual households are positive for COVID-19 (coronavirus), or have COVID-19 symptoms, please contact your family law attorney or our office to discuss what this means for your child custody issues.
UPDATE: 3/23/2020
Dallas County has recently issued a Shelter In Place Order. The order issued in Dallas County is similar to state-wide orders issued by California,Illinois, and Ohio.
Dallas County has issued an elaborating statement regarding possession and access, available here. While the court is ultimately saying that current orders will remain unaffected, the statement is important because it lists factors that can determine whether a possession and access order can be modified. It’s likely that other counties will follow suit, as having some degree of flexibility during this time is critical.
The State Bar of Texas has also issued the following orders, listed below:
· The first order empowers Texas courts to modify or suspend certain deadlines and procedures, allow parties to participate remotely in proceedings, and take other reasonable steps to avoid exposing court proceedings to the threat of coronavirus.
· The second order applies to and clarifies possession schedules in Suits Affecting the Parent-Child Relationship.
· The third order amended the original order to establish court proceedings that may be conducted away from the court’s usual location with reasonable notice and access to the participants and the public. The change omits reference to the county-venue limitation in the original order.
· The fourth order supplemented the three previous orders, addressing hearings, trials, and deadlines for residential-property evictions.
· The Office of Court Administration has released updated guidance on court procedures for the coronavirus. You can read the guidance here.
Although things are uncertain, there’s no reason to panic. Our office is staying as up-to-date as possible and are here to answer your questions. The most important thing anyone can do at this time is cooperate and communicate. If you have questions, feel free to reach out via telephone at (512) 944-3329 or send an email using our contact form below.
Virtual Court Hearings
Due to the prolonged nature of the COVID-19 outbreak, courts throughout Texas are slowly moving towards virtual court hearings. As with many areas of work, everyone involved is still learning as they go. There will likely be some changes to increase efficiency and efficacy as the pandemic continues. However, courts have been successfully holding simple hearings using web programs. The Travis County Courthouse has been using the popular platform Zoom. Many businesses use this program already, and mediators have had great success using it for virtual mediation. Additionally, hearings in this courthouse are being livestreamed to Youtube. Meanwhile, the Williamson County Courthouse has been conducting virtual hearings and court appearances through Microsoft Teams. This software is similar to Zoom, and again, there have been successes in using it to conduct virtual hearings. There are still some uncertainties, and of course, it’s unlikely that a jury trial could be held virtually. However, these programs are a great way to get courts to take a look at simpler issues so you aren’t high and dry during the pandemic. If you’re interested in seeing if a virtual hearing (or virtual mediation or virtual arbitration) is right for your case, give us a call at (512) 944-3329 or fill out the contact form on our website. We can discuss the status of your case and help you make a realistic plan for moving forward.
Many parents or guardians, after finishing a divorce or a suit involving children, would like to modify the order when circumstances change for the family. These types of final orders out of Texas almost always include a geographic restriction that restricts the primary address of the children. When modification is possible, typically one year after an order has been rendered, some parents and guardians desire to change or lift the geographic restrictions within that order very quickly. For those orders with no geographic restriction, some parents or guardians even want to add one in very quickly upon learning of the other guardian or parent’s impending move.
That is an understandable request. However, as with most things in the legal field, it is a little more complicated than simply requesting the ability to move outside the designated geographic area and expecting the judge to be understanding of a new job offer, a sick family member, a new marriage, or any other circumstances that may affect the parent. This is actually one of the toughest case types in all of family law. The state of Texas has, as its first policy with respect to family law, a public policy that children should have frequent and continuing contact with both parents, and moving far away would make it very difficult to achieve that policy goal.
Initially, in a suit for modification, a parent may request a change, creation, or dissolution of geographic restrictions in temporary orders. This is often a hang up, as the courts require certain circumstances to allow for such a speedy remedy.
The requirements as stated by law for modification of a prior order in temporary orders for a change in geographic restrictions typically require a couple of things: 1) the change in geographic restrictions is in the best interest of the child; and 2) the child is presently exposed to circumstances that would significantly impair the child’s physical health or the child’s emotional development.
Both of those requirements must be met for there to be a change in geographic restrictions for a child on temporary orders. While there are other avenues that can be taken, these are by far the most common allowed by law.
When properly pleaded, this type of motion to modify an order on temporary orders will have attached an affidavit stating the reasons why the change is in the best interest of the child and how the child’s current circumstances are significantly impairing the child’s physical health or emotional development. The range of what constitutes the requirements vary. In the extreme, the child may be exposed to real and impending danger of abuse, drug use, neglect, and so forth. In the less extreme category, the child may have severe allergies to cedar that necessitate moving out of the Hill Country or Travis County quickly.
There is no fast and hard rule as to what constitutes an impairment of the child’s physical health or emotional development. However, in every case of modification of geographic restrictions in temporary orders, the argument must be made that whatever the child’s experiencing qualifies as a significant impairment of physical health or emotional development. Typically, a change in circumstances of the parent will not be sufficient alone on a temporary basis without other facts. And, above all, the change must be in the best interest of the child.
You’re going to need an attorney, one whose practice primarily focuses on family law, to help you navigate through this difficult legal request. This is a case type that our firm handles regularly. We both defend against and request these types of geographic changes on a regular basis for our clients. Please contact our office online or call 512-944-3329 for a free twenty minute consult to discuss your options.
Restraining Orders in Texas
Many individuals find themselves in fear of the one person they thought would never hurt them or their children: their current or former romantic partner. Whether you are married, former spouses, parents, or just in some type of current or ex dating relationship, a family law attorney can help you get an emergency restraining order to protect yourself, your children, and members of your household against an abusive partner or abusive ex-partner. You do not need to be married, and you do not need to have children for us to help you in the greater Austin area. Depending on the facts, you may need either a restraining order or a protective order. These are two different orders in Texas that provide different types and levels of protection.
As always, if you or members of your family or household are in immediate danger, you should call 911, then when you are safe, reach out to an attorney to help. We serve many counties in the central Texas area including Travis County, Williamson County, Hays County, Bastrop County, Bell County and more.
If you are currently residing with the individual that you want a restraining order against, and you need them to be kicked out of the residence for your safety or the safety of your household, you’ll want to call our office to discuss the possibility of a protective order instead. Please bookmark our website to see our upcoming resource on protective orders, or if you need help now, contact us online or call us at 512-944-3329.
In addition to assisting with issues of family violence, a restraining order can be used to protect you from financial abuse, controlling abuse, and your children from the substance abuse or untreated mental health issues of their other parent or guardian. A restraining order is typically not a long-term solution and will require follow up orders. If you are looking for protection that lasts at least two years, you’ll want to ask about a protective order.
A restraining order in Texas can help with the following on a temporary basis:
- Contacting, calling, or sending any kind of messages to the protected person, their family, or their business contacts.
- Going near the protected person’s workplace.
- Going near the protected person.
- Picking children up from school or daycare or making any changes to their school or daycare.
- Possession of the children or unsupervised possession of the children.
- Using any controlled substance or alcohol prior to or during possession of children.
- Emotional and verbal abuse.
- Protecting your children from another dangerous person during the other parent or guardian’s parenting time.
- Untreated Mental Health Issues
- Financial abuse and controlling abuse during the pendency of a divorce (or right at the time of you filing a divorce) such as moving and hiding funds, depleting funds or assets, turning off credit cards or cell phone service, removing health insurance benefits, and hiding or selling vehicles just to name a few types of financial or controlling abuse.
- Coming within a certain distance of residences (if the abuser does not reside there), childcare facilities, places of employment, and known locations of the protected person.
- Stalking the protected person or member of the household.
- Threatening the protected person or member of the household.
- Attacking, striking, or battering the protected person or member of the household.
- Destroying personal property of the protected person or member of the household including pets.
The above list is not exhaustive and further relief is possible. If you are seeking an emergency restraining order and need help, or if you’re on the receiving end of a restraining order and need help fighting it, please contact our office online or call us at 512-944-3329 for a free twenty minute consult. This is a case type we regularly handle.
In Texas, establishing the child’s mother is straightforward. However, establishing the parent child relationship between a father and his child is far more complicated. In the Austin area, an Attorney General Suit to Establish Paternity or Suit Affecting the Parent Child Relationship, is a common occurrence. Child support cases and child custody cases are started frequently, and it’s important to understand your rights as a man and a father.
This is a very confusing area of the law in Texas, and this blog, while a helpful overview, is not comprehensive. If you are looking for an attorney in the central Texas area to assist with either defending against a paternity claim, figuring out paternity, or establishing paternity, our office can help. This is a case type we regularly handle. Please contact us online or call our office at 512-944-3329 for a free twenty-minute consult.
Paternity is another word for determining who the legal father of a child is in Texas. The most common way to establish a man’s paternity is establishing an unrebutted presumption of the man’s paternity. There are three circumstances in which a man can be presumed to be a child’s father. The first is if a child is born during the husband and wife’s marriage. Even if the parties divorce, the man will still be presumed the father if the child is born within three hundred days.
The second circumstance is when a man marries (or attempts to marry) the child’s mother after the child’s birth and voluntarily claims paternity after the child was born. There are two ways for the father to voluntarily claim paternity, such as being named on the child’s birth certificate or promising on record to support the child as his own. While a record has historically meant a physical record, this can include any retrievable electronic medium that is “retrievable in a perceivable form.”
Lastly, a man can be presumed the father if he assumes that role. If during the first two years of the child’s life, the man resided in the household with the child and represented to others that child was his, that is sufficient to create a presumption of paternity.
Though a man can be presumed to be the child’s father, that is not to say that paternity cannot be challenged or rebutted. A challenge can be brought within four years if shown that the child is not the man’s through genetic testing or a written denial of paternity together with a written acknowledgement of paternity of another man who is willing to take that role. However, there is an exception to bringing this challenge within four years. You could bring it after four years if the Court finds the presumed father and mother did not live together during the time the child was conceived. The second is if the man had a mistaken belief the child was his because the mother lied and misrepresented the child was his. In both scenarios, a judge may still find it’s not in the best interest of the child to disprove the parent-child relationship. You need an experienced attorney to guide you through this process and argument.
Besides a father making an unrebutted presumption or otherwise making an acknowledgement of paternity, he can become an “adjudicated” father through an order of a court, adopting the child, or consenting reproduction by his spouse which resulted in a child.
All of the above options illustrate that it is not always so simple to figure out who the father is – which can have serious implications on custody, possession and access, and child support.
Once again, this is a very confusing area of the law in Texas. If you are looking for an attorney in the central Texas area to assist with either defending against a paternity claim, figuring out paternity, or establishing paternity, our office can help. This is a case type we regularly handle. Please contact us online or call our office at 512-944-3329 for a free twenty-minute consult.
It’s six pm on a Friday, and you’ve come to pick up your thirteen-year-old daughter for your week of visitation. When you walk up to your ex’s front step, you are greeted by the ex’s new spouse, who informs you that your daughter has volleyball practice, and that she doesn’t want to spend the weekend with you. “But,” you explain to the new spouse. “This is clearly a violation of my divorce decree, which entitles me to possession this weekend.”
Isn’t it illegal to violate the court order? And isn’t there a law against interfering with someone’s custody? Should I call law enforcement?
The above example, and scenarios like it, play out every weekend across Texas, and, every weekend, local law enforcement officers are forced to explain the difference between the criminal and family law justice systems. Whether you’re in Austin, Leander, Houston or Buda, the story will be the same.
The most likely response that the parent in the example above would receive from law enforcement is that the enforcement of the divorce decree or other custody order is a civil matter, and that the complaining parent will need to hire an attorney to enforce his or her rights under the decree. The officer may make an attempt to discuss the situation with the withholding parent, but the withholding parent will not be arrested on the scene unless he or she commits some criminal offense in the process.
But what about the new spouse informing you that you couldn’t take your daughter? Isn’t there a law against that? The answer is that, yes, Texas Penal Code §25.03 makes it a felony “when the person (withholding the child) knows that the person’s taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody.” It seems pretty clear that the new spouse has just committed a felony, right? Perhaps, but not until a court convicts them of it. As it stands, this section of the code, although on the books since 2005, remains woefully under-prosecuted by overloaded D.A.’s offices across the state.
While there are many parental rights groups around the state attempting to advocate and educate for stronger enforcement of Penal Code §25.03, the reality is that most police departments and sheriff’s offices in Texas train their officers and deputies to encourage custody issues to be resolved in family court with the assistance of attorneys.
At the Law Office of Brandon Bledsoe, we are sensitive to this painful reality, and we are poised to provide affordable service to potentially alienated parents. This is why we provide free twenty-minute consultations to discuss your issues and options. Please email us at service@brandonbledsoelaw.com or call us at 512-944-3329 to set up a consultation. We’re here to help you enforce your rights.
There are various types of suits within the field of family law that utilize both temporary and final orders. The distinction between the two types of orders can be confusing or hard to understand. Whether you are in a divorce, a suit for modification, or any suit affecting the relationship between a child and parent, the distinction between temporary and final orders is vitally important.
Temporary orders, by and large, are exactly that, temporary. These types of orders are rendered in a temporary orders hearing. Typically, a temporary orders hearing will be your first introduction to the courtroom. Temporary orders hearings are generally conducted before any formal discovery has been served (aka before you have the other side’s evidence) and before there has been much time to come to an agreement if an agreement is to occur.
The purpose of temporary orders is to immediately resolve glaring issues that you may face. Whether that is deciding who gets to stay in the marital home, who gets to keep the children the majority of the time, or what a person needs to do to enter the good graces of a judge. Temporary orders can be compared to a triage, where the urgency to decide immediate issues outweighs the necessity to have every piece of information available to both parties to conduct a final hearing.
Often enough, the temporary orders that result from such a proceeding will be disappointing to both spouses or parents. However, unfavorable results from a temporary orders hearing are not the end of the road. As stated above, temporary orders are temporary. Any and all issues that have been resolved by temporary orders are subject to change at a final hearing.
Unfavorable results from temporary orders hearings are common. Temporary orders are not suppose to produce perfect results for either party. They are intended to make the circumstances of the spouses or parents work until it is appropriate to decide what needs to be permanently established by the court going forward. It is not uncommon at all for both parties to be distressed by the results of a temporary order. If that occurs, try to stay positive, because the case isn’t over yet. While temporary orders do establish a precedent, you still have more bites at the apple to mediate for a different result or present your case to a different judge for further temporary orders or final orders.
Setting a hearing for final orders takes time. There are statutorily required events and procedures that need to occur before the court is willing to decide on final orders. That could be mediation, discovery, resolution of property disputes, waiting for a child to be of a certain age, or anything that the court or parties decide is necessary to have resolved prior to a final trial. In a divorce in Texas, the court will not even entertain a hearing for final orders until 60 days have passed since the filing of the suit.
Final orders are much different than temporary orders. As the name suggests, they are final. Your case is resolved, and no matters are pending with the court at that time. Your opportunity to argue that the rendered orders are inappropriate or insufficient has passed. A final trial is the full blown hearing you have likely seen on TV. All the witnesses are there, all the evidence is ready to go, and, if you have chosen to have a jury, they will also be present. A final trial is the end all be all of your case.
That does not mean you are left without options if a final hearing doesn’t go your way. However, that specific suit is now over. Future issues that may arise must be addressed separately. The law provides multiple paths towards amending a final order. Whether that be through appeal, modification, clarification, or a subsequent agreement between the parties.
At the Law Office of Brandon Bledsoe, we regularly represent clients throughout the process of temporary and final orders in the Austin, Texas and surrounding Texas area. We practice in many counties including Travis County, Hays County, Williamson County, Bell County, Bastrop County and more. We are always prepared to help you navigate through these procedures and litigate the underlying issues on your behalf. If you are currently exposed to litigation involving these types of hearing, or expect to be soon, we provide free twenty-minute consultations to discuss your issues and options. Please email us at service@brandonbledsoelaw.com or call us at 512-944-3329 to set up a consultation. We’re here to help guide you through these complicated experiences.
Wills, Estates and Probate in Texas
Losing a loved one is a challenging time. Between the grief and loss, oftentimes, the last thing on one’s mind is worrying about how to handle the debts and assets left behind. Here at the Law Office at Brandon Bledsoe, we understand this can be overwhelming. It is often the case that documents will need to be prepared or court proceedings initiated to pay these debts or transfer any property. If this is something you are experiencing, below is a general overview of some of the options available in Texas.
Probate of a Will
If someone passes away and they had a Will, their estate would be distributed to whomever they named as their beneficiaries. This is not automatic though. Rather, for a Will to be considered valid, a court proceeding must be initiated to determine if it is valid Will, and if so, naming someone as Executor. This is a process known as “probate.” The person (or entity) named as Executor under the Will has the responsibility of collecting assets, handling debts, and then distributing the estate to whoever is a beneficiary. Anyone with a copy of the Will should be sure to do so within four years, because barring limited exceptions, a Will cannot be admitted to probate more than four years after someone’s death.
Muniment of Title
If someone passed away with a Will, but there are no debts, probating a Will as Muniment of Title is a great option in some circumstances. Muniment of Title involves a court proceeding in which title to some property can be transferred into the names of those who inherit under the Will. If there are no debts, except for any mortgage on land, this is a great way of establishing ownership rights to beneficiaries under the Will. It can be used to collect bank accounts, register stock certificates, and, as it is most often used, transfer title to land. Lastly, probating a Will as Muniment of Title also allows someone to probate a Will after the four-year limit if one can show the court a good reason for failure not to bring it within four years.
Administration of an Estate
If someone did not have a Will, but there is still a necessity to collect any assets or handle any debts, an administration would need to be created in court. This is not unlike probating a Will. The major differences are that instead of inheriting under the terms of the Will, the heirs of the estate are the ones who inherit. These heirs are determined by Texas intestacy statutes. Additionally, instead of appointing an Executor, the court appoints someone as a “administrator.” An Administrator is not unlike an Executor, but instead of being named under a Will, they are appointed by the Court. An Administration will be paired with an heirship proceeding to determine who their heirs are.
Statutory Heirship Proceeding
In a statutory heirship proceeding, the court determines that someone has passed away without a Will and who inherits from their estate. This has the same effect as a Muniment of Title, in that it works to transfer ownership. The distinction is they are not inheriting under the terms of a Will but Texas rules for intestacy (rules of who inherits if there is not Will). This proceeding can be brought independently, or if paired with an Administration if there are debts that need to be handled as well.
Affidavit of Heirship
An Affidavit of Heirship is a popular method of transferring title to land, especially amongst title companies. This is not unlike a statutory heirship proceeding, except instead of having a court decide who the heirs are, one prepares an affidavit listing who the heirs are. This informal procedure can be used to transfer title to land several years after someone has passed away. These are frequently prepared by and relied on by title companies. Because of this, one should always rely on an experienced attorney to help prepare these because title companies frequently require affidavits above and beyond the requirements set forth by Texas law. This can include having witnesses familiar with the family history sign the affidavit or having all heir’s sign.
Small Estate Affidavits
In situations where an estate’s value does not exceed $75,000 and there is no Will, the heirs of someone’s estate can file a Small Estate Affidavit with the court. This is a sworn affidavit where the heirs tell the Court that they are entitled to distribution of property and there is no need to appoint an Administrator. While the estate cannot exceed $75,000 in value, this does not include homestead of the person who died and a set amount of exempt property. This is often a great option if there are bank accounts for Texas banks that need to be transferred but their nominal value does not warrant the expense of creating an administration. However, before doing a small estate affidavit, one should always check with the bank to ensure they would accept a Small Estate Affidavit. These are unique to Texas and out of state banks may not honor them. Lastly, if the person who died owned land, a small estate affidavit can only be used to transfer the homestead. IF they owned more than one piece of land, you would not be able to use a small estate affidavit.
This is a general overview of some of the options that are available in Texas to handle the estate of a loved one. If you have any questions during this difficult time, please give our office a call for a free consultation.
