Rosharon, TX Estate Planning Law Firms & Lawyers

I am assuming there is no will. Without a will and with no surviving spouse, the estate is divided equally among the kids. However, if the house was deeded lawfully before death then it is NOT part of the estate since it was not in the name of the deceased at death. To challenge the transfer that was made before death you will have to prove fraud or breach of fiduciary duty (if the person was guardian or attorney in fact). It will be an expensive undertaking (I would be surprised if it was less than $20,000) so the value of the estate will have to be big enough to cover the costs or you won't have much luck getting an attorney. I always tell folks to wait until they are through their grief before they make a decision on something like this.

It's not automatic. To set the probate process in motion, someone (e.g. the executor in the will or another family member) has to petition the court to be appointed. Normally the person who wants to file the petition will hire a probate attorney to represent them. The question of where the probate estate should be opened is an issue of fact. You mentioned that he was temporarily living in another state. Probate should be opened in the state where the decedent last had his permanent residence. So for example, if I live in Illinois, but happen to die while on vacation on Florida, my estate should be in Illinois even though I died in Florida. It's a little trickier if you're father was actually stayed in another state for a period of months, or years. It's really a question of fact and should come back to where he intended to live on a permanent basis. But this issue can be the subject of dispute at times, in part because state inheritances laws can differ.

Usually Wills are lodged with the court. I would start my investigation by checking to see if the Will has been lodged with the Probate Court. This information is only intended to give general information in response to an inquiry. It does not establish an attorney client relationship. This response is only based upon the limited facts presented and is merely intended to assist you in determining if you should contact an attorney to provide you with legal advice.