Nephew, niece could miss out on assets if there’s no will
The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.
Q: I have royalty interests in West Texas, both oil and gas. What vehicle do I need to use to make sure these pass to my nephew and niece? I do not have a will as my total holdings including real estate are around $100,000.
A: The vehicle you need is a will. If you die without a will, it is possible that your estate will pass to your nephew and niece, but they might also receive nothing. Whether they will inherit your estate depends on whether other relatives survive you. Plus, the probate process might be significantly more complicated and expensive if you do not have a will.
Of course, some of your assets might pass to the two of them by beneficiary designation or by rights of survivorship, but you did not mention what other types of assets you own.
You should speak with an attorney to discuss your estate planning options.
Q: My mother recently died. She is owed a tax refund of $800. The IRS says I must file Form 1310, which requires a court certificate showing that I am the appointed personal representative of her estate. Her will did not need to be probated because there was no real estate and all money passed outside the will. We have called numerous Harris County offices asking how to get a court certificate, but no one seems to know. Do you know where she can get a court certificate?
A: The problem is that you are not asking the right question. The form you need is called “Letters Testamentary,” and the way you get it is by probating your mother’s will. Probate typically costs far more than $800. Filing fees alone are several hundred dollars, and your attorney’s fees will certainly eat up the rest of the refund.
Fortunately, Part I of Form 1310 contains another option. You should check box C in Part I, and then complete Part II. Your mother had a will; no personal representative has been or will be appointed; and you will pay out the refund according to the laws of the state.
That last part means you need to read your mother’s will and see who would have received the refund. When you get the $800, you need to divide up that money among the various beneficiaries in the percentages or portions stated in your mother’s will. If you are the only beneficiary, then you can keep all the money.
Attach Form 1310 to your mother’s final return. Since you are the person claiming the refund, the check will be mailed to you.
Ronald Lipman, of Houston law firm Lipman & Associates, is board certified in estate planning and probate law by the Texas Board of Legal Specialization. Email questions to stateyourcase@lipman-pc.com