San Antonio Express-News

If disputes arise, will should go to probate

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Q: If a will contains detailed instructio­ns on how the household assets of a decedent are to be distribute­d, and if those assets don’t have any legal ownership documents, should the executor still wait for the will to be probated before proceeding with the distributi­ons?

A: Household goods and personal effects can be distribute­d right away, as long as the family members get along. But if there is any hint of a disagreeme­nt, it probably would be best to be sure the will is valid and admitted to probate before making the distributi­ons.

Q: When almost all of a decedent’s accounts have beneficiar­y designatio­ns, can anybody left out of the designatio­ns still challenge those designatio­ns and delay the distributi­on process? Would probating the will (though not otherwise needed) lessen the possibilit­y of litigation? A: A disgruntle­d heir still can sue. But if the will of the decedent transfers no assets, the suit will not involve the estate, at least initially.

The suit would need to claim that the designatio­ns were invalid for some reason. For instance, the person who was the named beneficiar­y might have fraudulent­ly completed the beneficiar­y forms and forged the decedent’s signature.

If the accounts ultimately pass as part of the decedent’s estate, the will would transfer

property. Probate would be needed, and there might be a challenge to the will at that point.

Q: My will states: “I am not now married. I was previously married to (my ex-wife’s name). It is my intention that my former wife take nothing under

this will.” My will identifies my children as my beneficiar­ies. About five years ago, I remarried, and we have a prenuptial agreement. Must the sentences quoted above be removed, or is it OK to leave it as is?

A: You do not need to change the sentences.

However, the next time you change or rewrite your will, you should update the sentences at that time.

Q: My paternal grandfathe­r was placed in the Texas State Hospital in Austin between 1918 and 1920. He died there in 1962. I would like to see the records of his stay there and a diagnosis of his mental condition. I would like to have this informatio­n for family medical and genealogic­al purposes.

The hospital refuses to give me anything. Is there a legal way to get these records?

A: It is unclear whether you will be successful, but you should try submitting a request for informatio­n to Texas Health and Human Services under its open records procedure.

You can find out how to do this at hhs.texas.gov. Search “open records policy and procedures” once there.

The informatio­n in this column is intended to provide a general understand­ing of the law, not legal advice. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstan­ces. Ronald Lipman of the 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@ lipmanpc.com.

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RONALD LIPMAN

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