No will or invalid will in Texas
October 8, 2005 3:46 PM   Subscribe

My father is probably about to die. He lives in Texas. (I'm in Colorado, and am about to go to Texas.) He is conscious but unable to communicate. I am his only heir. He said years ago that he wanted me to be the executor of his will, but I don't know if he even has a will. If he does have a will, he probably prepared it when he was married to a woman (not my mother), to whom he is no longer married. My question is what happens, or what I should do, in either case. He does not have substantial assets. I just want to make sure there's enough money to pay for the funeral and his outstanding debts.
posted by lukemeister to Law & Government (18 answers total)
If he does have a will, it's probably in a very safe place, such as a lock box in the closet, safe deposit box at his bank, or possibly with his lawyer. I wouldn't worry much about it until after you're done mourning his passing. Anything earlier tends to seem tacky and money-grubbing. Besides, if his lawyer/someone else responsible knows where it is, you'll be called upon when the time is right to be the executor. If nothing else, a half-hour chat with a Texas probate/wills attorney would be educational about how to deal with your father's last expenses and executing his estate.
posted by salsamander at 4:26 PM on October 8, 2005

Response by poster: Salsamander: Thanks very much for your advice. Unfortunately, I don't know if he has a lawyer either.
posted by lukemeister at 4:33 PM on October 8, 2005

My husband faced almost this same scenario this spring when his dad died.

First thing you do after your dad dies is find a Texas lawyer and let him take it from there. He will know what to do. State laws vary on what you have to do and having a lawyer to walk you thru it will be of immense help.

And yes, I would do this BEFORE the funeral. But I would wait till your father dies.

Oh, and I am sorry you are having to deal with this. Losing a parent is not an easy thing. You have my sincere condolences.
posted by konolia at 4:33 PM on October 8, 2005

If you truly are the only heir, and he is divorced, you should have no real problems. The divorce most likely voided any interest that his former wife may have had under the first will. Probate is a hassle, but if there are few assets and few parties it should go by simply. Don't worry about it now.
posted by MrZero at 4:48 PM on October 8, 2005

Please accept my condolences. My family went through this a few months ago; losing a loved one is never easy.
Hopefully someone else here can post more specific advice for things you might need to do to make sure his affairs are in order, but BEFORE your father passes, you might want to seek out some advice on how to deal with your father's bank accounts to pay his expenses (not just funeral expenses, but other bills that will come due after his death). I'm not sure how this works in Texas, but it's my understanding that the assets of the deceased will be frozen until the will makes it through probate. This could be a problem if you can't access the money to pay your father's bills after he passes. For instance, there may be a certain amount you can move to a special account from which you can pay the mortician, if those arrangements have not already been made. Someone at the funeral home may be able to give you further guidance on this so that you won't need to see a lawyer to deal with the will until after you have time to mourn.
Again, my condolences.
posted by Dr. Zira at 5:27 PM on October 8, 2005

I would draft a doc that says you are to be the executor, and have him sign it on video with a 3rd witness (nurse, doctor etc).

that way all is clear and open.
posted by stevejensen at 7:16 PM on October 8, 2005

I would draft a doc that says you are to be the executor, and have him sign it on video with a 3rd witness (nurse, doctor etc).

Except that he's unconsious.
posted by delmoi at 7:24 PM on October 8, 2005

Lawyer FIRST.

Just sayin'.
posted by konolia at 7:40 PM on October 8, 2005

My sympathies as well. All the practical details of this are tough.

If there is a will, someone your father is close to will hopefully know where it is. But you should probably consult a lawyer -- ask his doctor or spiritual adviser or any close friends if they know of one. A brief consultation shouldn't cost much.

If there is no will, and you are the only child, the estate will pass to you -- you might read this article by a Texas Tech professor on intestacy in Texas law for a pretty comprehensive overview. That prof's site has additional information, as well.
posted by teaperson at 7:49 PM on October 8, 2005

Response by poster: My dad is conscious, but unable to respond, except for possibly nodding slightly or squeezing my hand. I'm reluctant to spend my last hours with him reading him a legal document and trying to get him to assent, unless this will make an enormous difference.

Thank you all for your helpful and heartful replies.
posted by lukemeister at 8:09 PM on October 8, 2005

Let me use this thread to make a recommendation to those who have assets, insurance, or retirement accounts, and who have loved ones.

Make a list of all assets and accounts, with account numbers and contact persons. Include a copy of your will, trust, powers of attorney and any other important documents. Include any other information you want. Make two copies. Keep one in a safe place at home and another in a safe place at work. In each location, let someone you trust know that it is there.

It may serve someone as a road map some day. Maybe tomorrow.
posted by megatherium at 9:01 PM on October 8, 2005

If you're concerned about the funeral expenses, you might also look to see if there's a life insurance policy. If there is, and if you're the beneficiary, you can use the proceeds to pay for the funeral.

For the rest of it, you'll really need to see a lawyer in Texas.

My condolences on the situation.
posted by dilettante at 9:18 PM on October 8, 2005

My sympathies to you, your father and your family in this difficult time.

This spring, my mother died after a long illness, and after many months where my father sat beside her hospital bed daily. We all thought he looked understandably worn, but when he also developed an awful hacking cough the week after mother's funeral, I took him to his doctor, and in the following days, we discovered he had end stage non-small cell lung cancer. He passed away 5 weeks after my mother. All of this is just to say, I understand what you are going through, and hope you can benefit somewhat from what I've learned in the recent months.

In the interim between the time my mother died and my father's diagnosis, as we began the process of settling Mom's affairs, we also found that the attorney who was holding their 1999 wills had lost the originals. Seems a paralegal in the firm's employ had inadvertently discarded the files of about 40 active clients while cleaning out files in the firm's safe, and my parents were among them. So, they were quite anxious to have Dad execute another will, and even as he struggled with the awful news he was getting in those last weeks, he was genuinely desirous of getting this done. And he did. For the last several months, thanks to him, as difficult as it has been to handle this, I have at least had his clear expression of what was to be done to guide me.

The dying frequently have anxiety about their affairs. They may feel guilty if they have reached the end of life without amassing much material wealth to pass on to heirs, but even if they have, they may have anxieties about how what wealth they have will be distributed, and what their heirs may think of them as a result. The point is, rich or poor, every person has some legacy, and those who know they are dying usually have some interest in any posterity they are leaving. We help them most when we face with them the inevitable, and share our feelings honestly and with compassion, not only for them, but for all they will leave behind, and all that they will leave undone. Because everyone dies leaving some dream unlived, some things undone.

First things first, in your father's situation, and that is to be sure that, if he is able, he has a "living will," or what is now often called an advanced medical directive, that specifies, in writing, what level of medical intervention and support he wants to receive at the end. This also specifies for the hospital who will make medical decisions for him, in case he slips into a state where he can no longer make decisions for himself. The hospital and his attending physician(s) will certainly approach you about this immediately upon your arrival, if you are, indeed, his next of kin, and he is in a bad way, because there may not be much time to get this done, if it is not already in place. These are hard questions to have to face, when you are getting medical news you may not understand yourself, but it is important that you do this, and you can count on the social workers and clergy on the hospital staff to help. Even if you and your dad aren't religious, I urge you draw on clergy support at this difficult time, because of their developed expertise, and because the dying should be able, if they choose, to express some faith, even if they have not been religious before, without censure from their families. Responsible clergy with hospital affiliations will understand this, and will be respectful of the situation. If there is no clergy you or your dad wants to be involved, then lean on the social workers and nursing staff for guidance. But recognize that whatever channels of help you can get, it is better to have help at this time, than to try to "be strong."

I hope your father will have some "clear" time with you, and be able to make some connection with you that is unambiguous. Understand that medications he is getting can strongly affect this, and discuss this with the hospital staff, if you feel he is being overmedicated. Often, patients near death are given fairly high dosages of morphine and anti-anxiety drugs such as ativan to relieve visible anxiety and help them rest, but the dosage of such drugs is frequently hard to judge accurately when a person is become non-responsive. Many times, a person with little energy will actually welcome some discomfort, or be willing to tolerate some pain, to have the chance to communicate, but reducing the medication to allow this can result in the reappearance of tremors, vocalizations, and other symptoms that are distressing for you to see. But if your dad is not calling for medication, and you know he is able to do so, be guided by his expressed desires, and the advice of the nursing staff.

Treat the nursing staff consultatively. They have tons of experience, but whether (and how much) they will share with you depends on whether they think they should. You'll see the nursing staff 20x more than you will the doctor(s), and your dad's doctors will be relying on nursing observations and judgement with respect to medication management and symptom reporting, so being in sync with the nursing staff is hugely determinative to your father's care.

A very sick person with little energy appreciates honesty, directness and simplicity. If they know they have little time, they don't want to waste it, and they haven't any energy for playing games. If they have ventilator tubes, or other medical issues that impair communications, simple questions to which they can respond with hand signals or eye movements are easiest. Don't be afraid to open difficult subjects if they can't, and know that they may only be able to pay attention for a few minutes at a time, at best. So don't beat around the bush, and recognize that they may actually be grateful that you are making the effort they can't. If this effort costs you some tears, it is OK for them to see them. Wipe away your tears, and keep going, if you see that they want you to.

It's OK to ask direct questions like "Dad, do you have a will?" If so, and he can't talk, ask something like "Do you have a copy at your house (or safe deposit box, or wherever you think he'd put it)?" Ditto with a few questions about life insurance policies, etc. Just keep it simple, and direct, and make sure he understands that you are asking in order be sure you are carrying out his wishes correctly, should it come to that. It may help if you jot down your questions, and make some note of his answers, if you get them, because in an emotional time, we all think differently than we usually do. If you get the chance, do go over the conversation a second time, sometime later, just to confirm. People getting heavy medication often aren't sure that they've expressed what their wishes are. But once you've confirmed, put away your questions, and accept what answers you got. Maybe you won't get the answers you've hoped to get, but if there is no will, or it is not where he thought it was, he may not be able to help you further. He won't be the first person to die with unfinished business details.

Finally, praise your father's courage in facing his death, if you can. Most people want to die well, and know that they are, and it is damnably difficult to do so in a lot of cases. It means a lot to a dying person to know that you see them doing this difficult, inevitable thing as well as they are able, and respect their efforts. It says that you are determined to remember them as they were, but with compassion. You don't have to come to a resolution of everything between you, to come to new understandings that are more important. And as his son, you are perhaps the only person who can do this, and you may only get this one chance to do so.

Good luck to you in the coming days. Be kind to yourself, and be sure that if can help your father die as well as he can, you will come to value these difficult days as no other, hard as they are.
posted by paulsc at 5:08 AM on October 9, 2005 [1 favorite]

Since you are the only heir, maybe you can enlist a close friend (of yours or your father's) to help you with the details? This person could support you with the difficult task of notifying loved ones about his passing, getting the word out about funeral details, and perhaps--if relationships are strained-- contacting his previous wife to inquire about where he would likely keep important papers?
posted by tvgurl at 9:01 AM on October 10, 2005

paulsc, thank you. I am sorry for your loss. You have obviously learned a great deal from your experience and I'm thankful for the detail in your post. I'll probably be re-reading it a few times in the coming months.

lukemeister, I want to reinforce what paulsc has said about being direct. The anxiety about "leaving behind a mess" for your family to deal with after you die can be overwhelming. My father has come to live with us until he dies (cancer), and almost every day he has something new to tell me about the division of assets, or what medical intervention he will allow, and so on.

Be aware that others involved may be uncomfortable about your attempts to be direct with your Dad. You can see it in the comments here--that some people consider any talk of a will to be "money grubbing" or callous. You say you are the sole heir, so I am hoping that means there won't be anyone second-guessing you. The medical staff or chaplain may have some ways to help you with conflicts like these should they arise.

If I were in your situation, during one of your Dad's lucid moments, I would compliment him directly too. Your own version of "I am proud to be your son" or "I'm so glad I got to see you" will do both of you some good. And if you are still uncomfortable about will/power of attorney/medical directive questions, you can start with "what do I need to do" or "how can I help?"

You need emotional support. Do you have anyone you can talk to? My parents are divorced too, but my mother has been a godsend through all of this. My husband and in-laws have also been very supportive, which has been a great help, as my siblings are pretty-much in denial. Chaplains and social workers are usually trained counselors, too.

On a practical note, you should have several copies of the death certificate made when the time comes, as some of his debtors may accept an official copy as reason to forgive any money owed. And he may have some important papers or contact information at home or in his wallet.

Good luck. You are a good son. I am in Austin, email's in the profile, let me know if I can help with anything.
posted by whatnot at 12:27 PM on October 11, 2005

I lost my mom to cancer just short of two years ago; it’s the worst and puts a lot of things into perspective. My best to your father, mother and your family during this period. I don’t know your relationship with your father or your family, but the process of dealing with this goes on for quite some time. I am still trying to get used to not being call my mom; get ready for a journey.

I am the executor to my parents, so I had a lot to learn and still a long way to go since my dad is living.

First thing is lean on your friends and other family members. There is a LOT to do, and dividing things or moving things off your plate is a good thing to do. Focus on what has to be done in each phase – sorry to divide this into (project) phases but it’s helpful to describe. Some simple things like picking people up from the airport, mowing the lawn, etc. are incredible helpful. I think this is why people stop by with food, because cooking is overwhelming at some point, and the extra number of people coming in adds to the stress if you feel you have to take care of them.

Get a note book. Start writing stuff down; whether it is questions or knowledge that you learn. Things to do, things to work on, scheduling items, etc.

Find out any insurance number, bank number, credit card numbers, any loans, house papers, lawyers, etc. Does he have funeral insurance, if so how much? Does he have a pension or other income? And yes, the US government wants to know he has passed away. Does the hospital or any medical treatment have bills associated with it? And it goes on and on. So with all of this mentioned, you will want an extraordinary number of death certificates – I think I went through 8 of them and you’ll want one on file.

Have someone watch the house after any announcement has been made in the paper. There are people who look for houses to rob, and funerals and memorials are prime targets. You’ll have friends who will volunteer, take them up on it.

What papers do you want to have the obit appear in? Who is going to write the obit? This was a source of tension for my family.

For now, I would offer the following book:

It’s about 14 dollars and has been helpful in guiding me through some of the issues involved. When I was made executor I asked the question, so what makes a good one? There are very few resources out there, aside from the lawyers – and I wanted to be prepared when sitting with them.

Because it was hard to find, I point you to AARPs other books on this area.

I’m eligible for AARP, but they have a wealth of information on this type of thing (wills, executor, living wills and retirement.)

Again, my thoughts are with you and your family.
Feel free to e-mail directly if I can clarify anything.
posted by fluffycreature at 7:50 AM on October 12, 2005

er, I am not eligible for AARP is what I meant to say. My point, is there website is a wealth of information on a variety of topics. A lot of people don't look there because they are not "50" yet.
posted by fluffycreature at 7:52 AM on October 12, 2005

My deepest condolences. My wife and I were at her mother's bedside 24/7 during the last week of her life. We witnessed her last breath and its slow exhalation. As hard as it was, it was truly a remarkable experience and an honor to be there at that moment. We shared in her passing. I hope that your presence in your dad's final days and hours will deepen your mutual bond and instill his continuing presence in your life for years to come.
posted by Edward King at 11:17 PM on October 18, 2005

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