David M. Pyke, more then 20 years of Experience:
Biography:
Academic Background
Honor graduate (cum laude) of Southern Methodist University Law School
Order of the Coif
Law Review Editor
Order of Barristers
Honor graduate (magna cum laude) of Baylor University business school
Major in Accounting
Passed CPA exam on first attempt in 1983
Professional Honors and Organizations
Million Dollar Advocates Forum
Highest rating (AV) by Martindale-Hubbell
Admitted to practice before the United States Supreme Court
Texas Bar; Licensed by the Supreme Court of Texas
Member of Real Estate, Probate and Trust Law Section of the State Bar of Texas
Licensed to practice in all Texas state trial and appellate courts, including the Supreme Court of Texas
Licensed to practice in the United States District Courts for the Northern and Southern Districts of Texas
Licensed to practice before the United States Court of Appeals for the Fifth and Eighth Circuits
Fellow, Texas Bar Foundation 1998 - present
Visit Dallasprobatelaw.com
Monday, November 16, 2009
Fiduciary Claims
Trustees or executors are fiduciaries who must exercise diligence in carrying out their duties for the estate or trust. Sometimes the dispute is simple: your aren't getting your inheritance. We can help you get it! Sometimes, executors and trustees aren't doing their job and legal action is required. Sometimes, fiduciaries are looking after themselves or helping themselves to the estate's or trust's funds.
Disputes with Executors or Trustees
If you are a current beneficiary of a will or a trust, but the executor or trustee is mishandling the estate or trust, you may have legal recourse. An executor or trustee is a fiduciary held to high legal standards. The executor or trustee needs to keep you informed, protect the assets in his/her care, and act in accordance with the will or trust. An executor should not keep the estate open so he can merely collect fees or keep his favorite attorneys and accountants well fed. He should wrap up the estate and distribute its assets as quickly as possible.
A trustee should regularly report to the beneficiaries concerning the status of the trust, and the trustee should invest the trust assets for the best interests of the beneficiaries. The trustee needs to properly account for the trust so that its earnings and distributions are clear and understandable.
An executor or trustee should never enter into private dealings with the trust or estate. This is called self dealing. The trust or the estate is not a device to help them fund their own business dealings or through which to make their own investments. If they commingle their investments and funds with the estate's or trust's, they have breached their fiduciary duties.
If a trustee or executor is not properly discharging their duties or are clearly breaching their fiduciary duties, contact a competent attorney for help as soon as possible. Delay can cause you to lose your legal rights!
Texas Probate Attorney - David M. Pyke, Experience and Contact Information
Disputes with Executors or Trustees
If you are a current beneficiary of a will or a trust, but the executor or trustee is mishandling the estate or trust, you may have legal recourse. An executor or trustee is a fiduciary held to high legal standards. The executor or trustee needs to keep you informed, protect the assets in his/her care, and act in accordance with the will or trust. An executor should not keep the estate open so he can merely collect fees or keep his favorite attorneys and accountants well fed. He should wrap up the estate and distribute its assets as quickly as possible.
A trustee should regularly report to the beneficiaries concerning the status of the trust, and the trustee should invest the trust assets for the best interests of the beneficiaries. The trustee needs to properly account for the trust so that its earnings and distributions are clear and understandable.
An executor or trustee should never enter into private dealings with the trust or estate. This is called self dealing. The trust or the estate is not a device to help them fund their own business dealings or through which to make their own investments. If they commingle their investments and funds with the estate's or trust's, they have breached their fiduciary duties.
If a trustee or executor is not properly discharging their duties or are clearly breaching their fiduciary duties, contact a competent attorney for help as soon as possible. Delay can cause you to lose your legal rights!
Texas Probate Attorney - David M. Pyke, Experience and Contact Information
Will or Trust Contests
Sadly, it is not unusual for someone, sometimes even non-family members, to coerce or arrange for the execution of a will or trust for someone in an effort to steal an unfair share of the estate. Invalid wills can be set aside! Trusts can be challenged in the same way wills can be challenged. Don't allow someone's dishonesty take advantage of you.
Ground for Will/Trust Contests
A will is to express the desires of its writer, the testator, for the inheritance of his or her estate. Similarly a trust, whether created by a will or during the person's lifetime, is to be of the settlor's (the person making the trust) own free rationale will. If the will or trust does not truly reflect the settlor's or testator's desires it could have been obtained by undue influence or the testator or settlor may have been mentally incapable of making the will. These are the two major bases for challenging a will or a trust.
If you are a relative of the testator or settlor and would have inherited under a prior will, you may challenge a will submitted for probate. Even if the will has been admitted to probate, it is not too late to make a challenge. Generally, a will may be contested for up to two years after it is admitted to probate.
If a will is set aside, the estate will be distributed according to any prior will, or if there is no prior valid will, the estate will be distributed to the decedent's relatives pursuant to set statutory formulas. For example, if a decedent dies without a valid will, he had two children survive him, and no surviving spouse, the two children will equally split the estate.
Texas Probate Attorney - David M. Pyke, Experience and Contact Information
Ground for Will/Trust Contests
A will is to express the desires of its writer, the testator, for the inheritance of his or her estate. Similarly a trust, whether created by a will or during the person's lifetime, is to be of the settlor's (the person making the trust) own free rationale will. If the will or trust does not truly reflect the settlor's or testator's desires it could have been obtained by undue influence or the testator or settlor may have been mentally incapable of making the will. These are the two major bases for challenging a will or a trust.
If you are a relative of the testator or settlor and would have inherited under a prior will, you may challenge a will submitted for probate. Even if the will has been admitted to probate, it is not too late to make a challenge. Generally, a will may be contested for up to two years after it is admitted to probate.
If a will is set aside, the estate will be distributed according to any prior will, or if there is no prior valid will, the estate will be distributed to the decedent's relatives pursuant to set statutory formulas. For example, if a decedent dies without a valid will, he had two children survive him, and no surviving spouse, the two children will equally split the estate.
Texas Probate Attorney - David M. Pyke, Experience and Contact Information
Inheritance Problems
Inheritance problems can include that you don't know if you are entitled to an inheritance or you simply aren't receiving it.
Am I in the Will?
If the decedent's will is controlled by someone hostile to you, you may need legal help simply to learn if you are entitled to any inheritance. In Texas, there is no requirement for a "reading of the will," nor will the person holding the will necessarily notify you of your rights. Several options are available.
Get a copy of the will from the Court.
If the will is probated, a copy can be obtained from the court. The will should be probated in the County where the decedent resided at the time of death. Check with your County Clerk, probate section, and they will have a way to search whether a probate has been filed, and if so, you can get a copy of the will.
Demand that the person who controls the decedent's records to produce and probate the will. Hire an attorney to make the demand if necessary.
If neither of these options work, a Court order can be obtained to make the person holding the will to produce it in Court.
I'm in the will, but I haven't received my inheritance
If your demands to get your inheritance have been unanswered, you will need to hire an attorney.
What can the attorney do? An attorney's demand with the threat of a lawsuit often gets attention that your demands have not received.
If necessary, a claim can be filed in the Probate Court to force the executor of the will to make the distributions that the will requires -- i.e., to get you your inheritance.
There is no will -- how do I know if I can get anything
Are you an "heir at law?" Generally, the decedent's spouse and children inherit the decedent's estate.
If you are one of the heirs, you can open a probate and get your assets.
Texas Probate Attorney - David M. Pyke, Experience and Contact Information
Am I in the Will?
If the decedent's will is controlled by someone hostile to you, you may need legal help simply to learn if you are entitled to any inheritance. In Texas, there is no requirement for a "reading of the will," nor will the person holding the will necessarily notify you of your rights. Several options are available.
Get a copy of the will from the Court.
If the will is probated, a copy can be obtained from the court. The will should be probated in the County where the decedent resided at the time of death. Check with your County Clerk, probate section, and they will have a way to search whether a probate has been filed, and if so, you can get a copy of the will.
Demand that the person who controls the decedent's records to produce and probate the will. Hire an attorney to make the demand if necessary.
If neither of these options work, a Court order can be obtained to make the person holding the will to produce it in Court.
I'm in the will, but I haven't received my inheritance
If your demands to get your inheritance have been unanswered, you will need to hire an attorney.
What can the attorney do? An attorney's demand with the threat of a lawsuit often gets attention that your demands have not received.
If necessary, a claim can be filed in the Probate Court to force the executor of the will to make the distributions that the will requires -- i.e., to get you your inheritance.
There is no will -- how do I know if I can get anything
Are you an "heir at law?" Generally, the decedent's spouse and children inherit the decedent's estate.
If you are one of the heirs, you can open a probate and get your assets.
Texas Probate Attorney - David M. Pyke, Experience and Contact Information
No Will?
What do you do if there isn't a Will?
If there is no will, then the property goes to the decedent's heirs. Although a will makes things cheaper, lack of a will doesn't mean a probate nightmare. Read about the options below.
AVOID DEPENDENT ADMINISTRATION
Your loved one didn't leave a will, but they did leave things to be cleaned up? What can you do? Hopefully, you can avoid the only probate option in Texas that necessarily involves high attorney fees: a full dependent administration. Dependent administration involves the Court appointing a person to take the assets of the estate, liquidate them, pay the debts, and distribute the assets to the heirs. The administrator must get Court approval for virtually every decision they make, so there is little chance of abuse, but the cost is high. Dependent administration is the probate option everyone fears, but it is easily avoided.
IS THERE JUST A HOUSE TO SELL?
The main reason that some probate administration is usually necessary is that the decedent owned a home or other real estate. A simple procedure called a Declaration of Heirship can solve your problems. Click here to read more...
HOW ABOUT MUNIMENT OF TITLE?
This is a procedure where the will is filed to evidence who inherited a piece of property. Although a simple procedure, there must be a will. If there is no will, this simply isn't an option.
DO ALL OF THE HEIRS GET ALONG?
If so, the heirs can select one or more of them to serve as an "independent administrator" and dramatically reduce the costs of administration. Click here to read more information
Texas Probate Attorney - David M. Pyke, experience and contact information
If there is no will, then the property goes to the decedent's heirs. Although a will makes things cheaper, lack of a will doesn't mean a probate nightmare. Read about the options below.
AVOID DEPENDENT ADMINISTRATION
Your loved one didn't leave a will, but they did leave things to be cleaned up? What can you do? Hopefully, you can avoid the only probate option in Texas that necessarily involves high attorney fees: a full dependent administration. Dependent administration involves the Court appointing a person to take the assets of the estate, liquidate them, pay the debts, and distribute the assets to the heirs. The administrator must get Court approval for virtually every decision they make, so there is little chance of abuse, but the cost is high. Dependent administration is the probate option everyone fears, but it is easily avoided.
IS THERE JUST A HOUSE TO SELL?
The main reason that some probate administration is usually necessary is that the decedent owned a home or other real estate. A simple procedure called a Declaration of Heirship can solve your problems. Click here to read more...
HOW ABOUT MUNIMENT OF TITLE?
This is a procedure where the will is filed to evidence who inherited a piece of property. Although a simple procedure, there must be a will. If there is no will, this simply isn't an option.
DO ALL OF THE HEIRS GET ALONG?
If so, the heirs can select one or more of them to serve as an "independent administrator" and dramatically reduce the costs of administration. Click here to read more information
Texas Probate Attorney - David M. Pyke, experience and contact information
Probating a Will in Texas
TEXAS PROBATE ISN'T SCARY -- OR EXPENSIVE
If a will is properly drawn, probating a will in Texas is relatively easy with little cost or trouble. Probate is necessary if a loved one has died and you need to get a court's authority to act for the deceased. In such cases, you need to probate the will.
Probating A Will - What is Probate?
In Texas, Probate is the simple step of having a court review the
decedent's will and appointing the person named in the will, the
executor, to manage the decedent's estate.
Questions and Answers regarding Probate in Texas
Is Probate difficult?
In a nutshell, NO! Texas Probate can be simple and inexpensive. The basic steps of probating a will are:
Filing an application for probate with the court
The will gets filed with the application
One hearing to probate the will and appoint an executor Filing an inventory of the
decedent's assets
In Texas, with a properly drafted will, probate is neither time consuming nor expensive
Why should the will be probated?
It isn't possible, in most cases, to wrap up a decedent's estate without probating the will. By probating the will, the executor is given authority to act in place of the decedent, to sell the decedent's property, and to distribute it.
Even if all of the beneficiaries agree how to distribute and sell the decedent's assets, they usually will not be able to close mutual funds, sell real estate, or gain access to bank accounts without someone being appointed executor.
When should I probate the will?
As soon as you can. The quicker you begin the process, the quicker the executor will have the authority to begin to wrap up the estate. If you need access to bank
accounts to pay expenses and debts, you need to move quickly.
If you wait too long, it will cost you! You can't probate a will, without additional expense, after four years after the decedent's death. So, waiting isn't a good idea.
Can't I avoid probate?
Why avoid probate? If probate isn't expensive and does everything legally necessary to wrap up estate, why avoid it? There are some short-cut procedures, but if you can probate the will you should. Once probated, the executor can do everything to wrap up the estate -- no limits! No "short-cut" procedure can do that.
Can I do it myself? If it is so simple, why hire an attorney?
For two reasons:
First, it is relatively simple if you have done it hundred of times like our office.
Second, often courts will not allow someone to proceed without an attorney to open an estate administration.
What if the original will can't be found?
If you cannot find the original will, you may be able to probate a copy of the will. You will have to provide to the Court some reasonable explanation as to what happened to the original and some proof that the copy is accurate. Make sure to look everywhere before trying to probate a copy. You should check with the lawyer who drafted the will, safe deposit boxes, etc. before trying to probate a copy of the will. If you don't know the lawyer's name, look in the decedent's financial records and try to find a paid check or bill from the lawyer.
Texas Probate Attorney - David M. Pyke, bio and contact information
If a will is properly drawn, probating a will in Texas is relatively easy with little cost or trouble. Probate is necessary if a loved one has died and you need to get a court's authority to act for the deceased. In such cases, you need to probate the will.
Probating A Will - What is Probate?
In Texas, Probate is the simple step of having a court review the
decedent's will and appointing the person named in the will, the
executor, to manage the decedent's estate.
Questions and Answers regarding Probate in Texas
Is Probate difficult?
In a nutshell, NO! Texas Probate can be simple and inexpensive. The basic steps of probating a will are:
Filing an application for probate with the court
The will gets filed with the application
One hearing to probate the will and appoint an executor Filing an inventory of the
decedent's assets
In Texas, with a properly drafted will, probate is neither time consuming nor expensive
Why should the will be probated?
It isn't possible, in most cases, to wrap up a decedent's estate without probating the will. By probating the will, the executor is given authority to act in place of the decedent, to sell the decedent's property, and to distribute it.
Even if all of the beneficiaries agree how to distribute and sell the decedent's assets, they usually will not be able to close mutual funds, sell real estate, or gain access to bank accounts without someone being appointed executor.
When should I probate the will?
As soon as you can. The quicker you begin the process, the quicker the executor will have the authority to begin to wrap up the estate. If you need access to bank
accounts to pay expenses and debts, you need to move quickly.
If you wait too long, it will cost you! You can't probate a will, without additional expense, after four years after the decedent's death. So, waiting isn't a good idea.
Can't I avoid probate?
Why avoid probate? If probate isn't expensive and does everything legally necessary to wrap up estate, why avoid it? There are some short-cut procedures, but if you can probate the will you should. Once probated, the executor can do everything to wrap up the estate -- no limits! No "short-cut" procedure can do that.
Can I do it myself? If it is so simple, why hire an attorney?
For two reasons:
First, it is relatively simple if you have done it hundred of times like our office.
Second, often courts will not allow someone to proceed without an attorney to open an estate administration.
What if the original will can't be found?
If you cannot find the original will, you may be able to probate a copy of the will. You will have to provide to the Court some reasonable explanation as to what happened to the original and some proof that the copy is accurate. Make sure to look everywhere before trying to probate a copy. You should check with the lawyer who drafted the will, safe deposit boxes, etc. before trying to probate a copy of the will. If you don't know the lawyer's name, look in the decedent's financial records and try to find a paid check or bill from the lawyer.
Texas Probate Attorney - David M. Pyke, bio and contact information
Judicial Developments Relating to Texas Laws of Probate, Estate Planning, and Estate Administration
This article discusses judicial developments relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters over the past year.
http://lawprofessors.typepad.com/trusts_estates_prof/2009/11/judicial-developments-relating-to-texas-laws-of-probate-estate-planning-and-estate-administration-1.html
http://lawprofessors.typepad.com/trusts_estates_prof/2009/11/judicial-developments-relating-to-texas-laws-of-probate-estate-planning-and-estate-administration-1.html
Friday, November 13, 2009
Probate news of 11-13-2009
Paul Premack: Survivorship agreement alone has no effect on right to sell property
San Antonio Express
Your right of survivorship agreement, if it was written to comply with Chapter XI of the Texas Probate Code, has an effect if either spouse dies. ...
Oilman 'Manipulated' to Give Estate to Charity, Heiress Says
Bloomberg
Glassell replied. “It was in the museum.” The case is In Re Estate of Alfred C. Glassell Jr., 384045, Probate Court, Harris County, Texas (Houston).
San Antonio Express
Your right of survivorship agreement, if it was written to comply with Chapter XI of the Texas Probate Code, has an effect if either spouse dies. ...
Oilman 'Manipulated' to Give Estate to Charity, Heiress Says
Bloomberg
Glassell replied. “It was in the museum.” The case is In Re Estate of Alfred C. Glassell Jr., 384045, Probate Court, Harris County, Texas (Houston).