Legal Question in Wills and Trusts in Texas

My mother is completely bedridden, unable to move from the neck down. She is being released from the hospital and I always promised her she would never be put in a nursing home. My step-father recently created a Revocable Trust after mom progressed to her current condition. They have been together over 25 years, but married only 4. They reside in Texas and there was no prenuptial agreement. My parents estate is currently valued at over 13 million, most of which my step-father placed in the Trust. He uses the funds from the Trust at his discretion, without question, mainly for his own personal care due to having advanced Parkinson's Disease. As my mother's Power of Attorney, I have no access to any funds, and have to basically beg for everything mom needs for her care. I am, however, one of seven family members listed as a beneficiary in the Trust. This is also why I have no support from my siblings, out of fear of being disinherited. My step-father constantly reminds me that mom came into the relationship penniless, so aside from a few insignificant holdings, the vast majority of the estate is HIS. I am fighting with the family to gain access to enough funds so that she can be cared for, as I promised, at her home. Recently, I found a handwritten note tucked away in my mothers files. It is written in my step-fathers hand and reads, "I (his full name) hereby give all my assets to my wife, (her full name)." It is dated in 2012 and has his signature. Is this a legal document and if so, what are the implications if he did, indeed give all his assets to my mother in 2012? Either way, note or no note, shouldn't she (or me as her Power of Attorney) have access to funds for her care? Thank you.

Asked on 11/19/15, 11:52 am

1 Answer from Attorneys

Keith Engelke Law Office of S. Keith Engelke

This is complicated.

You need to have an attorney review the document to determine whether it is a deed or holographic will. You should also have the living trust reviewed as well as your stepfather's will current will. If the document is a deed and was signed before the date of the living trust it could invalidate the living trust. If it is a will, and was not revoked by a subsequent will it would only be effective upon stepfather's death. As to your authority to access funds from the trust, you need to have the trust reviewed.

Although they have been married only 4 years, the fact that they have been together for 25 years suggests that it is possible that there was a common law marriage for the other 25. If she meets the of the statute elements for a common law marriage then another option might be to prove the marriage and then file for a divorce. If most of the money was earned during this period was community property then mom would own half. If it was separate property, then it would not belong to mom.

Even if it was separate property, stepfather has an obligation to support mom, and mom is disabled. So you need to consult a divorce attorney. As attorney in fact, you may have the power to file a divorce for your mom. If you were her guardian, you would.

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Answered on 11/21/15, 5:56 am

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