Legal Question in Wills and Trusts in Texas

Any interested person may challenge the will or the executor named. Courts will look to an executor's actions to interpret whether their behavior is inline with the testator's intentions. Executors are not allowed to self-deal. They must back up their actions with reasonable justification and must always prove their actions are backed by the will and in line with the intent of the testator. Otherwise, if found to have abused this duty, the court (upon action by other beneficiaries of the will) may oust the named Executor and replace him/her. Replacement may be through a relative, court appointed third party or the court itself - it is important to understand that this could be very expensive and has sometimes been the branch which bankrupt the estate thus, leaving the intended beneficiaries with much less than before.

Each case is very different and blanket advice will help but likely not solve questions entirely. The advice of a licensed attorney is paramount here. The one you seek is known as a Probate Attorney. I am serious in stating that - nothing in probate is really easy and there are a myriad of exceptions. Probate is a very "formal" area of law where missing elements of a document can void the whole process and deem the decedent as having "died without a will" when in fact there was a will drafted. NOT TALKING TO A LICENSED ATTORNEY ON YOUR ISSUE IS SIMPLY A DISSERVICE TO YOURSELF AND YOUR RIGHTS.

That said here is some terminology and explanation found publicly that will better familiarize you with this area of law along with where to go to get the answers you seek from a licensed attorney at little to no cost.

The following is adopted from NOLO.com - a terrific self help resource for the lay-person BTW:

It's both an honor and a burden to serve as someone's executor. An executor is entrusted with responsibility for winding up someone's earthly affairs -- a big or little task, depending on the situation. Essentially, an executor is charged with protecting a deceased person's property until all debts and taxes have been paid, and seeing that what's left is transferred to the people who are entitled to it.

The law does not require an executor (also called a personal representative) to be a legal or financial expert, but it does require the highest degree of honesty, impartiality, and diligence. This is called a "fiduciary duty" -- the duty to act with scrupulous good faith and honesty on behalf of someone else.

Executors have a number of duties, depending on the complexity of the deceased person's financial and family circumstances. Typically, an executor must:

Find the deceased person's assets and manage them until they are distributed to inheritors. This may involve deciding whether to sell real estate or securities owned by the deceased person.Decide whether or not probate court proceedings are needed. Most jointly owned assets pass to the surviving owner, without probate. And if the deceased person's property is worth less than a certain amount (how much depends on state law), it may be able to go through a streamlined probate process. (To learn more about probate, see Probate FAQ.)Figure out who inherits property. If the deceased person left a will, the executor will read it to determine who gets what. If there's no will, the person in charge (sometimes called the administrator) will have to look at state law (called "intestate succession" statutes) to find out who the deceased person's heirs are.File the will (if any) in the local probate court. Generally, this step is required by law, even if no probate proceeding will be necessary.Handle day-to-day details. This may include terminating leases and credit cards, and notifying banks and government agencies -- such as the Social Security Administration, the post office, Medicare, and the Department of Veterans Affairs -- of the death.Set up an estate bank account. This account will hold money that is owed to the deceased person -- for example, paychecks or stock dividends.Use estate funds to pay continuing expenses. The executor may need to pay, for example, utility bills, mortgage payments, and homeowner's insurance premiums.Pay debts. If there is a probate proceeding, the executor must officially notify creditors of it, following the procedure set out by state law.Pay taxes. A final income tax return must be filed, covering the period from the beginning of the tax year to the date of death. State and federal estate tax returns are required only for large estates.Supervise the distribution of the deceased person's property. The property will go to the people or organizations named in the will or those entitled to inherit under state law.More Information

To learn about these duties in more detail, and get step-by-step advice on how to wrap up an estate, read The Executor's Guide: Settling a Loved One's Estate or Trust, by Mary Randolph (Nolo). And to see everything Nolo has to offer when it comes to estates, executors, and probate, visit our Wills, Trusts & Estates Center.

These are simple facts anyone can find on the internet. I am not giving legal advice here. I am NOT a licensed Texas attorney; I only went to law school in Texas.

The advice I would give is to contact: http://www.austinbar.org/pages/legalresources

where there are licensed, sometimes free, Texas attorneys that will be able to assist you further and get the processes needed started for you.

Short answer: No. In order to begin acting as the representative of the estate (executor, administrator, etc.) your sister would first need to offer your mother's Will to probate. If the Will has not been offered, it has not been admitted. If the Will has not been admitted, your sister is not (yet) the Executor. End of story.

Your case is not uncommon. Many nominated executors begin acting immediately as though the decedent's death grants them some authority. It doesn't. Assuming that the house belongs to your mother, and your sister has no property interest in the home apart from what she might receive under the Will, your sister has no legal right to limit or restrict access to the home, and certainly no right to grant exclusive access only to herself.

That's the legal answer. Practically speaking, would you rather the home be locked and secured or left with the door wide open? In a practical sense, although probably not for a good reason, your sister is likely keeping the asset safe.

Your recourse is through the probate court. Your sister can be compelled to deposit your mother's Will with the clerk, where an application to admit it to probate could then be filed by any person interested in the Estate. Recognize that when it comes to priority of who should serve as the Estate's representative (if administration is necessary,) your sister is going to be first in line. If her behavior regarding the house is any indicator, it's possible that the Court might not find her suitable to act in the capacity of an executor.

Regardless, probate needs to be initiated. Free answers and helpful tidbits of insight will only get you so far before you'll have to act on the facts. You need to consult with a probate attorney immediately.