Legal Question in Wills and Trusts in Texas
Probating will
My Dad was declared mentally incompetent in Nov. 2002. He was diagnosed with A.L.S. I am his only beneficary and everything was left to me in his will. I have power of attorney. In Jan. 2003, his brother (my Uncle) informed me that the power of attorney had been revolked. On Sept. 28, 2003 my father passed away. I was informed that he had married and I am pretty sure everything was changed to leave his estate to her. Is this legal? If someone is mentally incompetant can they get married and have their will changed? I need to know how the will is read and will I be advised of this when it that is done? What legal rights do I have?
2 Answers from Attorneys
Re: Probating will
Nowadays there usually is no "formal reading" of the will. The executor of the will has an obligation to file it for probate with the probate clerk in the county of your dad's residency. If your dad was declared incompetent there would have been a guardian appointed and records of this would also be in the probate records. These are public records and anyone has access to them. The power of attorney ceases to be effective upon revocation or death, so now it doesn't matter if it was revoked or not. My condolences on the death of your father.
Re: Probating will
I can't answer the question about an incompetent getting married, since that appears to happen all the time. If he had any lucid moments, he could make a will. If he was incompetent all the time, he could not make a will or revoke a will.
The executor of the will is obligated to file the will. If the will was destroyed, you could move for a determination of heirship, and be entitled to your intestate portion of your father's estate.
The probate would take place in the county where your father resided.
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