By DANIEL RAY
Special to the Herald-Banner
My mother died two years ago, and we are just now getting around to selling her house. Because her will was never probated, we have been told we need to do that to get clear title. We have her original will, but it was signed in 1974 in Delaware. When I probate her will, do I have to get the witnesses who signed it to come to Texas to testify? — Chris, Caddo Mills
Under Texas law, out-of-state witnesses are not required to come to Texas to testify to open probate.
Usually, a properly-drafted Last Will and Testament will be “self-proved.” That means that it will include an affidavit in a specific form that proves authenticity by way of witness signatures and notary stamp. If your mother’s will is appropriately self-proved under Texas law, you will not need testimony from any of the witnesses.
If the will was defectively prepared, or was prepared in a jurisdiction with different rules for self-proving affidavits, you still may not need a witness to come to Texas. If you can contact a signing witness and obtain their address, you or your attorney can send the witness a notice for interrogatories by written questions which will be admissible in court to prove authenticity.
Sometimes wills include a self-proving affidavit, but have not been signed by the deceased person. In that case, you will likely need the same sort of written interrogatories.
If you do have a live witness testify as to the will’s authenticity, a question may be raised by the judge or a party fighting the probate as to how many of the signing witnesses must testify. Even though the law generally requires two witnesses to the actual signing, only one of them is required to testify in order to prove the will’s authenticity in court.
The pipes under my slab house began leaking last year and caused swelling of the soil that ruined my foundation. In parts of my house, the foundation moved so much that windows broke and bricks fell off! I had been paying extra for foundation coverage, but [the insurance company] is telling me they are going to fix the leaks first, then wait for six months to a year to see if the swollen soil contracts enough to avoid foundation repair. Can I sue them now to force them to pay for the foundation repair? — Anonymous, Greenville
Possibly, but you must follow all steps required by your policy and the Texas Department of Insurance. If you have a complaint about the way your insurance company is addressing the issue, you should first look online or on policy paperwork to find the company’s complaint hotline. That should be your first step if you believe covered claims have been improperly denied.
If you are not satisfied with the insurance company’s final answer, you should file a complaint with the Texas Department of Insurance (online at www.tdi.texas.gov). That agency will review, send you an acknowledgment letter, and ask the insurance company for a detailed response. The Department of Insurance will review the coverage terms in your policy, and determine whether the insurance company violated the policy by refusing to pay a covered claim. This process takes about two months.
If you are not satisfied by the Department of Insurance review or outcome, you can speak with an attorney about filing a lawsuit. Whether a suit is a good idea will depend on the exact wording of your policy and your specific circumstances.
If you have a brief legal question on any topic, please forward it to Daniel@smrt-law.com.
Daniel Ray is a Greenville, Texas attorney licensed in all Texas courts. His firm, Scott, Money, Ray & Thomas, PLLC, represents the City of Greenville, Hunt County, and many other public and private North Texas entities. His practice emphasis is civil litigation, wills and trusts and real estate.
This article is intended for entertainment and educational purposes as well as to give the reader general information and a general understanding of the law, not to provide specific legal advice.
By reading this article you agree that you understand that there is no attorney-client relationship between you and the author or publisher. The article should not be used as a substitute for competent legal advice from a licensed professional attorney in your area.