Probating the Texas Estate of a Missing Person

At first glance, it might seem impossible to probate the estate of someone who is missing and presumed dead. However, the Texas Estates Code provides for this very process under Title 2, Subtitle J, Chapter 454 entitled, “Administration of Estate of Person Presumed Dead.”

That chapter clearly states that a probate court has the required jurisdiction to determine the likelihood of a person’s death when specific steps are followed — even if the main evidence presented is entirely circumstantial. However, the Texas Estates Code was carefully drafted to prevent fraud by requiring a lengthy delay before the assets of these types of estates can be distributed.

What are the main steps usually taken to probate the estate of a missing person?

  • Request for letters testamentary. After the probate process has begun with the filing of a request for letters testamentary, the court-appointed personal representative must serve a citation on the person presumed dead in the manner required by the court. Since the person is missing, this often means publishing a notice of the proceeding in one or more print newspapers – and in any other manner dictated by the court;
  • Contacting the proper authorities. The personal representative must then formally contact the proper authorities about the estate owner’s missing status. Among others, law

enforcement officials and state welfare agencies should be notified – along with any others suggested by the court;

  • A professional investigative agency should be hired. This must be done in keeping with the provisions of  Section 454.003 of the Texas Estates Code (requiring efforts to locate the missing owner of the estate). During this process, the investigator may encounter potential heirs who may have crucial information that can help locate the missing person – or help determine where s/he was living shortly before death.

The investigator should create a report based on all research and interviews conducted and then present it to the court – documenting that the missing person cannot be located. The cost of this investigation is normally reimbursed by the estate, after the court has had time to review the requested fees.

How quickly can the estate be distributed?

Section 454.004 of the Texas Estates Code clearly states that this can only be done after three years have passed since the date on which the letters testamentary were issued by the court to the personal representative.

What personal liabilities can arise if the person presumed dead reappears after distribution?

If the missing person returns and presents conclusive evidence that s/he was alive at the time the

letters testamentary were granted, that individual has the legal right to regain control of the estate — whatever remains of the funds or property.

However, this person who was presumed dead – yet has now reappeared – cannot get his/her property back that was sold for value to a bona fide purchaser. Instead, this person only has the right to the proceeds or funds obtained for the sale of the property to the bona fide purchaser.

In addition, Section 454.052 states that the personal representative who handled all the legal sales transactions for the estate, not knowing that the missing person was actually alive, cannot be held liable for any financial losses suffered by that individual who has now returned. And any surety who issued a bond to that personal representative cannot be held liable for anything the personal representative did while complying with approved court-ordered activities.

Should you need help probating any estate, please feel free to contact one of our Murray Lobb attorneys. We’ve had the opportunity to help many clients and can readily answer all your questions.

Steps Required to Dissolve a General Partnership in Texas

Even when business partners get along well with each other and succeed, a time may come when they may develop new interests, decide to retire or move elsewhere for business or pleasure reasons. While the Internet and modern communications make it possible to still run businesses with partners scattered around the globe, it’s still quite common for partnerships to break apart or take on new members when others leave.

Do You Need a Written Partnership Agreement in Texas?

Normally, Texas law doesn’t require general (or “at-will”) partnerships to create a written partnership agreement. However, it’s always best to draft one so that when the entity breaks apart (or any partner leaves), you’ll know exactly how to pay off all partnership debts and distribute the remaining assets among everyone.

When general partnerships don’t have an agreement, then Texas law expects the partners to govern their “wind-up” activities in keeping with our state’s default partnership laws.

Here’s a broad overview of the tasks that you and your partners must handle as you dissolve your partnership. Should you have any questions at this early stage, it’s always wise to schedule an appointment with your Houston business law attorney.

First Steps to Take When Preparing to Dissolve Your Partnership

Schedule a meeting so everyone can discuss how your written partnership agreement requires you to dissolve the partnership. During this meeting, you must take a vote to determine if all parties still holding majority rights (or financial interests equal to or greater than 50% of the partnership assets) favor dissolving it. Next, ask this same majority to vote whether they’re ready to draft and sign a written resolution stating that the partnership will now wind up all its affairs and be dissolved.

At this point, all partners who want to keep working together under a new partnership agreement can indicate this desire to everyone else – and offer to buy-out the partnership shares of those who are leaving.

Handling Debt Payments and Winding Up All Remaining Matters

Every current partner should expressly agree to complete certain tasks approved by all those winding down the partnership’s affairs – and to refrain from negotiating any new business that could potentially obligate all partners after the dissolution.

As referenced above, those leaving the partnership are free to sell their shares in it to others, in keeping with their original partnership agreement (or the state’s laws governing such transactions when there is no written agreement). To help the partnership pay off existing debts, all partners can vote on which current partnership assets (if any) may be sold for cash.

The laws governing the pay-off of all partnership debts are set forth in our state’s Uniform Partnership Act. It basically states that you must pay off all your creditors first – before paying back each partner for all past capital contributions to the partnership.

Are There Any Remaining Wind-Up Steps You Must Address?

  • Paperwork filing with the state. In Texas, there’s no need to file anything when dissolving an at-will (general) partnership;
  • Providing notice to all creditors, customers and other parties. It’s customary to send out notices through the mail to all your business contacts so they’ll know that your partnership is being dissolved as of a certain date. However, there’s no law which requires this to be done. You can also just simply publish a notice about the dissolution in your local newspaper;
  • Updating all out-of-state registrations. To prevent your partnership from owing any more fees to other states where you’ve registered for the right to do business, you need to formally notify the correct offices via certified mail that you’re dissolving your partnership;
  • Paying all taxes that are owed. Although Texas doesn’t require you to obtain a tax clearance before winding-up your partnership, you must make sure all taxes owed have been paid before dissolving it. This step includes filing a final federal tax return for your partnership in keeping with Texas law.

Should you have any specific questions about dissolving your partnership – or making sure that you’re handling all tax matters properly – please contact our law firm so we can provide you with all pertinent legal advice.