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Concealing, altering or destroying a will is a state jail felony in Texas.

19 April 2010, 8:32 am

Texas Penal Code §32.47(d)(1) makes it a state jail felony for a person to conceal, alter or hide a will of another person. The statute says “A person commits an offense if, with intent to defraud or harm another, he destroys, removes, conceals, alters, substitutes, or otherwise impairs the verity, legibility, or availability of a writing… An offense under this section is a state jail felony if the writing…is a will or codicil of another, whether or not the maker is alive or dead and whether or not it has been admitted to probate…” Obviously, it is not a crime to destroy or alter your own will.

Pearls of wisdom: Locating the will after someone has died is often difficult to do. A person may have the will but refuse to produce it. The Probate Code has a procedure to force a person to file the will with the clerk but this penal statute adds more ammunition to those seeking to locate the will.

Filed under Contesting wills, Probate, Procedure. Tagged 
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What must an executor do if he discovers additional property belonging to the estate?

3 April 2010, 9:58 am

Once the executor or administrator in a probate case is appointed, he must file an inventory of all of the property belonging to the estate. TPC 250. The inventory has to be filed within 90 days of his appointment. Once filed, the judge will review the inventory and, if everything seems to be complete, enter an order approving it. The purpose of the inventory is to let the beneficiaries as well as the creditors know what is in the estate and if it is solvent.

Often, the executor or administrator will discover additional property belonging to the estate after the inventory has been approved by the judge. Examples may be a CD that no one knew about maturing, or a tax bill that is received on property in another county, or a landman that contacts the executor about some oil interest that he is researching, etc. What must the executor or administrator do? The Texas Probate Code requires that the executor file a supplemental inventory with the probate court and have it approved by the judge. TPC 256. Not filing the supplemental inventory may result in the removal of the executor or administrator.

Pearls of wisdom: If you are the beneficiary and you know about property that belongs to the estate that was not listed in the inventory, you should bring it to the attention of the executor. If the executor does not cooperate with you, you should be concerned about the estate. It is not unheard of for an executor to take and use property that belongs to the estate. You probably need to contact an attorney to assist you. The attorney can demand an accounting from the executor. You don’t want to wait too long before taking some action, otherwise, the estate may squandered.

Filed under Accounting, Property. Tagged , ,
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Does a spouse inherit all the community property if the other spouse dies intestate (without a will?)

2 April 2010, 1:45 pm

It depends on when the person died. Prior to 1993, if a spouse died intestate who had children, his estate went to his children, not to his spouse. Of course, his spouse would have a homestead right to remain in the home but the deceased spouse’s ownership interest in the home would be owned by the children.

In 1993, the law in Texas changed at least in those cases where the children are the children of both the husband and wife or where the deceased had no children.  Now, if the children of the deceased are also the children of the surviving spouse, or if the deceased had no children, the community property of the deceased goes to the surviving spouse. TPC 45. The separate property of the deceased spouse still goes to the children. If some of the children of the deceased are not also children of the surviving spouse, e.g. stepchildren, then the children inherit everything as they did prior to 1993.

Pearls of wisdom: Often in handling estates, the ownership of property comes into question. This is especially true if you are dealing with people who died some time ago. For instance, husband dies in 1965 without a will. Wife and kids continue living in the house. Everyone assumes that wife owns the house. However, she doesn’t own it because husband’s half of the house went to the kids and not to his wife when he died in 1965. Instead of looking at wife’s will to see who gets the property, you have to determine the heirship of husband to see who owns his half. Wife can only dispose of her half, not the whole.

Filed under Children, Probate, Spouse. Tagged ,
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When does a minor have to file a will contest?

30 March 2010, 10:49 am

Texas has a two year limitations period for contesting wills. If you don’t contest a will within two years, you are barred from contesting it thereafter. As I have written before, this is true even if a forged will is admitted to probate. What happens if a minor wants to contest a will when he reaches his majority?

Section 93 of the Texas Probate Code provides that a minor can contest a will within two years after reaching his legal age which in Texas is 18. The Texas Supreme Court has held that an order admitting a will to probate is voidable until all interested parties reach their legal age and have an opportunity to contest the will.

Filed under Contesting wills, Procedure. Tagged ,
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What influence is “undue?”

29 March 2010, 9:22 am

A will can be denied probate because the testator was under undue influence when the will was executed. What evidence is sufficient to prove undue influence is case specific. What may be considered by a jury as undue influence in one case may not be in another case.

Undue influence implies the existence of testamentary capacity in the testator that was subjected to and controlled by a dominant power or influence. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963); Green v. Earnest, 840 S.W.2d 119, 121 (Tex.App.-El Paso 1992, writ denied). Before a will may be set aside on the ground of undue influence, the contestant must prove:

• the existence and exertion of an influence;
• the effective use of that influence to subvert or overpower the mind of the testator at the time the will was executed; and
• the execution of a will which the testator would not have executed but for such influence.

In a case out of El Paso, a son testified that he contacted the attorney, instructed him as to the will’s contents, and then took his mother to the attorney’s office. He was, in fact, “the one that dictated what to do and what we wanted.” He also testified that “(w)ell, she said you take care of it before we ever went up there — before we ever went to his office. Said, now, you do — if they don’t want to offer anything, you take care of it because I can’t. She said she couldn’t function enough to — she didn’t know enough about it, in other words, how to fix it and everything.” He also confirmed that his mother deferred to him “on all matters,” including financial matters. That evidence from the proponent of the will along with other evidence showing that the testator was fair and equal when it came to her family was enough to prove undue influence. One relative testified that with the exception of the 2002 will, all previous wills were set up to distribute her estate in equal proportion to each of her children, and then to their decedents, per stirpes.

The court held “(t)here is ample evidence to show (1) the existence and extension of an undue influence by (the proponent) in the procurement of the 2002 will; (2) the effective operation of such influence so as to subvert or overpower the (testator’s) mind when executing the document; and (3) (the testator) would not have executed the will but for (the proponent’)s influence. Indeed, some of the strongest testimony came from (the proponent) himself.

Pearls of wisdom: If you are contesting a will, the domination of the testator by another, even a son, may invalidate the will.

Filed under Contesting wills. Tagged ,
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Can a fiduciary duty be based on an informal relationship?

23 March 2010, 8:19 am

The short answer is, yes it can be. An informal relationship may give rise to a fiduciary duty when one person trust in and and relies on another, whether the relationship is a moral, social, domestic, or purely personal one. A fiduciary duty based on an informal relationship may arise when a high degree of trust, influence, or confidence has been acquired and abused. A fiduciary relationship may also arise either as a result of dominance on the part of one or weakness and dependence on the part of another.

Pearls of wisdom: Just because you don’t have a formal fiduciary relationship with another doesn’t mean that you don’t owe that person a fiduciary duty.

Filed under Removal of Trustee, Trustee. Tagged 
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Is a breach of fiduciary duty a crime?

22 March 2010, 12:26 pm

Texas has a criminal statute that makes it a felony offense to misapply fiduciary property. Many of the cases dealing with the criminal aspect of misapplication of fiduciary property deal with persons who have powers of attorney over a relative. Using the power of attorney, they essentially convert the relative’s money into their own. Occasionally, they are sued by other relatives in the civil courts to reimburse the estate for the money that was improperly taken. However, they can also be criminally prosecuted in addition to having to repay the funds back because of a civil verdict.

Pearls of wisdom: If someone has breached their fiduciary duty, depending on the facts, they may have also committed a felony and can be subject to imprisonment.

Filed under Accounting, Procedure, Removal of Trustee. Tagged ,
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Can you disclaim an inheritance if you don’t want it?

22 March 2010, 6:26 am

Texas allows a beneficiary to disclaim all or part of an inheritance. Why would a person want to disclaim an inheritance? Well, there are a number of reasons. There may be some beneficiaries who are in poor financial shape and the other beneficiaries don’t need the property and have a desire to help out the one who is having financial problems. The property may be run down and not worth the hassle. The estate may be very large, e.g. millions of dollars and the beneficiary does not want the tax problems associated with very large estates.

A disclaimer has to be in writing, notarized, properly delivered and filed. It can’t designate who gets the property. The effect of the disclaimer is the disclaiming beneficiary is treated as if he predeceased the testator and the property will then go to whoever the will designates to receive the property in that event.

Pearls of wisdom: If you want or need to disclaim an inheritance, see your attorney so that you can properly, effectively and timely disclaim it.

Filed under Procedure, Property. Tagged 
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Class gifts versus specific gifts.

10 March 2010, 6:51 pm

The difference between a class devise and a specific devise is the way the gift is treated if one of the beneficiaries dies before the testator. When a member of the class predeceases the testator, his share lapses in favor of the surviving class members. If the devise is not a class gift but a specific gift and one of the beneficiaries predeceases the testator, his gift does not lapse but is passed on to his heirs.

A devise constitutes a class gift when it grants property to a group of persons bearing a certain relationship to the testator or to each other. The persons included in the group satisfy this requirement when they can be designated by the same general name such as children, nephews, brothers or sisters. Such a gift must be to a class uncertain in number at the time of the gift. This requirement of uncertainty can be satisfied by the possibility that the number in the class may increase or decrease in the future. A devise to specific persons such as “my sisters, Jane and Joan” is not a class gift but a specific gift to individuals.

An example of a class gift: the Testator devises his property to “my sisters.” He has five sisters but two of them predecease him. The two who predecease him have children. The testator’s estate is divided into three parts and given to the three surviving sisters. The children of the two sisters who predeceased the testator get nothing.

An example of a specific gift: the Testator devises his property to his five sisters by name. Two sisters who have children predecease the testator. The estate is divided into five parts with the children of the two deceased sisters getting their parents share.

Pearls of wisdom: In order to avoid a class gift, name the persons who you want to inherit your estate. Don’t use terms such as “children,” “grandchildren,” “brothers,” nieces,” etc. unless you have specifically named them.

Every person’s situation is different and requires an attorney to review the situation personally with you.

Filed under Inheritance. Tagged 
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Proving a lost will was not revoked

9 March 2010, 4:47 pm

I have discussed in another article the procedure for probating a lost will. To review the article, click here.

One of the problems that you have when proving a lost will is that there is a presumption that the will has been revoked. One of the methods by which a will can be revoked is by destroying the original copy of the will. The evidence at trial established the original will was in the deceased’s possession and could not be located after his death. When a will was last known to be in the decedent’s possession and cannot be located after death, a rebuttable presumption of revocation arises. In order to overcome that presumption, the proponent of the will must prove that the testator continued to have affection for the chief beneficiary of the lost will. If the continued affection is proven and there is no evidence to show the decedent was dissatisfaction with the will or had any desire to cancel or change the will, the proof is sufficient for the court to admit the lost will to probate. This assumes of course that the requirements of proving the contents of the lost will have been met.

A Texas appeals court recently had to decide whether the proponent of a lost will had overcome the presumption that the lost will had been revoked. When the proponent offered the lost will for probate, she offered her affidavit that said “…as far as I know and believe, decedent left a will dated August 25, 2004 and never revoked it.” The trial court admitted the will to probate. A son from a prior marriage appealed and the appeals court reversed the case and sent it back to the trial court. The appeals court said that the proponent did not offer any evidence of the testators continued affection for the chief beneficiary.The court said that the statement “… as far as I know and believe…” was insufficient to prove that the will had not been revoked. The affidavit does not positively and unequivocally represent the facts as disclosed in the affidavit to be true and within the affiant’s personal knowledge and are therefore legally insufficient. The appeals court sent the case back to the trial court for additional evidence on this issue

Pearls of wisdom: If you’re going to file a lost will for probate, you not only have to prove the contents of the lost will but you also have to prove that the will was not revoked.

Every person’s situation is different and requires an attorney to review the situation personally with you.

Filed under Contesting wills, Probate. Tagged 
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