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When a will is found after probate, does the two or four year limitations period apply?

8 November 2010, 6:42 pm

In two cases where wills were offered for probate more than two years after a prior probate judgment, one court held that the second will could be offered and the other court held that it could not.

In the first case, an older (1965) will was admitted to probate. More than two years later, a newer will (1968) was offered for probate. The appeals court ruled that the 1968 will should be admitted even though it was offered more than two years after the 1965 will had been admitted to probate. The court relied on §73 which requires that a will has to be filed within four years of the death of the testator. The court said that filing the new will was not a direct attack on the fist judgment which would be barred by the two year limitation period of §93 but was a process of filing a newer will within four years which was allowed by §73. Morris, 577 S.W.2d 748.

In the second case, no will was found. A probate was filed seeking a determination of heirship and the appointment of an independent administrator. More than two years after the determination of heirship and the appointment of the independent administrator, a will was filed for probate. The appeals court ruled that the will was filed more than two years after the probate judgment, was a direct attack on the judgment and was therefore barred by the two year limitation period. The court distinguished the first case by saying that in the first case, the second will revoked the first will but here in the second case, there was no will to revoke. Therefore, it reasoned, the second will could not be filed after two years from the original probate court judgment. Rogers, No. 08-09-00249-CV, El Paso.

While the two cases seem to go in different directions, it should be noted that the ruling in both cases favored the children over the husband (first case) and the family over friends (second case.) Many rulings in probate matters seem to prefer the closer relatives over the distant relatives or the family over strangers.

Filed under Contesting wills, Inheritance, Probate, Procedure. Tagged , ,
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Computer & Technology Section releases a must have iphone/ipad app for lawyers

1 November 2010, 11:06 am

State Bar of Texas Computer and Technology Section Releases Must-Have iPhone App for Texas Lawyers

Austin, TX, November 1, 2010 – The State Bar of Texas Computer & Technology Section has released a one-of-a-kind iPhone app for Texas lawyers.  “With more than 50 codes, rules, acts and legal compilations, this application will quickly become a must-have addition to every Texas lawyer’s arsenal,” said Grant Scheiner, Chair of the Texas State Bar Computer and Technology Section.

Features of the app include lightning fast searches of dozens of Texas and federal codes, rules and statutes; FREE case law in certain areas; the ability to email sections of codes, rules, statutes and case law links to yourself and others; bookmark favorite sections of codes, rules and statutes; and, convenient, quick access to the Computer and Technology Section website and blog posts at http://www.sbot.org.

The app is available for free to members of the State Bar of Texas Computer & Technology Section.

The new app contains:  Administrative Codes; Bankruptcy Code; Business & Commerce Code; Business Organizations Code; Civil Practice & Remedies Code; Finance Code; Rules of Appellate Procedure (State & Federal); Rules of Civil Procedure (State & Federal); Rules of Evidence (State & Federal); Computer Law & Intellectual Property (Various State & Federal Acts); Family Code; Penal Code; Probate Code; Property Code; Tax Code; Trust Code; and more!

Filed under Probate.
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Who gets the decedent’s last pay check?

20 October 2010, 2:56 pm

If a husband or wife dies unexpectedly, the surviving spouse is often plunged into a financial crisis. The dead spouse’s final paycheck is needed just to keep the household above water. The employer may not want to give the surviving spouse the last paycheck because a later appointed executor or administrator may demand the money and the employer may have to pay the amount twice if it gave the check to the surviving spouse if he/she wasn’t entitled to it. How does the surviving spouse get that last paycheck before a probate is filed and an executor or administrator is appointed? Surprisingly, Texas has an app (statute) for that.

The Probate Code provides that an employer has no liability if it gives the last paycheck, including unpaid sick pay and vacation pay to the spouse when she/he gives the employer an affidavit stating that she/he is the surviving spouse and that no one has qualified as executor or administrator. The employer is not required to inquire into the truth of the affidavit. Even if it turns out to have paid the wrong person, the employer has no additional liability if this procedure is followed. §160(b).

Filed under Inheritance, Property, Spouse.
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What is the doctrine of “Dependent Relative Revocation?”

4 October 2010, 11:23 am

A will can be revoked by a subsequent, valid will stating that a prior will is revoked or by the physical act of destroying it. For more information and a complete discussion on revoking wills, click here. In general, a will once revoked cannot be “unrevoked” or revived unless the will is reexecuted with the formalities required of wills. There are some exceptions to this rule that once revoked, a will cannot be revived. One of those exceptions is the doctrine of dependent relative revocation.

The doctrine of dependent relative revocation creates a presumption against revocation in circumstances where the testator cancels or destroys a will with the present intention of making a new one immediately, and the new will is invalid for any reason. The theory is that in such circumstances the testator would have preferred the old will to intestacy. This doctrine does not apply where there is a large difference in the way the two wills dispose of the testator’s property. In such a situation when the revoking will, which is invalid as a testamentary disposition, disposes of property to beneficiaries different from those in a former will, the testator’s intention may best be followed by allowing the property to pass by intestate succession. Therefore, the courts will not apply the doctrine of dependent relative revocation.

Pearls of Wisdom: Revoking a will like making a will should not be done by your self. You should contact an attorney to make sure that your desires for the disposition of  your property are applied instead of the laws of intestacy.

Filed under Inheritance, Procedure.
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Can you contest the will of a living person?

28 September 2010, 4:13 pm

Probating the will of a living person is sometimes referred to as “ante-mortem probate.” Such actions are not allowed in Texas. Section 72 of the Probate Code says that probate of a will or administration of an estate of a living person is void. Therefore, a Texas court does not have jurisdiction to rule on the contest of a will or to administer the estate of a living person.

Filed under Probate, Procedure. Tagged ,
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What are the Inheritance Rights of a Spouse?

17 September 2010, 3:29 pm

There is a movie titled “It’s complicated.” That title describes the inheritance rights of a spouse. It’s complicated because of defining who is the spouse, what property the spouse inherits and what is the status of any children. The inheritance laws are used to determine who inherits if there is no will or if a will has been contested and the judge refuses to admit the will to probate. If the will is valid then the will and not the laws of inheritance determine who inherits the estate. The rest of this article concerns the inheritance laws that would be applied if there is no will

Texas recognizes formal marriages as well as informal marriages. Informal marriages are more commonly called “common-law marriages.” In a formal marriage a man and a woman who are legally able to get married get a marriage license and have a marriage ceremony performed by a clergyman or a judge. There are usually few complications arising from a formal marriage.

An informal marriage or “common-law marriage” involves a man and woman who are legally able to marry but who don’t get a marriage license and don’t have a ceremony. The spouse in an informal marriage has the same rights of inheritance as a spouse in a formal marriage. The problem is that informal marriages usually cause litigation because the family that would inherit if the decedent was not married will oppose the alleged common-law spouse’s claim that they are the spouse. The spouse of an informal marriage will have to prove the informal marriage when the spouse of a formal marriage does not normally have that burden. Read more about informal or common-law marriages here.

Another complicating issue with determining who is the spouse involves a “putative spouse.” A putative spouse is one who has a formal marriage in that a marriage licenses is obtained and a ceremony is performed. However, one of the parties to the marriage is not legally able to get married. This usually involves a person who was married before but who did not get a divorce from his first spouse. It doesn’t matter whether the person knows that he did not get divorced or believes that he is divorced. If there is no divorce, the person is still married. The person cannot get married a second time. On the death of the spouse who could not legally get married the question becomes which of the two spouses receives his estate: the one to whom he was legally married or the one who was not aware of the prior marriage and entered into the second marriage in good faith and became the putative spouse? Read more about the rights of a putative spouse here.

Another complicating factor in the inheritance rights of the spouse is the type of property involved. In Texas there is community property and separate property. Generally, separate property is everything that a spouse owned before marriage or that was acquired during the marriage by gift or inheritance. Everything else is community property. If the decedent owned separate property and had children, the separate property generally goes to the children with some  exceptions in favor of the wife. If the decedent had no children, then the wife would receive more of the separate property with the parents and siblings of the decedent also getting a share. Read more about the types of property involved in inheritance here.

Finally, there is the issue of children. Before the 1990s when the inheritance laws were changed, a spouse did not inherit community property from their spouse if children were involved. All of the community property went to the children. If the decedent owned separate property, it generally went to the children with some few exceptions.

Under current Texas law, if the spouse of the decedent is the parent of all of his or her children, the spouse inherits all of the decedent’s community property. If there are stepchildren, that is, children of the decedent who are not also children of the spouse, then the children inherit the decedent’s community property. As an example, suppose a man was married for a short time and had one child of that short marriage. He got divorced. He then met his current wife, got married and they lived together for 50 years and had six children. Since the current wife is not the mother of all of his children, his community property would go to his children and not to his wife.

It is important that you make a will so that you and not the laws of inheritance determine who inherits your estate.

Filed under Children, Inheritance, Property, Spouse. Tagged , ,
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Do half siblings have the same inheritance rights as whole siblings?

24 August 2010, 3:44 pm

The issue of who inherits when a person dies has to deal with all of the various forms of today’s families.  Families may consist of parents and step-parents, brothers and sisters, step-brothers and sisters and half-brothers and sisters. This post discusses the issue of the inheritance rights of whole and half brothers and sisters or what the law refers to as those of the “whole blood” and those of the “half blood.” This post does not include the inheritance rights of step siblings who generally do not inherit from other step siblings or step parents unless there is a will that names them as a beneficiary.

In Texas, the laws of descent and distribution determine what happens to a person’s property if they die intestate (without a will.) They may have failed to make a will or a purported will may have been contested and denied probate. In those cases, the law determines who gets the estate and the law treats “those of the half blood” differently from “those of the whole blood.” As an example, if a person dies and is survived by a half brother and a whole brother, the half brother will take half of what the whole brother will take. If the survivors are all “of the half blood,” they will take a full share the same as if all of the survivors were “of the whole blood.” TPC 41(b).

Pearls of wisdom. If you have “step” relations or “half” relations and you want them to participate in your bounty or you want to make sure that they don’t participate in your bounty, it is important that you make a will so that the judge uses your wishes instead of the laws of descent and distribution to determine who inherits your estate.

Filed under Children, Inheritance, Property.
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Inheritance Rights of Illegitimate Children

3 August 2010, 8:47 am

Inheritance laws give illegitimate children, or what the courts sometimes refer to as non-marital children, the same inheritance rights as legitimate children. The laws of inheritance determine who inherits if there is no will, if a will has been contested and denied probate or if the will does not dispose of all of the property. If there is a valid will that disposes of all of the property, it and not the laws of inheritance determine who receives the property. To learn more, look at this page and this page.

The biggest problem that an illegitimate child encounters is the issue of paternity. If everyone agrees that the illegitimate child is the child of the parent, then the child would take a part of the property the same as any other child. If, however, as usually happens, some family members deny that the child is the child of the parent, then the illegitimate child has to prove paternity before he would be entitle to take his share of the property. Each state has time limits within which the child must take action to prove paternity. If the child waits too long, he may not inherit even if he can prove paternity.

Another problem facing an illegitimate child is not knowing who their natural parents are. If a child doesn’t find out who his natural parents are until after their death, he must act quickly or he could loose forever his rights to inherit. The Texas Supreme Court in recent rulings has been tough on children who didn’t start inheritance proceedings in time even in those cases when the child did not know or could not know who his natural parents were. I’ve discussed this issue here. Since the courts are not willing to extend the time for illegitimate children to take action to obtain their inheritance, early action is necessary.

Filed under Children.
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Inheritance Rights of Adopted Children

2 August 2010, 3:53 pm

Generally, in Texas, adopted children have the same inheritance rights as naturally born children. That means that they inherit from and through their adoptive parents. “Through their adoptive parents” means that if the parent of the adoptive parent dies after the adoptive parent, the adopted child will inherit from the grandparent to the same extent as a natural born child. You can read more here.

A child does not necessarily have to be formally adopted to be considered an adopted child of the adoptive parents. You can read about adoption by estoppel here.

Adopted children may also have inheritance rights from their natural parents. An adopted child could inherit from his natural parents as well as from his adoptive parents. If a court terminated the rights of the natural parents, the order of termination has to be reviewed to determine what inheritance rights the child has from his natural parents. You can read more here.

Filed under Children.
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Inheritance involving a pretermitted child

6 July 2010, 8:40 am

A pretermitted child is a child who is:

  1. born or adopted after a parent’s will is executed, and
  2. who is not otherwise provide for by the parent.

A pretermitted child takes a share of his parent’s estate even though he is not mentioned in the will.

A recent inheritance case out of Dallas dealt with both of the issues above. A man made a will leaving his estate to his brother and to his brother’s children. He later married, had two children and divorced. After he was divorced, he wrote a note on the bottom of his original will that said in its entirety  “9/9/99 I am now divorced from Melissa McCormick & Virginia Dillon. The same will and testament exists now as on 4/30/99 Charles Hendler.”

The divorced wife alleged that her children were entitled to share in the estate because they were pretermitted children since the original will was made before they were born and they were not otherwise provide for. The brother alleged that he was entitled to all of the estate because the addition of the quoted note republished the will so that the will was not made before the children were born. He also alleged that the children were provided for since the were minors and were getting social security, were receiving court ordered child support and since one was listed as a contingent beneficiary on a life insurance policy. The trial court ruled in favor of the brother and denied the children any inheritance.

The appeals court reversed part of the trial court’s decision. It held that there was a fact issue that a jury should decide as to whether the note on the bottom of the old will was done with testamentary intent. Testamentary intent is required to make a will or to republish one. The appeals court went on to hold that receiving social security benefits or child support did not conclusively prove that the children were “otherwise provided for” by the parent. The court noted that “otherwise provided for” has to be intended to take effect at the testator’s death. The court however was convinced that naming one of the children as a contingent beneficiary in a life insurance policy did satisfy the otherwise provided for requirement and the court held that the child so named was not a pretermitted child and therefore not entitled to any inheritance.

In another case, the court held that even though the child was a pretermitted child, he was not entitled to a share of the decedent’s estate because he was provided for in the decedent’s will. The will directed that the decedent’s estate go to his “heirs at law” if his wife failed to survive him; the child was an heir at law, but because the decedent’s wife survived him, the child was barred from sharing in the decedent’s estate. 319 S.W.3d 185.

Pearls of Wisdom: Make a will. Say who you want to receive your estate. Don’t make notes on your will. See an attorney. Otherwise, you family will be fighting over your estate in all probability.

Filed under Children, Inheritance. Tagged 
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