24 June 2010, 9:40 am
Legally, he can. Practically, he can’t.
The Texas State Constitution has a provision that says “”No conviction shall work corruption of blood, or forfeiture of estate.” The Texas Probate Code §41(d) is similar. Those two provisions have been interpreted to allow a murderer to inherit from his victim. However, the courts have allowed the heirs of the victim to file suit against the murderer and to impose a constructive trust on any property he might receive from the victim. The practical effect of the constructive trust is to deny the murderer the inheritance from the victim.
If the heirs of the victim do nothing, the murderer receives his inheritance. If the heirs of the victim file suit in court, the courts will impose a constructive trust on the inheritance which effectively denies the inheritance to the murderer.
Insurance policies are different. The murderer does not inherit the proceeds from an insurance policy since there is a special statute that deals with insurance policies. That statute denies payment of the proceeds to the person who causes the death of the insured.
PEARLS OF WISDOM: If someone is ever in a position where a murderer is going to profit from his misdeed, affirmative action is required to prevent the murderer from inheriting the victim’s property. Compare 287 S.W.2d 546 with 68 S.W.3d 242.
22 June 2010, 7:24 am
Inheritance cases sometimes present unusual problems. A man left a holographic will. The entire will read “Last Will & testament Debbie gets everything till she dies. Being of sound mind & this is my w. last will & testament. I leave to my Wife Daphne Craigen all p. real & personal property. 12-17-99 Dalton Craigen.” Everyone involved agreed that “Debbie” and “Daphne” referred to the same person,e.g., testator’s wife.
The question: Does “till she dies” mean that the testator was giving his wife a life estate in his property – meaning that when she died, the property would go to his heirs instead of her’s? Or did the will give his wife full title to his property so that when the wife died, it would go under her will or to her heirs?
The court ruled that the wife received full title to the property and not just a life estate. It based its ruling on rules of construction for wills. The courts don’t use rules of construction when the will is unambiguous. The court held that this will was ambiguous and that resort to the rules of construction was necessary. The court said that the following rules of construction indicated that the testator’s intention was to give his wife full title:
- When a will has been drafted by a layperson who is not shown to be familiar with the technical meanings of certain words, courts do not place “‘too great emphasis on the precise meaning of the language used where the will is the product of one not familiar with legal terms, or not trained in their use.
- Instead, in arriving at the meaning intended by the layman-testator, courts refer to the popular meaning of the words the testator chose to use. In summary, the testator’s intent, as gathered from the will as a whole, prevails against a technical meaning that might be given to certain words or phrases, unless the testator intended to use the word or phrase in the technical sense.
- A very strong presumption arises that when a person makes a will, the testator intended a complete disposition of his property. “[T]he very purpose of a will is to make such provisions that the testator will not die intestate.”
- Texas law also favors the vesting of estates at the earliest possible period, and courts will not construe a remainder as contingent when it can reasonably be taken as vested.
- When a will provides that upon a certain contingency the estate given shall pass to another, “the law favors the first taker and will construe the words of the will to grant to the first taker the greatest estate which they, by a fair construction in harmony with the will as a whole, are capable of passing.”
- The court also noticed that the testator’s children were not mentioned in the will. If the will was construed as creating a life estate, the children, although not mentioned, would inherit everything. The court held that the testator probably did not intend that to happen.
Pearls of wisdom: The people who you want to get your estate may or may not get it depending on how your will is worded. To make sure that the correct people get your estate, you should carefully prepare your will so that there is no ambiguity. 305 S.W.3d 825.
2 June 2010, 9:14 am
The short answer is no. The long answer is, it depends.
Texas is a community property state. That means that a husband and wife have community property and separate property. Separate property is everything acquired before marriage and everything acquired during marriage by gift or inheritance. Everything else is community property. At the termination of the marriage by divorce or death, all property is presumed to be community property. The person claiming that some property is separate property has the burden of showing that it is separate. If he can’t, it is community property because of the presumption.
It is easy to show whether real property is separate property or not. The same is true for heirlooms. It may be hard to show that cash or others items that are not distinct are separate property. If someone inherits $100,000.00 and puts it in a community account where it is commingled with community property. It will be harder to prove what part is separate and what part is community.
If the party claiming that something is his or her separate property, such as inherited property, proves that it was received as an inheritance then the other spouse does not get any part of that property on divorce.
If you have questions about your inheritance rights and would like to talk to an estate planning attorney or a lawyer who is familiar with inheritance and probate law to advise you about your inheritance rights, click on the picture in the upper right under “Visit our website.”
19 May 2010, 6:58 am
The United States government’s Administration on Aging, a part of the U.S. Department of Health & Human Services, identifies the major types of elder abuse such as physical abuse, sexual abuse, neglect, financial abuse, etc. A type of abuse identified by the U.S. government that is seen too often in probate and inheritance matters is the financial abuse of the elderly.
The Administration on Aging has posted the signs and symptoms of financial or material exploitation of the aging. These include but are not limited to:
- sudden changes in bank account or banking practice, including an unexplained withdrawal of large sums of money by a person accompanying the elder;
- the inclusion of additional names on an elder’s bank signature card;
- unauthorized withdrawal of the elder’s funds using the elder’s ATM card;
- abrupt changes in a will or other financial documents;
- unexplained disappearance of funds or valuable possessions;
- substandard care being provided or bills unpaid despite the availability of adequate financial resources;
- discovery of an elder’s signature being forged for financial transactions or for the titles of his/her possessions;
- sudden appearance of previously uninvolved relatives claiming their rights to an elder’s affairs and possessions;
- unexplained sudden transfer of assets to a family member or someone outside the family;
- the provision of services that are not necessary; and
- an elder’s report of financial exploitation.
You can visit the government’s site here for more information.
If you know of an elderly person who may be the subject of financial or material abuse, you should visit the government’s site to learn what you can do to protect them in these situations.
If you have questions about your inheritance rights and would like to talk to an estate planning attorney or a lawyer who is familiar with inheritance and probate law to advise you about your inheritance rights, click on the picture in the upper right under “Visit our website.”
7 May 2010, 12:19 pm
The Texas Supreme Court decided a case in 2010 that answered the question of fee disgorgement. In the case, two business partners decided that one partner would sell his interest to the other partner. Partners are fiduciaries to the other partners. They also signed a non-compete clause so that the selling partner could not go into a business to compete with the remaining partner. The facts showed that before the sale, the selling partner’s wife had formed a new corporation that was going to and did compete with the old partnership. The trial court said that the selling partner breached his fiduciary duty and had to disgorge (pay back) the money that he had received for the sale of the partnership. The Court of Appeals reversed. It said that although there was a breach of fiduciary duty, the contract payment was for the selling partner’s interest in the business rather than a fee. It ruled that only a fee could be disgorged.
In reversing the Court of Appeals, the Supreme Court said that where there is no fee, the court can fashion a remedy, in this case disgorgement of the contract price, for breach of fiduciary duty. A fee is not required. If it were, there would be no remedy for a breach of fiduciary duty in non fee cases. NO. 07-1042.
19 April 2010, 10:35 am
Apparently, an illegitimate child can’t. The Health and Safety Code §711.004 allows a district court to order an exhumation if requested by certain people including the spouse or the children. That section may not apply to illegitimate children unless money is involved.
In a case decided in 2010, the Texas Supreme Court ruled that a woman who claimed that she was the illegitimate child of a man could not have his body exhumed to test his DNA. The woman asked for the exhumation more than four years after the man’s estate had been closed. The four year statute of limitations applies to making claims for inheritance. The Court said that because she could not claim part of his estate since more than four years had passed, she did not have a “justiciable interest” in the exhumation of his body for DNA testing. 04-0608.
Pearls of wisdom: Apparently, whether you have a father or not is unimportant. You have a “justiciable interest” only if it will lead to money, not peace of mind! In fairness to the Court, the woman was making a claim for her inheritance which the Court ruled was barred. But the broad language of the decision seems to make exhumation for DNA testing a proposition based on money alone.
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.
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.
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.
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.
