After a loved one dies, their property must go through probate court in order to be transferred to the rightful heirs. If you are named as the executor in the will, you will be responsible for ensuring that the process goes smoothly. Here’s what you need to know about transferring a case to probate court. […]
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If you’re considering an income trust, there are a few things you should know about community property. This case gives some information on what you need to know about this type of trust and how it can benefit you.
Cleaver v. George Staton Co., 908 S.W.2d 468 (Tex. App. 1995)
Cleaver: Appellant Husband
George Staton Co.: Appellee Trustee and Trust Property Company
Facts: George Staton, Sr. died in 1966 and left a trust naming his wife as the sole beneficiary of the income from that trust for life. She was then single. The trust consisted of one twelfth of the assets of Staton lumber yard, subsequently incorporated as George Staton Company, Inc. and Staton Materials, Inc. In 1971, prior to reaching her twenty-first birthday, she married appellant husband. Jimmy Maurice Cleaver, appellant husband, and his wife were in the process of divorcing when Cleaver filed suit against George Staton Company, Inc. for fraud, conversion as well as breach of fiduciary duty and the Texas Trust Code. Cleaver, alleged appellees wrongly withheld trust payment from his wife. In his first amended petition, Cleaver attempted to name wife as an “involuntary plaintiff” under Tex. R. Civ. P. 39(a). The trial court dismissed his case for lack of standing and the court affirmed. The court found that the income his wife was to receive from the trust was likely separate property which the appellant husband had no claim to. In addition, if any interest in the trust income was community property, the court found it would be “special community” to the wife and she would have sole management of the property under Tex. Fam. Code Ann. § 5.22(a)(2) (1993). Therefore, the court found, only the wife had the authority to sue to recover the property and the “involuntary plaintiff” procedure united by Cleaver could not be used to erode that control.
Procedural History: The District Court of Cherokee County, Texas, dismissed husband’s suit against appellees. Appellant, husband, then challenged the order and claimed he did have standing and that appellees wrongly withheld trust payment from his wife. This court affirmed the lower court’s dismissal of appellant husband’s suit against appellees, trustee and trust property company.
No. The trust provided for mandatory payments of income to the Wife for life. She was conveyed no ownership interest in the cooperation of the trust and has no present possessory interest in the cooperation. The trust income payments to the Wife are therefore her separate property.
Lack of “capacity” to sue pertains to the legal right to prosecute a lawsuit in one’s own name, and arises from the disability of minority or mental incompetency.
On the other hand, “standing” is an element of subject matter jurisdiction. The “standing” doctrine requires that the plaintiff have a justiciable interest in the matter being disputed.
Have you lost a loved one and have no idea how to proceed? Our local Texas attorneys can help you through the probate process. A good probate attorney will guide you through every step of the process from beginning to end. Hire an experienced probate lawyer in the El Paso metro area or in the surrounding communities. Contact us on our homepage, and don’t forget to ask about our Free 30-minute probate attorney consultation. You can schedule your free consultation using the calendar on the right ->. From first steps to final distribution, we handle the entire probate process for you.
In California, community property is defined as any property that is acquired during a marriage or domestic partnership. This includes income from trusts, regardless of whether the trust is created during the marriage or partnership.
In a divorce, property that is held in a trust may be classified as either community property or separate property. The classification of trust property will affect how the property is divided in a divorce.
When it comes to dividing up property in a divorce, community property states have a few extra rules. Texas is a community property state, which means that any property—including income—that either spouse acquires during the marriage is considered community property and belongs to both spouses equally.
When it comes to money and property, the law is clear: what’s yours is yours, and what’s mine is mine. But what happens when the lines between “yours” and “mine” start to blur? In the case of divorce, for example, the court will often divide property between the two spouses. But what about trust money? A trust is a legal arrangement in which one person (the “trustee”) manages property for the benefit of another (the “beneficiary”). If a beneficiary is married, the trustee must determine how much of the money to allocate to each spouse.
California is a community property state, which means that certain property and assets acquired during a marriage are jointly owned by both spouses. This can have implications for how income and assets are taxed, as well as how they are divided in the event of a divorce.
If you’re considering getting a trust, you may be wondering if it will be considered marital property. Trusts can be an important part of financial planning, but it’s important to understand how they may be impacted by divorce.
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A probate court is a court of limited jurisdiction that has jurisdiction over the probate of wills and the administration of estates in Texas. Probate courts are usually operated at the county level, although there are a few county-level courts that operate independently of the regular probate courts. How do you know how to pick […]
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Since tax returns are a central part of our system of tax administration, one would think that the IRS is an expert at handling tax returns. It isn’t. The IRS often loses tax returns. It often checks returns into its systems and then fails to process the tax returns and cannot locate the actual tax… Continue reading Tax Return “Filed” When Provided to IRS Employee
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When a person dies, his or her estate is the collection of the person’s assets at the time of death. The estate is managed by an executor, who is responsible for paying any debts and taxes owed by the deceased, as well as distributing the remaining assets according to the will. If you are the executor or administrator of an estate, you are responsible for preserving the estate’s assets until they are distributed to the beneficiaries. There are several steps you can take to preserve the estate’s assets. The key to preserving a decedent’s estate is to ensure that only the appropriate person has the ability to access assets.
After someone has died, loved ones have to figure out what to do with their belongings. This can present a number of challenges.
Texas law generally says that an interested person can act to secure or preserve property. For example, if you have a claim against the property and it is in danger of being lost, you may be able to act to protect your interest in the property. But doing so can also subject the person who does so to civil and possibly criminal liability. Where is the line between securing property and doing something that is illegal? The law is not all that clear.
It is generally recommended that items of value be documented, and precautions taken. This includes bringing witnesses with you, having police supervision during the proceedings, taking photographic evidence etc. The more information that is documented, the better.
An application for emergency intervention or a temporary probate administration may be needed to secure the decedent’s property. An emergency intervention attorney can help with this situation to secure property.
Methods of securing property depend on the type of property. For real estate, contact a mortgage holder, tenant or other interested party to ensure it will be secured. It may include changing the locks as well. Cash and/or checking account can be secured by transferring them to an account owned by the estate.
There are other property that can be more difficult to secure, such as operating businesses and digital assets, such as cryptocurrencies. Cryptocurrencies are digital assets that are used to send value between accounts.
Property located outside of Texas presents unique challenges. Some of these will be addressed later in this guide, but it is worth noting that the law of another state may need to come into play. This means filing ancillary probate in the other state, which can get complicated and expensive.
When property cannot be secured, it may be necessary to consider a temporary administration. A temporary administration is a court application that is typically used only when other options have been exhausted. In this case, it’s usually a good idea to get a probate attorney involved.
Do you need help with a probate matter in Austin-metro area or the surrounding communities? We are experienced probate attorneys who represent clients with sensitive probate matters. If so, please give us a call us at 512-273-7444 or use the contact form on our homepage to see how we can help.
The estate of a deceased person means all the assets that they own. After someone dies, there is a period in which their assets are managed by an executor or administrator and distributed to the people named in their will or living trust.
The executor or administrator of an estate is responsible for preserving the estate’s assets until they are distributed to the beneficiaries. There are several steps that the executor can take to preserve those assets.
If a person dies without leaving a will, the law of the state where he or she lived at the time of death will control the distribution of his or her property. Each state has a set of laws that govern how a person’s property must be distributed when he or she dies without a will. These laws are called “intestate succession” laws. A state’s intestate succession laws will govern the distribution of an individual’s property when he or she dies without a will.
The probate process is the process of settling a decedent’s estate after death. This process includes gathering the decedent’s assets, paying the decedent’s debts and taxes, and distributing the remaining assets to the beneficiaries.
The value of an estate is the net value of all the property of a person who has died. The gross value of an estate is the total value of all the property of a person who has died. Appraisers use the gross estate value to determine the cost of selling everything and dividing the proceeds among those who inherit.
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The government often has a myriad of remedies available to it. There are common situations in which the government does not have a consistent and thoughtful process for organizing how and when it will pursue the various remedies. This ad hoc method often results in outcomes that are not tailored to achieve the government’s aims… Continue reading The Injunction for Tax Return Preparers
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If you are named as the executor of a will, you’ll be in charge of managing the deceased person’s estate. The executor is the personal representative. However, you might be disqualified from serving as the executor if you don’t meet certain criteria under Texas state law. The Probate Case In re Estate of Gaines, 262. […]
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An executor is a person who has the legal right to manage an estate during and after the probate process. An executor is also referred to as an administrator, personal representative or estate trustee. But is an executor a “party of interest” to other proceedings, especially non probate proceedings? Legal Terminology Doctrine of Res Judicata: […]
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Texas law provides that, in a partition action, the court has the power to sell the property on application of any one or more of the joint owners. The court may also grant money judgments against any or all of the joint owners. This is also true for inherited property. In fact, inherited property is treated differently in Texas. In 2017, the State of Texas adopted the Uniform Partition of Heirs’ Property Act to assist with this. When a person dies without a valid will, this type of action can be used to distribute the deceased person’s property to heirs. But are there differences for partition actions in inherited property cases if they go to the appellate court?
A partition action asks that the court divide the property in a fair manner for the co-owners. The need for partition often arises in situations where the co-owners can no longer get along. This allows a sale of the property to occur and allow the other person to keep whatever money they would have received if they had sold the property before their death (i.e., no probate).
The Rule states that a transcript must be filed within twenty days, or the right to appeal will be lost.
Griffin v. Wolfe, 610 S.W.2d 466 (Tex. 1980).
In a partition suit, the District Court held the parties (Griffin and Wolfe) would have an equal share in the property at hand, ensuring they both owned a percentage, and appointed commissioners to carry out its instruction. Appellants filed their appeal bond and, within sixty days, filed a motion to obtain a time extension on their transcript filing. The Court of Appeals denied their motion under the rationale that Rule 385 applied and Appellants had not met the twenty day requirement for timely filing. The Supreme Court of Texas reversed the Court of Appeals judgment, holding that Appellant’s motion was timely because a partition case involves two judgments, the first of which is appealable as a final judgment. Therefore, the appeal was required to be held to the timeline of an ordinary appeal, which had occurred here.
Does the case involve interlocutory orders? If so, Texas Rule of Civil Procedure applies, and requires that a transcript be filed within twenty days, or the appellants will forfeit their right to an appeal.
Griffin v. Wolfe shows that partition cases on appeal are governed by the rules of an ordinary appeal, and that motions to extend the time to file a transcript should be accepted if they meet the ordinary rather than the shortened timeline.
A partition action can be brought at any time the land was owned by joint owners. However, the right to partition is not absolute; in some cases, there are other competing considerations that may require you to hire an experienced lawyer to determine whether it is possible to bring a partition action. For example, sales taxes on real property transfers must be paid within six months of the transfer date, so if you are considering purchasing property from a joint owner, you should consult with an experienced tax lawyer before making the purchase.
Have you lost a loved one and have no idea how to proceed? Our local Texas attorneys can help you through the probate process. A good probate attorney will guide you through every step of the process from beginning to end. Hire an experienced probate lawyer in the El Paso metro area or in the surrounding communities. Contact us on our homepage, and don’t forget to ask about our Free 30-minute probate attorney consultation. From first steps to final distribution, we handle the entire probate process for you.
The first step in fighting a partition action is to file a written answer. In this answer, you will want to raise any and all defenses that apply to your case. In Texas, the court must take certain factors into consideration if their are heirs to an estate.
If a partition lawsuit is filed against you and you wish to avoid a forced sale of your property, it is important to respond quickly and correctly to the lawsuit. If you wait too long to respond, the court may order the sheriff to sell your property, or the sale of the property will be done by a real estate agent in an estate case.
The first step in a partition action is for the person who wishes to file the suit to file a complaint with the court. The complaint must state that there is property that is owned by someone other than the person filing the suit, and that the rightful owner of the property is entitled to have it turned over to them.
Next, a summons will be issued by the court. This summons will be served on all parties named in the complaint. The summons will notify them of the lawsuit and give them a date by which they must respond.
If any of the parties do not respond to the summons, they may be subject to default judgment, which means that they will automatically lose ownership of their share of the property without having their day in court.
Once all parties have responded, each side will present evidence and arguments to support their position before the judge makes a final decision on who should own what portion of the disputed property.
Generally, it is a common desire of an estate to divide the property in equal shares among all the heirs. However, there are times when this goal proves quite difficult to achieve, mostly when one of the heirs does not agree with the proposed partition, or even refuses to participate in it.
The rule of thumb is that if one of the heirs objects to the proposed partition, then the parties involved (the executors, the heirs and the beneficiaries) should be able to reach an agreement. If they do not succeed, there are two possible ways to go forward: through partition by agreement or through partition by litigation.
In partition by agreement, the parties must come up with a mutually acceptable partition plan and file it before the probate judge. On the other hand, partition by litigation is a judicial process which implies that one party files a lawsuit against one or more other parties for an order for partition.
If you find yourself in a situation where you must win a partition action, there are a few things you can do to increase your chances of success. First, try to come to an agreement with the other heirs involved. If you can reach a mutually acceptable partition plan, this will be the quickest and easiest way to resolve the issue. However, if agreement cannot be reached, you may have to resort to partition by litigation. This is a judicial process in which one party files a lawsuit against another or others for an order of partition. Although this may take longer and be more complicated than reaching an agreement, it is still possible to win if you have a strong case. Be sure to consult with an experienced inheritance dispute lawyer who can help you navigate the legal system and give you the best chance of success.
When a real estate property is left in probate, the executor of the estate can take control of the property and sell it. In some situations, partition action is also available to heirs or beneficiaries. However, part of this efficiency may come at a price…you will have to pay for the partition action.
The executor of the estate is responsible for selling the property and distributing the proceeds to the heirs or beneficiaries. In some cases, the executor may choose to partition the property instead. Partitioning the property means that it will be divided up and sold off separately. The executor will still be responsible for distributing the proceeds from the sale, but he or she will not have to go through the hassle of selling a single piece of property.
Partition action can be a good option for heirs or beneficiaries; however, it is important to keep in mind that you will have to pay for partition action. This is something that you should discuss with your executor before making any decisions.
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