Tag: Articles

  • When Heirship Status Becomes a Texas Jurisdiction Matter

    A court must have jurisdiction to enter a valid, enforceable judgment on a claim. If there is a situation where jurisdiction is lacking, litigants, through various procedures, may retroactively challenge the validity of a judgment to potentially have it rendered void. Subject matter jurisdiction is one type of jurisdiction a court must have. It is the requirement that a court has power to hear the specific kind of claim that is brought to that court. What happens when a court that has already made a ruling is found to have lacked subject matter jurisdiction? How can you tell if a court will have subject matter over your case? Jeter v. McGraw answers these questions.

    Probate Case

    Jeter v. McGraw, 218 S.W.3d 850 (Tex. App. 2007)

    Facts of the Case:

    Leonard Jeter, who was born out of wedlock, brought action declaring him an heir of his alleged biological father and a 50% interest owner of certain real property. Jeter also sought to partition the property. The trial court entered in favor of the opposing party. Their ruling was reversed, and the matter was remanded (returned to the court). On remand, the 1st District Court, Jasper County, granted partial summary judgment in favor of defendants on the heirship issue, denied Jeter’s motion for partial summary judgment, and partitioned the property in question, awarding Jeter a one-fourth interest in the property. Summary judgment occurs when a court grants a ruling to a party involved without a full trial. Jeter appealed and the case was brought to the court of appeals. The court of appeals found that the district court lacked subject matter jurisdiction to rule on Jeter’s heirship status, so they dismissed the case.

    What This Case Means:

    Subject matter jurisdiction exists by operation of law and cannot be conferred on a court by consent or waiver. This means that while a party may waive personal jurisdiction, they cannot under the law waive subject matter jurisdiction. Lack of subject matter jurisdiction renders a judgment void rather than merely voidable since a court must have it to make a proper ruling.

    Exclusive original jurisdiction to determine heirship is conferred upon the county court sitting in probate, and the district court has no such original jurisdiction. This means that heirship cases must be heard in probate court. Jeter’s case was heard in a district court. In the instant case, Jeter’s suit requires a threshold determination of his heirship status prior to any judgment of his entitlement to any of the real property. Essentially, his heirship status needs to be decided in a probate court before a court can make any rulings on his claimed interest in the property. This determination is required here because there is no record evidence that Jeter qualifies as a “legitimate child of his father” for inheritance purposes under the applicable law.

    Because Jeter’s petition pleads his entitlement to one-half of “his father Maine Jeter’s estate as a surviving child,” and because of the complete absence of record evidence that would permit Jeter to be considered a “presumed child” or an otherwise “legitimate child of his father,” the determination of Jeter’s heirship status becomes a threshold matter (meaning it must be dealt with before anything else), and any resolution as to Leonard’s right to or interest in the tracts of land in question is secondary to his establishing a right to inherit from Maine.

    Do you need an Experienced Attorney to help with a Probate Matter?

    When you lose a loved one, the last thing you want to deal with is probate. But if your loved one didn’t have a will or named beneficiaries, probate may be necessary to settle their estate. And if your loved one lived in Texas, the process can be even more complicated.

    That’s because Texas has a unique jurisdiction system when it comes to probate. Unlike other states, which have either district or county courts handle probate matters, Texas has both. So if you’re dealing with a probate matter in Texas, you need an experienced attorney who knows how to navigate the state’s jurisdiction system.

    At Kreig LLC, we only handle Texas probate matters. We know the ins and outs of the state’s jurisdiction system, and we can help you through every step of the process. Contact us today for a free consultation. (512) 273-7444.

    https://austin-probate.com/

    What is an affidavit of heirship?

    An affidavit of heirship is a document used in Texas to establish the identity of an individual’s heirs. The affidavit is usually filed with the court by the executor or administrator of an estate, but it can also be filed by any interested party. The purpose of the affidavit is to provide evidence of the identity of the deceased individual’s heirs so that the estate can be properly distributed.

    Affidavits of heirship are generally used when the deceased died without a will, or when the will is contested. They can also be used in other circumstances, such as when the identity of an heir is unknown or disputed.

    To create an affidavit of heirship, the affidavit must gather information about the decedent’s family members and other heirs. This includes collecting birth and death certificates, marriage licenses, and other relevant documents. Once all of the necessary information has been gathered, it must be presented to a notary public, who will then sign and date the affidavit.

    After the affidavit has been created, it must be filed with the court. Once it has been filed, it becomes a matter of public record.

    How to transfer property after death of parent in Texas?

    If you are the heir to your parent’s estate in Texas, there are a few things you need to know about transferring the property. First, you will need to file a petition for probate with the court. This is necessary to establish your heirship status. Once that is done, you will need to have the property appraised and then file a notice of death with the county clerk. After that, you will be able to transfer the property to your name.

    How to get an affidavit of heirship in Texas?

    If you’re looking to get an affidavit of heirship in Texas, there are a few things you’ll need to do. First, gather all of the necessary documentation. This includes things like a death certificate, will, and any other legal documents that prove you are the rightful heir. Next, contact an experienced probate attorney who can help you navigate the process and ensure that everything is done correctly. Finally, file the affidavit of heirship with the court and provide all required documentation. Once everything is filed, you’ll be able to move forward with your claim.

    What is the purpose of an affidavit of heirship?

    An affidavit of heirship is a legal document that is used to establish the identity of an individual’s heirs. This document is often used in situations where an individual has died without leaving a will, or when the identity of the heir is in question. The affidavit of heirship can be used to establish ownership of property, to settle estate matters, or for other legal purposes.

    Who can file an affidavit of heirship in Texas?

    In Texas, anyone can file an affidavit of heirship. However, the person filing the affidavit must be able to show that they have personal knowledge of the facts stated in the affidavit. Additionally, the person must be 18 years of age or older and must not be a party to the estate.

    The post When Heirship Status Becomes a Texas Jurisdiction Matter appeared first on Austin Probate Attorney, Kreig LLC.

  • Can Reasonable Diligence Trump a Probate Statute of Limitations in Texas?

    Default for failing to file? Default at Law A default is the failure to do something required by law or the failure to comply with a contractual obligation. When it comes to filing a will for probate, there is a timeline that the filer must comply with in order to avoid being found in default. […]

    The post Can Reasonable Diligence Trump a Probate Statute of Limitations in Texas? appeared first on Dallas Probate Attorneys.

  • Closing a Probate in Texas

    After a loved one dies, it can be difficult to know what to do next. One of the things you may need to do is close their probate in Texas. This can seem like a daunting task, but luckily this article will walk you through everything you need to know!

    Are you the Executor or Administrator of a Will or Estate?

    When a loved one dies, the process of closing their estate can be overwhelming. If the deceased left behind a will, the executor named in the will is responsible for ensuring that the estate is properly closed. This includes filing any necessary paperwork with the court, distributing assets to beneficiaries, and paying off any debts or taxes owed by the estate.

    In Texas, the probate process is governed by state law. The executor must file a petition with the court to open probate, and then follow the court’s instructions for closing the estate. The entire process can take several months to complete.

    While going through probate can be daunting, it is important to remember that you are not alone. There are many resources available to help you through the process, including online forums, support groups, and books about probate in Texas. With a little research and patience, you can successfully close your loved one’s estate.

    When a Probate Estate Can be Closed: Steps, process, and procedure

    When all of the debts and taxes have been paid, and all of the assets have been distributed, the probate estate can be closed. The executor or administrator files a “Petition to Close Estate” with the court, and after a hearing, the court will issue an order closing the estate. Once the order is signed by the judge, the estate is officially closed.

    Do Nothing, AKA Informal Closing

    In Texas, the law provides that you can close a probate informally if all the beneficiaries agree on how to distribute the estate and there are no creditors. You don’t even have to go to court. All you have to do is file a document called an “Affidavit of Informal Probate” with the county clerk where the decedent died. The affidavit must be signed by all the beneficiaries and state that they agree on how to divide up the estate.

    If there are no objections from creditors or other interested parties, and everyone agrees on how to distribute the assets, then this is the easiest way to close a probate in Texas. It’s important to note, however, that if there are any disagreements later on, you will not have the protection of the court system. So if someone later claims they were cheated out of their inheritance, there’s nothing stopping them from going after the estate.

    Closing Report: Final Accounting

    It’s always a good idea to have a solid understanding of the probate process before you begin. This way, you can be sure that everything is being handled correctly and efficiently. After all, no one wants to deal with the stress of probate if they don’t have to.

    The good news is that, in most cases, closing a probate in Texas is a relatively simple process. Here’s what you need to know:

    1. The first thing you’ll need to do is file a “Closing Report” with the court. This report will let the court know that the estate has been settled and that all debts have been paid.

    2. Once the Closing Report has been filed, the court will issue an “Order of Discharge.” This document essentially closes the estate and releases the Executor from any further responsibility.

    3. Finally, you’ll need to file a “Satisfaction of Debt” with the court. This document proves that all debts owed by the estate have been paid in full. Once this has been done, the probate process is officially over!

    Keep in mind that these are just general guidelines – every probate case is unique and may require different closing actions.

    Notice of Estate Closing

    It’s always a good idea to let your friends, family, and loved ones know when you’re closing a probate. After all, they may be wondering what’s going on with the estate and when they can expect to receive their inheritance. Sending out a notice of estate closing is a courtesy that will let everyone know the status of the probate and when it will be wrapped up.

    If you’re closing a probate in Texas, there are a few things you need to include in your notice. First, you’ll need to list the decedent’s name and date of death. You’ll also need to provide your contact information, as well as the contact information for the executor or administrator of the estate. Finally, you’ll need to include a statement that the probate is being closed and that all claims against the estate must be filed within 30 days.

    Sending out notices is just one of the many tasks that come along with closing a probate. But it’s an important one, so be sure to do it right!

    Petition for Judicial Discharge: Go to the law courts for a hearing

    After the executor has filed all of the required paperwork and paid all debts and taxes, they can file a Petition for Judicial Discharge with the court. Once this is done, the court will issue an Order Discharging Executor, which officially releases them from their duties.

    Conclusion

    When a person dies, their estate goes through a process called probate. Probate is the legal process of distributing a person’s assets after they die. If you are named in someone’s will as an executor, it is your responsibility to close the probate and distribute the assets according to the will. Depending on the size of the estate and whether or not there is any disagreement among the heirs, closing a probate can take anywhere from a few months to a few years. In Texas, there are certain steps that must be taken in order to close a probate successfully. With careful planning and attention to detail, you can ensure that the probate is closed properly and efficiently.

    Do you need the help of an Experience Attorney for an Austin Probate?

    If you are going through the process of probate in Texas, you may be wondering if you need to hire an attorney. While it is not required, there are many benefits to having an experienced attorney by your side. Here are a few reasons why you may want to consider hiring an attorney for your Austin probate:

    1. An experienced attorney can help guide you through the complicated process of probate and ensure that everything is done properly.

    2. An attorney can help you avoid making costly mistakes during the probate process.

    3. If there are any disputes among family members or creditors during probate, an attorney can help resolve them.

    4. An attorney can help protect your interests and make sure that the estate is distributed according to your wishes.

    If you are considering hiring an attorney for your Austin probate, contact Kreig LLC today. Our attorneys only handle probate matters in Texas and we can provide you with the guidance and representation you need during this difficult time. Call us today for a FREE consultation. (512) 273-7444.

    https://austin-probate.com/

    Related Questions

    How long does it take to complete probate in Texas?

    The probate process in Texas typically takes between six and twelve months, depending on the size and complexity of the estate. If the estate is small and there are no disputes among the heirs, the process may be completed relatively quickly. However, if the estate is large or complicated, or if there are disagreements among the heirs, the process may take longer.

    How do you close a probate in Texas?

    The process of closing a probate in Texas is not as complicated as one might think. The first step is to file a petition with the court, which will then appoint an executor to handle the estate. Once all debts and taxes have been paid, the executor can then distribute the assets to the beneficiaries. Finally, the court will issue an order closing the estate.

    How long do you have to close an estate in Texas?

    The independent administration of an estate is considered closed 30 days after the date of the filing of a closing report or notice of closing estate unless an interested person files an objection with the court within that time.

    What happens after probate in Texas?

    Depending on the type of probate estate, different things may happen after probate is closed. For example, if the deceased person left behind a will, the executor named in the will is responsible for distributing the assets according to the terms of the will. If there is no will, then the court will appoint an administrator to handle the distribution of assets. After probate is closed and all debts and taxes have been paid, any remaining assets will be distributed among the heirs or beneficiaries. The process of distributing assets can be complicated, so it’s important to seek legal advice if you are an heir or beneficiary of a probate estate.

    How to probate a will in Texas?

    When a person dies, their property must go through probate in order to be distributed to their heirs. Probate is the legal process of proving that a will is valid and that the deceased person’s property is properly distributed according to their wishes.

    If the deceased person left a valid will, the executor named in the will is responsible for opening probate and distributing the estate according to the terms of the will. If the deceased person did not leave a will, their next of kin must open probate and distribute the estate according to Texas state law.

    Opening probate can be a complicated process, so it’s important to seek legal help if you’re unsure of how to proceed. Once probate is open, the executor or administrator must give notice to all interested parties, including creditors and heirs. They must also inventory and appraise all of the deceased person’s property.

    After all debts and taxes have been paid, the executor or administrator can then begin distributing the estate according to the terms of the will or Texas state law. Once everything has been distributed, probate can be closed.

    If you’re facing the task of closing a probate in Texas, seek legal help to ensure that your rights and interests are protected.

    The post Closing a Probate in Texas appeared first on Austin Probate Attorney, Kreig LLC.

  • What Can a Probate Court Do About Child Support?

    Legal Terminology Ad Litem Means for the suit, a person appointed such a role is responsible for a ward’s affairs in a particular aspect of litigation. Texas Probate Code, Section 608 [Now Texas Estates Code] Allows a probate court to transfer a matter from a district, county, or statutory court to itself when the matter […]

    The post What Can a Probate Court Do About Child Support? appeared first on Dallas Probate Attorneys.

  • When Does a Judge Deny Due Process of Law?

    If a judge has a personal interest in the outcome of a case, it’s possible that a litigant may be deprived of due process of law guaranteed by the United States Constitution. But what is the test to see if the judge’s personal interest actually deprives due process? Ex Parte Ross gives us an answer.

    Indigent:

    A person who does not have adequate resources to obtain basic necessities, defendants within this category have a constitutional right to state-funded or court-appointed representation.

    Criminal Case

    Ex Parte Ross, 522 S.W.2d 214 (Tex.Cr.App. 1975), cert. denied, 423 U.S. 1018, (1975)

    Facts & Procedural History: Example of Fundamental Rights

    Ross (Petitioner) pled guilty to the misdemeanor offense of driving while intoxicated and was convicted in the Hansford County Court in the State of Texas on September 26, 1974. Petitioner filed a habeas corpus application in the 84th Judicial District Court of Hansford County, alleging that his trial was carried out in a manner that deprived him of his constitutional rights regarding due process and equal protection. The District Court denied Petitioner’s application, holding that: (1) the trial met constitutional and statutory requirements; and (2) Petitioner failed to meet the requisite standard (preponderance of the evidence) within his application. The Court found that Petitioner had voluntarily waived his right to counsel (despite him being indigent) and his right to trial by jury. The Court stated that the judicial officer (the judge) who tried the case had not impeded Petitioner’s right to a fair and impartial hearing or his right to counsel. In addition, nothing in the original complaint suggested issues with Petitioner’s mental state at the time of the offense, and the sworn testimony used supported the allegations made against the petitioner.

    The Court of Criminal Appeals affirmed the judgment of the District Court, holding that: (1) where a judge had interest in county expenditures (serving as chief administrator of county and the presiding officer of county commissioner’s court) such expenditures did not prevent them from being impartial in a case’s outcome; (2) criminal intent was not an essential element to the offense of driving while intoxicated; (3) a trial of a criminal case before a non-attorney judge did not violate due process; (4) adequate evidence existed supported the district court’s finding that petitioner knowingly and voluntarily waived his right to counsel; and (5) that the statute’s requirement that a defendant must have counsel representation before the defendant’s waiver of a trial by jury could be accepted did not deny Petitioner due process or equal protection of the law.

    For the first issue, the Court found that Petitioner failed to show a reasonable probability that the judge’s interest in the economic and financial affairs of the county caused him to deny the petitioner effective assistance of counsel (Petitioner had claimed that the judge’s two positions meant that he was vitally interested in county expenditures, including the appointment of counsel for indigents). For the second issue, the Court stated that the only elements for driving while intoxicated were intoxication and driving upon a highway in such a condition, so Petitioner’s argument (that complaint upon which his conviction was founded failed to allege his culpable mental state, thereby making his conviction void) was invalid because criminal intent was not an element. For the third issue, the Court determined that there is no constitutional or statutory requirement in Texas that a county judge be an attorney. The only qualification concerning legal knowledge or training was that a county judge be well versed in the law of the State. For the fourth issue, the Court stated that Petitioner’s stance lacked merit because he had previous experience with criminal proceedings and waivers of counsel (previous experience can show a waiver was knowingly and intelligently made) and that the record for the trial at issue included Petitioner’s testimony that he understood the process. For the fifth and final issue, the Court declared that no authority held that the right to assistance of counsel prior to waiver of trial by jury in a criminal case was a fundamental right under due process of law.

    Main Considerations

    When does a judge deny a defendant due process of law?

    Where a judge has a direct, personal, and substantial pecuniary interest in reaching a verdict against the defendant, due process of law is deprived. The test used to determine whether due process is offended is whether the judge’s situation is one that would tempt the judge to forget the burden of proof required to convict the defendant, or which might lead him not to properly balance the needs of the state and the accused.

    Is criminal intent an element of driving while intoxicated on a public highway?

    No, the only elements are (1) intoxication; and (2) driving on a public highway in such a state.

    The Takeaway

    Ex Parte Ross shows that: (1) judges can be considered impartial despite their occupancy in different judicial positions and non-attorney status; and (2) criminal intent is not an element of the offense of driving while intoxicated.

    Do you need an Experienced Probate Litigation Attorney?

    If you are the legal representative of a deceased person and you believe that any legal process or proceeding currently pending against their estate is improper, you should immediately seek the assistance of an experienced probate litigation attorney. A probate litigation attorney can provide invaluable assistance in defending any legal challenge to a deceased person’s estate. Call us today for a FREE consultation. (512) 273-7444.

    https://austin-probate.com/

    What is meant by the due process of law?

    Due process of law is a term used in American jurisprudence that refers to the fundamental principles by which a person must be given notice and an opportunity to be heard before their rights are violated. To receive due process, a person must have notice of the charge against them, be given an opportunity to present a defense, and have a fair trial.

    There are many factors that can affect whether or not someone receives due process of law, including the severity of the crime, the jurisdiction in which the case is being tried, and the accused’s socioeconomic status.

    Is due process a constitutional right?

    Due process is a constitutional right that many people believe is fundamental to our legal system. Due process rights protect individuals from unlawful government actions. Due process rights typically involve specific steps that must be taken before a person can be deprived of their liberty or property.

    There is no single answer to when due process rights may be violated, as each case will require examination of the specific facts and circumstances involved. However, some factors that may suggest a due process violation include: an excessive delay in proceedings; an improper interference with the right to a fair trial; and the use of arbitrary or abusive procedures.

    What is due process of law and why is it important?

    Due process of law is a fundamental principle of the United States Constitution that guarantees individuals the right to due process, which is a series of steps that must be followed when government attempts to take away their rights. This guide will explain what due process of law is, and why it’s so important in a free society.

    What is Due Process of Law?

    Due process of law is a fundamental principle in the United States Constitution that protects citizens from arbitrary government action. Due process consists of five basic steps: (1) an individual must be notified of the charges against him or her; (2) a timely opportunity to be heard in a public setting; (3) access to evidence against oneself; (4) the right to counsel; and (5) the right to be presumed innocent until proven guilty. These rights are essential for ensuring that all individuals have an opportunity to defend themselves in a fair trial.

    Why is Due Process of Law Important?

    Due process of law is one of the most important principles in a democracy. It ensures that everyone is treated fairly and that the government cannot unfairly punish someone. Due process of law also protects people from being arbitrarily arrested or taken away from their homes.

    What are the Protections Due to Due Process of Law?

    Due process of law is a set of principles and rules that protect individuals from arbitrary government action. These protections include the right to be informed of the charges against them, to be heard in a fair trial, and to have the assistance of counsel if they choose to have one. Due process is essential for protecting individuals from unjustified government interference in their lives.

    Due process of law is important because it helps ensure that everyone is treated fairly and with respect. Without due process, governments could arbitrarily punish people without justification or appeal. This would violate the rights of innocent people and could ultimately lead to chaos and anarchy.

    Due process of law is a cornerstone of our democratic society and must be protected at all costs.

    Conclusion

    Due process of law is an important principle that ensures that everyone in a legal system has the same rights and is treated fairly. It’s essential that due process is followed when someone is accused of a crime, since it allows for a fair trial and protects the individual from improper or unlawful treatment by the government. Thank you for reading!

    What is due process in the constitution?

    The Constitution of the United States is the supreme law of the land and sets forth the fundamental principles of American government. Due process is a fundamental principle of American law that requires that all people be treated equally under the law and have a fair opportunity to defend themselves in a legal proceeding.

    Due Process in the Constitution

    Due process is a fundamental principle in the United States Constitution. It protects citizens from arbitrary government action. Due process includes the right to be heard in a legal proceeding, the right to be informed of the charges against you, and the right to a fair trial.

    What is Due Process?

    Due process is a fundamental principle in the United States Constitution that mandates that all individuals be given fair and equal treatment before being subjected to government action. The Fifth Amendment to the Constitution specifically protects individuals from having their “rights … deprived” without due process of law. Due process is also a common legal doctrine used in cases involving government action, such as property seizures or imprisonment.

    Due process is often defined as the four steps necessary for a person to have their rights protected: notice, an opportunity to be heard, an impartial decision-maker, and a right to appeal. Notice typically requires the government to provide its reasoning for wanting to take an individual’s property or impose punishment on them. The opportunity to be heard typically requires the individual being punished or seized with their lawyer present so they can argue against the government’s decision. An impartial decision-maker is necessary in order for justice to be served, and lastly, the right to appeal ensures that individuals can have their case reviewed by a higher authority if they feel their rights were not properly protected.

    Due process has been a bedrock principle of American justice since its inception, and it remains essential in protecting individuals from unjustified government action.

    The Four Elements of Due Process

    The Four Elements of Due Process in the Constitution are: notice, an opportunity to be heard, a fair hearing, and the right to appeal. Notice is when the government gives the person accused of a crime an opportunity to be heard. The right to be heard means that the person has the right to be heard in a public setting and have their lawyer present. A fair hearing means that the person has the right to be treated fairly by the government and their lawyer. The right to appeal means that if the person feels that they were not treated fairly during their trial or hearing, they have the right to go to a higher court to get their case reviewed.

    The Right to a Fair Trial

    The Constitution protects citizens from being deprived of their due process rights. This means that individuals must be given the opportunity to have a fair trial before being punished. The Constitution also provides for certain rights, such as the right to a public trial, which protect citizens from unfair treatment in court.

    The Right to Remain Silent

    The Fifth Amendment to the United States Constitution guarantees all persons the right to remain silent. This amendment was added to the Constitution in 1791, after the American Revolution. The amendment states that “No person … shall be compelled in any criminal case to be a witness against himself.”

    This amendment protects citizens from being forced to incriminate themselves, and ensures that they have the right to refuse to answer questions or provide testimony in a criminal trial. This protection is important because it allows citizens to protect their privacy and dignity, and prevents them from being coerced into testifying against themselves.

    The right to remain silent also applies in civil proceedings, such as lawsuits. In these cases, defendants have the right to refuse to answer questions on the grounds that they may incriminate themselves. They also have the right to have an attorney present during questioning.

    The Right to Habeas Corpus

    The right to habeas corpus is one of the most important rights in the US Constitution. It is a legal principle that allows prisoners to challenge their detention in court. The habeas corpus clause states: “No person … shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.” This means that anyone can be detained without being charged if they are believed to be guilty of a crime only if they have been indicted by a grand jury and are currently serving in the military or militia.

    Conclusion

    Due process of law is a fundamental right guaranteed by the United States Constitution. It protects individuals from arbitrary government action, and it requires the government to follow certain procedures before taking any action that could impact someone’s rights. Due process includes the right to be heard in a hearing, the right to know what evidence will be used against you, and the right to have an attorney present during your interrogation or trial.

    The post When Does a Judge Deny Due Process of Law? appeared first on Austin Probate Attorney, Kreig LLC.

  • Can a Court Add Probate Proceedings to a Muniment of Title?

    Legal Terminology Muniment of Title/Deed: Means there is no need for administration of the estate. This allows for a will to be probated quickly and cost-efficiently. Administration of an Estate: Allows for the management of the liabilities and assets of a deceased person. Probate Case In re Estate of Kurtz, 54 S.W.3d 353 (Tex. App. […]

    The post Can a Court Add Probate Proceedings to a Muniment of Title? appeared first on Dallas Probate Attorneys.

  • How Do You Determine Standing in Texas Probate Court?

    In the Boone v. McGalley case, challenges to an applicant’s standing in probate court require a separate hearing prior to continuing with further action. Probate trial courts, without the collective designation of standing, are not able to rule on challenges and must defer to a higher court. Probate Law Terminology In Limine: means that an […]

    The post How Do You Determine Standing in Texas Probate Court? appeared first on San Antonio Probate Attorney, Kreig LLC.

  • Conflicts of Law: What Law Applies?

    When Two Laws Conflict

    Sometimes the issue arises of which state law to apply to a case. Depending on which law is applied can change the outcome of a case and what a party is held liable for. How does a court decide which law to apply? What happens when there are conflicting laws that could change the outcome of a case? Greenberg Traurig of New York, P.C. v. Moody answers these questions.

    Greenberg Traurig v. Moody, 161 S.W.3d 56 (Tex. App. 2005)

    Facts of the Case: Meaning and Definition

    The investors of a Delaware corporation called IFT brought fraud actions against the law firm that represented them, Greenberg Traurig. IFT was a corporation that was formed to design, develop, and market biotech indoor aquaculture production and processing facilities. As counsel for IFT Greenberg Traurig agreed to represent IFT “in connection with both the Company’s general corporate affairs and a proposed initial public offering, together with other attendant corporate and [Securities and Exchange Commission] matters.” Essentially Traurig’s responsibilities were to represent IFT accurately and responsibly to its investors and ensure that IFT was complying with the securities laws.

    The investors of IFT brought charges against Traurig alleging that Traurig was non-compliant with the securities laws. They brought charges of fraud against Traurig which the trial court found Traurig guilty of under Texas law. On appeal, the court of appeals found that the trial court erred in applying Texas law to the case, and that they should have applied New York law. Applying New York law, the court of appeals reversed the decision of the trial court that granted the investors to receive compensation for their private claims since under New York law the investors had no right to a private claim. The court of appeals did however uphold the trial court’s ruling that Traurig acted with an intent to defraud the investors.

    What This Case Means: Rules, Principles, and Provisions

    A conflict of laws arises when a court must decide which law to apply to a case because the laws that could potentially apply would have varying outcomes changing the court’s decision of the case. Here, the trial court applied Texas law to all of the claims against Greenberg Traurig. Greenberg Traurig, however, asserted that New York law should be the law applied. The investors bringing the claims against Traurig argued that Traurig had already waived their right to argue this point; however, the court of appeals disagreed with this argument. The court of appeals found that Traurig had in fact preserved their right to argue this point because they had asserted to the trial court in several ways how New York law was applicable to this case.

    A party may waive certain rights in court if they are not brought up soon enough in the trial process. If a party does not raise certain arguments at the trial court level, that party waives their right to bring that argument up later in the appeals process or further down the line. Some arguments may be brought up at any point in the trial process; however, a conflict of laws issue must be brought up at the trial court level. Had the court of appeals found that Traurig did not raise this issue in the trial court, then Traurig would not be able to argue this to the court of appeals. The court of appeals did find that Traurig raised this issue in trial court and therefore, it was still up for review.

    Since the issue was still up for review, it was then the court of appeals’ job to find which state law should actually apply. In Texas, a conflict of laws issue is solved using a method called “the most significant relationship test.” This essentially means that Texas courts, when determining a conflict of laws issue, look to find which state has the most meaningful connections with and interests in the parties and transactions. Here, the claims against Traurig can be grouped into two categories: 1) fraud-based claims and 2) conspiracy claims. The court of appeals needed only to analyze the fraud-based claims to determine the conflict of laws issue as there is no substantive difference between Texas law and New York law in regards to conspiracy claims.

    The general factors of the most significant relationship test that are most applicable here are: the needs of the interstate and international systems, the relevant policies of the forum, the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, the protection of justified expectations, the basic policies underlying the particular field of law, the certainty, predictability, and uniformity of result, and the ease in the determination and application of the law to be applied. These general factors can be boiled down into more specific topics that the court of appeals used to determine what should be the controlling law. These more specific topics include contacts in the state (referring to people, corporations, and relationships related to the suit) and where the incidents giving rise to the suit took place.

    In the trial court the Investors asserted a variety of allegations against several different parties. Some of the allegations were aimed at IFT and its principals, with whom the Investors had personal contact and direct dealings, while other allegations were aimed at defendants like Greenberg Traurig, with whom the Investors had no contact and no direct dealings. This important distinction greatly impacts the conflict-of-laws analysis as the personal contact and direct dealings would create a more significant relationship than the indirect and non-contact would.

    Significantly, all the events relating to the Investors’ claims against Greenberg Traurig occurred outside of Texas. Although the Investors lived in Texas, there was little other connection with Texas. Most of the original parties being charged were residents of New York or Pennsylvania. The meetings and communications between the Investors and one or more alleged conspirators took place outside of Texas. Most corporations involved were based in New York or Pennsylvania. IFT’s facilities were located in Pennsylvania and Maine.

    The conduct alleged to have caused the Investors’ injuries occurred mostly in New York and, to a lesser extent, in Pennsylvania, the Texas interests were far less significant given all considerations. The court of appeals found that New York, as the central point of most of the alleged fraudulent acts and as Greenberg Traurig’s principal place of business, had the greatest interest in the case, the closest connection, most contacts, and therefore, should be the controlling law. Under the “most significant relationship” test, the court found that Texas lacked the contacts with, or interests in, the litigation that could support a finding that it had the most significant relationship.

    Do you need an Experienced Attorney to protect your interests?

    If you are involved in a legal dispute, it is important to understand which law applies. The law that applies in a particular case is known as the “conflict of law.” The conflict of law can be complex, and an experienced attorney can help you navigate the different laws that may apply to your case. Call us today for a FREE attorney consultation. (512) 273-7444

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    What are conflicts of law principles and theories? Choice of law?

    There are numerous conflict of law principles, which can be generally classified into two groups: choice of law and recognition and enforcement of judgments.

    Conflicts of law principles governing the choice of law, also known as lex loci, require that the courts apply the law of the jurisdiction with the most significant relationship to the subject matter of the dispute. This is often the jurisdiction where the events giving rise to the litigation occurred, but not always. For example, in a contract dispute involving parties from different states, the state where the contract was made may have little connection to the rest of the parties or subject matter, and so another state’s laws might be more appropriate.

    The conflict of law principles governing recognition and enforcement of judgments, also known as comity, require that courts give deference to judgments issued by courts in other jurisdictions. This is based on the notion that it is unfair for a party to have to litigate the same issue twice, in two different jurisdictions. However, there are limits to comity, and a court may decline to recognize or enforce a foreign judgment if doing so would violate public policy.

    There are two types of conflicts that can arise in our legal system: jurisdictional conflicts and choice of law conflicts. Jurisdictional conflicts occur when there is more than one court that has the authority to hear a case. Choice of law conflicts occur when there is more than one legal system that could be used to resolve a dispute.

    What is an example of conflict of law?

    There are many examples of conflict of law, but one common one is when two people live in different states and get divorced. If they have children, the custody arrangement may be decided based on the laws of the state where the child lives, rather than the state where the parents live.

    Which type of law is used to help resolve disputes?

    When two parties have a dispute, the law that is used to help resolve the issue is called conflict of law. There are many different types of law, so which one is used can depend on the specific situation. If the dispute is between two businesses, for example, contract law may be used. If the dispute is between two countries, public international law may be used. And if the dispute is between two people, family law may be used. The type of law that is used in a particular case can have a big impact on the outcome, so it’s important to choose the right one.

    An example of when federal and state laws conflict

    When it comes to the law, there are times when federal and state laws can conflict with each other. A recent example of this is when the state of California passed a law that made it legal for people to use marijuana for medicinal purposes. However, under federal law, marijuana is still considered an illegal drug. This created a conflict between the state and federal government, with each side arguing that their respective laws should be followed.

    In cases like this, it’s usually up to the courts to decide which law should take precedence. In the case of California’s medicinal marijuana law, the courts have so far sided with the state, ruling that people who use marijuana for medicinal purposes should not be prosecuted under federal law. However, this is just one example of how federal and state laws can conflict, and it’s likely that there will be more conflicts in the future as states continue to pass their own laws on various issues.

    What is Private International Law?

    Private international law is the body of law that governs cases with a foreign element. This can include anything from cross-border business transactions to personal injury cases that occur in another country. When a case has a foreign element, it can be difficult to determine which country’s laws should apply. This is where conflicts of law comes in. Conflicts of law is the body of law that governs how to determine which country’s laws apply in a given situation.

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