When a loved one passes away, it can be a difficult and overwhelming time for their family and loved ones. One of the many tasks that must be addressed is the distribution of their assets, which can be particularly complex if the deceased did not leave behind a will. This is known as probate, and […]
The post Navigating Probate Without a Will: A Real-Life Case Study appeared first on Austin Probate Attorneys.
Introduction A special needs trust is a type of trust fund established to provide supplemental financial support for a disabled individual, without jeopardizing their eligibility for government benefits. If you’re the parent or guardian of a disabled individual in Texas, setting up a special needs trust may be something you’ve considered in order to provide […]
The post What Is a Special Needs Trust? appeared first on Austin Probate Attorneys.
Introduction A constructive trust is an equitable remedy imposed by a court to prevent one party from unjustly enriching themselves at the expense of another. It can be used to rectify many different types of situations, such as when someone uses fraud or duress to obtain property. In Texas, a constructive trust does not have […]
The post Does a Constructive Trust Have to Be in Writing? appeared first on Austin Probate Attorneys.
Introduction When someone dies, their property becomes subject to the probate process. This is a legal procedure that pays debts and divides up property as outlined by the Will (or law in the absence of a Will). If there are disputes about who gets what or if someone believes the will was improperly executed, they […]
The post How to Reverse a Texas Probate Judgment appeared first on Austin Probate Attorneys.
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.
Jeter v. McGraw, 218 S.W.3d 850 (Tex. App. 2007)
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.
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.
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.
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.
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.
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.
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.
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.
With a will, you can divide both your tangible as well as your intangible assets. Whether an item belongs in the estate or not depends on what type of asset it is. It’s very important to make this distinction between tangible and intangible assets, otherwise the distribution of an item of significant value could be affected.
Tangible personal property is any physical item other than real estate. Tangible personal property includes furniture, fixtures, machinery and equipment. Tangible personal property includes any item that is or can be removed or transported without material change to its form or function, such as apparel and furnishings.
Intangible property generally includes assets which are not physical. Common examples include assets like cash, reputation, copyrights, patents , and goodwill. Intangible assets may also include property rights or claims to property that is itself not tangible. For example, ownership of land includes the right to use it, licenses that grant limited access to computer software, and securities such as bonds or stocks. Basically, intangible assets are not physical in nature.
It is common to assume that since money is physical, it is a tangible asset. However, the courts have ruled that money is an intangible asset. However, if the decedent owned some personal property that was not of a fungible nature, such as a coin collection or valuable currency items that the decedent identified specifically, it could be part of his or her intangible personal property and would pass outside the will. But, generally speaking, cash is an intangible item.
What about stock certificates? A recent case analyzed whether stock certificates in a closely held company could be considered tangible personal property. Despite the plaintiff’s argument that stock certificates were tangible assets, the court ultimately found that they were intangible and therefore not subject to the decedent’s Will. The court ruled that the document only represented what the actual interest was in the corporation, so it could not be admitted into evidence.
Therefore, it is always important to pay close attention to how an executor classifies assets during distribution of an estate. The classification of assets can be very important in the distribution process because it could mean that tangible assets, such as real estate or vehicles, are distributed differently than intangible assets, like stocks and bonds. If you have any questions, call one of our trusted probate attorneys for a free consultation.
Use the calendar on the right (–>) to schedule your FREE consultation today!
Intangible personal property is the most difficult to describe since it doesn’t physically exist. In Texas, intangible personal property refers to any asset that isn’t real estate, money or other tangible items. Determining who inherits intangible items can be difficult since not everyone will receive the same type of assets. A good example of intangible personal property includes things like art, stocks and bonds, life insurance, stocks and cars.
Laws on probate assets are often very different in each state. This is because states have different laws on which items must be probated and which ones don’t need a formal probate. For example, in California, Arizona, Nevada and Oklahoma, the only assets that need to go through a formal probate court are real estate and money. Other assets pass straight to the person who inherits the item.
In contrast, tangible personal property is anything that can be physically touched. This would include items such as furniture, clothing, jewelry and vehicles. Tangible personal property is generally much easier to divide up since it can be divided into equal shares. For example, if there are three children inheriting a home, each child would receive an equal share of the home.
It’s important to note that some states consider certain types of intangible personal property to be probate assets. For example, in Texas, stocks and bonds are considered probate assets. This means that they must go through the formal probate process in order to be transferred to the rightful heirs. Other states have different laws on which intangible items are considered probate assets.
When you are dividing up your parent’s estate after they pass away, you’ll need to determine what is considered an asset, and what is not. Here are some examples of tangible and intangible assets:
Tangible Assets Tangible assets are those that you can touch, like jewelry, artwork, or other valuable items. Tangible assets will be identified on your parent’s balance sheet.
Some people might consider their family home to be a tangible asset, but it can also be an intangible one. The same is true of any property that your parents own outright. If there are no mortgages or other loans against the property, then it qualifies as an asset.
Intangible Assets Intangible assets are those that you cannot touch, such as patents, copyrights, and goodwill. These items may not be listed on your parent’s balance sheet, but they can still have value. You’ll need to have these appraised in order to determine their worth.
Many people will put down things like jewelry and money in a will. However, there are things that may be considered intangible assets as well. Things like trademarks or patents are also included in this category as well. In order to understand what they are and why they are in a will, it is important to understand what an intangible asset is. An intangible asset is defined as any nonphysical asset that has value. For example, patents, copyrights, trademarks and goodwill can all be considered intangible assets.
The estate tax laws state that any property that has an established value of an asset can be considered an intangible asset. This can be determined by the person’s total assets and whether or not the fair market value is greater than the total value of the tangible assets. This only comes into play when other assets have been exhausted. Once the other assets have diminished, the value of the intangible assets will help lower the tax burden on the estate.What are some of the benefits of creating a trust?
There are many reasons why someone might want to create a trust. One common reason is to avoid probate. Probate is the legal process that happens after someone dies, during which their assets are distributed according to their will or estate plan. Trusts can help avoid probate because they allow assets to be transferred directly to beneficiaries without going through probate court. This can save time and money, and it can also keep your affairs private since probate proceedings are public record.
Another reason people create trusts is to protect their assets from creditors or lawsuits. When you put assets in a trust, they become protected from your creditors—meaning they can’t take them to pay off your debts. This can be especially helpful for business owners or people with significant wealth who may be at risk for lawsuits. Trusts can also help you manage your assets if you become incapacitated since the trustee will be able to step in and make decisions on your behalf.
Lastly, trusts can be used for tax planning purposes. For example, if you have a large amount of money in an IRA, you may want to put it in a trust so that your heirs won’t have to pay taxes on it when they inherit it. There are many different types of trusts, and each has its own set of rules and regulations—so it’s important to work with an attorney or financial advisor who can help you choose the right one for your needs.
A tangible asset is one that you can touch, like your house or car. Intangible assets are less concrete. They don’t have any physical form and may be difficult to value, like a good friend or a closely held business.
Texas Law defines both tangible and intangible assets in terms of property.
In Texas, property includes both real (tangible) and personal (intangible) property; some property may be classified as both.
Texas Law states that Intangible personal property includes all legal or equitable interests that are not considered real property under the laws of this state. Some examples of intangible assets are copyrights, patents, and goodwill. These are all things that have value, but you can’t touch them or see them. They can be very difficult to value because there is often no market for them.
One example of a tangible asset is your house. It’s something that you can touch and see. It’s usually easy to value because you can look at similar houses in the area and get an idea of what it’s worth.
There are a number of different assets that may be distributed in a will. The most typical assets are houses, vehicles (tangible personal property, or TPP), bank accounts, valuable personal property and retirement accounts. There is TPP, which is the most typical item that people will find in their will. But what is TPP? TPP is anything that you own that you can physically touch, like your car, your computer, furniture, etc. It doesn’t include financial instruments or intangible personal property (IP).
The post What’s the difference between Tangible and Intangible Assets in Probate? appeared first on Austin Probate Attorney, Kreig LLC.
An insurance claim file can be attorney-client privileged. The attorney-client privilege is a legal principle that protects communications between attorneys and their clients from being disclosed in court. The insurance claim file is sometimes considered to be part of the attorney-client relationship if it contains confidential information about the case. The following case gives us more information:
Writ of Mandamus: an order from a court for a governmental entity to conform to their legal obligations
Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994)
Jill Mullinax and Charlotte Farley had an automobile accident in 1991. Mullinax had State Farm insurance and was represented by Danny Humphreys and Harlan Holiner, both of whom served as claim adjusters. Farley sued Mullinax, and the case was settled prior to trial. At the same time, while this suit was pending, Farley filed another suit alleging that State Farm Humphreys, and Holiner engaged in bad faith and unfair settlement practices under Article 21.21 of the Texas Insurance Code. In response, State Farm filed a motion for summary judgment (arguing she lacked standing), which was denied.
Regarding this second case, during the discovery period, Farley asked State Farm to produce documents that State Farm declared to be privileged. These documents included the file on the car accident, information on similar claims over a five year period, and Humphreys and Holiner’s personnel files. Farley filed a motion to compel the documents, which State Farm responded to with affidavits with grounds for the exclusion of the documents. After several hearings, the trial court ordered State Farm to produce the claims file, the personnel files, and information about similar claims over the last three years.
The Supreme Court held that (1) State Farm’s affidavits were insufficient, and (2) The trial court abused its discretion in instructing the delivery of the entire claims file (the contents are attorney work product), and that an appeal by State Farm would not sufficiently remedy the situation. The Supreme Court granted State Farm’s motion for leave to file and granted the writ of mandamus conditionally, stating that the writ was only to be issued if the trial court failed to discard its claims file order/didn’t review whether work product privilege needed to be honored.
They must specifically plead immunity and provide evidence, such as affidavits or live testimony, that supports the claim. An affidavit which does not positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant’s personal knowledge is legally insufficient.
They likely contained the attorney’s mental processes, conclusions or legal theories related to their pretrial preparation.
Humphreys v. Caldwell shows that evidence conveying information that likely involves attorney-client privilege is subjected to higher scrutiny, and that the exclusion of such evidence requires sufficient support.
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 512-982-9293 or use the contact form on the right to see how we can help. –>
In the world of insurance, there is a lot of back and forth between insurer and insured. But what happens when that communication is privileged? Can an insurance claim file be attorney-client privileged? When an insurance claim involves an attorney, that claim may be considered privileged.
Any material that is subject to attorney-client privilege will be marked explicitly in the file. Any material that is subject to attorney-client privilege is usually marked as “Attorney Client Privileged.”
Most insurance policies contain a confidentiality clause that protects the insurer’s trade secrets. However, this does not mean that the information in an insurance claim file is automatically attorney-client privileged.
No, an insurance policy is not considered confidential. However, an insurance claim file may be attorney-client privileged if it contains attorney work product.
The attorney-client privilege is one of the oldest and most well-recognized privileges in the law. It is based on the principle that communications between lawyers and their clients should be confidential. The attorney-client privilege protects communications between lawyers and their clients from being disclosed without the client’s consent.
Some states consider communications between insurance firms and their policyholders privileged, which means they are not subject to discovery in a lawsuit. In other words, if you’re involved in a car accident, your insurance company can’t be forced to turn over emails or letters that you sent them.
The post Can an Insurance Claim File Be Attorney-Client Privileged? appeared first on Austin Probate Attorney, Kreig LLC.
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.
The post Who Can Secure a Decedent’s Property? appeared first on Austin Probate Attorney, Kreig LLC.
This article is for people who want to know more about settling an estate in probate. Is settling an estate in probate difficult? When a person dies, the deceased’s assets are handed off to whomever is listed in the will. If there is no will, however, then the estate becomes part of probate court. If you are the only heir and there isn’t much in the way of assets, things aren’t that complicated. So for small estates, probate might be easier than you think. But in other situations, it can be very difficult, especially if people fail to plan.
A trust is a legal arrangement where one person (the trustee) holds property for another (the beneficiary). The trustee has a legal duty to look after the beneficiary’s interests, and to use the trust property in accordance with their wishes. A trust allows the beneficiary to benefit from the property without having either legal or physical control of it. The beneficiary has a right to the property, and can have this enforced through the courts if necessary.
A will is a handwritten or typed document which sets out how you would like your estate to be dealt with after your death. Writing a will is one of the easiest and most important things you can do to protect your family. A will is a very important part of your estate planning. Wills are legally binding documents that give instructions on what happens to your assets and possessions, who should look after your children if you die, and how they should be raised.
If you are the executor or administrator of an estate, you’re responsible for settling the deceased’s affairs and distributing the estate assets. Whether the deceased had a will or not, you’ll need to open a probate case with the probate court. If the deceased left a will, you must work quickly because there is a time limit for contesting it. You may be able to avoid probate by transferring assets directly to the deceased’s beneficiaries or heirs. You should discuss this with your lawyer and the executor or administrator of the estate (if appointed).
Probate is the legal process that allows a deceased person’s property to be distributed according to the terms of their will. If you are named as the executor in a will, probate can be a complicated process to navigate. When a loved one passes away, it can be an emotional and confusing time. It’s important that you understand the process and your options for distributing the assets of your loved one’s estate.
The length of probate administration depends on a number of factors including the size of the estate and the existence of any unforeseen circumstances. The time to settle an estate can vary greatly depending on the probate court and the complexity of the probate case. Simple probate administration can take four to six months, but probate litigation in a contested matter can take between nine and 18 months.
Settling an estate in probate can be difficult, especially if there is no will or if there are multiple heirs. If you are the only heir and there is not much in the way of assets, probate might be easier than you think. The best way to avoid the difficulties when settling an estate in probate is to draft a will correctly. Whether you are the executor of the estate or a family member, dealing with your loved one’s affairs can be stressful. Hopefully, these tips for settling an estate in probate offers some direction.
Probate attorneys are skilled in estate and trust administration, from the initial delivery of an accurate death certificate to the final distribution of all assets according to the court order. Hire an experienced probate lawyer in the Austin-Round Rock 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.
There is no set value and there are other factors that affect how much an estate has to be worth to go to probate. If you are the executor of a deceased person’s estate, the legal responsibility is notifying the court that an estate exists and making sure that it is properly administered.
Probate, also called settlement of an estate, is the legal process by which a deceased person’s property is administered and distributed. Probate court is a court that has the legal authority to settle the estate of a person who has died. The court oversees the distribution of the deceased person’s property to the beneficiaries named in his or her will.
When a person dies, the executor of their estate (or someone appointed by the court) files a will with the local probate court in the county where they resided. The will is then “probated” which means that it’s validated to be valid. An inventory of assets and debts is prepared, and a petition for distribution of assets may be filed as well. After final tax bills are paid, any remaining estate property is distributed to beneficiaries according to the terms of the will.
The post Is Settling an Estate in Probate Difficult? appeared first on Austin Probate Attorney, Kreig LLC.