Appointing a guardian for your child is one of the most important decisions you can make as a parent. It’s a decision that is often made in the event that something happens to you or your spouse. There are many factors to consider when making this decision. You want to appoint someone who is responsible […]
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Introduction Proving the adopted status of a family member in Texas can be difficult if you don’t have the right documentation. Learn what you need to know in this blog post. The Importance of Proving Adopted Status When an individual in Texas wants to adopt a family member, they must first prove their status as […]
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Introduction Probate is a process by which an administrator (the executor) of an estate (the decedent’s property) distribute the estate’s assets to the decedent’s beneficiaries. In Texas, probate is handled by the Texas State Probate Office. There are at least five types of probate (more if you count the various permutations such as testate dependent, […]
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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 […]
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There are four types of disclaimers. The first type is for when an individual who received a gift or bequest disclaims all rights to the gift, thereby giving up their interest in the property and allowing the property to pass as if he or she never received it. The second type is for when an individual who was named as a beneficiary of a trust disclaims any future interest in the property. This prevents them from receiving any more benefits. The third type is for when an individual who has a power of appointment disclaims his or her right to give away part or all of that power to someone else. And finally, the fourth type of disclaimer is when someone partially disclaims their interest in a decedent’s estate, whether through probate or not.
While individuals may disclaim property to avoid certain obligations, as in the case of inheritance. Disclaimers filed in a guardianship proceeding of someone other than the deceased person whom an inheritance is being disclaimed are not considered filings under Texas probate law. The guardianship case of In re Estate of Boren gives us some guidance.
In re Estate of Boren, 268 S.W.3d 841 (Tex. App. – Texarkana 2008, pet. denied)
Sarah E. Boren (Decedent) drafted a will that listed her nephew, Richard Finley, as the independent executor of her estate and Jeanetta Finley, his mother, as the alternate/successor. If her husband, Charles Boren, did not survive her, the will instructed that the estate be divided equally between Richard and Jeanetta.
Richard had previously served as an attorney-in-fact for both Sarah and Charles, neither of which had children. After Charles was appointed a guardian, Richard’s power-of-attorney authority for Charles was revoked by the letters issuing the guardianship. Richard retained Sarah’s power of attorney authority, and originally voiced his disapproval regarding Charles’s guardian’s application to sell his real estate, but later expressed regrets regarding the familial conflict after Charles passed away. Both Charles’s brother and niece testified to Richard’s statements, and the niece had her attorney draft documents that would waive his and Jeanetta’s claims to the estate at hand.
Richard and Jeanetta both signed the waivers, but eight days after the disclaimers were filed in the guardianship, they filed revocations of the waivers and Sarah passed away. Richard applied for probate (for Sarah’s estate), and the trial court denied both the will and his appointment as independent executor. As a part of this ruling, the trial court also articulated that Richard and Jeanetta had foregone any claim to Sarah’s inheritance by signing documents that met the requirements under Texas Probate Code, Section 37A. These documents included a Waiver of Service, Waiver of Interest, and Approval and Consent to Sale of Real Property regarding Sarah’s estate.
Richard then appealed, stating several points of error that then were rejected by the Court of Appeals. The Court stated that the trial court had found Richard “unsuitable” for the role of independent executor under the authority granted by Section 78(e) of the Texas Probate Code, and that as such, it would review the trial court’s ruling under an abuse of discretion standard of review (meaning it was not limited to reviewing the sufficiency of the evidence provided). The Court stated there was evidence supporting the trial court’s determination that Richard was unsuitable for the independent executor role, and that it was not an abuse of discretion. However, it stated that the waivers were not irrevocable under Section 37(A) of the Texas Probate Code because Richard and Jeanetta had properly revoked them before they had been properly filed. The Court of Appeals reversed the trial court’s implied order (that the waiver barred Richard from Sarah’s inheritance) and remanded to the trial court for further proceedings.
When does a waiver become irrevocable?
Once the proper filing and service requirements are met, the waiver becomes irrevocable. If waivers are revoked prior to their proper filing, they are inoperative despite any intentions to disclaim inheritances (such as express statements).
Disclaimers filed in a guardianship proceeding of someone other than the deceased person whom an inheritance is being disclaimed are not considered filings under Texas probate law.
Do you need help with a guardianship or 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 to the right (–>) to see how we can help.
There are a few different ways to become a legal guardian in Texas. The most common way is to be appointed by a judge in a guardianship proceeding. Other ways include being appointed by will or deed, or being elected by a group of people who are legally authorized to do so. Becoming a legal guardian in Texas is a serious responsibility. As a guardian, you will be responsible for making decisions on behalf of another person, known as the ward. These decisions can range from everyday choices like what to wear and what to eat, to more important choices like medical treatment and financial matters.
If you are considering becoming a legal guardian in Texas, it is important that you understand the duties and responsibilities that come with the role. You should also be aware of the different types of guardianship and how they work.
If you are seeking guardianship of a child in Texas, there are some important things to know.
First, Texas law requires that the person seeking guardianship must file a petition with the court. The petition must be signed by the person seeking guardianship and must state the reasons why the person is seeking guardianship.
Second, a hearing will be held on the petition. The court will consider the best interests of the child when making its decision. The court may appoint a guardian ad litem (GAL) to represent the child’s best interests.
Third, if the court grants guardianship, the guardian will have certain rights and responsibilities regarding the child. The guardian will have the right to make decisions about the child’s education, medical care, and other important matters. Additionally, the guardian will be responsible for providing for the child’s physical and emotional needs. fourth, if you are granted guardianship, you will be required to file periodic reports with the court regarding the child’s welfare. Additionally, you may be required to attend training sessions on how to be a good guardian. fifth, if at any time you no longer wish to serve as a guardian, you can resign by filing a notice with the court.
A guardianship in Texas has a few different powers. First and foremost, a guardian has the power to make decisions about the ward’s medical care. This includes the power to consent to or refuse medical treatment, as well as the power to access the ward’s medical records. Additionally, a guardian has the power to make decisions about the ward’s education and residence. Lastly, a guardian has the power to manage the ward’s finances and property.
If you are wondering how to file for legal guardianship of a minor in Texas, there is no need to worry. The process is actually quite simple, and there is a form that you can use.
First, you will need to gather some information about the child and the parents. This includes the child’s full name, date of birth, and Social Security number. You will also need the names and contact information for the child’s parents.
Next, you will need to fill out the legal guardianship form. This form can be found online or at your local courthouse. Once you have completed the form, you will need to sign it in front of a notary public.
Once the form is signed, you will need to file it with the court. The court will then review the form and has the power to make a determination on whether or not to grant guardianship. If guardianship is granted, you will be responsible for making all decisions regarding the child’s welfare, including education and medical care.
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A guardian is a person who has been appointed by the court to make decisions regarding the personal matters of an individual. A guardian may be appointed to take care of a minor or adult with disabilities or an elderly person. As a guardian you are legally responsible for managing your ward’s assets, including their income and property. You have the power to enter into contracts and manage your ward’s financial affairs in accordance with his or her will, any trust documents and/or any other applicable legislation. This article deals with the assets of a deceased person and the powers and duties of a guardian of the estate of a person who is a minor or of unsound mind.
Under guardianship, a court will appoint someone to manage your personal finances when you are unable to do so. This person is referred to as your “guardian” and is responsible for financial decisions on your behalf.
In Carroll v. Carroll, 893 S.W.2d 62 (Tex. App. 1994), the Court of Appeals considered the jurisdiction of a county judge in a guardianship proceeding to order, one year after the ward’s death, the sale of land in the ward’s estate to pay the ward’s debt to the nursing home in which she resided for twenty-one years before her death.
non compos menti: not having control/mastery of one’s mind.
Appellants: Carl Carroll Jr., ET AL.
Appellees: Vernon Carroll, Norman Carroll, A. J. Carroll
On August 20, 1960, Ed Davis and Ida Mae Carroll Davis executed a joint will. Ida Mae Carroll Davis was appointed independent executor of her husband’s estate. The will provided that Norman Carroll, A. J. Carroll and Vernon Carroll were to receive title to the Davises’ 59.7 acre farm, subject only to Ida Davis’ life estate. On July 2, 1965, at the age of 71 years, Ida Davis moved into a nursing home. Her nephew, Dr. Carl Carroll, subsequently commenced guardianship proceedings against her and the county court declared Ida Davis to be non compos mentis and appointed appellant, Dr. Carroll, as guardian of her person and estate. Ida Davis died on September 17, 1986 at the age of 92 years.
On August 27, 1987, nine years after he was appointed guardian and almost one year after Ida Davis’ death, Dr. Carroll filed an application (in the guardianship case) and requested permission to sell the 59.7 acre farm. In the application, Dr. Carroll alleged that the farm was worth $ 60,600.00. Dr. Carroll also submitted a claim from the nursing home which alleged that the guardianship estate owed the nursing home $ 97,586.39. On September 8, 1987, the county court granted Dr. Carroll’s application and signed an order of sale. Dr. Carroll subsequently executed a deed and conveyed the 59.7 acre farm to Clarence Carroll, as trustee for the nursing home, to satisfy the debt to the home. On September 21, 1987, the county court entered a decree confirming the sale of the property by the guardian.
On December 31, 1987, Vernon Carroll, Appellee filed an application in the County Court of Lavaca County to probate Ida Davis’ will. On June 26, 1990, the county court admitted Ida Davis’ will to probate and appointed Vernon Carroll as independent executor of her estate.
On August 19, 1991, Vernon Carroll and others alleged that pursuant to the will, they owned the 59.7 acre farm in fee simple and sued appellants, Carl Carroll, for a declaratory judgment, trespass to try title, removal of cloud on title, cancellation of deed, damages and attorneys’ fees. On November 25, 1992, the district court rendered judgment declaring the following to be void and of no effect: the county court’s order of sale, the county court’s decree confirming sale, and Dr. Carroll’s deed conveying the 59.7 acre farm to Clarence Carroll as trustee for the Yoakum Memorial Nursing Home. The district court declared that fee simple title to the 59.7 acre farm passed to Vernon Carroll and others named in the will. Plaintiffs were awarded damages (rental value of the property) and attorneys’ fees, and the court issued a writ of possession in favor of appellees.
Appellants now complain that the district court should have dismissed this case for lack of jurisdiction because Vernon Carroll’s application for probate of Ida Davis’ will, and the guardianship proceeding were commenced, and pending, in the county court prior to the initiation of appellees’ action in the district court.
Did the district court have jurisdiction to hear this case while the deceased’s estate remained pending in the county court?
Under Tex. Prob. Code Ann. § 5(b) and (e) the District Court of Lavaca County and the County Court of Lavaca County have concurrent jurisdiction. District courts, the courts of general jurisdiction, have jurisdiction over suits involving the validity of claims against the estate of a decedent which is being independently administered.
In the present case, because a suit was brought to establish title, and the interests of the real property, the district court is the more appropriate tribunal. The nature of appellees’ cause of action involved issues that the probate court did not have jurisdiction over. In addition, the powers of the probate court are inadequate to grant the plaintiffs the full relief and because of this, the district court has jurisdiction and may grant such relief.
A guardian has no authority to sell property belonging to the estate of the deceased ward one year after the ward’s death.
Upon the death of the ward, the guardian has only the obligation and authority to file a final accounting and to inform the court of the expenses and debts against the estate remaining unpaid (Tex. Prob. Code Ann. § 405).
As long as an estate remains under control of an independent executor, the probate court lacks jurisdiction to consider and approve claims against the estate. (Tex. Prob. Code Ann. § 145(h) (1980).
District courts, the courts of general jurisdiction, have jurisdiction over suits involving the validity of claims against the estate (such as a title claim) of a decedent which is being independently administered.
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. 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.
When a person dies, their assets must be distributed according to the deceased’s last will and testament. The process of distributing the assets can sometimes be tricky and often takes years to complete. If the deceased had an estate, distributing their assets can be extremely complex and time-consuming.
A guardian is a person appointed by a court to manage the property of another person, usually a minor child or an adult who is legally unable to manage his or her own affairs. If a guardian is no longer able to fulfill their duties, the court will appoint an acting successor.
When a minor reaches the age of majority, their guardianship ends. Most states set the age of majority at 18; some states make it 21. The age of majority will vary depending on whether the child is in care or not. In many cases, the guardian remains in charge and simply changes from sole to joint.
When a guardian dies, the duties of that guardian are transferred to the successor guardian. The successor guardian is responsible for all subsequent decisions concerning the child or incapacitated adult until another guardian can be appointed.
A guardian must take care of the ward’s final wishes. This includes making funeral, burial or cremation arrangements. In some instances, the guardianship may be ended via a special court order after a hearing is held detailing the reasons why it should end and what has been done on behalf of the ward.
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A jury at the Tarrant County Probate Court 2 returned a verdict of $8.3 million in favor of a medical malpractice lawsuit earlier this month. Texas Harris Health Methodist Hospital Southwest Fort Worth will have to pay at least a part of that amount to the family of Angela Davis, a former parole office who […]
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Guardianship Claim Bars Probate Claim? Imagine that you are owed money by someone who becomes incapacitated and they have a guardian appointed. Your debt is not secured by any property, such as real estate. The guardian sends you a notice to submit your claim for payment. The debtor is of an advanced age or not […]
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In probate and guardianship cases, the parties can appeal most court orders immediately. But what about the appointment of a temporary guardian? If you do not agree with the appointment, can you immediately appeal the probate court’s decision? The court addresses this in In Re Guardianship of Laverne T. Cady, No. 04-19-00588-CV (Ct. App. — […]
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