Tag: Information

  • Restricted Appeals in Texas Probate Matters

    If you are involved in a probate matter in Texas, it is important to be aware of the restricted appeal process. This process can limit your ability to challenge certain decisions made by the court, so it is important to understand how it works before you find yourself in that situation. This case helps shed some light on the restricted appeals process.

    Service of Citation: legal notice of the filing of the case to the opposing party.

    Restricted Appeal: an appeal of specific aspects of a judgment rather than the judgment in its entirety.

    Rule 21 & Rule 21(a), Texas Rules of Civil Procedure: states that any amended pleading must be served on an answering party.

    Presumption of Revocation: when a will was last known to be in the decedent’s possession and cannot be located after death, a rebuttable presumption of revocation arises.

    Probate Case

    In re Estate of Wilson, 252 S.W.3d 708, 2008 Tex. App. — Texarkana (2008, no pet.)

    Facts & Procedural History: Hearing

    Shelli Kay Wilson (Testatrix) filed an application to probate a will and have letters testamentary issued on December 20, 2006. Testatrix and Leslie Wayne Wilson (Decedent) had drafted the will using internet forms. After Decedent’s death, the original will could not be found. Brett Lee Wilson (Appellant) received service of citation on December 23, 3006. On January 3, 2006, Testatrix filed an amended application for probate. Shortly afterwards, the trial court held a hearing and admitted a copy of the will to probate. Appellant did not appear at the hearing, nor did he file a timely contest. Testatrix also testified at the hearing that Appellant had no intention to oppose the application. However, on March 22, 2007, Appellant filed a motion for new trial and an opposition to the probate of the will. Appellant stated that the motion was timely and met the requirements of Rule 306(a) of the Texas Rules of Civil Procedure.

    After the trial court denied Contestant’s motion, he appealed. The Court of Appeals reversed and remanded the case back to the trial court. The Court held that: (1) Testatrix was not required inform Contestant of her amended petition to probate the will; (2) the presumption of revocation had not been rebutted through legally sufficient evidence; and (3) the appropriate remedy was not to render judgment, but to reverse the trial court’s judgment and remand the case for further proceedings.

    For the first issue, the Court stated that Rule 21 of the Texas Rules of Civil Procedure (which Appellant argued applied to probate proceedings) did not apply to will contests. Therefore, Testatrix was not required to notify Appellant that the application had been amended. For the second issue, the Court determined that the evidence provided (namely an affidavit submitted by Testatrix) was not enough to rebut the presumption because it did not explain why the original will could not be located. For the third issue, the Court stated the decision not to render judgment was proper because Appellant requested a remand in his brief and the facts were not fully developed (since there was no contest to the will’s probate).

    Main Considerations: Process of Appealing a Judge’s Decision

    Does a restricted appeal offer the same scope of review as an ordinary appeal?

    Yes, such an appeal gives an appellant a review of the entire case. The sole restriction is that the error must be visible within the record. Documents within the record include all papers on file in the appeal, the statement of facts, and the reporter’s record. This means that evidence not provided to the trial court prior to the final judgment may not be included.

    What are the requirements of a restricted appeal?

    An appellant must show that: (1) within six months of the judgment being issued, they filed notice of the restricted appeal; (2) they were a party to the underlying lawsuit; (3) they did not participate in the hearing that led to the judgment at issue and did not file any post-judgment motions or requests findings of facts or legal conclusions; and (4) the error is reflected within the record.

    How can the presumption of revocation be overcome?

    This presumption can be overcome through: (1) proof and circumstances suggesting that the testator did not intend to revoke the will or (2) evidence that another person fraudulently destroyed the will. In addition, recognition of a will’s continued validity and the testator’s continued affection for the chief beneficiary under the will (without the existence of evidence showing that the decedent was dissatisfied/wanted to change the will) can rebut the presumption of revocation of a missing original will.

    The Takeaway

    In re Estate of Wilson shows that, when an appellate court upholds a legally sufficiency issue, the proper remedy is to reverse and remand the case back to the lower court.

    Do you need help from an Experienced Texas Probate Attorney?

    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 below to see how we can help.

    https://austin-probate.com/

    What happens if you lose an appeal?

    If you lose an appeal in a Texas probate matter, you may be able to file a restricted appeal. A restricted appeal is a type of appeal that is available only in certain circumstances. You must meet all of the requirements for a restricted appeal, and you must file your appeal within the time limit set by law. If you do not meet all of the requirements or if you miss the deadline, you will not be able to file a restricted appeal.

    How to appeal a court decision?

    If you’re not happy with a court decision in your probate case, you can file an appeal. Here’s how:

    1. Talk to your lawyer. You’ll need to file a notice of appeal and other paperwork with the court, and you’ll need to do it within a specific time frame. Your lawyer can help you with this.

    2. File a notice of appeal. You’ll need to file this with the court that made the decision you’re appealing, and you’ll need to do it within 30 days of the court’s decision.

    3. Serve notice on the other parties. Once you’ve filed your notice of appeal, you’ll need to serve copies on all the other parties in the case. You can do this by mailing them or delivering them in person.

    4. Submit your briefs. You and the other parties will need to submit written arguments, or “briefs,” to the appeals court. The court will then decide whether to hear your case and issue a ruling.

    How to file an appeal?

    If you are not happy with the decision made by the probate court, you have the right to file an appeal. In order to do so, you must first file a notice of appeal with the probate court. The notice must be filed within 30 days after the date of the final judgment or order that you are appealing. Once the notice is filed, the court will set a briefing schedule and oral arguments will be scheduled.

    If you are unsure of how to file an appeal or what grounds you may have for an appeal, you should speak with an experienced probate attorney. An attorney can help you determine if you have a valid basis for an appeal and can assist you in navigating the appellate process.

    How to appeal a case?

    Appealing a case in Texas probate matters can be a difficult process, but there are some tips that can make it easier.

    First, it is important to understand the grounds for appeal. An appellate court will only consider errors that were made in the lower court proceedings. This means that you cannot raise new issues or arguments on appeal.

    Second, it is important to know the deadlines for filing an appeal. In most cases, you must file your notice of appeal within 30 days of the final order or judgment from the lower court.

    Third, it is helpful to have an experienced attorney to assist you with the appeals process. Appellate attorneys know the ins and outs of the appeals process and can help you navigate it successfully.

    What is a notice of appeal?

    If you’ve been named as an executor or administrator in a Texas probate proceeding, and the will is being contested, you may be wondering what a notice of appeal is.

    A notice of appeal is a formal document filed with the court that starts the appeals process. It lets the court know that you (as the executor or administrator) intend to challenge the ruling.

    The appeals process can be complex and time-consuming, so it’s important to understand all of your options and legal rights before moving forward. An experienced probate attorney can help you navigate the process and ensure that your rights are protected.

    The post Restricted Appeals in Texas Probate Matters appeared first on Austin Probate Attorney, Kreig LLC.

  • Can a Holographic Will Be In Someone Else’s Handwriting?

    A holographic will is a handwritten will that is not witnessed. The testator, the person who made the will, must write, date, and sign the entire will. This type of will is valid in any state, including the state of Texas. However, as with most wills, it must be proven to be your will and not a forgery before it can become effective. But must the will be entirely in the testator’s handwriting? This case gives us some help in answering that question.

    Holographic Will

    A will entirely written and signed by a testator, used as an alternative to a will drafted by an attorney.

    Texas Probate Case

    In re Estate of Capps, 154 S.W.2d 242, 245 (Tex. App. – Texarkana 2005)

    Facts & Procedural History

    After Nadine Capp’s passing, her physical will was unable to be found. The trial court found that Ms. Capp (Decedent) had intended for her property to be dispersed as instructed by the will document, and admitted it to probate as a holographic will. The trial court also appointed Devon Roberts as the administrator for Decedent’s estate.

    Truman Bishop (temporary administrator of Decedent’s estate) and Hulene B. Parvar appealed, arguing that the evidence was insufficient to support the admission of the will to probate considering the original will had not been found. They also declared that the evidence was insufficient regarding the proper execution of the will, and that the appointment of Roberts rather than Bishop was an error. The Court of Appeals affirmed the trial court’s judgment, holding that the evidence was sufficient to allow for the will’s admission to probate (specifically that it showed the cause of nonproduction and that the will had not been revoked). The evidence provided showcased that the will had been created in Decedent’s handwriting and that the choice of administrator for Decedent’s estate was proper.

    Main Considerations: Valid Written Will Requirements

    What evidence must be provided to show non revocation (the rebuttal of the presumption of revocation) of a lost will?

    Proof of circumstances contrary to the presumption of revocation, or evidence that the will was fraudulently destroyed by another person, can defend against the invalidation of a lost will. Using the standard sufficiency analysis rule, the testimony of a person (witness) who states that a testator did not revoke the will has been held sufficient evidence of non revocation to support probate of the will. Additionally, evidence that shows a decedent recognized a will following its execution and had no issues with its intended beneficiaries or the will’s contents can be used to rebut the presumption of revocation of a missing original will.

    The Takeaway

    In re Estate of Capps shows that a holographic will can/will be regarded as valid if either the will is completely in the testator’s handwriting (self-proven) or two witnesses testify to the presence of the testator’s handwriting. A will, intended to be holographic, will be enforced despite the existence of words not in the testator’s handwriting if those words do not alter the meaning of the will.

    Do You Need an Experience Attorney to Probate a Will?

    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 to the right (–>) to see how we can help.

    https://austin-probate.com/

    Why is a handwritten will called holographic?

    A handwritten will is called holographic because it is written entirely in the handwriting of the person who made it. This type of will is typically made when someone doesn’t have time to go to a lawyer or make a more formal will, such as a last will and testament or a simple will.

    What do you write in a holographic will?

    A holographic will is one made entirely in the handwriting of the testator. Holographic wills are legal in Texas. A holographic will begins with the words “I, (name), being of sound mind, hereby…” You must make it clear that the document is your will. You must also sign and date it.

    To make a holographic will, you simply write out your wishes. You can also have at least two disinterested witnesses sign it to “prove” that you actually wrote it. In other words, they certify that they saw you write it.

    Does a holographic will have to be in cursive?

    A holographic will is a handwritten will that is entirely in the handwriting of the testator, the person who is making the will. The will does not have to be in cursive, but it does have to be in the testator’s own handwriting.

    What is the difference between a simple will and a holographic will?

    A simple will is a will that is executed by a lawyer or notary in accordance with the formalities of the law. A holographic will is a will that is entirely handwritten, dated and signed by the testator.

    In order for a handwritten will to be legal, the document must be in your own handwriting. No one can write it for you and it cannot be typed. You can write in cursive or print, but the entire will must be in your handwriting only.

    The post Can a Holographic Will Be In Someone Else’s Handwriting? appeared first on Austin Probate Attorney, Kreig LLC.

  • Can a Lost Will Be Admitted to Probate?

    What If You Can’t Find the Will?

    The Texas probate process works best when the will is available for review. If a will can’t be found, for example, because it was destroyed in a fire or accident, or a dead person’s family can’t find it, the process is a lot more complicated. But can a will be admitted to probate even if the original will is lost? This case answers that question.

    Legal Terminology

    Cy pres Doctrine: allows courts to amend a legal document so that it may be enforced despite situations where it becomes impossible or impractical to do so otherwise.

    Motion for Summary Judgment: may be granted by a court if the movant (party seeking to obtain it) shows there is no material fact dispute, and that the movant is legally entitled to judgment as a matter of law.

    Probate Case

    Howard Hughes Medical Institute v. Neff, 640 S.W.2d 942 (Tex.App. – Houston [14th Dist.] 1982, writ ref’d n.r.e.)

    Facts & Procedural History: Not Even a Copy

    Howard Robert Hughes passed away on April 5, 1976, and the Howard Hughes Medical Institute (Appellant) filed an application for probate for Mr. Hughes’s will in Nevada district court. In the application, Appellant listed itself as either 1) the principal beneficiary of a lost will dated sometime between 1953 to 1963, or 2) the intended beneficiary or beneficiary of a lost original will dated/executed on May 30, 1925 (using the cy pres doctrine). The Nevada court entered into summary judgment, which was averse to Appellant. The Supreme Court of Nevada affirmed its ruling. While the Nevada case was pending, Appellant appeared in Texas probate court but did not apply for probate. The Texas probate court granted the heirs of Hughes motion for summary judgment (invalidating Appellant’s beneficiary claim). The Texas Court of Appeals reversed, stating that the statute of limitations for Appellant to file an application of a last valid will to probate had not expired.

    Both the State of Texas and the court-appointed attorney ad litem for unknown heirs (Appellees) requested a hearing in limine for Appellant to prove its standing as an interested party for the estate. Appellant then filed an application of the will to probate in Texas court. Two motions for summary judgment were filed: one by the executor of an aunt of Hughes (Contestant Neff) and one filed jointly by Hughes’s cousin and the executor of the estate of a cousin of Hughes (Contestants McIntyre and Bond). The Contestants agreed to conduct the hearings regarding standing and summary judgment simultaneously, which were carried out on December 2, 1980. On February 27, 1981, the trial court granted the motion for summary judgment and dismissed Appellant’s probate application.

    Appellant then appealed to the Court of Appeals, which affirmed the Texas trial court’s decision after considering the evidence provided by the record. The Court of Appeals held that (1) the letter used as evidence for the 1925 will executed by Mr. Hughes was inadmissible; (2) the evidence used to validate the will was insufficient; (3) the evidence used to show witness participation was insufficient because it only showed search efforts to locate them; (4) fact issues were not present regarding the two alleged wills; (5) & (6) the Appellants lacked substantial proof of the lost will’s contents; (7) the alleged beneficiary of the will lacked interest in the probate of the will; and (8) the doctrine of cy pres was inapplicable because no legal or practical barrier existed in the formation of a medical research corporation, as described in the 1925 alleged will.

    Main Considerations

    When does the doctrine of cy pres apply?

    Only the trustee of a charitable trust or the Attorney General may initiate a cy pres action, and third parties can only intervene if the named parties do not object.

    Can due execution of a will be proved by testimony within a letter alone?

    The letter in question was created in 1925, and the author’s statements did not suggest personal knowledge of an original will signing ceremony that had two witnesses present. Under the ancient documents exception to the hearsay rule, evidence of the truth of facts recited in a document based on the personal knowledge of the declarant/author may be admitted, but conclusory or opinion-based statements must be excluded.

    The Takeaway

    Howard Hughes Medical Institute v. Neff shows that, for an alleged lost original will to be admitted to probate using outside evidence, there must be sufficient documentation of the personal knowledge of a will execution ceremony with credible witnesses present.

    Do You Need to Hire a Probate Attorney in El Paso?

    Have you lost a loved one and have no idea how to proceed? Our local Texas attorneys can help you through the probate process. A good probate attorney will guide you through every step of the process from beginning to end. Hire an experienced probate lawyer in the El Paso metro area or in the surrounding communities. Contact us on our homepage, and don’t forget to ask about our Free 30-minute probate attorney consultation. You can schedule your free consultation using the calendar on the right ->. From first steps to final distribution, we handle the entire probate process for you.

    https://elpaso-probate.com/

    Related Questions

    What happens if you lose your will?

    There are a few things that could happen if you lost your will. First, if you have any assets, such as a home or car, they would go to whomever is listed as the beneficiary in the will. If there is no beneficiary, then the assets would go to your next of kin. Second, any debts that you have would need to be paid off by your estate before anything could be distributed to beneficiaries. This means that if you owe money to anyone, they would need to be compensated out of your estate before anyone else receives anything. Finally, any other instructions that you have laid out in your will need to be carried out. This could include things like who should receive certain items of personal property, or who should care for minor children.

    Can a lost will be found?

    Recently, we’ve heard from a lot of heirs who want to know whether lost wills ever get found. That is, can you find an original will even if the decedent didn’t think to give a copy to a family member or friend?

    Most people are aware that wills are sometimes not found after a death has occurred. It’s possible that the deceased just didn’t have time to get their affairs in order before they died.

    For example, if someone is incapacitated, or unable to attend to their own affairs due to age or some other reason, they may write a will which they store away somewhere. If they later pass away, it may never be found.

    The law provides that property passes by what is called “intestate succession”. This means that if there is no will, then the property is distributed to relatives according to Texas law. This is referred to as “dying intestate.” In some cases, a lost will may be found after the death of the person who wrote it. This can happen if the person who wrote the will gave it to someone else to keep safe, and that person holds onto it after the writer’s death. In other cases, a lost will may be found by accident, such as when going through the deceased person’s belongings.

    If a relative of the deceased is looking for the will and can’t find it, they may want to check with any friends or family members who were close to the deceased. It’s also possible that there is no will and the person died intestate. In this case, property would be distributed to relatives according to Texas law.

    How do you get around probate?

    If you want to know how to avoid probate, we would say that it really depends on your situation.

    There are two primary methods of avoiding probate: Owner Directed Disposition of Property and Spousal Disposition.

    Owner Directed Disposition is a method in which your property is transferred to another person directly, in trust, by contract, or as beneficiary of a life insurance policy. Spousal Disposition is a method in which property is handled differently depending on how your spouse passes rather than how you pass, who is the executor of your estate, and whether or not there are any children from other relationships or from previous marriages.

    Issues surrounding the disposition of property are complicated and are best handled by an attorney who specializes in estate planning.

    How long do you have to file probate after death?

    In Texas, a personal representative can be an administrator (for a deceased person), an executor (for a deceased person who has a will), or a testamentary trustee (for someone who died without a will). No matter which type you are, you have to file for and receive letters of administration or letters of testamentary before the probate process can even start.

    What happens if you can’t find original will?

    If the will can’t be found, the process is a lot more complicated. The court will appoint an administrator to oversee the estate, and the administrator will have to follow certain rules and regulations. The court may also order that all of the dead person’s assets be sold in order to pay off debts and distribute the proceeds according to state law. This can be a lengthy and expensive process, so it’s always best to try to find the will as soon as possible after someone dies.

    The post Can a Lost Will Be Admitted to Probate? appeared first on El Paso Probate Attorneys, Kreig LLC.

  • Is It Good Enough to Initial a Will in Texas?

    Last Will and Testament Requirements in Texas

    You might think that as long as you have a will, your estate will be distributed the way you want it to be. But if you don’t have a valid will in Texas, your estate will be distributed according to the laws of intestacy. It’s established law in Texas that valid will must be In writing, signed by a testator in person, and signed by at least two witnesses in the presence of the testator who are both over the age of 14. But what does it mean to “sign” a will? A new Texas case holds that simply initialing the will could be good enough to meet the execution requirement.

    Attested will: requires the signature of the testator and the signature of two or more witnesses who are not beneficiaries of the will.

    Probate Law Case

    Jones v. Jones (Tex. App.—Houston [1st Dist.] March 29, 2022, no pet. history).

    Facts & Procedural History: Holographic (Written or Handwritten) Wills

    Decedent’s wife (Beneficiary) filed an application for probate of an attested will, which was contested by Decedent’s son from a previous marriage (Contestant). The trial court denied Testator’s application, declaring that the will lacked Decedent’s signature and that the statements from the witnesses regarding their viewing of the signing could not be correct.

    Beneficiary appealed, and the Court of Appeals held that there was sufficient evidence to establish testamentary intent through (1) the presence of his initials on six pages of the will and (2) the statements made by the witnesses. The lack of a signature on the last page alone did not invalidate the will. The Court of Appeals referenced Texas case law suggesting that a signature on a will could be relatively informal (including initials) if testamentary intent was present. This intent could be inferred through the facts and circumstances surrounding the execution of the will.

    Main Considerations

    What is required for writing a valid will or codicil in Texas?

    Except as otherwise provided by law, a valid will must be: (1) In writing; (2) signed by a testator in person; and (3) signed by at least two witnesses in the presence of the testator who are both over the age of 14.

    The Takeaway: What Does “Signed” Mean?

    Jones v. Jones shows that, as long as there is testamentary intent present, initials may constitute a signature for the purposes of a will.

    Do You Need to Hire a Lawyer to Probate a Will In Austin?

    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 to the right (–>) to see how we can help.

    https://austin-probate.com/

    How to make a will in Texas?

    A valid Texas will must be: (1) written; (2) signed in person by the testator; and (3) signed by at least two witnesses in the presence of the testator who are both over the age of 14.

    A handwritten will is only legal if it meets the requirements of the Texas Estates Code. If the will does not meet these requirements, it may be declared invalid by a court. If any part of a holographic will is not in the handwriting of the testator, or if there is no indication of when it was executed, then it may be declared invalid by a court.

    What are the three conditions to make a will valid?

    A will must be written and signed by the testator (the person making the will). Under Texas law, a will is not valid unless it was signed at the end of the document by the testator in what is called “testamentary capacity.” To have testamentary capacity, a person must: – understand that they are making a will – know the nature and extent of their property – know who their natural heirs are – understand how distributing their property will affect said heirs.

    The will must be signed by two persons who witnessed and signed the will in the presence of the testator. A will can be revoked only if it is done in writing and signed by the testator at the end of the document or after another provision or clause.

    If any of these elements are missing, then the court may find that the will is invalid.

    What happens if you lost original will?

    In general, if you lost your original will, you can execute a new will to replace it. However, when you execute a replacement will, there are a few important rules that you must follow. For more detailed information, please contact our probate attorneys.

    How to file a will in Texas?

    After a decedent’s will has been filed with the Court the Clerk of the Court should then publish a notice advising all interested parties that the Will has been filed. The notice must remain posted for at least 10 days. This is to give those who wish to contest a will time do so. If no one contests the will, the courts will move forward with confirming its validity.

    The post Is It Good Enough to Initial a Will in Texas? appeared first on Austin Probate Attorney, Kreig LLC.

  • Can an Insurance Claim File Be Attorney-Client Privileged?

    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)

    Facts & Procedural History: Discovery

    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.

    Main Considerations

    What must an insurance company seeking to exclude documents based on immunity or confidentiality do?

    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.

    Why might the documents in the insurance broker claim file be subject to attorney work product privilege?

    They likely contained the attorney’s mental processes, conclusions or legal theories related to their pretrial preparation.

    The Takeaway

    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 to Hire an Experienced Probate Attorney in Austin?

    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. –>

    Free Judges desk with gavel and scales Stock Photo
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    Are communications between insurer and insured privileged?

    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.

    Are insurance claim notes 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.”

    Is an insurance policy confidential?

    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.

    Is an insurance policy confidential?

    No, an insurance policy is not considered confidential. However, an insurance claim file may be attorney-client privileged if it contains attorney work product.

    What are the elements of the attorney-client privilege?

    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.

    Are communications with insurance company privileged?

    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.

  • Is Income from a Trust Considered Community Property?

    If you’re considering an income trust, there are a few things you should know about community property. This case gives some information on what you need to know about this type of trust and how it can benefit you.

    Legal Case

    Cleaver v. George Staton Co., 908 S.W.2d 468 (Tex. App. 1995)

    Parties

    Cleaver: Appellant Husband

    George Staton Co.: Appellee Trustee and Trust Property Company

    Facts and Procedural History

    Facts: George Staton, Sr. died in 1966 and left a trust naming his wife as the sole beneficiary of the income from that trust for life. She was then single. The trust consisted of one twelfth of the assets of Staton lumber yard, subsequently incorporated as George Staton Company, Inc. and Staton Materials, Inc. In 1971, prior to reaching her twenty-first birthday, she married appellant husband. Jimmy Maurice Cleaver, appellant husband, and his wife were in the process of divorcing when Cleaver filed suit against George Staton Company, Inc. for fraud, conversion as well as breach of fiduciary duty and the Texas Trust Code. Cleaver, alleged appellees wrongly withheld trust payment from his wife. In his first amended petition, Cleaver attempted to name wife as an “involuntary plaintiff” under Tex. R. Civ. P. 39(a). The trial court dismissed his case for lack of standing and the court affirmed. The court found that the income his wife was to receive from the trust was likely separate property which the appellant husband had no claim to. In addition, if any interest in the trust income was community property, the court found it would be “special community” to the wife and she would have sole management of the property under Tex. Fam. Code Ann. § 5.22(a)(2) (1993). Therefore, the court found, only the wife had the authority to sue to recover the property and the “involuntary plaintiff” procedure united by Cleaver could not be used to erode that control.

    Procedural History: The District Court of Cherokee County, Texas, dismissed husband’s suit against appellees. Appellant, husband, then challenged the order and claimed he did have standing and that appellees wrongly withheld trust payment from his wife. This court affirmed the lower court’s dismissal of appellant husband’s suit against appellees, trustee and trust property company.

    Did Mr. Cleaver have standing?

    No. The trust provided for mandatory payments of income to the Wife for life. She was conveyed no ownership interest in the cooperation of the trust and has no present possessory interest in the cooperation. The trust income payments to the Wife are therefore her separate property.

    Takeaways

    Lack of “capacity” to sue pertains to the legal right to prosecute a lawsuit in one’s own name, and arises from the disability of minority or mental incompetency.

    On the other hand, “standing” is an element of subject matter jurisdiction. The “standing” doctrine requires that the plaintiff have a justiciable interest in the matter being disputed.

    Do You Need to Hire a Probate Attorney in El Paso?

    Have you lost a loved one and have no idea how to proceed? Our local Texas attorneys can help you through the probate process. A good probate attorney will guide you through every step of the process from beginning to end. Hire an experienced probate lawyer in the El Paso metro area or in the surrounding communities. Contact us on our homepage, and don’t forget to ask about our Free 30-minute probate attorney consultation. You can schedule your free consultation using the calendar on the right ->. From first steps to final distribution, we handle the entire probate process for you.

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    Related Questions

    Is trust income community property in California?

    In California, community property is defined as any property that is acquired during a marriage or domestic partnership. This includes income from trusts, regardless of whether the trust is created during the marriage or partnership.

    Are trusts protected in a divorce?

    In a divorce, property that is held in a trust may be classified as either community property or separate property. The classification of trust property will affect how the property is divided in a divorce.

    Is trust income community property in Texas?

    When it comes to dividing up property in a divorce, community property states have a few extra rules. Texas is a community property state, which means that any property—including income—that either spouse acquires during the marriage is considered community property and belongs to both spouses equally.

    Is trust money community property?

    When it comes to money and property, the law is clear: what’s yours is yours, and what’s mine is mine. But what happens when the lines between “yours” and “mine” start to blur? In the case of divorce, for example, the court will often divide property between the two spouses. But what about trust money? A trust is a legal arrangement in which one person (the “trustee”) manages property for the benefit of another (the “beneficiary”). If a beneficiary is married, the trustee must determine how much of the money to allocate to each spouse.

    Is California a community property state?

    California is a community property state, which means that certain property and assets acquired during a marriage are jointly owned by both spouses. This can have implications for how income and assets are taxed, as well as how they are divided in the event of a divorce.

    Are trusts considered marital property?

    If you’re considering getting a trust, you may be wondering if it will be considered marital property. Trusts can be an important part of financial planning, but it’s important to understand how they may be impacted by divorce.

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  • Who Can Secure a Decedent’s Property?

    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.

    Who Can Secure Property? Beneficiary Interest

    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.

    How to Secure Probate Property in Texas

    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 to Hire an Experienced Probate Attorney in Austin?

    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.

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    What does the estate of a deceased person mean?

    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.

    How do you preserve an estate?

    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.

    Who shares the property of the deceased?

    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.

    What is probate?

    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.

    What is an estate?

    The value of an estate is the net value of all the property of a person who has died. The gross value of an estate is the total value of all the property of a person who has died. Appraisers use the gross estate value to determine the cost of selling everything and dividing the proceeds among those who inherit.

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  • Can Heirs Force the Sale of Property in Texas?

    While the will may be perfectly clear about the ownership of property, it does not automatically follow that all is well for the surviving owners. This article discusses how heirs can force the sale of property.

    Can one sibling forced sale of inherited house? If a property is left in a will between several beneficiaries, is it legal for one beneficiary to refuse to sell the house? A surviving spouse or child can force a sale of property by bringing legal action against any dissenter. But if the property must be sold, each beneficiary is entitled to sell his or her share.

    Inheriting a House with Siblings

    Here are the steps to go through if all heirs do not agree to sell the property:

    1. The Probate Process: Rights of Heirs to Property

    The first step of the process is to go through probate. The executor of the will is responsible for filing the will with the court and for distributing the assets of the estate to the heirs. If there is no will, the court appoints an administrator. You need to go through probate, and you need the permission of the court and the siblings to sell the house. If the estate is small enough, you can ask the court to use the simplified probate process. Texas probate courts have simplified procedures that you may be able to use if the estate is small enough. If someone else has filed for probate, you need to go through probate court and you need the cooperation of all living heirs.

    2. The Property Appraisal: Can Property Be Sold?

    Homes and buildings can be extremely valuable. An appraisal is a professional’s opinion of the worth of your home or building, based on its market value. The best way to convince your siblings to sell the property is to get an outside appraiser to give you a dollar amount on the home or building. You can then split the wealth between each other and be done with the process.

    3. The Buyout Talk: Heirs Agree to Sell

    Your sibling’s share could be part of your inheritance. If you want to buy that share, go through the will to find out how much they own and whether or not they are willing to sell it. If not, ask them if they would be willing to let you cash out their stake after the sale. If your brother or sister owns part of the inheritance, you might be able to work out a deal where they sell it to you. Talk with them about how much of their share they want to cash out now, and buy it from them.

    4. The Partition Action: Executor Forces a Sale of Property

    A partition action is a legal proceeding in which a court orders the sale of a property. This is a major step that can be emotionally and financially difficult for a family. A partition lawsuit can happen when you share property with other people and do not agree on how to split the assets. A partition lawsuit is a legal process where a property is divided and sold, usually due to disagreement among owners. This process can be expensive and may not result in the outcome you desire. If you do not reach an agreement with the court on a buyout, then your property will be sold at auction. If you appeal, this could result in costly and damaging litigation for both parties.

    Do You Need a Probate Attorney to Settle an Estate in Austin?

    Our probate attorneys are skilled in probate administration and litigation, 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.

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    Can a sibling force the sale of an inherited property?

    The answer to this question depends on the state in which the property is located. In some states, the surviving siblings have the right to force the sale of the inherited property. If you aren’t interested in keeping your parents’ money, it makes sense to sell. However, if you have siblings, you are going to need all of your knowledge about the market if you want them to join you in selling too.

    What happens if one person wants to sell a house and the other doesn’t?

    If you’re selling a house and your spouse, partner or any other co-owner doesn’t want to sell, this could be a serious problem. You should try to negotiate a buyout agreement with them so you can sell the property and move on. You can also file a lawsuit to compel your spouse, partner or any other co-owner to sell.

    What happens if one sibling doesn’t want to sell your house?

    If a parent owns a house and wants to leave it to her children when she dies, she can just leave it to them in her will. But what happens if the siblings don’t want to sell the house after the parent dies? The property could be held in a family trust or possibly a share of a company that owns the house.

    How to divide parents property?

    Parents are not obligated to leave their property to their children. In the absence of a will, the distribution of property is regulated by the law. There are many reasons why parents may not like to have their children inherit all of their property. If you do not have a will, the state will decide who gets your property after you die. You can set up a trust that distributes your property to another person instead of your children.

    How to divide inherited property between siblings?

    When someone dies without making a will, state law determines how their property will be divided, and their debts will be paid. For example, in some states, if there are no children or other relatives, the property is divided equally among the parents or siblings. When siblings inherit a deceased parent’s property, their desire to divide the property equally puts them in conflict with each other. The key is to figure out the deceased person’s intentions behind the distribution of his estate.

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  • How Many Signatures Does a Will Need for Probate?

    A will allows you to choose how your estate is distributed after you pass away. You can also include instructions for things like guardianship of any children, funeral arrangements and burial instructions. Your will can be as simple or complex as you want, but in most cases you’ll need at least two competent witnesses to sign it. Probate is the legal process that transfers your assets to the people or organizations you name in your will. Get the facts about the probate process and how it affects your estate plan.

    Texas Probate Terminology

    Statute of Limitations, Texas Probate (Estates) Code: four years

    Writ of Error: a demand that a lower court provide a case record to an appellate court. This record can then be reviewed for supposed errors of law that occurred during a judicial proceeding.

    The Probate Case

    Douthit v. McLeroy, 539 S.W.2d 351 (Tex. 1976).

    Facts & Procedural History of the Probate Case

    Nola Mae Douthit applied to have the will of her deceased husband, Taylor Denney Barnett, admitted to probate. The couple’s daughters, Marjorie L. McLeroy and Bonnie F. Cooper, contested the will on the grounds that Mrs. Douthit had failed to submit her application prior to the expiration of the statute of limitations. The Texas Probate Code (later replaced by the Texas Estates Code) requires that the wills be offered to probate within four years of the testator’s death. The will did not contain the signatures of two witnesses as required by the Texas Probate Code. The witnesses signed a “self proving” affidavit, but not the will itself.

    The Probate Court found that the will had been properly executed and that the widow was not barred from presenting the will, despite her failure to meet the statute of limitations. The daughters subsequently appealed to the Court of Civil Appeals. The Court of Civil Appeals reversed, stating that the will had not been properly witnessed and was thus void. Mrs. Douthit appealed, and the Texas Supreme Court stated that section 59 of the Texas Probate Code requires that a will have two witness signatures, but that here the witnesses signed an affidavit rather than the will itself. Without the signatures, it was an error to admit the will to probate. The burden of proof regarding the will’s validity had been properly placed on the widow. Despite the failure of the contestants to plead invalidity and obtain a new trial, and even if the trial court had not erred, the issue of will validity was properly brought before the Court of Civil Appeals. The Supreme Court refused the writ of error and agreed with the judgment of the Court of Civil Appeals.

    The Takeaway

    Douthit v. McLeroy shows that, when seeking to admit a will to probate, the will must include two witness signatures. When improper attestation (admission of a will) is taken to the Court of Appeals, the burden of proof is placed upon the proponent (Mrs. Douthit).

    Do You Need a Probate Attorney to Settle an Estate in Austin, Texas?

    Our probate attorneys are skilled in probate administration and litigation, 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.

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    How many signatures do you need on a will UK?

    It is advisable to sign any will in any jurisdiction to make it valid. The reason for this is that a will can be contested if it is not signed and there is no clear evidence that the deceased intended to dispose of their estate in the way they have done.

    Will signed by two witnesses?

    A will is a legal document where you can list your last wishes so that your property and belongings go to the right people after you die. A will is legally binding if it meets the legal requirements of your state. The best way to make sure your will is legally binding and that your assets are distributed as you intended is to have it signed by two witnesses. This will make it much harder for someone to challenge your will after you die.

    Is a notarized will legally binding?

    In the case of a will, it’s only legally binding if it meets the legal requirements of your state. State law determines the legal validity of a will. The requirements for a valid will vary from state to state. These requirements ensure that your will is binding, and that your intentions are followed after your death. To make sure you’re eligible to write a valid will, contact an attorney in your area.

    Who can witness a will?

    A will is a legal document that states how you would like your estate to be distributed after you pass away. If you die without a will, your estate will pass to your next of kin by the laws of intestacy. Two witnesses are required to witness your will in order for it to be valid. There is usually a will ceremony as part of a valid will requirements.

    A handwritten will is a legal will in the state of Texas. A handwritten will is also known as a holographic will. A handwritten will can be written by you. This legal document is filed in the court of your residence. The handwritten will does not need to be witnessed or notarized, but it does need to be signed by you and two other people who are present when you sign the document. The holographic will is filled out in the same way as a formal typed document. A holographic will does not need to be typed or printed and can be written on anything that can be written on including a napkin, receipt, and even scrap pieces of paper.

    What happens if a will is signed but not witnessed?

    If you do not have two witnesses when you sign your will, it is not valid. You should sign your will in the presence of two witnesses. To prove your will is valid, you must provide the names of two witnesses who also signed it.

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