Tag: probate attorney el paso

Can a Probate Judge Overturn a Jury Verdict?

Can a court rule to overturn a jury decision? (JNOV)

A non obstante veredicto (JNOV) means a judgment notwithstanding the verdict. It is a judgment made during litigation that goes against what the jury decides. It happens when a jury decides in favor of one party and the judge sets that verdict aside and decides a ruling in favor of the other party. For example, in a probate proceeding if the jury rules in favor of the person bringing charges (plaintiff), a non obstante veredicto would occur if the judge ignored the jury’s ruling and found in favor of the person the charges were being brought against (defendant). A non obstante veredicto can only under a certain circumstance. What is that circumstance and how is it applicable? Estate of Querner answers these questions.

Probate Case

Estate of Querner, 974 S.W.2d 159 (Tex. App.–San Antonio 1998, no writ)

Facts of the Case: Trial Process for Civil Cases

Thera Querner and her brother Jimmie L. Querner Jr. each owned an undivided 50 percent interest in a 900-acre ranch in Kerr and Gillespie counties which they inherited from their father. The pair sought partition of the ranch meaning they wished to have the property divided between the two of them in accordance with each of their 50 percent interest. Three commissioners oversaw dividing the land equally. Because Thera lived on a house on the ranch her property was more valuable and therefore, the commissioners also oversaw proper allowances to be made to Jimmie for any differences in quality and features of the two parcels of land.

When the land was divided, it was appraised to be worth $1,100 an acre, and 475 acres were given to Jimmie while 425 acres were given to Thera. Thera’s land was valued at $25,000, and Jimmie’s land was valued at $30,000 with adjustments for allowances and taking into consideration that his land had access to the roads through an easement (via use of his sister’s land). Thera disliked these results and filed objections in court. During the trial, the jury was asked if the land had been divided in a fair, just and impartial manner. They answered no. Jimmie then made a motion for JNOV which the court granted. Thera appealed saying the court erred in granting this motion. On appeal, the motion for JNOV was reversed as the court of appeals found the trial court had erred in granting it to overturn the jury trial.

What This Case Means: Judgment notwithstanding the verdict reached

A judgment non obstante veredicto (JNOV) can only occur if there is no evidence to support the decision of the jury. In other words, if jurors have come to a conclusion that cannot be supported by any evidence, the judge may rule against the jury’s verdict. This means that when a party requests for an N.O.V., the reviewing court must decide if there is any evidence for which the jury could have based their ruling off. The review is done with a favorable light to the verdict of the jurors. This means that the reviewing court need only find a scintilla of competent evidence to support the findings in a jury trial. In other words, the reviewing court only needs to find a very small amount of evidence that could support the jury’s original verdict as a matter of law.

Here, it was found that Thera produced enough competent evidence to appeal the JNOV. The testimonies at the trial found that whatever improvements Thera made to her portion of land were too small of magnitude and of such fair/poor condition that the value of them was included in the value of the land. In other words, Thera’s improvements to the land were not large enough to add value to her portion of the land. The commissioners had also testified that the fact that Jimmie is further from the roads and must cross his sister’s land to access them does not add value to his land, and it is actually a detriment to his land’s value. Because the court of appeals was able to find this evidence, they ruled that the trial court made a mistake when they granted Jimmie’s JNOV and overturned the juror’s decision.

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

Can a judge overrule a jury’s verdict?

Judges are permitted to overrule the verdict of a jury if it goes against Texas probate law or if it would be considered unjust. And yes, this does happen, but whether you’re a plaintiff or defendant, don’t count on it as part of your litigation strategy.

There are certain circumstances in which a judge can overrule a jury verdict. As previously mentioned, this happens when the verdict goes against Texas probate law or is considered unjust by the court. In most cases, defendants in probate proceedings believe they have been wrongfully accused by the plaintiff and will attempt to appeal their case; however, there are instances in which plaintiff’s believe they have been wrongfully accused and appeal their case as well.

Can a judge overrule a jury acquittal (or not guilty verdict)?

Is it possible for a judge to overrule a jury’s decision in a criminal case and send the defendant to prison anyway? It can happen, but it’s rare. Let’s say the jury in a criminal case has listened to the evidence, heard witnesses and arguments from both sides, and makes its judgment. It returns a not guilty verdict. A judge can then decide that the trial is not over. If a judge dismisses the jury, he or she can hold a hearing and decide that a defendant is guilty after all.

There are a number of reasons why a judge might choose to do this. In some cases, the judge may feel that there was insufficient evidence presented at trial to support the jury’s verdict. In other cases, the judge may believe that the jury did not correctly apply the law when reaching their decision.

Whatever the reason, if a judge does choose to overrule a jury’s acquittal, the defendant will usually have an opportunity to appeal the decision. This means that they can take their case to a higher court where it will be reviewed by a panel of judges. If they are still found guilty by this higher court, then they will likely be required to serve their sentence. But again, don’t rely on this as a defense strategy.

What happens if a jury cannot agree on a verdict?

In a criminal case, if the jury is unable to agree on a verdict and a deadlock is reached, the judge would declare it a mistrial. When a jury deadlocks, or is unable to come to a decision on a verdict, the judge presiding over the case declares a mistrial. This means that the trial is ended and no verdict is reached. The jury’s inability to come to a decision does not necessarily mean that they believe the defendant is innocent, but rather that they are unable to agree beyond a reasonable doubt that the defendant is guilty. If the prosecution and defense are both unsatisfied with the outcome of a mistrial, they may choose to retry the case.

What is a trial outcome?

Trial outcomes are the ultimate decision from a jury or a judge, who hears the facts of a case. This can be a financial award, an order, or a denial. While trial outcomes are sometimes thought of as final decisions, they often prompt an appeal.

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June 15, 2022
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.

June 8, 2022
Make Sure a Probate Court Has Jurisdiction to Hear Your Case
Even though a probate court is an official court of the State of Texas, it is still limited to hearing only certain matters. If it rules on matters outside of this scope, its ruling might be worthless. Make sure the probate court can hear the matter you’re arguing before it. Here’s a case that illustrates this point:

Legal Case

Coble Wall Trust v. Palmer, 848 SW.2d 696 (Tex. App. 1991)

Facts of the case: Proceedings

Probate Proceedings: On April 12, 1985, Coble Wall was appointed by the court to be the guardian of the estate of Booney M. Moore who was an elderly and incompetent person. In November of the same year, an attorney named Cluck filed an Application for Order Authorizing the Establishment of an Estate Plan (An establishment of an estate plan determines how an individual’s assets will be managed, preserved, and distributed after death). The application stated Moore was ninety-three years old, in poor health, and his life expectancy was less than thirty days. The estate plan was approved by the court with changes to the original value of Moore’s assets listed. It also provided that Coble Wall organize a corporation called the Estate of Booney M. Moore, Inc., which would acquire by transfer of property all the real property owned by Moore in exchange for stock and general mortgage bonds. In other words, the corporation would own Moore’s real property, and in return would give stock and bonds. It further provided for several remunerations (money for a service) to be paid to Coble Wall. The purpose of the plan was to provide a cash flow for the estate as well as to reduce the substantial estate and inheritance taxes listed. Coble was also authorized to sell the mortgage bonds to the San Antonio Savings Association (SASA) for $2,400,000.00 cash by subsequent order of the court. This meant that both the purchaser of the estate and the full price of the estate had already been determined as part of the approval of the estate plan.

Moore died in December 1985 and Coble Wall was appointed temporary administrator of the estate. A temporary administrator will be appointed by a judge to serve for a fixed period of time as the person who will manage the estate and ensure it is dealt with in accordance with the rules set in the estate plan. One of the specific powers given to the temporary administrator in the probate court’s order was the power to complete the estate plan previously approved by the probate court in the guardianship proceeding. This meant that Coble Wall was in charge of selling the bonds and stocks to SASA. The probate court authorized the sale of the mortgage bonds to SASA by its order entered December 26, 1985. Coble Wall served with Cluck until removed in March 1986 and thereafter William Palmer was appointed to be the independent administrator of the estate.

Palmer, as permanent administrator, found that Coble Wall and Cluck had mishandled the estate and that the estate plan made by Cluck was not effective in the set purpose of reducing taxes. Palmer alleged the plan was needlessly complex, and that it resulted in the state paying excessive fees. Palmer sued in statutory probate court against the estate’s former temporary administrator (Coble Wall) and its president/sole stockholder (Cluck) alleging negligence, gross negligence, and violations of Deceptive Trade Practices Act (DTPA), including breach of fiduciary duty and misrepresentations of estate plan’s characteristics. This issue was tried first against the SASA and then against Coble Wall and Cluck. The court found a verdict in favor of Palmer. On appeal, the Court of Appeals reversed the original verdict of the trial court and held that 1) the probate court lacked subject matter jurisdiction over the suit, and 2) even if the probate court had jurisdiction, the remaining points of error would not be sustained.

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

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

What this Case Means

Subject Matter Jurisdiction of Statutory Probate Courts: State Limited Jurisdiction

This case shows how if a court does not have subject matter jurisdiction to decide a ruling over a case, then any points of contention made by a party are deemed irrelevant and cannot be argued no matter how accurate a court may find them.

Subject matter jurisdiction refers to the court’s ability to hear a particular kind of case. This case was held in a statutory probate court, so it was required to fall into a category of cases that a statutory probate court has the ability to hear. Statutory probate courts may hear cases “appertaining to estates” and “incident to an estate.” The phrase “appertaining to estates” is meant to limit probate court jurisdictions to matters where the controlling (main) issue is the settlement, partition, or distribution of an estate. An action is “incident to an estate” when the outcome will directly affect the assimilation (absorption of the estate), collection, and distribution of a deceased person’s estate.

The court held that the action was neither appertaining to or incident to the estate of Booney Moore therefore the probate court did not have subject matter jurisdiction over the suit and their original ruling is therefore invalid

Remaining Points of contention

Coble Wall and Cluck raised 54 points of contention that can be broken up into 7 topic sections in their appeal, all of which are no longer relevant because of the lack of jurisdiction of the original court; however, some points may have been upheld had jurisdiction not been an issue. Here, the points of contention raised would have all been overruled even if the probate court had the proper jurisdiction.

Improper Notice: Records

In order for a court to proceed with trial the parties must have proper notice of the suit meaning they are aware of the charges and date set for the trial within a certain amount of time before the trial takes place. The points on notice would have been appealed had the court had proper jurisdiction. Wall and Cluck argued that because the case had been called and then reset for a different date that this constituted an abuse of discretion of the court. However, the record showed that Cluck had admitted to being aware of the change of date, and therefore, they could find no abuse of discretion.

Special exceptions: Examples

Cluck and Wall argued that the trial court made an error in refusing to consider certain special exceptions in their case. A special exception in court is a procedural device that allows a party to question the sufficiency of their opponent’s claim. Here, the special exceptions were overruled because it was not shown on the record that Cluck or Wall had urged the court to consider the special exceptions during their original answer, and therefore, they cannot be considered in court.

Res Judicata and Collateral Estoppel: Laws

The doctrine of res judicata can be asserted to block a claim from being relitigated or retried in court when a following claim is brought into court upon the same cause of action or retrying issues common to separate causes. Collateral estoppel is different from res judicata as it blocks the re-litigation or retrying, in a subsequent case with a different cause of action, of issues tried in court and issues essential to the previous judgment. Wall and Cluck argue that because this case is a subsequent case of the suit against SASA that it is barred from re-litigation under the doctrine of res judicata and collateral estoppel. However, the court says these claims would be overruled because the case against SASA stems from a different cause of action than the case against Wall and Cluck, and it therefore does not apply.

Statute of Limitations

Wall and Cluck also argue that because the issue they are being tried for was brought on by an action that occurred more than two years prior that it is barred from being tried under the statute of limitations because the statute of limitations here had a bar against cases that are caused by actions that happened over two years prior. However, this is an issue that Wall and Cluck would have had to contest in their original trial. If a party wants to argue that their case is invalid under the statute of limitations, they must bring it up at the trial court level, and because they did not do this (they raised it on appeal), it would be overruled by the court.

Duty

One of the claims against Wall and Cluck was the breach of a fiduciary duty. A fiduciary duty is a duty that entails one party acting in the benefit and for the benefit of another party. Palmer argues that Wall and Cluck had a fiduciary duty to act in and for the benefit of the estate, and that they breached it with their actions. Wall and Cluck argue that there was no fiduciary duty to be broken. This would be overruled by the court because Coble Wall, acting as the administrator of the estate, had assumed a legal duty to take care of and manage the estate properly.

Breach of Duty

It being established that a fiduciary duty does exist, Wall and Cluck’s next argument is that there was no breach of said duty. They argue that they cannot be charged with negligence or gross negligence because their actions were not the cause of the damages that Palmer and his party has suffered. However, the court found that Wall and Cluck did not estimate the value of the estate correctly, and because of this the parties bringing suit did suffer loss, and also because of this, the estate plan could not achieve its purpose. The court found that this point would be overruled because the misrepresentation of the estate’s value is exactly the cause of the damages suffered by Palmer and his party.

Deceptive Trade Practices Act

Palmer had claims against Wall and Cluck under a very specific act called the Deceptive Trade Practices Act which protects consumers against false, misleading, and deceptive business practices and breaches of warranty. Wall and Cluck argue that this act does not apply to their actions because they correctly represented a plan to Palmer and the others bringing suit that would minimize taxes substantially in a way that would greatly benefit both the estate and the beneficiaries of the estate. They argued that the other party were consumers who sought to acquire services from Cluck and Wall, and all their actions were in regulation with the DTPA. The court does not address this argument and does not make a judgment call on whether or not it would be overruled. They instead state that finding a lack of jurisdiction of the probate court makes addressing this point unnecessary.

https://elpaso-probate.com/

Related Questions

How do you get around probate court? Avoiding probate

Avoiding probate can be as simple as setting up a proper estate plan. In fact, it makes sense to set up a proper estate plan even if you intend on avoiding probate. Why would you want to avoid probate? The cost of probate is often hundreds of thousands of dollars, and it can take years to settle. Estate planning can save the family a lot of time and money. In Texas, the cost of probate is often significantly less than in other states.

What counties in Texas have statutory probate courts?

Statutory probate courts are courts whose jurisdiction was created by Texas law and is governed by the state. Contrast that with a court that has its jurisdiction granted by the constitution or by an act of Congress, such as the federal district courts, federal bankruptcy courts, or a court with exclusive jurisdiction over a subject matter or geographic area, such as the Veterans Court of Texas.

The main difference between a constitutional court and a statutory court is the source of their jurisdiction. A constitutional court gets its power from either the constitution or an act of Congress, while a statutory court’s jurisdiction is created by state law. This means that constitutional courts are bound by federal law, while statutory courts are only bound by state law. Because of this, constitutional courts have more power than statutory courts.

The following list shows Texas counties with statutory probate courts.
- Bexar County
- Collin County
- Dallas County
- Denton County
- El Paso County
- Galveston County
- Harris County
- Hidalgo County
- Tarrant County
- Travis County
What happens in probate court?

Probate court is the court where matters relating to the estate of a deceased person are dealt with. The court has the power to appoint an executor or administrator to deal with the estate, and to distribute the estate among the beneficiaries. The court also has the power to settle any disputes that may arise in relation to the estate.

What is a probate case?

Probate is a legal process in which a court oversees distributions of a person’s estate. It’s more than just settling debts and closing accounts; it includes paying taxes, taking title of property and other postmortem tasks.

On its face, probate can be an intimidating process. It can be expensive and time-consuming, especially if you don’t know the law or if there are challenges to the case, such as a will or creditor claims. That’s where an experienced Texas probate attorney can help.

The experienced probate lawyers at Kreig LLC have years of experience helping people through the process of probate and resolving disputes over estates. From setting up trusts that can help control the distribution of an estate during its administration to protecting personal privacy and ensuring that heirs receive their rightful share, we can help you make sure your loved one’s wishes are followed through to completion.

The post Make Sure a Probate Court Has Jurisdiction to Hear Your Case appeared first on El Paso Probate Attorneys, Kreig LLC.
June 1, 2022
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.

https://elpaso-probate.com/

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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May 25, 2022
Texas Probate Partition Cases on Appeal

Texas law provides that, in a partition action, the court has the power to sell the property on application of any one or more of the joint owners. The court may also grant money judgments against any or all of the joint owners. This is also true for inherited property. In fact, inherited property is treated differently in Texas. In 2017, the State of Texas adopted the Uniform Partition of Heirs’ Property Act to assist with this. When a person dies without a valid will, this type of action can be used to distribute the deceased person’s property to heirs. But are there differences for partition actions in inherited property cases if they go to the appellate court?

Probate Terminology

What is a Partition Action?

A partition action asks that the court divide the property in a fair manner for the co-owners. The need for partition often arises in situations where the co-owners can no longer get along. This allows a sale of the property to occur and allow the other person to keep whatever money they would have received if they had sold the property before their death (i.e., no probate).

Texas Rules of Civil Procedure, Rule 385

The Rule states that a transcript must be filed within twenty days, or the right to appeal will be lost.

Probate Case: Partition Suit

Griffin v. Wolfe, 610 S.W.2d 466 (Tex. 1980).

Background & Procedural History: Forced Sale of Property

In a partition suit, the District Court held the parties (Griffin and Wolfe) would have an equal share in the property at hand, ensuring they both owned a percentage, and appointed commissioners to carry out its instruction. Appellants filed their appeal bond and, within sixty days, filed a motion to obtain a time extension on their transcript filing. The Court of Appeals denied their motion under the rationale that Rule 385 applied and Appellants had not met the twenty day requirement for timely filing. The Supreme Court of Texas reversed the Court of Appeals judgment, holding that Appellant’s motion was timely because a partition case involves two judgments, the first of which is appealable as a final judgment. Therefore, the appeal was required to be held to the timeline of an ordinary appeal, which had occurred here.

Main Considerations

Does the case involve interlocutory orders? If so, Texas Rule of Civil Procedure applies, and requires that a transcript be filed within twenty days, or the appellants will forfeit their right to an appeal.

Takeaway

Griffin v. Wolfe shows that partition cases on appeal are governed by the rules of an ordinary appeal, and that motions to extend the time to file a transcript should be accepted if they meet the ordinary rather than the shortened timeline.

A partition action can be brought at any time the land was owned by joint owners. However, the right to partition is not absolute; in some cases, there are other competing considerations that may require you to hire an experienced lawyer to determine whether it is possible to bring a partition action. For example, sales taxes on real property transfers must be paid within six months of the transfer date, so if you are considering purchasing property from a joint owner, you should consult with an experienced tax lawyer before making the purchase.

Do You Need a Probate or Partition Attorney to Settle an Estate in El Paso, Texas?

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

https://elpaso-probate.com/

Related Questions

How do you fight a partition action?

The first step in fighting a partition action is to file a written answer. In this answer, you will want to raise any and all defenses that apply to your case. In Texas, the court must take certain factors into consideration if their are heirs to an estate.

How do you respond to a partition lawsuit?

If a partition lawsuit is filed against you and you wish to avoid a forced sale of your property, it is important to respond quickly and correctly to the lawsuit. If you wait too long to respond, the court may order the sheriff to sell your property, or the sale of the property will be done by a real estate agent in an estate case.

What are the steps in a partition action?

The first step in a partition action is for the person who wishes to file the suit to file a complaint with the court. The complaint must state that there is property that is owned by someone other than the person filing the suit, and that the rightful owner of the property is entitled to have it turned over to them.

Next, a summons will be issued by the court. This summons will be served on all parties named in the complaint. The summons will notify them of the lawsuit and give them a date by which they must respond.

If any of the parties do not respond to the summons, they may be subject to default judgment, which means that they will automatically lose ownership of their share of the property without having their day in court.

Once all parties have responded, each side will present evidence and arguments to support their position before the judge makes a final decision on who should own what portion of the disputed property.

How to win a partition action?

Generally, it is a common desire of an estate to divide the property in equal shares among all the heirs. However, there are times when this goal proves quite difficult to achieve, mostly when one of the heirs does not agree with the proposed partition, or even refuses to participate in it.

The rule of thumb is that if one of the heirs objects to the proposed partition, then the parties involved (the executors, the heirs and the beneficiaries) should be able to reach an agreement. If they do not succeed, there are two possible ways to go forward: through partition by agreement or through partition by litigation.

In partition by agreement, the parties must come up with a mutually acceptable partition plan and file it before the probate judge. On the other hand, partition by litigation is a judicial process which implies that one party files a lawsuit against one or more other parties for an order for partition.

If you find yourself in a situation where you must win a partition action, there are a few things you can do to increase your chances of success. First, try to come to an agreement with the other heirs involved. If you can reach a mutually acceptable partition plan, this will be the quickest and easiest way to resolve the issue. However, if agreement cannot be reached, you may have to resort to partition by litigation. This is a judicial process in which one party files a lawsuit against another or others for an order of partition. Although this may take longer and be more complicated than reaching an agreement, it is still possible to win if you have a strong case. Be sure to consult with an experienced inheritance dispute lawyer who can help you navigate the legal system and give you the best chance of success.

Who pays for partition action?

When a real estate property is left in probate, the executor of the estate can take control of the property and sell it. In some situations, partition action is also available to heirs or beneficiaries. However, part of this efficiency may come at a price…you will have to pay for the partition action.

The executor of the estate is responsible for selling the property and distributing the proceeds to the heirs or beneficiaries. In some cases, the executor may choose to partition the property instead. Partitioning the property means that it will be divided up and sold off separately. The executor will still be responsible for distributing the proceeds from the sale, but he or she will not have to go through the hassle of selling a single piece of property.

Partition action can be a good option for heirs or beneficiaries; however, it is important to keep in mind that you will have to pay for partition action. This is something that you should discuss with your executor before making any decisions.

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May 18, 2022
Can a Guardian Sell Assets of a Deceased Ward?

Introduction

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.

Terminology:

non compos menti: not having control/mastery of one’s mind.

Parties

Appellants: Carl Carroll Jr., ET AL.

Appellees: Vernon Carroll, Norman Carroll, A. J. Carroll

Facts and Procedural History

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.

Issue

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.

Takeaways

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.

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

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.

https://elpaso-probate.com/

Related Questions

What happens to guardianship when the ward dies?

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.

What is the difference between guardian and successor guardian?

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 does guardianship end?

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.

What happens to a child if their guardian dies?

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.

What happens when a ward of the state dies?

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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May 4, 2022
Probate When Heirs Live Outside the United States

Probate is the legal process by which a will, trust, or life insurance policy is administered and assets are distributed. The process is often complicated, especially when a person has assets located outside the U.S. where laws for probate administration may be different than those of Texas.

If you are an heir of someone who has passed away and you live outside the United States, there are some things you should know about the probate process.

Probate Outside the U.S. (Foreign Probate)

Probate is the legal process by which a person’s will, trust, or life insurance policy is administered and assets are distributed. The process can be complicated, especially when a person has assets located outside the U.S. This is sometimes called Foreign Probate. In these cases, it is important to be aware of the laws for probate administration in both the country where the deceased person resided as well as your own country of residence.

There are a few options available to heirs who wish to have their inheritance dispersed according to the terms set forth in a will or trust agreement. One option is to open a foreign probate proceeding in the country where the assets are located. This can be done with the help of an attorney experienced in international law. Another option is to file for recognition of a foreign judgment in your own country. This is usually less expensive and time-consuming than opening a new probate proceeding overseas.

By far the best option is to have a will drafted by a lawyer in the country where the inherited assets are located. This allows you to avoid costly and time-consuming probate proceedings abroad, while following the same steps as if you were filing for recognition of a foreign judgment in your own country. The best way to avoid foreign probate is to have a will drafted by an attorney in the country where the inherited assets are located. When a will has been prepared, you need to file it with an appropriate government agency. In most cases you can do so without having to hire a lawyer. However, if there are any questions or issues with following the procedures in your jurisdiction, it’s best to seek professional legal assistance.

It is possible to file for recognition of a foreign judgment in your own country. If you live in a country where inheritance rights are governed by the law of an international treaty, then it is possible to file for recognition of a foreign judgment in your own country. A foreign judgment recognition proceeding is similar to a normal probate proceeding; both must be filed with the local court, and both must include certain evidence that shows that the will or trust agreement was valid.

Whatever route you decide to take, it is important to seek professional legal assistance to ensure that your rights as an heir are protected and that you receive your inheritance according to your wishes. The services of a lawyer specializing in probate law can help you to ensure that your rights, and the wishes of your deceased loved ones as stated in their wills, are respected. It is vital that you meet all legal requirements to inherit your loved one’s estate.

Do you need a lawyer to probate a will in El Paso, Texas?

Hire an Experienced Probate Attorney in El Paso. Do you need help with a probate matter in El Paso-metro area or the surrounding communities? We are experienced probate lawyers who represent clients with sensitive probate matters. If so, please visit our homepage to see how we can help.

Related Questions:

How do I claim an overseas inheritance?

If you want to claim an overseas inheritance, you need to start by researching the estate and its potential heirs. If you were named as an heir in a will outside the United States, you may need to go through the process of probate to collect your inheritance. If you live in the United States and are named as an heir in a foreign will, you may still need to go through the probate process, but only if you want to claim the inheritance in the United States.

Can a non U.S. citizen inherit from a U.S. citizen?

Under the laws of intestate succession, a non U.S. citizen may be able to inherit from a U.S. citizen.

Can my will beneficiary be from another country?

You may be able to leave your worldly goods to someone who lives outside of the United States. To do so, you will need to establish a foreign will trust. A foreign will is a document that transfers your property to a trustee living in another country.

Can you leave your estate to someone in another country?

You can leave your estate to someone outside of the United States. You should also have a will in place.

If you live in the United States and want to leave your estate to someone who lives outside the country, you may wonder what steps you need to take to do that. An experienced estate planning attorney can help.

How much can a non U.S. citizen inherit?

If you live outside of the United States and you are an heir to an estate, you may have to go through probate. Probate is a legal process that varies by jurisdiction. The goal of probate is to determine the rightful heirs, who will be listed in the deceased’s will, and to transfer any assets left to them.

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April 27, 2022