Tag: probate law

  • Conflicts of Law: What Law Applies?

    When Two Laws Conflict

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

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

    Facts of the Case: Meaning and Definition

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

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

    What This Case Means: Rules, Principles, and Provisions

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

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

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

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

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

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

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

    Do you need an Experienced Attorney to protect your interests?

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

    https://austin-probate.com/

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

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

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

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

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

    What is an example of conflict of law?

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

    Which type of law is used to help resolve disputes?

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

    An example of when federal and state laws conflict

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

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

    What is Private International Law?

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

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  • 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.

  • Who Gets What under Texas Probate Laws If Someone Dies with a Will?

    When someone dies with a will in Texas, the court will follow the instructions in the will to distribute the deceased person’s assets. However, if there are any questions about the will or if anyone challenges it, the court may get involved to make sure that the assets are distributed according to Texas probate law. […]

    The post Who Gets What under Texas Probate Laws If Someone Dies with a Will? appeared first on Dallas Probate Attorneys.

  • Texas Disclaimers in Guardianship Proceedings

    There are four types of disclaimers. The first type is for when an individual who received a gift or bequest disclaims all rights to the gift, thereby giving up their interest in the property and allowing the property to pass as if he or she never received it. The second type is for when an individual who was named as a beneficiary of a trust disclaims any future interest in the property. This prevents them from receiving any more benefits. The third type is for when an individual who has a power of appointment disclaims his or her right to give away part or all of that power to someone else. And finally, the fourth type of disclaimer is when someone partially disclaims their interest in a decedent’s estate, whether through probate or not.

    While individuals may disclaim property to avoid certain obligations, as in the case of inheritance. Disclaimers filed in a guardianship proceeding of someone other than the deceased person whom an inheritance is being disclaimed are not considered filings under Texas probate law. The guardianship case of In re Estate of Boren gives us some guidance.

    In re Estate of Boren, 268 S.W.3d 841 (Tex. App. – Texarkana 2008, pet. denied)

    Facts & Procedural History

    Sarah E. Boren (Decedent) drafted a will that listed her nephew, Richard Finley, as the independent executor of her estate and Jeanetta Finley, his mother, as the alternate/successor. If her husband, Charles Boren, did not survive her, the will instructed that the estate be divided equally between Richard and Jeanetta.

    Richard had previously served as an attorney-in-fact for both Sarah and Charles, neither of which had children. After Charles was appointed a guardian, Richard’s power-of-attorney authority for Charles was revoked by the letters issuing the guardianship. Richard retained Sarah’s power of attorney authority, and originally voiced his disapproval regarding Charles’s guardian’s application to sell his real estate, but later expressed regrets regarding the familial conflict after Charles passed away. Both Charles’s brother and niece testified to Richard’s statements, and the niece had her attorney draft documents that would waive his and Jeanetta’s claims to the estate at hand.

    Richard and Jeanetta both signed the waivers, but eight days after the disclaimers were filed in the guardianship, they filed revocations of the waivers and Sarah passed away. Richard applied for probate (for Sarah’s estate), and the trial court denied both the will and his appointment as independent executor. As a part of this ruling, the trial court also articulated that Richard and Jeanetta had foregone any claim to Sarah’s inheritance by signing documents that met the requirements under Texas Probate Code, Section 37A. These documents included a Waiver of Service, Waiver of Interest, and Approval and Consent to Sale of Real Property regarding Sarah’s estate.

    Richard then appealed, stating several points of error that then were rejected by the Court of Appeals. The Court stated that the trial court had found Richard “unsuitable” for the role of independent executor under the authority granted by Section 78(e) of the Texas Probate Code, and that as such, it would review the trial court’s ruling under an abuse of discretion standard of review (meaning it was not limited to reviewing the sufficiency of the evidence provided). The Court stated there was evidence supporting the trial court’s determination that Richard was unsuitable for the independent executor role, and that it was not an abuse of discretion. However, it stated that the waivers were not irrevocable under Section 37(A) of the Texas Probate Code because Richard and Jeanetta had properly revoked them before they had been properly filed. The Court of Appeals reversed the trial court’s implied order (that the waiver barred Richard from Sarah’s inheritance) and remanded to the trial court for further proceedings.

    Main Consideration of Law

    When does a waiver become irrevocable?

    Once the proper filing and service requirements are met, the waiver becomes irrevocable. If waivers are revoked prior to their proper filing, they are inoperative despite any intentions to disclaim inheritances (such as express statements).

    The Takeaway

    Disclaimers filed in a guardianship proceeding of someone other than the deceased person whom an inheritance is being disclaimed are not considered filings under Texas probate law.

    Do you need an experienced probate attorney for emergency medical or adult guardianships in Austin?

    Do you need help with a guardianship or probate matter in Austin-metro area or the surrounding communities? We are experienced probate attorneys who represent clients with sensitive probate matters. If so, please give us a call us at 512-273-7444 or use the contact form to the right (–>) to see how we can help.

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    There are a few different ways to become a legal guardian in Texas. The most common way is to be appointed by a judge in a guardianship proceeding. Other ways include being appointed by will or deed, or being elected by a group of people who are legally authorized to do so. Becoming a legal guardian in Texas is a serious responsibility. As a guardian, you will be responsible for making decisions on behalf of another person, known as the ward. These decisions can range from everyday choices like what to wear and what to eat, to more important choices like medical treatment and financial matters.

    If you are considering becoming a legal guardian in Texas, it is important that you understand the duties and responsibilities that come with the role. You should also be aware of the different types of guardianship and how they work.

    Basics of how to get guardianship in Texas?

    If you are seeking guardianship of a child in Texas, there are some important things to know.

    First, Texas law requires that the person seeking guardianship must file a petition with the court. The petition must be signed by the person seeking guardianship and must state the reasons why the person is seeking guardianship.

    Second, a hearing will be held on the petition. The court will consider the best interests of the child when making its decision. The court may appoint a guardian ad litem (GAL) to represent the child’s best interests.

    Third, if the court grants guardianship, the guardian will have certain rights and responsibilities regarding the child. The guardian will have the right to make decisions about the child’s education, medical care, and other important matters. Additionally, the guardian will be responsible for providing for the child’s physical and emotional needs. fourth, if you are granted guardianship, you will be required to file periodic reports with the court regarding the child’s welfare. Additionally, you may be required to attend training sessions on how to be a good guardian. fifth, if at any time you no longer wish to serve as a guardian, you can resign by filing a notice with the court.

    What general powers does a guardianship have?

    A guardianship in Texas has a few different powers. First and foremost, a guardian has the power to make decisions about the ward’s medical care. This includes the power to consent to or refuse medical treatment, as well as the power to access the ward’s medical records. Additionally, a guardian has the power to make decisions about the ward’s education and residence. Lastly, a guardian has the power to manage the ward’s finances and property.

    If you are wondering how to file for legal guardianship of a minor in Texas, there is no need to worry. The process is actually quite simple, and there is a form that you can use.

    First, you will need to gather some information about the child and the parents. This includes the child’s full name, date of birth, and Social Security number. You will also need the names and contact information for the child’s parents.

    Next, you will need to fill out the legal guardianship form. This form can be found online or at your local courthouse. Once you have completed the form, you will need to sign it in front of a notary public.

    Once the form is signed, you will need to file it with the court. The court will then review the form and has the power to make a determination on whether or not to grant guardianship. If guardianship is granted, you will be responsible for making all decisions regarding the child’s welfare, including education and medical care.

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  • Tax Implications of Being an Executor in Texas

    When a person dies without having a will in place, the person who has been appointed executor is tasked with distributing all of the assets from the probate estate to those people and organizations named in the deceased’s will, or if there is no will, it falls on the executor to distribute everything at their discretion. The distribution of all assets triggers tax implications for the executor (and other parties) which must be dealt with under the applicable law.

    What are the tax implications of being an executor in Texas?

    As the executor of a estate in Texas, you may be responsible for paying taxes on behalf of the estate. This includes federal estate taxes, state taxes, and any debts the deceased owed at the time of their death.

    If the estate owes any taxes, it is your responsibility to ensure they are paid in a timely manner. Failure to do so could result in penalties and interest charges.

    It is important to work with a tax professional when dealing with estate taxes, as there are often complex rules and regulations involved. An experienced tax advisor can help you navigate the process and ensure that all taxes are paid correctly.

    What is exempt from probate and won’t be subject to estate taxes?

    When it comes to estate taxes, the federal government and most states exempt a certain amount of money from taxation. This is typically called the “exemption amount.” In 2019, the federal exemption amount is $11.4 million per person. This means that if you are an executor in Texas and your estate is valued at less than $11.4 million, your estate will not be subject to federal estate taxes.

    Texas has its own estate tax, but the exemption amount is much lower than the federal exemption amount. For 2019, the Texas exemption amount is $5 million per person. This means that if you are an executor in Texas and your estate is valued at more than $5 million, your estate will be subject to Texas estate taxes.

    Fortunately, there are ways to minimize or avoid paying Texas estate taxes. One way is to create a trust. Trusts can be used to transfer property to beneficiaries without going through probate. Trusts can also be used to minimize or avoid paying taxes on the transfer of property. Another way to minimize or avoid paying Texas estate taxes is to give gifts during your lifetime. You can give gifts up to the annual exclusion amount, which is $15,000 per person

    What is considered property that doesn’t qualify for exclusion from probate taxes?

    There are a few different types of property that don’t qualify for exclusion from probate taxes in Texas. These include:

    -Real estate: Any real estate owned by the deceased person at the time of their death is subject to probate tax. This includes any homes, land, or other buildings owned by the deceased.

    -Vehicles: All vehicles owned by the deceased person at the time of their death are subject to probate tax, including cars, trucks, boats, and RVs.

    -Businesses: Any businesses owned by the deceased person are subject to probate tax. This includes sole proprietorships, partnerships, LLCs, and corporations.

    -Investments: All investments owned by the deceased person at the time of their death are subject to probate tax. This includes stocks, bonds, mutual funds, and other types of investment accounts.

    How is probate money taxed and who pays the taxes?

    When it comes to taxes, the executor of an estate has a few different responsibilities. First, they must file a final income tax return for the decedent. They may also be responsible for filing state and local inheritance taxes, as well as any estate taxes that may be due. The executor is also responsible for making sure that all of the deceased person’s debts are paid, including any taxes that may be owed.

    Probate money is taxed as part of the estate, and the executor is responsible for paying those taxes. The tax rate will depend on the value of the estate and where it is located. In Texas, the inheritance tax rate is 0.5% for estates valued at less than $10 million, and 2% for estates valued at more than $10 million.

    If you are named as the executor of an estate in Texas, it’s important to understand the tax implications of your role. Consult with a tax professional to ensure that you are meeting all of your responsibilities and to minimize any potential liability.

    Who can get a refund on probate taxes paid and how does it work?

    If you’re the executor of an estate in Texas, you may be able to get a refund on probate taxes that were paid. Here’s how it works:

    The Texas Comptroller’s office offers a refund program for certain estates that have paid probate taxes. To be eligible, the estate must have been closed for at least two years and all claims against the estate must have been settled.

    If the estate is eligible, the executor can file a claim form with the Comptroller’s office. The claim form must be signed by all heirs or beneficiaries of the estate.

    Once the claim form is filed, the Comptroller’s office will review it and determine whether a refund is due. If a refund is approved, a check will be mailed to the executor.

    When does the executor need to file a final tax return for a will

    When an executor is wrapping up the estate of a deceased person, they may need to file a final tax return on behalf of the deceased. This is typically done when there are still assets remaining in the estate that need to be distributed to beneficiaries. In Texas, the executor has to file a final tax return if:

    -The estate owes any taxes to the state or federal government

    -The decedent died during the tax year

    -The decedent was a resident of Texas at the time of their death

    If any of these circumstances apply, the executor will need to file a final tax return within 9 months of the date of death.

    How much does an executor get paid in Texas under Probate Law?

    In Texas, an executor is entitled to a fee of 5% of the first $200,000 of the estate, 3% of the next $300,000, and 2% of the next $500,000. For example, if an estate is worth $500,000, the executor would be entitled to a fee of $20,000.

    Do you have to pay death taxes on inheritance in Texas?

    As an executor, you are responsible for ensuring that the deceased person’s taxes are paid. This includes any federal, state, and local taxes. You may also be responsible for paying any taxes on the inheritance that the beneficiaries receive.

    Are executor fees taxable by the IRS?

    If you’re named as an executor in a will, you may be wondering if the fees you’ll earn are taxable by the IRS. The good news is that, in general, executor fees are not considered taxable income. However, there are a few exceptions to this rule.

    First, if you’re paid a salary by the estate for your work as executor, that salary is considered taxable income. Second, if you receive reimbursement from the estate for expenses you incurred while performing your duties as executor, those reimbursements are also considered taxable income.

    Finally, if any of the assets of the estate are distributed to you as part of your compensation for serving as executor, those assets may be subject to capital gains taxes. For example, if the estate includes a piece of property that has appreciated in value since the decedent’s death, any profit you make on the sale of that property will be subject to capital gains taxes.

    If you have any questions about the tax implications of being an executor, it’s best to speak with a tax professional or an attorney who specializes in wills and estates.

    How to probate a will in Texas?

    In Texas, the process of probating a will is overseen by the court system. The first step is to file the will with the court and have it admitted to probate. The next step is to have the executor named in the will qualified by the court.

    What happens in probate court?

    Probate is the court-supervised process of identifying and gathering the assets of a deceased person (the “decedent”), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. The probate process takes place in probate court.

    The post Tax Implications of Being an Executor in Texas appeared first on Austin Probate Attorney, Kreig LLC.

  • Effects of Testamentary Capacity and Undue Influence on Wills

    Testamentary capacity refers to a person’s ability to create a valid will. This ability deals both with being of legal age to create a will (18) and the mental capacity of the person making the will. Undue Influence occurs when a person acts under the influence of another rather than of their own free will […]

    The post Effects of Testamentary Capacity and Undue Influence on Wills appeared first on Dallas Probate Attorneys.

  • Judge denies request to throw out country music icon’s handwritten will

    A McLennan County judge will not dismiss the 2003 handwritten will of Texas music legend Billy Joe Shaver, which purportedly leaves his estate to his nephew. The nephew of another country music legend, Willie Nelson, originally made the request to throw out the will. Tommy Witherspoon of KWTX reports the following: The ruling by County […]

    The post Judge denies request to throw out country music icon’s handwritten will appeared first on Dallas Probate Attorneys.

  • Funerals, Burials, and Final Costs

    Funeral Costs & Last Expenses Paying for the Last Expenses Planning the funeral of a loved one can be very stressful. When a person dies, there will be a question as to how and when their funeral and last expenses are to be paid. Even if there is a will, unless the decedent is survived […]

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  • 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?

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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.

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