Tag: probate litigation

  • 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.

  • What If I Don’t Believe That A Will Is Valid?

    What If I Don’t Believe That A Will Is Valid?: How to Contest or Dispute a Will If you don’t believe that a will is valid, there are a few things you can do. You can file a petition with the court to have the will probated, or you can file an objection to the […]

    The post What If I Don’t Believe That A Will Is Valid? appeared first on Houston Probate Attorneys, Kreig LLC.

  • Is Your Sister or Brother Taking Advantage of Mom’s Estate?

    If a person becomes unable to take care of their financials, as the elderly population does, people may need to step in. That is where adult children come into play. An adult child may decide to help but abuse the disability. Don’t be afraid to call lawyers if you feel like your parent is being […]

    The post Is Your Sister or Brother Taking Advantage of Mom’s Estate? appeared first on El Paso Probate Attorneys, Kreig LLC.

  • When Can a Will be Modified or Reformed under Texas Probate Law?

    Introduction

    After a loved one passes away, their last will and testament becomes a legal document that must be followed in order for their final wishes to be granted. However, there are certain circumstances in which a will can be modified or reformed. In this article, we’ll take a look at when a will can be modified or reformed under Texas probate law.

    What is a will?

    A will is a legal document that outlines an individual’s wishes for how their property and assets should be distributed after their death. In Texas, a will must be in writing, signed by the testator (the person making the will), and witnessed by two other people in order to be valid.

    A will can be modified or reformed under Texas probate law if the testator later decides that they want to change their original instructions. For example, if the testator gets married or has children after making their will, they may want to update their will to reflect these new family members.

    If you need to modify your will, it’s important to work with an experienced attorney who can help you navigate the legal process and ensure that your wishes are carried out.

    What are the requirements for a valid will in Texas?

    In order for a will to be valid in Texas, it must be in writing, signed by the testator (the person who created the will), and witnessed by two disinterested people. A will does not have to be notarized, but it can be. If you have any questions about whether your will is valid, you should consult with an experienced probate attorney.

    When can a will be modified or reformed?

    In Texas, a will can be modified or reformed if the testator (the person who made the will) meets certain requirements. For example, the testator must be of sound mind and body, and must have made the changes to the will in writing. Additionally, the changes to the will must be signed by two witnesses. If these requirements are met, then a court may modify or reform the will according to the testator’s wishes.

    What are the consequences of modifying or reforming a will?

    In Texas, a will can be modified or reformed under certain circumstances, depending on the situation. Under Texas Probate Law, if a will is later found to be invalid because of a legal mistake or because of undue influence, the court can reform (fix) it.

    As with many legal issues, there are exceptions to every rule. For example, a writing may not be reformed (or fixed) if a later writing that revokes it was made by the testator or testatrix wholly independently of the revoked writing. Also, if an original of the revocation is not in existence or cannot be found, then the revocation cannot be proven and therefore no action can be taken to reform the will.

    A court can reform another document known as a codicil if it was revoked by mistake or if it was revoked due to undue influence.

    If a will is later found to be invalid because of a legal mistake or because of undue influence, the court can reform (fix) it. This means that the court can change the terms of the will to make them valid. However, there are some circumstances in which a will cannot be reformed. For example, if a later writing exists that revokes the will, then the will cannot be reformed. Additionally, if an original of the revocation is not in existence or cannot be found, then the revocation cannot be proven and therefore no action can be taken to reform the will.

    Conclusion

    In Texas, a will can be modified or reformed if the testator (the person who made the will) meets certain requirements. A will can be reformed if the testator meets certain requirements. These requirements include: having the capacity to make a will, making the will voluntarily, and not being under duress or undue influence when making the will. If a court finds that a will was made under duress or undue influence, it can reform the will to reflect the testator’s true wishes.

    If a court reforms a will, it may also need to modify other provisions in the will, such as who is named as executor or beneficiary. This is because changing one provision in the will can sometimes have unforeseen consequences for other parts of the document. For example, if someone is removed as a beneficiary, that person may also need to be removed as executor. Otherwise, that person would have control over distributing your assets after you die – which may not be what you wanted.

    It’s important to note that courts cannot simply change a wills to suit their own preferences; they must adhere to the testator’s true wishes (as expressed in prior documents or through witnesses). Courts also cannot add provisions to a will that the testator did not originally include. So if you want to make sure your Will accurately reflects your wishes, it’s best to consult with an attorney before making any changes.

    Do you need to hire a probate law attorney in Texas for your estate?

    If you’re thinking of modifying or reforming your will, you may want to speak with an experienced probate attorney who can walk you through the requirements and ensure that your wishes are carried out. If you’re in the process of hiring a probate attorney, it’s important that you make sure they are qualified to handle your case. Call us for a FREE attorney consultation at 915-292-4400.

    https://elpaso-probate.com/

    Related Questions

    How do you resolve family conflict over inheritance?

    While no attorney can resolve family conflict over an inheritance, there are some steps you can take to make the process easier.

    Inheritances are about family and family is about love. However, when a loved one dies, emotions run high. While you may want the division of the estate to go smoothly, emotions often override reason and cause conflict. Don’t let your emotions get in the way of what’s best for your loved ones. here are a few ways that you can help keep emotions in check during the probate process:

    Make sure everyone knows what to expect. Explain to your family that the process will take time and guide them through the stages of probate and distribution of assets. Remember that this is a legal process. While you might be able to have a say in the distribution, it’s up to the court to decide who should receive what.

    If you’re expecting a large inheritance, you may be wondering how to protect your assets. Here are a few steps you can take:

    • Consult with an attorney. A good lawyer can help you understand the probate process and what options are available to you.
    • Create a trust. This will allow you to control how your assets are distributed after your death.
    • Keep good records. Make sure that all of your financial records are up to date and accurate. This will make it easier for your loved ones to settle your affairs after you’re gone.

    Is a will good enough?

    I often get asked if a will is good enough to settle an estate. The short answer is yes, but that’s only because the longer answer is too long. It’s better to have a will than not have one, but that doesn’t necessarily mean you have a good will. An estate planning attorney can help you make sure your will does what you intend it to do.

    If you have specific wishes for your estate, a will is the best way to ensure that those wishes are carried out. Without a will, your estate will be subject to the laws of intestate succession, which may not distribute your assets in the way you would like. An attorney can help you create a will that reflects your unique circumstances and ensures that your wishes are carried out.

    A will can also help to avoid conflict among your heirs. If there is no clear plan for how your assets should be divided, family members may fought over who gets what. A well-crafted will can minimize the potential for disputes by spelling out exactly how you want your assets to be divided. An attorney can help you draft a clear and concise will that leaves no room for interpretation.

    Finally, a good will can save your loved ones time and money. The probate process can be long and expensive, but if all of your assets are properly distributed through a will, probate may not be necessary at all. An experienced estate planning attorney can help you navigate the probate process and make sure that your loved ones are taken care of after you’re gone.

    What if a sibling will not sign probate? Require information?

    If you were named in a will and your sibling is contesting the will and refuses to sign probate, you too may have difficulty accessing your share of the Texas decedent’s estate.

    The good news is that there are ways to handle this. The first thing you should do is hire an attorney that can help you through the process of having the rest of the estate distributed. If your sibling refuses to sign off on the court documents that finalize the estate, there are other ways to distribute your share. However, this isn’t as simple as just giving it to you. You won’t be able to just transfer money into your bank account. This will force you to deal with all of the consequences of being an “absconding beneficiary.”

    In order to get your share of the estate, you may have to go through a bit more work than if your sibling had just signed off on the documents. However, it is still possible for you to receive what is rightfully yours. The first thing you should do is hire an attorney that can help guide you through the process and ensure that all of the paperwork is in order. If your sibling refuses to sign the necessary documents, there are other ways to distribute the assets, though it will be more complicated than simply transferring money into your bank account. You may become an “absconding beneficiary,” but with the help of a lawyer, you can still receive what is yours.

    How to become personal representative after death?

    The answer to the question is pretty easy.

    In Texas, you need to publish a notice in a local newspaper offering the chance to contest the will. The timeline of the legal proceeding is usually 60 days after the publication day. If your case passes this round, it will proceed to the court session where a judge will decide whether your case is legitimate and valid or not. If a person challenges the will, he still can have his own will proved in open court and as a result become the personal representative of the deceased.

    We help people through estate probate process on every step of their way from preparing the most acceptable final document, to advertising it and then representing your case in court against possible challenges from third parties. Probate legal services vary in relation to complexity and complexity of cases. Contact our Texas lawyers for more information about our probate-specific services.

    How to find out if a will has been changed?

    This question is one of the most common questions asked of us by estate planning attorneys and probate attorneys. Certainly, it is a question that every person should know how to find out the answer to, especially if they have been named in a will. Will changing happens all the time.

    The first step in determining whether or not someone has changed their will is to get a copy of the will. If you know where the original is being held, request a copy. Although most people have a copy of their own will, you won’t know if someone else has changed it until you see it.

    If you don’t have a copy of your own will and the person who created it won’t give you a copy, you can try to contact the person who holds it (who may be different than the person who created it). This can often be done by searching online public records databases or contacting local government offices in charge of wills and estates. Once you have obtained a copy of the will, review it carefully to look for any changes that may have been made.

    The post When Can a Will be Modified or Reformed under Texas Probate Law? appeared first on El Paso Probate Attorneys, Kreig LLC.

  • Non-Production of a Will & Termination of a Trust

    What happens when a person’s original will cannot be found and therefore proved in court? What constitutes non-production of a will? When will a trust be terminated? All of these questions are answered in the case In re Estate of Catlin. Probate Case In re Estate of Catlin, 311 S.W.3d 697 (Tex. App. 2010). Facts […]

    The post Non-Production of a Will & Termination of a Trust appeared first on Houston Probate Attorneys, Kreig LLC.

  • Are Documents Connected to Prior Claims Admissible in Court?

    The answer to this question depends on the jurisdiction in which the case is being tried. Some jurisdictions allow for the admission of such documents, while others do not. In general, however, the answer is yes, documents connected to prior claims are admissible in court if they have a sufficient connection to the matter at […]

    The post Are Documents Connected to Prior Claims Admissible in Court? appeared first on Dallas Probate Attorneys.

  • Can a New Will Revoke a Will That’s Already Probated?

    When a will is probated it is declared as valid and the executor is given permission by a court to distribute assets according to the provisions of the document. What happens when a will made later in time that revokes the previously probated will is sent to a court for probate? Estate of Morris explains […]

    The post Can a New Will Revoke a Will That’s Already Probated? appeared first on San Antonio Probate Attorney, Kreig LLC.

  • 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.

    The post Can a Probate Judge Overturn a Jury Verdict? appeared first on El Paso Probate Attorneys, Kreig LLC.

  • Venue Transfer vs. Domicile

    Venue refers to the court in which a proceeding takes place. A party may want to transfer venue for a number of reasons including convenience, type of court, or possibly because the original venue lacks the jurisdiction/ability to hear the case. A person’s domicile is their permanent place of residence. How is domicile established? When […]

    The post Venue Transfer vs. Domicile appeared first on San Antonio Probate Attorney, Kreig LLC.