If you’re not happy with the executor appointed to oversee your estate, you may be able to object to the appointment. Here’s what you need to know. Legal Terminology Letters Testamentary Court-issued documents that are used to enforce the terms created by a deceased person within their will Letters of Temporary Administration Temporary Letters of […]
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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 The nephew of another country music legend, Willie Nelson, originally made the request to throw out the will.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 […]
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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.
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.
Howard Hughes Medical Institute v. Neff, 640 S.W.2d 942 (Tex.App. – Houston [14th Dist.] 1982, writ ref’d n.r.e.)
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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What’s the Difference Between an Estate Plan and a Living Trust? If you’re planning for the future of your estate, you may be wondering what the difference is between an estate plan and a living trust. Some people believe they are the same thing. But the truth is they aren’t. There is a significant difference […]
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You might think that as long as you have a will, your estate will be distributed the way you want it to be. But if you don’t have a valid will in Texas, your estate will be distributed according to the laws of intestacy. It’s established law in Texas that valid will must be In writing, signed by a testator in person, and signed by at least two witnesses in the presence of the testator who are both over the age of 14. But what does it mean to “sign” a will? A new Texas case holds that simply initialing the will could be good enough to meet the execution requirement.
Attested will: requires the signature of the testator and the signature of two or more witnesses who are not beneficiaries of the will.
Jones v. Jones (Tex. App.—Houston [1st Dist.] March 29, 2022, no pet. history).
Decedent’s wife (Beneficiary) filed an application for probate of an attested will, which was contested by Decedent’s son from a previous marriage (Contestant). The trial court denied Testator’s application, declaring that the will lacked Decedent’s signature and that the statements from the witnesses regarding their viewing of the signing could not be correct.
Beneficiary appealed, and the Court of Appeals held that there was sufficient evidence to establish testamentary intent through (1) the presence of his initials on six pages of the will and (2) the statements made by the witnesses. The lack of a signature on the last page alone did not invalidate the will. The Court of Appeals referenced Texas case law suggesting that a signature on a will could be relatively informal (including initials) if testamentary intent was present. This intent could be inferred through the facts and circumstances surrounding the execution of the will.
Except as otherwise provided by law, a valid will must be: (1) In writing; (2) signed by a testator in person; and (3) signed by at least two witnesses in the presence of the testator who are both over the age of 14.
Jones v. Jones shows that, as long as there is testamentary intent present, initials may constitute a signature for the purposes of a will.
Do you need help with a probate matter in Austin-metro area or the surrounding communities? We are experienced probate attorneys who represent clients with sensitive probate matters. If so, please give us a call us at 512-273-7444 or use the contact form to the right (–>) to see how we can help.
A valid Texas will must be: (1) written; (2) signed in person by the testator; and (3) signed by at least two witnesses in the presence of the testator who are both over the age of 14.
A handwritten will is only legal if it meets the requirements of the Texas Estates Code. If the will does not meet these requirements, it may be declared invalid by a court. If any part of a holographic will is not in the handwriting of the testator, or if there is no indication of when it was executed, then it may be declared invalid by a court.
A will must be written and signed by the testator (the person making the will). Under Texas law, a will is not valid unless it was signed at the end of the document by the testator in what is called “testamentary capacity.” To have testamentary capacity, a person must: – understand that they are making a will – know the nature and extent of their property – know who their natural heirs are – understand how distributing their property will affect said heirs.
The will must be signed by two persons who witnessed and signed the will in the presence of the testator. A will can be revoked only if it is done in writing and signed by the testator at the end of the document or after another provision or clause.
If any of these elements are missing, then the court may find that the will is invalid.
In general, if you lost your original will, you can execute a new will to replace it. However, when you execute a replacement will, there are a few important rules that you must follow. For more detailed information, please contact our probate attorneys.
After a decedent’s will has been filed with the Court the Clerk of the Court should then publish a notice advising all interested parties that the Will has been filed. The notice must remain posted for at least 10 days. This is to give those who wish to contest a will time do so. If no one contests the will, the courts will move forward with confirming its validity.
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Do You Need a Texas Death Certificate for the Probate Process? The death certificate is generally needed to start the probate process. A death certificate must be filed with the State of Texas within 10 days of death. This time frame is not always met. When there are questions about the cause of death or […]
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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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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:
Coble Wall Trust v. Palmer, 848 SW.2d 696 (Tex. App. 1991)
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.
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 –>
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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Probate is the process of administering a deceased person’s property and assets in accordance with their estate plan. At times, this can lead to disputes over the ownership and distribution of their assets. The court may be called upon to adjudicate these disputes and determine the rightful owner of property in an estate. In doing […]
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