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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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)
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.
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.
They likely contained the attorney’s mental processes, conclusions or legal theories related to their pretrial preparation.
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 help with a probate matter in Austin-metro area or the surrounding communities? We are experienced probate attorneys who represent clients with sensitive probate matters. If so, please give us a call us at 512-982-9293 or use the contact form on the right to see how we can help. –>
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.
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.”
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.
No, an insurance policy is not considered confidential. However, an insurance claim file may be attorney-client privileged if it contains attorney work product.
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.
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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The credibility of a witness’ testimony is often a deciding factor in a court case. A recent study has found that the majority of young people who have been involved in the juvenile justice system do not believe that their testimony is credible. This is sometimes applicable in probate administration cases, and in probate litigation. […]
The post Is Testimony as to the Credibility and Delinquency of a Minor Admissible? appeared first on Houston Probate Attorneys, Kreig LLC.
After a loved one dies, their property must go through probate court in order to be transferred to the rightful heirs. If you are named as the executor in the will, you will be responsible for ensuring that the process goes smoothly. Here’s what you need to know about transferring a case to probate court. […]
The post When Can a Judge Transfer a Case to Probate Court? appeared first on Dallas Probate Attorneys.
If you’re considering an income trust, there are a few things you should know about community property. This case gives some information on what you need to know about this type of trust and how it can benefit you.
Cleaver v. George Staton Co., 908 S.W.2d 468 (Tex. App. 1995)
Cleaver: Appellant Husband
George Staton Co.: Appellee Trustee and Trust Property Company
Facts: George Staton, Sr. died in 1966 and left a trust naming his wife as the sole beneficiary of the income from that trust for life. She was then single. The trust consisted of one twelfth of the assets of Staton lumber yard, subsequently incorporated as George Staton Company, Inc. and Staton Materials, Inc. In 1971, prior to reaching her twenty-first birthday, she married appellant husband. Jimmy Maurice Cleaver, appellant husband, and his wife were in the process of divorcing when Cleaver filed suit against George Staton Company, Inc. for fraud, conversion as well as breach of fiduciary duty and the Texas Trust Code. Cleaver, alleged appellees wrongly withheld trust payment from his wife. In his first amended petition, Cleaver attempted to name wife as an “involuntary plaintiff” under Tex. R. Civ. P. 39(a). The trial court dismissed his case for lack of standing and the court affirmed. The court found that the income his wife was to receive from the trust was likely separate property which the appellant husband had no claim to. In addition, if any interest in the trust income was community property, the court found it would be “special community” to the wife and she would have sole management of the property under Tex. Fam. Code Ann. § 5.22(a)(2) (1993). Therefore, the court found, only the wife had the authority to sue to recover the property and the “involuntary plaintiff” procedure united by Cleaver could not be used to erode that control.
Procedural History: The District Court of Cherokee County, Texas, dismissed husband’s suit against appellees. Appellant, husband, then challenged the order and claimed he did have standing and that appellees wrongly withheld trust payment from his wife. This court affirmed the lower court’s dismissal of appellant husband’s suit against appellees, trustee and trust property company.
No. The trust provided for mandatory payments of income to the Wife for life. She was conveyed no ownership interest in the cooperation of the trust and has no present possessory interest in the cooperation. The trust income payments to the Wife are therefore her separate property.
Lack of “capacity” to sue pertains to the legal right to prosecute a lawsuit in one’s own name, and arises from the disability of minority or mental incompetency.
On the other hand, “standing” is an element of subject matter jurisdiction. The “standing” doctrine requires that the plaintiff have a justiciable interest in the matter being disputed.
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.
In California, community property is defined as any property that is acquired during a marriage or domestic partnership. This includes income from trusts, regardless of whether the trust is created during the marriage or partnership.
In a divorce, property that is held in a trust may be classified as either community property or separate property. The classification of trust property will affect how the property is divided in a divorce.
When it comes to dividing up property in a divorce, community property states have a few extra rules. Texas is a community property state, which means that any property—including income—that either spouse acquires during the marriage is considered community property and belongs to both spouses equally.
When it comes to money and property, the law is clear: what’s yours is yours, and what’s mine is mine. But what happens when the lines between “yours” and “mine” start to blur? In the case of divorce, for example, the court will often divide property between the two spouses. But what about trust money? A trust is a legal arrangement in which one person (the “trustee”) manages property for the benefit of another (the “beneficiary”). If a beneficiary is married, the trustee must determine how much of the money to allocate to each spouse.
California is a community property state, which means that certain property and assets acquired during a marriage are jointly owned by both spouses. This can have implications for how income and assets are taxed, as well as how they are divided in the event of a divorce.
If you’re considering getting a trust, you may be wondering if it will be considered marital property. Trusts can be an important part of financial planning, but it’s important to understand how they may be impacted by divorce.
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A probate court is a court of limited jurisdiction that has jurisdiction over the probate of wills and the administration of estates in Texas. Probate courts are usually operated at the county level, although there are a few county-level courts that operate independently of the regular probate courts. How do you know how to pick […]
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When a person dies, his or her estate is the collection of the person’s assets at the time of death. The estate is managed by an executor, who is responsible for paying any debts and taxes owed by the deceased, as well as distributing the remaining assets according to the will. If you are the executor or administrator of an estate, you are responsible for preserving the estate’s assets until they are distributed to the beneficiaries. There are several steps you can take to preserve the estate’s assets. The key to preserving a decedent’s estate is to ensure that only the appropriate person has the ability to access assets.
After someone has died, loved ones have to figure out what to do with their belongings. This can present a number of challenges.
Texas law generally says that an interested person can act to secure or preserve property. For example, if you have a claim against the property and it is in danger of being lost, you may be able to act to protect your interest in the property. But doing so can also subject the person who does so to civil and possibly criminal liability. Where is the line between securing property and doing something that is illegal? The law is not all that clear.
It is generally recommended that items of value be documented, and precautions taken. This includes bringing witnesses with you, having police supervision during the proceedings, taking photographic evidence etc. The more information that is documented, the better.
An application for emergency intervention or a temporary probate administration may be needed to secure the decedent’s property. An emergency intervention attorney can help with this situation to secure property.
Methods of securing property depend on the type of property. For real estate, contact a mortgage holder, tenant or other interested party to ensure it will be secured. It may include changing the locks as well. Cash and/or checking account can be secured by transferring them to an account owned by the estate.
There are other property that can be more difficult to secure, such as operating businesses and digital assets, such as cryptocurrencies. Cryptocurrencies are digital assets that are used to send value between accounts.
Property located outside of Texas presents unique challenges. Some of these will be addressed later in this guide, but it is worth noting that the law of another state may need to come into play. This means filing ancillary probate in the other state, which can get complicated and expensive.
When property cannot be secured, it may be necessary to consider a temporary administration. A temporary administration is a court application that is typically used only when other options have been exhausted. In this case, it’s usually a good idea to get a probate attorney involved.
Do you need help with a probate matter in Austin-metro area or the surrounding communities? We are experienced probate attorneys who represent clients with sensitive probate matters. If so, please give us a call us at 512-273-7444 or use the contact form on our homepage to see how we can help.
The estate of a deceased person means all the assets that they own. After someone dies, there is a period in which their assets are managed by an executor or administrator and distributed to the people named in their will or living trust.
The executor or administrator of an estate is responsible for preserving the estate’s assets until they are distributed to the beneficiaries. There are several steps that the executor can take to preserve those assets.
If a person dies without leaving a will, the law of the state where he or she lived at the time of death will control the distribution of his or her property. Each state has a set of laws that govern how a person’s property must be distributed when he or she dies without a will. These laws are called “intestate succession” laws. A state’s intestate succession laws will govern the distribution of an individual’s property when he or she dies without a will.
The probate process is the process of settling a decedent’s estate after death. This process includes gathering the decedent’s assets, paying the decedent’s debts and taxes, and distributing the remaining assets to the beneficiaries.
The value of an estate is the net value of all the property of a person who has died. The gross value of an estate is the total value of all the property of a person who has died. Appraisers use the gross estate value to determine the cost of selling everything and dividing the proceeds among those who inherit.
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If you are named as the executor of a will, you’ll be in charge of managing the deceased person’s estate. The executor is the personal representative. However, you might be disqualified from serving as the executor if you don’t meet certain criteria under Texas state law. The Probate Case In re Estate of Gaines, 262. […]
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An executor is a person who has the legal right to manage an estate during and after the probate process. An executor is also referred to as an administrator, personal representative or estate trustee. But is an executor a “party of interest” to other proceedings, especially non probate proceedings? Legal Terminology Doctrine of Res Judicata: […]
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