Glossary of Terms Important in Inheritance Issues in Texas

All definitions relating to probate

What Are Holographic Wills In Texas

A handwritten will is valid in TexasA holographic will is a handwirtten will. It must be wholly in the handwriting of the testator. He can not type it or print it. None of the words that make the document a will can be typed, printed or written by someone else.

A signature by initials is sufficient to execute the holographic document as a will, if it is testamentary in character, and it need not be dated. 862 S.W.2d 8. Since a date is not required, if some else writes the date, the will is still valid because the date is not part of the testamentary character of the document. 01-15-00855-CV; 69 S.W.2d 1107. A holographic will does not need to be witnessed while a typed or printed will does need to be witnessed.

In one case, a Texas court found that the proponent of the holographic will did not prove that it was wholly in the handwriting of the testator when one part was printed by hand rather than be in cursive writing. In that case, the alleged holographic will was written out except for the name of the person who was the beneficiary of the holographic will. The name N.L. Phillips was printed. The rest of the will was written out in cursive. Two witnesses to the will said that they recognized the cursive writing as that of the testator but neither one could say whether or not the name N.L. Phillips whcih was not in cursive was the testator's printing because they were not familiar with his printing.  410 S.W.2d 202.

Definition of "ouster"

Ouster refers to the actions of people who own property together. They are co-tenants or tenants in common.

Each co-tenant in any real property is entitled to use, occupy, possess, and enjoy the entire property, but not exclusively. In addition, a co-tenant must act in a manner that is not detrimental to the other co-tenant's ownership and enjoyment of the property. A co-tenant in possession who excludes another co-tenant is liable to the excluded cotenant for the rental value of his or her possession. Cotenants are not responsible for rent unless there is an ouster. If one co-tenant ousts the other co-tenant or denies use of the property, then the tenant who committed the ouster or denial must pay the fair market rental value for the property for the duration of time that he or she remained on the property as a result of the ouster. 04-18-00402-CV

Learn About No Contest Clauses Or In Terrorem Clauses In Texas

Learn about No Contest Clauses or In Terrorem clauses in Texas.Many wills and trust have no contest clauses, also referred to as in terrorem clauses. These basically say that anyone who contest the will or trust looses their inheritance under the will or trust. People are afraid that they will get nothing if they contest the will.

Texas courts don’t like to enforce these forfeiture clauses if there is a reasonable way to avoid enforcement. Heirs getting nothing is not what courts

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Definition Of Non-Participating Royalty Interest.

The words "non-participating royalty interest" may be defined as an interest in the gross production of oil, gas, and other minerals carved out of the mineral fee estate as a free royalty, which does not carry with it the right to participate in the execution of, the bonus payable for, or the delay rentals to accrue under, oil, gas, and mineral leases executed by the owner of the mineral fee estate.

Definition of Community Property in Texas

Definition of Community Property in TexasTexas is a community property state.  The word community in community property refers to the marital community; the marriage between you and your spouse.  If you are not married, you do not have any community property.  You only have separate property.

Community property is all property acquired during the

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Definition of Torts in Texas

What are torts in relationship to inheritance disputes in TexasA tort is a wrong that injures a person or property whether by negligence or intentional act not involving contracts. Examples of torts are negligent car wrecks, assault, medical malpractice, etc.

Definition of Ademption in Texas Probate

Definition of Ademption in Texas ProbateIf a testator makes a will and leaves specific   property to someone and then later sells or otherwise disposes of the property, the law says that the gift is “adeemed.”  In other words, the person to whom it was given doesn’t get anything.

Ademption applies to specific gifts such as “I give my nephew my 10,000 shares of Exxon stock.”  If the testator sells the shares before he dies or if he gives them away, then the person to whom he gave them in the will gets nothing.  That’s assuming that the only

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What is a codicil?

What is a codicil and what effect does it have on a will?Under Texas Inheritance Laws, a codicil is a supplement to a will. It can add to a will, revoke part of a will or explain parts of a will. If you want to make small changes to your will but you don't want to rewrite the whole will, you can make a codicil. A codicil republishes the original will. The will and codicil are then to be regarded as one instrument speaking from the date of the codicil. The codicil must refer to the original will to be effective. Because the codicil is so tied in with the original will, it must be executed with the same formalities required of a will. 280 / 731.

If the codicil was validly executed and republishes the prior will, proof of the codicil will operate also to establish the will without further proof. 320/660. I have previously written about some problems with codicils on my site Go to that site and search "codicil."

Update Texas Inheritance: In 2019, the dispute was over a codicil that referred to the original will "written in the summer of 2016." The original will was actually executed in February 2017. The court ruled that the codicil did not refer to the original will as required and the codicil was no good. 04-18-00355-CV

Learn About Powers of Attorney in Texas

Learn About Powers of Attorney in TexasAre all powers of attorney the same?  

The short answer is no.  A power of attorney can grant a general power or a special power.  It can be a durable power of attorney or not.  You can also have a power of attorney solely for medical decisions.

What do all of these terms mean?  A power of attorney is granted by one person, the principal, to another person, the agent usually called the “attorney in fact.”  The attorney in fact has the powers to act on behalf of the principal and to do those things that the principal has granted him the power to do just as if the principal were doing them himself.

A general power of attorney grants the broadest powers.  An attorney in fact with a general power of attorney can

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Find Out Who is an Interested Party for Probate Purposes?

The Texas Probate Code defines "interested persons," in relevant part, to be: children, heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered . . ." In order to contest a will, you must be an "interested party."

The interest referred to must be a pecuniary one, held by the party either as an individual or in a representative capacity, which will be affected by the probate or defeat of the will. That means you must have a financial interest. An interest resting on sentiment or sympathy, or any other basis other than gain or loss of money or its equivalent, is insufficient. For instance, if you are a neighbor and you see that an undeserving child seems to be ending up with all of the property of their parents or grandparents, there's nothing that you can do because your interest is not pecuniary. It is just altruistic. The only thing that you can do is to notify an interested party of your concerns. If they are not interested in contesting the will, there's nothing else for you to do.

Definition of Estoppel

Estoppel means that you are not allowed to take a position that is inconsistent with a prior position that you took. You are estopped from taking an inconsistent position.

Per Stirpes and Per Capita

Per stirpes means by the root. Per capita means by persons. These terms are usually used in a will when a testator is leaving property to several persons, like children. If the testator has three children and says "I give my property to my children per stirpes and not per capita, what he means is that he wants his estate to be divided into three parts (roots) and for each child to receive one part. If a child predeceases the testator, his part (root) will go to his heirs.

Definition of Fiduciary in Texas

Definition of Fiduciary in TexasA person who has the power and obligation to act for another (often called the beneficiary) under circumstances which require total trust, good faith and honesty. FreeDictionary.Com.  Fiduciaries can be family members, friends, business associates or anyone who has control of money or property that belongs to or should belong to another. In Texas, Executors, Administrators and Trustees are fiduciary. A fiduciary may also be a business like a bank or stock brokerage firm. Fiduciaries have responsibilities to the beneficiary.

Definition of Putative Spouse in Texas

Definition of Putative Spouse in TexasA putative spouse is one who has a good faith belief that he or she is married but who is not legally married. An example will give a clearer picture.

A man and a woman get married either through a formal marriage or an informal, or common law, marriage. They live together for some time and accumulate property. One of them dies and the surviving spouse finds out after the death that the deceased spouse was previously married to someone else but never got a divorce. Because the deceased spouse was never divorced from his first spouse, the marriage to the second spouse is not valid. However, because the second spouse had a good faith belief that he or she was married, the second or putative spouse has rights to property that are similar to a spouse's rights to property in a valid marriage.

Definition of Testator or testatrix

A testator is a person who makes a valid will. A will is the document through which a deceased person disposes of his property. A person who dies without having made a will is said to have died intestate. FreeDictionary.Com.

Read About A Muniment Of Title In Texas

Read About a Muniment of Title in TexasIn Texas, a will can be admitted to probate as a Muniment of Title instead of being admitted for regular probate. Since it is just another procedure to file a will, the will can be challenged by contesting the will just as any other will can be contested.

Normally, a will is admitted to probate and the person named as the Executor is appointed Executor by the Court. Probating a will as a Muniment of Title provides a

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Definition of Testamentary Intent In Texas

Testamentary intent in TexasDefinition Of Testamentary

The dictionary definition of testamentary means related to a will. Testamentary intent means that a person signs a document intending it to be his will. While that seems obvious, the courts have had many non-obvious facts to deal with. Consider the case(s) that follow.

Writing On A Greeting Card

A greating card was offered for probate as the last will of a man. On the back of the card, there was written

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Texas Requirements For A Common Law Marriage

Texas Requirements for a Common Law MarriageTexas recognizes common law marriages or what Texas calls "Informal Marriages." There are two different ways you can have an informal marriage:

  1. Agreeing to be married; living together in Texas after the agreement; and, representing to others that you are married; or,
  2. Signing a "Declaration of Marriage.

A person who claims a common law marriage must prove it. A proceeding to

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Definition of Trustee

A person or entity who holds the assets (corpus) of a trust for the benefit of the beneficiaries and manages the trust and its assets under the terms of the trust stated in the declaration of trust which created it. Dictionary.Law.Com. A trustee is a fiduciary.

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Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

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Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area.)

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

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