Who Receives Notice of Probate?

Who Receives Notice of Probate?

by | May 9, 2023 | Contesting wills, How to probate a case, Procedure, Start

Texas Probate Notice Requirements

Who receives notice when a will is filed for probate in Texas?

When a will is filed for probate in Texas, the county clerk posts a notice on the courthouse wall. This notice provides constructive notice to the world that the will has been filed, and individuals should take necessary steps to protect their interests if any time limits or statutes of limitation apply.

However, a different rule applies when someone is a named beneficiary in the will. In that case, the executor or administrator must provide actual notice to the beneficiary that the will has been filed for probate. There must be something more than constructive notice.

Named Beneficiary

In a recent Texas case, the contestant did not file his will contest within the two-year statute of limitations for contesting wills, and his contest was dismissed, leading to an appeal. 12-22-00256-CV. The contestant argued that he was a named beneficiary and should have received actual notice of the probate. However, the appeals court disagreed.

Decision

The will listed the contestant as the son of the testator but stated that the testator had “already give my son…a 1985 Chevrolet Corvette for his inheritance of my estate.” Despite the poor grammar, the court determined that the testator meant “already given my son” his inheritance, indicating that the son was not a beneficiary under the will since he did not receive anything under the will.

Things to Note

When someone passes, it is the responsibility of the heirs to understand what actions are required. In some cases, close relatives are unaware of an individual’s passing for several years following their death. If an individual is not listed as a named beneficiary in the will, they will not receive any personal notification, making it crucial for individuals to keep themselves informed.

Can You Have an Heirship Determination if There is a Will?

Can You Have an Heirship Determination if There is a Will?

by | Last updated Nov 4, 2022 | Contesting Wills, Heirship, How to probate a case, Inheritance

Heirship Proceedings in Texas

The Texas Estates Code provides that the probate court

“may conduct a proceeding to declare heirship when…a person dies intestate owning or entitled to property in this state and there has been no administration in this state of the person’s estate.” §202.002(1).

That section came into play in a case decided by the Amarillo court of appeals, 07-21-00137-CV.

Facts

In the case, a sister, Wanda, filed her brother’s will for probate, which left his property to her. She claimed that he lived in New Mexico but was domiciled in Texas. The will was admitted to probate, but the estate was never closed. Almost two years after the will was admitted to probate, a woman, Ginger, filed a bill of review claiming that she was the brother’s common-law wife and asked the trial court to determine the brother’s heirs. Ginger claimed that she was a pretermitted spouse under New Mexico law and that New Mexico law applied because the brother/husband lived in New Mexico.

Wanda filed a motion to dismiss the claim because the brother left a will, and she claimed that the court could not have an heirship determination if the decedent had a will, relying on §202.002(1). The trial court agreed and dismissed Ginger’s claims.

Appeal

When Ginger appealed, the court of appeals reversed and sent the case back to the trial court to hear Ginger’s claims. The appeals court ruled that §202.002(1) did say that a person had to die intestate before an heirship determination could be heard, but the additional language “and there has been no administration in this state of the person’s estate” made an exception for Ginger to have an heirship determination. Wanda cited a Texas Supreme Court which dismissed an heirship determination, but the appeals court noted that the administration had been closed in that case, it had not been closed in this case.

What Could Have Done

If Wanda had closed the case, would that have helped? There are reasons to leave an estate open, but in this case, if Wanda knew Ginger was around and might do something, it would have been better to close the estate.

Signing a Will in All the Wrong Places

Signing a Will in All the Wrong Places

by | Last updated Apr 19, 2022 | Contesting wills, Contesting Wills

Where do you sign a Texas will?

In a recent case, 01-20-00073-CV, a Texas will was offered for probate. The trial court did not admit the will to probate because the testator just initialed six pages and did not sign on the seventh page where the document had a space for his signature. The trial court determined that the will was not properly signed. The proponent of the will appealed.

Initials are OK in Texas

The court of appeals reversed the trial court and admitted the will to probate even though it was initialed not signed. The appeals court held that:

“Except as otherwise provided by law,” a will must be: (1) in writing; (2) signed by the testator in person;[3] and (3) “attested by two or more credible witnesses who are least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence.”..”Texas courts have been lenient regarding the location and form of a ‘signature.'”…A signature may be informal, and its location of secondary importance, if the maker intended his or her name or mark to constitute a signature expressing approval of the instrument as the maker’s will…”it is necessary that the maker intend that his name or mark constitute a signature, i.e., that it expresses approval of the instrument as his will”…The facts and circumstances surrounding the instrument’s execution may be considered in determining whether the maker intended a testamentary disposition of his property…”The key inquiry, however, remains whether the testator intended the mark to constitute an expression of his testamentary intent.”

Considering this case law, we conclude that Wendell’s initials on pages one through six of his will are sufficient to satisfy Section 251.051’s signature requirement, just as any other mark made by him would be, so long as he “intended the mark to constitute an expression of his testamentary intent.”

The court went on to say that the opponent of the will did not put on any evidence to the contrary.

I have a short podcast on the signing of a will.

Presumption of Undue Influence

Presumption of Undue Influence

by | Last updated Mar 2, 2022 | Contesting wills, Contesting Wills, Duties, Procedure, Trustee, Undue Influence

Presumption of Undue Influence

A person who is an Executor, Administrator, Trustee, or who has a Power of Attorney is a fiduciary. A fiduciary must act in the best interest of the beneficiaries and show that each of his actions was in the beneficiaries’ best interest. When an action benefits the fiduciary in any way, there is a presumption of unfairness, and the fiduciary may be liable.

David Johnson, an attorney who writes on fiduciary litigation, has an article that addresses the case of In re Estate of Klutts, 02-18-00356-CV, (Tex. App.—Fort Worth December 19, 2019, no pet. history). In Klutts, a son who had a power of attorney helped his mother prepare a new will which benefited the son. When the mother died, he attempted to probate the new will. However, his siblings contested the will. The son asked the court to dismiss the contest because his siblings had no evidence that he unduly influenced his mother. The trial court agreed with the son and rejected the will contest. On appeal, the appeals court reversed.

The appeals court held that because he had a power of attorney, the son had to overcome the presumption of undue influence. Thus, the burden was not on the siblings to prove undue influence but on the son to disprove it.

What can go wrong if you represent yourself – part 2

What can go wrong if you represent yourself – part 2

by | Last updated Dec 12, 2020 | Contesting Wills, How

Representing yourself in court

I have written before about what can go wrong when representing yourself in court. Look at this post and this one. The law refers to you as a pro se litigant.

Many people ask about representing themselves in court. They also want to know how to do it. One of the problems with probate matters involving inheritance issues or contesting a will is that the estate is considered a separate person. So while you can represent yourself in court, you can’t represent the interest of the estate. There were two recent cases dealing with pro se litigants and inheritance issues.

The first one involved a man attempting to probate a will and getting appointed as the independent executor as the will specified. Because he wasn’t an attorney, he could represent himself but could not represent the estate so while the judge did admit the will to probate he refused to appoint the man the independent executor of the estate. 13-17-00555-CV.

The second case involved a man dying during an appeal. The man’s attorney withdrew because he couldn’t get the man’s wife to cooperate with him. The wife attempted to represent the estate and filed the appellate brief. The appeals court dismissed the appeal because the wife was not an attorney and therefore could not represent the estate. 08-20-00052-CV.

Can you represent yourself?

Yes. Is it wise, no. And remember, you can’t represent someone else in court and an estate is someone else so you can’t represent an estate in court, only yourself.

Learn the First Step in Contesting a Will in Texas

What Happens When You File An Inheritance Dispute In The Wrong Texas Court

How bad people use undue influence

How bad people use undue influence

by | Last updated Dec 12, 2020 | Contesting Wills, Grounds, Undue Influence

This article is about ways that people exert undue influence in Texas to obtain the property or estate of others.

Undue influence can take many forms. In a 2020 Texas case, Buford, a man with a below average IQ hired a private investigator, Tait, whose name he found in a phone book, to help him. Tait’s assistant was Irene Rueda.

Undue influence example. Tait and Rueda soon began providing Buford with other services, including cleaning, cooking, bill paying, shopping, and running errands. In fact, Rueda testified that she saw Buford almost every day for three years until his death in August of 2015. During these three years, Tait and Rueda submitted numerous invoices to Buford, billing him tens of thousands of dollars for their investigation and other services. In addition, Buford gave both Tait, Rueda, and their family members bonuses and gifts, including a $5,000.00 gift to Tait’s wife, despite the fact that Buford had admittedly never met his wife. In addition, the record contains evidence that Buford made large cash withdrawals from his account during the time that Tait and Rueda were providing services to him, some of which were signed by Tait, acting on Buford’s behalf.

Tait prepared wills

Buford did not have a will when he first met Tait and Rueda. Several wills were prepared by Tait and signed or written out by Buford. The will gave Tait and Rueda all of the real and personal property and $300,000 to Tait and $200,000 to Rueda. The total value was about 2.4 million dollars.

When the will was filed for probate, the cousins of Buford, his closest relatives, contested it. The jury ruled that the will were written under undue influence. Tait and Rueda appealed.

The appeals court, in addition to the above facts, set out the evidence supporting the jury verdict including:

  • Emails from Tait the he was “working” on Buford to make a will.
  • Bills from Tait for helping Buford prepare his will.
  • Tait had taken over virtually all of Buford’s legal affairs.
  • Tait accompanied Buford to every meeting with others.
  • Tait himself admitted that he could influence Buford to add provisions to his will.
  • After making the first will, Buford told someone that he had not yet decided what to do with his property.

Every case is different but undue influence is based on the overall conduct that is taking place and who benefits from it.

If you believe a loved one has been the subject of undue influence, you must act quickly. Remember, the two year statute of limitations for contesting a will doesn’t change even if the will is the result of undue influence.

Undue Influence in Texas can Invalidate Wills, Deeds, and Other Instruments

Relationship Poisoning And Undue Influence

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