Precatory words are words that are a request or a desire. If a will has precatory words, does that pass title?
Examples of precatory words
Occasionally, when someone writes a will, they will use words like “I wish that Bob gets my house” or “it is my desire that Bob gets my house.”
One will had the following language “The…stock belonging to me has been handed to Myrtle and Lyter for what I lost them in the oil deal.”
In general, none of this language in wills will pass any property. Precatory words in a Texas will just express a wish of the testator and don’t necessarily pass property. If the property is not otherwise mentioned in the will, the testator dies intestate (without a will) as to that property.
So, be precise. Don’t use niceties. Tell people how you are disposing of your property. “I give my house to Bob.” “I give my stock to Myrtle.”
The Texas Estates Code, 255.451, says a Texas judge can reform a will or modified it in certain circumstances. The same is true of a trust. Prop. C. 112.054. In a 2019 case, 06-19-00014-CV, a trust was modified by the trial court. The appeals court reversed the modificaiton.
A man and woman were married. 06-19-00014-CV. The wife had a child, Edna. The husband adopted Edna. Thereafter, they had two children between them, Ignacio and Esperanza. At some point, they created a trust.
The first Trust article, labelled “Identification,” read, “The Grantors have two children, their daughter, ESPERANZA GONZALES and son IGNACIO G. GONZALES, JR. All references in this Declaration of Trust to the `Grantors’ children’ are to them. The term “children” was never used again. The trust only used the term “descendants” after that. Edna’s name was not in the trust.
There was one blank in the document that said “all of the remaining trust property shall be distributed to the Grantors’ [_____].” Ignacio and Esperanza asked the trial judge to reform the will and fill in the blank with “children.” Edna opposed that and wanted the blank to be filled in with the term “descendants” that was used in all the provisions that disposed of property. The trial court reformed the trust by inserting “children.” Edna appealed.
The appeals court reversed. It discussed the law about the ability of a Texas judge’s ability to reform a will or a trust based on a scrivener’s error (a mistake made by the attorney preparing the document as opposed to a mistake by the clients.) They noted that the person seeking the reformation had a high burden. A clear and convincing burden of proof which Ignacio and Esperanza did not meet.
The court agreed that there was a scrivener’s error but it could have been leaving Edna out of the Identification paragraph as well as not filing in the blank. They sent the case back to have these issues tried by a jury.
What should you know
A Texas judge can reform a will. If there is a will or trust that has errors in it, a court can correct those errors in certain circumstances.
A will must dispose of all property in all circumstances. If it doesn’t, the the laws of descent and distribution will determine who gets the property.
When a person executes a will, the intention is that all of the property will be disposed of. Sometimes that doesn’t happen.
In a 2019 case, 07-17-00296-CV, the testator made a will. In the will he left his half of the community to his wife as a life estate. When the wife died, he made three contingent provisions for the property to go different ways depending on the contingencies. None of the contingencies occurred.
Since none of the contingencies occurred and the will only made a disposition of the property based on those contingencies, it was determined that he died intestate as to that property after the life tenant (his wife) died.
Heirship proceeding are different from will contest.
This article deals with getting property that is yours based on an inheritance. This may occur where a person dies without a will. It can also occur where there is a will but the will leaves property to the decedent’s “children” or his “heirs” or something similar without identifying the children or heirs by name. It may occur when there is a will but someone has taken your inheritance without your knowledge or when you didn’t know about your inheritance. This is different from a will contest where you are trying to prove your inheritance.
Let us say an heir finds out that a relative died some years back and that they may have some inheritance rights. What can they do? Is the statute of limitations a problem?
This situation may arise because a child was unborn or was an infant when the facts occurred. It may be that the child is illegitimate or only recently learned through DNA who their relatives were. It can also arise when other heirs, not just children, discover their potential inheritance.
There is currently no statute of limitation on heirship proceedings if the decedent died after January 1, 2014. If the decedent died before that date, there may or may not be a limitation problem depending on the circumstances. This is complicated, involving heirship proceedings (trial brief), but there is a possibility that it can be done.
Don’t get this limitation period confused with the two-year limitation period for contesting a will. This article deals with heirship and not with contesting wills. And if the facts are in your favor and the case is properly handled the limitation of those dying before January 1, 2014 may be avoided. In a recent case, the decedent died in 1972. Her heirs didn’t file any proceedings until 2013 when they filed a suit to get their inheritance. The statute of limitations was not a problem because of the facts and how the case was handled.
When a person dies, his will determines who gets his property. If he doesn’t have a will, then the law of descent and distribution determines who gets his property. Pay on Death (POD) and joint accounts with right of survivorship are different.
Financial accounts like checking, savings, CD’s, brokerage accounts and retirements accounts are not probate assets and they are not part of the decedent’s property if they have a beneficiary designation. The beneficiary gets the account and they are not divided between the heirs. What happens if you think something is wrong and the decedent was taken advantage of and this type of account should go to probate and be divided among the heirs, not given to the beneficiary? This article will discuss that issue.
Challenging a joint account
Paperwork is not in order
To challenge a POD or joint account with right of survivorship is not easy but there are ways to do it. The first thing to learn is whether or not the paperwork at the financial institution is in order. Texas requires specific words and forms to create such an account and if the paperwork is not in order, the account goes to the estate and not the beneficiary. Where the paperwork is not in order, you can challenge the account based on a fiduciary relationship between the beneficiary and the decedent or challenge the account based on the intent of the decedent to share the account with other beneficiaries. You can ask the probate court to determine who gets the money in the accounts. But what happens if the paperwork is in order?
Paperwork is in order
If the paperwork is in order, you can’t challenge the account based on a fiduciary relationship between the beneficiary and the decedent or challenge the account based on the intent of the decedent to share the account with other beneficiaries. Because the paperwork is in order, other evidence is not admissible to change the account contract.
What can you do? The account can be challenged based on the decedent’s lack of mental capacity to contract at the time the beneficiary designation was changed or added. This is similar to contesting a will based on lack of testamentary capacity. Filing the proper paperwork in the probate court, obtaining admissible evidence and presenting it in the proper manner to the court at the proper time is what needs to be done to challenge these accounts.
If someone is claiming that they own a financial account because they were designated as a beneficiary, don’t take that on face value. Have your attorney look into the accounts and determine to whom they belong.
When a person dies with a valid will or an invalid will that has not been contested, his property goes to the persons named in the will.
When a person dies in Texas without a will, or when a will is successfully contested, his property goes through intestate succession if he does not have an older, valid will that can be probated. You may find yourself wondering what happens to that person’s estate (their belongings, finances, etc). What are Texas inheritance laws regarding intestate succession? How is it split and who has rights to it?
This article will get you started in the right direction to learn more about your rights. We’ve included links to more information to help you find what you need to know for your unique situation.
Not all property is treated the same under inheritance laws. The kind of property owned at death as well as the form in which it is held determine to whom the property is distributed at death.
For instance, if you have a life insurance policy, you will have someone named as a beneficiary. The person named beneficiary on that account will receive those benefits rather than the funds being distributed by inheritance law. The same applies to bank accounts, retirement accounts, etc. if they have a beneficiary named.
For more information on how property is categorized under the law, click here.
In the absence of a will, the spouse of the deceased has a legal claim to a portion of the estate, but what proportion of that estate depends on a number of factors including whether or not there were children, whose children they were, whether the deceased parents are still living, and whether or not the deceased had any (living) siblings.
To learn more about the inheritance rights of spouses, click here.
Where there is no will, or a will has been successfully contested, children inherit the bulk of the deceased’s estate. This is true of natural born children as well as adopted children.
Some cases involving illegitimate children, pretermitted (forgotten) children, or children whose adoptions weren’t official can sometimes be more complicated, though in most cases these children have equal inheritance rights to natural children.
Parents, siblings, aunts, uncles, nieces, nephews and others are heirs for the purpose of distributing the estate of the deceased if he died intestate and if the deceased had no spouse or children. Even if the deceased had a spouse but no children, the other relatives may be entitled to some of the property. The rule is, if you can’t go down the family tree because there are no children, you go up then out on to the branches to determine who inherits.
The rest of this article is the old webpage that we had in place of the information that you just read. You can read it although you will see that it is a repeat of what has been said. The above information is an easier read and less lawyerly than the paragraphs below but they contain essentially the same information.
When a persons dies without a will or when a will is successfully contested , the laws of descent and distribution determine who inherits the estate of the decedent. In this general article, we will lead you to answers as to the types of property subject to inheritance as well as the inheritance rights of spouses, children and other family members.
If you don’t see what you are looking for, try the search function.
By Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about Texas inheritance laws, inheritance rights, probate limits, have a family inheritance dispute, a property dispute or want to know the reasons for contesting a will or protecting a will from a contest and need an inheritance lawyer, we can help. Please click on the “Contact Us” tab above and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case. There is no fee for the initial consultation.
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