by Robert Ray | 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.
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.
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.
by Robert Ray | Last updated Nov 1, 2022 | Heirship, How to probate a case, Inheritance
Bills of Review in Texas
When a case doesn’t turn out the way you want in the trial court, you appeal to the court of appeals. But what can you do if you didn’t know about the case or didn’t learn of a trial setting until an appeal was too late? A bill of review allows you to bring the problem to court. Texas has two types of bills of review, an equitable bill of review and a statutory bill of review. The difference between the two was highlighted in a recent case.
In Gill v. Bordokas, 14-21-00356-CV. from the Houston 14th court of appeals, a man died intestate. One of his daughters filed an application to determine heirship where she alleged that he was not married and that she and her siblings were his only heirs. Within the time allowed, a woman filed a motion for new trial claiming that she was the common-law wife of the man. The woman did not request a hearing and the motion for new trial was eventually overruled by operation of law. Seventeen months later, she filed a statutory bill of review asking the court to overturn its order on heirship. The judge denied the bill noting that she did not pursue her motion for new trial when she could have. The alleged common-law wife appealed.
Equitable Bill of Review
The appeals court first discussed the court’s holding that the woman was not diligent. It listed the requirements for an equitable bill of review which requires diligence.
To obtain an equitable bill of review, a petitioner must generally plead and prove the following three elements: (1) the petitioner has a meritorious claim or defense to the judgment; (2) the petitioner was prevented from making that claim or defense because of official mistake or because of the opposing party’s fraud, accident, or wrongful conduct; and (3) the petitioner’s inability to make the claim or defense was unmixed with any fault or negligence on the petitioner’s own part...When cases involving res judicata have arisen in the context of an equitable bill of review, there is normally a failure by the petitioner to satisfy one of these three elements.
However, the court stated that the alleged common-law wife filed a statutory bill of review, not an equitable one.
Statutory Bill of Review
But this case involves a statutory bill of review, which Gill sought under Section 55.251 of the Texas Estates Code. That statute provides that “an interested person may, by a bill of review filed in the court in which the probate proceedings were held, have an order or judgment rendered by the court revised and corrected on a showing of error in the order or judgment, as applicable.” See Tex. Est. Code § 55.251(a); see also Tex. Est. Code § 22.029 (defining “probate proceedings” as “a matter or proceeding relating to a decedent’s estate,” which includes a determination of heirship). By its plain language, this statute authorizes a bill of review in a probate proceeding merely upon “a showing of error,” without the other elements required by an equitable bill of review. Thus, a petitioner in a probate proceeding can obtain this statutory bill of review even if the petitioner did not exercise the amount of diligence that would be demanded in the context of an equitable bill of review.
There is still a two-year statute of limitation on filing a statutory bill of review, but you don’t have to show that you were diligent.
by Robert Ray | Jan 30, 2022 | Heirship, Inheritance, Inheritance Overview, Procedure, Property
Taxing authorities can foreclose on your real property when you don’t pay your taxes. By statute, an owner may redeem real property purchased at a tax sale by paying certain amounts within a prescribed period of time after the purchaser’s deed is recorded. What does a tax foreclosure in Texas have to do with an inheritance? Read on and find out.
Inheritance and foreclosure
Let’s say an elderly relative doesn’t keep up with their bills. Tax payments can be missed or forgotten. A relative may need to be put in a nursing home, and while there, no one pays the taxes. The relatives may not know that a tax foreclosure happens in each situation. This can happen even with a property that is the person’s homestead. Depending on the facts, the heirs of the deceased relative may be able to redeem the property after the death of the decedent.
A situation like the above happened when an elderly man could not care for himself. 593sw3d167. His mother-in-law, Barton, asked her daughter, Karen, to quit her job to take care of him. When the man died, Karen was appointed administrator of his estate. Before he died, several taxing authorities foreclosed on his three-acre tract valued at $217,00 and, after his death, sold it at a foreclosure sale for $68,000. The land was the only asset of his estate.
Karen died shortly after the man, and Barton was appointed successor administrator of his estate. She then began the process of redeeming the property back into the estate. Barton was successful in redeeming the property.
The takeaway from this post is that a tax foreclosure in Texas is not as final as one might think. If you meet the criteria set out in the statute, you may be able to redeem the property after it is sold even if you are not the original owner and may only be an heir.
by Robert Ray | Last updated Jan 6, 2022 | Contesting wills, Heirship, Inheritance
Claiming an inheritance in Texas
An inheritance can never compensate for the death of a family member. But inheritance is not about greed; it is about custody and control of your property.
Claiming an inheritance in Texas is usually straightforward if you are a named beneficiary in the will. The executor or administrator named in the will and appointed by the court gathers the property, pays the debts of the estate, and distributes the property to the beneficiaries. As a beneficiary, you do not normally need to do anything.
Problem – no will
Problems develop when there is no will, or you feel the will was unfair.
If there is no will, the court must determine who are the beneficiaries and what part of the estate they each own. Often, if you are not close to your relative who passed away, the local family will “forget” to tell the court that you are an heir. If you are illegitimate, the family may try to prevent you from receiving your inheritance. And, if you just discovered your relative through DNA, that brings up a new set of problems that you will need help with.
If there is an unfair will that has been offered for probate, you will need to contest that will.
Problem – Who are the heirs.
If there is no will or if there is a will that doesn’t dispose of all of the property, then the property goes to the decedent’s heirs. Who those heirs are and getting them their inheritance requires an attorney who handles inheritance disputes.
The local family may forget to mention an heir, they may try to keep a distant heir from receiving their property, and heirs found through DNA cause other problems. In all these cases, the heir needs to have an attorney helping them obtain custody and control of their property.
How long does a beneficiary have to claim their inheritance?
If there is a will, a contest must be filed with two years of the date the will was admitted to probate. Not two years from death but two years from the date the will was admitted to probate.
If there is no will, or the will doesn’t dispose of all of the property, then an heirship proceeding needs to be filed. There is no time limit to file an heirship proceeding unless the decedent died before January 14, 2014. In that case, you need to talk to an attorney who is familiar with heirships to see if you can still file for your heirship.
How to resolve inheritance disputes?
Many inheritance disputes can be settled. We try to settle a case if possible because of the uncertainty of jury trials. But, when a case can’t be settled, we are experienced trial attorneys with many years of experience.
The property you inherit is your property. You are not trying to get something from someone else. You just want custody and control of your property.
by Robert Ray | Last updated Dec 27, 2021 | Inheritance
Many states have a “Slayer Rule.” The Slayer Rule is a stature or rule that a person who kills a person from whom they inherit forfeits the inheritance.
Texas does not have the Slayer Rule. There are ways to get around the fact that Texas doesn’t have a Slayer Rule that is covered here. The slayer can be denied his inheritance as pointed out in that article.
However, Texas does have a Slayer Rule that only applies to insurance policies. This post discusses that rule.
In 2021 the court of appeals heard a case dealing with insurance and the Slayer Rule, 01-19-00799-CV. TEX. INS. CODE §§ 1103.151, 1103.152.
In this case, a son had killed his parents with a sledgehammer in their driveway. The son was arrested for capital murder but was found incompetent to face trial. The father had a policy on his life. The beneficiary was the wife and if she wasn’t around, the proceeds of the policy would go to the son, the killer. The father’s brother, the next of kin to the father, asked that the proceeds be paid to him. The trial court had entered judgment for the Estate of the father and the brother appealed. The appeals court sided with the brother and sent the case back to the trial court to have the jury determine several issues.
The first issue is—did the son’s incompetence mean that he could not ‘willfully” slay or kill his parents; and was the brother truly the next of kin or were there other brothers and sisters.
Slayer Rule cases are not easy and there are many issues to be considered. This case dealt with insurance which has a special statute while other cases deal with non-insurance issues and what can be done to prohibit the slayer from benefitting from his crime.
by Robert Ray | Last updated Jun 30, 2021 | Inheritance, Spouse, Spouses
Does a spouse inherit if the other spouse dies intestate without a will? That simple question cannot be answered with a simple answer. It can’t be answered simply because there are so many factors:
- Are there children and are they children of both parents? See here, and here.
- What kind of property is involved? See here.
Texas recognizes common-law marriages or what Texas refers to as” informal” marriages. How does that affect inheritance rights. See here and here.
Because these issues are complicated, you need to discuss your rights with an attorney who understands inheritance laws.