Podcast – revoking a will in Texas

Podcast – revoking a will in Texas

Podcast added!

The topic is “Revoking a will in Texas”

Whether a will has been revoked or not is an issue that comes up in will contest. A recent Texas case showed some of the problems that can arise when one party claims that the will has not been revoked and the other party claims that it has been revoked.

A written will may not be revoked in Texas, except: by a subsequent will, codicil, or declaration in writing that is executed with like formalities; or, by the testator destroying or canceling the same or causing it to be destroyed or canceled in the testator’s presence.

In either case, a testator must have testamentary capacity to revoke a will just has he must have testamentary capacity to execute a will.

When a testator has a will in his possession at his death and the original will cannot be found, there is a presumption that the will was revoked. The interplay between the presumption of revocation and the requirement of testamentary is the subject of the case we discuss in this podcast.

 

 
I produce these Podcast to briefly discuss current topics about Texas inheritance issues. You can find more information about Texas inheritance issues on this website or on my blog above.

We will be making new podcast from time to time so subscribe to this blog. You can also subscribe to our channel on Apple PodcastSpotify, Google Podcast, Anchor, RSS feed and others that can be found here.

 

Click on the podcast below.

Podcast – revoking a will in Texas

Podcast – improper signing of will

Podcast added!

The topic is “Will Contest – improper signing of will”

Wills are sometimes contested because of a problem in the way the will was signed. This is often referred to as the execution of the will. In this podcast we are going to talk about the very basic requirements of executing a will in Texas. Then, we will discuss what problems arise from executing wills.

Remember, contesting a will is not about greed. It is doing what is right to make sure that our elderly are not taken advantage of by someone. As tragic as it is, abuse against our elders is on the rise. Whether by caretakers, friends, siblings, or even their own children, we are seeing more and more cases of seniors being abused into revising their will.

I am Robert Ray, a Texas attorney who handles litigation involving inheritance disputes. I am Board Certified by the Texas Board of Legal Specialization in Personal Injury Trial Law. My principal office is in Lantana, Texas, in the Dallas/Fort Worth area but I handle cases all over Texas.
I produce these Podcast to briefly discuss current topics about Texas inheritance issues. You can find more information about Texas inheritance issues on this website or on my blog above

We will be making new podcast from time to time so subscribe to this blog. You can also subscribe to our channel on Spotify, Google Podcast, Anchor, among others.

 

Click on the podcast below.

Podcast – revoking a will in Texas

Podcast – Time limits for contesting a will in Texas

Podcast added!

The topic is “Time limits to contest a will in Texcas?”

A will isn’t open to be contested forever. Contesting a will is limited to filing within a certain amount of time – what the law refers to as the statute of limitations.

You may be surprised to learn that the statute of limitations for contesting wills does not start at the time of death, but when the will is admitted to probate.

That means that if you feel a will should be contested, you must act quickly. If you have a meritorious claim but you don’t act quickly, your claim can be lost. This podcast discusses the issues that a person contesting a will must keep in mind. What are the time limits or statute of limitations? When do they start running?

Remember, contesting a will is not about greed. It is doing what is right to make sure that our elderly are not taken advantage of by someone. As tragic as it is, abuse against our elders is on the rise. Whether by caretakers, friends, siblings, or even their own children, we are seeing more and more cases of seniors being abused into revising their will.

I am Robert Ray, a Texas attorney who handles litigation involving inheritance disputes. I am Board Certified by the Texas Board of Legal Specialization in Personal Injury Trial Law. My principal office is in Lantana, Texas, in the Dallas/Fort Worth area but I handle cases all over Texas.
I produce these Podcast to briefly discuss current topics about Texas inheritance issues. You can find more information about Texas inheritance issues on this website or on my blog above.

We will be making new podcast from time to time so subscribe to this blog. You can also subscribe to our channel on Spotify, Google Podcast, Anchor, among others.

 

Click on the podcast below.

Read About A Muniment Of Title In Texas

Read About A Muniment Of Title In Texas

Muniment of Title means to probate a will quickly and cost-efficiently when there is no need for administration of the estate. A court may probate a will as a Muniment of Title if the court finds that the will should be admitted to probate, that there is no need for an administration, and that there are no unpaid debts of the estate other than liens on real estate. One of the purposes of this limited form of probate is to provide continuity in the chain of title to estate properties by placing the will on the public record.

In normal probate where an executor is appointed and files his oath, Letters Testamentary are issued by the clerk to the ExecutorLetters Testamentary are the documents that show that the Executor has been duly appointed and is the legal owner of the estate’s property. Legal ownership needs to be distinguished from beneficial ownership. The beneficial owners are the persons named in the will to receive the property. The Executor is the legal owner which gives him the right to gather all of the assets of the estate to distribute to the beneficiaries. The Letters Testamentary are required by many financial institutions before they will release accounts belonging to the decedent. Letters of Administration are the exact same thing but are issued when an Administrator is appointed rather than an Executor. An Administrator is appointed when there is no will. Filing a will as a Muniment of Title can make the probate process easier if no administration is necessary and no debts are owed by the estate.

Find Out Who is an Interested Party for Probate Purposes?

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.

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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).

Robert Ray Texas Inheritance

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

Gift Deeds in Texas

Gift Deeds in Texas

Gift Deeds in Texas

Gift deeds in Texas are valid, but there are requirements above and beyond those of a regular deed. A gift deed is a document that transfers title to land. It can be informal, but the grantor’s intent must be to immediately divest himself of the property where he no longer has control over the land.

Gift Deed Validity?

A gift deed must be (1) in writing, (2) signed, (3) describe the property, and (4) delivered. TPC §5.021.

Texas further requires the document set forth (1) the intent of the grantor, (2) the delivery of the property to the grantee, and (3) the gift to be accepted by the grantee. The one claiming the gift bears the burden of establishing each of the elements. The owner must release all dominion and control over the property. Delivery is required, but it need not be actual or immediate. There is a valid constructive delivery if the grantor intended for the title to pass immediately upon execution and acknowledgment.

What you should know

You should be familiar with Texas inheritance laws, which you can review here.

You also might want to know what types of property are involved in probate, which you can see here.

Gift deeds in Texas are valid; however, there are strict requirements for gift deeds in Texas. Therefore, if you have a document that might be a gift deed or if someone is claiming they have a gift deed to a property that should be yours, you should contact an attorney as soon as possible.

Recent cases

In a 2022 case, the issue of gift deeds was raised concerning some oil & gas deeds. 11-20-00080-CV. If the deeds were a gift, then one party would own them. If they were not gifts, another party would own them. The case involves multiple parties, old deeds, and people dying childless and without wills. When the people died childless and without wills, the mineral interest would go to their spouse and her heirs if the deed was not a gift deed. On the other hand, if they were gift deeds, then they would go to the husband’s heirs. The court looked at the deeds and because they said they were sold for $10.00 and other good and valuable consideration, they were not gift deeds.

In a 2021 case, the court of appeals held that a gift deed, signed, acknowledged, and filed in the deed records, carries a presumption that the grantor intended to transfer the real property. However, this presumption may be overturned where there is proof that the recording of the instrument was for some other purpose or through fraud, accident, or mistake. 13-19-00484-CV. The court gave a thorough review of gift deeds and what is required.

The 2018 case 04-17-00132-CV highlighted another problem with gift deeds in Texas. A gift deed is the separate property of the person to whom the deed was given. The deed will usually recite the consideration as “love and affection.” A non-gift deed will usually recite the consideration as “$10 and other good and valuable consideration” and would be classified as community property.” In this case, the deed was from family members to other family members but it recited the consideration as “for and in consideration of the sum of Ten and no/100 ($10.00) Dollars.” A party to the suit who was the beneficiary of the separate property of one of the grantees claimed that the deeds were actually gift deeds instead of deeds being purchased. She even had one of the family members who was one of the grantors testify that they were gift deeds not purchased deeds. If they were gift deeds, she would inherit the land. If they were purchased deeds, she would not inherit the land. The court ruled that because the deeds were not ambiguous and recited that they were sold for $10, no testimony would be allowed which would contradict what the deed said. So, they were not gift deeds.

In another 2021 case, a father died and left all his property in Van Zandt County to his son. The gift to the son was the son’s separate property, not community property. Later, but before the son received a deed from the executor of his father’s estate, he gave a gift deed of the property to his niece. When the son died, his wife was appointed executor of the son’s estate. The wife then filed suit to cancel the gift deed because the son had never received a deed. The court disagreed and upheld the gift deed. The reasoning the court gave was “(a)ll property that is devised by a will vest immediately in the devisees upon the death of the testator.” So the son owned the property immediately after his father’s death as separate property and could sell or give it away. 12-20-00125-CV.

In 2016, the San Antonio court of appeals was asked to decide if a document was a gift deed. The document was titled “March 11, 2005, Will” of two people who owned the property in question and was signed by them. The document said “we agree that the house be evenly owned by” the grandchildren. The court ruled that the key issue turned on the donor’s intent when the document was executed. A gift is a voluntary transfer of property to another made gratuitously and without consideration. Establishing donative intent requires “evidence that the donor intended an immediate and unconditional divestiture of his or her ownership interests and an immediate and unconditional vesting of such interests in the donee.” Until the donor has absolutely and irrevocably divested herself of the title, dominion, and control of the subject of the gift, she has the power to revoke the gift. Here, the conveyance in the “March 11, 2005, Will” lacks present donative intent. The document provides “[w]e agree that the house be evenly owned by (grandchildren)” and the document’s title as a will clearly implies the donor’s intent to transfer ownership of the property to the (grandchildren) upon the testators’ deaths. The transfer did not provide for an immediate and unconditional divestment of the donors’ interests. By its very nature, the “March 11, 2005, Will” does not “absolutely and irrevocably divest” the owners of “title, dominion, and control of” the property. The court reversed the trial court, which ruled that the document was a gift deed. 04-14-00609-CV.

So, gift deeds in Texas are valid if they meet the requirements of a gift deed, as shown above.

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