by Robert Ray | 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.
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.
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.
by Robert Ray | Last updated Feb 18, 2023 | How, How to probate a case, Probate, Procedure
Statutory Probate Judges
The largest counties in Texas have Statutory Probate Courts. Those courts handle all probate matters in these large counties. The judges of those courts are well-versed in probate law and procedure. If you have a contested probate matter, it would be best to have a Statutory Probate Judge hear your case because of the judge’s experience and training. However, as stated earlier, the Statutory Probate Courts are only in the largest Texas counties.
If you file a contested probate case in a smaller Texas County, you may get a judge who hears criminal, civil, and probate cases. This doesn’t mean that those judges are incompetent in probate matters. It just means that probate matters make up a small part of their docket.
In medium-sized Texas counties, the county will have a County Court At Law. Of course, the judge of the County Court At Law has to be an attorney, but those courts hear all kinds of cases, from criminal to family matters to probate matters. In counties with a County Court At Law, you cannot request that Statutory Probate Judge be assigned to your case.
So, how can you get one to hear your case?
In the smaller Texas counties, the County Judge, who is more like the mayor of the county, hears uncontested probate matters. The County Judge does not need to be an attorney. If the probate case becomes contested, the case is transferred to the District Court, where the judge has to be an attorney. But these judges also hear all kinds of issues, not just probate cases.
In the smaller Texas counties, those without a County Court At Law, you have the ability to have a statutory probate judge hear your contested case. To get a Statutory Probate Judge to hear your case, you must file a motion requesting one at the beginning of the contest. If you wait and the county judge transfers the case to the district judge before your request, you will be heard in the district court. TEC §32.003, In Re Kohleffel, 13-22-00509-CV, (Tex. App. – Edinburg November 18, 2022.)
Learn more about Texas probate here. Find out the types of Texas probate here.
by Robert Ray | Last updated Nov 5, 2022 | Contesting wills, Procedure, Spouse, Who
Who Can Contest a Texas Probate
In order to contest a Texas probate, you have to have standing. Standing means a person has a right to bring a lawsuit in Texas. To have standing in a Texas probate proceeding, you have to be an interested party.
In a recent case out of the Fort Worth court of appeals, the issue of standing was the central issue. 02-21-00290-CV. In this case, a man died in an accident. His common-law wife, Ms. Pachecano, had three suits; a worker’s compensation case, a wrongful death and survival action, and a probate case seeking to be appointed administrator of the husband’s estate. In the worker’s compensation case, the insurance company balked because of the alleged common-law marriage. Ms. Pachecano settled the worker’s compensation case to get the proceeds for her children. She signed papers that she was not a legal beneficiary.
When Ms. Pachecano filed the probate case to be appointed administrator of her husband’s estate, the defendant, Jackson, intervened in the probate case. Jackson claimed that because Ms. Pachecano had said in the worker’s compensation case that she was not a legal beneficiary, she couldn’t participate in his probate case—the probate court denied Jackson’s intervention. Jackson appealed. Ms. Pachecano did not challenge Jackson’s standing to be involved in the probate case until after he appealed.
The court of appeals affirmed the trial court, stating:
Because Jackson was not an interested person, Ms. Pachecano’s argument continues that Jackson lacked standing to intervene in the heirship proceeding that she filed. We agree that the question of whether a person is interested implicates standing. As explained below, Jackson as a defendant in a wrongful-death and survival action is not an interested person in an heirship determination; thus, Jackson lacked standing to intervene. Further, Jackson’s arguments regarding why it had standing—whether an interested person or not—are unpersuasive.
Ms. Pachecano did not challenge Jackson’s standing to intervene in the probate court. That failure, however, is not a waiver of a jurisdiction-based contention, such as standing.
by Robert Ray | 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.
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 Dec 29, 2020 | Inheritance, Procedure
Texas Slayer Rule
Affirmative Action Required
The Texas State Constitution has a provision that says “”No conviction shall work corruption of blood, or forfeiture of estate.” The Texas Estates Code §201.058 (Probate Code §41(d)) is similar. Those two provisions have been interpreted to allow a murderer to inherit from his victim. However, the courts have allowed the heirs of the victim to file suit against the murderer and to impose a constructive trust on any property he might receive from the victim. The practical effect of the constructive trust is to deny the murderer the inheritance from the victim.
If the heirs of the victim do nothing, the murderer receives his inheritance. If the heirs of the victim file suit in court, the courts will impose a constructive trust on the inheritance which effectively denies the inheritance to the murderer.
Insurance policies are different. The murderer does not inherit the proceeds from an insurance policy since there is a special statute that deals with insurance policies. That statute denies payment of the proceeds to the person who causes the death of the insured.
See another article on the this topic including the “Slayer’s Rule.”
PEARLS OF WISDOM: If someone is ever in a position where the Texas slayer rule is involved and a murderer is going to profit from his misdeed, affirmative action is required to prevent the murderer from inheriting the victim’s property. Compare 287 S.W.2d 546 with 68 S.W.3d 242.