Challenging a Joint Account

Challenging a Joint Account

Background

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.

Follow Us

Let Us Help You

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. 

Take away

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.

Disclaimer

Necessary Disclaimer: Do not take, or refrain from taking, any action based on what you read. You need to discuss your situation with an attorney who can advise you based on your facts.

If you have a question about a pending or anticipated lawsuit about contesting a will in Texas, use the Contact Us page at the top of the site to see if we can help.

Thanks for visiting!

Join the List

Who and What we Are

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).

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Let Us Help You.

Heir property in Texas

Heir property in Texas

Heir property Texas

Many people in Texas refer to “heir property.” What they mean is the property that goes to the heirs if there is no will.

If you are concerned about heir property in Texas, you should contact us to see if we can help.

Follow Us

Let Us Help You

People have many ways to refer to the property that the heir should receive. Heir property is one of the terms that is used.

There is more elder abuse today than before. People are taking advantage of the elderly to obtain property, usually by having the elder person make a will towards the end of their life. If the will is not contested, the heir property will go to the abuser instead of the heirs. Don’t let this happen. Contact us if you believe that someone has wrongfully taken heir property in Texas.

Contesting a will in Texas

Join the List

Who and What we Are

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).
~

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Let Us Help You

Learn about oil & gas inheritance laws in Texas

Learn about oil & gas inheritance laws in Texas

Land in Texas has two parts or estates, the surface estate and the mineral estate. In states where there is a lot of activity concerning minerals, like Texas, the two estates are usually severed so that one person owns the surface and one owns the minerals. This is typically done when the land is sold and the seller sells the surface but retains the minerals. Over time, the two estates are sold or passed by inheritance so that the surface owner, who may be on the land everyday and may live there, knows nothing about the mineral owner who may be a corporation or a person who lives out of state.

Follow Us

Let Us Help You

If the minerals are being extracted from the land either by drilling or by digging, the mineral owner is paid for this extraction not the surface owner. If there is no production but an oil company wants to search for oil or gas, he contracts with the mineral owner, not the surface owner. The contract that is usually signed is an oil & gas lease. Some unscrupulous landmen might try to get the mineral owner to sign a mineral deed rather than an oil and gas lease. A mineral deed should not be signed without discussing it with an oil & gas attorney because it conveys all the minerals. it is not a lease of the minerals. A producing oil lease or gas lease will pay the mineral owner royalties. A royalty payment may be large or small. I have written a mineral-interest overview in Texas here. It explains royalty interest.

Because land has these two estates, they pass on inheritance just like any other property. If the two estates have not be severed and a will says something like “I give my land to my son,” the son inherits the surface and the minerals. If the minerals have been severed and a will uses the same language, only the surface is transferred to the son since the minerals belong to someone else. In many cases, it is difficult to know who owns the minerals. Let’s say that a man sold some land in the 1920s but retained the minerals. When he died, he didn’t have a will. If he had a number of children and they have lived and died and had children, etc., the mineral owners may be scattered all over the country. It takes a lot of work to get a court to determine who owns the minerals and what part they own. When a new oil or gas field is discovered, there is much activity trying to determine who to get an oil & gas lease from. Some people are surprised to learn that they own a mineral interest. However the interest may be so small that the royalty payment may be less than $100 dollars a year. On the other hand, the royalty payments may be thousands per month.

If you are contacted by someone who wants you to sign documents who claims that you may own a mineral interest, you should have your own attorney advise you and not rely on what you are told by the person who contacted you or the documents he asks you to sign.

Join the List

Who and What we Are

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).
~

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Let Us Help You

Mineral Interests Overview In Texas

Mineral Interests Overview In Texas

In Texas, when you own mineral interest, you lease that interest in exchange for receiving royalty payments based on how much of the minerals are extracted. Mineral interest or royalty interest are often involved in inheritance disputes like contesting a will. This article gives a brief description of mineral or royalty interest in Texas. 

Every fact situation is different and you should not take, or refrain from taking, any action based on what you read. You should talk to your attorney about your situation to understand what your rights are.

Follow Us

Let’s Work Together

In Texas, an instrument conveying land transfers both the surface estate and all minerals and mineral rights, unless the instrument contains a reservation or expresses a contrary intention. In many cases, a person will sell land but will reserve the minerals. That creates two estates, the surface and the mineral estate. I have written about that…

Learn about oil & gas inheritance laws in Texas

The mineral estate is comprised of five severable rights: “1) the right to develop, 2) the right to lease, 3) the right to receive bonus payments, 4) the right to receive delay rentals, and 5) the right to receive royalty payments.”

The holder of the leasing privilege is the executive-interest holder. The executive enjoys the exclusive right to make and amend mineral leases and, correspondingly, to negotiate for the payment of bonuses, delay rentals, and royalties, subject to a duty of utmost good faith and fair dealing to non-executive interest holders. In Texas, a typical oil and gas lease actually conveys the mineral estate with the possibility that the mineral estate will revert to the owner if the oil company stops producing.

A royalty interest is a nonpossessory interest in minerals. A party possessing a royalty interest that does not include the right to lease the mineral estate, receive delay rentals, or bonus payments is referred to as a non-participating royalty-interest holder. I have written about non-participating interest here.

This article is based on a 2015 decision of the Supreme Court of Texas in a case dealing with the very complicated issue of “fractional royalty interest” versus “fraction of royalty interest.” Hysaw v. Dawkins.

Join the List

Who and What we Are

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).
~

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Let’s Work Together

Kind of Texas Property that is Inherited if You Die Intestate.

Kind of Texas Property that is Inherited if You Die Intestate.

What property is inherited by your heirs in Texas if you die intestate (without a will or with a will that has been set aside because of a suit contesting the will) depends on what kind of property you have at your death. There are two kinds of property that are relevant to probate: probate property and non probate property. Non probate property includes joint accounts with right of survivorship, life insurance policies, retirement funds, IRA’s, and any other account where you designate a beneficiary when you create the account. When you die, if you did not name your estate as the beneficiary, the property does not go to your estate to be distributed to your heirs, rather, it goes to the beneficiary or beneficiaries that you designated when you created the account.

Follow Us

Let’s Work Together

Probate property is further designated as community property or separate property.  You can find a discussion of these terms on this site under the Glossary by clicking on the words. You only have community property if you are married at the time of your death. If you are not married, are divorced or are a widow or widower when you die, all of your property is separate property.

Married – separate or community property

Separate Property 

  • If no children – all personal property to spouse; one half of real property to spouse, balance to parents.  If no parents living and no brothers or sisters or their descendants living, all to spouse.
  • If children – one third of personal property to spouse, balance to children.  Spouse has a one third life estate in real property, balance to children who also get spouse’s share once he/she dies.

Community Property 

  • If there are children –
    • If all children of the deceased person are children of surviving spouse – all to spouse.
    • If some children of the deceased person are not also children of surviving spouse, all of decedent’s one half of the community will go to the children.
  • If there are no children or descendants of the deceased – all to surviving spouse.

Not Married – only separate property

With children –

  • All to children.

No children –

  • To parents if they survive.
    • If there is one surviving parent and no siblings or descendants of siblings, all to surviving parent.
    • If there is one surviving parent and some surviving siblings, one-half to parent, siblings divide balance.
    • If there is no surviving parent but some surviving siblings, each sibling, or their descendants if they did not survive, is entitled to a share of the estate based on the number of siblings.

Do not take, or refrain from taking, any action based on what you read. You need to discuss your situation with your attorney who can advise you based on your facts.

If you have a question about a pending or anticipated lawsuit about contesting a will in Texas, use the Contact Us page at the top of the site to see if we can help.

Thanks for visiting!

Note: When the intestate’s children, descendants, brothers, sisters, uncles, aunts, or any other relatives of the deceased standing in the first or same degree alone come into the distribution upon intestacy, they shall take per capita, namely: by persons; and, when a part of them being dead and a part living, the descendants of those dead shall have right to distribution upon intestacy, such descendants shall inherit only such portion of said property as the parent through whom they inherit would be entitled to if alive (i.e. per stirpes or by the root and not per capita.) Estates Code §201.101.

Example: An intestate dies who was never married and who had no children. His parents predecease him. He had three siblings. Sibling A has one child and survives the intestate. Sibling B has two children but predeceases the intestate. Sibling C has three children and also predeceases the intestate. The estate is divided per stirpes and not per capita. The intestate‘s property is divided into three parts. The surviving sibling A gets one third; the two children of sibling B share one third and the three children of sibling C share one third.

Example: An intestate dies who was never married and who had no children. His parents predecease him. He had three siblings. Sibling A has one child. Sibling B has two children. Sibling C has three children. All of the siblings predecease the intestate. The estate is divided per capita and not per stirpes. The estate is divided into six shares and each of the surviving nieces and nephews receive one sixth.

Join the List

Who and What we Are

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).
~

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Let’s Work Together

Gift Deeds in Texas

Gift Deeds in Texas

Gift deeds are valid in Texas but there are requirements above and beyond what is required of a normal deed. A gift deed is a document that transfers title to land. It can be informal but the intent of the grantor must be to immediately divest himself of the property. I have written about gift deeds in Texas on my blog. You can read about them here.

If there is a question about whether you have a valid gift deed or someone is claiming they have a gift deed to property that you own, you should contact an attorney as soon as possible.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

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.

Contesting a will in Texas

Zoom type workshops?

In the age of Covid-19. we have been thinking of having monthly or bi-monthly, free, Zoom type workshops where participants discuss with us issues that are of interest to them. There would be no agenda, we would discuss areas that the participants wanted to discuss. Participants could attend by computer, tablet or smartphone.

This would be a public Zoom type meeting so nothing personal or confidential should be discussed. Just general questions. Personal or confidential questions should be asked by using the Contact Us tab above.

If you think we should start having these workshops, please leave your email so we can notify you?

We will notify you if we decide there is interest in the workshops. Thanks for letting us know.

Pin It on Pinterest