WHAT HAPPENS WHEN A TEXAS WILL DOESN’T DISPOSE OF ALL THE PROPERTY

WHAT HAPPENS WHEN A TEXAS WILL DOESN’T DISPOSE OF ALL THE PROPERTY

Property not disposed of by will

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.

INHERITANCE RIGHTS IN TEXAS—HOW TO OBTAIN THEM

INHERITANCE RIGHTS IN TEXAS—HOW TO OBTAIN THEM

Background

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.

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.

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.

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.

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.

Learn about oil & gas inheritance laws in Texas

Learn about oil & gas inheritance laws in Texas

OIL & GAS INHERITANCE

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.

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.

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.

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