When is a handwritten document a holographic will?

When is a handwritten document a holographic will?

What is a holographic will

Holographic wills

In a case decided in 2019, 14-18-00256-CV, a man named Silverman wrote the following on a piece of paper:

10/26/15 Karen Grenrood is my executor, administrator, [and] has all legal rights to my estate in the case of my untimely or timely death. Very truly yours, [signature] Jerry VanDaveer [witness] Karen Grenrood [witness]

Karen was Silverman’s office manager. She filed the document for probate as a holographic will. A holographic will is one wholly in the handwriting of the testator. Such a will is legal in Texas and some states but illegal in other states like Florida. A holographic will does not need to be witnessed.

A contest was filed that opposed the document being considered as Silverman’s will. They claimed that the document did not dispose of property and was not made with testamentary intent. The trial court agreed. Karen appealed.

The appeals court first said “A court’s first duty in a proceeding to admit a writing offered for probate is to determine whether the writing is testamentary in character…The requisite testamentary intent does not depend upon the maker’s realization that he is making a will, or upon his designation of the instrument as a will, but rather upon his intention to create a revocable disposition of his property to take effect after his death…The writing must be ineffectual as a transfer of any rights or interest before death…Further, courts often state that the writing must operate to transfer, convey, or dispose of the testator’s property upon death.” In other words, it does not dispose of property in the present which would be a gift. The transfer of property must take place on death.

The appeals court held that the document was a will that could be admitted to probate because it named an executor even if it did not transfer property. But they also ruled that there was a jury question whether or not the document transferred property to Karen with the words “has all legal rights to my estate…” The reversed the trial court and sent the case back to be tried by a jury.

So, every document must be reviewed on its own to see if it qualifies as a will.

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.

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Learn How a Will is Probated in Texas

Independent Executor

The form of probate most familiar to clients is the probate of the will with the appointment of an executor of will. What some refer to as an Executor will. This provides for probate of a will with full administration of the estate by the executor of the will, the person nominated by the Decedent as executor.

The majority of wills filed in Texas contain language similar to the following, “I appoint [Name] to be the Independent Executor of this will to serve without bond. My Independent Executor shall act independently of any court, and I direct that no action shall be had in the county or other probate court in relation to the settlement of my estate other than the probating and recording of this, my Last Will and Testament, and the return of an inventory, appraisement and list of claims of my estate. This language creates an independent administration of the Decedent’s estate pursuant to Tex. Est. Code §401.001 (formerly 145(b) of the TPC.) No specific language is required to make the administration independent. Any language is sufficient if it indicates that the estate administration is to be free of court supervision.

The purpose of an independent administration is to permit the executor to administer the estate and distribute its assets free of judicial supervision with a minimum of cost and delay.

Dependent Executor

If a will does not state that the executor is to be independent, then he will be a dependent executor. A dependent executor is not normally desirable because he must get court approval for everything that he does. This takes time and money. There are situations, however, where an executor might want to be a dependent rather than an independent executor. If there is a conflict among the decedent’s heirs, the executor can protect himself from problems by having a hearing and having the judge rule on everything that he does. This is not normally a problem and most people will want an independent executor.

Time Limits

When the judge signs the order admitting the will to probate, the statute of limitations start to run for those who oppose the will to challenge the will by filing a will contest. If a person is contesting the will, he must contest it within two years of the date the judge admits the will to probate. It is better practice to file a will contest before the hearing where the judge admits the will to probate. You can also file a will contest before someone else even files the will for probate.

With certain exceptions, a will has to be filed for probate within four years of the death of the testator. A will contest must be filed within two years of the date the will was admitted to probate. That is, two years from the date that the judge signed the order admitting the will to probate.

What is Probate in Texas

Another article explains What is Probate in Texas.

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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

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Find Out What Types of Probate Are Available

Several types of probate are available when a person dies depending on whether they have a will or not.

If the Decedent did have a Will:

  1. Probate of a Will and Appointment of an Independent or Dependent Executor.
  2. Probate of a Will and Appointment of an Independent or Dependent Administrator with Will Annexed.
  3. Probate of a Will as a Muniment of Title.
  4. Probate of Will and Order of No Administration.

If the Decedent did not have a will (Intestate)

  1. Small Estate Affidavit.
  2. Declaration of Heirship.
  3. Affidavit of Heirship.
  4. Family Settlement Agreements.

Which procedure to choose will be a decision that the family makes in consultation with the estate attorney who is going to handle the probate.

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.

Probating a Lost Will?

A problem that comes up from time to time is the issue of a lost will. Lost wills are problems because there is a presumption that when a will cannot be found, the testator revoked the will by destroying it. One of the methods by which a will can be revoked is by destroying the original copy of the will. When a will was last known to be in the decedent’s possession and cannot be located after death, a rebuttable presumption of revocation arises. In order to overcome that presumption, the proponent of the will must prove that the testator continued to have affection for the chief

beneficiary of the lost will. If the continued affection is proven and there is no evidence to show the decedent was dissatisfied with the will or had any desire to cancel or change the will, the proof is sufficient for the court to admit the lost will to probate. This assumes of course that the requirements of proving the contents of the lost will have been met.

In order to probate a lost will, the proponent of the will has to overcome that presumption of revocation as well as prove the contents of the lost will.

The Texas probate code has a section that deals specifically with lost wills and what is required to prove them up (TEC §256.156). A proponent of a written will which cannot be produced in court must prove:

  1. the requirements for a valid written will to be admitted to probate,e.g.what you would normally have to prove if the will was produced including that it was not revoked,
  2. the cause of the written will’s non-production and that such cause satisfies the court that the will cannot be produced through reasonable diligence, and
  3. the contents of the will must be substantially proved by a credible witness who has read the will or a copy of the will, heard it read, or can identify a copy of the will.

If the proponent of the will proves the three things above, the court will admit a loss will to probate. 324 S.W.3d 257.

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.

Correcting a will or trust in Texas

The Probate Judge can correct or reform a will or trust if it is clear that “an error was caused by a scrivener’s or draftsman’s failure to embody the true agreement of the parties in a written instrument.” So, the question always is – does the will or trust show the true agreement of the parties or did the scrivener or draftsman (the attorney) make a mistake.

A 2019 case showed the problems that the courts can encounter. A man and woman got married. The wife had a child “Edna” who the husband adopted. They later had two more children, Ignacio and Esperanza. They created a trust through their attorney. In the trust, they said we have two “children” and named Ignacio and Esperanza. The problem was that that definition was the only place in the trust where they used the word “children.” The rest of the trust disposing of their property refered to their “descendants”.

Ignacio and Esperanza asked the court to reform the trust to change “descendants” to “children” and rule that Edna was not included. The trial court did that – meaning that Edna would not inherit. Edna appealed.

The appeals court reversed. Their is a high burden on someone wanting the court to reform a will or trust and Ignacio and Esperanza did not meet that burden.

We find that Ignacio, Jr., and Esperanza’s summary judgment evidence failed to carry their burden to establish their entitlement to judgment as a matter of law. The Trust clearly contained scrivener’s errors. However, the question of Ignacio’s and Myra’s intent was not shown by clear and convincing evidence as a matter of law. Derer (the attorney) did not remember meeting with Ignacio and Myra, had “no direct memory of them,” and could not recall whether they informed him of Edna’s existence. Based on this testimony, which we view in the light most favorable to Edna, it is quite possible that the scrivener’s error occurred in the identification article and should have included Edna. The identification article stated Ignacio and Myra only had two children. This was a scrivener’s mistake of fact. It is undisputed that Edna is Myra’s natural child and that she was adopted by Ignacio.

While a will or trust can be reformed by the probate court, putting on the case for reformation must be done in the proper way.

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.

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