When Can a Texas judge change or reform a will

When Can a Texas judge change or reform a will

Contesting a will in Texas

When can a Texas judge reform a will?

The Texas Estates Code, 255.451, says a Texas judge can reform a will or modified it in certain circumstances. The same is true of a trust. Prop. C. 112.054. In a 2019 case, 06-19-00014-CV, a trust was modified by the trial court. The appeals court reversed the modificaiton.

Facts

A man and woman were married. 06-19-00014-CV. The wife had a child, Edna. The husband adopted Edna. Thereafter, they had two children between them, Ignacio and Esperanza. At some point, they created a trust.

The first Trust article, labelled “Identification,” read, “The Grantors have two children, their daughter, ESPERANZA GONZALES and son IGNACIO G. GONZALES, JR. All references in this Declaration of Trust to the `Grantors’ children’ are to them. The term “children” was never used again. The trust only used the term “descendants” after that. Edna’s name was not in the trust.

There was one blank in the document that said “all of the remaining trust property shall be distributed to the Grantors’ [_____].” Ignacio and Esperanza asked the trial judge to reform the will and fill in the blank with “children.” Edna opposed that and wanted the blank to be filled in with the term “descendants” that was used in all the provisions that disposed of property. The trial court reformed the trust by inserting “children.” Edna appealed.

Ruling

The appeals court reversed. It discussed the law about the ability of a Texas judge’s ability to reform a will or a trust based on a scrivener’s error (a mistake made by the attorney preparing the document as opposed to a mistake by the clients.) They noted that the person seeking the reformation had a high burden. A clear and convincing burden of proof which Ignacio and Esperanza did not meet.

The court agreed that there was a scrivener’s error but it could have been leaving Edna out of the Identification paragraph as well as not filing in the blank. They sent the case back to have these issues tried by a jury.

What should you know

A Texas judge can reform a will. If there is a will or trust that has errors in it, a court can correct those errors in certain circumstances.

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.

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.

Can Parents, Siblings, Aunts, Uncles, Nieces and Nephews Inherit?

Can Parents, Siblings, Aunts, Uncles, Nieces and Nephews Inherit?

In Texas Parents, siblings, aunts, uncles, nieces, nephews and others are heirs for the purpose of distributing the estate of the deceased if he died intestate and if the deceased had no spouse or children. Even if the deceased had a spouse but no children, the other relatives may be entitled to some of the property. The rule is, if you can’t go down the family tree, you go up then out on to the branches to determine who inherits.

If you have questions about your inheritance rights and would like to talk to an estate planning attorney or a lawyer who is familiar with inheritance and probate law to advise you about your inheritance rights, click on the “Contact Us” tab at the top.

Who are the heirs in Texas?

Who are the heirs in Texas?

The best place to start to learn about inheritance is on our inheritance start page. You can then come back to this page.

A person is allowed to make a will and leave his estate to whomever he wants. It doesn’t make any difference if he has a wife and children, he can leave his estate to a Las Vegas Showgirl if that is what he wants to do. However, when he makes his will he must be of sound mind and have the mental capacity to make a will, not be under undue influenceand intend to make a will when he signs the document.

If he doesn’t make a will before he dies, he dies intestate. He also dies intestate if the will that he makes is contested and not admitted to probate. If there is a forged will, he dies intestate. Finally, if he does not mention all of his property in a will, he dies intestate with regard to the property not mentioned. This might happen when he gives his house to someone but no mention is made of the contents of the house. In all of these cases, his estate passes to his heirs as determined by law.

There are a number of different categories of heirs recognized under the law. Being an heir is important because heirs inherit if a person doesn’t make a will or the will is contested and not admitted to probate or if a portion of the will is not upheld by the court. In each of these situations, the property in question will go the the person’s heirs.

The several categories of heirs are:

  1. Spouses – ceremonial and common law spouses;
  2. Children – natural born, adopted, adopted by estoppel and equitably adopted;
  3. Parents;
  4. Bothers and Sisters;
  5. Aunts and Uncles; and
  6. Nieces and Nephews.

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.

Who Inherits Under the Texas Laws of Inheritance

Who Inherits Under the Texas Laws of Inheritance

The laws of inheritance determine who inherits in the following situations:

  1. A person dies intestate (without a valid will😉
  2. A person has a valid will but for some reason, usually a mistake or the death of a beneficiary, the will does not dispose of all of the property – the property not disposed of by the valid will, will go to the persons determined by the laws of inheritance; and,
  3. A person has a will but the will is contested and is not admitted to probate. The person is then treated as if he died intestate (without a will) and the laws of inheritance determine who inherits the estate.

Texas, like all states, has laws of inheritance that determine who inherits a deceased person’s estate. It is important to remember that if a person has a valid will that disposes of all of his property, it is the will and not the inheritance laws that determines who inherits the estate. The laws of inheritance determine who inherits only when there is no valid will that disposes of all of the property.

To find out who inherits the estate’s property if there is no valid will disposing of all of the property, click on one of the following:

  1. Children, including adoptedpretermitted and illegitimate children;
  2. Adopted children’s inheritance from their birth parents;
  3. Spouses, including common law as well as putative spouses;
  4. Parents and siblings; and
  5. Other relatives like nieces and nephews, aunts and uncles.

To find out what kinds of property are subject to the laws of inheritance, click here.

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.

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