No Forced Heirship In Texas

No Forced Heirship In Texas

by | Last updated Oct 2, 2023 | Children

Forced Heirship in Texas?

Forced heirship is a concept that provides that all of your children have a right to a portion of your estate upon your death. In other words, each of your children must get part of your estate. There are limited circumstances under which a child can be disinherited. Absent one of these circumstances, if you do not provide a child with his or her forced portion, he or she can sue to claim it. The idea comes from Roman and French Civil Law but is not part of the common law of England. All states follow the Common Law of England rather than the Civil Law of Europe except for Louisiana. Louisiana has forced heirship, the other states generally do not have it.

No Texas Forced Heirship.

Texas was part of Mexico before its independence. Mexico’s law is based on the Civil Law of Europe.  Because Mexico had forced heirship, it was part of Texas law at the time of Texas’ independence. It remained part of Texas law for only a short time. Texas repealed forced heirship in 1856. As a result, a Texas will can leave property to a child or not leave property to a child. There is no law that requires a person in Texas to leave property to a child, a spouse or anyone else. There is complete freedom to leave property to anyone regardless of their relationship to the maker of a will.

If you want to read an in depth discussion on forced heirship in Texas and Louisiana, there is an excellent discussion titled The Early Sources of Forced Heirship; Its History in Texas and Louisiana, 4  Louisiana Law Review 1941.

Pretermitted Children and Spouses.

Note that forced heirship is different from the concept of pretermitted children and spouses. Pretermitted children are those children born after a will is executed and not otherwise provided for by the decedent. The law treats these children as forgotten children and they inherit as if there was no will. Texas doesn’t recognize pretermitted spouses but some states do. The same principles apply as apply to pretermitted children. I have written about pretermitted children here and here. I have written about pretermitted spouses here and here.

Listen to this Podcast on pretermitted children:

Texas Statute of Limitations or Probate Limits to Challenge a Will.

Texas Statute of Limitations or Probate Limits to Challenge a Will.

by | Last updated Nov 5, 2022 | Contesting wills, Time limits

Two Years

What Are Time Limits to Contest a Texas Will

In Texas, the probate limits or the time limits for challenging a will, what the law refers to as the statute of limitations, is complicated.  It is complicated because the Texas probate time limits for contesting a will center around the date that the will is admitted to probate, not the date of death of the testator.  See the article on the probate process to become familiar with how a will is probated and to learn what “admitted to probate” means.

Contest A Texas Will Before Or After The Will Is Admitted To Probate

You can oppose a Texas will filed for probate before or after it is admitted to probate. There are benefits to challenging the will before it is admitted to probate. However, you can contest the will even after it is admitted to probate if you file the will contest before the statute of limitations or probate limits run out. You can challenge a Texas will on several grounds. I have written on the reasons for contesting a will here and here.

Contesting a Will in TexasTime Limits
You know you are an heir2 years from date will admitted to probate
Minor2 years from date of majority
FraudNo limit but you must act reasonably quickly after discovery of fraud

Two Year Rule

The basic rule in Texas is that a person has two years from the date a will is admitted to probate to contest it.  That seems simple enough, but the probate limits are not so simple.  For instance, the proponent of the Texas will has four years after the death of the testator to file the will for probate.  If the proponent files the Texas will just before the four years is up, the contestant will have two years after that to contest the will (six years after the death of the testator!)  To complicate matters even more, a person who is not at fault can file a will more than four years after the death of the testator.  “Not at fault” usually means that the person who files the Texas will for probate after four years did not know about the will during the four years after the testator’s death but found it later.  If a person knows about the will and just doesn’t file it, he is usually at fault and can’t file it after four years elapse.  As with all rules, there are exceptions.  If the person knew about the will but was told by his lawyer that he didn’t need to file it, he may not be at fault and may be able to file the will after four years.  In any event, the contestant can challenge the will within two years of the date that it was admitted to probate whenever that date is. Probate limits in Texas are complicated!

Minors

Minors have two years from the time they reach their majority to file a will contest in Texas. Probate limits in Texas are complicated! There is a 2018 case where the children were minors when their father died. The Administrator of the estate, took all of the money and didn’t tell anyone. When each child turned 18, the Administrator gave them a check for around $25,000. The estate was worth over $250,000. The children had all been raised in foster care and were unaware of their rights. More than four years later, the children finally hired an attorney and sued the Administrator. The Administrator said he had destroyed all the records and didn’t remember what was in the estate. The Administrator asked the court to dismiss the claim because of the statute of limitations. The court did dismiss the claims. The dismissal was upheld by the court of appeals. So remember, time matters! 571/324.

Earlier Will

If a person finds a will dated earlier than the will that is filed for probate and thinks that the earlier will is the true last will of the testator, he has two years from the date that the later will was admitted to probate to file the earlier will for probate.  This operates as a contest of the latter will.  If a person finds a later will than the one admitted to probate, he has four years after the death of the testator to file the will for probate.  Filing a later will executed after the earlier will that has been admitted to probate may not be considered a “contest” and may not be governed by the Texas two-year statute of limitation for will contest.  The latter will can be filed within four years of the testator’s death or later if the person filing the will is not at fault. Probate limits in Texas are complicated! (Compare 322 S.W.3d 361 with 577 S.W.2d 748.)

As stated above, the statute of limitations is complicated. If you are concerned about the time, you should contact an attorney as soon as possible.

Burden of Proof

If a will is opposed before it is admitted to probate in Texas, the proponent of the will must prove that it is a good will, executed with the formalities required by law, at a time when the testator was competent and that it has never been revoked.  After the will has been admitted to probate in Texas, the contestant has the burden to show that the will is not good, that it was not executed with the formalities required by law, that the testator was not competent or that the will has been revoked.

By a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about Texas inheritance laws, inheritance rights, probate limits, have a family inheritance dispute, a property dispute or want to know the reasons for contesting a will or protecting a will from a contest and need an inheritance lawyer, we can help. Please click on the “Contact Us” tab above and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case. There is no fee for the initial consultation.

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Are Arbitration Provisions of a Will Enforceable?

by | Mar 10, 2019 | Probate

I have written previously that arbitration clauses in trust are enforceable against the beneficiaries. Normally, arbitration clauses are not enforceable against someone unless they agreed to be bound by arbitration. In the trust context, the Supreme Court has held that if a trust contains an arbitration clause and you receive benefits from the trust, you are agreeing to the arbitration clause. This is called direct-benefits estoppel. I said in that article that the same rule would probably apply to an arbitration clause in a will. Well, there is a case now involving an arbitration clause in a will.

In the will case, the Testator’s will contained a provision requiring arbitration of all disputes. 14-18-00003-CV. The Successor Administrator sued the Former Executor for several alleged breaches of fiduciary duty. Former Executor moved to compel arbitration. The trial court denied the motion and Former Executor appealed.

The appeals court also denied arbitration. They said that direct-benefits estoppel did not apply because the Former Executor did not receive benefits. The Former Executor claimed that the fees that the he received were benefits under the will so the arbitration clause required arbitration. The court explained that Successor Administrator’s claims are not based on allegations that Former Executor violated the terms of the will. Instead, the breach of fiduciary duty claims against Former Executor were derived from statutes and common law, irrespective of the will itself. In addition, Successor Administrator’s entitlement to fees is based on Texas Estates Code § 352.051, not the will.

So, the implication is that arbitration clauses in wills are enforceable under the right circumstances.

Note: A 2019 case denied an interlocutory appeal of an order to arbitrate. A party sued a trust company for inappropriately distributing funds. The trust company demanded arbitration which the trial court ordered. The party that did no want arbitration attempted an interlocutory appeal. The appeals court denied the appeal saying that only orders denying arbitration are subject to interlocutory appeals, not orders granting arbitration.  11-19-00017-CV.

What Happens When You File An Inheritance Dispute In The Wrong Texas Court

by | May 28, 2017 | Contesting wills, Procedure, Property

Filing an inheritance dispute in the wrong Texas court can be fatal to your claim!

Facts

A recent court of appeals decision illustrates what happens when you file an inheritance dispute in the Wrong Texas Court. An elderly Texas man had nine children. In the last few years of his life, one of his children gained control of the man. She obtained a power of (more…)

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