Don’t Use Wills Found on the Internet

Don’t Use Wills Found on the Internet

by | Last updated Sep 21, 2021 | Trust, Wills

The Issue
In a case out of the Fort Worth Court of Appeals, the issue was what power did the trustee have to distribute or not distribute assets of the trust.
The beneficiaries of the trust sued the trustee to require him to distribute the assets to them. The trustee, a bank, wanted to keep operating the trust and refused to distribute assets. The issue before the court was whether or not the trustee had the right to not distribute assets and keep the trust active which was lucrative to the bank.
The Ruling
The Court of Appeals ruled that the trustee did not have to distribute the asset. In addition, the court ruled that the trustee was entitled to its attorney’s fees.
Reason for Ruling
The court made an exhaustive review of the will and trust documents creating the trust and determined that the trustee had “sole discretion” to make distributions and the beneficiaries could not force the trustee to make distributions.
What you should know
You need to know that words have meaning. Using words from a document that you find somewhere can lead to problems that you did not want. When you want to make a will, you should contact a competent attorney to help you. We do not prepare wills. 02-20-00058-CV.

The court also discussed the use of precatory words in a will or trust.

No Forced Heirship In Texas

No Forced Heirship In Texas

by | Last updated Jan 18, 2022 | 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 Texas repealed forced heirship in 1856.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:

In A Texas will, When Does “I Leave The Rest To You” Mean I Don’t Leave The Rest To You?

by | Jun 18, 2018 | Property

In a Texas will, the mother said this: “NOW BOBBY I leave the rest to you, everything, certificates of deposit, land, cattle and machinery, Understand the land is not to be sold but passed on down to your children, ANNETTE KNOPF, ALLISON KILWAY, AND STANLEY GRAY. TAKE CARE OF IT AND TRY TO BE HAPPY.”

Problem

The Texas Supreme Court had to construe the will. The problem language was that shown above. The question was about Bobby’s interest in the land: did Bobby own the land outright as the trial court and court of appeals had ruled or did he just own a life estate holding the property for his life but not being able to dispose of the children’s remainder interest?

Facts

After his mother died, Bobby sold the land to others. Two of his children sued Bobby and the others. They sought a declaratory judgment that Bobby could only convey a life estate in the land since the will created a life estate and not a fee simple interest. Fee simple interest means that the person owns the land for all purposes and may convey all or part of the land.

Did the will give a fee simple interest or a life estate?

Knopf v. Gray, No. 17-0262, (Tex. March 23, 2018)

Ruling

The cardinal rule of will construction is to ascertain the testator’s intent and to enforce that intent to the extent allowed by law.

Here, the parties dispute whether Allen intended to devise to Bobby a fee-simple interest in the land at issue or only a life estate. “An estate in land that is conveyed or devised is a fee simple unless the estate is limited by express words,” but the law does not require any specific words or formalities to create a life estate…(t)herefore, the words used in the will must only evidence intent to create what lawyers know as a life estate.

We need only read the provision as a whole to see a layperson’s clearly expressed intent to create what the law calls a life estate.

The Supreme Court agreed with Bobby’s children that the will only devised Bobby a life estate. Sine he only owned a life estate, that is all he could deed away. Once Bobby passed on, the land would belong to the children.

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In A Texas will, When Does “I Leave The Rest To You” Mean I Don’t Leave The Rest To You?

Is A Will Voidable Because of Public Policy

by | Last updated Jan 17, 2022 | Children, Contesting wills, Probate, Wills

Background

In 2016, the Texas court of appeals in Austin had to decide if a will was voidable because of public policy. The testator had one child, a girl. Two days before he died, he executed a new will that disinherited his daughter. The daughter contested the will. Her principal theory was that her disinheritance by her father violated ” public policy” –namely Texas’s strong public policy against sexual abuse of children. As her basis for that theory, she alleged that her father had abused her sexually while she was a (more…)

Can You Probate An Invalid Will In Texas

Can You Probate An Invalid Will In Texas

by | Last updated Mar 9, 2021 | Contesting wills, Probate, Procedure, Wills

Invalid wills can be admitted to probate if not contested

The idea to take away from the case discussed in this article and similar cases is that this will had been admitted to probate. If the family had not contested it, the “friend” would have taken all the estate. Even invalid wills sometimes get admitted to probate as this one did. So to the question of “Can you probate an invalid will in Texas?” The answer is yes if the proper beneficiaries don’t take action quickly to contest the will.

Recent Case

In The Estate of Romo (not that Romo), the El Paso Court of Appeals ruled on a will contest case. The will had been filed by the testator’s “friend” and the judge admitted it to probate. It left the testator’s estate to the friend. Several months after the will had been admitted to probate, a will contest was filed by the testator’s family. The family offered a prior will that left all to the family. The will contest was filed because, allegedly, the testator did not have the mental capacity to make the new will and he was (more…)

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