Effects Of A Contractual Bequest In A Will.
Posted on | July 24, 2014 | No Comments
Contractual Bequest
The Dallas Court of Appeals decided a case in 2013 that involved this contractual bequest in a will: if you “reside with and care for me until my death…” I’ll give you a million dollars. It also had a provision that if the lady failed to perform fully, then the bequest of one million dollars would not take effect.
The decedent’s daughter filed the will for probate. She then asked the judge to declare that the lady to whom the contractual bequest was made was not entitled to the contractual bequests because she failed to comply with the conditions stated in the will, that is, she did not perform her part of the contract.
There was a trial and the jury found that the lady had performed her duties. The daughter appealed but the Dallas court upheld the jury’s verdict. The lady received her one million dollar bequest. So, contractual bequest in wills are valid but both parties need to perform their contractual duties. 424SW3d608.
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Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. We handle a select few cases on a contingency basis. Please go to our main site www.theprobate.net 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. #ContestingAWill.
Contingency Fees When Contesting A Will?
Posted on | July 17, 2014 | 3 Comments
Contesting A Will
When you are forced to contest a will because someone is trying to keep you from your rightful inheritance, you have to retain an inheritance attorney. How you pay that inheritance lawyer may determine whether you can or can’t contest the will.
Hourly Fee
When you are contesting a will, you normally pay the inheritance attorney on an hourly fee basis. You pay month in and month out as the inheritance lawyer works on your case. You also pay the expenses as they are incurred by the inheritance attorney. This is the preferred method of payment for the inheritance lawyer. He works, he gets paid. Expenses are repaid when they are incurred. This works well for the client as long as the client has the resources to fund the lawsuit.
Some inheritance attorneys won’t agree to contingency fees when contesting a will. They will only handle a will contest on an hourly basis. Will contest can get expensive quickly. Will contest may last for several years. In addition to the fees, the expenses can become a burden as shown by this case where a doctor charged over $34,500.00 for providing expert testimony in a will contest.
Contingency Fees When Contesting A Will?
Many people do not have the resources to fund an expensive case contesting a will. If their choice is contesting a will on an hourly pay basis or not contesting a will, they are often left not being able to contest the will.
While many inheritance attorneys won’t agree to contingency fees when contesting a will, we handle a select few will contest on a contingency basis. We won’t handle every case using contingency fees when contesting a will but we handle some. Small estates don’t lend themselves to contingency fees when contesting a will, large estates do. Small and large are relative terms but generally, if your part should you win is less than $300,000, it is a small estate. We won’t agree to contingency fees when contesting a will unless our client has been deprived of what is rightfully theirs. If we agree to contingency fees when contesting a will, we advance cost and expenses as the case progresses. While you will have to repay these cost and expenses if you win, you are not out any money while the case is progressing. Because of the risk to the attorney, we are selective in the cases that we handle on a contingency. If you want to discuss a Texas case, contact us.
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Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. We handle a select few cases on a contingency basis. Please go to our main site www.theprobate.net 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. #ContestingAWill.
Statutes Of Limitation For Contesting A will Can Be Fatal.
Posted on | July 15, 2014 | No Comments
Texas has a two year statute of limitation for contesting a will. Other states have shorter or longer time limits for will contest. An example of a short period of time for challenging a will is the state of Indiana. The statute of limitation in Indiana is only three months after the will has been admitted to probate! Indiana Code §29-1-7-17.
Statutes of Limitation for contesting a will can be fatal.
In a recent case on will contest, the appeals court upheld a dismissal of a will contest because it had been filed after the statute of limitations had run. The contestant alleged that he did not know that that the decedent had died. The decedent was his step-mother. She had cut off all contact with him. He said that he searched for her obituary on a regular basis because he knew that his step mother and his dad had entered into a contract to make wills benefiting him. He did not find out that she had died until nine months later. Her new will had been admitted to probate several months after her death and six months before he knew the new will had been admitted to probate. This was an Indiana case which has a three month time limit on contesting wills so his will contest was dismissed. No. 89A05-1402-ES-62.
Statutes of Limitation for contesting a will can be fatal. While this case is from Indiana and Indiana has a very short statute of limitations for contesting a will it serves the purpose to show what can happen if you miss the deadline. If you think that you have some interest in an estate, the burden is on you to stay informed and know when people die, when a probate is filed and what time limits exist. It is necessary for you to act quickly or you may lose you inheritance.
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Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site www.theprobate.net 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. #ContestingAWill.
Can You Disclaim Your Inheritance In Texas?
Posted on | July 14, 2014 | No Comments
Why in the world would you want to disclaim your inheritance in Texas? Actually, there are many reasons. There may be tax reasons. The property my be more trouble than it is worth. You want to disclaim so your heirs will inherit the property. Whatever your reasons for disclaiming your inheritance in Texas, once filed, a disclaimer is irrevocable and applies to all future interest in the property.
What happens to the property that you disclaim? When you disclaim property that is yours under a will or through inheritance the property passes as if you had predeceased the decedent. EC 122.101. A properly executed and timely filed disclaimer means that you never owned the property. It goes straight from the decedent to the ones who would get if if you had predeceased the decedent. You cannot designate a person to received the property you disclaimed. 740 2d 92.
What happens if your disclaimer is ineffective such as when it is filed too late or if the procedure for disclaiming is not followed? In those case, the ineffective disclaimer acts as an assignment of the property to those who would inherit the property if you had predeceased the decedent. The difference here is that the property is treated as if it went to you and then to the ones who would get it if you had predeceased the decedent. If you have judgments against you, the property would be reachable by those creditors. There may be tax consequences also since the property went first to you then to the others.
A disclaimer may not be effective against you if you did not have adequate knowledge of that which is being disclaimed. As an example, a brother died in Alabama. He gave his Texas land to his surviving brother and everything else to his wife in Alabama. The surviving brother knew that the Texas property had been sold so in a settlement he filed a disclaimer in Alabama as to the Texas land. Forty years later, the surviving brother discovered that his deceased brother had a non-participating royalty interest in the Texas property. The Texas courts ruled that the disclaimer was not valid because the brother was mistaken as to the property being disclaimed. 255 2d 716.
Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site www.theprobate.net and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case and there is no fee for the initial consultation. #ContestingAWill.
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Who Owes HOA Expenses On The Death Of the Decedent?
Posted on | July 12, 2014 | No Comments
HOA or Home Owner’s Association fees are much more common today than they used to be in the past. Most condominiums have an HOA. Small subdivisions may also have home owner’s associations. These associations are set up by the original builder or developer to help market the property. Once all of the units are sold, the developer will generally turn over the HOA to the owners of the units. These HOA’s have rules to protect the homeowner’s from each other. You don’t want your neighbor putting a car in his front yard, putting it up on jacks to work on then leaving it for months as an eye sore. The association has rules to protect against these types of acts to keep the property values up. Since the association is incorporated into the deed, it is a condition of purchase. The HOA usually pays for upkeep on common areas and may even pay taxes and utilities on parts of the property. As a homeowner, you make a monthly payment to the association to help pay for these expenditures. The HOA may have the right to sue you or even foreclose on your property if you don’t pay your fair share.
What happens if the homeowner dies and the fees build up? Who owes the HOA expenses on the Death of the decedent? In a 2014 case out of New Jersey the appeals court was called on to answer that question when a house subject to a HOA was in foreclosure when the owner died. The fees had built up to over nine thousand dollars. The HOA sued the estate and also sued the beneficiary individually. They claimed that since the property vested in the beneficiary immediately on the death of the owner, the beneficiary was personally liable even though she probably didn’t want the house in the first place since its value was less that what was owned on it. The beneficiary defended the claim saying that the HOA could only look to the estate of the owner to pay and not the beneficiary. The estate obviously had no assets. The appeals court agreed with the beneficiary. “(W)e are satisfied that (the trial judge) was correct that the statute does not make (beneficiary) responsible, as her mother’s residuary beneficiary, for payment of the assessments coming due after her mother’s death. Instead, the statute makes those assessments the responsibility of the executor on behalf of the estate.” No. A-0836-13T1.
To sum up, rather than just looking to the estate of the mother which didn’t have any assets except the property that was in foreclosure, the HOA tried to sue the daughter who was the beneficiary under her mother’s will. They were unsuccessful. The court held that they could only sue the mother’s estate. Just because you are the beneficiary under a will does not make you liable for the debts of the decedent.
Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site www.theprobate.net and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case and there is no fee for the initial consultation. #ContestingAWill.
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What Is A Widow’s Election?
Posted on | July 8, 2014 | No Comments
The doctrine of a widow’s election is based on the principle that a person may not take benefits under a will and, at the same time, set up a right or claim of his own, even if well founded, which would defeat or in any way prevent the full effect and operation of every part of the will. A beneficiary under a will is put to an election only where the will expresses the testator’s purpose to dispose of the beneficiary’s property in such clear and unequivocal language that the will is open to no other construction. Since it is presumed that a testator intends to dispose only of his own property, a beneficiary under a will is put to an election only where the will expresses the testator’s purpose to dispose of the beneficiary’s property in such clear and unequivocal language that the will is open to no other construction. I have written about a person’s ability to contest a will if he accepted benefits under the will here.
An example of the election doctrine and how it can affect property rights is shown in a Texas case from the 1980′s. There, the wife gave her husband some of her property. The will also set out that she was giving him the income from his own property for his life but giving the property to her son after the death of the husband. After the wife died, the husband probated the will. He was appointed executor of the will. Later, he claimed the property in question as his own as he inherited it from his family. The wife’s son claimed that the husband made an election by probating the will, being appointed executor and receiving benefits. The court agreed and ruled that the husband’s property transferred to the wife’s son on husband’s death.
To recap, the husband had property that was his separate property and did not belong to wife. Wife gave husband’s property to her son in her will. The court held that it was the son’s property now because the husband made an election to take under the will when he filed it for probate, was appointed executor and enjoyed benefits under the will. His property thereby became the wife’s son’s property and was no longer his! 657sw2d457.
Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site www.theprobate.net and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case and there is no fee for the initial consultation. #ContestingAWill
What Happens To A Gift To A Group, i.e., Children Or Siblings, If Some Are Alive And Some Are Not?
Posted on | July 7, 2014 | No Comments
If a person dies intestate then all states have a statute that sets out who inherits. If a person dies testate the will sets out who inherits. In either of these cases, what happens if some of the people in the statute or in the will are alive and some are dead? How is the estate divided?
This question is determined in Texas by another statute that says when a group, i.e., children, siblings, etc. would take under the circumstances, the estate will be distributed Per Capita. So, let us assume that a person dies with no will and no spouse but has five children who are all living. The children will each take an equal share per capita. The same is true if a person dies without a wife and children but leaves brothers and sisters who are all alive. However, if in the example, some of the children are living but others are dead or if some of the brothers and sisters are living but some are dead, the distribution is changes. In these last two cases, the statute provides that the surviving children or the surviving brothers and sisters would each inherit one share, per capita, and the descendants of the deceased children or deceased brothers and sisters would divide the share that would have gone to their parent, per stirpes. If the deceased child or deceased brothers and sisters didn’t have descendants, their share would be distributed to the remaining children or remaining brothers and sisters.
The thing to remember is that if there is any living person in a generational level, that person gets a share per capita and everybody else takes per stirpes. EC201.101.
Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site www.theprobate.net and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case and there is no fee for the initial consultation. #ContestingAWill
Can An Executor Or Trustee Go To Jail If He Refuses To Turn Over Estate Assets?
Posted on | July 2, 2014 | 1 Comment
As with most legal questions, it depends. When a judge orders someone to do something and that person doesn’t do it, the judge can hold him in contempt and put him in jail. In cases where an Executor or Trustee has been ordered to pay a debt out of the estate, he can’t be put in jail if he refuses because the Texas and U.S. constitutions prohibit putting someone in jail for a debt. It doesn’t mean that the Executor or Trustee doesn’t have to pay the debt, he does. It just means that the court will have to use another method to get the debt paid such as seizing assets rather than jail.
However, when an Executor or Trustee refuses an order of the judge to turn over estate assets to a beneficiary, he can be put in jail if he refuses even if the asset is money. The beneficiary owns the property in question. It is not a debt. Courts reason that the Executor or Trustee is holding the assets in trust for the rightful owner, the beneficiary. The critical difference is that the Executor or Trustee possesses the property of another but refuses to deliver it to the rightful owner, despite being ordered to do so. Since it is not a debt it is off to jail he goes if he refuses. 316 sw3 787.
Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site www.theprobate.net and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case and there is no fee for the initial consultation.
Some States Recognize a Pretermitted Wife. Texas Does Not.
Posted on | June 28, 2014 | No Comments
I’ve written before about pretermitted children and their rights to inherit. You can read the articles here and here. Basically, a pretermitted child is one who is born after a will is executed and is not otherwise provided for by the parent. In that case, the pretermitted child would inherit a share of the parent’s estate even though he is not mentioned in the will. Some states also recognize a pretermitted wife or spouse. In that case, if a marriage takes place after a will is executed and the wife is not otherwise provided for by the husband, she takes a share of the estate even though she is not mentioned in the husband’s will. See for example, the California Probate Code Section 21610-21612. Washington state also recognizes a pretermitted spouse. No. 30995-9-III.
Texas does not recognize a pretermitted spouse. Only pretermitted children. A child in Texas who is contesting a will may recover under the pretermitted child statute. A wife in a will contest in Texas will not.
Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site www.theprobate.net and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case and there is no fee for the initial consultation.
Tags: ContestingAWill > Pretermitted child > Spouse
Is a Contingent Will Valid? What if the Contingency Never Occurs?
Posted on | June 25, 2014 | No Comments
A will may be drawn to take effect on the happening of a contingency or condition. If the contingency or condition never occurs, it is void. An important class of contingent wills consist of instruments made to take effect as testaments in the event of the death of the maker from a particular illness, (i.e. “if I don’t survive my heart operation”) or before the happening of a certain event, such as returning to his home from a trip (i.e. “if I don’t return alive from my trip to India.”) If the testator survives the heart operation or if he returns alive from his India trip, the will is void.
If the happening of the event is merely referred to as giving the reason or inducement for the making of the will, it will be held unconditional and a valid will no matter what happens; but, if it appears that the testator intended to dispose of his property in case of the happening of the named event, then it will be held to be conditional. So how do you determine if the testator intended a contingent or conditional will?
The courts use “rules of construction” in determining if a will is contingent or not. Those rules are: the fact that testator left a will implies that he did not intend to die intestate; a will is construed to be general, not contingent, unless the contrary clearly appears either expressly or by necessary implication; if the event in the will merely indicates the inducement to make the will and the testator’s intent to make a contingent will is not apparent, it is a general will; and, if the will is open to two constructions, that interpretation will be given it which will prevent intestacy.
So, in answer to the question at the beginning, contingent or conditional wills are valid. If the will is contingent and the event never occurs, then the will is void. To avoid this problem and the other problems that occur when people try to make their own wills, see an attorney who can help you create a will that disposes of your property when and how you want. We don’t prepare wills. 45/1096.
Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site www.theprobate.net and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case and there is no fee for the initial consultation.
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Recent Posts
- Effects Of A Contractual Bequest In A Will.
- Contingency Fees When Contesting A Will?
- Statutes Of Limitation For Contesting A will Can Be Fatal.
- Can You Disclaim Your Inheritance In Texas?
- Who Owes HOA Expenses On The Death Of the Decedent?
- What Is A Widow’s Election?
- What Happens To A Gift To A Group, i.e., Children Or Siblings, If Some Are Alive And Some Are Not?
- Can An Executor Or Trustee Go To Jail If He Refuses To Turn Over Estate Assets?
- Some States Recognize a Pretermitted Wife. Texas Does Not.
- Is a Contingent Will Valid? What if the Contingency Never Occurs?