Interesting Developments In Inheritance Laws

My practice is limited to trials involving inheritance disputes including will contest, related property disputes and associated torts. To ask privately about a Texas litigation issue involving an inheritance dispute, click the big red button to go to our main site's contact page and ask a question privately.

When Are You Dead For Probate Purposes, Part 3

When are you dead for probate purposes

When Are You Dead For Probate Purposes

Everybody knows when you are dead, right? When the question involves when are you dead for probate purposes the answer is not quite so settled. I have written before on this question of when are you dead for probate purposes and those articles are cited at the bottom of this article.

Simultaneous Death Act

The question usually arises because Texas, as most states, has a statute that deals with survivorship when two people die around the same time. In Texas, if you die within 120 hours of another person you are presumed to have died at the same time. Usually when these statutes are invoked, the issue involves close family members like a husband and wife. If the husband and wife die close together in time, the state doesn’t want to require the children to have to file an estate for the father and then put his money into the mother’s estate and then open an estate for the mother and put her money into the estate of the father and then…. you can see the point. The issue is also important in joint accounts with right of survivorship. If the joint owners die close together, what happens to the money. The Simultaneous Death Act resolves that problem. One final issue is what happens when a will speaks to what happenes to the property if the testator and the main beneficiary die in a common disaster. Common disaster means (“[a]n event that causes two or more persons [with related property interests] . . . to die at very nearly the same time, with no way of determining the order of their deaths.”) This last issue relating to the definition of common disaster was the subject of a 2016 case out of the Texas Supreme Court. NO. 14-0406 consolidated with NO. 14-0407.

Facts

A husband murdered his wife at 8:59 PM and then shortly thereafter at 10:55 PM killed himself. They had nearly identical wills with provisions relating to what happens to their estate if they died in a “common disaster.” The issue before the court was whether or not these two people died in a common disaster? The trial court had ruled that they did die in a common disaster. The Court of Appeals agreed holding that the homicide-suicide was “a common disaster in spite of the fact that husband did not successfully kill himself immediately” because the shots that killed the husband and wife “were fired in one episode.” The Supreme Court however disagreed and ruled that the husband and wife did not die in a common disaster.

Construing A Will

The Supreme Court said that this was a case of construing a will, plain and simple. While the trial court and the Court of Appeals had discussed the Texas Simultaneous Death Act, the Supreme Court said that that act did not apply because the wills addressed the situation and had to be followed. The court stated that common disaster has a settled legal meaning. One of the requirements is that the order of death must be uncertain. In the case under review, there was no uncertainty as to the order of death. Common disaster fails to encompass unrelated but closely timed deaths. Therefore the doctrine of common disaster did not apply in this case. The provisions in the will dealing with what happens to the property if the husband and wife die in a common disaster never become effective.

The other two articles I have written concerning the issue of when are you did for probate purposes are here and here.

Breaching A Fiduciary Duty In Texas

Breaching a fiduciary duty in Texas

Power of Attorney

A power of attorney in Texas creates a fiduciary duty between the person who holds the power (agent) and the person who gives it (principal.) The agent owes his principal a high duty of good faith, fair dealing, honest performance, and strict accountability. A 2015 case out of Fort Worth dealt with the issue of breaching a fiduciary duty in Texas.

Deed

A man (agent) had his aunt (principal) give him a power of attorney. About a year before the aunt died, the nephew executed deeds to the aunt’s real estate to himself and his son. After the aunt died, a probate was filed. When the beneficiaries of the aunt found out about the deeds, they were understandably upset.

Family Settlement Agreement

Apparently, most of the beneficiaries did not have the money to sue the agent so they entered into a family settlement agreement to give one of the beneficiaries the right to sue the agent for breaching a fiduciary duty in Texas. Suit was filed and Continue reading

Marijuana and Probate in Texas

marijuana and probate law in Texas

A professor at one of Texas’ Law Schools wrote an article about the future of marijuana and Probate in Texas. You can find the article here.

Abstract

With the legalization of medical and recreational marijuana in almost half of the states, practitioners need to be aware of interface between marijuana and estate planning. This article provides a discussion of the major issues that arise. After bringing readers up-to-date with the history of legalized marijuana, the article focuses on how marijuana use may impact a user’s capacity to execute a will and other estate planning documents. The article then examines other estate planning concerns such Continue reading

Getting Someone To Make A Will May Be A Crime

 Obtaining a will maybe a crime in TexasTexas Law

Getting someone to make a will may be a crime in Texas. In a 2015 case out of the Dallas Court of Appeals, a man was convicted of a crime for getting an elderly woman to make a will naming him as a beneficiary. After the woman died, he filed the will for probate. Those actions constituted a crime according to the court of appeals because they were done with criminal intent. The court stated that “If performed with the requisite criminal intent to deprive whoever would otherwise have taken (the Continue reading

Texas Bank Gives Money To Wrong Person

Joint account with right of survivorship

hands asking the help and hands saving the money(made from my images)

Bank is not Liable Says Texas Supreme Court

In what I consider a strange holding, the Texas Supreme Court ruled in 2015 that when a Texas bank gives money to wrong person, the bank may not be liable.

Facts

The case dealt with a joint account with right of survivorship. A husband and wife opened the account. The account was a joint account with right of survivorship meaning that when one died, the survivor owned the account. The account also had a pay on death clause that paid the Continue reading

Like Us on Facebook

Follow Us On Twitter

Contact Us

We handle litigation involving inheritance disputes. We don't prepare wills. We handle a select few cases on contingency. Don't use a comment to ask a personal question about an inheritance issue because your name and comment will be public. To ask a litigation question and to protect your privacy, click the red button to the right.


X