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Author: Robert Ray

What is a will contest?

From Wikipedia, the free encyclopedia A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the party who made the will). Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud. A will may be challenged in its entirety, or only in part. In many states, a legal presumption of undue influence arises where a beneficiary under the will stands in a confidential relationship with the testator. For example, where a testator leaves property to the attorney who drew up the will. A will may include an interrorem clause, with language along the lines of “any person who contests this will shall forfeit his legacy”,which operates to disinherit any person who challenges the validity of the will. However, since this clause is within the will itself, a successful challenge to the will renders the clause...

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How I learned to stop worrying and love probate, Part 2.

In the first part of this post, I talked about what probate is about. In this part, I want to talk about some of the problems that can occur when someone tries to avoid probate because they are afraid of it. Recently, people have been buying trust packages from someone who comes into town and gives seminars about “the dangers of probate or the high cost of probate.” They are trying to sell some alternative package of documents that they claim will allow you to avoid probate. Most of these are trust. Trust, if done properly, are useful, especially if your estate is very large. When people try to put together a prepackaged trust, they almost always do it incorrectly. A trust needs to be created in writing and then funded. That means that your property has to be put in the trust. If you want to avoid probate by putting all of your property in the trust, you have to deed your house to the trust, sign over your car to the trust, transfer all of your bank accounts to the trust, etc. If you don’t make these transfers, then you still have property in your name when you die and that property needs to go through probate. While you can create a trust in your will that doesn’t come into existence until you death, most of the...

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What in the world is a “pretermitted child”?

What is a pretermitted child A pretermitted child is a child who is born or adopted after a will is made and is not mentioned in the will. Most states have statutes that deal with this issue. In Texas, the statute provides that if the child is not otherwise provided for by the deceased parent, the child will take a portion of the estate even though he is not mentioned in the will. What are the inheritance rights of a pretermitted child I have written about pretermitted children and their inheritance rights on here. There are complications involved when deciding if the child was “not otherwise provided...

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What happens if you get divorced after making your will?

What happens if you get divorced after making your will? When you get divorced, Texas law answers the question of what happens if you get divorced after making your will? Texas law provides that after a divorce, all provisions in a will in favor of a former spouse “must be read as if the former spouse failed to survive the testator” and are null and void. EC123.001(b), 201.001. Therefore, if you get divorced and don’t change your will, you ex-wife will not inherit under your will even if you want her to inherit from you. You would have to make a new will after the divorce in order for her to inherit from you under your will. Of course, if you don’t want her to inherit under the will, the law voids all provisions for her. To be safe, you need to change your will if there is a divorce. Problems With Not Changing a Will After Divorce A case decided by the Texas Supreme Court, In re Estate of Nash, shows how expensive litigation can result if you don’t change your will. Nash’s Will left everything to his wife, or if she predeceased him then to the wife’s daughter, his step-daughter. Nash and his wife later divorced, but he never changed his Will. Both his ex-wife and her daughter survived him. A relative filed for probate seeking all...

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How I learned to stop worrying and love probate, Part 1.

Most people don’t know what probate is but they know that they don’t like it. They know that they should be afraid of it and try to avoid probate at all cost. This fear of probate has come about recently because of some individuals or groups trying to sell people, mostly seniors, trust forms or packages. The best, surefire way to sell a senior something is to make him afraid. So these individuals or groups try to scare seniors about probate in order to sell the seniors their trust forms or some similar package which they claim will avoid the dreaded probate. They come into a town and send out invitations for a free dinner or a free lunch and try to sell these packages. In truth, the seniors end up paying these groups much more than they would ordinarily pay a lawyer for helping them with probate. In this first part of a series of post dealing with probate, I want to go over the probate process and tell you why we have it and what it does. When a person dies (the decedent), his property passes to somebody. Who does it pass to? If he has a will, his property passes to who ever he gives it to in his will. If he doesn’t have a will, his property passes to his heirs as defined by state...

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About me

Robert Ray

Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization. We handle litigation cases related to inheritance disputes including will contest, related property disputes and associated torts throughout Texas. Our principal office is in Tyler, Texas. Contact Robert