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Author: Robert Ray

A Man is Sentenced to Twenty-Five Years in Prison for Abusing a Power of Attorney.

The Austin Court of Appeals upheld a sentence of 25 years given to a man who abused a power of attorney. The man was the former grandson-in-law of the elderly lady who gave him the power of attorney. Using the power, he transferred the title of her car to himself, cashed in a life insurance policy, deeded her house to himself and changed the locks. He left instructions with the nursing home where the elderly lady was staying not to let any of the other family members in. The former grandson-in-law said that he wasn’t guilty because he had been advised by an attorney that he consulted on qualifying the lady for medicaid to “spend down” her assets to qualify her for medicaid. The attorney testified that he could basically spend the money, which would include some gifts and that those gifts would incur a penalty, making the lady eligible for Medicaid after the expiration of a penalty period. The court noted that the power of attorney did not give the former grandson-in-law the power to make gifts. The sentence was upheld. The court relied on Texas authority relating to the powers conferred by a power of attorney (authority conferred by power of attorney will be strictly construed to exclude exercise of any power not warranted by document’s actual words or “as a necessary means of executing the authority...

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Can the Judge Order Spousal Support From a Spendthrift Trust?

No, says the Dallas Court of Appeals. The court stated that under Texas law, spendthrift trusts are trusts with language prohibiting the voluntary or involuntary alienation of the beneficial interest. A spendthrift trust protects the beneficiary from his creditors by expressly forbidding alienation of the beneficiary’s interest in the trust. Where it appears from the terms of the instrument creating the trust that it was the donor’s or testator’s intention to create a trust estate immune from liability for the debts of the beneficiary and to prohibit its alienation by him during the term of the trust, a spendthrift trust is created, and the intentions of the donor or testator will be enforced by the courts of this State. Although beneficial interests in trusts are generally assignable, attempts to assign such interests are invalid when they are subject to a spendthrift provision in the trust. Based on the law of spendthrift trust, the trial court could not order the trustee to pay spousal support to the wife pending a divorce. The court noted that the trial court could order support for children from a spendthrift trust but that was based on a specific statutory provision. There was no similar statutory provision for spouses. 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,...

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Who Pays the Expenses of Your Probate if You Are Not Dead?

You are alive. Someone files a probate action in court saying that you are dead. When you show up alive, some expenses of the probate action have already accrued and some of your money has been spent. Who is responsible? You are says an Illinois Appellate Court. A man had no contact with his family and friends for more than seven years. His sister, his sole heir, filed a probate action asking that he be declared dead. The probate court ruled that the man was presumed dead. The main asset was a stock account worth about $500,000 that the man had apparently abandoned years before. During the probate, the man was located alive. The attorneys who were representing the sister in the estate asked the court to pay them out of the assets of the man who was not dead. The court did so and the court of appeals upheld that decision. The sister had also spent $100,000 of the funds and had no means to pay them back. The moral of this story is keep in touch with your relatives and friends are you may be charged for a probate action that you don’t need.  997 N.E.2d 913. 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...

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Can You be Sentenced to Prison if You Spend Money From a Joint Account?

Yes you can, says the Amarillo Court of Appeals in a 2013 case. The court noted that it is not often that civil and criminal precepts collide in a criminal prosecution but this one was one of those cases. A woman and her father-in-law opened a joint account. The money, about $200,000, belonged to the father-in-law. The woman took money out of the account and spent it for personal items. She claimed that she was a joint owner of the funds and had a right to withdraw them. The court, in upholding her sentence, said while under civil law she had the right to withdraw the funds that did not make them her funds. They still belonged to the father-in-law. When she spent the funds for personal items, she committed the crime of theft. 07-12-00435-CR. In probate matters, joint accounts with right of survivorship are frequently at issue. Let’s assume that the decedent has a will that leaves everything to her two children. She also has an account in a bank. One of the children convinces mom that she can assist in caring for mom’s financial interest. Through habit or at the instructions of the daughter, the bank fills out the forms to convert the account to a joint account with right of survivorship. When mom dies, the will controls the disposition of mom’s property except for accounts in...

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When is a Probate Matter Contested for Venue or Transfer Purposes?

Background In small counties in Texas, the county judge hears probate matters. The county judge is an administrative position similar to that of a mayor in a city. The judge does not have to be an attorney. Since most probate matters just involve filing the will for probate and having the judge admitting it to probate, a non judge can handle this administrative process. If the will, or any part of the probate, becomes contested the judge “may” on his own or “shall” on the motion of any party transfer the case to a court with a judge who is an attorney. If the county has a county court at law, the probate will be transferred there. If the county does not have a county court at law, the case will be transferred to a district court in the same county unless any party request a statutory probate judge be assigned to the case. In that event, the county court must transfer the case to a statutory probate judge. A statutory probate judge is a judge who only hears probate matters. Only the larger counties have statutory probate judges so a judge from a large city would be assigned to hear the small county contested probate matter even though the judge is not from that county. Facts In a 2013 case, a wife filed her husband’s will for probate...

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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