The will In a recent Texas inheritance dispute out of the Fort Worth Court of Appeals, In the Estate of Larry Ronald Neal, Deceased, No. 02-16-00381-CV, (Tex. App. –Fort Worth, Delivered: November 9, 2017), the question was what...Read More
How To Disinherit Someone prior to 1991 Before 1991, you could not disinherit your heirs in Texas by stating that in your will. The only way to make sure that an heir did not inherit from you was to give all of your property to...Read More
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...Read More
A will left a life estate (“during his natural life”) in property to an incompetent son then left the property (after the life estate ends) to son #2. This is what courts refer to as “the remainder.”...Read More
A Texas appeals court was asked that question when they had to interpret the following language in a Trust relating to the Trustees dealings with the Trust assets and the beneficiaries: “no principle or rule relating to...Read More
Yes they can. Look up Marilyn Monroe’s estate. She gave the largest part of her estate to her acting coach. She had become friends with him and his wife. She directed that “it being my desire that he distribute...Read More
Once the executor or administrator in a probate case is appointed, he must file an inventory of all of the property belonging to the estate. TPC 250. The inventory has to be filed within 90 days of his appointment. Once filed,...Read More
Ex-wife As Beneficiary In A Life Insurance Policy A husband and wife of 25 years filed for divorce. The husband agreed to pay alimony until 2001. He also agreed that he would obtain an insurance policy and name his ex-wife as...Read More
Prior to 1991 Before 1991, the question of do illegitimate children have inheritance rights was answered differently than it is today. In Texas illegitimate children could only inherit from their biological parents if the...Read More
LapseThe word for today is “lapse.” In Texas, if a Testator gives something to someone (the beneficiary) in his will, what happens if the beneficiary dies before the Testator? Or to say it differently, what happens if the heir predeceases the maker of the will?
DescendantsThe general rule is that if the beneficiary is a descendant of the Testator, i.e. his children or grandchildren, the gift goes to the beneficiary’s descendants. The same would be true if the beneficiary is a descendant of the Testator‘s parents.
Non-DescendantsIf the beneficiary is not a descendant of the Testator or of the Testator‘s parents, the gift lapses and goes to the person named as the residuary beneficiary. The residuary beneficiary is the person who the Testator names as the person who gets “all the rest and residue of my estate” or similar language. If there is no residuary clause in the will or the residuary beneficiary dies before the Testator and is not a descendant of the Testator or of the Testator‘s parents, the gift lapses and the Testator dies intestate as to the property that would be in the residuary estate. It would then go to the Testator‘s heirs at law.
ProblemsHowever, the anti-lapse statute, §251.151-§251.153 of the Texas Estates Code (formerly §68 of the Probate Code, provides) “(t)his Subchapter applies unless the testator’s last will and testament provides otherwise.” For example, a devise or bequest in the testator’s will such as “to my surviving children” or “to such of my children as shall survive me” prevents the application of Subsections 251.153 and 251.154 (formerly Section (a) of the Probate Code §68.) In 2011, a court held that the testator’s will provided otherwise when he defined his residuary estate as ” the term “residuary estate” means all property in which I may have any interest (including lapsed gifts)…” No. 01-10-00118-CV. The court ruled that because of this language, the gift did lapse and went into the residuary estate even though in the will, the testator provided that the gift originally went to the testator’s children who predeceased him but who had children surviving. Pearls of wisdom: A poorly drawn will may mean that your property goes to someone other than the person who you want to receive the property.
Texas RuleIf an attorney prepares a will can the will name him as a beneficiary? The quick answer is no, it can’t. Texas has a statute that says a devise or bequest of property in a will to an attorney or to an heir or employee of the attorney who prepares or supervises the preparation of the will is void. EC §254.003. In a recent case, an attorney prepares a will. He had a woman working in his office that was an independent contractor. She claimed that she was not an employee of the attorney. She was a paralegal but she just did occasional work for the attorney. She also did occasional work for other attorneys who shared office space with the attorney who drafted the will. The will made her a beneficiary and also appointed her as the executor of the will.
The Will ContestA sister of the testator contested the provisions of the will leaving part of the estate to the paralegal. The court agreed with the sister finding that the paralegal met the definition of employee under the statute and ordered the paralegal to return all of the property that she had received to the heirs of the testator. The court also ordered the paralegal to pay the attorney fees of the sister. The paralegal appealed claiming that the statute did not apply to her since she was not an employee. The appeals court disagreed and denied her appeal. Jones v Krown.
Note:A 2015 case out of Michigan indicates that Michigan law is different from Texas law. The Michigan case held that a will prepared by an attorney that left the attorney property was not necessarily void. The court held that under Michigan law, if the attorney could plead and prove that he did not unduly influence the testator, the will could be probated. The difference between Michigan and Texas is that a Texas statute declares the will void. There is no need to find that the attorney used undue influence. In Michigan, the rule is in their attorney’s Rules of Professional Conduct which are guidelines for attorneys’ conduct but don’t have the force of law like a statute. The attorney is presumed to have unduly influenced the testator but if the attorney can plead and prove that he did not exert undue influence, the will and the gift can be upheld. Florida has a similar rule, e.g. a gift to the attorney who prepares the will or his employees is not void but only voidable if undue influence can be shown.
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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