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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.

Tag Archives: Beneficiary

What happens if a beneficiary dies before the Testator?

What happens if a beneficiary dies before the Testator?

Lapse

The 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?

Descendants

The 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-Descendants

If 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.

Problems

However, 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.
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Will Void If Attorney Prepares A Will And Is Beneficiary

Texas will is void if attorney is named beneficiary

Texas Rule

If 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 Contest

A 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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Can A Beneficiary Attest A Will?

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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.


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