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Escheat

A recent visitor related how she was entitled to some property that was owned by a deceased relative but the bank wouldn’t give it to her without a Court Order.  She went on to say that she couldn’t afford an attorney and that the amount of money involved was so small that it was not worth it to borrow the money to hire a lawyer.  She was, of course, mad at lawyers and the Court system.

The person that she should have been mad at is the relative who did not make provisions before she died so that her assets would go to those entitled to it without Read the rest of this entry »

Texas law provides that 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.  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.  A recent 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 his step-daughter. Nash and his wife later divorced, but Read the rest of this entry »

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 Read the rest of this entry »

A pretermitted child is a child who is born or adopted after a will is made and is not otherwise 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.

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 Read the rest of this entry »

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 Read the rest of this entry »

The burden of proof in a will contest varies based on the time that the will contest is filed.  Generally, if a will contest is filed before the Judge admits the will to probate, the person who filed the will for probate (the proponent) will have the burden of proof.  If the will contest is filed after the will is admitted to probate by the Judge, the person opposing the will (the opponent) will have the burden of proof.

It is helpful to have your adversary shoulder the burden of proof.  Therefore, if you are going to contest a will, you should contact an attorney as soon as possible.  While having or not having the burden of Read the rest of this entry »

The short answer is yes.  If you don’t have a will, your estate will go to your heirs as determined by statute.  That may be what you want but what if you are married and have children from a prior marriage.  If you die without a will, your property, including your home, will go to your heirs, not you spouse!  Texas has community property.  That means that what ever was acquired during marriage is half yours and half your spouse’s.  If your home was community property, your half would go to your heirs, not your spouse!  He/She Read the rest of this entry »

Many people other than lawyers are reading and analyzing court decisions. Occasionally, you see people not quite getting the hang of reading opinions or misinterpreting elements of cases.    Orin Kerr has written a very helpful guide (PDF) called “How to Read a Judicial Opinion: A Guide for New Law Students.” It’s an 8-page mini-manual that will be useful to many people, not just law students.Lawyer or non-lawyer, this guide will help anyone who wants to sift through the sometimes opaque and arcane world of judicial decisions.

In San Antonio in 2006, I spoke at and attended the State Bar of Texas Advanced Personal Injury Law Course.  The subject of my talk was Managing Your Personal Injury Practice with Legal Technology. The CLE was held at the Hyatt Regency Hill Country Resort.  This was my first visit to the Resort where many CLE courses are held. It is a great place to spend time, especially if you have young children.