TheProbate.Net Blog

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 proof in a will contest case is not determinative of the case, it is helpful for the other side to have that burden.

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 meaningless.

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 prepackaged trust are created while you are alive.

In Texas, we have homestead laws. That means that your homestead can’t be seized to pay your debts except for limited exceptions. If you deed your homestead to the trust, you loose the homestead exemption unless the trust is set up properly.

Trusts are not a good idea if all you are trying to do is avoid probate. You will end up spending more money creating and managing a trust than you ever will by having an attorney draw up a simple will that will glide through the probate process without any difficulties. So stop worrying and love probate!

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.

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 he never changed his Will.
Both his ex-wife and her daughter, Nash’s step-daughter, survived him. A relative filed for probate seeking all of Nash’s property for Nash’s other heirs at law saying that the provisions in the will giving everything to his ex-wife and his ex-step-daughter were no longer valid. Since the will made no other provisions for the property, the relatives said that the property went to Nash’s heirs at law (nieces and nephews, etc.).
The ex-step-daughter said that the property belonged to her arguing that Texas law treats the divorced wife as having predeceased Nash therefore the provision that if his wife predeceased him everything would go to the step-daughter came into effect.

The Court ruled against the ex-step-daughter and in favor of the relative, holding that since the ex-step-daughter only took under the contingency that her mother predeceased Nash, the ex-step-daughter did not inherit because her mother was still alive. This is true even though the Texas statute treats the mother as having predeceased Nash.

Nash may have had a good relationship with his ex-wife and/or with his ex-step-daughter (the Court doesn’t say) but even if he didn’t change his will because he thought it would all go to them, he was mistaken. And what would have happened if didn’t want his ex-wife or his ex-step-daughter to get anything and his ex-wife would have died before him? Would his ex-step-daughter inherited then? The moral of this case is that you need to redo your will after a divorce or the courts may decide who gets your property.

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 law. So how does the public know to whom his property passes? By probate! Probate in its basic form is just the means to notify the public who gets legal title to the property of the person who has died. It is the official notification, so to speak.

One of probate’s functions is to insure that there are not breaks in title to property. If a title examiner is researching the title to a piece of property and the deed records show that the property was in the name of the decedent but that someone else (his wife or children) are trying to sell it, his first question will be, ‘why isn’t the title holder signing the deed’ because he doesn’t know that the title holder is dead and he just sees a break in the title. Even though the (wife or children) tell the examiner that the property is theirs, the examiner needs some legal papers to show ownership. Probate cures that problem and shows that legal title has passed from the decedent to (his wife or children) through the probate proceeding and the title examiner will be able to approve the title.

In the next part of “How I learned to stop worrying and love probate,” I’ll discuss the problems that can arise when someone uses these preprinted trust forms with out the assistance of a lawyer.

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 would retain his/her half but the other half would not be owned by him/her. The same thing would happen to your other property. Because of this, you need to have a will so that you and not the state can determine who gets your property. Simple wills are inexpensive and everyone should have one.

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