The word for today is “ademption.”  If a testator makes a will and leaves specific   property to someone and then later sells or otherwise disposes of the property, the law says that the gift is “adeemed.”  In other words, the person to whom it was given doesn’t get anything.

Ademption applies to specific gifts such as “I give my nephew my 10,000 shares of Exxon stock.”  If the testator sells the shares before he dies or if he gives them away, then the person to whom he gave them in the will gets nothing.  That’s assuming that the only thing the person was due under the will was the 10,000 shares of stock. 

Some of the legal issues surrounding the question of ademption are:

1. What if the testator sells the property but the proceeds from the sale can be easily traced?  Does the person to whom the property was given in the will get the proceeds?
2. What if the property changes form such as a gift of “my 10,000 shares of Mobil Oil” where Mobil Oil is taken over by Exxon before the testator’s death and the shares are now 5,000 shares of Exxon?
3. What if the testator becomes incapacitated and his guardian or someone who has a power of attorney disposes of the property?
4. What if the testator has 20,000 shares of Exxon and before he dies he gives you 10,000 shares?  Do you get anything under the will?  What if he gives you 10,000 shares and sends a letter saying that these shares are your part of his estate?

Contested Probate issues include much more than just will contest.  Many times there is no problem with the will but the way the will is administered by the Administrator or Executor is the issue.  If you are being deprived of your inheritance, please visit TheProbate.Net and let us help you.

The principal is the person who gives the power of attorney.  The agent or attorney-in-fact is the person to whom the power is given.  Once he has a power of attorney, can the attorney-in-fact create a trust for the principal?

In Texas, the answer is no, he cannot.  The law dealing with trust requires that, in order to create a trust, the person who creates the trust, the settlor, must have the requisite intent to create a trust.  A trust can be created “only if the settlor manifests an intention to create a trust.” 

The statute that defines the powers held by an attorney-in-fact provides that if the principal has created a trust prior to his giving a power of attorney, the agent is authorized to transfer the principal’s property to that trust.  The court’s have interpreted that section as denying the attorney-in-fact the right to create the trust, only to add to one already created.  However, if the principal has created a trust and then gives someone a power of attorney, the attorney-in-fact can take the principal’s money and property and put it into the trust that the principal created.

The short answer is no.  A power of attorney can grant a general power or a special power.  It can be a durable power of attorney or not.  You can also have a power of attorney solely for medical decisions.

What do all of these terms mean?  A power of attorney is granted by one person, the principal, to another person, the agent usually called the “attorney in fact.”  The attorney in fact has the powers to act on behalf of the principal and to do those things that the principal has granted him the power to do just as if the principal were doing them himself.

A general power of attorney grants the broadest powers.  An attorney in fact with a general power of attorney can do almost anything from selling the principal’s real estate to opening and closing bank accounts on behalf of the principal.

A special power of attorney is less broad and is restricted to the powers that are specifically mentioned in the special power of attorney.  An example would be granting someone the power to transfer title to an automobile or to cash a check from an insurance settlement.  The attorney in fact is not allowed to act on behalf of the principal except within the limits set out in the special power of attorney.

A power of attorney for medical purposes gives the attorney in fact the right to make medical decisions on behalf of the principal at a time when the principal is not capable of making them himself.

Any power of attorney can be made “durable.”  A power of attorney ends if the principal becomes incompetent.  A durable power of attorney will remain in effect even if the principal becomes incompetent.  From this discussion, you can see that the principal must be competent at the time he grants a power of attorney otherwise, the power of attorney is no good.

A power of attorney ends on the death of the principal whether the power of attorney is durable or not.

The attorney in fact must exercise his powers with the upmost care because he is a fiduciary and is potentially liable if he does not take good care of the principal’s property under his control.

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.