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It is important that you contact an attorney as soon as you suspect that there is a problem with an estate in which you have an interest.  Even if you don’t have a current interest but only a future interest it is necessary to contact an attorney now. If you wait, the estate may be dissipated and nothing will be left for you or your children.

Our consultation is free. Call us now so that we can help you before it is too late.  You can contact us –> here.

Estate property is liable for debts and expenses of administration.  How are these paid?  Do all of the beneficiaries share this burden equally?

Texas, like most states, specifies a way that the property abates.  The Executor or Administrator is to follow these guidelines:

1. If the testator has specified a particular way that the Executor or Administrator is to pay these expenses, that intent must be followed.  If the testator did not specify how to pay these expenses, the following property will be used in the following order;
2. Property not disposed of by the will.  If that is not sufficient to pay the expenses, then;
3. Personal property of the residuary estate.  The residuary estate is the catch-all bequest in a will such as “All the rest and residue of my personal property, I leave to my wife.”  Then;
4. Real property of the residuary estate. Then;
5. General bequests of personal property.  “I give my son 100 Shares of Exxon.”  Then;
6. General devises of real property.  “I give my daughter one of my houses in Houston.”  Then;
7. Specific bequests of personal property.  “I give my son my 100 share of Exxon.” This is similar to #5 but notice the difference.  Then, lastly;
8. Specific devises of real property.  “I give my daughter my house at 124 Main Street, in Houston.”  This is similar to #6 but notice the difference.

Some of the legal issues that arise from abatement involve the Executor or Administrator making choices that do not follow the statute.  The Executor or Administrator may reduce everybody’s share on a percentage basis rather than following the statutory formula.  He might also use one person’s share to pay all of the expenses even though someone else’s property should have been used first.

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.

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.

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.

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.

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.

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!

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.