Posts Tagged probate litigation
Can a bank foreclose if the borrower dies?
Posted by David Leon in Estate planning and probate, Foreclosure on 20/07/2010
Yes, eventually. If the borrower dies before a bank has followed the rules for a non-judicial foreclosure, then the bank either has to notify the personal representative of the estate (if there is one), open a dependent administration (if there is no pending administration), or proceed against the heirs (depending on the type of loan.)
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How do I obtain letters testamentary in Texas?
Posted by David Leon in Estate planning and probate on 13/06/2010
In order to obtain letters testamentary in Texas, one needs to go to the appropriate court. (Many counties in Texas have statutory probate courts.) You will need to have an application prepared, and the original will. You will also need live testimony in court to prove that the will being presented is the last will of the deceased, and that the person is dead. You will also need to prove that less than four years have elapsed since the date of death.
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I just sold a property that had a lien on it. The lienholder demanded the money from the sale. How long do I have to pay the lienholder?
Posted by David Leon in Business law, Contract law, Real Estate Law on 07/05/2010
As an ideal matter, a lienholder should be paid at closing. Texas penal code sec. 32.33(e) provides: a person is presumed to have intended to appropriate proceeds if the person does not deliver the proceeds to the secured party or account to the secured party for the proceeds before the 11th day after the day that the secured party makes a lawful demand for the proceeds or account.
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I am listed in a will of a person that died. The person who has the will won’t probate it. What can I do?
Posted by David Leon in Estate planning and probate on 21/04/2010
Assuming the person who wrote the will is deceased, and the person who has possession of the original will is refusing to deliver it to the court You can file an action in probate court to “show cause” under Sec. 75 of the Texas Probate Code. Under this section, a person who has possession of a will has to appear in court and explain why the will has not been delivered to the court as of yet. If the person refuses, the court can hold the person in possession of the will in contempt of court.
Sec. 75 provides:
Sec. 75. DUTY AND LIABILITY OF CUSTODIAN OF WILL. Upon receiving notice of the death of a testator, the person having custody of the testator’s will shall deliver it to the clerk of the court which has jurisdiction of the estate. On sworn written complaint that any person has the last will of any testator, or any papers belonging to the estate of a testator or intestate, the county judge shall cause said person to be cited by personal service to appear before him and show cause why he should not deliver such will to the court for probate, or why he should not deliver such papers to the executor or administrator. Upon the return of such citation served, unless delivery is made or good cause shown, if satisfied that such person had such will or papers at the time of filing the complaint, such judge may cause him to be arrested and imprisoned until he shall so deliver them. Any person refusing to deliver such will or papers shall also be liable to any person aggrieved for all damages sustained as a result of such refusal, which damages may be recovered in any court of competent jurisdiction.
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Is it possible to prove a common law marriage after death?
Posted by David Leon in Estate planning and probate, Insurance Law on 25/12/2009
Yes. However, the burden of proof shifts after the second anniversary of the death of the purported spouse. If successfully proven, the date of the inception of the common law marriage may be determined by the court.
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How will I know if an insurance company has accepted or rejected my claim?
Posted by David Leon in Insurance Law, Personal injury, auto accident, slip and fall law on 20/09/2009
An insurance company generally has fifteen days to accept or reject a claim, or ask for more information. If there is a reasonable suspicion of arson, then the time extends to 30 days. If a claim is rejected, the insurance company is obliged to tell the claimant the reasons why.
The controlling statute is Texas Insurance Code Sec. 542.056. NOTICE OF ACCEPTANCE OR REJECTION OF CLAIM. (a) Except as provided by Subsection (b) or (d), an insurer shall notify a claimant in writing of the acceptance or rejection of a claim not later than the 15th business day after the date the insurer receives all items, statements, and forms required by the insurer to secure final proof of loss.
(b) If an insurer has a reasonable basis to believe that a loss resulted from arson, the insurer shall notify the claimant in writing of the acceptance or rejection of the claim not later than the 30th day after the date the insurer receives all items, statements, and forms required by the insurer.
(c) If the insurer rejects the claim, the notice required by Subsection (a) or (b) must state the reasons for the rejection.
(d) If the insurer is unable to accept or reject the claim within the period specified by Subsection (a) or (b), the insurer, within that same period, shall notify the claimant of the reasons that the insurer needs additional time. The insurer shall accept or reject the claim not later than the 45th day after the date the insurer notifies a claimant under this subsection.
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How does one qualify to be an administrator or executor of an estate?
Posted by David Leon in Estate planning and probate on 09/08/2009
If someone is appointed as an executor in a will, or someone applies to be an administrator of an estate, the person cannot be “disqualified” under Sec. 78 of the Texas Probate Code. This section specifically prohibits the following people from administering an estate:
(a) An incapacitated person;
(b) A convicted felon, under the laws either of the United States or of any state or territory of the United States, or of the District of Columbia, unless such person has been duly pardoned, or his civil rights restored, in accordance with law;
(c) A non-resident (natural person or corporation) of this State who has not appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate, and caused such appointment to be filed with the court;
(d) A corporation not authorized to act as a fiduciary in this State;
or
(e) A person whom the court finds unsuitable.
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How is it decided who will administer an estate?
Posted by David Leon in Estate planning and probate on 09/08/2009
Sec. 77 of the Texas Probate Code handles the order of persons who can administer an estate of a deceased person.
The code provides (in order):
(a) To the person named as executor in the will of the deceased (assuming the person is available, and qualified to serve.)
(b) To the surviving spouse.
(c) To the principal beneficiary under the will, or the person who is to receive the majority of estate assets under the will.
(d) To any devisee or legatee of the testator.
(e) To the next of kin of the deceased, the nearest in order of descent first, and so on, and next of kin includes a person and his descendants who legally adopted the deceased or who have been legally adopted by the deceased.
(f) To a creditor of the deceased.
(g) To any person of good character residing in the county who applies therefor.
(h) To any other person not disqualified under the following Section.
If more than one person qualifies, the court has discretion in choosing an administrator.
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Someone I know died having written a will. I know who has the will, but s/he refuses to file it for probate.
Posted by David Leon in Estate planning and probate on 09/08/2009
Unfortunately, this is not uncommon. If you have possession of a deceased person’s will, you have a duty to either file the will for probate (assuming you have standing or capacity to do so) or you should deliver the will to the clerk of the court.
If you fail to do so, a person may file an action in the appropriate county’s probate court and compel you to appear before a judge and explain why the will was not delivered to the county clerk in accordance with Sec. 75 of the Probate Code. If the custodian of the will fails to deliver the will to court, the court may find the person in contempt of court. A judge may find that any person refusing to deliver such will to be liable to any person aggrieved for all damages sustained as a result of such refusal.
For example, let’s suppose Jose dies after making a will, leaving his house to Anna. Jesse has Jose’s will, but refuses to deliver it to the county clerk. Anna misses an opportunity to sell Jose’s house because of Jesse’s refusal to deliver the will. Anna may have a cause of action against Jesse for his wrongful refusal to deliver the will to the court.
(See: Sec. 75 of the Texas Probate Code)
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Who can bring a lawsuit for wrongful death?
Posted by David Leon in Estate planning and probate, Litigation and judgments, Personal injury, auto accident, slip and fall law on 05/07/2009
Wrongful death causes of action are controlled by Chapter 71 of the Texas Civil Practice and Remedies Code (CPRC).
Per Sec. 71.004, the surviving spouse, children, and parents of the deceased are the only ones who can bring an action for wrongful death.
If none of the individuals entitled to bring an action have begun the action within three calendar months after the death, then the personal representative of the estate shall bring and prosecute the action unless requested not to by all those individuals.
In most cases, it is advisable to have the wrongful death beneficiaries and the beneficiaries of the estate sign a family settlement agreement prior to taking any action.
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A credit card company has put my account into collections. Can they sue me wihtout my knowing it?
Posted by David Leon in Consumer & Credit, Litigation and judgments on 30/06/2009
Not exactly. If you are sued, then by law you have to be given notice. You have the right to tell your side of the story, either to a judge or a jury. Credit card companies win many cases against individuals simply because the individuals fail to protect themselves. However, if you avoid service, the credit card company may be able to notify you by leaving a copy of the notice on your door.
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What is a fiduciary duty?
Posted by David Leon in Business law, Estate planning and probate, Insurance Law, Litigation and judgments on 28/06/2009
A fiduciary duty is the highest standard of care one can owe to another. The fiduciary relationship is one of trust and confidence. The person or institution who owes the fiduciary duty must put the person’s interests above his or her own interests. Common examples of fiduciary duty include power of attorney holders, executors in wills, and trustees of trusts.
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Where can I find a list of exempt personal property?
Posted by David Leon in Estate planning and probate, Litigation and judgments on 28/06/2009
Section 42.002 of the Texas Property Code has a list of exempt personal property. Please note that this list is subject to conditions. The property’s status as exempt does not preclude attachment if the property is secured by a lien. For example, a person purchasing a car on credit can still have the car repossessed by the credit grantor. Sec. 42.0021 also provides protections for individual retirement accounts (IRA) and certain savings accounts.
Section 42.002 provides the following list of personal exempt property:
The following personal property is exempt under Section 42.001(a):
(1) home furnishings, including family heirlooms;
(2) provisions for consumption;
(3) farming or ranching vehicles and implements;
(4) tools, equipment, books, and apparatus, including boats and motor vehicles used in a trade or profession;
(5) wearing apparel;
(6) jewelry not to exceed 25 percent of the aggregate limitations prescribed by Section 42.001(a);
(7) two firearms;
(8) athletic and sporting equipment, including bicycles;
(9) a two-wheeled, three-wheeled, or four-wheeled motor vehicle for each member of a family or single adult who holds a driver’s license or who does not hold a driver’s license but who relies on another person to operate the vehicle for the benefit of the nonlicensed person;
(10) the following animals and forage on hand for their consumption:
(A) two horses, mules, or donkeys and a saddle, blanket, and bridle for each;
(B) 12 head of cattle;
(C) 60 head of other types of livestock; and
(D) 120 fowl; and
(11) household pets.
(b) Personal property, unless precluded from being encumbered by other law, may be encumbered by a security interest under Subchapter B, Chapter 9, Business & Commerce Code, or Subchapter F, Chapter 501, Transportation Code, or by a lien fixed by other law, and the security interest or lien may not be avoided on the ground that the property is exempt under this chapter.
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How do I know if the life insurance policy is community property or separate property?
Posted by David Leon in Estate planning and probate, Insurance Law on 01/03/2009
If the initial premium was paid out of community funds, the life insurance policy may be a community asset. This means that one half of the policy “belongs” to the surviving spouse. If a third person is named beneficiary of a community owned life insurance policy, and the surviving spouse did not sign a waiver, then the surviving spouse may challenge the beneficiary designation. If naming the other person is found to be a fraud on the surviving spouse, the spouse may be awarded a share of the death benefits and the named beneficiary will be entitled to receive the remainder. If you have an insurance issue that you would like to discuss, please contact us.
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I think someone is abusing a power of attorney. How would I override the power of attorney?
Posted by David Leon in Estate planning and probate, Litigation and judgments on 28/02/2009
A power of attorney grantor can grant broad powers under the power of attorney document to a power holder. The power holder owes a fiduciary duty to the power grantor. This means that the power holder must put the interests of the power grantor above his or her own interests. If a power holder is acting beyond the scope of the powers granted by the document, or the power holder is abusing the power, then the power grantor (or the power grantor’s representative) can hold the power holder accountable. If you have an issue such as this that you would like to discuss, please contact us.
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Can an estate sue someone in Texas?
Posted by David Leon in Estate planning and probate, Litigation and judgments on 15/02/2009
No. In Texas, an estate is not a legal entity. Therefore, it cannot sue or be sued. A court will need to appoint a personal representative of an estate, acting in his or capacity.
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I need to pursue a claim on behalf of a deceased family member. I’ve been told I need to go through probate. What is that?
Posted by David Leon in Estate planning and probate, Litigation and judgments, Personal injury, auto accident, slip and fall law on 15/02/2009
Probate is the process by which you prove that a person is deceased and who should be entitled to the deceased person’s property (including ownership of a lawsuit for injuries sustained prior to death.) The deceased is commonly referred to as the “Decedent” and the property of the Decedent is called the “Estate.” If the Decedent had a will, then the will needs to be taken to probate court where a judge will rule on the will’s validity (called a “prove up”). During this process, the judge will appoint (typically per the terms of the will) a representative of the Decedent’s estate. This person is called an “executor” of the estate. Contact us for more information.
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The life insurance company has already paid the proceeds of the life insurance policy to the listed beneficiary. I am the surviving spouse and I wasn’t listed as a beneficiary. Is there anything I can do?
Posted by David Leon in Insurance Law on 15/02/2009
Possibly. If the life insurance company paid proceeds while ignoring the rights of the spouse, then the insurance company may be liable to the surviving spouse
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I was a common law spouse when my spouse purchased a life insurance policy. I wasn’t listed as a beneficiary. Is there anything I can do?
Posted by David Leon in Estate planning and probate, Family Law, Insurance Law on 15/02/2009
Possibly. If you meet the statutory requirements for being a common law marriage at the time the policy was purchased, and community funds were used to purchase the policy, then the policy may be considered community property. The surviving spouse would be considered a one-half owner. These tend to be fact specific matters. Please contact us if you would like to discuss this further.
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Are insurance policies generally characterized as separate or community in Texas?
Posted by David Leon in Estate planning and probate, Family Law, Insurance Law on 15/02/2009
Texas follows “inception of title” when classifying life insurance proceeds. This means that ownership of the policy is established by the source of funds for the first premium. If that premium was paid prior to the marriage or with separate property, then the policy may be considered separate property. This is a highly technical area of law, and matters are case-specific. Please contact us if you would like to discuss a matter further.
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My husband / wife died and designated someone else as the beneficiary of the life insurance policy? What can I do?
Posted by David Leon in Estate planning and probate, Family Law, Insurance Law, Litigation and judgments on 15/02/2009
In Texas, a life insurance policy that is purchased after a person is married, and community funds were used to pay for it, then the surviving spouse may have an ownership interest in the policy. However, a spouse way waive rights to the policy by signing a waiver. If your spouse had designated another as the beneficiary of a life insurance policy without your consent, or if you have questions, please contact us at 214-696-0021
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What are wrongful death and survivor suits?
Posted by David Leon in Estate planning and probate, Litigation and judgments, Personal injury, auto accident, slip and fall law on 15/02/2009
If someone dies due to the act or omission of another, then there may be a cause of action by the heirs of the deceased for Wrongful Death. If the deceased suffered personal injury prior to death, then the deceased’s estate may have a cause of action called a survival claim. We can assist with either the prosecution of these matters. Some of the services include ancillary probate, appointment of personal representatives, appointment of an independent administrator of an estate, determination of heirs and determination of common law marriage. This also includes obtaining letters testamentary or letters of administration of an estate. Contact us if you have a situation that you would like to discuss in detail.
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What is fiduciary litigation?
Posted by David Leon in Estate planning and probate, Litigation and judgments on 15/02/2009
A fiduciary is someone who owes the highest duty of care to another person. In this type of litigation a fiduciary may be the person in charge of a retirment plan, a person who has been appointed power of attorney, guardian, administrator or executor of a ward or an estate. If this person puts his or her interest above those to whom s/he owes the fiduciary duty, then such conduct is actionable. For example, suppose John holds a power of attorney document to conduct the affairs of Steve. John uses the power of attorney for his own benefit. Steve has a cause of action against John for breach of fiduciary duty.
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What are the different types of courts?
Posted by David Leon in Litigation and judgments on 15/02/2009
Small claims and JP courts are typically used for disputes involving less than $10,000. Small Claims courts are limtied to actions for damages. Justice of the Peace courts can hear small claims actions, eviction cases and other matters. For larger disputes involving Texas parties and questions of Texas law, county courts at law or district courts are the most common forum to file a lawsuit. Family courts hear matters involving domestic relations, custody, adoptions and the like. If a case involves the estate of a deceased person, or an incapacitated person, then the probate court is an appropriate forum. For disputes involving questions of United States law (i.e. a federal questions), or for certain large scale disputes involving parties that are not Texan, federal courts are a common forum. Appeals courts hear appeals from the lower courts in thier jurisdiction. In most Texas counties, criminal courts are typically separate.
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Does Texas law recognize a “common law” or informal marriage?
Posted by David Leon in Estate planning and probate, Family Law, Insurance Law on 15/02/2009
Yes. Texas law recognizes informal marriages. This issue most often after the death of one spouse, where the surviving spouse is attempting to prosecute a claim or where a surviving spouse is seeking a death related benefit from the deceased spouse.
The elements of a common law marriage are that a couple (1) agreed to be married, (2) lived together as husband and wife, (3) represented to others that they were husband and wife, (4) were more than 18 years old and (5) neither party was already married.
If a person is attempting to prove the existence of an informal marriage, then that person should do so within two years of the date the marriage ended (by either abandonment or death), as the burden of proof will shift.
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The original will was destroyed by a disgruntled heir. Can I probate a copy of the will?
Posted by David Leon in Estate planning and probate on 01/02/2009
Possibly. Texas law will assume that if an original will cannot be located, then the testator (the person who wrote the will) has destroyed or revoked it. However, a court may hear evidence that the will was destroyed or hidden by an heir. If the court finds that an heir destroyed the will, and you can prove what the original will contained, the court may (in its discretion) allow you to probate a copy of the will.
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In re Estate of Wilson — Lost Will
Posted by David Leon in Estate planning and probate on 24/08/2008
In re Estate of Wilson, 252 S.W.3d 708 (Tex. App.-Texarkana 2008, no pet.h.).WILLS — Lost WillAfter Husband died, Wife was successful in probating Husband’s will eventhough she could not locate the original will. Son (Wife’s step-son)contested the probate of the will claiming that the evidence was legallyinsufficient to rebut the presumption of revocation that arises when theoriginal will cannot be located.The appellate court agreed with Son. The court began its analysis byrecognizing that when a will was last known to be in the testator’spossession and cannot be located after death, a presumption of revocationarises which can be rebutted by a preponderance of the evidence. The courtalso explained that “the testator’s continued affection for the chiefbeneficiary [of the will], without evidence tending to show the decedent’sdissatisfaction with the will or any desire to cancel or change the will, issufficient to rebut the presumption of revocation of a missing will.”Wilson at 713.The court then examined the record and found it lacking of any directevidence of why the original will could not be located. Wife’s merestatement that as far as she knew and believed, Husband had not revoked thewill is not evidence of the asserted facts. In addition, there was noevidence of Husband’s continued affection for Wife or that Husband hadcontinued to recognize the will’s validity. Accordingly, the court heldthat the evidence was legally insufficient to rebut the revocationpresumption and remanded the case to the trial court.Note: This case also involved several procedural issues such as therequirements of a restricted appeal, when evidence is considered legallyinsufficient, and proper extent of a remedy (render or remand).Moral: Original wills need to be protected so that they are available atthe time of probate and are not inadvertently lost, destroyed, or located bydisgruntled heirs.For summaries of other recent Texas cases, please follow this link:http://www.professorbeyer.com/Case_Summaries/Texas_Case_Summaries.htm.Posted with permission of the author:Gerry W. BeyerGovernor Preston E. Smith Regents Professor of LawTexas Tech University School of Law
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The Leon Law Firm Dallas, Texas & NY, NY Business Lawyers (214) 696-0021
This is the Dallas, Texas law firm of David L. Leon, P.C.
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