*AV Preeminent and BV Distinguished are certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedures, standards and policies.
Martindale-Hubbell is the facilitator of a peer review rating process. Ratings reflect the confidential opinions of members of the bar and the judiciary. Martindale-Hubbell ratings fall into two categories: legal ability and general ethical standards.
What is a trial court?
A trial court is the court with jurisdiction to hear the evidence and crux of a dispute to make a decision and ruling within the law on disputed facts or issues.
What is an appellate court?
An appellate court is an intermediate court that hears appeals of trial court rulings and decisions for error, i.e., to determine whether the trial court made the right decision within the law. An appellate court hears all matters properly submitted to it from an trial court.
What is the highest court in Texas?
The highest court, which is a civil appellate court, is the Texas Supreme Court. The Texas Supreme Court hears matters it decides to hear within its discretion meaning, it does not hear every case presented to it. In fact, it hears a small percentage of cases presented to it. It uses its discretion to decide matters that are not settled within the state among appellate courts or that have an important purpose in Texas jurisprudence.
What is an appeal?
An appeal is an action in the appellate court to have a decision of a lower court a trial court reviewed for error.
What is the goal of an appeal?
The goal of an appeal is to have an appellate court decide that error has occurred, i.e., that the trial court has made a mistake in one or more of its decisions, and to get that or those erroneous decisions reversed.
What does it mean to have a trial court decision reversed?
The appellate court tells the trial court it is wrong and that it must change decide the matter a different way or it must hear further evidence to determine an issue.
What is an appellate court doing when it remands a case?
When an appellate court remands a case, it is sending it back to the trial court for further evidence or decision, based upon it’s reversal of a prior trial court decision.
What is an appellate court doing when it renders a decision?
When an appellate court renders a decision, based upon its reversal of a prior trial court decision, it is finally deciding the issue and the trial court does not get a second chance to make a determination or hear evidence.
Fiduciary & Fiduciary Litigation
Advising Fiduciaries re: administrations and fiduciary obligations
What is a fiduciary?
A fiduciary is a person/agent entrusted to act in the best interest of and protect the property of his/her/its principal.
How is a fiduciary relationship established?
A fiduciary relationship can be established formally and informally.
What is a formal fiduciary relationship?
A formal fiduciary relationship is established by formal legal relationships, such as, attorneyclient, doctorpatient, executorbeneficiary, trustbeneficiary, attorneyinfactprincipal.
What is an informal fiduciary relationship?
An informal fiduciary relationship is created by a relationship of reliance where the principal is in a position of weakness, is infirm or is in need of assistance and must rely upon his or her agent to act in her best interest.
What are fiduciary duties?
Fiduciary duties are the requirements and obligations of a fiduciary when acting on behalf of his/her/its principal and can, really, be anything that a fiduciary is supposed to do or should do to protect the principal, beneficiary or ward. Fiduciary duties include, but are not limited to, the duty of disclosure, the duty to account, the duty of good faith and fair dealing, the duty to avoid hostility, the duty to avoid bias, the duty to avoid selfdealing and the duty to always act in the best interests of the principal, beneficiary or ward.
If my fiduciary breaches a fiduciary duty, can I sue my fiduciary?
What can I sue my fiduciary for?
A principal, beneficiary or ward can sue his or her fiduciary for violating or breaching their fiduciary duties, can seek an accounting, can seek their removal.
Can I sue my fiduciary for an accounting?
Can I sue my fiduciary to require a distribution?
Yes, if distributions are not large enough or are not being made pursuant to the requirements of the Trust or if there is an unreasonable delay in a required distribution.
Suits against Executors, Administrators, Trustees or Guardians
What does a lawsuit against an Executor, Administrator, Trustee or Guardian entail?
A lawsuit against a fiduciary involves that fiduciary’s principal complaining about the acts of the fiduciary or inaction that harms the Estate or Trust or Guardianship Estate.
Do I need to hire an attorney to sue my fiduciary?
No, but it is highly recommended. These cases get very complicated very fast and involve, in some instances, the shifting of the burden of proof. If you do not know what the latter is or means, then you need an attorney. In addition, fiduciary duties are complicated and difficult to understand difficult to understand whether they have been violated so it is very important to hire an attorney for these types of cases.
Should I hire an estate and trust litigation attorney, if I want to sue my fiduciary?
It is not required, but it is highly recommended. Hiring an attorney that does not practice in the estate and trust area of the law would be like hiring a brain surgeon to operate on your heart. Both are doctors, but with different focus areas. The same is true in the law and the question is simple: Would you rather have someone that eats, breaths and sleeps estate and trust litigation or an attorney that practices in some other area of the law representing you in an estate litigation case?
As a fiduciary, do I need an attorney to represent me in Court, if I get sued?
Yes. The lawsuits get very complicated and hiring an attorney is a must; it is also legally required. As a fiduciary, you are acting in a representative capacity, i.e., a capacity other than yourself, and to represent someone other than yourself in Court requires you to be an attorney or to hire one. If you appear in Court representing “yourself” in a representative capacity, it is considered the unauthorized practice of law.
Guardianships & Guardianship Contests
Guardianships and Guardians
What is a guardianship?
A guardianship is a court proceeding to appoint a personal representative for a ward, which is a person who is totally or substantially unable to care for himself/herself and/or their property/finances.
What is the difference between a guardianship and a mental illness/commitment case?
A guardianship is the process of a duly qualified individual, either temporarily or permanently, taking over the rights of an incapacitated person in order to care for them or their property. A mental illness or mental commitment case is the process of a court finding that someone is a danger to himself or herself or others to the point that they need to be taken into custody and placed in a mental illness hospital or facility for short term evaluation and treatment. A mental commitment is temporary, typically, lasting up to 48 hours absent additional orders from the Court that the commitment should be longer because the condition that caused the person to be a danger has not resolved. The purposes and processes of a guardianship and a mental commitment are completely different.
What is a Ward?
A ward is a person, who is the subject of a guardianship
Who may file a guardianship?
Anyone can file for guardianship over a person thought to be incapacitated.
Who may be heard in relation to a guardianship?
An “interested person” has a right to file pleadings and be heard in any guardianship matter.
Who/What is an “interested person” in a guardianship matter?
An “interested person” in a guardianship matter as defined in Section 601(15) of the Texas Probate Code means: “an heir, devisee, spouse, creditor, or any other person having a property right in, or claim against, the estate being administered or a person interested in the welfare of an incapacitated person, including a minor.”
Is a doctor’s letter required to obtain a guardianship?
Yes, a doctor’s letter must be filed simultaneously with the application for guardianship or as soon as practicable after its filing and, certainly, before any hearing on the guardianship matter.
What is the purpose of the doctor’s letter?
A doctor’s letter is required to provide the court with evidence that the proposed ward has some incapacity or is totally incapacitated.
Is the Ward notified of the guardianship proceeding?
Yes, a court cannot acquire jurisdiction over a guardianship until the proposed ward is personally served with the application.
What if the proposed ward is at risk of being harmed or his/her property is at risk of being taken, harmed or destroyed?
In the event of an emergency, the law allows a court to order a temporary guardianship of the person, of the estate or both.
Does anyone else receive actual notice of the guardianship?
Certain other interested persons receive notice by certified mail, return receipt requested, but not necessarily personal service.
What other notice is given in a guardianship?
Other than the personal service stated above, the only other notice (due process) in a guardianship is that a citation is posted on the courthouse bulletin board called “Posted Notice”.
How long does a court have to wait to hear a guardianship?
A guardianship cannot be heard is not “ripe” until the Monday following the expiration of ten (10) days from the date the notice is posted.
Will the ward be represented by an attorney in the guardianship proceeding?
Yes, the court is dutybound to appoint an attorney ad litem for the ward as soon as possible after the guardianship is filed.
Is a hearing held before a guardianship is ordered?
Yes, once service is completed and all parties are “ready”, a hearing is set and held to determine if a ward is incapacitated and, if so, who should be appointed to serve as guardian of his/her person and, if needed, guardian of his estate.
Where is a guardianship filed?
A guardianship is usually filed in the county where the proposed ward resides, but can also be filed in the county where the proposed ward is located at the time the application is filed or the county where a substantial part of the proposed ward’s property is located.
How is a temporary guardianship different from a permanent guardianship?
Everything that happens in a permanent guardianship, happens in a temporary guardianship, except that a temporary guardianship can be heard immediately and all of the procedure of a permanent guardianship is condensed into a day or two so all of the procedures are streamlined and it is temporary, i.e., it can last no longer than sixty (60) days unless the guardianship is contested.
Are there any presumptions in a guardianship?
Everyone, including the proposed ward, is presumed to have their capacity until he or she is proven to lack capacity.
Who else is personally served in a guardianship?
Personal service is required on the spouse of a proposed ward in the guardianship of an adult and on the parents in a guardianship of a child.
If a court determines a guardianship is necessary, what test does the court use in determining who should be guardian?
A court must make decisions that are in the best interest of the ward.
Mediation v. Arbitration
What is Alternative Dispute Resolution or “ADR”?
ADR is series of methods utilized to resolve disputes outside of the court system. These methods can be used in court cases, but also within families, churches, communities and the like without involving the court system.
What are some types of Alternative Dispute Resolution methods?
Some Alternative Dispute Methods are: mediation, arbitration, direct negotiation, conciliation, collaborative negotiation or a combination of any of them.
What is a mediation?
A mediation is a process where all of the Parties come together to discuss their case with a independent third party person (the mediator), who will then work with each side arguing for or against their position to make everyone see the realities of their case in an effort to facilitate a settlement of some or all of the issues.
What is the difference between a mediation and an arbitration?
Both a mediation and an arbitration are alternative dispute resolution (ADR) methods. A mediation is a process where all of the Parties come together to discuss their case with a independent third party person (the mediator), who will then work with each side arguing for or against their position to make everyone see the realities of their case in an effort to facilitate a settlement of some or all of the issues. Mediation is not binding, meaning, neither the mediator, nor anyone associated with the mediation process, can make a party settle their case. Settlement, if one is reached, is done solely and completely upon the desire of the Parties to end their dispute and the negotiation of a settlement that resolves all issues, so that the case is over and completed. An arbitration, on the other hand, involves impaneling 1 or more professionals to consider a dispute as a tribunal, hear evidence and argument in order to make a decision that resolves the case or dispute. Arbitration is binding and, typically, cannot be overturned or appealed.
Probates & Estates
Claims against Estates
What is a claim against the estate?
If a person or business believes he/she or it is owed money by the decedent, then he/she may file a claim with the administrator of the estate requesting payment from the estate. The administrator may either approve or deny the claim. If denied, then the claimant can demand a hearing to have his/her rights heard by the Court.
How long do you have to file a claim against the estate?
A claim of a secured debt (guaranteed by collateral) has until the the court closes its proceedings on the estate before they file their claim. A claim of an unsecured debt (no collateral) must be filed within 4 months of the publication of the legal ad notice.
What must the claim contain?
The claim must be supported by proper papers which include the account number, amount owed, and type of debt. A statement regarding the validity of the debt is needed as well. A copy of the bill will usually suffice.
Common-Law Spouse cases
What is a common law spouse?
A common law spouse is one of the parties in a common law marriage. Such a marriage is proved by evidence that a declaration of their marriage has been signed OR that they agreed to be married, lived together in Texas after the agreement, and represented to others that they were married. Both parties must be over 18 and have the capacity to contract at the time the agreement is made.
What are the rights of a common law spouse?
Common law spouses are considered by the state to be legally married, therefore, they enjoy all of the rights and benefits bestowed upon any other married couple. For legal purposes a common law marriage is no different than a formal marriage.
How can a common law marriage end?
Common law marriages may end through death, divorce, or annulment, the same as a formal marriage. In Texas there is no such thing as a common law divorce. Any divorce or dissolution of marriage must be done formally through the court system and all of the requirements of a normal divorce.
What is an estate administration?
An estate administration involves gathering the assets of the estate, paying the decedent’s debts, and then distributing the remaining assets to any heirs of the estate. An estate administration is necessary whenever an individual dies as his/her estate will need to be collected and managed.
What is an independent executor, and what is his/her role?
An independent executor is the personal representative of an estate either specifically named in the Will or, if died without a will, agreed to by all of the beneficiaries. An independent executor has the power to make all estate related decisions. Like any executor, an independent executor is required to 1) collect the assets, 2) pay off any debts, and 3) distribute the assets according to the Will. An independent executor, additionally, is required to 1) provide notice to potential creditors and 2) provide an inventory of the Estate’s assets to the Court.
What is the difference between independent administration and dependent administration?
Dependent administration is more closely managed by the court. In a dependent administration, the Court oversees every sale/distribution of assets and every payment of liabilities owed. An independent estate administration is overseen almost entirely by the independent executor.
What is an heirship?
An heirship is the process of distributing a persons estate after their death when that person (the decedent) did not have a valid will at the time of death.
Who does the decedent’s property pass to in an heirship?
The property will pass to the decedent’s heirs, which are determined at the time of decedent’s death.
Heirs are those persons related to the decedent through blood or marriage. The law looks to the spouse
first, if there is one, then to any children of the decedent, then to any other relatives of decedent such as
parents or siblings. Once the number of heirs is ascertained the property, both real and personal, will be
split between those surviving heirs. This process has been implemented in order for the state to attempt
to make a fair distribution of the decedent’s property when there is no direction given by the decedent in
a will upon which distribution would be based.
How can an heirship be avoided?
In order to avoid the statutory heirship procedure, one may either prepare a will or trust, or both, which will ensure that their wishes for how their property should pass are fulfilled. Wills may either be done wholly by the hand of the person wishing to create the will (the testator) or it may be drafted by an attorney, signed by the testator, and attested to by 2 disinterested witnesses over the age of 14. A trust should also be drafted by an attorney, then signed by the grantor. Additionally, both of these documents must be done while the testator or grantor has the capacity to create such a document and does so on their own volition.
What happens if an heirship is contested?
An heirship contest is usually brought by a person who believes that they are an heir to the decedent and have been wrongfull denied their rightful portion of the estate property. In order to have a chance to show they are an heir they must file a suit in the probate court to declare heirship in which the court will determine who the proper heirs are and the respective shares of each of them. Proof of relation may be offered through testimony in open court, written testimony of the decedent, or through genetic testing done in compliance with the law and presented to the court. Once all evidence is offered the court will make their determination and enter a judgment declaring the persons and shares to be passed from the estate.
What rights do spouses have in heirships?
Texas is a community property state and as such a surviving spouse will have rights to both the separate property and the community share of the deceased spouse. The surviving spouse is entitled to the decedent’s entire share of the community estate so long as any surviving children are also the children of the surviving spouse, if they are not then the surviving spouse would receive 1/2 of the community property and the other children would receive the other 1/2 of the community property. The distribution of separate property also depends on the children of the estate. If there are children, the surviving spouse takes 1/3 of the decedent’s personal estate and receives a life estate in 1/3 of the decedent’s land, with the remainder going to the children. If there are no children, the surviving spouse receives all of the personal estate and 1/2 of the decedent’s land; however, if there were no other relatives of the decedent then the spouse would take all of the land as well. These rules apply to spouses through formal marriage and common law marriage.
What is a will?
A will is a document executed according to law that establishes a person’s desires for their property after their death.
Can the right to execute a will be taken away?
No, the right to execute a will cannot be abridged or taken away.
How many times can I change my will or execute a new will?
Unlimited, everyone can execute as many wills or codicils as they want.
Is a will valid, once it is signed?
If all of the requirements for creation of a will in the state where the will is signed are met, then a will may be valid as soon as it is signed, but it is not binding.
When is a will binding?
A will is not binding until (1) after the person dies and (2) after it is admitted to probate.
What is probate?
Probate is the legal process in which a Court determines the validity of a deceased person’s last will and testament upon a proper filing of an application to probate a will.
Who can file an application to probate a will?
The executor named in the will or any person who qualifies as an “interested person”, i.e. a person who has an interest in the estate of the Decedent, may file an application to probate a will.
Who/What is an “interested person” in a probate matter?
An “interested person” in a probate matter as defined in Section 3(r) of the Texas Probate Code means: “heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered; and anyone interested in the welfare of an incapacitated person, including a minor.”
Where do I file the application to probate a will?
Generally, the application to probate a will should be filed with County Clerk in the county where the Decedent resided at the time of death.
What are the time limitations and constraints for probating a will?
Generally, an application to probate a will must be filed for probate within four (4) years of the date of death of the Decedent, unless it can be shown that person filing the will for probate after four years was not in default for failing to file it sooner, i.e., it was not their fault.
After a will is filed for probate, is anyone entitled to personal service?
No, a probate proceeding is an “in rem” proceeding, which means the court’s jurisdiction is over the Estate, not over any particular person; therefore, personal service is not required.
What notice is required in relation to an application for probate?
Other than the personal service stated above, the notice (due process) in relation to an application for probate is that a citation is posted on the courthouse bulletin board called “Posted Notice”.
How long does a court have to wait to hear an application for probate?
An application for probate cannot be heard is not “ripe” until the Monday following the expiration of ten (10) days from the date the notice is posted.
What is a will contest?
A Will Contest is a lawsuit challenging the validity of a Will or to determine which of multiple wills is valid.
Who can contest a will offered or admitted to probate?
Any person interested in an estate an “interested person” (defined above) may file a will contest and shall be
entitled to process for witnesses and evidence and to be heard upon such opposition.
What are the grounds for contesting a will?
The typical grounds for contesting a will are (1) lack of testamentary capacity (different than mental capacity) and (2) undue influence; other grounds may be forgery, fraud, lack of testamentary intent, failure of formalities and solemnities, i.e., the requirements for executing a valid a will have not been met.
What is the statute of limitations for filing a will contest?
A will contest can be filed prior to a will being admitted to probate, i.e., a preprobate contest, and must be
filed within two (2) years after the date the order admitting the will to probate is signed, with a few limited exceptions, i.e., a postprobate contest.
Texas Probate System
Probate in Counties Without Statutory Probate Courts
What court hears probate matters in counties that do not have statutory probate courts?
A county court at law exercising original probate jurisdiction as granted and established by the legislature.
What court hears probate matters in counties that do not have statutory probate courts or county court at law?
A county court exercising original probate jurisdiction as granted and established by the legislature.
What can County Courts (in small counties) hear?
County courts in counties without a statutory probate court and without a statutory county court at law, have judges that are, typically, not attorneys and have the jurisdiction (authority) to hear uncontested matters. When a matter becomes contested, there are options to get the case before an attorney (elected) judge to have the contested portion of the matter resolved.
Do statutory probate courts hear mental illness cases?
In counties having only one statutory probate court, that court is designated to hear mental illness, i.e., mental commitment cases. If the counties has multiple statutory probate courts, then one of the statutory probate courts is designated to hear all mental illness matters in that county.
What else does a statutory probate court hear?
A statutory probate court can also hear any matter that is a “probate proceeding” or is “related to” a “probate proceeding”.
What is a “probate proceeding”?
A probate proceeding is any matter relating to the estate of a decedent or a guardianship matter.
What is a matter “related to” a “probate proceeding”?
A matter related to a probate proceeding includes, but is not limited to, any claim or lawsuit filed on behalf of or against an estate or guardianship or their property
Texas Statutory Probate Courts
What is a Statutory Probate Court?
What is the function of a statutory probate court?
A statutory probate court has exclusive jurisdiction over all probate matters and all guardianship matters in that county.
Do statutory probate courts have special powers?
Yes, due to the affect the rulings of other courts might have on the administration and the judicial inefficiency of competing courts making rulings that affect the same administration, statutory probate courts have a special transfer power, which we informally call a “reach out and grab” power. If done timely, a statutory probate court can “reach out and grab” a case pending in another Court in any county in the state and transfer it into the same statutory probate court where the estate or guardianship is pending. In order to do so, the case has to be “related to” a probate matter already pending in that court and it cannot interfere with the general jurisdiction of a district court to hear personal injury matters. Yet, another reason to hire an attorney well versed in probate law and statutory probate court jurisdiction; there are advantages that can be gained or lost depending on the lawyer’s knowledge of same.
How many statutory probate courts are there in Texas?
There are 18 statutory probate courts in Texas.
Where are the statutory probate courts located?
Bexar County (San Antonio) (2), Collin County (McKinney) (1), Dallas County (Dallas) (3), Denton County (Denton) (1), El Paso County (El Paso) (2), Galveston County (Galveston) (1), Harris County (Houston) (4), Hidalgo County (Edinburg) (1), Tarrant County (Fort Worth) (2) and Travis County (Austin) (1).
How are cases assigned to statutory probate courts in those counties that have multiple courts?
Randomly, by a computer.
Who may file a lawsuit in relation to a trust?
An interested person may file a lawsuit in relation to a trust.
Who/What is an “interested person” in a trust matter?
An “interested person” in a trust matter as defined in Section 111.004(7) of the Texas Property Code means: “a trustee, beneficiary, or any other person having an interest in or a claim against the trust or any person who is affected by the administration of the trust. Whether a person, excluding a trustee or named beneficiary, is an interested person may vary from time to time and must be determined according to the particular purposes of and matter involved in any proceeding.”
What are the grounds for contesting a trust?
The typical grounds for contesting a trust are (1) lack of mental capacity (different than testamentary capacity) and (2) undue influence; other grounds may be forgery and fraud.
What types of lawsuits are filed in relation to Trusts?
Any claim that pertains to a trust, its trustee or its administration may be filed by anyone who has an interest in the trust, i.e., an “interested person,” but the most common lawsuits that are filed are lawsuits to: (a) set aside the trust or a trust amendment as invalid, (b) require an accounting, (c) construe a trust, (d) appoint or seek removal of a trustee for mismanagement or breaching fiduciary duties, (e) determine a question that affects the administration of the trust, (f) ascertain beneficiaries, (g) force distribution within the distribution or discretionary standards of the trust (h) require final distribution, (i) relieve a trustee from any or all of his/her/its duties, among others.
What is a Trust?
A legal relationship, usually based upon an agreement, between a Settlor or Grantor (the person creating the Trust and delivering property to the Trustee) and the Trustee (the person or entity receiving and administering the property) to accept and administer the property delivered to the Trustee for the benefit of one or more Beneficiaries.
What Texas law governs Trusts?
Trusts are governed by Title 9 of the Texas Property Code which is generally referred to as the “Trust Code”.
How is a Trust created?
A trust may be created by:1) a property owner’s declaration that he or she holds property as trustee for the benefit of another person;2) a property owner’s transfer of property, during the property owner’s life, to another person as trustee for the benefit of a third person;3) a property owner’s transfer of property, by the terms of the property owner’s will after the property owner’s death, to another person as trustee for the benefit of a third person;4) an appointment under a power of appointment to another person as trustee of the donee of the power or for the benefit of a third person; or5) a promise to another person whose rights under the promise are to be held in trust for the benefit of the third person.
What controls the administration of a Trust?
A trust is administered in accordance with the terms of the Trust document. However, there are certain mandatory rules, outlined under Section 111.0035 of the Texas Property Code, that cannot conflict or be altered by the terms of the Trust document. The terms of Title 9 of the Texas Property Code control the administration of the Trust where the Trust document is silent or if no Trust document exists.
Who is considered a Beneficiary of a Trust?
A Beneficiary is any person for whose benefit property is held in trust, regardless of the nature of the interest.
What information is a Beneficiary entitled to receive regarding the Trust and the administration of the Trust?
The Trustee has a duty of full disclosure to the Beneficiary. The Beneficiary is entitled to receive copies of or the opportunity to inspect the Trust documents and all of the records relating to the administration of the Trust. At least annually, the Beneficiary is also entitled to receive a Trust accounting covering all transactions of the Trust since the last accounting or since the creation of the Trust, whichever is later. Requests for information or for an accounting from the Trustee should be submitted to the Trustee in writing. A Trustee that fails or refuses to fulfill his or her duty of full disclosure can be compelled to comply with such duty by a court of competent jurisdiction.
*AV Preeminent and BV Distinguished are certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedures, standards and policies.