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Welcome to the Texas Probate Web Site, your source for information on estate planning, probate and trust law in Texas.  This site is owned and maintained by Glenn Karisch of The Karisch Law Firm, PLLC, of Austin, Texas.  For older information, visit the legacy site at texasprobate.net.
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Monday
Feb282011

Case Update -- Jarvis v. Feild

Jarvis v. Feild, 327 S.W.3d 918 (Tex. App.—Corpus Christi-Edinburg 2010, no pet. h.).

ESTATE ADMINISTRATION -- Venue


Litigant objected to the court’s venue to probate a will.  Because Litigant did not object until Litigant appealed the admission of the will to probate, the court held that she waived her venue argument.

Moral:  Objections to venue should be timely filed or else they will be deemed waived.

ESTATE ADMINISTRATION -- Inventory


Litigant appealed asserting that an approved inventory was incomplete and misstated the value of the listed property.  However, her appeal did not specifically indicate she was appealing the inventory order but rather objected to the approval of the account for final settlement which the court issued many months later.  Litigant argued that the two orders were linked so the appeal of the account for final settlement automatically appealed the approval of the inventory.  Although there was no support for Litigant’s argument, the court decided to review the inventory approval because appellate issues should be liberally construed so the right to appeal is not lost.  After examining the evidence, the court determined that the trial court did not err in approving the inventory.

Moral:  A person dissatisfied with the court’s approval of an inventory should take action in a timely manner and clearly indicate the court order to which the person is objecting.

For summaries of other recent Texas cases, please follow this link: http://www.professorbeyer.com/Case_Summaries/Texas_Case_Summaries.htm

Gerry W. Beyer
Governor Preston E. Smith Regents Professor of Law
Texas Tech University School of Law
1802 Hartford St.
Lubbock, TX 79409-0004
voice (806) 742-3990, ext. 302
fax (978) 285-7941
e-mail gwb@professorbeyer.com
web http://www.ProfessorBeyer.com
blog http://lawprofessors.typepad.com/trusts_estates_prof/
SSRN (articles) http://ssrn.com/author=461383 
Twitter Gerry_Beyer 

Monday
Feb282011

Case Update -- In re Guetersloh

In re Guetersloh, 326 S.W.3d 737 (Tex. App.—Amarillo 2010, no pet. h.).

TRUSTS -- Pro Se


Trustee attempted to represent himself pro se, that is, without an attorney, in both his capacity as a trustee and in his individual capacity.  The appellate court held that Trustee had no right to proceed pro se in his representative (trustee) capacity but could proceed without an attorney with regard to claims in his individual capacity.

The court explained that allowing Trustee to proceed pro se in his representative capacity would be the unauthorized practice of law.  The court stated that “if a non-attorney trustee appears in court on behalf of the trust, he or she necessarily represents the interests of others, which amounts to the unauthorized practice of law.”  The court relied on Steele v. McDonald, 202 S.W.3d 926 (Tex. App.—Waco 2006, no pet.) in which the court held that a non-lawyer may not appear pro se in the capacity as an estate’s independent executor.

Moral:  A trustee who is not an attorney may not appear in court pro se in the trustee’s representative capacity.

For summaries of other recent Texas cases, please follow this link:http://www.professorbeyer.com/Case_Summaries/Texas_Case_Summaries.htm.

Gerry W. Beyer
Governor Preston E. Smith Regents Professor of Law
Texas Tech University School of Law
1802 Hartford St.
Lubbock, TX 79409-0004
voice (806) 742-3990, ext. 302
fax (978) 285-7941
e-mail gwb@professorbeyer.com
web http://www.ProfessorBeyer.com
blog http://lawprofessors.typepad.com/trusts_estates_prof/
SSRN (articles) http://ssrn.com/author=461383 
Twitter Gerry_Beyer

Monday
Feb282011

Case Update -- In re Hudson

In re Hudson, 325 S.W.3d 811 (Tex. App.—Dallas 2010, no pet. h.).

ESTATE ADMINISTRATION -- Appeal -- Admitting Will to Probate and Granting Independent Administration

Will Contestant requested a jury trial.  However, the trial court heard the application without a jury and over Contestant’s objection.  The court then admitted the testator’s will to probate and issued an order granting independent administration.  Contestant then filed a petition for a writ of mandamus.

The appellate court denied the petition because Contestant has an adequate remedy on appeal.  The court held that an order admitting a will to probate and granting an independent administration was a final order and thus appealable.

Moral:  An order admitting a will to probate and granting independent administration is a final order which a dissatisfied person may appeal.

For summaries of other recent Texas cases, please follow this link: http://www.professorbeyer.com/Case_Summaries/Texas_Case_Summaries.htm.

Gerry W. Beyer
Governor Preston E. Smith Regents Professor of Law
Texas Tech University School of Law
1802 Hartford St.
Lubbock, TX 79409-0004
voice (806) 742-3990, ext. 302
fax (978) 285-7941
e-mail gwb@professorbeyer.com
web http://www.ProfessorBeyer.com
blog http://lawprofessors.typepad.com/trusts_estates_prof/
SSRN (articles) http://ssrn.com/author=461383 
Twitter Gerry_Beyer

Monday
Feb282011

REPTL bills would make changes to trusts, guardianships and powers of attorney

Rep. Will Hartnett (R-Dallas) filed three bills supported by the Real Estate, Probate and Trust Law Section of the State Bar of Texas Friday.

The most significant is HB 1858, which is a new Durable Power of Attorney Act for Texas.  It would replace the current statutory durable power of attorney form for a new form with a disclosure statement and places for the principal to specify if he wants the agent to be able to create, revoke amend trusts; make gifts; create or change rights of survivorship; create or change beneficiary designations; and waive the principal's right to be a beneficiary of a joint and survivor annuity.  Most of the changes are based on the new Uniform Power of Attorney Act adopted by the National Conference of Commissioners on Uniform State Laws in 2006.  It replaced the old Uniform Durable Power of Attorney Act upon which Texas's current power of attorney statutes are based.  The new act is more specific about the agent's duties and responsibilities.

Will Hartnett, Author of HB 1835, HB 1837 and HB 1858HB 1837 would make numerous changes to Texas's guardianship statutes, including replacing the current 5% of income, 5% of disbursements method of determining guardianship compensation with a "reasonable compensation" standard. It also would permit a person with a physical disability only eligible to apply for the creation of a guardianship management trust (867 Trust).

HB 1835 makes mostly minor and technical changes to the Texas Trust Code. One change of significance to persons handling estates of 2010 decedents is an extension of the 9-month deadline for disclaimers to match the one in the 2010 tax act.

Jose Rodriguez, Author of SB 1192, SB 1196, SB 1197 and SB 1198Another REPTL bill -- making changes affecting decedents' estates -- is expected but has not yet been filed.

Update: On March 2, 2011, Rep. Hartnett filed HB 2046, which is REPTL's decedent's estates bill. Sen. Jose Rodriquez (D-El Paso), filed identical REPTL bills in the Senate on March 4, 2011:

  • SB 1192 -- REPTL power of attorney bill.
  • SB 1196 -- REPTL guardianship bill.
  • SB 1197 -- REPTL trust bill.
  • SB 1198 -- REPTL decedents' estates bill.

Thursday
Feb242011

Bill may codify "fraud on the community," at least in divorces

Rep. Senfronia Thompson (D-Houston) filed HB 908, which would add Section 7.009 to the Texas Family Code to define "fraud on the community" and require courts hearing suits for dissolution of a marriage to factor it into property divisions.  Even though it appears to apply only to suits for dissolution of a marriage, the bill interests probate lawyers because the concepts may bleed over into decedents' estates.

Senfronia Thompson, Author of HB 908Currently "fraud on the community" is an equitable concept developed in case law.  HB 908 defines fraud on the community to mean "improper conduct by a spouse to the detriment of the community estate."  It specifically includes a spouse "wrongfully conveying property out of the community estate," "wasting community funds or property" and "failing to provide an accounting of money transferred from the community estate."

This would broadly define the concept, at least as it applies in divorce cases. The bill provides that, before dividing the community estate in a divorce, the trier of fact must determine whether a spouse has committed fraud on the community.  It would appear to require this determination even if no one alleges fraud on the community.

If the trier of fact determines that a spouse has committed fraud on the community, the court is required to calculate the value by which the community estate was depleted as a result of the fraud on the community, determine the amount of the "reconstituted estate" (defined to mean the total amount of money that would have been in the community estate if the fraud on the community had not occurred), divide the value of the reconstituted estate between the parties, and award to the spouse that committed fraud on the community that portion of the estate that the spouse depleted. 

Chris Harris, Author of SB 817The bill says it applies to pending and future divorce cases.  However, the existence of the statute -- particularly the definition -- might influence fraud on the community claims in probate estates.

The bill has not yet been referred to committee.

Update:  Sen. Chris Harris (R-Arlington) has filed SB 817, which is the companion bill to HB 908.