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Guardianship and Criminal Courts

June 23, 2014

A court-appointed guardian is not always able to maintain control over an active ward, and in certain circumstances, a ward’s conduct results in criminal prosecution of the ward. Unfortunately, the Estates Code, which governs guardianships, and the Criminal Code do not offer much room for interaction. In fact, even though a guardian in a probate matter is appointed to “step into the shoes” of the ward and handle almost anything the ward could normally do for himself or herself, the guardian’s power does not extend to a criminal action. The […]

Priority to Serve as Guardian

June 16, 2014

In a guardianship action for an incapacitated adult, there are many factors a court considers in the appointment of a guardian. A court must find that the person is not disqualified to serve as guardian. A few of the easier-to-determine factors for disqualification require that the proposed guardian: is over age 18; does not have a history of conduct that is not “notoriously bad” (felony convictions are a good indicator); has not been declared to be incapacitated himself; doesn’t have a certain lawsuit pending against the proposed ward; doesn’t owe […]

Gaining Control of Estate Property – Turnover Orders

May 6, 2014

A guardian of the estate or an estate administrator (such as an executor) is entitled to possess and manage all property that belongs to the ward (person who is legally incapacitated) or to the estate. A guardian or an administrator is called a fiduciary. Fiduciaries have a duty to care for the guardianship estate property and decedent’s estate property of others prudently and according to established legal standards. Those legal standards require the fiduciary to take control of all estate property. Sometimes there are individuals who have control of estate […]

I’m Named as Executor: Now What?

April 10, 2014

Serving as executor of an estate is both an honor and a significant undertaking, as it usually requires at least one court hearing, and what can be major work to value, distribute, and sometimes sell estate property as directed by a will and the law. If you have an original will that has not yet been admitted to probate and you see that you are appointed executor in that will, the first thing you should do is contact a probate attorney who can file the will with the appropriate county. […]

Beneficiaries, Heirs, and Probate Estate Creditors

March 31, 2014

The legal concepts involved in property passing upon someone’s death can stump even the most experienced probate attorneys. Creditors and estate beneficiaries in probate litigation launch fierce battles concerning who has a right to certain estate property. Generally, when someone passes away (that person is called a “decedent”), property passes to the people named in the decedent’s will (the people who are to receive the property are called “beneficiaries”). But if the property that the beneficiaries are supposed to receive has a debt on it, disputes can arise concerning whether […]

When is a Guardianship an Emergency?

March 18, 2014

It happens more often than we like to imagine – your mom and dad are not able to make decisions for themselves, and a stranger befriends them and starts becoming increasingly involved in your parents’ lives, eventually gaining access to their home and bank accounts. Or sometimes an elderly neighbor unable to care for herself has no family and wanders outside constantly, needing someone to make emergency decisions for her health and safety. In emergency situations like those above, Texas law allows for the creation of what is called a […]

Order of No Administration in a Probate Estate

March 10, 2014

In some situations, it is necessary to file a will for probate, but there may not always be a need to have a full estate administration. When people think of probate, they usually think of independent administration, where an executor, generally free of court control, must distribute estate property according to the terms of the will. There are less involved probate procedures, including muniment of title, small estate affidavit, and affidavits of heirship that may be available, depending on the facts of the case. When someone passes away and leaves […]

Family Allowance in Probate Court

March 6, 2014

When someone passes away (that person is called a “decedent”) and leaves behind a surviving spouse, minor child, and/or adult incapacitated children, those survivors may be entitled to receive a family allowance. The family allowance often comes up in cases where a decedent disinherited his or her spouse. Only the payment of funeral expenses and expenses of last illness up to $15,000.00 takes precedence over the payment of the family allowance. The amount of the family allowance is an amount needed to support the spouse and children for the first […]

Bonds in Probate Court

February 19, 2014

Clients are often surprised to learn that Texas law requires them to obtain a bond in certain matters. Bonds most frequently arise in cases where one individual is acting as a fiduciary in handling someone else’s property, such as in dependent administrations and guardianships of the estate. The purpose of a bond is to protect the assets that are at issue in the case. A court will determine the amount of the bond based on the debts of the estate and the personal property assets, including cash on hand, cash […]

Why Do I Need a Power of Attorney?

February 17, 2014

When we counsel clients concerning their own estate planning, the question often arises of the importance of powers of attorney. When drafted and used properly, powers of attorney can be strong devices to protect you and your family. Generally, a power of attorney is a document that allows you to appoint another person (called an “agent”) to step into your shoes and assist you with your property or with your healthcare. Accordingly, there are two types of powers of attorney: the statutory durable power of attorney, which covers property and […]

Who Has the Will?

February 13, 2014

In many cases, clients come to our law firm with a common concern. Their fact pattern sounds something like this: Aunt Suzy died and we think she left a Will with our uncle, but he won’t show it to us or do anything with it. What can we do? Laws are written to solve problems, and the laws regarding Wills and inheritance aren’t an exception. Fortunately, this sort of problem has been around for a long time, and so we have a set of laws that address the situation. The […]

Community and Separate Property Administration

February 4, 2014

Since Texas is a community property state, when a spouse passes away, issues can sometimes arise with separate and community property. These issues arise especially in situations where the spouse who passed away (called a “decedent”) had children who were not also children of the surviving spouse and disputes arise. A person who handles the decedent’s estate is generally called an “administrator.” Once a court appoints an administrator, the administrator can handle the decedent’s: • separate property • sole management community property • joint management community property. Sole management community […]

Maintaining Lawsuits in Good Faith

December 27, 2013

Earlier this year, we discussed how “no contest” clauses are raised as an issue in a Will Contest. We discussed how these clauses found in wills and trusts are written in to discourage beneficiaries from bringing a lawsuit at the risk of losing their inheritance or gift. We also outlined some of the history of Texas law on the topic, identifying the Texas Legislature’s efforts over the last few years to render these provisions unenforceable when a lawsuit is brought for good reason and with good intentions. With this prior […]

Failing Capacity and Vulnerability

December 12, 2013

Our probate and guardianship litigation section routinely encounters many of the same facts that make up a will contest or a contested guardianship. The circumstances are always unique, but so many of our clients are involved in cases that look and sound like each other with regard to two major themes. A high number of our cases require significant analysis of a person’s mental capacity and/or the vulnerability to the undue influences of others. I started thinking about both of these areas when my family was together for the Thanksgiving […]

Adoption and Inheritance

December 2, 2013

When individuals make their wills, they can give their property to whomever they wish. Unfortunately, not everyone makes a valid will, so Texas has default laws that apply when individuals don’t have wills or when they have an invalid will. Those default laws apply in situations called “intestacy.” Texas intestacy laws differ depending on whether a parent is adoptive or biological. When an adoptive parent dies, the adopted child is treated under the law exactly the same as the children born to the parent. That means that the adopted child […]

How Can I Remove an Independent Executor?

November 25, 2013

Unfortunately, executors do not always administer an estate as they are required by law to do. When an executor does not uphold certain legal duties, an interested person can file a lawsuit to remove the independent executor. The Texas Probate Code allows a court to remove an independent executor when: • the executor does not file an inventory (or affidavit in lieu of the inventory) within 90 days after the executor receives letters testamentary, • sufficient grounds appear to support the belief that the executor has or is about to […]

Removal of Trustees — When Trustee Discretion Meets Cautious Courts

November 22, 2013

Stay tuned as we closely follow an appeal currently before the 14th Court of Appeals in Houston. The facts of the case are similar to those encountered by counsel and our courts all across the state. The outcome, one way or the other, will either add some certainty to fiduciaries properly exercising their discretion, or it will provide courts with some additional ammunition when questioning whether that discretion constitutes mismanagement. Brandy Hollis was severely injured in a car accident. Years later, a management trust was created to administer the proceeds […]

Homestead Rights of a Surviving Spouse in Probate

November 20, 2013

Texas law provides for strong protection of a family’s home. The property protected is called the “homestead.” In probate matters, homestead issues often arise when one spouse passes away owning a separate property interest in a home where both spouses live. For example, let’s take a husband and wife who have been married for 15 years, it is the second marriage for each, and each has children from a previous marriage. The husband bought and paid in full for the residence before marriage, and they have been living in that […]

Arbitration in Trusts and Estates

October 31, 2013

Thanks to a Supreme Court of Texas opinion issued earlier this year, estate planners and probate litigators alike can add a new twist to their practices – arbitration clauses in trust instruments.  Trust litigation, like most will contests, has historically followed much the same procedural track.  A lawsuit or contest is filed and a judge or jury ultimately determines the disputed issue if it is not resolved before trial by mediation or some other negotiated compromise.  Now, mandatory arbitration may enter into the process.   In the case of Rachal […]

Parent Designation of Legal Guardian for Children

October 21, 2013

The Texas Probate Code provides for parents to appoint guardians of the person for minor children. Parents can designate a guardian either in a will, or in a special document called a written declaration.   If a parent executes a written declaration of guardian, that document is a valid declaration if it is written only in the decedent’s handwriting, or it can be typed, but a typed document must be executed with formal requirements similar those required of a valid will.   A type-written declaration must be witnessed by two […]

Alternatives to Guardianship of Estate

October 9, 2013

When determining whether to apply to court for a guardianship of the estate, our clients consider possibilities that might be more cost-efficient or allow the proposed ward to retain more rights than a full guardianship.   Some alternatives that we discuss are: Statutory durable power of attorney. A valid power of attorney, if executed when the ward had capacity to do so, can allow the person appointed – the agent – to take care of the ward’s property and financial affairs. Multi-party or Convenience Bank Accounts. Adding another person who […]

Personal Injuries in Probate

October 7, 2013

In many of our cases, the circumstances surrounding a loved one’s death can include additional liability and the potential for the recovery of damages.  For example, we continue to see a number of clients that have lost a family member to cancer, only to find out that their cancer was caused by exposure to a hazardous material when they were employed.  These cases often require some special attention in the resolution of probate issues, but they also often involve additional counsel to pursue a variety of legal claims.   Wrongful […]

Orders of Protective Custody

October 1, 2013

As probate practitioners, we often work with families who need help for an individual who does not want help or believe that he or she needs help. In some circumstances, we can obtain a guardianship, or if there is an urgent physical or financial situation, a temporary guardianship. However, at other times, when the circumstances are dire, it is possible to apply for an Order of Protective Custody. (Although if there is a true physical emergency, always call law enforcement first.)   An Order of Protective Custody can be appropriate […]

Family Settlement Agreements in Probate

September 25, 2013

A family settlement agreement offers a solution for parties to a dispute to agree out of court how to handle certain claims and contested issues. In probate practice, family settlement agreements are particularly useful in the context of a will contest. Texas courts strongly encourage parties to a dispute to reach an agreement between themselves. Because family settlement agreements are often cost-effective and prevent the hardship of a trial, families often favor the agreements as well.   Sometimes a family settlement agreement can be implemented without court approval, but there […]

Can My Trust Be Modified?

September 23, 2013

In one of my very first cases out of law school, an aging client asked us to review a trust that his deceased father had created for the client’s benefit.  The trust was old, and its terms were strict.  Under the trust, our client received a cash payment each month – an allowance that never changed, no matter the circumstances.   The client had been receiving this trust allowance for close to 30 years.  Now in his senior years, a problem developed.  Times had changed.  Not only was the allowance […]

Common Law Marriages in Probate Litigation

September 13, 2013

A trend is growing in our nation.  The number of unmarried partner households has steadily increased since the national census began tracking this category nearly 25 years ago.  Many of these unmarried partners have children together, and an average number of them break up.  It should come as no surprise that probate and inheritance issues can dramatically affect these informal families just as often as they do relationships founded in formal marriages.   Texas recognizes informal, also called “common law” marriages between a man and a woman.  These informal marriages […]

What Can a Dependent Administrator Do Without Court Order?

September 11, 2013

The power of a dependent administrator to exercise authority is strictly limited by the order appointing the administrator and by the Texas Probate Code. Under the code, an administrator may take only the following actions without court order: Release liens when the debt is paid in full, Vote stocks by limited or general proxy, Pay calls and assessments, Take out appropriate liability and hazard insurance on estate property, and Pay taxes, court costs, and bond premiums. All other actions necessary to administer the estate, including selling estate property, paying expenses, […]

Partial Distribution of Estate Property

August 28, 2013

When an estate is in administration but is not at a point where it can be closed, there are sometimes reasons that arise for the administrator to distribute some of the estate property. Typically this issue arises if the executor or administrator is in the process of selling or collecting estate property, and the estate has enough liquid assets to support a partial distribution.   The executor, administrator, a beneficiary, or an heir may file an application for partial distribution with the court. The partial distribution allows one or all […]

Undue Influence and the Adult Child Caring for the Aging Parent

August 19, 2013

Undue influence is the short phrase that lawyers in probate and estate matters use to describe any number of circumstances and legal theories that all pretty much add up to the same thing – fraud.   Most often, we encounter allegations of undue influence in connection with the execution of a Last Will and Testament.  There are many reasons why a person’s Will might be found invalid, and a proven claim of undue influence is one of them.  To prove that a Will was procured fraudulently, a person must show […]

Appointment of Agent to Control Disposition of Remains

July 29, 2013

Texas law allows an individual (“Decedent”) to appoint someone to make decisions about how to handle the Decedent’s funeral and burial or cremation. The Decedent can execute a document called “Appointment of Agent to Control Disposition of Remains” (“Appointment”).  In the Appointment, the Decedent can list several individuals to be in charge of the Decedent’s final wishes, as well as provide specific details about how the Decedent prefers to be buried or cremated. The Appointment allows the Decedent to direct the agent as to language to be placed on a […]

Restoration of a Ward’s Capacity in a Guardianship

July 10, 2013

If you have been appointed to serve as guardian for someone, called a “ward,” then a court has determined that the ward does not have the ability to make legal and/or financial decisions for himself. What happens if the ward regains the ability to make those decisions and to do at least some of the tasks necessary to provide food, clothing or shelter for himself?   The Texas Probate Code provides for such a situation. It might arise for a ward who has been languishing in a comatose state for […]

Medical Powers of Attorney

July 8, 2013

A medical power of attorney is an instrument that allows a third party (an agent) to make any health care decision on the principal’s behalf that the principal could make if the principal were competent.  This power “kicks in” only if the principal’s attending physician certifies that the principal is incompetent.   Tex. Health & Saftey Code §166.164 provides the form for the medical power of attorney.  As a practical matter, and to ecourage reliance by third-party health care providers, few estate planners deviate from the statutory language. There are […]

Using Probate to Improve Our Communities

July 3, 2013

Recently, Ellen Bennett and Brian Thomas were invited to speak to the Community Prosecutors from the Dallas City Attorney’s Office.  These attorneys are tasked with improving public safety and the quality of life in Dallas.  Many of their most challenging issues come from nuisance related problems, or hazardous properties that threaten the safety of our neighborhoods.  Perhaps surprisingly to some, probate issues come into play in their line of work as well.  Burdette & Rice took the opportunity to provide these public servants with a probate discussion designed to help […]

Duties of an Agent Under a Statutory Durable Power of Attorney

July 1, 2013

Under the Durable Power of Attorney Act, an agent is a fiduciary and is charged with a very high standard of conduct. That fiduciary duty includes the duty of loyalty, good faith, integrity of the strictest kind, fair and honest dealing, and the duty not to conceal matters to disclose all information to the principal. Additionally, fiduciaries owe the principal a duty to inform the principal of all actions the agent takes pursuant to the power of attorney. The agent must also account for actions taken pursuant to the power […]

Trust Accounts – Totten Trusts

June 21, 2013

As we have discussed, there are four different types of multi-party accounts that must be considered as a component of an estate plan. The types of accounts are: 1) joint account, 2) agency/convenience, 3) payable on death, and 4) trust. The trust account is held in the name of at least one party, as trustee. The trustee holds the funds for the benefit of others, the beneficiary or the beneficiaries. The type of account and the deposit agreement with the bank determines the type of account. There is no formal […]

Payable on Death Accounts

June 19, 2013

There are four different types of multi-party accounts that must be considered as an essential component of an estate plan. The types of accounts are: 1) joint account, 2) agency/convenience, 3) payable on death, and 4) trust. The payable on death (“P.O.D.”) account makes the accountholder’s funds payable to one or more individuals upon the accountholder’s death. The individuals who receive the funds are called “payees.” All payees and the accountholder must sign a written agreement for the P.O.D. account. During the accountholder’s lifetime, the funds in the account belong […]

Attorney ad Litem Ethics in Guardianships – Part 4

June 17, 2013

In several recent posts, we examined the role of attorneys ad litem in guardianship proceedings.  Specifically, we took a closer look at the reason they are appointed, the scope of their role as counsel for a proposed ward and some of their earliest steps in guardianships.  In this post, we discuss some of the practical and ethical considerations at play when the appointed attorney meets their client. Assessing a proposed ward’s capacity is not simply a job for the judge in a guardianship.  Many of the individuals involved, including the […]

Attorney ad Litem Ethics in Guardianships – Part 3

June 14, 2013

In earlier posts, we took a deeper look into some of the ethical perils that await Attorneys ad Litem in a guardianship.  How hard should they fight for their allegedly incapacitated client when factual and anecdotal evidence seem to support the need for a guardianship?  Knowing that there are no “one-size-fits-all” answers to questions like this, we conclude that our obligations as attorneys must reconcile with reality.  We must diligently and ethically draw the burden of proof in the sand and make the applicant meet it with their evidence.  Our […]

Attorney ad Litem Ethics in Guardianships – Part 2

June 12, 2013

Attorneys ad Litem are appointed by our courts in a variety of cases, and for a variety of reasons.  They represent unknown heirs, minors, and incapacitated individuals and often are used as a “utility outfielder” for courts that simply need an extra legal brain in the room.  We encounter Attorneys ad Litem most frequently when they are appointed as the attorney for a proposed ward in a guardianship.  In this part of our series on ethics for these appointed attorneys, we look a little closer at the role they so […]

Attorney ad Litem Ethics in Guardianships – Part 1

June 10, 2013

In guardianship cases, the Court can recruit and appoint a number of individuals to assist in the case.  Attorneys can play several roles in these cases.  The role we play most often is Attorney ad Litem – the lawyer for the allegedly incapacitated person. Every alleged incapacitated person is entitled to legal representation as a matter of due process.  They face the prospect of losing certain rights and decision-making abilities, and our Courts approach that potential consequence cautiously and judiciously. So, it should come as no surprise that our Legislature […]

2013 Probate and Estate Legislation Update

June 7, 2013

For almost five months, the 83rd Regular Session of the Texas Legislature worked to improve your laws.  From January to the end of May, the House and Senate introduced and debated new ideas, heard opinions from experts and the public on how to fix old ideas and polished up bills to present to Governor Perry for his passage.  This session, on the eve of the change from the Probate Code to the Estates Code, the legislative branch devoted a good deal of attention to the law that affects probate, decedents’ […]

Convenience Accounts

June 5, 2013

As we discussed previously, there are four different types of multi-party accounts that must be considered as an essential component of an estate plan. The types of accounts are: 1) joint account, 2) agency/convenience, 3) payable on death, and 4) trust.   The convenience account is created by the primary accountholder and the co-signer, but the funds are considered to be owned by the accountholder, regardless of who makes deposits into the account. The amounts deposited are not considered to be gifts to the co-signer. Either the accountholder or the […]

Is a “lost” Will really lost?

May 31, 2013

Texas law permits the probate of a “lost” Will.  Imagine the consequences if the State did not allow proof of the lost documents.  A Will might be misplaced simply as a result of an accident, or the Testator might throw away what they believed was their copy because they misunderstood the lawyer would keep one.  When a house burns, the fire rarely destroys everything but the Will.   Other circumstances might not be so accidental.  Plenty of cases involve the willful and intentional destruction of a Will, not by the […]

Joint Bank Accounts — Who Owns What?

May 29, 2013

One aspect of estate planning that many people do not consider is the type of bank account they open, who has access to those funds and in what capacity. When more than one party is listed as an owner or user of the account, that account is called a multiple-party account. There are four commonly used multiple party accounts: 1) joint account, 2) agency/convenience, 3) payable on death, and 4) trust.   The joint account is payable on request to one of the parties whose name is on the account. […]

Emergency Intervention for Payment of Funeral and Burial Expenses

May 22, 2013

Texas law allows for a procedure to be used when heirs and devisees of a person who died (“decedent”) refuse to cooperate in connection with arrangements for the decedent’s burial and funeral proceedings. An application for this emergency intervention procedure to pay for funeral and burial expenses of an individual must be filed in probate court between three and 90 days after death. Additionally, a small estate affidavit must not have been filed, nor may proceedings for estate administration have already been initiated.   An application for emergency intervention must […]

Inventory, Appraisement and List of Claims Basics

May 20, 2013

The inventory, appraisement, and list of claims (“inventory”) is a document that must be filed in many probate proceedings, including administrations of decedents’ estates and guardianship estates. Fortunately for the person compiling the information, the inventory is not a detailed listing of each item but provides a general summary of real and personal property items in the estate, as well as any claims owing to the estate (any money that will be coming to the estate).   The purpose of the inventory is to allow the court to determine what […]

Coordinate Your Non-Probate Assets

May 15, 2013

No probate case is ever the same as any other.  But, many common stories and themes make their way to the probate courts.  Whether they practice in uncontested probate matters or go toe-to-toe with each other in heated estate litigation, lawyers and judges in this area of law see an awful lot of the same cases again and again.  One of the more common cases that we see at Burdette & Rice is a failure to coordinate at the planning level.   One day, probably years ago, Mom and Dad […]

Minor Heirs and Property Sales and Settlement Agreements

May 13, 2013

In Texas, minor children are not able to enter into settlement agreements or to own property. Because of that rule, when someone passes away and leaves property to minor heirs that is not in trust, an issue arises of how to distribute the minor’s property. That issue can be trickier when that property must be sold or when the heirs enter into a settlement agreement.   In dependent administrations, the court must authorize the administrator of the estate to enter into settlement agreements and to make distributions of property. The […]

This Week in Probate Appeals: Failure to File a Will

May 9, 2013

The Texas Probate Code tells us that, generally speaking, the time within which a Will must be filed for admission to probate is four years from the date of death.  The statute exists to induce the production of Wills – we generally don’t like it when Wills are kept secret.  If a Will is filed for admission to probate after those four years, the person offering it must also demonstrate that they are not “in default” for failing to bring the document to the Court’s attention in the first four […]

How can I prove someone gave me a gift?

May 6, 2013

Often in disputes over an estate, the issue arises of whether someone received property as a gift or for some other reason. The person who makes a gift is called a “donor,” and the person who receives a gift is called a “donee.” Under Texas law, there are three basic elements of a gift:   The donor must have intent to make a gift, The donor must deliver the property to the donee, and The donee must accept the gift.   The donee has the burden to prove that a […]

I’ll Know a Holographic Will When I See One

May 3, 2013

Few things in probate and estate law make for better stories than the odd cases that involve handwritten, or “holographic” Wills.  The facts and circumstances are often too good not to pass along to friends or colleagues.  Typically, the tale is cautionary, and the moral is that everyone should have a Will, and everyone should have a lawyer help him or her prepare it.  Holographic Wills are perfectly acceptable in Texas, but they can often cause far more trouble than they save. The acceptability of holographic Wills is actually an […]

Who can serve as Guardian?

May 1, 2013

When a loved one is not able to care for his or her own affairs, it is often necessary that a court appoint a guardian who can make personal decisions and handle the finances for the person who has an incapacity. Under Texas law, a person a court finds to have an incapacity is called a “ward.” There are guardians appointed to handle the ward’s property – called “guardians of the estate” and guardians to handle personal decisions and healthcare of the ward – called “guardians of the person.”   […]

What rights do secured creditors have against an estate?

April 29, 2013

  A personal representative must provide a secured creditor with notice of an estate administration.  Once informed, the secured creditor must make an election within 6 months of the date the personal representative received letters or four months after receiving notice, whichever is later, to be treated as a:   “Preferred debt and lien” (in which case it waives its right to realize on the decedent’s personal liability and looks solely to the security interest for satisfaction of the obligation) or   “Matured secured claim” (in which case if the […]

Probate and Guardianship Legislature Under Consideration

April 26, 2013

Texas lawmakers in the 83rd legislature face a busy month.  Between now and the end of the regular session in May, legislators in the House and Senate will propose, debate and act on an incredible variety of laws.  Like any other area of the law, probate and guardianship matters should be affected by a number of proposed bills.   Among the several bills introduced during this session affecting probate and guardianship, at least one appears to be aimed at creating an interesting new position in our statutory probate courts.  House […]

Digital Estate Planning Gains a Powerful Ally

April 22, 2013

Digital assets are the next frontier for probate and estate planning professionals.  When stock certificates, deeds and cold hard cash are replaced with ones, zeroes and bits or bytes of information, an entire industry needs to look to new and innovative ways to plan for the future.  What happens, for example, to the lifetime of Facebook photographs that might only exist in a digital form?  Who owns your emails when you die?  What happens to your cloud data?  These questions, and plenty more, will most certainly be answered in the […]

Eight Reasons Why People Die Without Wills

April 19, 2013

Studies and polls routinely confirm that approximately two-thirds of Americans die without ever executing a valid Will. The reasons below are those most often cited:   Nobody Likes to Contemplate Their Own Mortality Nobody likes to consider the end of their life. Nonetheless, death is as inevitable today as it always has been. It’s going to happen, and responsible individuals can either plan for the future that exists beyond them, or approach it with their heads in the sand. The good news is that estate planning doesn’t move you any […]

Why Must the Personal Representative of an Estate Have a Lawyer?

April 18, 2013

Much to the dismay of many an executor or administrator of an estate, Texas law requires that such personal representatives hire a lawyer to represent them in the administration of an estate. The representative of an estate may not administer the estate pro se (be their own attorney). This legal requirement is to protect the personal representative as much as it is to protect the beneficiaries.   When one party is undertaking to represent the interests of another person, that representative owes fiduciary duties to the other person. Fiduciary duties […]

To Probate or Not to Probate

April 15, 2013

Recently, a potential client asked a question that has grown more common over the years.  If Mom or Dad makes a Will, but then leaves most or all of their assets in accounts with designated beneficiaries, is the Will going to even matter?  The accounts pass without regard to the Will, and if there is little to no property outside of these accounts, what’s the point?   The question typically comes from one of two angles.  Many times, the individual not named as a beneficiary on the accounts, but named […]

Locating the Will

April 12, 2013

We have clients come to our office regularly following the death of a loved one. The clients know that the loved one had a will, but they can’t find it. They have turned the house over from top to bottom. Before we can apply to a court to administer an estate and tell the court that there is not a will, we must make a diligent effort to locate a will.   The most common places we recommend our clients search are easy – file cabinets or other places where […]

Confusing Language in Wills

April 9, 2013

Numerous appellate courts have tried to clear the distinction between what is referred to among probate lawyers as mandatory or precatory language in a Last Will and Testament.  In 2011, the Fort Worth Court of Appeals chimed in.  Mandatory language is directive in nature.  It is a true stated intent.  Precatory language is something less.  It indicates a desire without issuing a command.  But does the Court’s opinion make it easier or more difficult to determine if a decedent’s instructions are mandatory or if they leave room for discretion?   In […]

What do I do with my Power of Appointment?

April 5, 2013

If you have been given a power of appointment in a will or trust, you may have questions about what you are entitled to do with that power. Most often powers of appointment are granted in a will or trust.   There are different types of powers of appointment. Most are created in a will or trust and allow the powerholder – the person who will appoint the property – to choose certain people to receive real or personal property. There are usually limits on how and to whom the […]

Evidence in Heirship Proceedings

April 3, 2013

The purpose of an heirship proceeding is straightforward.  The Court sees and hears evidence before ultimately entering a judgment that identifies a decedent’s heirs and assigns the interests that those heirs own in the decedent’s estate.  In many ways, the result is something close to a family tree that comes with the binding force of law.   Most heirships are uncontested.  Rarely are there disputes about the marital and family history of the decedent.  But many heirship cases involve conflicts on a number of levels.  A common law spouse, for […]

Alternatives to Trials

April 1, 2013

Many of our cases end in the courtroom.  Sometimes, the only way to end a dispute over a will, a trust or a power of attorney is to find out which side the judge or jury believes should prevail.  But a growing number of courts throughout Texas now require parties locked in a dispute to explore alternative methods of resolution before their big day in court.   Mediation has become one of the most well-known dispute resolution alternatives.  For better or worse, many Texas judges simply will not schedule a […]

Why do I need a Will?

March 29, 2013

One question many of our clients ask is what they can do to make things as easy as possible for their loved ones after that die. The best solution is for each individual to have a properly drafted, current last will and testament or living trust. Many people put off executing a will because of the major decisions involved, but the reality is that a valid will can prevent a great deal of discord.   If you die without having a will, Texas law controls how your estate is distributed. […]

What does an attorney ad litem do in a guardianship proceeding?

March 27, 2013

By law, the Court must appoint an attorney to represent the proposed ward (the person over whom a guardianship is sought).  Every guardianship involves taking  substantial rights and powers away from an individual.  Due process requires that the proposed ward be adequately represented.  The attorney ad litem’s primary job is to advocate for the proposed ward.   This means that they are to attempt to ascertain the proposed ward’s desires (i.e. whether the proposed ward opposes the guardianship and/or opposes the potential guardian).  Sometimes this is easy to do, depending upon […]

Why hasn’t my trust been distributed to me?

March 25, 2013

We routinely see many cases were trusts, whether created by a will or during life, should have been terminated years ago and distributed to the proper beneficiaries.  Sometimes these trusts “continue” years beyond their termination date.  If you find yourself in this situation, you have several remedies against the complacent trustee.   First, under Texas Trust Code Section 112.052, a trust terminates if by its terms the trust is to continue only until the expiration of a certain period or until the happening of a certain event and the period […]

Discernible Standards of Distribution for a Trustee

March 22, 2013

When determining how to make distributions to trust beneficiaries, a trustee must act reasonably and in a manner appropriate for the trust he administers. Frequently, a person creating a trust will limit a trustee’s power to make distributions to a beneficiary. The most frequent standards of distribution provide that a beneficiary is entitled to distributions of income and/or principal of a trust to provide for that beneficiary’s health, support, maintenance, and education. Support and maintenance standards require the trustee to base his decision to make distributions after considering factors such […]

The Basics of a Texas Heirship Hearing

March 20, 2013

Sadly, most individuals die having never executed a Will.  In many of these cases, a Court must determine who is entitled to receive the decedent’s property.  These heirship proceedings can be challenging for the unfamiliar.  Here are the steps in a nutshell.   1.  An Application is Filed Every heirship proceeding in Texas begins with the filing of an application.  The applicant alleges several facts concerning the decedent.  Most importantly, the application discusses the decedent’s marital status and the names, ages and locations of their family.  The application resembles a […]

Requirements for Testamentary Capacity

March 18, 2013

We all know it is very important to have a properly drafted and properly executed will that complies with the requirements of Texas law. But what requirements must a person meet before he or she can execute a will? The basic requirements are that the person executing the will – called a “testator” – must be over the age of 18; be legally married; or be a member of the armed forces, auxiliaries, or maritime service at the time the will is executed. Additionally, that person must be “of sound […]

Options to Compel an Executor to Distribute the Estate

March 15, 2013

Sometimes executors refuse to share information with estate beneficiaries and let them know what is going on with the status of an estate administration. Sometimes years pass without a beneficiary ever knowing what debts have been paid or what assets are left to be distributed. These beneficiaries have several options in dealing with such an executor. First, at any time after 15 months from the date the independent administration was created, a beneficiary may demand an accounting from an executor. If the executor fails to deliver the accounting within 60 […]

You’re a guardian — now what?

March 13, 2013

If you have been appointed to serve as guardian of the person or estate of a ward, you have already experienced the routine guardianship proceeding as described here and are now what Texas law calls a “fiduciary.” As a fiduciary, your conduct is subject to a very high standard, and you must always ensure that you are acting in the ward’s best interests and according to the law.   A court can appoint a guardian for a ward to help with two areas – the ward’s personal care, and the […]

When do I need an attorney?

March 11, 2013

Recently, a prospective client asked a question that probate litigators frequently hear: “At what point do you hire an attorney if you’re having issues with a family member named as the executor of a Will under which you’re a beneficiary?”   When you stop and think about it, the question involves much more than the counseling that an estate or probate attorney could give.  These issues often involve some family dysfunction and conflict that go well beyond fiduciary obligations.   This prospective client’s story went like this:   Grandma’s Will […]

The Power a Surviving Spouse Enjoys Over the Deceased Spouse’s Estate

March 8, 2013

Beginning in 1993, the rules governing who inherited a deceased spouse’s property in the absence of a will changed.  The surviving spouse inherits the decedent’s community interest if all of the decedent’s descendants were also the spouse’s descendants.  If at least one descendant was not a descendant of the surviving spouse, then the surviving spouse retains his or her one-half community interest and the deceased spouse’s community interest passes to his or her descendants.   While the probate code states that no administration shall be necessary in cases where a […]

Show Cause: Returning Estate Property to the Estate

March 6, 2013

When a loved one passes away, it sometimes happens that another person is in possession of that loved one’s property. If you are serving as executor or administrator of an estate, or if you are a beneficiary of an estate, it is important for different reasons that you take control of that property.   If you are an executor or administrator, you have a legal duty to possess and control that property, as well as to protect it from harm. You could face liability if someone else has that estate […]

Are “No-Contest” Clauses Effective?

March 4, 2013

Many Wills include a provision that attempts to discourage disputes about the Will, the testator’s capacity or the possibility that the testator was unduly influenced.  These “no-contest” clauses are sometimes called in terrorem clauses, and estate planners religiously use them to scare off potential probate litigation.   Almost every clause like this includes the phrase that if a beneficiary contests the Will, they forfeit their inheritance.  In legal terms, if there’s a latin phrase for it, you can usually assume that it’s because the idea is pretty old.  Discouraging lawsuits, […]

Disputing the Character of Separate or Community Property

February 28, 2013

Property that either spouse possesses or acquires during marriage is presumed to be community property. Separate property is defined as all property, real and personal, owned by a spouse before marriage and any property acquired after marriage by gift, devise or descent.  In Texas, the income from separate property is community property.  Separate property also includes the recovery for personal injuries by a spouse.  The party asserting that a particular asset is separate property has the burden of proof to show by “clear and convincing” evidence that asset’s separate character. […]

Disinherited Children Born After Parent Signed a Will

February 25, 2013

The Texas Probate Code has a particular provision to make sure that a person making a will – called a “testator” – does not unintentionally leave his or her child out of the will. When a child is born after a will is made but is left out of the parent’s will, that child is called a “pretermitted child,” and has special rights under Texas law.   A pretermitted child includes a child who is not born during the parents’ marriage but is born after the testator parent executed the […]

Five Mistakes Estate Planners Make

February 22, 2013

Wills and related documents might appear similar from one client to another, but estate planning is never a one-size-fits-all procedure.  Following are five mistakes often overlooked or under-appreciated by estate planners and clients alike.   Ignoring the Obvious   Disinheritance, mixed families and radical beneficiary changes can pose very threatening landmines in the context of estate planning.  While certainly not the only potential triggers to litigation, these circumstances are among the key contributors to divisive and costly Will contests and lawsuits among executors and beneficiaries.  Sharp estate planning counsel will […]

Fiduciary Duties of a Trustee

February 18, 2013

As a trustee, you are acting as what Texas law calls a fiduciary. A fiduciary is held to a very high standard of conduct, and all actions you take as trustee are subject to four main duties: 1) loyalty 2) competence 3) reasonable discretion and 4) full disclosure.   Duty of Loyalty Your duty of loyalty means that you must always put the needs and interests of the trust beneficiary ahead of your own. This duty also prohibits you from making a transaction that benefits yourself and/or does not benefit […]

Alternatives to Texas Guardianships

February 14, 2013

Medical Powers of Attorney   The most commonly-used tool to avoid the imposition of a guardianship of the person is the Medical Power of Attorney.  When properly drafted and executed, this document can appoint one, or several individuals to serve as the principal’s agent at a time when the principal can no longer make decisions regarding his personal welfare.  This Power of Attorney is almost always executed as a part of comprehensive estate planning, although it may be updated or altered with the same or more frequency, depending on the […]

Communication Avoids Power of Attorney Disputes

February 14, 2013

The following scenario is more common than we’d like to admit. Mom or Dad appoints one child as their agent under a power of attorney. They never intended to leave the other child in the dark. But, distrust abounds when Mom or Dad are incapacitated and the children disagree about how to best care for the parents’ finances. In many cases that we see, the un-appointed child has specific fears and concerns about the other child’s trustworthiness. At the same time, the honest agent probably hates having their shoulder looked […]

Dallas Morning News Article

October 31, 2012

Burdette & Rice were recently featured in the Dallas Morning News. Click here for a copy of the article in PDF format, otherwise the full text is reproduced below. Burdette & Rice is a Dallas based trusts, estates, and probate dispute law firm comprised of four accomplished attorneys. “We’re a true boutique probate litigation practice,” says firm founder Elliott Burdette. “Everyone here is focused on this practice area.” Burdette, who has been AV® Preeminent™ rated by Martindale-Hubbell®, decided to concentrate exclusively on probate disputes after having a general business and estate practice […]

The “Probate” Homestead

October 31, 2012

Whether or not the Decedent’s home was a “homestead” is a critical consideration. In the case of a surviving spouse or surviving minor children, the impact on the estate can be significant. The surviving spouse and minor children have the right to occupy the homestead, regardless of whether the homestead was the Decedent’s separate property or the community property of the Decedent and the surviving spouse. The right to occupy has nothing to do with title in the home. This means that even if somebody else inherits the Decedent’s interest […]

Exempt Property

October 31, 2012

The probate court can “set aside” certain property in an estate so that it will be exempt from creditors. This is typically done immediately after an inventory, appraisement, and list of claims is filed. The surviving spouse and minor children of the Decedent have the right to use the Decedent’s exempt personal property during the pendency of the estate administration. According to the Texas Property Code, the “exempt personal property” set-aside consists of a certain amount of personal property, such as furniture, clothing, provisions for consumption, jewelry, vehicles, tools of […]