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“[A]demption describes the extinction of a specific bequest or devise because of the disappearance of or disposition of the subject matter given from the estate of the testator in his lifetime.’ Unless the testatrix specifically provides otherwise in the will, the sale or removal of a specific bequest from the estate adeems the devise or bequest. A will speaks at the time of the testatrix’s death, and only the estate the testatrix then possessed passes under the terms of the will. When a specific devise of realty is adeemed because the testatrix sold it before her death, absent a contrary intent expressed in the will, the beneficiaries of the realty under the will are not entitled to the sale proceeds; instead, the proceeds pass under the residuary clause.” |
If a testator leaves a specific bequest such as real property, but sells the real property prior to death, the specific bequest goes away. The beneficiary of the specific bequest does not receive the proceeds of the sale. Rather, the proceeds pass to the residuary beneficiary. “The doctrine of ademption applies only to specific bequests and devises.” |
San Antonio Area Found. v. Lang, 35 S.W.3d 636, 641-42 (Tex. 2000). In re Estate of Brown, 922 S.W.2d 605, 607 (Tex. App.—Texarkana 1996, no writ). |
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For probate purposes, a child can be adopted in two ways—formally, or by estoppel. |
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Adoption presumed by acts of holding oneself out as the adoptive parent rather than by a formal adoption. |
No formal adoption occurs but the parent takes affirmative acts that indicate the child is his or her adopted son or daughter. |
Tex. Est. Code § 22.004 Moran v. Adler, 570 S.W.2d 883, 885 (Tex. 1978). Curry v. Williman, 834 S.W.2d 443, 444–45 (Tex. App.—Dallas 1992, writ denied). |
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Adoption – Formal |
An adoption pursuant to current or former statutory procedures. |
An adoption approved and ordered by a court after meeting certain legal requirements. |
Tex. Est. Code §§ 22.004, 201.054. |
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Allowance in Lieu of Exempt Property See also Exempt Property to Be Set Aside |
“(a) If all or any of the specific articles exempt from execution or forced sale by the constitution and laws of this state are not among the decedent’s effects, the court shall make, in lieu of the articles not among the effects, a reasonable allowance to be paid to the decedent’s surviving spouse and children as provided by . . . (b) The allowance in lieu of a homestead may not exceed $45,000, and the allowance in lieu of other exempt property may not exceed $30,000, excluding the family allowance for the support of the surviving spouse, minor children, and adult incapacitated children provided by . . . .” |
If there is no or insufficient exempt property to be set aside, the court may instead grant an allowance of other property up to the limits noted by statute. |
Tex. Est. Code § 353.053 |
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When the words of a document, read alone, are unclear and can be subject to more than one interpretation. |
“[W]hether or not an ambiguity exists is generally a question of law for the determination of the court.” |
Langston v. First Nat’l Bank, 449 S.W.2d 855, 857 (Tex. App.—Amarillo 1969, no writ). |
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Ambiguity – latent |
“A latent ambiguity exists when the will appears to convey a sensible meaning on its face but it cannot be carried out without further clarification.” |
A provision that seems clear on its face but requires clarification from sources other than the will itself. Example: A will provides “I leave $10,000 to my grandson Tom,” and the decedent has two grandsons named Tom. |
In re Estate of Brown, 922 S.W.2d 605, 608-09 (Tex. App.—Texarkana 1996, no writ). |
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Ambiguity – patent |
“A patent ambiguity is one apparent on the will’s face. It arises on the reading of the will from the words themselves.” |
A provision whose meaning is unclear on its face. Example: “I leave ten thousand dollars ($5,000) to my friend Joe.” |
In re Estate of Brown, 922 S.W.2d 605, 608-09 (Tex. App.—Texarkana 1996, no writ). |
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Attorney Ad Litem |
“[T]he judge of a probate court may appoint an attorney ad litem in any probate proceeding to represent the interests of any person, including: (1) a person who has a legal disability under state or federal law; (2) a nonresident; (3) an unborn or unascertained person; (4) an unknown heir; (5) a missing heir; or (6) an unknown or missing person for whom cash is deposited into the court’s registry [pursuant to partition and distribution of the estate].” “‘Attorney ad litem’ means an attorney appointed by a court to represent and advocate on behalf of a proposed ward, an incapacitated person, an unborn person, or another person in a guardianship proceeding.” |
Attorney ad litems are attorneys appointed by the court to represent the interest of certain persons who—for various reasons—are not able to represent themselves. The role of the attorney ad litem varies depending on the case in which the attorney is appointed. For example, the role of an attorney ad litem in a guardianship proceeding is different than the role in a probate proceeding. |
Tex. Est. Code §§ 53.104, 1002.002 |
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Affidavit in Lieu of Inventory, Appraisement, & List of Claims |
“[I]f there are no unpaid debts, except for secured debts, taxes, and administration expenses, at the time the inventory is due, including any extensions, an independent executor may file with the court clerk, in lieu of the inventory, appraisement, and list of claims, an affidavit stating that all debts, except for secured debts, taxes, and administration expenses, are paid and that all beneficiaries have received a verified, full, and detailed inventory and appraisement.” |
In certain situations where the estate has only certain unpaid debts, an independent executor may file a less formal affidavit instead of the more formal inventory, appraisement, and list of claims. See Inventory & Appraisement and List of Claims. |
Tex. Est. Code § 309.056 |
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Beneficiary means a person, entity, state, governmental agency of the state, charitable organization, or trust entitled to receive property under the terms of a decedent’s will or, sometimes, as an heir of the decedent. |
The person or entity receiving property under a will. This term may sometimes, depending on the context, refer to an heir if the person died without a will. |
Tex. Est. Code §§ 308.001, 309.056 |
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Property given pursuant to a will. |
There are 4 types. “[A] testator’s bequests can be divided into four categories: specific, demonstrative, general and residuary.” |
Hurt v. Smith, 744 S.W.2d 1, 4 (Tex. 1987). |
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A bequest is “specific if (1) it is described with such particularity that it can be distinguished from all of the testator’s other property and (2) the testator intended for the beneficiary to receive that particular item, rather than cash or other property from his general estate.” |
Examples: “my diamond wedding ring,” or “my coin collection.” See Ademption. |
Hurt v. Smith, 744 S.W.2d 1, 4 (Tex.1987). |
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“Demonstrative legacies are bequests of sums of money, or of quantity or amounts having a pecuniary value and measure, not in themselves specific, which the testator intended to be charged primarily to a particular fund or piece of property.” |
For example – 1/3 of my house or 1/3 of the proceeds from the sale of my house. |
Hurt v. Smith, 744 S.W.2d 1, 4 (Tex. 1987). |
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“A legacy is a general bequest if (1) it bequeaths a designated quantity or value of property or money and (2) the testator intended for it to be satisfied out of his general assets rather than disposing of, or being charged upon, any specific fund or property.” |
For example – $500,000 to my daughter Susie. |
Hurt v. Smith, 744 S.W.2d 1, 4 (Tex. 1987). |
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“And finally, a legacy should be classified as a residuary bequest if the testator intended for the gift to bequeath everything left in the estate, after all debts and legal charges have been paid, and after all specific, demonstrative and general gifts have been satisfied.” |
For example – the residuary of my estate goes to my favorite charity, the SPCA of Texas. |
Hurt v. Smith, 744 S.W.2d 1, 4 (Tex. 1987). |
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Capacity |
There is no single definition of capacity in Texas. Rather, it depends on the underlying facts and situation at issue. |
A person can do may things that require different levels of capacity. Each level of capacity is different and carries a unique set of requirements. |
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Persons may bind themselves to contractual duties if they: (1) appreciate the effect of their acts; (2) understand the nature and consequences of their acts; and (3) understand the business they are transacting. “Mental capacity may be shown by circumstantial evidence of: (1) a person’s outward conduct that manifests an inward condition; (2) pre-existing external circumstances tending to produce a special mental condition; and (3) a prior or subsequent mental condition.” |
Often referred to as “mental capacity,” the extent of contractual capacity required can vary depending on the sophistication of the contract. Complicated transactions, for example, may require a higher degree of mental capacity then a simple contract. The issue of whether a person has mental capacity is ordinarily a question of fact for the jury to decide. |
Mandell & Wright v. Thomas, 441 S.W.2d 841, 845 (Tex. 1969). In re Estate of Vackar, 345 S.W.3d 588, 597 (Tex. App.—San Antonio 2011, no pet.). |
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Testamentary Capacity |
“Testamentary capacity means that a party must have sufficient mental ability to: (1) understand the business in which the party is engaged; (2) understand the effect of the act in making a will; (3) understand the general nature and extent of the party’s property; (4) know the party’s next of kin and natural objects of the party’s bounty and the claims upon them; and (5) collect in the party’s mind the elements of the business to be transacted and hold them long enough to perceive their obvious relation to each other and to form a reasonable judgment about them.” “A person may be incompetent at one time but competent at another time.” |
Often referred to as being of “sound mind,” testamentary capacity is a lower standard than contractual capacity. Another way to state the formal definition is to: (1) understand the will; (2) understand the effect of making a will; (3) know the general nature and extent of their property; (4) know the person or persons to whom they wish to give their property and also know the person or persons dependent upon the testator for support; and (5) collect all the above information and hold it long enough to perceive the obvious relationship of one to each other and to be able to form a reasonable judgment. A testator may lack capacity immediately before and immediately after signing a will. The issue is capacity at the time of the will. For example, a lucid interval. See also insane delusion. |
Tieken v. Midwestern State Univ., 912 S.W.2d 878 (Tex. App.—Fort Worth 1995, no writ) (citing Prather v. McClelland, 13 S.W. 543, 546 (Tex. 1890)). Dubree v. Blackwell, 67 S.W.3d 286, 289 (Tex. App.—Amarillo 2001, no pet.). |
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Child |
Includes both the natural or adopted child whether formally adopted or adopted by estoppel. |
See Adoption – Estoppel. |
Tex. Est. Code § 22.004 |
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Child – Pretermitted Pretermitted Child |
“Pretermitted child” means a testator’s child who is born or adopted: (1) during the testator’s lifetime or after the testator’s death; and (2) after the execution of the testator’s will. |
A child born or adopted after the will is executed but either before or after the testator dies. |
Tex. Est. Code § 255.051 |
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Claims Classification Priority of Payment |
Claims against an estate shall be classified and paid in the following priority: Class 1 claims are composed of funeral expenses and expenses of the decedent’s last illness for a reasonable amount approved by the court, not to exceed a total of $15,000. . . Class 2 claims are composed of expenses of administration, expenses incurred in preserving, safekeeping, and managing the estate. . . Class 3 claims are composed of each secured claim for money . . ., including a tax lien, to the extent the claim can be paid out of the proceeds of the property subject to the mortgage or other lien. . . Class 4 claims are composed of claims for the principal amount of and accrued interest on delinquent child support . . . Class 5 claims are composed of claims for taxes, penalties, and interest due under [certain Texas statutes]. Class 6 claims are composed of claims for the cost of confinement established by the Texas Department of Criminal Justice . . . Class 7 claims are composed of claims for repayment of medical assistance payments made by the state . . . Class 8 claims are composed of any other claims . . . . |
Tex. Est. Code § 355.102 |
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A codicil is a document that amends, supplements, or revokes a prior will in some fashion. |
”The will and the codicil are to be construed as one instrument.” |
Tex. Est. Code § 253.001. Van Hoose v. Moore, 441 S.W.2d 597, 609 (Tex. App.—Amarillo 1969, writ ref’d n.r.e.). |
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“‘Contents’ means tangible personal property, other than titled personal property, found inside of or on a specifically devised item. The term includes clothing, pictures, furniture, coin collections, and other items of tangible personal property that: (A) do not require a formal transfer of title; and (B) are located in another item of tangible personal property such as a cedar chest or other furniture.” |
See “Titled Personal Property.” |
Tex. Est. Code § 255.001(1) |
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Devise |
When “used as a noun [devise or legacy] includes a testamentary disposition of real property, personal property, or both; and [when] used as a verb [devise] means to dispose of real property, personal property, or both, by will.” |
As a verb it means the act of giving a person’s property through a will or, as a noun, refers to the property given. See “Bequests & Devises” for 4 types of each. |
Tex. Est. Code § 22.008 |
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A person who receives property pursuant to a will. |
“Devisee” or beneficiary inherits under a will. “Heir” inherits when there is no will (intestate). |
Tex. Est. Code §§ 22.009, 22.021 |
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Distributee |
Includes but a Devisee and an Heir. |
See Devisee above and Heir below. |
Tex. Est. Code § 22.010 |
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Durable Power of Attorney |
“A person may use a statutory durable power of attorney to grant an attorney in fact or agent powers with respect to a person’s property and financial matters.” |
The Statutory Durable Power of Attorney allows one person to share power over that person’s property and financial matters with another person. It does not provide authority over the physical person or the health or medical decisions of the person. |
Tex. Est. Code §§ 751.002, 752.001 |
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Election Doctrine |
“‘The doctrine of election is based on the principle that a person may not take benefits under a will and, at the same time, set up a right or claim of his own, even if well founded, which would defeat or in any way prevent the full effect and operation of every part of the will.’” “A person cannot take any beneficial interest under a will and at the same time retain or claim any interest, even if well founded, which would defeat or in any way prevent the full effect and operation of every part of the will. Thus, he who accepts a benefit under a will must adopt the whole contents of the instrument, so far as it concerns him, conforming to its provisions, and renouncing every right inconsistent with it.” |
You do not get to take both under the will and also under some separate claim that impairs or impedes the will. The defense of estoppel is an affirmative defense that must be pleaded pursuant to Tex. R. Civ. P. 94. |
In re Estate of McFatter, 94 S.W.3d 729, 734 (Tex. App.—San Antonio 2002, no pet.); In re Estate of McDaniel, 935 S.W.2d 827, 829 (Tex. App.—Texarkana 1996, writ denied). In re Estate of Davis, 870 S.W.2d 320, 320 (Tex. App.—Eastland 1994, no writ). |
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Estate |
“‘Estate’ means a decedent’s property, as that property: (1) exists originally and as the property changes in form by sale, reinvestment, or otherwise; (2) is augmented by any accretions and other additions to the property, including any property to be distributed to the decedent’s representative by the trustee of a trust that terminates on the decedent’s death, and substitutions for the property; and (3) is diminished by any decreases in or distributions from the property.” |
In other words, estate includes all of decedent’s property, including any increase in value, reinvestment, proceeds, or other additions to the property and less any decreases in value or distributions. |
Tex. Est. Code § 22.012 |
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Net Estate |
“‘Net estate’ means a decedent’s property excluding: (1) homestead rights; (2) exempt property; (3) the family allowance; and (4) an enforceable claim against the decedent’s estate.” |
The property left in the estate after paying any family allowance, legitimate claims, and removing exempt property and homestead property. |
Tex. Est. Code § 22.025 |
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Estoppel by Deed |
“Estoppel by deed … prevents a grantor who does not have title at the time of the conveyance, but later acquires title, from denying that he or she had the title at the time of the transfer.” |
If you sell property without title but later acquire title, you cannot later claim you lacked title when you sold the property. |
Gutierrez v. Rodriguez, 30 S.W.3d 558, 560 (Tex. App.—Texarkana 2000, no pet.). |
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“An ‘executory limitation’ is an event which, if it occurs, automatically divests one of devised property. A fee simple estate subject to an executory limitation is called a ‘determinable fee simple estate.’” |
Cooley v. Williams, 31 S.W.3d 810, 813 (Tex. App.—Houston [1st Dist.] 2000, no pet.). |
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Exempt Property See also Exempt Property to be Set Aside |
Exempt property is “the property in a decedent’s estate that is exempt from execution or forced sale by the constitution or laws of this state, and any allowance paid instead of that property.” “[T]here are at least four categories of assets known as non-probate assets, not subject to disposition by will and not subject to the rules of intestate distribution. Examples are (1) property settled in an intervivos trust, where title remains in the trustee notwithstanding the settlor’s death; (2) property passing by right of joint survivorship, as in a valid joint bank account; (3) property passing at death pursuant to terms of a contract, such as provided in life insurance policies, and under contributory retirement plans; and (4) property passing by insurance or annuity contracts created, funded and distributed as directed by federal statutes.” |
Property that is protected from being sold or acquired to satisfy creditors of the estate. Common examples are proceeds of a trust or life insurance. Disposition of such nonprobate assets is governed by lifetime transfer rules, not by death-time transfer rules of the Estates Code. |
Tex. Est. Code § 22.013 Valdez v. Ramirez, 574 S.W.2d 748, 749 (Tex. 1978). |
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“[T]he court by order shall set aside: (1) the homestead for the use and benefit of the decedent’s surviving spouse and minor children; and (2) all other estate property that is exempt from execution or forced sale by the constitution and laws of this state for the use and benefit of the decedent’s: (A) surviving spouse and minor children; (B) unmarried adult children remaining with the decedent’s family; and (C) each other adult child who is incapacitated.” |
See also Allowance in Lieu of Exempt Property |
Tex. Est. Code § 353.051 |
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Family Allowance |
An amount the court sets for the support of the decedent’s surviving spouse, minor children, and adult incapacitated children, for a period of one year after the decedent’s death. |
The court can set this amount on its own after the court approves the inventory, appraisement and list of claims or before approval of the inventory if an application for a family allowance is made. Whether a family allowance is set is largely dependent on need which is determined largely based on the separate assets of decedent’s surviving spouse, minor children, and adult incapacitated children. The family allowance takes priority over most other claims against the estate. |
Tex. Est. Code § 353.101 |
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Fee Simple |
An ownership right unrestricted by ownership of another. |
Often synonymous with Fee Simple Absolute. |
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“A ‘fee simple absolute’ is an estate over which the owner has unlimited power of disposition in perpetuity without condition or limitation.” |
Cooley v. Williams, 31 S.W.3d 810, 813 (Tex. App.—Houston [1st Dist.] 2000, no pet.). |
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Determinable fee simple is a fee simple estate subject to an executory limitation. |
See Executory Limitation. |
Cooley v. Williams, 31 S.W.3d 810, 813 (Tex. App.—Houston [1st Dist.] 2000, no pet.). |
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Final Judgment One Final Judgment Rule |
“All final orders of any court exercising original probate jurisdiction are immediately appealable to the courts of appeals. To be deemed final and appealable, an order rendered in a probate proceeding need not finally dispose of the entire proceeding. A probate proceeding consists of a continuing series of events, in which the probate court may make decisions at various points in the administration of the estate on which later decisions will be based. The need to review controlling, intermediate decisions before an error can harm later phases of the proceeding has been held to justify modifying the ‘one final judgment’ rule. . . . . It has been held that an appealable order in a probate proceeding must adjudicate conclusively a controverted question or substantial right.” |
In most civil lawsuits, there is no appeal until the court issues a final judgment that disposes of all claims and all parties – often referred to as the one final judgment rule. In estate and guardianship matters, the one final judgment rule is modified such that an appealable order must conclusively resolve a controverted question or substantial right. Therefore, there can be more than one final judgment in the course of single estate or guardianship matter. |
Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex. App.—Austin 2000, pet. denied). |
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Foreign Will |
“The written will of a testator who was not domiciled in this state at the time of the testator’s death.” |
Tex. Est. Code § 501.001 |
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Forfeiture Clause in terrorem clause |
A provision in a will that voids a bequest to any person that brings a court action seeking to contest a will. |
Tex. Est. Code § 254.005 |
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Four Corners Doctrine |
“The cardinal rule for construing a will requires that the testator’s intent be ascertained by looking to the provisions of the instrument as a whole, as set forth within the four corners of the instrument. The court shall effectuate that intent as far as legally possible. The will should be construed so as to give effect to every part of it, if the language is reasonably susceptible of that construction. However, the court will not redraft the will or add provisions under the guise of construction in order to effectuate some presumed intent of the testator.” |
If the language of a will is clear, it is not subject to interpretation. If, however, the language of a will is not clear (ambiguous), a court first looks solely to the will itself in an effort to determine the decedent’s intent. See ambiguity. |
Perfect Un. Lodge v. InterFirst Bank-San Antonio, 748 S.W.2d 218, 220 (Tex. 1988). |
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Guardianship |
Guardianship is a legal process designed to protect people who are vulnerable because of physical or mental limitations from abuse, neglect and exploitation. Similar to medical and financial powers of attorney, there can be a guardian of the proposed ward’s person and estate. There can be only one guardian of each but the same person can be the guardian of both. |
A guardianship can be limited and should be limited so as to protect the person’s independence and right to make decisions affecting his or her life to the largest extent possible while also providing for a person’s care and management of his or her person and finances. The guardianship of an estate is similar to a dependent administration of an estate. |
Hartford Cas. Ins. v. Morton, 141 S.W.3d 220, 226 (Tex. App.—Tyler 2004, pet. denied). |
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“‘Heir’ means a person who is entitled under the statutes of descent and distribution to a part of the estate of a decedent who dies intestate. |
“Devisee” or “beneficiary” inherits under a will. “Heir” inherits when there is no will (intestate). |
Tex. Est. Code § 22.015 |
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Incapacitated Person |
“A person is ‘incapacitated’ if the person: (1) is a minor; (2) is an adult who, because of a physical or mental condition, is substantially unable to: (A) provide food, clothing, or shelter for himself or herself; (B) care for the person’s own physical health; or (C) manage the person’s own financial affairs; or (3) must have a guardian appointed for the person to receive funds due the person from a governmental source.” “A reference to any of the following means an incapacitated person: (1) a person who is mentally, physically, or legally incompetent; (2) a person who is judicially declared incompetent; (3) an incompetent or an incompetent person; (4) a person of unsound mind; or (5) a habitual drunkard.” |
The Texas Estates Code defines an incapacitated person for guardianship purposes as either a minor or as an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs. |
Tex. Est. Code §§ 22.016, 1001.003, 1002.017 |
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Independent Executor |
An independent executor is created by a will and, once approved, does not need the authority or approval of the probate court to take the actions authorized by the will. “‘[W]here the language of a will appointing an independent executor is clear and unambiguous, he becomes a creature of the will and not of the probate court. He is by the terms of the will vested with unbridled authority over the estate and is authorized to do any act respecting it which the court could authorize to be done if the entire estate were under its control, or whatever testator himself could have done in his lifetime, except as restrained by the terms of the will itself.’” |
Can only be created by a will. An independent administrator does not enjoy the same freedom from probate court authority as an independent executor. |
Tex. Est. Code § 402.051 Kanz v. Hood, 17 S.W.3d 311, 317 (Tex. App.—Waco 2000, pet. denied). |
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Intent – Testamentary Testamentary Intent animus testandi |
Testamentary intent is the intent to create a revocable disposition of one’s property to take effect after one’s death. |
In other words, the desire to determine what happens to one’s property at death. |
Hinson v. Hinson, 280 S.W.2d 731, 733 (Tex. 1955). |
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Intent – Testator’s Testator’s Intent |
A testator’s intent is determined as of the time the will is executed. “The cardinal rule of testamentary construction is to ascertain the intent of the testator and give it effect, and such intention, when ascertained, will control any arbitrary rule.” |
Henderson v. Parker, 728 S.W.2d 768, 770 (Tex. 1987). Houston Bank & Trust Co. v. Lansdowne, 201 S.W.2d 834, 837 (Tex. App.—Galveston 1947, writ ref’d n.r.e.). |
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Interested Person |
“Interested person” or “person interested” means: (1) an heir, devisee, spouse, creditor, or any other person having a property right in or claim against an estate being administered; or (2) a person interested in the welfare of an incapacitated person. “A ‘person interested in the estate’ is ‘one who has a legally ascertained pecuniary interest, real or prospective, absolute or contingent, which will be impaired, benefitted, or in some manner materially affected by the probate of the will.’ The inquiry … is not whether the contestant has an interest in a particular will; rather, the inquiry is whether the contestant has an interest in the decedent’s estate.” |
Tex. Est. Code § 1002.018; Evans v. Allen, 358 S.W.3d 358, 364 (Tex. App.—Houston [1st Dist.] 2011, no pet.). |
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“Insane delusion” is defined as “‘the belief of a state of supposed facts that do not exist, and which no rational person would believe….’” “A person who is entirely capable of attending to his business affairs may nevertheless have his mind so warped and deranged by some false and unfounded belief that he is incapable of formulating a rational plan of testamentary disposition. …” |
The capacity of a testator can also be negated by a showing of an “insane delusion”—an irrational perception of particular persons or events—if the delusion materially affects the will. Testators must know and understand facts, and their knowledge or understanding must be based on reality if material to the disposition. See also “lucid interval.” |
Knight v. Edwards, 264 S.W.2d 692, 695 (Tex. 1954); Lindley v. Lindley, 384 S.W.2d 676, 679 (Tex. 1964). |
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See also List of Claims |
“[U]less a longer period is granted by the court, before the 91st day after the date the personal representative qualifies, the representative shall prepare and file with the court clerk a single written instrument that contains a verified, full, and detailed inventory of all estate property that has come into the representative’s possession or of which the representative has knowledge. The inventory must: (1) include: (A) all estate real property located in this state; and (B) all estate personal property regardless of where the property is located; and (2) specify which portion of the property, if any, is separate property and which, if any, is community property. (b) The personal representative shall: (1) set out in the inventory the representative’s appraisement of the fair market value on the date of the decedent’s death of each item in the inventory; or (2) if the court has appointed one or more appraisers for the estate: (A) determine the fair market value of each item in the inventory with the assistance of the appraiser or appraisers; and (B) set out that appraisement in the inventory. |
The personal representative must file an inventory and list of claims within 91 days of qualifying unless the court extends the period. The inventory must list all real and personal property in the personal representative’s possession and identify the portions that are separate and community property. The inventory must include the fair market value of all items listed as of the date of death. |
Tex. Est. Code § 309.051 |
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Letters Testamentary Letters of Administration |
“Letters testamentary or of administration shall be in the form of a certificate of the clerk of the court granting the letters, attested by the court’s seal, that states: (1) the executor or administrator, as applicable, has qualified as executor or administrator in the manner required by law; (2) the date of the qualification; and (3) the name of the decedent.” |
A document issued by the clerk of the court to the person appointed executor or administrator of the estate. The letter serves to tell third parties that the executor or administrator has been appointed over the estate of the decedent as of a certain date. The purpose is to show that the executor or administrator has the power to act on behalf of the estate as granted by the court. |
Tex. Est. Code §§ 301, 306; 306.005–007 |
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Letters of Guardianship |
Letters of guardianship or a certificate issued under seal of the clerk of the court that granted the letters is sufficient evidence of: (1) the appointment and qualification of the guardian; and (2) the date of qualification. The court order that appoints the guardian is evidence of the authority granted to the guardian and of the scope of the powers and duties that the guardian may exercise only after the date letters of guardianship or a certificate has been issued. |
A document issued by the clerk of the court to the person appointed guardian of the person or estate. The letter serves to tell third parties that the guardian has been appointed over the person or estate of the ward as of a certain date. The purpose is to show that the guardian has the power to act on behalf of the person or estate as granted by the court. |
Tex. Est. Code §§ 1106.001–005 |
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See also Inventory & Appraisement |
A complete list of claims due or owing to the estate must be attached to the inventory and appraisement. The list of claims must state: (1) the name and, if known, address of each person indebted to the estate; and (2) regarding each claim: (A) the nature of the debt, whether by note, bill, bond, or other written obligation, or by account or verbal contract; (B) the date the debt was incurred; (C) the date the debt was or is due; (D) the amount of the claim, the rate of interest on the claim, and the period for which the claim bears interest; and (E) whether the claim is separate property or community property. |
The personal representative must attach a list of claims the estate has against others to the inventory and appraisement. The list of claims identifies the type of each claim the estate has, the original date of the claim, the due date, any interest rate, and whether it is separate or community property. |
Tex. Est. Code § 309.052 |
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A testator may lack capacity immediately before and immediately after signing a will, but not at the time of execution. This is referred to as a “lucid interval.” See also “insane delusion.” |
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Management Trust |
A trust for the management of the estate of an alleged incapacitated person. |
Tex. Est. Code §§ 1301.001–054 |
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Per Capita |
Meaning per person. The result is that each individual beneficiary receives an equal share. Should a named beneficiary in a will predecease the testator, the descendants of that named beneficiary receive an identical share as the surviving named beneficiaries. Thus each inheriting person receives an equal share. See per stirpes. |
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Meaning per branch. The result is that each branch, not each person, of the inheriting family inherits equal shares of the estate. Thus, should a beneficiary predecease the testator, the descendants of that beneficiary split that beneficiary’s share. Each inheriting person may not receive an equal share. |
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Person |
“Includes a natural person and a corporation.” It also includes a guardianship program. |
This definition is unique to probate and expressly excludes the definition of “person” in Govt. Code § 311.005 (which states “Person” includes corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity.) |
Tex. Est. Code §§ 22.027, 1002.023 |
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Personal Representative Representative – Personal |
“Representative” and “personal representative” include: (1) an executor and independent executor; (2) an administrator, independent administrator, and temporary administrator; and (3) a successor to an executor or administrator. “Representative” and “personal representative” also include: (1) a guardian; and (2) a successor guardian. |
The person put in charge of managing the estate by the court. Also a guardian of the estate or ward. |
Tex. Est. Code §§ 22.031, 1002.028. |
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Power of Appointment Appointment |
“‘A power of appointment is a power of disposition given to a person over property not his own, by [someone] who directs the mode in which that power shall be exercised by a particular instrument.’” |
A person owning property can include a power of appointment to a beneficiary of that property in a trust or will. The power of appointment permits the beneficiary to change or alter who receives the property given to the beneficiary. |
Republic Nat’l Bank v. Fredericks, 283 S.W.2d 39, 46 (Tex. 1955). |
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Probate |
“Whether an instrument should be admitted to probate as an unrevoked last will is the matter for determination in an application for probate of a will. That decision is made by determining ‘whether it had been revoked, whether it was executed in the manner and conditions required by law, and whether the maker had testamentary capacity and was not under undue influence (if raised) when it was executed.’” “[T]he function of the probate court is limited to determining whether the will was executed by the decedent in the manner prescribed by the statute and at a time when he was legally competent to execute it free from duress, fraud, and undue influence.” “Before a will is admitted to probate, the proponent of the will bears the burden of establishing that it was properly executed and that the testator had testamentary capacity.” |
Probate is the process by which a court determines that a particular will satisfies the legal requirements to be admitted as the descendant’s last will. That includes determining that the person had testamentary capacity and was not under undue influence at the time the will was executed. |
Tips v. Yancey, 431 S.W.2d 763, 764 (Tex. 1968). Pullen v. Russ, 209 S.W.2d 630, 633 (Tex. App.—Amarillo 1948, writ ref’d n.r.e.); In re Estate of Coleman, 360 S.W.3d 606, 610-11 (Tex. App.—El Paso 2011, no pet.). |
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Probate Court – Statutory |
Statutory Probate Courts are a statutorily created probate court system headed by elected judges. Typically, a probate court probates the wills of deceased persons, declares the heirs of deceased persons who die without a will, and establishes guardianships for incapacitated persons and minors. |
A probate court can also hear ‘ancillary’ lawsuits relating to an estate of a decedent or ward as well as actions by or against a personal representative of a decedent’s or ward’s estate. These ancillary cases cover a wide range of topics, from personal injury to fiduciary litigation to family law. |
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Probate Matter Probate Proceeding |
The terms “probate matter,” “probate proceedings,” “proceeding in probate,” and “proceedings for probate” are synonymous and include a matter or proceeding relating to a decedent’s estate. The term “probate proceeding” includes: (1) the probate of a will, with or without administration of the estate; (2) the issuance of letters testamentary and of administration; (3) an heirship determination or small estate affidavit, community property administration, and homestead and family allowances; (4) an application, petition, motion, or action regarding the probate of a will or an estate administration, including a claim for money owed by the decedent; (5) a claim arising from an estate administration and any action brought on the claim; (6) the settling of a personal representative’s account of an estate and any other matter related to the settlement, partition, or distribution of an estate; and (7) a will construction suit. |
A matter filed in court regarding a decedent’s estate, including the probate of the estate or claims against the estate. It does not include a will contest. |
Tex. Est. Code §§ 22.029, 31.001 |
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Property – Real |
“Real property” includes estates and interests in land, whether corporeal or incorporeal or legal or equitable. The term does not include a real chattel. “Property” includes land, minerals in place, whether solid, liquid, or gaseous, and an interest of any kind in that property, including a royalty interest, owned by an estate. |
Generally, real estate and improvements thereon. Also includes oil, gas, and mineral interests. |
Tex. Est. Code §§ 22.030, 358.001, 1002.027 |
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Property – Personal |
“Personal property” includes an interest in: (1) goods; (2) money; (3) a chose in action; (4) an evidence of debt; and (5) a real chattel. |
Generally, all tangible or intangible property other than real property. |
Tex. Est. Code §§ 22.028, 1002.024 |
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Proposed Ward |
“Proposed ward” means a person alleged in a guardianship proceeding to be incapacitated. |
The person over whom a guardianship is sought. |
Tex. Est. Code § 1002.026 |
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Revocation of Will |
“A written will, or a clause or devise in a written will, may not be revoked, except by a subsequent will, codicil, or declaration in writing that is executed with like formalities, or by the testator destroying or canceling the same, or causing it to be destroyed or canceled in the testator’s presence.” |
These are the exclusive methods to revoke a will. |
Tex. Est. Code § 253.002 |
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Rule Against Perpetuities – Perpetuities |
“‘A perpetuity has been defined as a limitation which takes the subject-matter of the perpetuity out of commerce for a period of time greater than a life or lives in being, and 21 years thereafter, plus the ordinary period of gestation.’” |
The rule prevents a person from determining the beneficiaries of that person’s property forever. Instead, the person is limited to 21 years beyond the death of any person living at the time of the testator’s death plus 9 months – the ordinary period to conceive and give birth. |
Rust v. Rust, 211 S.W.2d 262, 266 (Tex. App.—Austin 1948), aff’d, 214 S.W.2d 462 (Tex. 1948). |
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Secured Claims |
Two types – matured secured claim or preferred debt and lien. “A secured creditor may elect to have his claim treated as either: (1) a matured secured claim; or (2) a preferred debt and lien.” If no election to be a matured secured creditor is made, or the election is made, but not within the prescribed period, or is made within the prescribed period but the creditor has a lien against real property and fails to record notice of the claim in the deed records as required within the prescribed period, the claim shall be a preferred debt and lien against the specific property securing the indebtedness and shall be paid according to the terms of the contract that secured the lien, and the claim may not be asserted against other assets of the estate. |
Tex. Est. Code § 403.052 Texas Commerce Bank v. Geary, 938 S.W.2d 205, 208-09 (Tex. App.—Dallas 1997), rev’d on other grounds, 967 S.W.2d 836 (Tex. 1998). |
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Matured Secured Claim |
A matured secured claim is paid in due course of administration, in which case the claim shall be paid in that manner if allowed and approved. “A claim approved as a matured secured claim remains secured by any lien or security interest against the specific property securing payment of the claim but subordinated to the payment from the property of claims having a higher classification.” “If the claim is a matured secured claim, the representative will treat it as third class and pay it, to the extent of the value of the collateral, after first- and second-class claims, but before other lower-class claims. If there is not enough money in the estate to pay the first- and second-class claims, however, the representative will invade the collateral for the matured secured claim to pay the higher-priority claims. If the entire claim is not satisfied through the collateral, the representative can pay the deficiency as a lower-class claim out of other assets of the estate.” |
A secured claim must elect to be treated as a matured secured claim. Otherwise, it is treated as a preferred debt and lien. |
Tex. Est. Code §§ 355.151–153; and 403.053 Texas Commerce Bank v. Geary, 938 S.W.2d 205, 208-09 (Tex. App.—Dallas 1997), rev’d on other grounds, 967 S.W.2d 836 (Tex.1998). |
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Preferred Debt & Lien |
A preferred debt and lien is paid from the proceeds of the specific property securing the indebtedness and paid according to the terms of the contract that secured the lien. “If a claim is a preferred debt and lien, the representative may either pay the debt off or continue making payments as per the terms of the contract that secured the debt. Regardless of which method the representative chooses, the creditor will have priority over all other debts, even first- and second-class claims, to the extent of the value of its collateral. However, if the entire claim is not satisfied through the collateral, the representative cannot pay any deficiency out of other assets of the estate as he could if the claim were a matured secured one.” |
This is the default if a claimant does not make an election or fails to make a timely election. |
Tex. Est. Code §§ 355.151–155; and 403.054 Texas Commerce Bank v. Geary, 938 S.W.2d 205, 208-09 (Tex. App.—Dallas 1997), rev’d on other grounds, 967 S.W.2d 836 (Tex. 1998). |
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The person making the will. |
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“Titled personal property” includes all tangible personal property represented by a certificate of title, certificate of ownership, written label, marking, or designation that signifies ownership by a person. The term includes a motor vehicle, motor home, motorboat, or other similar property that requires a formal transfer of title. |
See “Contents.” |
Tex. Est. Code § 255.001(2) |
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Tortious Interference With Inheritance |
“One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.” “In addition to the tortious conduct required by King [v. Acker, 725 S.W.2d 750 (Tex.App.—Houston [1st Dist.] 1987, no writ)], we have described the elements of this cause of action as the following: ‘(1) that an interference with one’s property or property rights occurred; (2) such interference was intentional and caused damage; and (3) the interference was conducted with neither just cause nor legal excuse.’” |
This is a legal claim that can be brought against anyone who improperly prevents another from receiving an inheritance. |
King v. Acker, 725 S.W.2d 750, 754 (Tex. App.—Houston [1st Dist.] 1987, no writ); In re Estate of Valdez, 406 S.W.3d 228, 233 (Tex. App.—San Antonio 2013, pet. denied). |
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Undistributed Assets |
‘“undistributed assets’ includes funds used to pay debts, administration expenses, and federal and state estate, inheritance, succession, and generation-skipping transfer taxes until the date the debts, expenses, and taxes are paid.” |
The assets of an estate that are not distributed to beneficiaries but instead used to pay debts and expenses of the estate. |
Tex. Est. Code § 310.001 |
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Undue Influence |
To establish undue influence, the party contesting the will “must prove: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence.” “A will may be invalidated because of undue influence if two factors coalesce: (1) pressure is brought to bear on the testator by words or acts of a third person (external conduct), and (2) a collapse of the testator’s own will (internal conduct) produced by the pressure.” “Undue influence may be exercised through fear, threats, deception or some other means of persuasion over the person being so influenced. Such influence may be exerted immediately prior to the execution of the instrument in question, or it may have been consistently and successfully exercised over a long period of time.” “Establishing the existence of undue influence generally involves inquiry into factors such as: (1) the circumstances surrounding execution of the instrument; (2) the relationship between the testator and the beneficiary and any others who might be expected recipients of the testator’s bounty; (3) the motive, character, and conduct of the persons benefitted by the instrument; (4) the participation by the beneficiary in the preparation or execution of the instrument; (5) the words and acts of the parties; (6) the interest in and opportunity for the exercise of undue influence; (7) the physical and mental condition of the testator at the time of the will’s execution, including the extent to which she was dependent upon and subject to the control of the beneficiary; and (8) the improvidence of the transaction by reason of unjust, unreasonable, or unnatural disposition of the property.” |
Even in situations where a testator has capacity to make a will, the will may be invalid if it was the result of undue influence. |
Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963); In re Estate of Steed, 152 S.W.3d 797, 808 (Tex. App.—Texarkana 2004, pet. denied); Grohn v. Marquardt, 657 S.W.2d 851, 855 (Tex. App.—San Antonio 1983, writ ref’d n.r.e.). In re Estate of Sidransky, 420 S.W.3d 90, 96 (Tex. App.—El Paso 2012, pet. denied). |
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Will |
“A will is generally defined as an instrument by which a person makes a disposition of his property, to take effect after his death, and which by its own nature is ambulatory and revocable during his lifetime.” “Will” includes: (1) a codicil; and (2) a testamentary instrument that merely: (A) appoints an executor or guardian; (B) directs how property may not be disposed of; or (C) revokes another will. Subject to limitations prescribed by law, a person competent to make a last will and testament may devise under the will and testament all the estate, right, title, and interest in property the person has at the time of the person’s death. |
Put simply, a will is a document where a person sets forth who should and should not receive all of that person’s property when the person dies. A codicil is a document that amends or supplements the will in some fashion. “If the codicil … was validly executed and republishes the prior will, proof of the codicil will operate also to establish the will without further proof.” |
In re Estate of Brown, 507 S.W.2d 801, 803 (Tex. App.—Dallas 1974, writ ref’d n.r.e.). Tex. Est. Code §§ 22.034, 251.002(a) Aven v. Green, 320 S.W.2d 660, 662 (Tex. 1959). |
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Will Contest |
“Grounds for contesting the validity of a will include failure to comply with statutory requirements, lack of testamentary capacity, undue influence, mistake, fraud or forgery, duress, and existence of an agreement not to probate.” “The proper inquiry in a will contest on the ground of testamentary incapacity is the condition of the testator’s mind on the day the will was executed.” “A will proponent has the burden of proof in the initial probate proceeding. After a will has been admitted to probate, any interested person may sue to contest the validity of the will. After the will has been admitted to probate, the burden of proof is on the contestant to show by a preponderance of the evidence that the will is invalid.” |
A will contest challenges the will on some basis that the testator lacked capacity at the time of execution or that the testator was under duress or undue influence. Burden shifting – Note that the proponent of the will has the initial burden to prove that the will is valid. Once the will is admitted to probate, however, the burden is on the contestant to show the will is not valid. |
In re Estate of Jones, 286 S.W.3d 98, 100 (Tex. App.—Dallas 2009, no pet.). Lee v. Lee, 424 S.W.2d 609, 611 (Tex. 1968); In re Estate of Flores, 76 S.W.3d 624, 629 (Tex. App.—Corpus Christi 2002, no pet.). |
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Will – Self Proving Self-Proved Will |
A will that has the statutorily required language signed by the testator or the statutorily required witness affidavits attached. |
Tex. Est. Code §§ 251.101-1045. |
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Witness – Competent Witness – Credible |
“The Probate Code [now Estates Code] requires every last will and testament, if not wholly in the handwriting of the testator, to be attested by two or more ‘credible witnesses.’ ‘[C]redible witness’ is synonymous with ‘competent witness.’ A competent witness to a will is one who receives no pecuniary benefit under its terms. Conversely, a person interested as taking under a will is incompetent to testify to establish it.” |
A beneficiary under a will cannot also be a competent or credible witness. |
Triestman v. Kilgore, 838 S.W.2d 547, 547 (Tex. 1992). |