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Can I probate a lost will in Texas?

Russell Aldrich | November 15, 2023

In Texas, a will that’s been lost or destroyed can be admitted to probate if its existence, content, and the reason for its loss are established, typically requiring witness testimony. Common reasons for a lost will include accidental misplacement, intentional destruction, possession of outdated copies, or inaccessible storage like safe deposit boxes. If searching for a lost will, consider checking the deceased’s home, consulting relatives, the drafting attorney, banks, local courts, or probate records. While Texas law does allow for the probate of lost wills, the process is intricate; even if only a copy exists, it’s treated as a lost will, necessitating substantial proof of its original validity.

My Family Member is Hiding a Will: Legal Implications and Next Steps

Russell Aldrich | November 15, 2023

The passing of a loved one requires addressing their last wishes through their will, but complications arise if a family member is hiding it. Frequently, a person hides a will because the document cuts them out of the estate or otherwise would cause them to receive less money from the estate. In Texas, the consequences of hiding a will include criminal prosecution and civil liability. If you believe that a family member is hiding a loved one’s will, it is imperative that you contact an experienced estate litigation attorney to go over your options and ensure that the deceased’s intentions are honored.

How Do I Contest A Forged Will?

Russell Aldrich | August 7, 2023

To prevail in a will contest on the basis that the will is a forgery, the contesting party must present sufficient evidence to prove that the document in question was forged. These cases nearly always require the use of expert witness testimony from a qualified handwriting or document analyst. The expert conducts their analysis by comparing the questioned handwriting on the will with known samples of the testator’s handwriting to determine its authenticity. In making this determination, the handwriting experts use a wide variety of tools and procedures, such as magnifying glasses, digital microscopes, and an examination of the handwriting under ultraviolet light. The expert’s findings as to whether the will is a forgery are presented in a report and through witness testimony in court. Handwriting analysis can be performed on a photocopy of a will, but it may be less reliable than analyzing the original document.

The Top 10 Estate Battles Of All Time

Russell Aldrich | April 1, 2023

This article highlights ten notable estate disputes involving celebrities and other famous individuals. Some of the most famous cases include Howard Hughes, who died without a will, leading to a decade-long legal battle; Anna Nicole Smith, who fought for a share of her late husband’s $1.6 billion estate; and Prince, whose unexpected death without a will left his multi-million-dollar estate up for grabs among his siblings. These cases illustrate the importance of proper estate planning and demonstrate that money and fame do not guarantee happiness.

Can I File A Will Contest On A Contingency Fee Basis?

Russell Aldrich | March 15, 2023

In a will contest, a contingency fee arrangement may be possible if the case has strong merits, significant assets at stake, clear evidence, a high likelihood of recovery, and a favorable legal environment. A contingency fee arrangement involves an attorney representing a client without upfront payment, receiving a percentage of any recovery obtained. These arrangements are more attractive for attorneys when the estate is substantial, and the case has a higher likelihood of success. However, each case is unique, so consulting with an experienced probate litigation attorney is recommended to discuss the specific circumstances and explore representation options.

Expert Witnesses In Will Contests

Russell Aldrich | March 8, 2023

In a will contest, expert witnesses can provide valuable information to support a party’s position and help the court make informed decisions. Common types of expert witnesses include medical professionals, handwriting experts, estate planning attorneys, financial experts, appraisers and valuators, and elder care specialists. Their expertise may cover topics such as mental capacity, signature authenticity, standard legal practices, asset tracing, estate asset valuation, and vulnerability to exploitation.

Can I Inherit As A Common-Law Spouse In Texas?

Russell Aldrich | March 1, 2023

In Texas, common-law spouses have the same inheritance rights as those in traditional marriages, including community property, homestead rights, exempt property, and family allowance. To establish a common-law marriage, a couple must agree to be married, live together as husband and wife, and present themselves as married to others. To prove their claim, the claimant must provide evidence, such as a signed declaration of informal marriage, joint tax returns, shared financial records, property records, witness testimonies, insurance policies, employer records, or mail and correspondence. Consulting a probate attorney with experience in common-law marriage matters is advised for a better understanding of the requirements and evidence necessary for each case.

Witness Testimony And Depositions In Will Contests

Russell Aldrich | February 23, 2023

Depositions are a pretrial discovery tool in civil litigation, including will contests, used to gather information from witnesses and parties under oath. They serve several purposes, including fact-finding, preserving testimony, evaluating witness credibility, and preparing for trial. In will contests, depositions can address issues such as testamentary capacity, undue influence, duress, fraud, or forgery, providing essential information to build a strong case or prepare for potential settlement negotiations.

Lack of Testamentary Capacity in Texas Will Contests

Russell Aldrich | January 31, 2023

Testamentary capacity is a legal requirement for a will to be considered valid and enforceable in Texas. Testamentary capacity means that the person making the will must have the ability to understand the nature and effect of making a will and the property being disposed of at the time of the will’s execution. Lack of testamentary capacity is a common complaint in will contests and can result in the probate court declaring a will invalid. The elements required for testamentary capacity are described in Prather v. McClelland, a seminal Texas Supreme Court decision from 1890. These elements include understanding the nature of the business, the nature and extent of property, the natural objects of one’s bounty, and the mode and manner of distribution. In determining testamentary capacity, Texas probate courts consider several factors, such as age, mental state, medical history, influence of drugs or alcohol, and behavior.

Evidence in Will Contests, Probate Litigation, and Trust Litigation in Texas

Russell Aldrich | January 31, 2023

In will contests and other types of probate and trust litigation, the evidence commonly presented includes wills, trusts, estate planning documents, witness testimony, medical records, financial records, expert witness testimony, and evidence of undue influence or fraud. Probate litigation attorneys use various discovery tools – such as requests for production, interrogatories, depositions, requests for admission, and subpoenas duces tecum – to gather this evidence from opposing parties and non-parties to the case. Any evidence obtained must comply with the Texas Rules of Evidence for it to be admissible in court. An attorney experienced in probate litigation will be able to navigate the complexities of these rules to ensure any admissible evidence is duly presented to the judge or jury.

Power of Attorney Abuse in Texas

Russell Aldrich | January 31, 2023

A power of attorney (POA) is a legal document that allows a person to give another person the authority to make decisions and take actions on their behalf. Power of attorney litigation arises when there is a dispute over the scope of the powers granted, the validity of the power of attorney document itself, and the unauthorized use of the power of attorney to steal, transfer, or misappropriate the assets of the principal. Power of attorney litigation often goes hand in hand with allegations of undue influence, elder abuse, or financial exploitation of a vulnerable person by one or more individuals. If one or more warning signs indicate that a person is being exploited by a person abusing a power of attorney, you should consult with an attorney with experience in power of attorney litigation to go over your case and explore the available options.

Undue Influence in Texas Will Contests

Russell Aldrich | January 31, 2023

Undue influence occurs when a person uses coercion or manipulation to persuade another person to act against their own free will. In the context of a will contest, undue influence can occur when an individual, through the exercise of power or by way of a confidential relationship – causes another to execute a will that they otherwise would not have executed or include provisions in a will that they otherwise would not have included. This article outlines the elements necessary to prevail in a will contest alleging undue influence, the signs of undue influence, and the types of evidence used to prove the existence of undue influence in court.

Probate litigation: An introduction to will contests in Texas

Russell Aldrich | December 23, 2019

A will contest is the process of requesting a court order declaring that the will of a decedent is invalid. If a contested will is found to be invalid by a probate court or other court with probate jurisdiction, the contested will cannot be admitted to probate; in effect, the court order makes it as though the contested will never existed. In Texas, a will may be contested on several grounds, to include fraud, undue influence, and a lack of testamentary capacity.

When can I sue for the mismanagement of a trust?

Russell Aldrich | December 23, 2019

A trustee is an individual or a corporation in charge of administering a trust and effectuating the terms contained in the trust agreement. Trustees have significant duties and responsibilities that are enumerated in the terms of the trust document and provided for in Texas statutory and caselaw. A trustee must act prudently and place the interests of the trust beneficiaries above their own. In cases where a trustee fails to carry out the terms of the trust, performs their duties negligently, or misappropriates trust assets, the beneficiaries of the trust may sue the trustee for a breach of fiduciary duty and apply for a court order removing the trustee.

Fiduciary duties in probate administration explained

Russell Aldrich | December 23, 2019

Texas law describes the duties and obligations of executors and administrators charged with the administration of a decedent’s estate. Their duties include the gathering of a decedent’s assets; filing any necessary tax returns; providing notice to creditors and beneficiaries of the estate; filing an inventory of estate assets with the probate court; paying any applicable debts of the decedent and expenses incurred over the course of the probate administration; and distributing the assets of the estate to its beneficiaries or heirs. The beneficiaries or heirs of an estate can seek a court order removing an executor or administrator if they mismanage the estate or otherwise fail to abide by the will’s terms and/or their obligations pursuant to the Texas Estates Code . If the beneficiaries or heirs were harmed by the executor or administrator’s actions, they may also elect to file suit for breach of fiduciary duty and request a judgment for damages and attorney’s fees.

Recent Texas case highlights issues with handwritten wills

Russell Aldrich | December 23, 2019

Texas law provides that handwritten (“holographic”) wills are valid if certain requirements are met. Although permitted by the Texas Estates Code, holographic wills may increase the likelihood of a will contest contesting the validity of the document after the death of the testator. In Amaro v. Gilman & Associates, 15 beneficiaries of an estate filed a will contest alleging that the holographic will of a deceased loved one was a forgery. The judge in the case ruled against the beneficiaries and declared the disputed will to be valid. The beneficiaries then sought, unsuccessfully, to reopen the will contest so they could present the testimony of a handwriting expert.