Gerry W. Beyer 2017-12-20 20:53:12
Tortious Interference With Inheritance Rights The Texas Supreme Court in Kinsel v. Lindsey1 refused to recognize the tort but instead left the issue open for a future case. Equitable Adoption The 85th Legislature added language expressly including equitably adopted children in the intestacy adoption statute,2 effectively overruling Heien v. Crabtree.3 The court in Dampier v. Williams4 held that an adult may not be adopted by estoppel. Passage of Title The Legislature enacted the Uniform Partition of Heirs Property Act as Property Code Chapter 23A and changed the common law so that under certain circumstances, a co-heir may adversely possess property owned by the other co-heirs.5 Will Reformation A will reformation action must now be filed within four years of when the will was admitted to probate.6 Will Deposit A person who has possession of a testator’s original will and cannot locate the testator may deposit the will with the county clerk of the county of the testator’s last known residence. This is helpful when an attorney has a will but does not know how to locate the testator or even if the testator is still alive.7 Applications Applications to probate a will with an administration or as a muniment of title and applications for letters of administration must now contain the last three numbers of the driver’s license and Social Security numbers of both the decedent (if known or ascertainable with reasonable diligence) and the applicant.8 Notice to Creditors Previously, the personal representative’s notice to creditors was by publication in a newspaper printed in the county where letters were issued. Compliance was sometimes difficult as many newspapers are physically printed in a county different from where they are distributed. Publication is now authorized in a newspaper “of general circulation” in the county where letters were issued.9 Accountings Under prior law, the personal representative in a dependent administration was required to file the annual accounting by the end of each year after receiving letters. This was virtually impossible because there was no lead time from the end of the year to when the accounting was due. Now, the personal representative has 60 days from the end of a year to file the accounting.10 Small Estate Affidavit The maximum value of an intestate estate (excluding homestead and exempt property) eligible to use the small estate affidavit procedure was raised to $75,000 from $50,000.11 Trust Reformation A court may now reform a trust if necessary or appropriate to (1) prevent waste, (2) achieve tax objectives, (3) qualify a beneficiary for governmental benefits, and (4) correct a scrivener’s error if the settlor’s intent is established by clear and convincing evidence.12 Access to Digital Assets The Texas Revised Uniform Fiduciary Access to Digital Assets Act provides guidance regarding how an executor, administrator, trustee, agent, and guardian may access a decedent’s digital assets such as e-mail accounts, social networking accounts, and other material stored online.13 Durable Power of Attorney The Legislature made extensive changes to many aspects of durable power of attorney law including the statutory form. Medical Power of Attorney The disclosure statement is no longer a separate document. Instead, it is included within the medical power of attorney form itself.14 Mental Health Treatment Declaration Instead of having two witnesses sign the declaration, it is now permissible for the declarant to have the declaration notarized.15 Transfer on Death Motor Vehicles New Estates Code Chapter 115 allows the owners of a motor vehicle to name a beneficiary who will own the vehicle upon the owner’s death. The designation cannot be changed by the owner’s will. Ramifications of Divorce An ex-spouse, as well as the ex-spouse’s relatives who are not also relatives of the deceased spouse, will not receive funds from a joint account with survivorship rights.16 Notes 1) 60 Tex. Sup. Ct. J. 1070 (2017, rehearing filed). 2) Estates Code §§ 22.004 & 201.054(e). 3) 369 S.W.2d 28 (Tex. 1963). 4) 493 S.W.3d 118 (Tex. App.—Houston [1st Dist.] 2016, no pet. h.). 5) Civil Practice & Remedies Code § 16.0265. 6) Estates Code § 255.451(a-1). 7) Estates Code § 252.001(a-1). 8) Estates Code §§ 256.052(a), 257.051(a), & 301.052. 9) Estates Code § 308.051(a). 10) Estates Code §§ 359.001(a) & 359.002(a). 11) Estates Code § 205.001(3). 12) Property Code § 112.054(b-1), (e), & (f). 13) Estates Code Chapter 2001. 14) Health & Safety Code § 166.164. 15) Civil Practice & Remedies Code §§ 137.003 & 137.011. 16) Estates Code § 123.151(b). GERRY W. BEYER is the Governor Preston E. Smith Regents Professor of Law at Texas Tech University School of Law, where he teaches probate courses such as wills & trusts, estate planning, and Texas estate administration. He is the editor-in-chief of the REPTL Reporter, the quarterly publication of the State Bar of Texas Real Estate, Probate, and Trust Law Section.
Published by State Bar of Texas. View All Articles.
This page can be found at http://mydigimag.rrd.com/article/Estate+Planning+and+Probate+Law/2967573/463027/article.html.