The surviving spouse in this case, often called a “life tenant,” has specific rights and obligations. He or she is prohibited from committing waste, or otherwise allowing the property to fall into disrepair. The life tenant is obligated to protect the interest of remainder men (future owners) from being lost, and to do this the life tenant is required to:

• Pay property taxes;
• Reasonably maintain the property; and
• Pay the interest portion on any mortgage payment for which the property is collateral for a loan.

The exempt personal property will not be liable for any estate debts other than Class 1 claims, which include funeral expenses and expenses of last sickness. As with the homestead, the exempt personal property remains subject to debts secured by valid liens on the property. In addition, exempt personal property is most likely not protected from federal tax liens.

When the estate is finally settled and if it is solvent, then tl1e exempt property is subject to being partitioned and distributed among the heirs and distributes as any other property.

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 for a number of years. “By 2002, the area of probate and guardianship litigation had grown to such an extent that it became the firm’s focus,” he says.

 

Today, Burdette & Rice is one of the top firms in Dallas for probate, fiduciary disputes, trust litigation, will contests, and guardianship law. The firm represents clients throughout Texas and often receives referrals from estate planning practitioners who don’t handle these emotionally charged disputes. “We see the big picture when it comes to these kinds of lawsuits,” Burdette says. “After these cases are over, the people involved are still family members and we try to be mindful of that.”

 

Elliott Burdette received his law degree from the Southern Methodist University School of Law. While in law school, he won an American Jurisprudence Award. He attended the American University of Paris and received his B. A. from the University of Texas at Austin. He was elected as a Fellow of the Texas Bar Foundation and he is a Fellow of the College of the State Bar of Texas. He has also held several leadership positions within the Dallas Bar Association and has many years of service to the State Bar of Texas.

 

Ed Rice joined Burdette at the firm in 2002 after working as a litigator at a large San Antonio firm. His experience in individual and business transactions and appellate law has proved essential in his current practice, which focuses on fiduciary, and probate litigation. Rice received his bachelor’s degree in Economics from Texas A&M and his law degree from the University of Houston where he was an editor of the Houston Law Review.

 

Mark Caldwell has practiced as a probate litigator since graduating from law school in 2005. He joined Burdette & Rice in 2010. He attended the London School of Economics and earned his B.A. magna cum laude from SMU. He received his law degree from New England Law Boston where he earned Dean’s List distinction on multiple occasions. Caldwell leads an ongoing probate study group attended by fellow probate lawyers and court staff and has written law review articles on guardianship disputes and litigation involving powers of attorney. The National Institute for Trial Advocacy has awarded Mark their designation as an Advocate.

 

Brian Thomas received both his BA and JD from Baylor University. Brian excelled in the legal advocacy programs while at Baylor Law School, earning speaking honors in the school’s moot court competition. While a law student at Baylor, Brian knew he wanted to litigate estate, trust and guardianship disputes. Since graduating, he has maintained this practice concentration and has developed into a skilled probate litigator. He has written and spoken extensively on probate, trust and guardianship matters to a variety of professional and community groups.

The family allowance takes precedence over almost all other claims, except those for funeral expenses and expenses of last sickness up to $15,000 and secured creditors. The allowance “shall be in an amount sufficient for the maintenance of the surviving spouse and minor children (and an adult incapacitated person) for one year from the time of death.” The allowance is based on the circumstances then existing and those anticipated to exist during the fust year after death. The court must consider the amount of the surviving spouse’s separate property that could be used for his or her support and maintenance. If the surviving spouse has adequate separate property, a family allowance should not be allowed.

The family allowance is paid entirely out of the Decedent’s estate-primarily the Decedent’s one-half community estate. Property specifically devised or bequeathed to another may be taken or sold to raise funds for the allowance only if other available property is insufficient to provide for the allowance. It is important to note that the allowance is not treated as an advancement to be offset against future estate distributions-rather it is a sum of money literally “carved out” of the estate. The family allowance is often utilized in cases of second marriages, especially where the Decedent did not adequately make provisions for his or her surviving spouse (usually because the Decedent left the majority of his estate to children from a prior marriage).

In many cases, Wills are carefully drafted. Great care is taken to avoid using words like “money,” “funds” or “personal property,” unless those broad terms are also defined in the Will itself. Ambiguity in a Will is a very common source of litigation, and most Wills are drafted to avoid ambiguity.

But not all Wills are drafted by attorneys. In many cases, the Court is required to examine a holographic, or handwritten, document to determine (a) if it is a Will, and (b) what it really says. In the case of holographic Wills, the issue of mandatory I precatory language can often arise. Precatory language — phrases like “I would like,” or “I recommend,” is usually deemed to be suggestive. Suggestive Wills aren’t really Wills at all.

A recent case out of Fort Worth examined the issue in the Estate of Abshire, 2011 Tex. App. LEXIS 8069 (Tex. App.- Fort Worth 2011) (mem. op.) At first glance, there were two potentially troublesome parts of a very brief holographic Will written by the decedent. First, the parties to the Will contest disputed what the word “funds” meant, and disagreed over whether or not the word included liquid personal property (cash) or funds of the estate as a whole (cash, personal property, real property, etc.) Second, the decedent used the phrase “as a rough guide, I would like … ” to then outline specific percentages of her estate intended to pass to beneficiaries.

So the stage was set for a heated Will contest. If the language is mandatory, the Will governs and the property passes to the beneficiaries named therein. If the language is precatory, the Will fails to properly dispose of property, and the result is intestacy-which means that the property would pass to the decedent’s heirs as determined by statute.

While trying to clear the issues between mandatory and precatory language, the appellate court must also consider the public policy in Texas, which favors disposition by Will over intestacy. We would rather have poor Wills than no Wills at all. In fact, a good number of courts have made some rather remarkable conclusions to protect this public policy, and this case is no different. The appellants argued that the “rough guide,” language logically seems to imply that someone other than the decedent gets to ultimately decide how to divide the property. The Court flatly disagreed, and said that agreeing with this logic would thwart the rather clear intent of the decedent to make a handwritten Will in the first place.

That’s tough to argue with, but if a phrase like “rough guide” is determined to be mandatory and commanding, what phrases wouldn’t make the cut? Is it safe to assume that sloppy or ambiguous Will language could become more acceptable in light of the weight of the public policy favoring testamentary disposition over intestacy? Are we really so against the idea of a decedent dying intestate that the distinction between mandatory and precatory language is just academic?

The Abshire case, unfortunately, probably poses more questions than it does answers. Soon, the Texas Supreme Court will have the chance to weigh in on the issue. Regardless of their decision, we will likely continue to see a rise in probate
litigation founded on ambiguous Will language.

When seeking to gain quick control over a rogue attorney-in-fact, a temporary restraining order coupled with an application to establish a temporary guardianship can be extraordinarily effective.  To support a temporary restraining order, the applicant, as next-friend for the principal, should also file a separate lawsuit against the attorney-in-fact for breach of fiduciary duty and possibly for conversion, if applicable. Seeking a temporary restraining order while also seeking a temporary guardianship offers several significant advantages.

First, Texas courts are reluctant to create temporary guardianships, which can drain the proposed ward’s resources and the court’s time. In addition, where a least restrictive alternative, like a temporary restraining order, is available to address the imminent danger posed to the principal, courts will often deny an application to establish for temporary guardianship.  Seeking a temporary restraining order also provides the applicant with an alternative form of relief.  Second, typically several days will elapse between the date the application for a temporary guardianship is filed and the hearing date.  The court must appoint an attorney ad-litem to represent the principal who must have time to complete a preliminary investigation. Although the applicant is not typically required to notify the attorney-in-fact of the temporary guardianship proceeding, news among family and friends often travels fast. Assets can disappear during this “waiting” period.  Immediate relief can be obtained when the Court can hear and sign an ex-parte temporary restraining order the day it is filed.

If you know a family member who you believe is being taken advantage of by someone whom they have named as their power of attorney, you should contact an attorney immediately to understand your legal options relative to obtaining information about all actions taken by the attorney-in-fact. For more information or to discuss your options, please contact us at (972) 991-7700.

Texas Probate Code Section 241(a) contains three major exceptions to the general rule that an executor will be entitled to a percentage commission on the receipt and payout of “cash” and expressly provides that:

• No ordinary commission shall be allowed to an executor for receiving funds belonging to a testator or intestate estate which were on hand or were held for the benefit of the decedent at the time of death in a financial  institution or a brokerage firm including cash or a cash equivalent held in a checking account or a savings account, certificate of deposit or money market account;
• No ordinary commission shall be allowed on the collection of proceeds of any  life insurance policy;
• No commissions shall be allowed for paying out cash to the heirs or distributees of such in payment of their bequests or inheritance.

From the statutory exceptions listed above, it is clear that most cash funds  that the executor will administer and distribute over the course of an administration  will be excluded from the computation of the statutory commission. In addition, the independent executor must actually be appointed and render some services to an estate to be entitled to receive a commission. However, the services that are performed do not have to be directly or indirectly connected with the specific receipts of cash during the administration for the executor to receive a commission   under Section 241. There is no statutory requirement that the independent executor actually “earn” its commissions on the receipts and/or payouts of cash on which the commission is based.

As a beneficiary, if you believe that the executor has taken a “fee” from the Estate, you should consult an attorney immediately to confirm whether such action was appropriate. If the “fee” was not appropriate, the executor may be liable for breach of fiduciary duty. The application of Section 241 can be tricky. While there are many instances where a fee is inappropriate, there are also many circumstances that often arise in even the most routine estate administrations that justify a fee.