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Trusts and Wills
South Texas College of Law Houston
Austin, Russell

Tuesday, August 15, 2000
Will – relates to real property and Testament – relates to personal propty. TX doesn’t require indiv to leave anything to children whereas e.g. France, ea child gets a share. TX has incorporated Spanish Civil law into intestate succession. 
1066 under Norman system, state court passed law on whether real estate would pass from one lord to another lord—so, the royal courts controlled passage of title of real property. The court that controlled passage of personal property was the ecclesiastical courts. Importance of tithing, so poorer families had to pay to get their recently deceased out of purgatory. Mortmain statutes: prohibited passage of property to charity b/c of abuse by the church by blackmailing the dying to passing property to church for fear of going to hell. Only 3 states today have Mortmain statutes.
1750 BC Hammurabi’s Code in Babylonia see handout – great similarity to TX’s code today. 
Jurisdiction: 15 statutory probate courts in TX, 4 in Harris County (3 in Dallas, 2 in san Antonio, 2 in Tarrant county, 1 in El Paso, 1 in Travis county, 1 in Galveston – major metropolitan areas). Created by legislature. All statutory probate courts are called probate court no whatever, if not called “probate” then it’s a constitutional county court dealing w/probate. 
“super-jurisdiction” for probate court:
A. Exclusive e jurisdiction
1)       estates: these first two (estates and guardianships) are likely to keep growing areas of law b/c as the baby boomers begin to age, retire, die in next 10 yrs will begin the largest exchange of wealth estimated to be 3-10 trillion dollars.
a.       testate = w/ will
b.       intestate = w/o will
2)       guardianships: 3 forms
a.       person: when grandma etc can no longer can for herself
b.       estate: when person in good health but mentally incapacitated
c.       person & estate: both physically & mentally debilitated 
3)       Trusts
a.       inter-vivos (during life)
b.       testamentary
c.       charitable – very popular is the SPCA next biggest church also Shriners
4)       Mental Health: in Harris Co, courts 3 & 4 handle all the mental health. From TX Govt Code chapter 25 — no 1 gets 30% of all probate and guardianship matters, ditto no 2 then 3 &4 get 20% each b/c they do all the mental health matters. They do 2 things:
a.       Orders for Protective custody: hearing [cost to taxpayer 2-3k], treatment for up to 21 days at MHMR (then possible xfr to private facility if private insurance covers) [cost to taxpayer 14k] 1.       based on probable cause, have reason to believe person is a danger to themselves (probable cause is an affidavit from family member or someone that shows their dangerous behavior)
2.       person is a danger to others (schizo etc)
3.       patient will deteriorate if don’t sign it – e.g.—schizo if off medication will deteriorate
b.       orders for forced medication hearings: when someone at MHMR won’t take the prescribed medication have to have hearing
B. Concurrent Juris w/ district courts when:
1)       the matter being heard is appertaining or incident to estate: §5A(b) of Probate code
2)       when a personal representative has filed lawsuit or is a dependent. §5A(c) of probate code. E.g. if someone killed due to Dr.’s neg, wrongful death suit in dist ct, but then when estate is probated and administrator appted then the wrongful death case is transferred to probate ct b/c personal rep is now a party to suit OR matter is incident to estate, under wither theory, probate court gets jur.
3)       In any trust matter: TPC §5B “reach out and touch someone” statute — if there’s a case in dist ct a litigant wants to xfr, probate judge decides on whether there’s a xfr. Often won’t xfr if there’s a trial date already set b/c statute reads MAY not Shall. POSSIBLE TEST QUESTION: A district ct may not transfer something from probate ct to district court. See g 8 of what every lawyer wants to know about probate cts.
C. Pendent and Ancillary jur: Govt code CHPTR 25 & probate code –
1.       e.g. 80 yr. Old sick man family wants caregiver for him, fall in love, go to Vegas w/$500 mil to get married. The family brings him back, but he’s married. If under guardianship of estate, then he’s incapacitated and marriage is voidable. But she wants to go to family ct not probate ct, can get to probate ct under pendent jur and can null marriage in 2 wks as compared to 2 yrs in family ct. 
2.       In Re Graham: see handout – any divorce can be held so long as related to matter in court. Pg 23 Stubbs v Ortega can go straight to probate ct and file there instead of filing in family ct first in 80 yr. Old man situation.
3.       Why? Better to have these all handled in one ct/one judge b/c efficiency of system/quicker resolution.
If not in area w/ statutory probate court, then get probated by constitutional county court (where judge doesn’t have to be an atty). They can:
1.       probate will,
2.       grant letters of testamentary,
3.       administer a dependent estate,
4.       settle claims/accounts,
5.       settle estate
6.       partition estate
7.       distribute estate
1.       hear any litigious matter (if file contest over appt of executor, e.g., then issue must be heard in county ct at law or district court, where the judges must be lawyers. But can request that the matter be xfrd to a probate court rather than either of these)
Probate court at law jur can hear:
a.       Anything a const county ct judge
b.       Anything that is litigated
a.       have §5B xfr power.
b.       Power to hear lawsuit brought by personal rep or brought against personal rep.
Mechanism by which dispose of property, but do not have to actually dispose of any property in the will. section 3 of code provides all definitions but here are some —
Testator: male person who makes will (female testatrix, etc)
Independent executor: manages decedent’s estate free of ct supervision. Testator can make executor dependent if don’t trust executor and want ct supervisions (so must post bond).
Legatee and Devisee:
Thursday, August 17, 2000
Use Johnson’s annotated probate code
Time line: Babylonian empire

anything from anybody. In Irving Trust case, holding specifically says you don’t have a right to inherit, state can take that right away from you. 
But today, the Dept of Interior can’t account for the 550 million dollars that represent the fractional shares owned by the Indians. 
Inheritance promotes interfamily dependence, promotes young’uns in taking care of elderly parents/grand, societal benefits.
Against inheritance: promotes the economic/social schism in America, also doesn’t reward work/not merit-based and therefore encourages generations of lazy brats who don’t do anything but spend the money they inherited from mum & daddy. 
Estate tax: keep — b/c get 26 billion/year but costs 16 billion to administer. 
Blum pg 18 & halbock will be on exam
Shapira pg 24: not state discrimination, but private discrimination. State can’t enforce it, but ct upheld the will. 
Hinduism à Judaism à Buddhism à Christianity à Islam
(reformed & orthodox is each)           (catholic and protestant)             and (Sunni and Shiite)
Tuesday, August 22, 2000
From last class —
1.       Jefferson believes indiv possesses a life estate in wealth, no right to inheritance
2.       Blackstone: no natural right to inheritance
3.       Blackstone: inheritance is a civil right allowed by the state
4.       Blum–inheritance should be abolished through the progressive tax schedule.
5.       Hodell Irving tells us that the SCt believes that inheritance is a significant property right.
6.       Irving trust case — there is no constitutionally protected right to an inheritance.
7.       Revocable intervivos trust is one of 6 substitutes for a will
8.       4 reasons for an inheritance, outlined in holbock article
9.       2 central arguments against right to inheritance
10.   only 3 states still have a Mortmain statute
11.   what is a Mortmain statute
12.   restrictive devisees tainted w/private discrimination is constitutionally protected
13.   TX probate code 57 tells us who can execute a will
14.   TX probate code 37 tells us that an estate vests immediately in an heir when a decedent dies
15.   ”        ”                     ”                  ” that a personal rep’s fiduciary standard is that of a trustee
Deviney v NationsBank:
(1)     look at testator’s intent when construing at will; can look to extrinsic evidence.
(2)     not fee simple b/c of express condition — only have a life estate interest.   it’s fee simple when “I give Blackacre to Joe”