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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

. property left to heirs is subject to delinquent child support and continuing child support obligation whether contractual or whatever.    In above scenario, dad dies but was also paying child support when died, the other wife will go to probate court get the child support reduced to judgment then the residual heirs (not the specific legatees) will get that child support taken out of that.
            6. right to possession of decedent’s estate (after they qualify themselves) by the appted executor. Which could be a problem for a married couple when one spouse dies and leaves someone other than the remaining spouse, and that executor comes over and takes possession of house, accounts, cars, etc.
1.       At least 18 yr. Old
2.       less than 18 but lawfully married
3.       less than 18 but in armed forces/national guard
4.       only condition to meet (in addition to 18 or married or in military or maritime services or national guard) is must be of sound mind
5.       to determine sound mind: videotape them and have questions on video so have proof
T. Jefferson: while you’re alive, you only have a life estate and when you die, your estate reverts to the state. No right to inheritance, it is a civil right given to you by the state, and the state can take it away. 
Blackstone: no natural law theory that allows you a right to inheritance.
Hodel v Irving pg 3: Justice O’Connor says the American-Indians: the right to pass on property to one’s family in particular has been part of the Anglo-Saxon jurisprudence since feudal times. But how many Indians have any relation to                     “”.
So 500 Indians on one tract of land, keep passing down to children until someone has 1/160th interest in an acre of land. Under Indian land consolidation act, when someone dies, unless they have a will leaving it to someone, and constitute at least 2% of the whole or worth at least worth $100, then the land escheats back to the tribal c