Overall, naming your attorney as a beneficiary of your will in Texas is possible, but there are some significant limitations that you should be aware of before you do so.
What is a valid will?
In Texas, a will is a legal document that outlines an individual’s wishes for how their property and belongings should be distributed after their death. The person who creates the will is typically referred to as the “testator.”
A will can designate beneficiaries, who are the individuals or organizations that will receive the assets outlined in the will. It can also name a executor, which is the person tasked with carrying out the instructions in the will.
Importantly, a will must be signed by the testator in front of two witnesses to be considered valid.
Who can be a beneficiary of a will?
When it comes to who can be a beneficiary of a will, there are no strict rules. In general, anyone who would inherit property from the deceased person if they died without a will can be named as a beneficiary. This includes the deceased person’s spouse, children, parents, and other close relatives. Additionally, friends or charities can also be named as beneficiaries.
However, there are some exceptions to who can be a beneficiary of a will. For example, in Texas, an attorney cannot be named as a beneficiary of a significant gift from an instrument that the attorney drafted. Additionally, any debts owed by the deceased person must be paid off before any assets are distributed to beneficiaries.
What are the benefits of being a beneficiary of a will?
If you are named as a beneficiary in a will, you have certain rights and benefits under Texas law. As a beneficiary, you are entitled to receive notice of the probate proceedings and to be notified if the will is contested. You also have the right to inspect the will and to receive a copy of it.
If the will is admitted to probate, you are entitled to receive your share of the estate according to the terms of the will. In most cases, beneficiaries are paid out of the estate’s assets after all debts and expenses have been paid. If there are not enough assets in the estate to pay all of the beneficiaries, they may have to be paid in installments or over time.
As a beneficiary, you also have certain protections under Texas law. For example, if you are owed money by the estate, you can file a claim against it in court. This is called a creditor’s claim. You may also be able to challenge the validity of the will itself if you believe it was not properly executed or if it was created under duress or undue influence.
How to become a beneficiary of a will in Texas
In order to become a beneficiary of a will in Texas, you must first be named as a beneficiary in the will. The testator, or person who made the will, must have intended for you to receive the benefits outlined in the will. If you are not named as a beneficiary, you may still be able to contest the will and receive benefits if you can prove that the testator intended for you to inherit their property.
If you are named as a beneficiary in a will, you must meet certain requirements in order to receive your inheritance. Once you have been determined to be a valid beneficiary, you will need to file a petition with the court to have the will probated. This is the legal process of proving that the will is valid and that you are entitled to inherit under it. The court will appoint an executor to oversee the distribution of assets according to the terms of the will.
If there are contested claims against the estate, or if there is no executor named in the will, things can get more complicated. An experienced probate attorney can help guide you through the process and protect your interests.
Texas Case Probate and Estate Law
In Texas, an attorney can be the beneficiary of a will, but there are some restrictions on what the attorney can do with the inheritance. The Texas disciplinary rules hold that lawyers cannot prepare an instrument where they receive a substantial gift from a client. If the attorney violates these restrictions, they may be required to return the inheritance to the estate.
Shields v. Texas Scottish Rite Hospital for Crippled Children, 11 S.W.3d 457 (Tex. App. — Eastland 2000, pet. denied)
Legal Terminology
Dead Man’s Rule
Prevents interested parties from testifying about oral communications with someone who is deceased.
Facts and Procedural History
When Fletcher G. Lippitt, Jr. passed away, his will left Charles O. Shields the attorney who drafted Lippitt’s will, all of his personal properties including automobiles, books, personal effects, video tapes, furniture, fixtures and furnishings. It also stated that if Charles predeceases him, the devise fails and goes into his residual estate. He left the rest of his estate “real, personal, and mixed” along with the residuary, to the Scottish Rite Hospital for Crippled Children in Dallas.
The hospital brought motion for summary judgment claiming that it was entitled to the stocks, bonds, cash, and bank accounts values at $2,029,544.72. Shields contended that he was entitled to all the personal property. Lippitt and Shields were very close friends. Shields claimed he was aware of the rule preventing lawyers from drafting wills they are a beneficiary of, unless they are related. Shields admitted that he and Lippitt were not related. Shields explained his reasoning for drafting the will in an affidavit. The court struck down parts of the affidavit due to the “Dead Man’s Rule” and because certain statements were not admissible as evidence. Shields appealed.
The court held that the disciplinary rules hold that lawyers cannot prepare an instrument where they receive a substantial gift from a client. The courts have long held that even though the disciplinary rules are nor statutory law, they help courts govern public policy. A gift of $2,029,544.72 is enough to constitute a substantial gift under the rule and therefore, as a matter of public policy, the court reaffirms the trial court’s decision.
Main Consideration
Can an attorney draft an instrument that makes him a beneficiary of a substantial gift if he is not related to the client?
No. Even though the disciplinary rules are not statutory law, they help the courts govern public policy. Therefore, public policy holds that attorneys cannot draft instruments where they are beneficiaries of a large gift, unless they are related to the client.
Takeaway
Shields v. Texas Scottish Rite Hospital for Crippled Children shows that attorneys cannot draft an instrument that makes them a beneficiary of a substantial gift unless they are related to the client.
Conclusion
It is possible for an attorney to be the beneficiary of a will in Texas, but there are some restrictions that must be followed. An attorney cannot draft an instrument that makes them a beneficiary of a substantial gift unless they are related to the client.
Do you need to hire an Experienced Probate Attorney to help?
When it comes to probate, there are a lot of rules and procedures that must be followed in order to ensure that the process goes smoothly. If you are not familiar with the probate process, it is best to hire an experienced probate attorney to help you navigate through the process.
An experienced probate attorney will be able to help you understand the different steps involved in probate, as well as what documents need to be filed and when. They can also offer guidance on how to distribute the assets of the estate, and can represent you in court if necessary.
If you are named as the executor of an estate, it is important to understand that you have a legal responsibility to administer the estate in accordance with the wishes of the deceased. An experienced probate attorney can help you fulfill your duties as executor, and can also represent you if there are any disputes among beneficiaries or creditors.
No matter what your role is in the probate process, it is always best to consult with an experienced probate attorney before taking any action. They can help ensure that everything is done correctly, and can protect your interests throughout the process. Call us today for a FREE attorney consultation. (210) 436-6601.
Related questions
Can a beneficiary probate the will in Texas?
First, if the estate is worth less than $75,000, you may not need to go through probate at all. Instead, you can simply file an Affidavit of Heirship with the county clerk.
Second, if the estate is worth more than $75,000, you will need to open a formal probate case with the court. The process can be complicated, so it’s important to have an experienced attorney by your side.
Third, even if you are named as a beneficiary in a will, you may not be entitled to inherit any property unless the will specifically states that you are to receive something. For example, if the will only provides for distribution of personal belongings and not real estate or other assets, then you would not be entitled to inherit those assets.
Finally, keep in mind that as a beneficiary of a will, you are not responsible for paying any debts of the deceased person. That responsibility falls on the executor or administrator of the estate.
If you have been named as a beneficiary in a will and have questions about your rights or responsibilities, contact an experienced Texas estate planning attorney for help.
Can a beneficiary be a witness to a will in Texas?
A beneficiary can be a witness to a will in Texas, but there are some limitations. It’s generally considered a bad idea.
Can an executor of a will be a named beneficiary in Texas?
Yes, an executor of a will can be a beneficiary in Texas. However, there are some important considerations to keep in mind.
First, the executor must be named in the will. If the executor is not named in the will, they cannot receive any benefits from the estate.
Second, the executor must follow all of the instructions in the will. If the executor does not follow the instructions in the will, they may forfeit their right to receive any benefits from the estate.
Third, the executor must act in good faith. If the executor does not act in good faith, they may be removed from their position and may not receive any benefits from the estate.
Fourth, if there are multiple beneficiaries named in the will, the executor must distribute the assets of the estate equally among them. If the executor does not do this, they may be liable for damages.
Finally, if there are any debts owed by the estate, the executor must pay them off before distributing any assets to beneficiaries. If they do not do this, they may be personally liable for those debts.
What is probate estate?
When a person dies, their probate estate is the collection of all their assets that are subject to the probate process. This includes any property that is in their name alone, as well as any debts they may owe. The probate estate is used to pay off any debts and expenses related to the person’s death, as well as any taxes that may be due. The remainder of the probate estate is then distributed to the beneficiaries named in the will.
