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Estate Planning

Can An Adopted Child Be Disinherited

Can You Disinherit An Adopted Child

Adopted children are treated the same as biological children as far as inheritance law is concerned. A better way of putting it is that the adopted child is regarded as a child of the adoptive parents. But it is possible for adoptive parents to disinherit their adopted child just like birth parents can disinherit their biological children. However, they have to show their intent to disinherit a child using a Will. An experienced Texas inheritance lawyer can explain all the options you have if you have been disinherited by your adoptive parents.

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Adopted Children Inheritance Rights

Can An Adopted Child Be DisinheritedAdopted children can inherit through their birth parents but their birth parents and relatives of birth parents cannot inherit through adopted children. That means that birth parents cannot claim part of the estates of their biological children that were adopted-out if the child dies without a Will. Adopted children can inherit their adoptive parent’s estate under Texas intestacy laws if the adoptive parent dies without a Will. They can also inherit from the ancestors of their adoptive parents. This is according to Section 162.017 of the Texas Family Code that governs the effect of adoption and states:

“(a) An order of adoption creates the parent-child relationship between the adoptive parent and the child for all purposes. (b) An adopted child is entitled to inherit from and through the child’s adoptive parents as though the child were the biological child of the parents. (c) The terms “child,” “descendant,” “issue,” and other terms indicating the relationship of parent and child include an adopted child unless the context or express language clearly indicates otherwise.”

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What An Adopted Child Can Do If Not Included In The Will

You can challenge a Will if you were left out of it by your adoptive parent. You can do this on the following grounds:

  1. Mistake: This can only work if there was undue influence or fraud involved in the creation of the Will.
  2. Fraud: Refers to a situation where the testator ends up creating a Will that does not reflect the testator’s true wishes because the testator has fallen victim to a fraud perpetrated on the testator.
  3. Lack of testamentary capacity: If the testator was not of sound mind while making the Will, then the Will can be declared invalid by a court. For example, if the testator had a prior diagnosis for dementia, psychosis, or Alzheimer’s, then the Will may be declared void.
  4. Revoke Will: You can also contest a Will by showing that the testator revoked it before the testator died. A testator can revoke a Will by writing another Will or by a physical act.

Once the probate court receives the Will, you have to wait two weeks before the Will is admitted to probate. You can enter a challenge to the Will during this period to stop the probate process.  This is important because if the Will has already been admitted to probate, you have to contest the Will within two years. Talk to an experienced inheritance lawyer before you challenge a Will that disinherits you.

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Estate Planning

Texas Holographic Wills

Is A Handwritten Will Legal In Texas

Just about any Austin lawyer for estate planning and wills will tell you that you can actually hand write your Will on any surface and as long as it remains legible and is in your handwriting, it will be successfully proven in a probate court. In fact, there is a man that actually scribbled his Will on a wall passing all he owned to his wife and kids, and that Will was probated successfully. Handwritten Wills are also called holographic Wills and they are valid in Texas. This type of Will is as effective as a formal, typewritten Will and can be revoked at any time by the testator. What makes a holographic Will valid varies from state to state.

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Holographic Will Requirements

Texas Holographic WillsYou have to write a holographic Will in your own handwriting and then sign and date it. You can hand write your holographic Will on stationary or on anything that cannot obscure what you have written.  You as the testator (person drafting the Will) must have Testamentary capacity (be of sound mind) while drafting the Will. The testator must also have Testamentary Intent or must have the intention to write a Will for the purpose of distributing property after the testator dies. Unlike formal or typewritten Wills, you do not need two witnesses to sign the Will, and you do not need to sign the Will in someone’s presence.

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Problems With Holographic Wills

Most of the time people draft holographic Wills in emergency situations as they wait to draft a formal, typewritten Will. For example, someone may write a holographic Will when the person is going for a major surgery and is afraid that they may not survive the surgery. However, relying on a holographic Will as the primary estate planning tool presents a lot of risks. Some of the common mistakes people make while drafting holographic Wills include:

  • Illegible writing: Even if the Will is in your handwriting it may still cause issues if your handwriting is not legible or is not clear enough to read.  An illegible Will is difficult to interpret.
  • Problems with witnesses: Witnesses will be needed to verify that the handwriting in the Will is the handwriting of the deceased. They will also need to verify that the testator was of sound mind when the testator drafted the Will.
  • Vague language: A testator is likely to use ambiguous or vague language that can be interpreted in multiple ways.  This can cause disagreements among heirs or beneficiaries that could result in someone contesting the Will.
  • Lack of provisions: A person with no knowledge of the provisions that are often contained in typical Wills is likely to leave most of them out. For example, a testator may leave out a testamentary trust or may forget to name a guardian for minor children.

All these mistakes can lead to the Will being contested which means heirs are going to have to hire lawyers to help them. A court may also declare the Will invalid if it has too many mistakes. If the will is invalid, the Texas intestate laws will be used to distribute the assets.

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Estate Planning

Texas Surviving Spouse Rights

Texas Homestead Law Surviving Spouse

Inheritance complications are likely to emerge when a spouse in a blended family dies without a Will and is survived by a spouse and children from a previous marriage. This is very likely if the surviving spouse does not get along with the step-children. Of course the law says that the surviving spouse is entitled to half of the community estate in this situation while the decedent’s half of the community estate goes to the children of the deceased spouse. The surviving spouse is only entitled to one third of the deceased spouse’s separate property. Talk to an estate planning lawyer if you want detailed information of what exactly you are supposed to inherit in such a situation.

How A Property Becomes A Homestead In Texas

You do not need to go through a formalized legal process or file a document to create a homestead in Texas. You create a homestead based on how you use the land and whether you claim that land as a permanent residence. However, you must occupy the property for it to be considered a homestead. But just occupying land and using it does not automatically make that land a homestead. An experienced Texas estate planning lawyer can answer all your questions about what qualifies as a homestead and what does not.

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What Happens To The Homestead Property?

Texas Surviving Spouse RightsHomestead property can be urban or rural property. A home or a place of business can be considered as urban homestead and is limited to 10 acres with improvements (must be in adjacent lots).A homestead is considered urban if it is (1) located within the limits of a municipality or its extraterritorial jurisdiction or a platted subdivision; and (2) served by police protection, paid or volunteer fire protection, and at least three of the following services provided by a municipality or under contract to a municipality:

  • electric;
  • natural gas;
  • sewer;
  • storm sewer;  and
  • water

A rural homestead is not more than 200 acres for a family with improvements and 100 acres for a single person with improvements thereon. If the homestead property where the surviving spouse lives was the deceased’s separate property, the step-children cannot force the surviving spouse to sell.

What that means is that the surviving spouse cannot be forced to sell as long as the surviving spouse is using and occupying the homestead property. The only way the property heirs can take over the property is if they can show that the surviving spouse abandoned the property. But it is difficult to prove abandonment because a surviving spouse can retain a life estate even if the spouse moves out and rents out the property to someone else.

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Reimbursement To The Surviving Spouse

If the deceased owned separate property and the both the deceased and the surviving spouse contributed financially to that property during the marriage, the surviving spouse is entitled to reimbursement. For example, if the deceased bought a home prior to the marriage, and during the marriage both spouses had contributed financially to that property, the surviving spouse will be entitled to reimbursement for the financial contributions the surviving spouse made to the property.

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