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Current Legislative Session Will Impact Probate Litigation

The 81st Texas Legislature convened at noon on Tuesday, Jan. 13, 2009. The session ends on June 1, 2009.  Cowles & Thompson will provide an update of the relevant developments affecting the probate litigation practice once the current legislative session has ended.

The regular session of the 80th Texas Legislature ended in May of 2007, and most of the legislation passed during that session became effective September 1, 2007.  It remains to be seen what changes the 81st Texas Legislature will have for probate litigators during its current 2009 session.  Until then, here are the highlights of the changes enacted in 2007:

Goodbye to Nuncupative Wills.

Oral, or “nuncupative” wills, were eliminated from the Probate Code and therefore became a thing of the past.

Effect of Divorce on Will Provisions.

The Probate Code was amended to void gifts and fiduciary appointments to the former spouse and the former spouse’s relatives (defined as “each relative of the former spouse who is not a relative of the testator”).

Change in Proof of Contents of Lost Will.

Previously, a person seeking to admit a lost will to probate had to prove the contents of the will by the testimony of a credible witness who had read the will or heard it read.  The Probate Code was amended to allow the testimony of a credible witness who can identify a copy of the will. This was a recognition that, with modern technology, a copy of the will is probably the best way to prove its contents.

Notice Required to Will Beneficiaries.

The executor must now send written notice to the will beneficiaries to let them know that the probate is pending.  This change was in response to an egregious abuse of power by an executor who misappropriated funds in an estate without the beneficiaries being aware that the will had been probated.  The theory is that, if the beneficiaries are given notice that the probate is pending, they will better monitor the probate process and take steps to be sure that such abuses do not occur.

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