Law Blog » Estate Planning

Constructive Trust

Thu, 11 Dec 2008 10:17:20 +0000

Constructive trust is a court imposed trust to get around constitutional provision that you cannot lose your property rights because of crime, to prevent unjust enrichment; mechanism that recognizes your legal title but separates from beneficial title which is the next of kin from decedent. The action must be intentional and with malice; beneficiary in the wrong; conviction alone not enough. The burden of proof is on claimant who seeks to impose the trust; preponderance of evidence standard; cannot use criminal conviction to prove intent. Simultaneous death – if betty survived, then to her heirs, if not then alternative beneficiaries. Statute – whether there is direct evidence that the father died before betty Lou. Case was amended. The 120 hour rule says they are considered simultaneously dead if beneficiary doesn’t survive benefactor by 120 hours. To be an heir or beneficiary individual must outlive decedent. There is survival rule of 120 hours. If a person survives the decedent but dies prior to the expiration of the survival period, then the property passes had the person actually predeceased the decedent. If they don’t live 120 hours after decedent dies, then they predecease the decent. No simultaneous death.

Intestate Succession

Tue, 09 Dec 2008 22:25:45 +0000

Section 38 of the Texas probate Code lists two possibilities. A person may die intestate either as to the person, ie no valid will, or as to property, ie a valid will which fails to dispose of all of the person’s property. The property is then distributed by the state law of descent and distribution. Two persons are related to each other by consanguinity if one is a descendant of the other or they share a common ancestor. Two persons are related to each other by affinity if they are married to each other or if the spouse of one of the persons is related by consanguinity to the other. Divorce terminates relationships by affinity. First is an intestate death leaving no husband or wife, no surviving spouse. We are dealing only with seperate property. All the property goes to the children and their descendants. Descendants are the offspring of the offspring, so this is usually grandchildren.

Community Property in Texas

Tue, 09 Dec 2008 22:16:03 +0000

Section 45 of the Texas code discusses Community Property. Community Property is all property acquired during marriage that is earned. It will be owned equally in undivided interest of the spouses. The statute provides that if all the children of the diseased spouse are in common with the surviving spouse, then the surviving spouse inherits all of the community property of the diseased if they have no children or children in common. However, if the surviving spouse has children or descendants who are not in common, then one half of the community proeprty is divided among the children of both the common and prior relationship.