There are four types of disclaimers. The first type is for when an individual who received a gift or bequest disclaims all rights to the gift, thereby giving up their interest in the property and allowing the property to pass as if he or she never received it. The second type is for when an individual who was named as a beneficiary of a trust disclaims any future interest in the property. This prevents them from receiving any more benefits. The third type is for when an individual who has a power of appointment disclaims his or her right to give away part or all of that power to someone else. And finally, the fourth type of disclaimer is when someone partially disclaims their interest in a decedent’s estate, whether through probate or not.
While individuals may disclaim property to avoid certain obligations, as in the case of inheritance. Disclaimers filed in a guardianship proceeding of someone other than the deceased person whom an inheritance is being disclaimed are not considered filings under Texas probate law. The guardianship case of In re Estate of Boren gives us some guidance.
The Legal Guardian Case
In re Estate of Boren, 268 S.W.3d 841 (Tex. App. – Texarkana 2008, pet. denied)
Facts & Procedural History
Sarah E. Boren (Decedent) drafted a will that listed her nephew, Richard Finley, as the independent executor of her estate and Jeanetta Finley, his mother, as the alternate/successor. If her husband, Charles Boren, did not survive her, the will instructed that the estate be divided equally between Richard and Jeanetta.
Richard had previously served as an attorney-in-fact for both Sarah and Charles, neither of which had children. After Charles was appointed a guardian, Richard’s power-of-attorney authority for Charles was revoked by the letters issuing the guardianship. Richard retained Sarah’s power of attorney authority, and originally voiced his disapproval regarding Charles’s guardian’s application to sell his real estate, but later expressed regrets regarding the familial conflict after Charles passed away. Both Charles’s brother and niece testified to Richard’s statements, and the niece had her attorney draft documents that would waive his and Jeanetta’s claims to the estate at hand.
Richard and Jeanetta both signed the waivers, but eight days after the disclaimers were filed in the guardianship, they filed revocations of the waivers and Sarah passed away. Richard applied for probate (for Sarah’s estate), and the trial court denied both the will and his appointment as independent executor. As a part of this ruling, the trial court also articulated that Richard and Jeanetta had foregone any claim to Sarah’s inheritance by signing documents that met the requirements under Texas Probate Code, Section 37A. These documents included a Waiver of Service, Waiver of Interest, and Approval and Consent to Sale of Real Property regarding Sarah’s estate.
Richard then appealed, stating several points of error that then were rejected by the Court of Appeals. The Court stated that the trial court had found Richard “unsuitable” for the role of independent executor under the authority granted by Section 78(e) of the Texas Probate Code, and that as such, it would review the trial court’s ruling under an abuse of discretion standard of review (meaning it was not limited to reviewing the sufficiency of the evidence provided). The Court stated there was evidence supporting the trial court’s determination that Richard was unsuitable for the independent executor role, and that it was not an abuse of discretion. However, it stated that the waivers were not irrevocable under Section 37(A) of the Texas Probate Code because Richard and Jeanetta had properly revoked them before they had been properly filed. The Court of Appeals reversed the trial court’s implied order (that the waiver barred Richard from Sarah’s inheritance) and remanded to the trial court for further proceedings.
Main Consideration of Law
When does a waiver become irrevocable?
Once the proper filing and service requirements are met, the waiver becomes irrevocable. If waivers are revoked prior to their proper filing, they are inoperative despite any intentions to disclaim inheritances (such as express statements).
The Takeaway
Disclaimers filed in a guardianship proceeding of someone other than the deceased person whom an inheritance is being disclaimed are not considered filings under Texas probate law.
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Related Questions
How to become a legal guardian in Texas? Do I go to court?
There are a few different ways to become a legal guardian in Texas. The most common way is to be appointed by a judge in a guardianship proceeding. Other ways include being appointed by will or deed, or being elected by a group of people who are legally authorized to do so. Becoming a legal guardian in Texas is a serious responsibility. As a guardian, you will be responsible for making decisions on behalf of another person, known as the ward. These decisions can range from everyday choices like what to wear and what to eat, to more important choices like medical treatment and financial matters.
If you are considering becoming a legal guardian in Texas, it is important that you understand the duties and responsibilities that come with the role. You should also be aware of the different types of guardianship and how they work.
Basics of how to get guardianship in Texas?
If you are seeking guardianship of a child in Texas, there are some important things to know.
First, Texas law requires that the person seeking guardianship must file a petition with the court. The petition must be signed by the person seeking guardianship and must state the reasons why the person is seeking guardianship.
Second, a hearing will be held on the petition. The court will consider the best interests of the child when making its decision. The court may appoint a guardian ad litem (GAL) to represent the child’s best interests.
Third, if the court grants guardianship, the guardian will have certain rights and responsibilities regarding the child. The guardian will have the right to make decisions about the child’s education, medical care, and other important matters. Additionally, the guardian will be responsible for providing for the child’s physical and emotional needs. fourth, if you are granted guardianship, you will be required to file periodic reports with the court regarding the child’s welfare. Additionally, you may be required to attend training sessions on how to be a good guardian. fifth, if at any time you no longer wish to serve as a guardian, you can resign by filing a notice with the court.
What general powers does a guardianship have?
A guardianship in Texas has a few different powers. First and foremost, a guardian has the power to make decisions about the ward’s medical care. This includes the power to consent to or refuse medical treatment, as well as the power to access the ward’s medical records. Additionally, a guardian has the power to make decisions about the ward’s education and residence. Lastly, a guardian has the power to manage the ward’s finances and property.
How to file for legal guardianship of a minor in Texas? Is there a form?
If you are wondering how to file for legal guardianship of a minor in Texas, there is no need to worry. The process is actually quite simple, and there is a form that you can use.
First, you will need to gather some information about the child and the parents. This includes the child’s full name, date of birth, and Social Security number. You will also need the names and contact information for the child’s parents.
Next, you will need to fill out the legal guardianship form. This form can be found online or at your local courthouse. Once you have completed the form, you will need to sign it in front of a notary public.
Once the form is signed, you will need to file it with the court. The court will then review the form and has the power to make a determination on whether or not to grant guardianship. If guardianship is granted, you will be responsible for making all decisions regarding the child’s welfare, including education and medical care.
