Did grandfather’s will leave everything to someone…..or did part of the inheritance under the will fail ? Do grandchildren inherit — not under the will — but as heirs or next of kin? Who wins: the #foundation or the #grandchildren ?
A Texas #probatecourt dealt with this issue: they said that the grandfather disposed of his property under his #will. The grandchildren appealed the #probatecourt and argue that part of the will was invalid – they should inherit under the #instestacystatute.
#ESTATEPLAN HAS #MARITALTRUST & #FAMILYFOUNDATION
- Jake signed his #LastWillandTestament on July 24, 2008.
- Jake was married to Nina and had 4 grandchildren.
- Jake died in 2010.
- Jake’s will left his estate residue to his #maritaltrust because he was survived by his #widow Nina – the #survivingspouse.
- Since Nina died within a year, the #maritaltrust went to the #charitablefoundation
- Jake’s will left his separate property in a will clause which referenced a paragraph that did not exist….. a drafting error ?
#WILLCHALLENGE BY GRANDCHILDREN — #maritaltrusts & #familyfoundations
- The grandchildren filed a declaratory judgment action in #probatecourt.
- Seeking a declaration of who inherits
- This is also referred to as an action to construe the will
- The Foundation filed a counterclaim and cross-claim
#PROBATECOURT FINDS FOR #CHARITABLEFOUNDATION AND AGAINST GRANDCHILDREN
- The probate court ruled in favor of the Foundation. It held that Jake intended to pass his entire estate to the marital trust and then the foundation, after making specific gifts.
- The grandchildren lost.
- The grandchildren argued that due to the drafting error, the gift in Jake’s will fails — as if Jake had no will for that property, and it passed to #nextofkin or #heirs under the #instestacylaws.
- The intestate statute or intestacy laws leave property to #heirs and #nextofkin when property is not disposed of by a #lastwill or a #willsubstitute like a #jointbankacccount or #lifeinsurancepolicy or #retirementaccount.
- The #charitablefoundation argued that the gift of the separate property —the inheritance — passes under the “residuary clause” of Jake’s will — which gave an #inheritance to the #maritaltrust, and, when the #widow died, it went to the #familyfoundation.
Family foundation wins. The court stated, or repeated, an old maxim of #probatelaw : a person who makes a will is presumed not to want to die intestate — without a will. So a #probatecourt will try to leave that inheritance under the will, in light of Jake’s intent.