Grieving the loss of a family member is difficult enough, and battling in court over inheritance can magnify those difficulties exponentially. Fortunately, Texas case law provides an opportunity for families to work together and avoid probate, particularly with a small estate made up mostly of personal property.
Elements of a Family Settlement Agreement
First and foremost, the family must agree not to probate the will. The second required element is that an accepted plan must include an agreement about how property will be distributed to the heirs. This provision allows the family to divide the property as they see fit before the judicial process divides the property as the will provides. Estate of Morris, 577 S.W.2d 748 (Tex. Civ. App. – Amarillo 1979, writ ref d, n.r.e.).
The People Involved in a Family Settlement Agreement
Anyone who has an interest in the will should be involved in the agreement. However, if an individual’s interests are unaffected by the agreement, that individual is not required to sign the agreement. A guardian must represent any beneficiaries who cannot act for themselves, such as minors or those lacking capacity.
Endorsement by the Court
Texas courts actually prefer that the family comes to an agreement without contesting the will. In certain circumstances, however, court approval will overrule a Family Settlement Agreement, such as when an attempt is made to invalidate the will, when a guardian is an interested party, when the person entitled to the property is missing, when the settlement calls for a testamentary trust to be changed and the beneficiaries do not agree to that change, and when the settlement is enforceable as a contract. Crossly v. Staley, 988 S.W.2d 791 (Tex. App. Amarillo 1999, no writ).
In most instances, drafting a formal family settlement agreement will require an experienced probate attorney. Even for agreements that seem simple, a grieving family can greatly benefit from a probate attorney who knows how best to navigate the challenges of settling an estate.
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