Community Property Survivorship Agreement
Here is an example of how section 112.052 of the Estates Code may help when a Will has failed in Probate Court for Letters Testamentary or Letters of Administration:
A document labeled as a will can be adjudicated as a community property survivorship agreement in certain circumstances under Texas law.
In Estate of Lovell, Jimmy and Beatrice, husband and wife, signed a joint and mutual will using an internet form.
The internet will contained the following directives:
In paragraph IV, the couple stated their mutual agreement to execute a joint and mutual will, “leaving to the survivor all property, real and personal, of the party first to die, and on the death of the survivor,” leave all of his or her property “to our children equally, share and share alike.” In paragraph V, they stated their “desire” that the “survivor of us shall have absolutely and in fee simple all the property, real, personal, or mixed, which either or both of us may own or have any interest in at the death of the one of us first to die.”
In order for a will to be valid it must be witnessed. In this case the will was not witnessed.
When the wife died her husband sought to have the will admitted to probate.
The wife’s son, contested the will because it was not witnessed. The trial court found in favor of the son and found that the will was not valid.
The husband then offered the failed will as a community property survivorship agreement under Texas law.
The Texas probate court determined the failed will met the requirements for a valid community property survivorship agreement. The husband was declared the owner of his wife’s property.
The son appealed the trial court's ruling but the Texas appellate court affirmed the trial court’s ruling.
Sec. 112.001. In this chapter, "community property survivorship agreement" means an agreement between spouses creating a right of survivorship in community property.
Sec. 112.052. (a) A community property survivorship agreement must be in writing and signed by both spouses.
(b) A written agreement signed by both spouses is sufficient to create a right of survivorship in the community property described in the agreement if the agreement includes any of the following phrases:
(1) "with right of survivorship";
(2) "will become the property of the survivor";
(3) "will vest in and belong to the surviving spouse"; or
(4) "shall pass to the surviving spouse."
(c) Notwithstanding Subsection (b), a community property survivorship agreement that otherwise meets the requirements of this chapter is effective without including any of the phrases listed in that subsection.
Sec. 112.101. (a) Notwithstanding Section 112.053, after the death of a spouse, the surviving spouse or the surviving spouse's personal representative may apply to the court for an order stating that a community property survivorship agreement satisfies the requirements of this chapter and is effective to create a right of survivorship in community property.
(b) An application under this section must include:
(1) the surviving spouse's name and domicile;
(2) the deceased spouse's name and former domicile;
(3) the fact, time, and place of the deceased spouse's death;
(4) facts establishing venue in the court; and
(5) the deceased spouse's social security number, if known.
(c) An application under this section must be filed in the county of proper venue for administration of the deceased spouse's estate.
(d) The original community property survivorship agreement shall be filed with an application under this section.
