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Non-Production of a Will & Termination of a Trust

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What happens when a person’s original will cannot be found and therefore proved in court? What constitutes non-production of a will? When will a trust be terminated? All of these questions are answered in the case In re Estate of Catlin.

Probate Case

In re Estate of Catlin, 311 S.W.3d 697 (Tex. App. 2010).

Facts of the Case

This case was an appeal concerning a lost will made by Jerry Don Catlin (Catlin Sr.) and which created a testamentary trust. Because the will was lost, a copy of the will was probated instead. Jerry Don Catlin II (Junior), Catlin Sr.’s son, challenged the efforts made by his stepbrother, Douglas Glenn Barnes, in probating the copy. Junior lost his challenge and appeals. He raises two issues in his appeal. His two issues involve the sufficiency of the evidence underlying the trial court’s conclusion that the original will was lost, and the accuracy of the trial court’s interpretation of the document that it created a testamentary trust.

The court of appeals overturned both issues Junior raised. They affirmed the trial court’s ruling finding that the evidence was legally and factually sufficient to support that the copy produced was a true and correct copy, the original will could not be produced in court by reasonable diligence, and Catlin Sr.’s wife dying before him did not terminate the testamentary trust that Catlin Sr.’s will created.

What this Case Means

Non-Production of a Will

Section 85 of the Texas Probate Code states that a written will which cannot be produced in court shall be proved in the same manner as provided for an attested written will or a holographic will. The same amount and character of testimony shall be required to prove the will as is required to prove a written will that was produced in court. Also, the party must prove the cause of the will’s non-production. This cause must be sufficient to satisfy the court that the will cannot by any reasonable diligence be produced, and the contents of the will must be substantially proved by the testimony of a credible witness who has read the will, has heard the will read, or can identify a copy of the will.

In other words, this section of the Texas Probate Code provides a method in which a party may produce a copy of the deceased’s will in court if the original will cannot be found, the cause of why the original will cannot be found can be proved in court, the cause is sufficient to prove to the court that the original will could not be produced by any reasonable amount of diligence, and the contents of the will can be proved by a credible witness testimony who has read or heard the original will, or can identify an original copy of the will.

Here, there were two witness testimonies that they had seen the original will or spoken with Catlin Sr. about the original will. Barnes was also able to testify that he searched Catlin Sr.’s office, the banks, and safety deposit boxes looking for the original copy, but could not produce it. This proves that the will could not be produced under reasonable diligence. Thus, Junior’s argument on this point was overturned.

Termination, Modification, or Revocation of a Trust

It is settled that in construing a will, the court will focus on the testator’s (writer’s) intent. The intent is found by drawing it from the will. In other words, the testator’s intent must be garnered from the actual language within the document. Nevertheless, if those words are open to more than one reasonable construction, evidence of the testator’s situation, the circumstances surrounding or influencing the will’s execution, and things of the like which enable the court to place itself in his shoes at the time the document was executed may be admissible. This means that if the document is up to some interpretation, the court may decide what the intention of the document was.

Here, we see that Catlin Sr. initially in his will gave his wife Doris all his interest in the household and yard and garden furniture, personal items used for recreational purposes, automobiles, clothes, jewelry, and personal effects used or worn by him. However, if Doris were to die before him, all the property that would have gone to her was to become a part of the property that was devised and bequeathed by subpart 2.3 of his will. In subpart 2.2, Catlin Sr. left to his “descendants living at the time of [his] death” a “sum equal to one-tenth of the rest, residue, and remainder of [his] property estate.” If no such descendants were alive, however, the one-tenth was to “become a part of the rest, residue and remainder of [his] property … devised and bequeath[ed] by subpart 2.3” as well. Junior was the only person who fell within the will’s definition of “descendant.” Through subpart 2.3 of Catlin Sr. ‘s will, he devised all the remainder of his property, real or personal, to the trustees of his estate.

Junior argues that because Doris died before Catlin Sr., the trust mentioned by the will either failed to come into being or it was terminated by her death. If this were found true, then the property designated to go to Junior’s step siblings would not pass to them. The court of appeals found, however, that this was not the intention of the will. The court of appeals found that only Doris’ interest in the property and trust were contingent upon her surviving Catlin Sr., but everyone else’s interest in the will affected by the trust were not contingent upon this. Therefore, the court of appeals overturned this argument as well and found that the will did indeed create a testamentary trust.

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Does a trust terminate at the death of the trustee?

A will is a transfer of property from the deceased person (testator) to other people. A trust is a promise by the settlor (the person creating the trust) that he or she will use some of his or her assets for the benefit of another person (the beneficiary). A trust is created by a document called a “trust instrument.”

The trustee is the fiduciary who manages the property on behalf of beneficiaries. If a trust instrument names an individual as sole trustee, then the trust terminates upon his or her death, because there is no longer a person authorized to act as trustee.

If a person creates a trust but does not name an individual as the trustee, then it is possible that the trust instrument itself appoints someone to be the successor trustee if the named individual becomes incapable of serving.

What does it mean when a trust terminates?

A trust is an arrangement in which one person, called the trustee, holds legal title to property for another person, called the beneficiary. A trust can be created during the trustor’s lifetime or after the trustor’s death. A trust terminates when the purpose of the trust has been accomplished or when the trustor revokes the trust.

How long can a trust remain open after death?

A Texas trust ends either by reaching its stated term or by being terminated earlier. In the case of a will, the trust ends with the death of the person who established it and does not matter when the person dies. And, unless the will says otherwise, the trust terminates with the probate of the will. That might seem like a short time for a trust to last after death, but there is no Texas law that says an estate must remain open for a specific period of time.

It is important to know how long a trust can remain open after death because this will determine how long the estate will be responsible for managing the trust. If a trust is terminated earlier than intended, it may not have enough time to distribute all of the assets properly. Additionally, if a trust remains open after death, the estate may be responsible for managing the trust until it is properly closed.

How to dissolve a trust whether it’s a special needs, spendthrift, charitable, or constructive trust?

When a trust is created, it usually has a reason for being. If a trust is set up to help disabled child with their finances. Or if the trust is in place to help a disabled person on its own. Then there are trusts that are set up for parents or family members to take care of their loved ones after they’re gone. These are only a few examples of the many different kinds of trusts that can be set up.

The question is: How do you dissolve these trusts? And if you have a living trust, how do you end it? This is an area that many people don’t necessarily understand. But understanding how it works is important if you’re going to dissolve a trust or end one.

The first thing you need to know is that there are two ways you can dissolve a trust. You can either use the termination of a special needs trust, or you can submit the will and probate it.

Special needs trusts are designed to help disabled people with their finances, so if that’s the kind of trust you have in place, you’ll need to follow the specific termination procedures. If you have a living trust, on the other hand, you can simply end it by following the steps outlined in your trust agreement. No matter what kind of trust you have, though, it’s important to understand how dissolution works before taking any action.

How to terminate an irrevocable trust? Can an irrevocable trust be terminated?

You can create an irrevocable trust in your will, but it will not terminate by itself – you need to take action. An irrevocable trust cannot be terminated by the mere passage of time, because it does not have an expiration date or any provision for termination. It is called an irrevocable trust because the grantor gives up the right to change or revoke the trust terms. When you are the grantor of an irrevocable trust, you are called a Settlor.

There are two ways to terminate an irrevocable trust: either revoke it (in other words, cancel the trust), or terminate it (in other words, distribute the trust property).