How to handle presumed fraud on community?

Surviving spouse in Texas has withdrawn significant amounts of cash during
marriage. During probate he consistently refuses to provide respective financial
records, instead only made a statement that he spent funds on everyday expenses.
Is this sufficient to refute fraud on community presumption? If not what is the
proper course of action and is there a statue of limitation for filing a suit on
that claim? Can the executor wait until the surviving spouse passes away and just
file a claim with his executor?

Asked on September 25, 2016 under Estate Planning, Texas

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

The estate of the wife needs to press the fraud claim now, versus later.  If the executor waits until after surviving husband passes, then valuable information could be lost, or assets completely depleted, or the statute of limitations could run on the cause of action.  If the estate on behalf of the wife wants to make a claim, then an attorney for the wife's estate needs to make the claim, file the motion, and compel disclosure of the documents necessary to explain the location of the cash that was withdrawn during the marriage.  There is a process for tracking assets... but it requires filing a motion, the setting of a hearing, and obtaining a ruling by a judge to compel disclosure. 


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