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100 Cards in this Set

  • Front
  • Back
Requirements for duly executed wills
1 – signed by testator
2 – 2 attesting witnesses over age 14
3 – each witness signed in testator’s presence

Codicils must be executed as above
Does attesting witness need to know that he is signing a will?
No
Does attesting witness need to sign at bottom of will?
No
Does attesting witness need to sign after testator?
No, as long as part of “contemporaneous” action
Does attesting witness need to sign in front of other witness?
No
What is “in T’s presence?”
T is conscious of where they are and what they are doing (“hospital bed” case)
Proving will in probate
Can prove will
1 – testimony of 1 witness in open ct OR
2 – if all witnesses are dead, 2 persons to testify to sig of T or either witness
What if T’s will is in a safe deposit box?
Contents of safe deposit box may be examined w/o court order in presence of bank official by spouse, child (18+), or executor named in will
Self-proving affidavit
Sworn affidavit by T and witnesses w/ statements that W would make in open court so don’t have to litigate
- functions as depo/rogs – sub for live testimony
What if will wasn’t signed but self-proving affidavit is?
Sigs on affidavit can be used to validate will but cannot also then be used for affidavit (meaning will must be litigated)
Can intended beneficiaries sue T’s atty if will is not properly execute d?
No, no privity of contract. Atty’s duty only extends to T.

BUT, executor can sue atty for negligent estate planning.
If will ok if attesting wit is also beneficiary?
Yes, BUT bequest is void unless
1 – will can be proven w/o intended B (ie, other wit can testify) OR
2 – can be corroborated by person in the room (eg, atty) OR
3 – interested wit would be heir, then wit takes lesser of legacy if not in probate or intended share of will
How to prove holographic will?
2 wits that can testify that will was totally (“wholly”) in T’s handwriting
- doesn’t have to be dated
- I, Mary Jones = signature
- Surplusage rule – unnecessary printed words disregarded
What is the surplusage rule for holographic wills?
Printed/Typed words unnecessary to complete will can be disregarded so that will is “wholly” holographic
What can you do if T is dying and unable to write his will?
Proxy signature – “T, by A, at his request and in his presence”
Anti-lapse statute
When a beneficiary predeceases T, gift lapses UNLESS
1 – beneficiary = descendants of T’s parents AND
2 – B survives T by 120 hrs
Otherwise, falls into residency estate
When does gift lapse into residuary estate?
Surviving Residuary Beneficiaries Rule – when anti-lapse statute doesn’t apply, remaining beneficiaries take estate in proportion to their interests
Class gift rule of construction
If member of class predeceases T, class members who survive T take gift (unless anti-lapse stat applies)
*Compare to “A,B,C, X’s kids” which is not class gift because names individuals
Rule of convenience
Class closes at T’s death
“to my descendants per capita”
Each descendant gets one share each
“to my descendants per stirpes”
One share per family line
Void Gifts
Beneficiary was dead at time of will, anti-lapse and surviving residuary beneficiaries rules apply
- except if it was class gift and dead B was class member
Intestate succession, survived by spouse, kids
CP = Wife take alls
Unless some kids from dif marriage, then W takes 1/2, kids 1/2 divided equally
SP = W 1/3, kids 2/3 divided equally

SP real property
W = 1/3 life estate, kids = remainder 2/3
Intestate succession, survived by spouse, no kids – Separate Real Property
W = 1/2 fee simple
Parents/descendants of parents = 1/2 fee simple
HEF
Whenever Q involves surviving spouse!

Homestead, exempt property, family allowance
Intestate, not survived by spouse or descendents
Parents = 1/2 each
Bros and sis = ½ if 1 parent dead, per cap with representation
Half-blood relatives
take 1/2 as much as whole blood relatives
What is the limit on degrees of kinship for inheritance?
No limit on degree of kinship
Get a genealogist if you need it
Child born out of wedlock (“child with no presumed father”)
No inheritance from dad unless
1 – presumption of paternity under Family code
2 – man signed sworn affidavit acknowledging paternity
3 – paternity suit establishes paternity
4 – paternity established in probate by C&C evidence
Can step-child inherent from step-dad?
No, unless adoption by estoppel (unperformed agreement to adopt)
Can adopted kid inherent from birth mom?
Yes unless decree terminating P-C r’ship expressly terminates inheritance

But no inheritance if adopted as adult
120 hr rule
Applies to both intestate and testate
- must survive T by 5 days, can contract around it in will
- read/distribute as if X predeceased T
Effective disclaimer of heir or beneficiary
1 – written, signed, acknowledged (before notary public)
2 – filed w/in 9 mo
3 – filed w/ probate w/ copy to personal rep

- can be partial
Why would you disclaim interest?
1 – avoid gift taxes
2 – avoid creditor claims (except fed tax liens)
Gift to heir/beneficiary during lifetime = “advancement” when:
1 – donor declares so in contemporaneous writing
2 – donee declares so in writing
Claims that W can assert when H dies and she isn’t in will
HEF
1 – Homestead 10/urban 200/rural
OR 15k cash
2 – Exempt personal prop set aside up to 60k
OR 5k allowance if no exempt property
3 – Family allowance for 1 year
What if testator divorces after will executed?
Divorce revokes all gifts and fiduciary appointments of spouse AND spouse’s relatives
- Read will as if the spouse and relatives predeceased T
What is a pretermitted child?
C born or adopted after will executed.
Think accidental omission
How to divide estate with pretermitted child and no other kids
C gets share of all property not bequeathed to other parent as if T was “intestate, unmarried, owning only that portion of estate not bequeathed to C’s other parent”
How to divide estate with pretermitted child and other kids NOT provided for
C gets share of all property not bequeathed to other parent as if T was “intestate, unmarried, owning only that portion of estate not bequeathed to C’s other parent”
How to divide estate with pretermitted child and other kids ARE provided for
C gif is limited to gifts such as that of other kids. Other people’s (beside kids’) gifts are not reduced
Republication by codicil
Will is deemed to be executed on date of last codicil
- If living C not provided for in will after last codicil, pretermitted child rule doesn’t apply
How to revoke a will
1 – subsequent testamentary instrument “with like formalities”
2 – physical act (by T or proxy)
Can holographic instrument revoke a typed, attested will?
Yes, as long as duly executed
How to Probate a Lost Will
1 – Due execution must be proved
2 – cause of will’s non-production must be proved
3 – contents must be substantially proved by one who has read, heard, or can identify a copy
What effect do handwritten changes made on the face of an executed will have?
No effect.
Words added to will after due execution are disregarded
Partial revocation by physical act
NOT valid in Texas
How can T make changes to will?
Either and only by brand new will or by duly executed codicil
What effect do handwritten changes made on the face of a holographic will have?
Valid
Revival of Revoked Wills
No revival in Tx
Will revoked by new will cannot be revived by destruction of new will unless
1 – re-executed with witnesses or
2- republished by duly executed codicil
(NB: equity-type doctrine for mistake of law/fact)
Per capital w/ representation
1st generation w/ living takers gets division, descendants of dead takers get portion of dead taker’s share
If a second will does not revoke the first will:
Read them together and revoke by implication when necessary
Order of Abatement
1 – intestate property
2 – residuary estate (personal prop first, then real prop)
3 – general legacies (PP, then RP)
4- specific bequests (PP, then RP)
How are estate taxes apportioned?
Equitably among all beneficiaries (everyone reduced pro rata)
What happens when specifically devised property is not in the estate at death?
“Ademption” – gift fails, B take nothing
Demonstrative Legacy
General amount from specific source (eg, “25k from sale of my XYZ stocks”)
Bequests of stock and securities that were sold before death
- If specific bequest (“MY 100 shares of XYZ stock”), ademption applies, B takes nothing
- If general legacy (100 shares of ABC stock), no ademption. B gets date of death value of shares.
Exoneration of liens doctrine
Will *executed* before 9/1/05 = exonerated liens on specifically devised property
NO exoneration for wills on/after 9/1/05
When can extrinsic document be incorporated by reference?
1 – writing in existence when will executed
2 – will shows intent to incorporate
3- doc must be clearly identified by language in will “such that there can be no mistake as to identity of doc”
** NB: Holographic will can’t incorporate typewritten by ref b/c “wholly in writing”
What is Acts of Independence Significance or Nontestementary Act Doctrine?
Lifetime acts with lifetimes motive/purpose, even though they affect will, are OK (buying new car)
Does bequeath of “my hope chest” include contents?
No
Does bequeath of “my hope chest and its contents” include title docs (stock, deeds)?”
No, tangible prop only
Mistakes in the will
Plain meaning rule if there is no ambiguity, extrinsic evidence not permissible
- Absent suspicious circumstances, conclusive presumption that T read will and intended its terms
Latent ambiguity in the will
Extrinsic evidence allowed to find meaning
If can’t find meaning, gift fails
Patent ambiguity in will
Mistake appears on face of will, extrinsic evidence allowed
Contract to make or not revoke will can be established ONLY by:
1 – provisions in the will state that K exists and states provisions in K
2 – binding and enforceable written agreement (eg, buy-sell agrmnt, or prenup)
If contractual will established,
1 – new will that tries to revoke old contractual will goes to probate BUT
2 – constructive trust in favor of Bs of contractual will established
How do you revoke a contractual will?
Give notice to other party
Major types of Nonprobate Assets
1 – right of survivorship property
2 – prop passing by K (life insurance etc)
3 – prop held in trust
4 – prop which D had power of appointment
Effect of Disinheritance Clause
Given full effect
Negative bequest – can say how prop is not to be disposed of
- read as though D predeceased
How may a will exercise a testamentary power of appointment?
Must be *express* and *specific*
- no blanket exercise
- If not express and specific, goes to takers in default of appointment
What must you show to prove T had sufficient capacity?
1 – understood nature of act
2 – know nature and approx value of property
3 – know natural objects of his bounty
4- understand disposition he was making
If T had recently been adjudicated mentally incapacitated, does this prove T did not have testamentary power?
No
1 – adjudication of incapacity = different legal test than testamentary capacity
2 – Jury could find T made will during a “lucid interval”
- may be admitted as evidence but not enough for directed verdict
Who can contest a will?
Persons with economic interests that would be *adversely affected*
(can’t contest W2 if it gives you more than W1)
How do you prove undue influence?
Contestant has burden of proof, must show:
1 – Existence and execution of will
2 – effect to overpower mind and will of T
3 – product was will that would not have been made BUT FOR influence
What evidence of undue influence is not enough alone?
- surmise, conjecture, suspicion
- mere opportunity, susceptibility, or unnatural disposition (given more to one than another child, etc)
How to show undue influence when will procured by one in a confidential r’ship?
There is an inference of undue influence which is strengthened when there are suspicious circumstances.
Gift to lawyer, L’s parents, employee?
Void unless B is related to T w/in 3 degrees of consanguinity or affinity (marriage)
Sketchy marriage before death
Can file to annul the marriage on capacity to consent if marriage was w/in 3 years of death and filed w/in 1 year
No-contest clauses in will
Given full effect UNLESS
- ct finds contest was in good faith and with probable cause
- not forfeited by action of anyone but B
- B can voluntarily dismiss filing on contests and not forfeit
When is independent administration authorized under Probate code?
1 – when provided for in will (ANY words)
2 – when all distributes agree
What are the powers of an independent executor w/r/t transactions?
Independent executor has the power, w/o court order anything a dependent administrator can be authorized to do w/ court order as long as relates to
1 – proper settlement of estate
2 – preservation of estate assets
When is an interested party entitled to an accounting from independent executor?
On demand 15 mo. after admitted to probate and on demand 12 mo. after last accounting
What procedures may an independent executor use to close the administration?
1 – File closing report w/ verified affidavit (prop initial rec’d, debt/expenses paid, names/addresses of distrubtees)
2 – File for declaratory judgment for judicial discharge of further liability
For an estate under independent administration when and by whom many the closing or distribution of the estate be compelled?
Interested party can petition for distribution 2 yrs after executor was appointed
- is a “show cause hearing”
What must executor or administrator do w/in 120 days?
1 – post fiduciary bond w/in 20 days
2 – publish notice of admin in newspaper w/in 1 mo.
3 – file inventory w/in 90 days
4 – give notice to named beneficiaries w/in 60 days after will in probate
5 – file certificate of notice w/in 90 days
What is a muniment of title?
When valid will is probated but not formally administered
- probate constitutes muniment of title that serves same function as a deed (link in title change)
- cannot get muniment of title unless all unpaid debts are paid off
When D dies intestate and no formal administration but need formal recognition to establish title of sucessory inheritance?
Statutory Heirship Proceeding – like a declaratory judgment
Small estate administration by affidavit
Intestate D’s probate estate is less than $50k
- can clear title to homestead but no other real property
W has to pay community debts after H’s death, how?
W has authority to sell community assets as unqualified community administrator for the purpose of paying community debts unless has sufficient cash then no authority to sell assets
What to do when land owner died years ago and chain of title is a mess?
Nonstatutory affidavit of heirship – affidavits by neighbors or relatives who recite family history and that D died intestate. File affidavits in county records.
If will is admitted to probate in A county but he also has land in B county?
File certified copies of will and order admitting it to probate (muniment of title)
How soon must a will be offered for probate?
w/in 4 years or if (and only if) offering party is not in default
Priority of people who can be appointed personal representative
1 – executor named n will
2 – surviving spouse
3 – principle beneficiary in will
4 – any other B in the will
5 – next of kin
Disqualified = minors, incapacitated, convicted felons, anyone found “unsuitable”
Can a non resident serve as an administrator of a Tx estate?
Yes but has to appoint resident agent for service of process.
Can independent executor be liable for failing to insure property if T never insured it?
Yes, test = if prudent person would, you have duty to
Compensation of executors and administrators
5% in (of all sums actally rec’d)
5% out (paid out in cash)
What procedures to presentement of creditors claim in dependent and independent administration?
Notice reqs same for both depen and indepen
1 – Notice by publication w/in 1 mo.
2 – Permissive personal notice to unsecured (general) creditors for $
3 – Personal notice to secured creditors w/in 2 mo.
How should secured creditors file their claims against an estate?
Unless estate is insolvent, should file as matured secured claim (even if mortgage has years to go), otherwise will become preferred debt and lien. Matured secured claim gets foreclosure and deficiency judgment, preferred debt and lien only gets foreclosure.
Claims against estate paid in order of priority
1 – funeral expenses and “last illness” up to 15k THEN family allowance
2 – expenses of admin
3 – secured claims to extent of lien
4 – child support arrerages
5 – state tax 6 – repayment of Medicaid
7 – cost of imprisonment
8 – all other claims