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26 Cards in this Set

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Requirements for a duly executed will
1. T must be 18 y/o (or married or military)
2. Signed by T (or proxy)
3. 2 attesting witness over 14
4. Each witness must sign in the testator's presence
When do we care about incorporation of a document by reference?
When there is an extrinsic document not present when the will was executed
Reqs for incorporating a document into a will be reference?
1. Writing must be in existence when will executed
2. Will must show an intent to incorporate the writing; and
3. Document must be clearly identified by language in the will
How to probate a lost will?
(when you have a copy)
1. Due execution must be proved (just like in any case)
2. Cause of will's nonproduction must be proved (to overcome the presumption of revocation)
3. Contents must be substantially proved by one who has read will or heard it read
A lifetime gift to a descendant is not considered an advancement unless:
it is declared as such in a contemporaneous writing by DONOR or acknowledged as such in writing by the DONEE
Why would anyone disclaim their inheritance?
Avoid Creditor's claims (but not federal tax liens) or avoid gift taxes
What must one do to have an effective disclaimer?
1. Must be written, signed and acknowledge before notary public
2. Must be filed within 9 months after decedent's death
3. Must be filed with probate court, with copy to personal representative.
Child without a presumed father can inherit from natural father if:
1. Presumption of paternity under Family Code
2. Man signed sworn statement acknowledging paternity
3. Paternity suit establishes
4. Paternity is established in probate proceedings by clear and convincing evidence
Presumption of paternity under Family Code:
1. Child born during marriage (or within 300 days)
2. Parties married after child's birth and man voluntarily asserted his paternity one of three ways:
a. record in bureau of stats
b. consented to name on bc
c. promising in a record to support
3. during 1st 2 years lived with child and represented as own
Bequest to interested witness is void unless:
1. Will can be proved without the interested witness's testimony or
2. the interested witness's testimony is corroborated by the testimony of a disinterested and credible person, this can be anybody present when executed or
3. the interested witness would be an heir if this will were not probated in which case the interested witness takes the lessor of a) legacy under will or b) intestate share
What must be alleged and proved to show that a testator had sufficient mental capacity to make a will?
1. Must understand the nature of the act he was doing
2. Must know the nature and approximate value of his property
3. Must know the natural objects of his bounty
4. Must understand the disposition he was making
What must be alleged and proved to establish undue influence?
1. Existence and exertion of the influence;
2. Effect was to overpower the mind and will of the testator; and
3. Product was will (or gift in will) that would not have been made BUT FOR the influence
Who does the Texas anti-lapse statute apply?
A predeceasing beneficiary who is a 1. Descendant of testator's parents and 2. Leaves descendants who survive the testator by 120 hours
Does the anti-lapse statute apply where will says "if he survives me"?
NO! gift fails according to the terms of the will
Residual Beneficiary Rule:
Where the residuary estate is devised to two or more persons, and the gift to one of them lapses, the remaining residuary beneficiaries take the residuary estate in proportion to their interests.
Anti-Lapse statute vs. surviving beneficiaries rule
Anti-lapse statute TRUMPS
Latent Ambiguity
Misdescription
Extrinsic evidence admissible to cure
fail to cure-fail to gift
Patent Ambiguity
Mistake on face of the will
Extrinsic evidence admissible
Independant Administration
Independant administrator
No action shall be held in the courts other than probate of the will, and filing an inventory, appraisement, and list of claims of the estate.
Administered without court supervision or involvement
When is an independant administration authorized under the Probate Code?
1. When provided for in the will (any words, however informal, are sufficient, judge cannot veto)
or
2. If all distributees agree
What does an independant executor have the right to do?
Anything a dependent administrator (under court supervised administration) can be authorized to do without a court order. However the act must relate to
a) proper settlement of the estate
or
b) perservation of estate assets
Muniment of Title
t left a will
must be no unpaid debts
no formal administration needed, but need to establish title of successors
Statutory Heirshop Proceeding
intestate
no need to formally administer but formal recognition needed
the order can be used to collect a bank account
Small Estate Administration
intestate
by affadivit if value of intestate decedent's probate estate is less than $50,000.
Can clear title to homestead rp only
Qualified Community Administation
intestate
where decedent's one-half interest in community property passes by intestacy to descendants (children by first marriage) spouse must qualify as administrator by giving bond. Descendants cannot compel a distribution, terminating the qualified adm. for 12 months after given bond.
Nonstatutory affidavit of heirship
used primarily to clear title to land where owner died years ago and no action was taken to clear title at that time. The affidavit relies on people to recite facts and then is filed in county records and title insurance cos and title examiners rely.