Texas Wills And Estate Law

Front 1

Requirements for a duly executed will

Back 1

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

Front 2

When do we care about incorporation of a document by reference?

Back 2

When there is an extrinsic document not present when the will was executed

Front 3

Reqs for incorporating a document into a will be reference?

Back 3

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

Front 4

How to probate a lost will?
(when you have a copy)

Back 4

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

Front 5

A lifetime gift to a descendant is not considered an advancement unless:

Back 5

it is declared as such in a contemporaneous writing by DONOR or acknowledged as such in writing by the DONEE

Front 6

Why would anyone disclaim their inheritance?

Back 6

Avoid Creditor's claims (but not federal tax liens) or avoid gift taxes

Front 7

What must one do to have an effective disclaimer?

Back 7

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.

Front 8

Child without a presumed father can inherit from natural father if:

Back 8

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

Front 9

Presumption of paternity under Family Code:

Back 9

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

Front 10

Bequest to interested witness is void unless:

Back 10

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

Front 11

What must be alleged and proved to show that a testator had sufficient mental capacity to make a will?

Back 11

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

Front 12

What must be alleged and proved to establish undue influence?

Back 12

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

Front 13

Who does the Texas anti-lapse statute apply?

Back 13

A predeceasing beneficiary who is a 1. Descendant of testator's parents and 2. Leaves descendants who survive the testator by 120 hours

Front 14

Does the anti-lapse statute apply where will says "if he survives me"?

Back 14

NO! gift fails according to the terms of the will

Front 15

Residual Beneficiary Rule:

Back 15

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.

Front 16

Anti-Lapse statute vs. surviving beneficiaries rule

Back 16

Anti-lapse statute TRUMPS

Front 17

Latent Ambiguity

Back 17

Misdescription
Extrinsic evidence admissible to cure
fail to cure-fail to gift

Front 18

Patent Ambiguity

Back 18

Mistake on face of the will
Extrinsic evidence admissible

Front 19

Independant Administration

Back 19

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

Front 20

When is an independant administration authorized under the Probate Code?

Back 20

1. When provided for in the will (any words, however informal, are sufficient, judge cannot veto)
or
2. If all distributees agree

Front 21

What does an independant executor have the right to do?

Back 21

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

Front 22

Muniment of Title

Back 22

t left a will
must be no unpaid debts
no formal administration needed, but need to establish title of successors

Front 23

Statutory Heirshop Proceeding

Back 23

intestate
no need to formally administer but formal recognition needed
the order can be used to collect a bank account

Front 24

Small Estate Administration

Back 24

intestate
by affadivit if value of intestate decedent's probate estate is less than $50,000.
Can clear title to homestead rp only

Front 25

Qualified Community Administation

Back 25

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.

Front 26

Nonstatutory affidavit of heirship

Back 26

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.