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Probate Court
Judicial Proceeding in which the court:
1) determines that the decedent left a validly executed will (or that the decedent died intestate and his heirs are determined); and
2) appoints a personal representative (executor is named in the will; administrator if appointed by the court) who issued letters testamentary (or letters of administration) showing her authority to wind up the decedent's affairs and administer the estate.
The probate estate does not include NON-PROBATE TRANSFERS-Interests that pass by right of survivorship or under the terms of a contract.
Residuary Estate
The estate that remains after expenses of administration, debts and taxes have been paid and, if makes bequests, after all such bequests have been satisfied. "I give all of the rest, residue nad remainder of my estate to my wife, "wifey""
Execution of Wills

Requirements for Duly Executed Will
1) Testator must be 18 years old (or married, or in the armed forces)
2) The will must be signed by the testator or by someone at T's direction and in her presence (Proxy signature)
3) There must be two attesting witnesses (over the age of 14)
4) **Each witness must sign IN TESTATOR'S PRESENCE*** but need not be in the presence of the other witness.
Execution of Wills

Codicil-
later amendment or supplement of the will
this must be executed with the same formailities of the original will.
Texas and Will Execution:

Texas does not require
1) that witness know they are witnessing a will, as distinguished from some other legal document (no "will publication" requirement)
2) that testator sign in the witnesses' presence (Testator can have signed the will earlier)
3) that witnesses sign in each other's presence.
4) that the testator sign "at the fott or end" of the will.
Small points on will execution
1) as long as the signing is contemporaneous with one another, it does not matter who signs first.
2) Any intended mark by the testator satisfies the signature requirement.
3) both witnesses can sign at different times in Texas as long as each sign within the testator's presence.
4) knowledge is not required in Texas (knowing that you are signing a will)
5) an attestation clause in not required in any state for any will.
Attestation Clause
appears below the testator's signature line and above the witnesses' signature line, recites the elements required for due execution: "on the above date, testator declared to use that the foregoing instrument was her will and asked us to serve as witnesses thereto. She then signed the will in our presence, we being present at the same time. We now sign the will as attesting witnesses in testator's presence and in the presence of each other.

THIS IS PRIMA FACIE EVIDENCE of fact recited.
When is an attestation clause useful?
1) witness w/ bad memory
2) Hostile witness
Witnesses must sign in testator's "conscious" presence
It is not necessary that the testator should actually be able to see the witness when they sign. They are in his presence whenever they are so near to him that HE IS CONSCIOUS OF WHERE THEY ARE AND WHAT THEY ARE DOING. and where he could see them by some slight physical exertion on his part.
How to prove up a will in Probate
1) testimony of ONE attesting witness in open court (if she resides outside the county, testimony may be secured by deposition or interrogatory)
2) if all witnesses are dead or cannot be located, testimony of two persons as to the signature of the testator or signature of either attesting witness. (in this situtation, there is a presumption that all testamentary formalities was complied with, even if the will did not contaim an attestation clause.
Venue for Probate
of will and administration of estate: county where decedent resided. If the decedent (a nonresident) had no domicile or fixed place of residence in the state, (i) the county where the property is located; OR (ii) county where the testator died.
Contents of a safety deposit box-
may be examined, without court order, in presence of back official by spouse, child over the age of 18, person name as the executor in the will. A will found in the safe deposit box may be delivered either to executor named in the will or to the probate court.
Self- proving affidavit
A deposition or testimony in open court

A procedure that most probates are harmonious, nonlitigious affairs in which no one is challenging the validity of the will's execution. Can be executed at any time after the will is signed, but invariably is signed at the same ceremony: T and witnesses sign will, then T and witnesses execute sworn affidavit before a notary public. Affidavit contains statements the witnesses would testify to in open court (T was over age 18; witnesses signed in T's presence; in witnesses' opinion T was of sound mind, etc.). Unlike an attestation clause (which merely corroborates of witnesses' testimony), the sworn affidavit serves the same function as a deposition or interrogatory: it is a substitute for live testimony of the attesting witness in open court.
What if the will is not signed by the witnesses but the self-proving affidavit is signed?
Then the signatures count for the will only and not the self-proving affidavit. You can only use the signature once
In a will, attorney's duty...
runs to client;s who contracted for the attorney's services. This means only the client can sue the attorney for a bad bogus will.
Huie v. DeShazo
Where attorney represents trustee (executor), all attorney-client communications are privileged, cannot be discovered by trust beneficiaries. Attorney's duty runs only to the fidicuary who retained him; no attorney-client relationship with beneficiaries. However, executor CAN SUE attorney for loss to the estate of excess estate taxes paid b/c of attonrey's negligent estate planning advice OR improper characterization of assets as separate property rather than community property.
Attesting Witness is Beneficiary- Interested Witness Statute
In every state the will is admissible to probate when only one of the attesting witnesses is also a beneficiary under the will.

Interested witness situation never affects validity of the will. Only result: bequest to witness is void UNLESS...one of 3 statutory exceptions come into play.
What are the 3 statutory exceptions to when being an interested witness bequest to the witness is void?
1) Will can be proved without the interested witness's testimony
2) the interested witness's testimony is corroborated by the testimony of a disinterested and credible PERSON (this can be anyone present when the will was executed- liberal statute)
3) the interested witness would be an heir if this will were not probated, in which case the interested witness takes whichever is LEAST: the lesser of (i) the legacy under the will or (ii) intestate share.
Holographic Wills; Oral Wills.

Texas- holographic will
TX recognizes holographic (handwritten, unwitnesses) wills, so long as they are "wholly in the handwriting of the testator" and signed by the testator. You can have a holographic codicil to a typewritten, witnesses will.
Holographic will can be valid in TX even though not valid in state in which he lived when it was written-client moved and was domiciled in TX when he died. It's the law of the state of domicile at death that controls.
Is extrinstic evidence admissible on the issue of testamentary intent?
If ambiguous & might be a will, then it can be used.
In TX where must the signature of Testator be in a holographic will?
Anywhere
Does the will have to be dated in Texas?
No.
How do you prove up a holographic will?
1) wholly in her hand. Block signature doesnt kill the will.
2) if you have 2 witnesses to show that it is wholly in her handwriting, that is sufficient.
3) Don't discriminate btw printed handwriting and cursive handwriting.
4) if part is typed, then it fails - not "wholly in handwriting"
the "Surplusage Rule"
Under this rule, extraneous printed words (like a heading) is not necessary to the completion of the will or its meaning, these can be disregarded and will not disruption the will handwritten qualifications.
A letter that states that testator intends to sign a later document reforming the will. Is this a codicil?
No. the letter itself must have been made with the testamentary intent to amend or supplment the will. With the showing of future intent on signing a different document, there is not any testamentary intent in that letter.
A document that is operative during lifetime:
CANNOT be a will for that reason. b/c to be a will or a codicil, they must be intended to take effect @ death.
In Texas can oral will be used?
No. You must:
1) write something out
2) sign or by proxy
3) have two witnesses present
Beneficiary Dies During Testator's Lifetime - Lapsed Gifts
1) Texas Anti-Lapse Statute
2) Lapse in Residuary Estate "Surviving Residuary Beneficiaries" Rule
3) Class Gifts
4) Void Gifts
The Texas Anti Lapse Statute
1) A will beneficiary predeceases the testator, the gift "lapses" fails. You can't make a gift to a dead person, a dead person can't hold title to property. UNLESS- the gift is saved by the state's "anti-lapse statute"
2) The TX Anti-Lapse Statute applies only when the predeceasing beneficiary:
a- decedentof the testator's parent (child, grandchild, brother, sister, nephew, niece)
b- AND left decedants who survive the testator by 120 hrs.
What is the decedent predeceased and was not survived by any descendants?
Then his interest the predeceased decedent goes to his residuary estate (all property after expenses dispursed. An anti lapse statute right does not save a devising of property by will if the condition is not satisfied. "If X survives me"
"Surviving Residuary Beneficiaries 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. (of course this is pursuant and absent to contrary provisions in the will itself
What is the pecking order btw the Anti-L Statute and the SurRes Bene. Rule?
Anti-lapse statute TRUMPS "surviving residuary beneficiaries" rule
Class Gifts- Rule of construction
In a gift by will to a class of persons ("children", "brother and sisters", etc.) if a member of the class predeceases the testator, the CLASS MEMBERS WHO SURVIIVE THE TESTATOR TAKE (absent a contrary provision). Rationale: Testator was "group-minded" in making the gift to the class and wanted this group and only this group to share the property.
Class gifts

Steps
1) you read the will
2) you determine the takers of the class gift
3) as of the testator's death
What is the difference between class gifts and gifts to individuals
1) when a individual's gift lapses, for whatever reason, that interest falls into the residual estate.
2) when a class member's interest in a class gift lapses, the interest stays within the class and is proportioned to the remaining class member whose interests have not lapsed.
Who wins? the Anti-Lapse Statute or the Class Gift Interests?
Class Gifts are SUBJECT TO: possible application of the anti-lapse statute. The class gift gives way (an is trumped) by the anti-lapse statute when the predeceasing class member is within the scope of the anti-lapse statute.
Class Gifts

The Rule of Convenience
The "class closing" rule of construction used to define the takers of a class gift. The class is closed, meaning that later-born class members do not share in the gift, WHEN SOME CLASS MEMBER IS ENTITLED TO A DISTRIBUTION. This is done to determine minimum share of each class member, so a distribution can be without the necessity of rebate. Called "Rule of Convenience" b/c any other result would be inconvenient.
---Outright gift by will- the class closes at testator's will
Class Gifts

Rule of Convenvience

Subject to Gestation Principle
Family code presumption that 300 days from conception to birth, they are part of the class.
"Per Captia"

Literal Translation
By the head. One share for each decedent
"Per Stripes"

Literal Translation
"by the roots". Each child is a "root", meaning one share for each family line. Children would take by representation only if the parents were dead.
Gifts to children

Adopted Children
Gift to Parents decendant's include "child" adopted as an adult. Texas family code permits adult adoption.
Void Gifts
Same Rule apply. Suppose that a beneficiary named in a will was dead at the time the will was executed (This is called a void gift). All of the above rules (anti-lapse; surviving residuary rules) apply to void gifts.
Void Gifts

Exceptions
Is class member was dead when the will was executed, the anti-lapse statute does not apply in favor of that class member's descendants.
Intestate Succession

Application
The intestate succession rules apply when
1) decedent left NO WILL (or will was not validly executed)
2) the will does not make a complete disposition of the estate ("Partial Intestacy"), or
3) an heir successfully contests the will, and the WILL is DENIED PROBATE.
Intestate Succession- Areas of Interest
1) Survived by Spouse- Community Property
2) Survived by Spouse- Separate Property
3) Descendants take per capita with representation
4) Not survived by spouse or descendants
5) No limit on degree of relationship needed to take as Heir
6) Child born out of wedlock- "Child without a presumed father"
7) Inheritance Rights of Adopted Children
8) Deaths in Quick Succession- 120 hrs Rule
9) Disclaimer by Heir or Beneficiary
10) Lifetime gift to heir or will beneficiary
11) Unauthorized Commercial Use of Decedent's Name or Likeness
Intestate Succession-

1) Survived by Spouse-- Community Property
(salary and wages of either spouse, the income from separate property)
1) if there are descendants and all of the children are from that marriage (nuclear family) then the wife gets all.
2) If there are children of another marriage, the wife gets her 1/2 and the descendants all children get the other 1/2.
Intestate Spouse-

2) Survived by Spouse-- Separate Property
(property owned by either spouse before marriage property acquired during marriage by gift, will or inheritance.)

Separate Personal Property- the wife ALWAYS GETS 1/3. The children (whether earlier marriage or not- get 2/3)
Intestate Succession-

Survived by Spouse- Separate Property
Personal Property- What is survived by wife and people other than children?
all to the surviving spouse. (parents, collateral kin never inherit separate personal property if the intestate was survived by his or her spouse.
Intestate Succession-

Survived by Spouse- Separate Property

Real Property
Wife- 1/3 life estate
Children (or descendants), whether from this marriage or an earlier- remainder 2/3 outright, plus remainder following 1/3 life estate. (REMEMBER ALWAYS STAYS IN THE FAMILY!!!!

If no descendants- then
Wife- 1/2 fee simple
Parent, etc.- 1/2 other

If no surviving immediate family (Rents and Bros) then wife gets all and Unclie and Auntie and Gram get nadda.
Q- involving spouse surviving
(whether dealing with a will or intestacy)- you should also mention homestead (if applicable), exempt personal property set-aside, and family allowance (HEF)
Intestate Succession-

Descendants take per capita with representation.
"per stripes" is actually per capita with representation: Per captia at first level; by representation at the next level. Go down to first generational level at which there are living taker, then one share for each line in the descendants.
Intestate Succession-

Not Survived by spouse or descendants
1) if survived by both parents, parents take 1/2 each
2) if one parent, that parent takes 1/2; the sibling are the next level splitting the dead parents 1/2 interest; the children of the siblings get by representation (if their parents- who are sibs are dead).
Intestate Succession-

The Bad Daddy Doctrine
But a parent cannot inherit from or through a child if there is clear and convincing evidence that the parent:
1) abandoned and failed to support the child
2) knowingly abandoned and failed to support the child's mother during her pregnancy
3) or was criminally responsible for the death or serious injury of the child.
Intestate Succession

Collateral Kin Issue
In inheritance by collateral kin, "HALF-BLOODS INHERIT HALF AS MUCH AS WHOLE-BLOODS. Whole get 2/3's and Half gets 1/3.
Intestate Succession

No limit on Degree of Relationship Needed to take as Heirs
Texas does not have a "laughing heir" statute (actually, an "anti-laughing heir" statute) as is true of Uniform Probate Code, which eliminates inheritance by remote relatives. In TX, there is NO LIMIT on the degree of kinship that qualifies one to be an heir. If the decedent was not survived by parents or descendants of parents, 1/2 maternal grandparents nad their kin, 1/2 to parental grandparents and their kin, etc. "AND SO ON WITHOUT END" until heir are found on maternal and parental sides.

Administrator should hire a geneologist when there is an issue of finding heirs.
Intestate Succession

Child born out of wedlock- "Child without a presumed father"
A Natural Father cannot collect from child's death if the child is born out of wedlock unless
1) presumption of paternity under the family code.
2) man signed sworn statement acknowledging paternity
3) paternity was establish in a paternity suit
4) paternity is established in probate proceedings by- genetic testing.
Intestate Succession

Child born out of wedlock

Persumption of Paternity under the Family Code
1) Child was born during (or w/in 300 days after) marriage or attempted but void or voidable marriage; or
2) parties married after the child's birth and the man voluntarily asserted his paternity one of three ways: (a) in a record filed w/ Bureau Vital Stats, (b) by consenting to be named father on birth certificate, (c) by promising in a record to support the child.
3) during the first two years of child's life, the man resided with the child and represented to others that the child was his.
Intestate Succession

Child out of wedlock-

Mother Inherit?
Yes. there is no Q as to who is the mother.
Intestate Succession

Child born out of wedlock

Adoption by estoppel?
A step- child cannot inherit from step-parent unless there is adoption by estoppel (unperformed agreement to adopt).

Adoption by estoppel permits inheritance from foster parent, but NOT his kin.
Intestate Succession

Inheritance Rights of Adopted Children
Adoption establishes parent-child relationship for all purposes. (the child can inherit and vise-versa). In texas law.

Child can inherit from natural mother after adoption UNLESS it is in decree "terminating parent-child relationship"- the inheritance rights must be expressly terminated.

"ONE WAY STREET" the biological parent cannot inherit on child's death even if parent-child relationship was not expressly terminated.

PErson adopted as an adult can inherit from adopting parent (ONLY) and not from biological parents.
Intestate Succession

Deaths in Quick Succession - 120 hr Rule
Must live 120 hrs before can take. if you don't, your heirs take by representation. 120 hr rule applies to everything (separate and community property, real or personal)

anti-lapse statute only applies to when there is a will!!!. no will then intestate rules.

If the will requires survival, or covers simultaneous death, or deaths in a common disaster, the 120-hr rule DOES NOT APPLY.
120 hr rule continued
The 120 hr rule applies to life insurance policies and joint and survivor bank accounts; and also to property held in joint tenancy with the right of survivorship.. One-half passes as though the other joint tenant survived.

To trigger right of survivorship, one party must survive the other by 120 hours.
Intestate Succession

Disclaimer by Heir or Beneficiary

Requirements
1) Must be in writing, signed, and acknowledged (before notary public)

2) Must be filed within 9 months after the decedent's death

3) Must be filed with probate court, with copy to personal representative (2-copies)
Intestate Succession

Disclaimer by Heir or Beneficiary

Additional Points
4) Disclaimer can be partial
5) Intestate heirs can disclaim, and executor or guardian can disclaim on behalf of deceased or incapacitated beneficiary or heir. Parent, as parent, cannot disclaim on behalf of minor child, only legally appointed personal representative (legal guardian, managing conservator) can disclaim on behalf of the child.

If disclaim, the interest passes as though the decedent predeceased the intestator.
Intestate Succession

Disclaimer by Heir or Beneficiary

Why would anyone ever disclaim?
1) to avoid gift tax
2) to avoid creditor's liens (Exception- federal tax liens meaning the IRS as a creditor)
Intestate Succession

Disclaimer by Heir or Beneficiary

Particular Beneficiaries disclaiming
1) Beneficiary of Life insurance policy or employee death benefit also can disclaim within the 9-month period.
2) Beneficiary of irrevocable inter vivos trust can disclaim within 9-months after the trust is created; read as though disclaimant was dead when the trust was established.
3) Beneficiary of Revocable trust can disclaim within 9-months after trust becomes irrevocable.
4) a child can disclaim w/in 9-months after attaining age 21 (not age 18, but 21)
5) A charitable beneficiary can disclaim within (i) 1 yr after recieving notice of the bequest, or (ii) 6 months after inventory of estate is filed, whichever is later- reason- environmental law/hazardous waste concerns.
Intestate Succession

Lifetime Gift to Heir or Will Beneficiary

Is it an advancement of his intestate share? C/L
C/L- Lifetime gift to a child was PRESUMPTIVELY an advancement (advanced payment) of his intestate share, to be taken into account in distribution of the estate at death. (presumption was that a parent would always want to treat all of her children equally)
Intestate Succession

Lifetime Gift to Heir or Will Beneficiary

Is it an advancement of his intestate share? Texas
A lifetime gift to a descendant (or any other heir) is NOT treated as an advancement UNLESS:
1) declared as such in contemporaneous writing by the donor, OR
2) acknowledged as such in writing by the donee.
Intestate Succession

Lifetime Gift to Heir or Will Beneficiary

Is it an advancement of his intestate share? THE MATH
1) Take the estate value to be distributed
2) Add the "advance" during the Intestator's lifetime
3) Divide that but the number of descendants or heirs to be distributed to
4) then the one who received the advance subtracts that advance from his divided share. That is how much he is entitled to.
Intestate Succession

Lifetime Gift to Heir or Will Beneficiary

Partial Satisfaction of Inheritance Concern
A lifetime gift to a beneficiary is NOT treated as a partial satisfaction of a bequest made in an earlier will UNLESS:
1) declared as such in a contemporaneous writing by the donor
2) acknowledged as such in a writing by the donee
or 3) the will provides that bequests are to be reduced by such lifetime gifts.
Intestate Succession

Unauthorized commercial use of Decedent's name or likeness

Different succession Rule- "HALF AND HALF RULE"
applies to the decedent's property right in the unauthorized commercial use of his name, voice or likeness. (popular sports figure's names and photographs used in TV commercial) The party making such unauthorized use can be held laible for damages, profits obtained, exemplary damages, and attorney's fee. The recovery goes:
(i) 1/2 to surviving spouse and 1/2 to descendants
(ii) all to spouse if no descendants
(ii) all to descendants if no spouse
(iV) all to parents if not survived by spouse or descendants.

If none above , the property right expires one year after individual's death.
Changes in Family After Will is Executed
1) Testator Marries After Will is Executed
2) Testator is Divorced After will is Executed
3) Pretermitted Child: Born or Adopted After will is Executed
4) Republication by Codicil
Testator Marries After will is executed

Does TX have a "pretermitted spouse" statute?
No. If there is marriage after the will is executed and not changed, the wife does not have right under the will. Marriage after execution of the will has no effect on the will b/c Texas is a Community Property State.
Testator Marries After will is executed

What claims must the wife assert?
1) If husband owned residence: Probate Homestead (10 acres if urban, 200 acres if rural) right to occupy the h/s rent free
2) If husband did not own the residence ($15K cash allowance in lieu of h/s)
3) Family allowance: Amount needed for support for a period of one year
4) Exempt personal property set-aside- Up to $60K of tangible personal property item.
5) $5K allowance in lieu of #4- Items not on exempt property list.
Testator is Divorced After Will is Executed
Divorce or annulment of a marriage revokes all gifts and fiduaciary appointments in favor of former spouse and relatives of the former spouse. (who are not relatives of the testator). Read the will and distribute the estate as though former spouse (and relatives of former spouse) predeceased the testator. (Similar "divorce revokes" rules apply to revocable trusts, life insurance policies)
Testator is Divorced After Will is Executed

What if the married couple reconcile before execution of the will?
But if the couple reconcile and remarry, so the Wife is Husband's wide at death, she takes under the will. The statute applies to revoke the gifts and fiduciary appointments ONLY IF they are divorced at Testator's death.
Pretermitted Child- Born or adopted after will executed

If no children when the will is executed
Chaild takes* intestate shall of all property not bequeathed to other parent of the child

*UNLESS child is provided for by nonprobate transfer (eg life insurance, joint bank account) taking effect at testator's death.
Pretermitted Child- Born or adopted after will executed

If there are other children when the will executed....
1) and such children are NOT provided for: Child takes* intestate share of all property not bequeathed to other parent of the child
2) and such children are provided for: Child's share is limited to the gifts to such other children. Nobody's else's gift is reduced.
Steps if no other children but a wife in CP?
1) wife takes her 1/2 share of CP
2) wife takes % of other half bequeathed to Wife
3) add 1/2 share and %, subtract from entire CP.
4) remainder is kid.

*** the same answer is dedicated to the Gestation principle (300 day rule)***

Only after born child is protected if there are other children.
Steps if other children (say 2 others) but a wife in CP & others not provided for?
1) Steps 1-3 above.
2) the remainder is divided into 3 (after born + the other children)
3) after born get his/her share
4) the residuary estate gets rest (other kids get nothing if not provided for.
Steps if had other children and provided for, there is a spouse remaining and another residuary beneficiary?
If testator had other children when the will executed but other children ARE provided for: Pretermitted child's share is limited to the gifts to other children (even if they are contingent gifts and the other children take nothing-meaning the pretermitted child's share would also be 0). No other beneficiaries bequest is reduced.
What if the other children before the executed will get unequal gifts?
the pretermitted child get an equal share in the various gifts.
When does the Pretermitted Child Statute NOT APPLY???
If: 1) child is provided for or mentioned in the will, or
2) child is provided for by a nonprobate transfer that takes effect at the testator's death.
For these purposes, a contigent gift is sufficient provision for the child. This shows that purposes of the statute is not guarantee that a child takes a share of the estate; but only to protect against accidental omissions. If a nonprobate transfer reflects that the testator-parent was mindful of the child, the child has no rights under the statute.
Republication by Codicil
a will "speaks" (is deemed to have been executed) on the date of last codicil to the will. If the codicil is made after X is born and he is not provided for, the pretermitted child statute does not apply to him.
Revocation of Wills

Generally
A will can be revoked
1) bya subsequent testamentary instrument executed "with like formalities", or
2) by physical act ("by the testator destroying or canceling the will, or causing it to be done in his presence"- proxy revocation). A holographic instrument can revoke a typewritten, attested will (and vise versa); "like formalities" doesn't mean identical formalities; it means the formalities required for a will.
Revocation of Wills
1) presumptions as to revocation
2) proof of lost wills
3) Rules governing changes made on face of executed will
Revocation of Wills

Presumptions as to revocation
1) Where will last seen in T's possession or control is not found after death, presumption: T destroyed the will by physical act
2) Where the will last seen in testator's possession or control is found in torn or mutilated condition: presumption is that T revoked the will by physical act
3) These presumptions do not arise if will last seem in the possession of someone adversely affected by its contents. Evidence is admissible to rebut the presumption of revocation where will cannot be found or is found in damaged condition. (eg will found in fire that killed testator)
Revocation of Wills

Proof of Lost Wills
A copy of the will that cannot be found (original) can be use if the following are shown:
1) due execution must be proved as in any other case
2) cause of will's non-production must be proved (must overcome presumption of revocation raised by will's nonproduction
3) contents must be substantially proved by one who has read will, heard it read, or can identify copy of will.
Revocation of Wills

Rules governing changes made on the face of executed will
1) Words added after the will has been executed are disregarded b/c they are not part of the duly executed will
2) only words present when signed constitute the last will
3) There is no requirement that a codicil be on a separate sheet. If the statement can stand by itself (when the "plastic overlay" is taken from the top of the page) then it is part of the will.
3) a cross out as partial revocation by physical act is not valid. the Revocation must be fully. You may use a codicil however it must stand on its own.
4) If handwritten will in entirety, and evidentiary tests are met, then crossouts and interlineations are valid
Revocation of Wills

Rules governing changes made on the face of executed will

Revival of wills?
Texas applies the c/l doctrine of no revival of revoked wills.

Can only be revived if (a) re-executed with attesting witnesses; OR (b) republished by a duly executed codicil.
The Equitable Doctrine of Dependent Relative Revocation-
Where testator revokes a will based on MISTAKE OF LAW OR FACT AS TO THE VALIDITY OF ANOTHER DISPOSITION. This equity-type doctrine permits the court to disregard the revocation that was based on the mistake of law or fact if it finds that the act of revocation was premised on, was conditioned on-was dependent on-the validity of another disposition. DRR has been mentioned in dictum but never applied by the TX Courts-has never appeared on the TX Bar exam.
If two instrument stating "my last will" and the earlier one was NEVER REVOKED....
1) you read the two instruments together. the 2nd "last will" is treated as a codicil to the first will, and revokes the first will only to the extent of inconsistent provisions.

2) but if the 2nd instrument is wholly inconsistent with the firs, the first is "revoked by implication.

3) Revocation of codicil to a will does not revoke the will; the part of the will that was modified or revoked by the codicil is restored and takes effect as though the codicil had never been executed.
Problems Associated with Testamentary Gifts

Specific Terms to Know
1) Specific devise or bequest
2) Demonstrative Legacy
3) General Legacy
4) Residuary Gift
5) Intestate Property
Specific Devise or Bequest
"I devise Blackacre to my son John"
Demonstrative Legacy
A general amount from a specific source. "I bequeath $25K, to be paid out of proceeds of the sale of my Exxon stock, to Sally"
General Legacy
"I bequeath $10K to my nephew Ned."
Residuary Gift
" I give all the rest, residue and remainder of my estate to B"
Intestate property
E.g. partial intestacy b/c the will, poorly drafted, does not contain a residuary clause.
Problems Associated w/ Testamentary Gifts

A. Abatement of Legacies to pay Debts: What happens when there are so many claims against the estate that there are not enough assets to cover all of the gifts made by the will? In the absence of a provision in the will, what is the order of abatement of testator's property to pay debts and claims?
Devises and Legacies abate in the following order: Within each catagory, bequests and devises abate PRO RATA
1) Intestate property (if the testator died partially intestate)
2) Residuary Estate--Personal Prop.
3) Residuary Estate--Real Property
4) General Legacies of Personal Prop.
5) General Legacies of Real Property
6) Specific bequests of Personal Property
7) Specific Devises of Real Property
How are demonstrative legacies treated?
the statute does not address how they are treated. Likely result: Would be treated same as specific bequest (and thus last to be abated) to the extent of the value of the specified property, and as general legacy to the extent of any excess.
Problems Associated With Testamentary Gifts

Pro Rata Apportionment of Estate Taxes
Absent contrary provision, estate taxes are equitably apportioned among all estate beneficiaries (everyone's interest is reduced pro rata)

EXCEPTION- gifts that qualify for the martial deduction or charitable deduction are not subject to apportionment, b/c these gift do not generate any tax.
Problems Associated With Testamentary Gifts

Specifically Devised Property Not in Estate At Death- Ademption!!!
You can't will off something that you don't own at the time of your death. the beneficiary take 0.
Does ademption apply to demonstrative legacies?
Only to specific gifts does ademption apply & not demostrantive legacies.
The effect of the Texas application of the "identity doctrine"
Texas applies the c/l "identity" doctrine, under which ademption is applied as an objective test; testator's probable intent is irrelevant. Meaning you look at the willed item. If you are given a car, and the car is demolished you aren't entitled to the insurance proceeds.
Problems Associated with Testamentary Gifts

Bequests of Stock and Other Securities
Look at the language
"give MY 100 stocks" - that is a specific request

"give 100 share of kodak"- general legacy (not possessory)

If not possessory, it is not a specific gift, then the ademption rule does not apply.
Ademption, Stock, and the Stock Split
Specific bequests of stock includes stock produced by a stock split or stock dividend declared after the will was executed, but not cash dividends declared before death, even though not paid until after death. For this purpose, the date dividend is declared by the corporation controls.

a bequest of stock can be a specific gift for the purposes of stock split and yet a general legacy for other purposes (ademption)

These situations, the Beneficiary always wins.
Specific Stock gift: what does it include?
A specific bequest of stock includes
1) securities of another entity owned by the testator as the result of a merger, takeover, or consolidation, etc. , but does not
2) include securities acquired through the exercise of a stock option.