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95 Cards in this Set

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What are the requirements for a duly executed will?
- Signed by testator

- Two attesting witnesses

- each witness must sign in testator's presence
For a will to be duly executed, do the witnesses have to know they are witnessing a will and do they have to witness the testator signing in their presence?
No, the witnesses do not need to be there when the testator signs and they do not need to know what the document is and they do not have to sign in each other's presence.
What is an Attestation clause and is it required in Texas?
Attestation clause is not required. The clause appears below the testator's signature line and recites the elements required "on the above date testator declared to us that the foregoing instrument was her will and asked us to serve as witnesses thereto. She then signed the will in our presence, we now sign the will as attesting witnesses.
When is an Attestation clause useful.
It serves as prima facie evidence of facts and is useful when the witness has a bad memory or with a hostile witness.
Does the testator have to see the witnesses sign the will for it to be duly executed?
No - the testator does not have to actually see the witness sign but the witness must sign in testator's "conscious presence."
The witnesses have to be close enough that testator is conscious of where they are and what they are doing and where he could see them by some slight physical exertion on is part.
How can you probate a will if one or both witnesses are dead?
You only need the testimony of one attesting witness in open court. If both witnesses are dead or cannot be located, testimony of two person as to the handwriting of the testator or either of the two witnesses.
What is the proper venue for probate of a will and administration of the estate?
The county where the decedent resided. If the decedent had no fixed residence in the state, the county where the principal property is located or the county where he died.
What is a Self-proving affidavit?
A notorized affidavit signed by the testator and witnesses that contains the statements the witnesses would testify to in open court. It serves the same function as a deposition or interrogatory and is a substitute for live testimony.
What happens if one of the witnesses is also a beneficiary of the will?
The interested witness never affects the validity of the will but the bequest to the witness is void.
Under what circumstances could the interested witness still be a beneficiary under a will?
If the will can be proved without the interested witness's testimony, or the interested person's testimony is corroborated by that of a disinterested and credible person who was present when the will was executed, or when the interested witness would be an heir if the will were not probated.
What is a Holographic will and what are the requirements?
A holographic will is one that is handwritten and unwitnessed. The requirement is that it be wholly in the testator's handwriting and signed by the testator.
What is the content requirement for a Holographic will to be admitted to probate?
There is no specific wording but it must be clear that there was testamentary intent. There should be a formal beginning, "I, Mary Jones..." and the phrase, "leave my property," to make the testamentary effect clear.
Where does the signature have to appear for a Holograhic will?
Anywhere on the document. So if the document starts off with "I, Mary Jones...." that is considered a signature.
Explain the Surplusage Rule and how it applies to a Holographic will.
The surplusage rule says that extraneous printed words, not necessary to complete the will or its meaning, can be disregarded. This would apply to someone handwriting their will on hotel stationary and crossing off the name of the hotel.
What happens if the beneficiary predeceases the testator?
You cannot make a gift to a dead person so the gift lapses unless the anti-lapse statute applies. If the gift lapses it falls into the residuary estate
What is the anti-lapse statute with regards to wills.
The Texas anti-lapse statute applies when a predeceasing beneficiary was a discendent of the testator's parent. Examples: child, grandchild, brother, sister, nephew, etc.
What is the Surviving Beneficiaries Rule with regards to wills?
Where the residuary estate is devised to two or more persons, and the gift to one of them lapses, the remaining beneficiaries take the residuary estate in proportion to their interests
What is the relationship between the Anti-lapse statute and the Surviving Beneficiaries Rule?
The Anti-lapse statute trumps or overrides the surviving beneficiaries rule.
What is the "Class gift rule of construction" with regards to wills?
In a gift by will to a class of persons, like "children" or "brothers and sisters" - if a class member predeceases the testator, the other class members take. The rationale is that the testator was group minded when he made the gift so the gift should remain in the group.
When do the intestate rules of succession apply?
- When the decedent left no will.

- The will does not make a complete disposition of the estate.

- An heir successfully contests the will and the will is denied probate.
What is the "laughing heir" statute and does Texas have one?
The laughing heir statute eliminates inheritance by relatives that are so remote that you have no reaction to their death.

Texas does not have such a statute so you can inherit no matter how remote the relation.
When is paternity presumed under the Texas Family Code?
1) If the child was born during or within 300 days of the marraige. 2) The parties married after the child's birth and the man voluntarily asserted his paternity of the child. 3) During the first two years of the child's life, the man continuously resided in the same household as the child and represented to others that the child was his.
How can a man voluntarily assert paternity under the Texas Family Code?
- Assert paternity in a record filed with the Bureau of Vital Statistics.

- The man is voluntarily named as the father on the child's birth certificate,

- the man promises in a record to support the child as his own.
How is a child born out of wedlock treated when the father dies intestate?
The child cannot inherit unless he meets the presumption of paternity under the Texas Family Code, or the man signed a sworn statement acknowledging paternity, or paternity was established in a paternity suit, or paternity is established in probate proceedings.
What is the 120-hour rule with regards to wills?
Failure to survive the decedent by at least 120 hours results in the person being treated as if they predeceased the decedent for purposes of intestate succession, family allowance, and exempt personal property.
Under Common law, a lifetime gift to a child was presumptively an advancement of his inheritance. How are advancements treated in Texas?
In Texas a lifetime gift is not treated as an advancement unless...
declared as such in a contemporaneous writing by the donor, or acknowledged as such in writing by the donee.
What happens if the testator is divorced after the will is executed?
Divorce or annulment of a marraige revokes all gifts and fiduciary appointments in favor of former spouse and in-laws. The estate will be distributed as if the former spouse predeceased the testator.
What is a pretermitted child and what are the applicable probate rules?
A child born or adopted after the will is executed. If there are no other children when the will is executed, the child takes intestate share of all property not bequeathed to other parent of the child
Under what conditions would the pretermitted child statute not apply?
- The child is provided for or mentioned in the will, like if the testator bequeathed to his "children".

- The child is provided for in nonprobate transfer that takes effect at the testator's death, like a life insurance policy.
What is the doctrine of Republication by Codicil?
A will is deemed to have been executed on the date of the last codicil to the will.
How can a will be revoked?
- by a subsequent testamentary instrument executed with like formalities, or

- by physical act
What are some presumptions as to revocation of a will
If a will was last seen in the testator's possession or control and not found after death - testator is presumed to have destroyed with intent to revoke.

If the will was last seen in testator's possession or control and found torn or mutilated - testator presumed to have destroyed by physical act.
How do you probate a lost will?
There is a 3-point test:
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 or heard the will or can identify a copy of it.
What happens if you have a lost will and don't know who the witnesses were?
You are screwed.
What is the happens if the will is changed, such as words being added, to a will after its execution?
Words added after execution are disregarded because they were not part of the will when it was signed and witnessed.
Can you partially revoke a will by physical act such as crossing out a portion?
No - According to Texas law, you can revoke a will in its entirety but you cannot do a partial revocation.

Exception: if it is a holographic will
What is the effect of revocation by codicil with regards to a will?
Revocation by codicil 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 was never executed.
What are the policies with oral wills?
Oral wills made on or after September 2007 are not valid.

Wills prior to that date are given effect in limited circumstances, the following strict tests must be met: oral will only applicable to personal property, must have been made during last sickness, must be 3 or more credible witnesses, has to be probated within 6 months of death.
What is a specific legacy or devise in a will?
A gift of a specific item of real or personal property. Examples: "blackacre" or "my Movado watch"
What is a demonstrative legacy in a will?
A general amount of $ from a specific source. Example: "I bequeath to X the sum of $100 to be paid out of the proceeds of the sale of blackacre"
What is a general legacy in a will?
An amount payable out of general assets of the estate. Example: "I bequeath to X $500.
What is a residuary legacy in a will
The gift remainder of the estate after all debts are paid and all specific, demonstrative, and general legacies have been satisfied.
What are the procedural rules governing a will contest.
- Contest must be filed within 2 years after probate.

- Only interested parties can contest a will.

- Legatee who accepts benefits under the will is estopped from contesting it.
What are the grounds for contesting a will?
- assertion that will was not properly executed,
- lack of testamentary capacity,
- undue influence
- fraud
- mistake
- that the testator did not know the contents of the will
What are the requisites for testamentary capacity?
- understanding the nature of the act he was doing,
- know the nature and character of his property,
- know the objects of his bounty, and
- understand the disposition he was making
To establish undue influence when contesting a will, the contestant must prove...
- existence and exertion of an influence,

- overpowers mind and will of testator,

- will would not have been executed "but for" the influence.
Discuss no contest clauses
- the clause is enforceable unless the court finds the contest was brought in good faith and with probable cause,
- no contest clauses are strictly construed by the courts
- a no contest clause is not triggered by a contest filed by a guardian of a minor or incompetent person.
What are the duties of a Court Appointed Representative for an Estate Administration
1) File an inventory within 90 days that specifies whether property is community, separate, or owned in common with others. 2) File a list of claims or assets owed to the estate. 3) File an accounting within 12 months.
What is the compensation for a Personal Representative of an Estate?
Compensation is set by statute at 5% of all sums received in cash and 5% of all sums paid out in cash, excluding cash or bank deposits of the decedent or insurance policies
What is the Personal Representatives duty with regards to creditors of the estate?
The Personal Representative must publish a notice to creditors requiring them to file claims. Creditors have 6 months to file claims.
Actual notice must be sent to secured creditors by registered mail w/in 2-months. Secured creditors have 4 months to file claim. Copies of notice and proof of publication must be filed with the court.
What is the order of payment for obligations of the estate?
1) Funeral expenses and expenses of last illness up to $15,000. 2) Allowances to surviving children and spouse. 3) Expenses of administration and preserving/managing estate.
When is probating a will as muniment of title permitted?
1) the will should be admitted to probate; 2) there are no unpaid debts; 3) the court finds there is no necessity for probate administration. *An order admitting a will to probate as muniment of title announces that all persons may deal with the land or other assets w/o necessity for administration.
Explain a Discretionary trust
Discretionary trusts give discretion to the trustee to determine when, or if, he shall distribute income amongst the beneficiaries. The beneficiaries cannot compel payment and neither can creditors of the beneficiary.
What are the powers of a trustee?
Broad powers are conferred upon trustees by statute unless the trust instrument limits the power. Statutory powers include: sell or lease property, give a mortgage, make improvements and/or repairs, give mineral leases, and partition and divide property.
What are some exceptions to the trustees powers
Trustee cannot do anything that would be considered self-dealing or making imprudent investments such as: trustee cannot borrow trust funds or assets as collateral for a personal loan, cannot buy or sell trust assets to himself, cannot profit other than reasonable compensation, corporate trustee cannot buy its own stock as a trust asset.
What is considered when evaluating the trustee's investment decisions?
The entire trust portfolio is evaluated when examining the investment decisions. Investment returns are measured by the total return including appreciation and capitol gains. Do not measure performance but instead look at conduct when the decision is made; prudence is not measured by hindsight.
Under the Uniform Prudent Investors Act, what are some factors the trustee must take into consideration when developing the custom tailored investment strategy?
The role each investment plays within the overall trust portfolio, the expected total return from income and capital gains, general economic conditions, expected tax consequences, need for liquidity, etc.
What are the inheritance rights of adopted children?
Adoption establishes parent-child relationship for all purposes including inheritance rights. It should be noted that the birth parent cannot find the child later and try to inherit anything from the child.
What is the rule regarding Disclaimer by Heir or Beneficiary?
If there is an effective disclaimer, T's estate is distributed as though disclaimant predeceased him. An effective disclaimer must be writing, signed, and acknowledged (notarized) and filed w/in 9 months of death with probate court (copy to personal representative)
What are the rules for unauthorized commercial use of decedent's name or likeness?
The party making unauthorized use can be held liable for damages, profits obtained, exemplary damages, and attorney fees. Recovery goes 1/2 to surviving spouse and 1/2 to surviving descendents; intestate succession rules don't apply
Does Texas have a pretermitted spouse statute and what is it?
Texas does not have pretermitted spouse statute so marriage following execution of a will has no effect on the will. Rationale: TX is a community property state so the she will get her share anyway.
What claims can the widow assert if there is no community property?
1) if dec'd owned a home; probate homestead right to occupy homestead rent free, 2) if no home owned, $15,000 cash allowance in lieu of homestead, 3) Family allowance of amount needed for support for 1-year; 4) exempt personal property set aside: up to $60,000 of tangible property items or $5000 allowance in lieu of set-aside.
What happens when the testator divorced after the will was executed?
Divorce or annulment of a marriage revokes all gifts and fiduciary appointments in favor of former spouse and relatives of former spouse. Estate will be distributed as if the former spouse predeceased T.
Give an example of a Demonstrative legacy.
Demonstrative is a general amount from a specific source, "I bequeath $2500 to be paid out of the proceeds of the sale of my Exxon stock to Sally."
Give an example of a General legacy and an example of a Residuary gift.
General legacy: "I bequeth $10,000 to my nephew Ned."
Residuary gift: "I give all the rest, residue and remainder of my estate to B."
What is the order of abatement used when there are too many claims against the estate and not enough assets to cover?
In the absence of a provision stating otherwise the following is the order of abatement: 1) Intestate property, 2) residuary estate-personal property, 3) residuary estate - real property, 4) general legacies of personal property, 5) general legacies of real property, 6) specific bequests of personal property, 7) specifics devises of real property.
Explain when an extrinsic document not present when the will was executed can be incorporated by reference into the will.
1) writing must be in existence when will executed, 2) will must show an intent to incorporate the writing, 3) document must be clearly identified by language in the will - such that there can be no mistake as to the identity of the document referred to.
Explain the Plain Meaning Rule regarding mistakes or ambiguities in the will.
The rule holds that, where the will is not ambiguous on its face, the will cannot be challenged on the ground that the testator made a mistake in describing a beneficiary or property. The words of the will control.
Explain when extrinsic evidence can be admitted to cure a mistake in a will
Extrinsic evidence as to the testator's intent is admissible to cure a latent ambiguity (when there is a misdescription) or a patent ambiguity where the uncertainty appears on the face of the will.
Explain the effect of a disinheritance clause or "Negative Bequest"
Texas passed a statute in 1991 that gives full effect to a disinheritance clause, even if it results in partial intestacy.
What is the burden of proof for will contests
If will is contested at time offered for probate, burden of proof is on will proponents to show that T had capacity. If the will is contested after admitted to probate, contestants have burden of proof on capacity and have two years in which to file a will contest.
Can a lawyer draft a will in which he is a named beneficiary?
If a lawyer drafts a will that makes a gift to himself, the gift will be void unless he is related to the testator with 3rd degree of consanguinity or affinity.
A central feature of TX estate administration law is independent administration. Under what circumstances would an estate have an independent administration rather than court supervised?
Independent administration authorized under Probate Code anytime it is provided for in the will; any words no matter how informal are sufficient. Independent administration can also be authorized in cases of intestacy or where the will doesn't name executor and distributees agree.
What are some actions a personal representative must take within 120 days of appointment.
Post fiduciary bond w/i 20 days [unless waived by will], publish notice of admin in newspaper w/i 1-month, file inventory w/i 90-days, give notice and copy of will to named beneficiaries w/i 60-days then certification that notice was given w/i 90-days
The Independent Executor may be removed by the court for cause if...
Fails to return inventory w/i 90 days, fails to give notice to beneficiaries w/i 60 days, has misapplied or embezzled estate property, fails to make required accounting, guilty of gross misconduct or mismanagment, becomes incompetent or imprisoned.
What information is required in an application for the sale of real property in a court supervised administration.
File application for sale describing property, amount of creditor claims, property on hand to pay creditors, other facts showing need to sell real estate for authorized purposes.
What are the formal requirements of a trust?
There must be a beneficiary named and a trust purpose indicated. Settlor must have legal capacity, trust property must be certain and identifiable, and the trustee must have fiduciary duties [can't just be title holder]
What are some improper/unlawful purposes for a trust?
Can't have a trust for commission of crime [a trust created from illegal funds is valid but the victim could recover assets], can't call for the destruction of property, can't be a condition against public policy like encouraging divorce or total restraint on marriage.
A revocable trust can be used to avoid guardianship administration in the event of settlor's future incapacity. A settlor may retain any one or more of the following rights or powers...
Income for life; power to revoke, amend, or alter the trust; power to control trustee in the administration of the trust; power to add property, life insurance proceeds, etc., settlor can even name self as trustee as long as has capacity.
What is a pour-over will?
A testimentary gift to the trust that provides a means for adding assets to a trust created by the testator during lifetime. The trust need not be in existence before or executed concurrently with the will.
Distinctive rules apply to charitable trusts, name a few.
May be perpetual and is not subject to the RAP; must be for a charitable purpose [even if specific charity not named], must be in favor of reasonably large segment of public at large.
What happens if the charitable organization named in the trust no longer exists?
The equitable doctrine of cy pres may be used to reform a trust to carry out the settlor's charitable purpose as NEAR as possible by naming a new charity; must be done in a judicial proceeding
Who is required to be notice for any action involving a charitable trust.
In any action involving a charitable trust, a certified copy of the petition must be sent to the Attorney General. The AG is a proper party to any charitable trust; failure to notify the AG makes the judgment voidable.
Explain an Honorary Trust
When there are no named beneficiaries who can enforce the trust. When the beneficiary is an object or a pet so the trustee is on her honor in deciding whether to perform.
When does an honorary trust end?
If it is an object with no lifespan, the trust ends in 21 years. If the beneficiary is a pet or pets, the trust ends when the last of the pets die.
What is a Constructive Trust?
It is not really a trust be an equitable remedy whose object is to disgorge unjust enrichment. Rather than recovering $ damages it allows you to recover the actual property in question.
What are the two required elements for a Constructive Trust to be imposed?
Wrongful conduct and unjust enrichment.
What is the relationship between creditor's rights and spendthrift trusts?
The spendthrift trust protects a trust beneficiary's interest from creditors by prohibiting voluntary assignment or involuntary transfer of the beneficiary's interest. It prevents a judgment creditor from reaching the beneficiary's interest by garnishment or attachment.
List some debts that are not protected by a spendthrift trust clause.
Contracts for necessities such as medical bills, child support, any interest retained by settlor, revocable trust, and Federal tax liens.
What are a beneficiary's options [in addition for action to remove trustee] if a trustee breaches any fiduciary duty or exercises a power not given.
1) Ratify the transaction and waive the breach, 2) Sue for the resulting loss, note: breach of a fiduciary duty is an automatic wrong; 3) If trustee still has possession of property, beneficiary can petition for impossition of constructive trust.
All provisions of the TX Trust Code are default rules, a settlor can write her own rules and modify the otherwise applicable code provisions. What are the rules that cannot be modified?
Cannot limit prohibition on illegal acts or acts against public policy; Cannot exculpate trusee from liability for breach committed in bad faith, intentionally, or w/ reckless indifference; Can't limit SOL; Can't limit trustee duty to provide accounting; and can't limit Court's jurisdictional power.
What are the requirements to be eligible for the Qualified Terminable Interest Property [QTIP] election?
1) Income must be payable to spouse annually for life, the income interest cannot terminate upon remarriage; 2) No other person can be a permissible beneficiary during the spouse's lifetime; 3) Executor must make a QTIP election on estate tax return.
Explain Adoption by Estoppel, sometimes called equitable adoption, and its relationship to inheritance.
It is an equitable doctrine that permits a child to inherit from step or foster parents as though she was adopted. This applies when the family took custody of the child under an agreement with the birth parents that they would adopt the child but failed to follow through with the adoption.
List some of the required elements for a sworn statement acknowledging paternity
1) must be in writing, 2) signed by mother and purported father, 3) state child does not have other father, 4) state whether claim of paternity is consistent w/ genetic tests (if any), and 5) state understanding that acknowledgment is equivalent to judicial adjudication of paternity.
How can you rebutt the presumption of paternity?
Only through genetic testing results that exclude the individual as the father.