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97 Cards in this Set
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probate
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judicial proceeding where a 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 who is issued letters testamentary (letters of administration) showing her authority to wind up the decedent's affairs and administer the estate - personal representative = "executor" if named in will; "administrator" if appointed by court - probate does NOT include non-probate transfers: interests that pass by right of survivorship (e.g., joint & survivor bank account) or under the terms of a K (e.g., life insurance, ee benefits, etc) |
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residuary estate
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estate that remains after expenses of administration, debts, and taxes have been paid and (if the will makes specific bequests) after all such bequests have been satisfied
- ex: "I give all the rest, residue, and remainder of my estate to X." |
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requirements for duly executed will
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- T must be 18 years old (or married, or in the armed forces)
(1) signed by T or by someone at T's direction and in her presence (proxy signature) (2) two attesting witnesses over age 14 - witnesses should sign after T in order to attest to T's signature, but they may sign before if execution ceremony is a contemporaneous transaction * (3) each witness must sign in TESTATOR'S PRESENCE => codicil must be executed with the same formalities |
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what is NOT required for a duly executed will
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- that witnesses know thay are witnessing a will, as distinguished from some other legal document (no "will publication" requirement)
- that testator sign the will in the witnesses' presence (testator can have signed the will earlier) - that witnesses sign in each other's presence - that the testator sign "at the foot or end" of the will - an attestation clause |
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attestation clause
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- recites the elements required for due execution
- appears below testator's signature line and above the witnesses' signature line - while an attestation clause is not legally required, it is prima facie evidence of the facts recited - useful when dealing with (1) a witness with a bad memory; or (2) a hostile witness |
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witnesses must sign in testator's "conscious" presence
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It is not necessary that the testator should actually be able to see the witnesses 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.
- ex: ok if T is on hospital bed & W is behind a screen; not ok if the Ws were in an adjoining room; certainly not ok if T signs and then lapses into a coma and then W signs |
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proving up a will
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(1) Testimony of one attesting witness in open court. (If she resides outside the county, the 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. |
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venue for probate of will and administration of estate
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- county where decedent resided
- if the decedent (a non-resident) had no domicile or fixed place of residence in the state, (1) county where principal property located, OR (2) county where he died |
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contents of safe deposit box
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may be examined w/o court order, in presence of bank official by spouse, child over 18, or the executor (as named in will)
- this avoids "post-mortem tax planning" by removing items a will found in the safe deposit box may be delivered either to executor named in the will or to the probate court |
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self-proving affidavit
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- can be executed at any time after will is signed, but invariably signed at the same ceremony: T and witnesses sign will, then T and witnesses execute sworn affidavit before 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.) * sworn affidavit serves the same function as a deposition or interrogatory: it is a substitute for live testimony of the attesting witnesses in open court |
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can witnesses' signatures on the affidavit be counted as the two signatures needed on the will itself?
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Yes. Signatures on the self-proving affidavit can be used (if necessary) to validate the will. However, the consequence is: THE WILL IS NOT SELF-PROVED
=> still need to call witnesses to testify to prove up the will |
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attorney duty
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- attorney duty runs to client who contracted for services (A/C privilege applies, and protected communications cannot be discovered by beneficiaries)
- intended beneficiaries do NOT have a c/a against attorney for negligence (no privity of K) - however, executor can sue attorney for negligence re: estate planning when estate taxes were needlessly paid OR improper characterization of assets as SP rather than CP |
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attesting witness is beneficiary -- interested witness statute
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- The interested witness situation NEVER affects the validity of a will.
- Only result: bequest to witness is VOID, UNLESS: (1) will can be proved without the interested witness's testimony, OR (2) interested witness's testimony is corroborated by the testimony of a disinterested and credible person (anyone present when will executed), OR (3) the interested witness would be an heir if this will were not probated, in which case the witness takes the lesser of (1) the legacy under the will, OR (2) intestate share |
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holographic wills
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- TX recognizes holographic (handwritten, unwitnessed) wills, so long as they are "wholly in the handwriting of the testator" AND signed by the testator.
- must be written with testamentary intent - can have a holographic codicil to a typewritten, witnessed will * any words not written in T's handwriting will cause holographic will to be denied probate, EXCEPT - surplusage rule: can disregard extraneous printed words not necessary to complete the will or its meaning |
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proving up a holographic will
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need two witnesses that can testify that the instrument is wholly in T's handwriting
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testamentary intent
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The testator must intend that the very instrument the testator executed to be the testator’s will. That is, the instrument must state the testamentary desires to be effective upon death.
- look for a formal beginning and some language indicating that T will "leave" X property - if the purported will is operative during T's lifetime, then testamentary intent is lacking - if testamentary intent is ambiguous, extrinsic evidence is admissible - issue comes up a lot with holographic wills |
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oral wills
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- not allowed; the statute authorizing oral wills has been repealed in TX
- if you need a quick will and T can't sign, just do it by proxy => T tells you what to write and you need 2 attesting witnesses (b/c not holographic) |
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TX anti-lapse statute
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- When a will beneficiary predeceases the testator, the gift LAPSES, UNLESS the gift is saved by the TX anti-lapse statute.
** TX anti-lapse statute applies only when the predeceasing beneficiary was: (1) descendant of testator's parent (child, grandchild, bro, sis, nephew, niece); AND (2) left descendants that survive testator by 120 hours - if the § applies, the gift goes to the B's descendant(s) (even if the beneficiary named someone else in their will--this is T's choice, not the B's) - if the § does not apply (i.e., B is not a descendant of T's parents or B left no descendants), the gift falls into T's residuary estate - note: if will says, for ex, "to my son IF HE SURVIVES ME," and son predeceases T, anti-lapse § won't apply b/c gift failed according to T's terms |
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lapse in residuary estate: "surviving residuary beneficiaries" rule
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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.
Note: anti-lapse statute trumps "surviving residuary beneficiaries" rule Hypo: T's will: "residue to X, Y, & Z" (X is T's friend, Y & Z are T's siblings) - if X predeceases T, Y & Z will take 1/2 each - if Y predeceases T, and Y had a child C, then X, C, & Z would each take 1/3 b/c of anti-lapse § |
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class gifts
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- In a gift by will to a class of persons, if a member of the class predeceases the testator, the class members who survive the testator take.
- The class gift rule gives way to the anti-lapse statute when the predeceasing class member is within the scope of the anti-lapse statute. BUT, if class member was dead when the will was executed, the gift to the class member is VOID and cannot be saved by the anti-lapse §. - Rule of convenience: class closes when some class member is entitled to a distribution (i.e., when T dies, subject to gestation principle: presumption of 300 days from conception to birth) |
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gifts to individuals v. class gifts
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gifts to individuals (will names specific people, e.g., "equal shares to X, Y, & Z"): when an individual predeceases T, his gift lapses and falls into the residuary estate (unless saved by anti-lapse §)
- but with class gifts, the gift is simply reapportioned to the other members of the class (again, unless the gift is saved by anti-lapse §) |
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When do intestate succession rules apply?
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When (1) decedent left no will (or will that 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
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community property
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- salary and wages of either spouse
- the income from separate property |
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separate property
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- property owned by either spouse before marriage
- property acquired during marriage by gift, will, or inheritance |
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shares of descendants
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per capita: "by the head"
- one share for ea. descendant - ex: "to my descendants per capita;" T has two children A and B; A has 3 children, and B has 1 child => 1/6 share for each child and grandchild per stirpes: "by the roots" - one share for ea. family line - re: above ex: "to my descendants per stirpes;" A and B would ea. take 1/2, and their children would take by representation only if the parent were dead; so, if A predeceased T, his 3 children would take that 1/2 by representation (1/6 ea.); if B predeceased T, his child would take that 1/2 by representation |
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void gifts
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occurs when beneficiary is dead when will executed
- generally, same rules apply (anti-lapse §, surviving beneficiaries rule, etc.) - exception: if a class member was dead when the will was executed, the anti-lapse § does not apply in favor of the class member's descendants ex: T devises blackacre to "my brothers and sisters;" T originally had siblings A, B, & C, but A was dead when T signed the will. A's descendants do not take. |
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intestate w/ surviving spouse
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Key issue: Does D have any descendants?
If no descendants, - SS gets ALL CP & personal SP and 1/2 fee simple interest in all real SP - D's parents get the other 1/2 interest real SP If all D's children are children of the spouse, - SS takes ALL CP, 1/3 of personal SP, and a 1/3 life estate in all real SP - the children take 2/3 of personal SP, and remainder 2/3 of the real property outright + remainder following 1/3 life estate If D had children that were NOT children of the spouse, - SS takes 1/2 CP, 1/3 of personal SP, and a 1/3 life estate in all real SP - children share D's 1/2 CP, 2/3 of personal SP, and remainder 2/3 of the real property outright + remainder following 1/3 life estate |
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intestate no surviving spouse
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Key issue: Does D have any descendants?
If D has descendants, - they will take the whole estate per capita with respresentation If D had no descendants, - if both parents living, parents take 1/2 ea. - if one parent dead, D's siblings take that parent's 1/2 share - if no living parents, the estate passes to siblings & their descendants - if no siblings, to D's aunts/uncles and their descendants |
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intestate w/ SS: disposing of CP
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With children all from this marriage ("one-marriage situation"),
- SS takes ALL CP - children take nothing With children not all descendants of SS, - SS takes only her 1/2 CP by law - children (regardless of which marriage they're from) each get equal share of D's 1/2 of CP |
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intestate w/ SS: disposing of SP
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With descendants (doesn't matter if they're from different marriages),
- SS takes 1/3 of personal property and 1/3 life estate in separate real property - descendants take (equal shares of): 2/3 of personal property, and all real property (2/3 outright & 1/3 remainder, i.e., subject to SS's 1/3 life estate) Without descendants, but with surviving parents or descendants of parents, - SS takes ALL personal property, and 1/2 real property in fee simple - D's parents or descendants of D's parents take 1/2 real property in fee simple Without descendants, parents, or descendants of parents, - SS takes ALL (personal & real property) |
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if SS (whether Q is about wills or intestacy) => HEF [homestead, exempt personal property set-aside, family allowance]
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Homestead
- if residence is a homestead, SS is entitled to exclusive occupancy (rent-free) for so long as she occupies it - if D did not own a residence (i.e., D rented), SS can get a $15K allowance in lieu of a homestead - qualifying as a homestead: 10 urban acres/200 rural acres (urban must be contiguous, rural need not be) (or "single person homestead" [not a member of a 'family']: 10 urban acres/100 rural acres); must be used as a residence and/or business Exempt personal property set-aside - up to $60K of tangible personal property items might be set-aside and exempt in SS's favor; or - a $5K allowance in lieu of exempt personal property set-aside (items not on exempt property list) - this comes "off the top" before any intestate distribution Family allowance - if SS owns little or no SP, can petition for a family allowance in the amount needed for spouse support for a period of one year; this also comes "off the top" before any intestate distribution - purpose: to provide support for SS, minor children during period D's assets are in administration |
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intestate w/ no SS or descendants
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If survived by both parents, ea. parent takes 1/2.
If survived by only one parent & no collaterals (siblings), parent takes all [I assume]. If survived by only one parent & collaterals, - parent takes 1/2 - ea. sibling takes per capita (proportionate share of remaining 1/2) - if sibling is dead, but has kids (= D's nieces and nephews), they take share by representation of what sibling would have gotten - if sibling is alive, sibling's kids don't get anything ex: D dies intestate w/ no wife and no kids. D's dad is dead, but mom is alive. D has 2 living brothers (ea. w/ 2 kids), but D's older brother is dead (leaving two kids). - mom gets 1/2; ea. living bro gets 1/6 (a 1/3 share of dad's 1/2), but their kids get nothing; and b/c deceased bro would also get 1/6, his kids take per capita share (1/12 ea.) |
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half-bloods
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In inheritance by collateral kin, half-bloods inherit half as much as whole bloods.
Ex: If A dies intestate and her nearest kin are her full sister ("whole-blood") B and her half-sister C (only one common parent), B would inherit 2/3 and C would inherit 1/3 of A's estate. Tip: if forget how the numbers work, solve system of equations where H = half-blood and W = whole blood - H = 1/2W; H + W = 1 => W = 2/3; H = 1/3 |
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no limit on degree or relationship needed to take as heir
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TX does not have a "laughing heir" statute.
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 to maternal grandparents and their kin, 1/2 to paternal grandparents and their kin; etc, "and so on without end" until heirs are found on maternal and paternal sides. |
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child born out of wedlock - "child without a presumed father"
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If biological father dies intestate and child is not adopted by another man (i.e., he's got no dad), child CANNOT inherit from natural father UNLESS:
(1) presumption of paternity in Family Code; OR (2) man signed sworn statement acknowledging paternity; OR (3) paternity was established in a paternity suit; OR (4) paternity is established in probate proceedings by C&CE |
Family Code: A man is presumed to be the father of a child if:
(1) Child born during (or within 300 days after) marriage or attempted (but void or voidable) marriage, OR; (2) He married (or attempted to marry) the mother after the child's birth AND (1) acknowledged paternity in a record filed with the Bureau of Vital Statistics; (2) promised in a record to support the child; OR (3) was voluntarily named the father on the child's birth certificate; OR (3) During first two years of child's life he resided with child and represented to others that the child was his. Note: this is the only presumption that does not involve marriage |
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child born out of wedlock: adoption by estoppel
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Hypo: Mom gives birth to C out of wedlock. Mom then marries H (not the father). H dies intestate. C CANNOT inherit from H UNLESS there has been adoption by estoppel (an unperformed agreement to adopt).
- this permits inheritance from this foster parent, NOT his kin - note, C was a stepchild => no legal relationship; stepchildren have NO inheritance rights |
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inheritance rights of adopted children
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Adoption establishes P/C relationship for ALL purposes of TX law (child can inherit from adoptive parents & vice versa)
Adopted child can still inherit from biological mother or her kin UNLESS inheritance rights expressly terminated in decree terminating P/C relationship (i.e., Family Code trumps Probate Code) - but this is a one-way street; natural mother cannot inherit from child even if decree did not expressly terminate inheritance rights - person adopted as an ADULT can inherit from adopting parents, but NOT from biological parents |
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120 hour rule
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In order to take as an heir (or spouse), B must survive decedent by 120 hours (5 days). Otherwise, B is treated as if he predeceased the decedent.
120 hour rule applies to everything: - intestate succession - wills - spouses re: CP - life insurance policies - joint & survivor bank accounts - property held in joint tenancy w/ right of survivorship [to trigger rt of survivorship, one party needs to survive by 120 hours; but, if parties die w/n 120 hours of ea. other, treated as a tenancy in common: 1/2 passes as though the one joint tenant survived, and 1/2 passes as though the other joint tenant survived] |
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120 hour rule: intestacy example
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ex: Father and son are in a car accident. Father dies first; son dies two days later. Father died intestate and was survived by daughter, but not wife. Son was survived by wife and two kids. Son left a will leaving all his property to his wife. What distribution of father's estate?
- b/c son died w/n 120 hours of father, he will be treated as predeceasing the father. father is treated as dying intestate w/ no SS and descendants (b/c daughter survived father); as such, father's descendants take per capita by representation => daughter gets 1/2, and son's kids share son's 1/2 (get 1/4 ea.); note, that son's wife gets nothing ** recall, the anti-lapse § does not apply to intestate succession |
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120 hour rule: wills example
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Father and son are in a car accident. Father dies first; son dies two days later. Father was survived by daughter. Father's will devised his estate 1/2 to son and 1/2 to daughter. Son was survived by wife and two kids. Son left a will leaving all his property to his wife. What distribution of father's estate?
- of course, daughter takes 1/2 as per the will. but, read will as though son predeceased father b/c son failed to survive father by 120 hours. as such, the 1/2 devised to son lapses, but it is saved by the anti-lapse § in favor of the son's children b/c (1) they are descendants of the testator's (father's) parents, and (2) they survived the father by 120 hours. accordingly, son's children share son's 1/2 and receive 1/4 ea. |
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120 hour rule: when will "provides otherwise" example
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Father and son are in a car accident. Father dies first, son dies two days later. Father is survived by daughter. Father's will devised his estate "1/2 to my son if he survives me, and 1/2 to my daughter if she survives me." What distribution of father's estate?
- here, b/c the will provides otherwise, neither the 120 hour rule nor the anti-lapse § apply. as such, because son survived father by two days, 1/2 to son and 1/2 to daughter. |
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120 hour rule: CP example
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H & W are in an accident. H is pronounced dead at the scene; W dies two days later. H & W owned CP worth $200K. H's nearest kin is his brother. W has a child by her first marriage. Both H & W died intestate.
- b/c H & W died w/n 120 hours of ea. other, 1/2 of the CP passes through H's estate (to H's brother) as though H survived W; and 1/2 passes through W's estate (to W's child) as though W survived H. - note, same result if H & W left wills. 1/2 of CP would pass under H's will as though he survived W; 1/2 would pass under W's will as though she survived H. |
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disclaimer
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To make an effective disclaimer (partially or wholly), the disclaimer must be: (1) written, signed, and acknowledged (notarized); (2) filed w/n 9 mos after decedent's death; AND (3) filed with probate court, with copy to personal representative.
- effect of disclaimer: decedent's estate is distributed as though disclaimant predeceased the decedent - reasons to disclaim: (1) avoid gift taxes; OR (2) avoid CR's claims (except federal tax liens) |
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who can disclaim?
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- will beneficiaries and intestate heirs can disclaim
- executor or guardian can disclaim on behalf of deceased or incapacitated beneficiary or heir - a legally appointed personal representative can disclaim on behalf of the child (a parent, as parent, cannot disclaim on behalf of child) - beneficiary of a life insurance policy or employee death benefit - beneficiary of irrevocable inter vivos trust can disclaim w/n 9 mos after trust is created (read trust as though disclaimant was dead when trust was established) - beneficiary of a revocable trust can disclaim w/n 9 mos after trust becomes irrevocable (i.e., settlor's death) |
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advancement
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trigger: lifetime gift to heir by decedent who died intestate
In TX, a lifetime gift to a descendant (or any other heir) is NOT treated as an advancement (i.e., ignore the lifetime gift) UNLESS: (1) declared as such in a CONTEMPORANEOUS writing by the DONOR; OR (2) acknowledged as such in writing by the DONEE. ** If the gift is treated as an advancement: (1) add the advancement back into the estate, (2) hypothetically divide the "full" estate properly, then (3) subtract the advancement from the donee's hypothetical "full" share |
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satisfaction
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trigger: lifetime gift to will beneficiary by testator
A lifetime gift to a will beneficiary is NOT treated in 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. |
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unauthorized commercial use of decedent's name or likeness
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- decedent has a property rt here, so a party making unauthorized use of his name, voice, or likeness can be held liable for damages, profits attained, exemplary damages and attorneys fees
Recovery: *(1) 1/2 to SS and 1/2 to descendants; (2) all to SS if no descendants; (3) all to descendants if no SS; OR (4) all to parents if no SS or descendants. - if none of the above, the property rt expires 1 year after the individual's death |
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testator marries after will is executed
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TX does NOT have a "pretermitted spouse" statute. As such, marriage following execution of a will has NO effect on the will.
POLICY: CP laws give adequate protection to spouse Claims that SS can assert (HEF): - probate homestead (10 acres if urban, 200 acres if rural): rt to occupy homestead rent-free - $15,000 cash allowance in lieu of homestead (if T didn't own a residence) - family allowance: amt needed for support for period of 1 yr - exempt personal property set-aside: up to $60,000 of tangible personal property items - $5000 allowance in lieu of exempt personal property set-aside (items not on exempt property list) |
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testator divorced after will is executed
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Divorce or annulment of a marriage revokes all gifts and fiduciary appointments in favor of former spouse AND relatives of the former spouse [who are not relatives of the testator].
- read will and distribute the estate as though former spouse [and relatives of former spouse] predeceased the testator - the statute applies to revoke the gifts and fiduciary appointments ONLY if the couple is divorced AT TESTATOR'S DEATH. so, if couple reconcile and remarry after divorce, SS may take under T's will. |
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*** pretermitted child: born or adopted AFTER will is executed
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(1) if no other children when will executed:
- child takes* intestate share of all property not bequeathed to other parent of the child (2) if there are other children when will executed, and such other children are NOT provided for: - child takes* intestate share of all property not bequeathed to other parent of the child (3) if there are other children when will executed, and such other children ARE provided for: - child's share* is limited to the gifts to such other children; nobody else's gift is reduced * UNLESS child is provided for by nonprobate transfer (e.g., life insurance, joint bank account) taking effect at testator's death - note, gestation principle applies so child still considered pretermitted if born w/n 300 days of T's death |
pretermitted child statute DOES NOT apply if child is provided for or mentioned in the will (or codicil)
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republication by codicil
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Under the doctrine of republication by codicil, a will speaks (is deemed to have been executed) on the date of the last codicil to the will.
- thus, if a child is born b/w the time the will is executed and the time of the last codicil, the child is treated as being born before the will is executed and has no rights as a pretermitted child |
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revocation of wills
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A will can be revoked (1) by a 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 vice versa) |
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presumptions as to revocation
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(1) Where will last seen in T's possession or control is not found after death, presumption: T destroyed will by physical act with intent to revoke.
(2) Where will last seen in testator's possession or control is found in torn or mutilated condition, presumption: T revoked the will by physical act. - These presumptions do NOT arise if will last seen 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. |
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proof of lost wills
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To probate a lost will,
(1) due execution must be proved; ** (2) cause of will's non-production must be proved (must overcome presumption of revocation raised by will's non-production); AND (3) contents must be substantially proved by one who has read will, heard it read, or can indentify copy of will |
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changes made on face of executed will
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Words added to will after execution are disregarded as not part of the duly executed will.
- only words present when will signed and attested constitute "last will" Partial revocation by physical act (i.e., crossing out with pen) is NOT valid in TX; can revoke will ONLY in entirety - exception: these are allowed for a holographic codicil/will if it's properly proven (2 persons testifying that wholly in T's handwriting) (or, of course, if the written will w/ changes was duly executed, e.g., signed by T and 2 Ws) |
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how to change a will
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must execute a new will or codicil UNLESS holographic will
- there's no requirement that a codicil be a separate writing; the amendment can be made, e.g., at the bottom of the page - but, to be a valid codicil, it make sense on its own (plastic overlay test); e.g., replacing a $ amt & signing is ineffective b/c w/o typewritten words, this is an incomplete thought |
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revival
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TX applies the C/L doctrine of NO REVIVAL of revoked wills.
Once a will is revoked, it is "legally dead" and cannot be revived UNLESS: (1) re-executed w/ attesting Ws; (2) republished by duly executed codicil ["This is a codicil to my previous will . . ."]; OR (3) dependent relative revocation: permits the ct to disregard the revocation that was based on T's mistake of law or fact if it finds that the act of revocation was premised, conditioned and dependent on the validity of another disposition (i.e., mistaken belief that by revoking will #2, will #1 would be revived) |
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Hypo: In 2002, T executes "my last will." In 2006, T executes "my last will." The 2006 will does not contain language of revocation of any earlier will.
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Read the two instruments together. The 2d "last will" is treated as a codicil to the 1st will only to the extent of inconsistent provisions.
BUT, if the 2d will is wholly inconsistent with the 1st, the 1st will is revoked by implication. |
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revocation of codicil
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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.
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types of testamentary gifts
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(1) specific devise or bequest
(2) general legacy (3) demonstrative legacy (4) residuary gift (5) intestate property |
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specific devise or bequest
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a disposition of a specific item of the testator’s property
- ex: "I devise Blackacre to my son John." |
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general legacy
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a devise is general when the testator intends to confer a general benefit and not give a particular asset
- ex: "I bequeath $100K to A." |
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demonstrative legacy
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a hybrid devise: a general devise payable from a specific source
- ex: "I bequeath $25K, to be paid out of the proceeds of the sale of my Exxon stock, to Sally." |
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residuary gift
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a devise that conveys that portion of the testator’s estate not otherwise effectively devised by other parts of the will
- ex: a devise to A of “all the rest, residue, and remainder of my property and estate" |
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intestate property
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e.g., partial intestacy b/c the will, poorly drafted, does not contain a residuary clause
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abatement
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Abatement involves determining the order that decedent's assets are used to pay taxes, debts, claims, and expenses. This occurs when there are so many claims against the estate that there aren't enough assets to cover all the gifts made by the will.
In the absence of a provision in the will, devises and legacies abate in the following order. Within ea. category, bequests and devises abate pro rata. (1) intestate property (if T died partially intestate) (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) specific devises of real property |
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pro rata apportionment of estate taxes
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Absent contrary provision, estate taxes are equally 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 gifts do not generate any tax. |
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ademption
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trigger: specifically devised property not in estate (e.g., sold) at death
Testator cannot devise property not owned at death. If the subject of a specific bequest isn't in the estate at death, the gift is "adeemed"--it fails completely. - ademption only applies to SPECIFIC gifts (not to demonstrative or general legacies, and not to a gift of the proceeds from the sale of specific property) |
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identity doctrine
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ademption is applied as an objective test; T's probable intent is irrelevant
Hypo: T's will devises 1999 Ford to B. T dies in an accident in which Ford is totaled. After T's death, ins. co. pays T's executor $12K on T's auto ins. policy. Because TX applies the identity doctrine, the identity of the gift controls, and B takes nothing (even though T probably would have intended for B to get the $) |
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bequests of stock & other securities
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- If language is specific (i.e., "my 100 shares") then ademption applies if the stock isn't in the estate in that form (it's a specific bequest).
- If the language is general ("100 shares") (no "my" possessive pronoun specifying which shares), treat as a general legacy; B can get the 100 shares (if in the estate) or, if T already sold them, B gets the date-of-death value of 100 shares. |
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specific bequest of stock
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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.
A specific bequest of stock includes securities of another entity owned by the testator as the result of a merger, takeover, consolidation, etc., but does NOT include securities acquired through exercise of a stock option. |
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specific gift of encumbered property
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- for wills executed BEFORE Sept. 1, 2005, liens on specifically devised property ARE EXONERATED from the residuary estate (i.e., executor pays off the lien from the residuary estate, and B does not have to take subject to it)
- for wills executed AFTER Sept. 1, 2005, B takes subject to the lien (absent contrary will provision) (executor doesn't pay the lien off out of the residuary estate) (the exoneration of liens doctrine was abolished by §) - watch out for republication by codicil--codicil is the effective date |
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incorporation by reference
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An extrinsic document, not present when the will was executed and thus not part of the duly executed will, can be incorporated by reference into the will if:
(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 will, "such that there can be no mistake as to the identity of the document referred to." - note, can't incorporate by reference a typewritten memo into a holographic will b/c not wholly in testator's handwriting |
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acts of independent significance ("nontestamentary acts")
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These are T's lifetime acts with a lifetime motive or purpose that are given full effect. Although acts not done with testamentary formalities, they nevertheless affect the will by making a testamentary disposition.
Ex: "my car": T trades in his Pinto for a Benz; B gets Benz Ex: "furniture and furnishings in living room"; T then puts an expensive painting in the living room; B gets the painting |
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bequest of contents
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by §, a bequest of a chest or house does NOT include the contents
a bequest of "[something] and its contents," includes tangible property and cash only, NOT title documents (deeds, stock certificates, bank passbooks, etc.) |
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mistakes in the will: plain meaning rule
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When there are no ambiguities, extrinsic evidence is inadmissible to overturn the plain meaning of the will's terms.
e.g., "200 shares," but it's a typo b/c T intended 300. B gets 200 shares. => absent suspicious circumstances, it is conclusively presumed that T read the will and intended all of its contents |
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latent ambiguity
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Occurs when mistake does not appear on the face of the will, but arises because there is a misdescription (two or more persons or things fit the description or no person or thing fits the description exactly).
e.g., "to my nephew John Paul Jones," but T has nephews "James Peter Jones" & "Harold Paul Jones" Extrinsic evidence is admissible to cure a latent ambiguity. If extrinsic evidence does not cure the ambiguity, the gift fails for lack of ascertainable beneficiaries. |
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patent ambiguity
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Occurs when a mistake appears on the face of the will.
e.g., "Twenty-five dollars ($25,000)" Extrinsic evidence of all types is allowed to cure the ambiguity. |
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contracts relating to wills
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A K to make a will or not to revoke a will can be established only by (1) provisions in the will stating that a K does exist and stating the material provisions of the K, OR (2) a binding and enforceable written agreement.
The execution of a joint will or reciprocal wills does not of itself suffice as evidence of the existence of a K. If contractual will is established, but there's a new will contrary to it: (1) the new will that purported to revoke the agreed-upon disposition under the contractual will is admitted to probate, and then (2) a constructive trust is imposed in favor of the beneficiaries of the contractual will. Contractual will can be revoked by giving notice to the other party to the K. |
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nonprobate assets
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Nonprobate assets are interests that pass at death other than by will or intestacy; not part of the probate estate for administration purposes.
Major types: (1) property passing by right of survivorship (e.g., joint bank acct) (2) property passing by K (e.g., life insurance, employee death benefits) (3) property held in trust, incl. a revocable trust; trust terms govern distribution (4) property over which the decedent held a power of appointment note, T cannot change a life ins. beneficiary by will; K law governs change of beneficiary, so the probate court must award the life ins. proceeds to the beneficiary listed in the policy (unless § changes the result, as in divorce) |
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negative bequest: disinheritance clause
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Words of disinheritance in a will are given full effect in TX.
- even if a partial intestacy results The residuary estate is distributed as if disinherited person predeceased T. - remember, only THAT PERSON is disinherited, not that person's children |
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power of appointment
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An authority created in or reserved by a person enabling that person to designate, w/n the limits prescribed by the creator of the power, the persons who shall take property and the manner in which they shall take it.
Purpose: permits a life beneficiary to designate the remaindermen ex: will bequeaths property in trust: "income to A for life, and on her death to distribute the trust principal to such persons, incl. A's estate, as she appoints by her last will. if A doesn't exercise this power of appointment, on A's death, the trustee shall distribute the principal to A's descendants." - A is the donee of a GENERAL testamentary power of appointment b/c she can appoint anyone as a beneficiary; A's descendants are takers in default of appointment |
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power of appointment lingo
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donor: creates power of appointment
donee: person given the power of appointment takers in default: persons who take property if the power of appointment is not exercised general power of appointment: donee is not limited in the class of beneficiaries to whom she can appoint; can appoint the property to anyone, including herself, or her CRs, or her estate special power of appointment: donee limited in the class of persons to whom she can appoint; if it doesn't say donee can appoint to herself, her CRs, or her estate, then she can't |
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exercising power of appointment
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Will must expressly exercise the power of appointment (residuary clause itself does not create a power of appointment).
BUT, exercise by implication: if the trust assets subject to the testamentary power of appointment included a specific asset, and donee's will said, "I devise [specific asset] to B," this would exercise the power as to the specific asset by implication, as that is the only way that the provision in the donee's will could be given effect. A "blanket" exercise of power is not allowed. - e.g, "all my property, incl. any property over which I may have a power of appointment" - to exercise a power of appointment, there must be a specific reference to the power. |
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testamentary capacity test
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Did T have sufficient capacity to:
(1) Understand the nature of the act he was doing? (he was writing a will) (2) Know the nature and approximate value of his property? (3) Know the natural objects of his bounty? (e.g., aware married with kids?) (4) Understand the disposition he was making? ** evidence of T's capacity or lack thereof must relate to the circumstances AT THE TIME THE WILL WAS EXECUTED, or shortly before or thereafter - the adjudication of incapacity is admissible as evidence of lack of testamentary capacity, but it will NOT support a directed verdict |
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burden of proof on testamentary capacity
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If will contested at time offered for probate, burden of proof is on will PROPONENTS to show T had capacity.
AFTER the will is admitted to probate, CONTESTANTS have burden of proof on capacity, and have two years in which to file a will contest. |
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will contests: standing
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Only interested parties can bring a will contest: persons with an economic interest that would be adversely affected by the will's probate.
- e.g., heirs, legatees under earlier will whose interest would be defeated if this will is probated; NOT a close personal friend not named as legatee in an earlier will |
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will contests: SOL
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A challenger generally has 2 years from the time the will admitted to probate to file a will contest.
For contest based on fraud or forgery, contestants have 2 years after its discovery. A person under disability [incl. minor] can file contest w/n 2 years after disability removed. But, if challenger is offering a new will for probate, it's NOT a contest or collateral attack, and as such, the 2 yr SOL does not apply. |
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undue influence: definition and factors (3)
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Undue influence: existence of testamentary capacity subjected to and controlled by a dominant influence or power. Contestant, who has burden of proof, must prove:
(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. |
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undue influence: "mental duress"
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"Influence is not undue unless the free agency of the testator was destroyed and a will produced that expresses the will, not of the testator, but of the one exerting the influence."
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While evidence of undue influence is usually circumstantial, these alone and by themselves are not enough:
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(1) mere opportunity to exert influence
(2) mere susceptibility to influence due to illness, age (3) mere fact of unnatural disposition => surmise/suspicion/conjecture are insufficient to prove undue influence |
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APPROACH: testamentary capacity v. undue influence
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If you can't decide whether T lacked testamentary capacity or was subject to undue influence, there is NO CLEAR ANSWER. These would be fact questions for the jury to decide.
APPROACH: (1) List 4-pt test for testamentary capacity; then discuss facts in context of the legal test. (2) List 3-pt test for undue influence; then discuss the facts in the context of the legal test. - also discuss opportunity, susceptibility, and the effect of an unnatural disposition |
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inference of undue influence
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Where a will is procured by one in a confidential relationship, there is an inference of undue influence, which is strengthened when there are suspicious circumstances.
If an inference is raised, while this doesn't affect the burden of proof (contestant still has burden of proof), will proponent has the burden of going forward with evidence that no undue influence was exerted. If the will proponent does not produce sufficient rebuttal evidence, the inference satisfies the contestant's burden of proof. |
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fraud in the inducement
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Occurs when a person misrepresents facts, thereby causing T to execute a will, to include particular provisions in the wrongdoer’s favor, or to refrain from executing or revoking a will.
e.g., T wrote a new will after son falsely told her that other son had died in an accident - undue influence issue raised as well |
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drafter (lawyer) receiving gift in will
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If a lawyer drafts a will that makes a gift to the lawyer (or to his parent or a descendant of parent, or to his employee, or to any of these people's spouses), the gift is VOID unless beneficiary was related to testator w/n the 3d degree of consanguinity (birth or adoption) or affinity (marriage).
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relatives w/n 3d degree of consanguinity: children, grandchildren, great-grandchildren; parents, siblings, nephews/nieces; grandparents, uncles/aunts, and great grandparents
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action to annul marriage on lack of capacity
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An action to annul marriage on the ground that a deceased spouse lacked capacity to consent to the marriage can be filed if the marriage took place w/n 3 years of the spouse's death and the action is filed w/n 1 year after his death.
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no-contest ("in terrorem") clauses
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ex: "should any B contest this will, he shall take no part of my estate"
No-contest clauses are given full effect UNLESS trial court finds that the contest was brought in good faith and with probable cause. No-contest clauses are strictly construed. They do not apply to a will construction suit or action brought against executor alleging improper administration of estate. - reason: does not challenge the validity of the will No-contest clause not triggered by contest of guardian of incapacitated beneficiary (gift should not be forfeited by action of someone other than beneficiary) or by mere filing of a will contest if party takes voluntary dismissal. |
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