Wills And Estates

Front 1

What makes a will valid?

Back 1

Must be executed by a person over 18 (army, married) with testamentary intent. 2 witnesses must sign the will in T’s presence. T must sign the will before the witnesses or in the same transaction.

Front 2

Oral Wills –

Back 2

Before 9/1/2007, only personal property up to $30 unless there are three witnesses. After, oral wills invalid.

Front 3

To whom does the anti-lapse statute apply? What does it do?

Back 3

The anti-lapse statute applies to beneficiaries who predecease the testator and are descendants of the testator’s parents. The statute prevents bequests to beneficiaries from lapsing by allowing the descendants of the beneficiary to take the beneficiaries’ share.

Front 4

Intestate leaving spouse:

Back 4

The distribution depends on whether or not the deceased has any descendants.

If the deceased leaves no descendants, spouse gets all community and separate personal property, and ½ fee simple interest in all separate real property. The decedent’s parents get the other ½ interest.

If the deceased leaves his spouse and all his children are children of the spouse, then the spouse takes all of the community property, 1/3 of the separate personal property, and a 1/3 life estate in all separate real property. The children take 2/3 of separate property and the remainder of the real property. If deceased had children that were not children of the spouse, then the spouse will only take ½ of community property, and the children will have the same interest as above.

Front 5

Intestate no spouse:

Back 5

If the deceased has descendants, they will take the whole estate per capita with representation. If the deceased does not have descendants, the parents will take ½ each. If one parent is dead, the siblings take that parent’s ½ share. If no parents, the estate passes to siblings and their descendants. If no siblings to deceased’s aunts/uncles and their descendants.

Front 6

How does someone disclaim an inheritance or bequest?

Back 6

A disclaimer must be in writing, signed, notarized, and filed with the probate court and personal representative within 9 months after decedent’s death. The effect is to treat disclaimer as having predeceased the decedent.

Front 7

What claims does a wife have above and beyond intestacy or a will?

Back 7

In Texas a wife can claim a probate homestead (right to occupy homestead rent-free for life) or if no homestead $15,000. The wife can also claim a family allowance of one year’s support for the family, and an exempt personal property set aside of up to $60,000 or $5000 in cash. All this is taken from the community estate.

Front 8

What is the effect of divorce on a decedent’s estate?

Back 8

Divorce revokes all gifts and fiduciary appointment if former spouse’s favor.

Front 9

What is a pretermitted child entitled to from a deceased’s estate?

Back 9

A pretermitted child is a child born after the execution of a will who is not provided for by the will or some other nonprobate transfer. If there are other children that have received something under the will, the child takes a pro-rata interest in that bequest. If there are no other children, or the other children are not provided for, child takes his intestate share. Remember that republication of a will by codicil can have an effect on pretermitted child’s status

Front 10

How is a will revoked?

Back 10

A will can be revoked with a subsequent testamentary instrument executed with like formalities or by physical act. Texas does not recognize partial revocation by physical act. Where a will was last seen in testator’s possession and cannot be found there is a presumption that it was destroyed with the intent to revoke. But, the accidental destruction of a will does not revoke it, even if the testator later decides to revoke it, the intent must be present at the time of the act.

Front 11

How can a lost will be proved?

Back 11

A lost will can be proved by proving it was dully executed, proof of the all or substantially all of its contents, and proof of the cause of the will’s non production sufficient to rebut the presumption that it has been revoked.

Front 12

Can a prior will be revived if a new one is not effective?

Back 12

Texas does not allow for a revival of prior wills once they have been revoked. There is one exception called dependant relative revocation. In that case, the court can revive an old will if they find that testator revoked based on a mistake of law or fact about the validity of another disposition and the revocation was conditioned on the validity of the subsequent disposition.

Front 13

What happens if there is not enough to fill all bequests?

Back 13

If all the assets the testator owns at death are insufficient to pay all debts and the expenses of the administration and also satisfy all the specific and general legacies in the will, the following order of abatement is applicable: (absent a contrary provision) 1) intestate property; 2) residuary legacies; 3) general legacies; and 4) specific legacies. Within each category, personal property abates before real property. Demonstrative legacies are treated as specific legacies to the extent they can be satisfied by the designated source and general legacies for the remainder.

Front 14

How can a document be incorporated into the will by reference?

Back 14

The document must be in existence when the will is executed, the will must show the intent to incorporate, and the will must clearly identify the document.

Front 15

How are contractual wills created and what is the effect?

Back 15

A contractual will is not enforceable unless there is clear indication of the contract in the will, or an enforceable written agreement. The execution of a joint or reciprocal will does not, by itself, suffice as evidence of a contract. The contract can be revoked at any time before the death of one of the testators with notice to the other party.

Front 16

What options are available for challenging the validity of a will?

Back 16

A will can be challenged for seven reasons: 1) Defective execution; 2) Valid revocation; 3) Lack of testamentary capacity; 4) Undue influence; 5) Fraud; 6) Mistake; 7) Testator unaware of the will’s contents.

Front 17

What proves lack of testamentary capacity?

Back 17

At the time of executing the will the testator must have had sufficient capacity to 1) understand the nature of the act he was doing; 2) know the nature and approximate value of his property; 3) know the natural objects of his bounty; and 4) understand the disposition he is making. Capacity to make a will may exist where capacity to make a contract does not.

Front 18

What proves undue influence?

Back 18

To establish undue influence, the contestant must prove: the existence and exertion of an influence that overpowers the mind and will of the testator and results in a will that would not have been executed but for the influence. Pleading, begging, cajoling, or even threatening is not enough, the mind of the testator must be overpowered.

Front 19

When is a no-contest clause valid?

Back 19

A no-contest clause is enforceable unless the contest was brought in good faith and with probable clause. A no-contest clause is strictly construed and is not triggered by a suit to construe a will or by a contest filed by a guardian.

Front 20

When can an independent administration be accomplished?

Back 20

An independent administrator can be appointed when the will provides for one or all distributees agree on an independent administration .

Front 21

When is a dependent administration required?

Back 21

A dependent administration occurs when the will does not provide for an independent administration and the distributees cannot agree on an independent administration or the court finds a dependent administration to be in the best interest of the estate.

Front 22

What are the powers of an independent executor?

Back 22

The executor has the power to do any act, without court order, that a dependant administration could be authorized to do by a court order. The general rule is that an administrator can do any act relating to the settlement of the estate or preservation of estate assets. If the will creates a power of sale, real property can be sold irrespective of estate debts. If the will doesn’t specifically give power of sale, real property can only be sold to satisfy estate debts.

Front 23

How does a personal representative close the administration?

Back 23

File a closing report with the county court records containing a verified affidavit that shows: property initially received, debts paid and expenses, and names and addresses of distributees. May also file for a declaratory judgment seeking a discharge from liability on things that have been fully disclosed.

Front 24

What actions must a personal representative take upon appointment? (4 things)

Back 24

Within 20 days he must post bond, unless the will waives bond. He must publish a notice of administration in the local newspaper within 1 month. He must file an inventory of the estate with the court within 90 days. He must give notice to charitable beneficiaries within 30 days.

Front 25

For what reasons can an independent administrator be removed for cause? (6)

Back 25

1) Failure to file inventory within 90 days; 2) Failure to give notice to charity within 30 days; 3) Misapplied or embezzled estate property or is about to; 4) Fails to make required accounting; 5) Is guilty of gross misconduct or mismanagement; or 6) Becomes incompetent or sentenced to penitentiary.

Front 26

What court has jurisdiction over probate?

Back 26

In counties with statutory probate courts or statutory county courts at law, such courts have exclusive original jurisdiction. In counties without either, the county courts and district courts have concurrent jurisdiction. The county court handles uncontested matters and the district court handles the contested matters.

Front 27

What method is available to clear title when no administration is necessary?

Back 27

Depending on whether there is a will or not, a person can file a muniment of title (will) or for a statutory heirship proceeding. To apply for a muniment of title the estate can have no debts.

Front 28

How long does a will have to be admitted to probate?

Back 28

A will must be probated within 4 years of date of death. But if the person offering the will is not at fault, notice must be given to heirs, and the will can be probated as a muniment of title.

Front 29

What does the administrator have to do to notify creditors of the estate?

Back 29

The administrator must give notice within two months to secured creditors. The secured creditors then have 4 mos. or 6 mos. from death to present their matured, secured claims. If they fail to do so, they will only be protected up to the value of the collateral. No notice other than the notice by publication is necessary for unsecured creditors, but an administrator can give personal notice to each that will trigger a 4 month statute of limitation on the debt.

Front 30

How is a dependent administration different with respect to creditors?

Back 30

First, the claim must be authenticated. Next, the personal representative must allow or reject the claim within 30 days. Finally, the claimant must file suit on a rejected claim within 90 days or the claim will be barred.

Front 31

What is the priority of claims in an insolvent estate?

Back 31

The order of payment is 1) funeral expenses and expenses of last illness up to 15,000; 2) the family allowance; 3) administration expenses; 4) secured claims; 5) Child support reduced to judgment; 6) state taxes; 7) cost of decedent’s confinement in prison; 8) reimbursement to Medicaid; 9) all other costs.

Front 32

What claims can a spouse make on the estate above the will or intestacy?

Back 32

A spouse can claim a probate homestead (right to occupy homestead rent-free for life) or if there is no homestead a $15,000 allowance. The spouse can also claim exempt personal property up to $60,000 or if there is no property $5,000. The surviving spouse is entitled to a family allowance sufficient for spouse and children’s maintenance for one year upon a showing that they have inadequate separate property for their support.