Wills & Estate Administration (Texas Bar)

Front 1

What is required for a properly attested will?

Back 1

1. Signed by testator
2. Two attesting witnesses
3. Each witness signs in testator's presence

Front 2

What is NOT required for a properly attested will?

Back 2

1. Witnesses know they are attesting to a will
2. That testator sign in witnesses presence
3. That witnesses sign in each other's presence
4. That testator sign at the the end of the will

Front 3

What is an attestation clause?

Back 3

A clause between testator's signature and witnesses' signatures that recites the elements required for due execution. It establishes prima facie evidence of due execution.

Front 4

What is a self-proving affidavit?

Back 4

A substitute for witnesses testimony of due execution.

Front 5

What is the effect of an interested witness?

Back 5

The will is still valid, but the bequest to the witness is void unless:
1. Will can proved w/o that witnesses testimony, or that witness's testimony can be independently corroborated, or that witness would be an heir (in which case the witness takes the smaller share he is entitled to).

Front 6

How is the validity of a holographic will determined?

Back 6

1. Intended as will (to take effect @ death)?
2. Signed by testator?
3. Wholly in T's handwriting (excluding surplusage)?
If yes to ALL, then valid.

Front 7

What happens to a gift if the beneficiary predeceases the testator?

Back 7

The gift lapses int the residuary unless saved by the anti-lapse statute.

Front 8

When does the anti-lapse statute apply?

Back 8

Only to descendants of T's parents who have predeceased T and left descendant who survived T by at least 120 hours.

Front 9

What if a residuary gift lapses?

Back 9

Then gift will be apportioned among other residuary beneficiaries by their interest, unless saved by anti-lapse.

Front 10

What if a class-member beneficiary predeceases?

Back 10

The gift does not lapse into the residuary, the surviving class members take the share, unless the gift is saved by anti-lapse.

Front 11

When does a class close?

Back 11

At the time any member of the class is entitled to a distribution.

Hint 11

Note that any class member in gestation at the time of closing is included in the class.

Front 12

What is the difference between per capita and per stirpes?

Back 12

1. Per capita: one share per person (gift to 3 grandkids of 2 kids = 3 equal shares)
2. Per stirpes: one share per family line (gift to 3 grandkids of 2 kids = 2 shares unequally divided)

Front 13

What happens if a beneficiary was deceased at the time the will was executed?

Back 13

This is a void gift. Anti-lapse and surviving beneficiary rules will apply to save the gift, except as to member of a class. Void gift to class member will not be saved by anti-lapse.

Front 14

What is the intestate distribution of community property if all T's descendants are also descendants of the surviving spouse?

Back 14

The spouse takes all.

Front 15

What is the intestate distribution of community property if some of T's descendants are not descendants of the surviving spouse?

Back 15

The spouse takes 1/2 (the CP interest) the other descendants share in remaining 1/2.

Front 16

What is the intestate distribution of separate property if T had descendants?

Back 16

1. Personal: Surviving spouse takes 1/3, descendants take remaining 2/3.
2. Real: Surviving spouse takes 1/3 life estate, descendants take 2/3 life estate and remainder.

Front 17

What is the intestate distribution of separate property if T did not have descendants?

Back 17

1. Personal: Surviving spouse takes all
2. Real: Surviving spouse takes 1/2 in fee simple, collateral kin w/in 3rd degree takes other 1/2. More remote kin will not take over the spouse.

Front 18

What is the system of intestate distribution?

Back 18

Per capita with representation: Shares determined at nearest degree with living heir. Heirs of subsequent degrees take per stirpes.

Front 19

What is the intestate distribution if T not survived by spouse or descendants?

Back 19

1. I both parents survived: 1/2 to each parent.
2. If one parent survives: 1/2 to parent, remainder to collateral kin per capita with representation.

Front 20

What are the rights of half-blood collateral kin?

Back 20

1/2 as much as share of whole-blood kin of same degree.

Front 21

Can a child born out of wedlock inherit from his father?

Back 21

No, unless:
1. Born w/in 300 days after marriage ended OR
2. Parents married after birth AND father asserted paternity
-in record filed with VS
-by consenting to be so designated on birth certificate
-OR during first 2yrs of kid's life he was adjudicated to be parent.

Front 22

What are the inheritance rights of adopted heir?

Back 22

1. If adopted as child, can inherit from natural mother (and her kin) and from/to adopted parents.
2. If adopted as adult, only from/to adopted parents.

Front 23

How may a party disclaim a gift / inheritance?

Back 23

1. Signed writing acknowledged by notary.
2. Filed w/in 9 mos of T's death
3. W/ copy to T's representative

Front 24

When will an inter vivos git to an heir / beneficiary?

Back 24

1. Contemporaneous writing signed by donor says so
2. Writing signed by the donee says so
3. The will so provides

Front 25

What claims on T's estate can be made by a spouse even if left out of T's will?

Back 25

HEF:
1. Homestead: 10 urban / 200 rural life estate (or $15,000 if no home)
2. Exempt personal property: $60,000 (or $5,000 of non-exempt property)
3. Family allowance: Enough for one year of support

Front 26

What is the effect of a gift to spouse in a will made prior to divorce from that spouse?

Back 26

The spouse and descendants are cut out of gifts and fiduciary role in the will.

Front 27

What are the rights of a child born or adopted after will executed if not treated in any probate or non-probate transfer?

Back 27

1. If no other kids: intestate share of property not bequeathed to other parent.
2. If other kids but also not provided for: intestate share of property not bequeathed to other parent.
3. If other kids but they are provided for: share of gifts given to other children

Front 28

How can a will be revoked?

Back 28

1. Subsequent testamentary instrument executed w/ like formalities
2. Physical act upon the instrument

Front 29

Can a lost will be probated?

Back 29

Yes if:
1. Due execution is proved
2. Cause of will's non-production proved sufficiently to overcome presumption of revocation
3. Contents can be proved by one who is familiar with its contents

Front 30

Can individual clause be stricken from will by T's physical act?

Back 30

No, revocation by physical act is all or nothing.

Front 31

Can a will, which was revoked, be revived by revocation of subsequent wills?

Back 31

No, once a will is legally "dead" it cannot be revived except in the case of Dependent Relative Revocation.

Front 32

What is Dependent Relative Revocation?

Back 32

Where T revokes a will based on mistake as to the validity of another disposition, equity shall allow the court to disregard that revocation.

Front 33

What is the effect of two valid wills which are inconsistent, but neither is revoked?

Back 33

The wills are read together to the extent that they are not inconsistent.

Front 34

What is the language of a specific bequest?

Back 34

"I give my 100 shares of Pets.com stock to Bob"

Front 35

What is the language of a demonstrative legacy?

Back 35

"I bequeath $50 to Bob, paid out of Pets.com proceeds."

Front 36

What is the language of a general legacy?

Back 36

"I bequeath $50 to Bob"

Front 37

What is the language of a residuary gift?

Back 37

"I give all the rest/residue/remainder to the Gideons"

Front 38

How does partial intestacy occur?

Back 38

Some property does not fall into the residuary estate because of poor drafting or failure of residuary gift.

Front 39

What is the order of abatement of legacies to pay debts?

Back 39

1. Intestate property
2. Residuary personal property
3. Residuary real estate
4. General legacy of personal property
5. General legacy of real property
6. Specific bequest of personal property
7. Specific devise of real property

Front 40

What if bequeathed specific property is disposed of prior to death?

Back 40

The property is adeemed and the gift of that property utterly fails.

Hint 40

If property is destroyed, the insurance proceeds do not stand in. Property still adeemed.

Front 41

What is the effect of a change in bequeathed stock?

Back 41

1. If it splits, it is still included in bequest.
2. If stock dividend declared after will executed, it is included in bequest.
3. If cash dividend declared before death, it is not included.

Front 42

If a gift in a will is encumbered, is the encumbrance satisfied from T's estate or does it pass with the property?

Back 42

If the will was made prior to 9/1/2005: generally the lien on specific devise is exonerated (paid out of residuary estate)
Wills after 9/1/2005: lien goes with property.

Front 43

When can a document extrinsic to a duly executed will be incorporated into it by reference?

Back 43

1. Writing in existence when will executed.
2. Will must show intent to incorporate the writing
3. Document must be unambiguously identified in the language of the will.

Hint 43

Note: A holographic will cannot incorporate a document by reference.

Front 44

Are the contents of a specific bequest transferred because they are inside that bequest?

Back 44

1. Not unless the bequest also explicitly includes the contents.
2. Even if contents included, only cash and tangible property will pass. Title documents shall not.

Front 45

How are ambiguities in a will to be interpreted?

Back 45

1. Mistake in description: plain meaning w/o extrinsic evidence.
2. Latent ambiguity: extrinsic evidence allowed in case of impossible misdescription
3. Patent ambiguity: Extrinsic evidence allowed because of facially evident mistake

Front 46

What is a contractual will?

Back 46

A will which provides that a contract relating to the will exists and stating the material provisions of the contract.

Front 47

What is the effect of a contractual will which is wrongfully revoked by a later will?

Back 47

The contractual will is admitted to probate and a constructive trust is imposed in favor of the beneficiaries of the contractual will.

Front 48

What is the effect of a disinheritance clause?

Back 48

That un-beneficiary is treated as having predeceased T for all purposes, even intestate succession.

Front 49

What is required to establish capacity to make will?

Back 49

1. T understood what he was doing in making the will
2. T knew the nature and approximate value of his property
3. T knew the natural objects of his bounty (spouse, kids, etc)
4. T understood the disposition he was making

Front 50

What must be shown by contestant to prove undue influence affected the will?

Back 50

1. Existence and exertion of the influence
2. Effect was to overpower the mind and will of T
3. The product was a will that would not have been made but for the influence.

Hint 50

NOTE: Where a bequest is procured by one in a confidential relationship there is an inference of undue influence, which is strengthened when there are suspicious circumstances.

Front 51

What is fraud in the inducement as applied to validity of a will?

Back 51

When a beneficiary misleads T as to a fact which caused T to make or increase a bequest to that beneficiary.

Front 52

When will the identity of the drafter affect the validity of a bequest.

Back 52

When the drafter is an attorney and the will makes a git to him, his parent, a spouse of the above the gift is void unless the drafter was related to T w/in 3rd degree.

Front 53

When will an in terrorem clause fail to take effect?

Back 53

When T's capacity is contested in good faith and with probable cause.

Front 54

When is independent estate administration appropriate?

Back 54

1. When provided for in the will
2. When all distributees agree

Front 55

What may an independent executor do with respect to the estate?

Back 55

Pretty much anything an owner of the property could do if:
1. Related to proper settlement of the estate
2. Related to preservation of estate assets

Front 56

What must a personal representative do within 120 days of appointment?

Back 56

1. Post bond (unless waived)
2. Publish notice of administration (unless waived
3. File inventory within 90 days
4. Give notice to named beneficiaries w/in 60 days
5. File notice w/ the court w/in 90 days

Front 57

How may an unemcumbered estate be administered with the primary goal of clearing title?

Back 57

1. Probate the will as muniment of title
2. If no will, commence statutory heirship proceeding

Front 58

How may an intestateWhat is the simplest way to administer estate if total assets are less than $50K?

Back 58

Administration by small estate affidavit. Like letters testamentary for petty estate but may not be used to clear title to real property.

Front 59

What is the order of priority in the appointment of personal representative?

Back 59

1. Executor named in will
2. Surviving spouse
3. Principal beneficiary
4. Any other beneficiary
5. Next of kin

Front 60

What is appropriate compensation for an executive / administrator?

Back 60

5% of all sums paid and all sums received, not counting life insurance.

Front 61

What procedures apply to presentment of creditors' claims?

Back 61

1. Notice by publication w/in one month
2. Permissive personal notice to unsecured creditors.
3. Mandatory personal notice to secured creditors
AND, if admin is dependent, creditor must file claim authenticated by affidavit

Front 62

When may a secured creditor file a premature claim against decedent's estate?

Back 62

W/in 6 mos of representative appointment or 4 mos of personal notice. Court will allow the premature claim to be treated as mature and paid out of general assets of estate.

Hint 62

Note: if this procedure not followed, creditor may only look to collateral for satisfaction as preferred debt. First in line, but no deficiency judgment.

Front 63

What are the protections of homestead?

Back 63

Homestead property is protected from creditors' claims except:
1. PMSI
2. Taxes
3. M&M liens
4. HELOC

Front 64

When property is subdivided after o&g lease given, what are the rights of the owners?

Back 64

1. Lessor keeps the full royalty
2. New owner gets possibility of reverter of the mineral estate
3. Each takes an apportioned delay rental.

Front 65

How may a small tract owner "muscle in" on a larger tract to produce his minerals?

Back 65

1. Field in which tract lies must have been discovered after March 8, 1961
2. Small owner must make fair & reasonable offer to pool.
3. If refused, the RRC has authority to force-pool the units so that small owner isn't drained by owner of large, producing tract.

Front 66

What is the effect of two owners signing a single lease?

Back 66

A community lease is created which impliedly pools the two units.

Front 67

What happens if a grantor conveys more of his mineral or royalty than possible?

Back 67

The Duhig doctrine will be applied. The effect of this is to give the innocent party as much of the benefit of his bargain as possible, by taking from the wrongful grantor.

Front 68

What is the effect of language conveying minerals "produced and saved"?

Back 68

A royalty is granted.

Front 69

What is the effect of a conveyance of minerals "in and under"?

Back 69

A mineral interest is granted.

Front 70

What are the objectives of the TX RRC?

Back 70

1. Prevent waste
2. Protect correlative rights
3. Protect the environment.

Front 71

What are the major powers of the TX RRC?

Back 71

1. Grant drilling permits
2. Make spacing rules?
3. Establish rules of prorationing
4. Enforce compulsory pooling

Front 72

To whom is a drilling permit granted?

Back 72

Applicant w/ a minimum of 40 acres unless:
1. Small tract owner can prove waste would occur OR
2. Small tract owner can prove drainage AND that tract was subdivided from larger unit prior to discovery of o&g in that area

Front 73

What is the basis of the TX rules of production prorationing?

Back 73

The Normanna case, decided March 8, 1961. The case held that allowing small tract owners to produce more than their fair share was unreasonable and prorationed by surface acreage.