Wills Flashcards

Front 1

Intestate Disposition of Community Property w/ Surviving Spouse where all the kids are with the surviving spouse (i.e. “the Nuclear Family”)

Back 1

All Property to Surviving Spouse

Kids Take Nothing

Front 2

Intestate Disposition of Community Property w/ Surviving Spouse where NOT all the kids are with the surviving spouse.

Back 2

Surviving Spouse Take ½ CP (not this is not inherited, she owns it under community property law).

The other ½ CP (T’s ½) is divided among the descendants.

Front 3

Intestate Disposition of Separate PERSONAL Property w/ Surviving Spouse and Descendants (whether by the current marriage or earlier)

Back 3

1/3 Separate Personal Property to Surviving Spouse

2/3 Separate Personal Property to the Children (or their descendants)

Don’t Forget H-E-F

Front 4

Intestate Disposition of Separate REAL Property w/ Surviving Spouse and Descendants (whether by the current marriage or earlier)

Back 4

1/3 Life Estate in Separate Real Property to Surviving Spouse

A Remainder in 1/3 Life Estate & 2/3 Outright Ownership to Children (or their descendants)
Don’t Forget H-E-F

Front 5

Intestate Disposition of Separate PERSONAL Property w/ Surviving Spouse and NO Descendants

Back 5

All Separate Property to Surviving Spouse

Front 6

Intestate Disposition of Separate REAL Property w/ Surviving Spouse and NO Descendants

Back 6

½ in Fee Simple to Surviving Spouse

½ in Fee Simple to Parents or Descendants of Parents (brothers and sisters)

Don’t Forget H-E-F

Front 7

Intestate Disposition of Separate REAL Property w/ Surviving Spouse and NO Collateral Kin that are Descendants of T’s Parents

Back 7

All to Surviving Spouse

Front 8

Pretermitted Child

If T has no other children when will is executed

Back 8

Child Takes intestate share of all property not bequeathed to other parent of the child.

Unless, the child is provided for in a non-probate transfer

Front 9

Pretermitted Child

If T has other children but they are not provided for in the will

Back 9

Child Takes intestate share of all property not bequeathed to other parent of the child.

Unless, the child is provided for in a non-probate transfer

Front 10

Pretermitted Child

If T has other children and they are provided for in the will

Back 10

Child’s share is limited to the gifts to such other children (they have to move over and make room). Nobody else’s gift is reduced.

Unless, the child is provided for in a non-probate transfer.

Front 11

Requirements of a duly executed will?

Back 11

1. Signed by Testator
2. Two Attesting W’s
3. Each must sign in T’s Presence

Front 12

When is paternity presumed by the Texas Family Code?

Back 12

If the child was born during or within 300 days after the marriage of the man and child’s mother.

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 (note no marriage).

The parties married after the child was born and the man asserted paternity in a record (i.e. birth certificate).

Front 13

What is the 120 Hour Rule?

Back 13

If a person does not survive the decedent by 120 hours they are treated as if they predeceased him.

If H & W dies within 120 hours community ½ of property is treated as if H had survived wife and vice versa.

Front 14

What does it take to make an effective disclaimer of rights under a will, heirship, etc.?

Back 14

A writing notarized filed in a court within months after decedents death.

The disclaimed person is treated as if they predeceased.

Front 15

What does it take to make a valid holographic will?

Back 15

The will must be wholly in the testator’s handwriting.

And signed by the testator anywhere on the document.

Front 16

What are the effects of divorce on gifts to the former spouse?

Back 16

Any gift or appointment (i.e. independent administrator) to the former spouse or their family member is void.

Treat those people as if they predeceased.

Front 17

How do you prove a lost will in Texas?

Back 17

In court you must prove:
1. Due execution of the will;
2. The cause of non-production;
3. The contents must be substantially proved by a person who had read the will or can identify a copy.

Front 18

What does it take for a valid incorporation by reference (e.g. “the document entitled distribution attached to this will”)?

Back 18

The writing is in existence at the time the will is executed (watch for republication by codicil).

The writing is “clearly identifiable” (i.e. attached sheet won’t work – what attached sheet?)

Front 19

What is the Texas Anti-Lapse Statute?

Back 19

If the beneficiary predeceases the testator the gift lapses unless the anti-lapse statute applies.

It applies where the predeceased beneficiary was a descendant of T’s parents, and he has living descendant to take in his place.

Front 20

Is there exoneration of liens in Texas?

Back 20

Not for wills executed after September 1, 2005.

Front 21

What is ademption?

Back 21

Ademption applies where a testator makes a gift of specific property which is no longer in the estate upon death.

However, where the gift is of a specific amount of stock and not “my” stock, ademption does not apply and the B is entitled to the value of the stock.

Front 22

What is the class gift rule?

Back 22

Only members alive at the testator’s death take the gift, unless the anti-lapse statute applies.

Front 23

How soon must an interested party (only interested parties can bring a contest) bring a will contest?

Back 23

Two Years after the will is admitted to probate.

Front 24

What are the grounds for a will contest?

Back 24

1. Defective Execution
2. Revocation
3. Lack of Testamentary Capacity
4. Undue Influence
5. Fraud
6. Mistake
7. Testator Unaware of Will Contents

Front 25

What does it take to have testamentary capacity enough to execute a valid will?

Back 25

1. Over the age of 18
2. Understand the nature of her act;
3. The extent of her property;
4. The natural objects of her bounty (i.e. she is married, has kids, etc.)
5. The disposition she is making.

Note: adjudication of incompetence is not conclusive on this issue, they are different legal standards.

Front 26

What are the elements of undue influence?

Back 26

Influence was exerted on the testator that overpowered the mind and will of the testator

And resulted in a will that would not have been made but for that influence.

Note: Ability of someone to influence or susceptibility to influence is not conclusive on this issue.

Front 27

What is the rule for a lawyer making a will that gives a gift to himself or a family member?

Back 27

The gift is void unless the beneficiary is related to the testator within the third degree of consanguinity (birth or adoption) or marriage.

Ex: Lawyer prepares will that leaves gift to his wife, who is also T’s niece = Ok

Front 28

What is the rule on challenging a marriage based on the testator lacking capacity to marry?

Back 28

The marriage can be challenged if:

The marriage took place 3 years after the dead guys death;

And the action is filed within 1 year after his death.

Front 29

When is no-contest clause in a will (i.e. a clause removing a beneficiary if they contest the will) valid?

Back 29

The no-contest clause is valid unless the contest was brought in good faith and with probable cause.