• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

Card Range To Study

through

image

Play button

image

Play button

image

Progress

1/102

Click to flip

Use LEFT and RIGHT arrow keys to navigate between flashcards;

Use UP and DOWN arrow keys to flip the card;

H to show hint;

A reads text to speech;

102 Cards in this Set

  • Front
  • Back
Per Capita with Representation
Estate is divided into equal shares at the first generational level where living takers are present. The number of shares will be equal to the number of surviving heirs at that generational level plus the number of predeceasing heirs who leave issue surviving the decedent.

Each surviving heir at that generational level receives one share, and each predeceasing heir at that generational level is allocated one share, which is divided among that person's issue in the same manner.

Posthumous children are considered as living at the death of their parent.
Partial Intestacy
if the decedent made a will but not all the property is disposed by the will (e.g. no residuary clause)
Surviving spouse's share of real and personal property other than community property
if the intestate is survived by issue, the surviving spouse receives 1/3 of the personal estate and an estate for life in 1/3 of the real estate

If the intestate is not survived by issue, the surviving spouse receives all of the personal estate and one-half of the real estate; the other half of the real estate passes to the other heirs according to the rules of descent and distribution.
Property rights in the use of one's name, voice, signature, photo, or likeness after death
In Texas, an individual has a property rights in the use of one's name, voice, signature, photo, or likeness after death.

Thus, if ownership of that property right has not been transferred before or at death, the property right vests:
1. Entirely in the surviving spouse, if there are no surviving issue;
2. 1/2 to the surviving spouse and 1/2 to surviving issue;
3. Entirely in surviving issue, if there is no surviving spouse; OR
4. entirely in the surviving parents, if there are no surviving spouse or issue.
Individual claiming property right in use of decedent's name, voice, etc.
Must register the property right with the Secretary of State. registration form must be verified and include the following information:
1. the decedent's name and date of death;
2. the claimant's name and address;
3. A statement of the basis of the claim; AND
4. A statement of the right claimed.

After the first year following individual's death, the property right may be exercised regardless of whether the owner has first registered a claim.
Community property of intestate decedent
Property of the husband and wife passes to the surviving spouse unless some issue of the intestate survive who are not issue of the surviving spouse.

1. If such issue survives, then 1/2 of the CP estate is retained by the surviving spouse while the other half passes to the issue.
2. The descendants may inherit only such portion of the property to which they would be entitled under the statutes of descent and distribution.

The community estate passes charged with the debts against it.
Joint Tenancies in Estate Distribution
General rule: if 2 or more persons hold an interest in property jointly, and one joint owner dies before severance, the interest of the decedent in the joint estate passes by will or intestacy from the decedent as if the decedent's interest had been severed.

Spouses may agree between themselves that all or part of their CP, then existing or to be acquired, will become the property of the surviving spouse upon the death of the other.
Share of Children and More Remote Descendants
The share of issue or collateral heirs is that portion of the estate not distributed to a surviving spouse.

Share will be distributed according to per capita by representation, also known as per stirpes.
Per capita by representation, AKA per stirpes
Estate is divided into as many shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue surviving the decedent, each surviving heir in the nearest degree receiving one share, and the share of each deceased person in the same degree being divided among that person's issue in the same manner. Posthumous children are considered living at the time of their parent's death.
If there are no issue and no surviving spouse, the parents of the decedent will take in equal portions. If only one parent survives, the parent will take the entire estate unless the intestate's siblings of their descendants survive; in such case the parent will take 1/2 of the estate and the other 1/2 will pass to the siblings and their descendants.
a. If the estate shall go to the paternal and the other to the maternal kindred, it shall be divided in the following course: to the grandfather and grandmother in equal portions, but if only one of these be living, then the estate shall be divided into two equal parts, one of which shall go to such survivor, and the other shall go to the descendant(s) of such deceased grandfather or grandmother. If there be no such descendants, then the whole estate shall be inherited by the surviving grandfather or grandmother.
If there are no surviving grandparents, then the estate passes to their descendants, "and so on without end, passing in like manner to the nearest lineal ancestors and their descendants"
Kindred of the Half-blood
When the estate passes to collateral relatives (i.e., not lineal descendants), if some of the relatives are of the whole-blood and others are of the half-blood, then each of the each of those of the half-blood inherit only half as much as each of those of the whole-blood.



If all are of the half-blood, however, then they inherit whole portions.
Unborn Heirs
A person who is not a child or descendant of the decedent must have been "in being and capable in law to take: at the time of intestate's death.

"In being and capable” will include a child in utero at the time of death.
Adopted Children
Adoption generally severs the relationship b/n child and biological parents, and creates the same relationship b/n the child and the adopted parents as b/n a child and his natural parents.
The adoptee is considered to be the child of the adoptive parents for all purposes and is deemed to have been born to the adoptive parents as of the date of the final adoption decree.

An adoptive child, and the heirs of the adopted child, inherit from the adoptive parents in the same manner as a natural child of the adoptive parents.

THe adoptive parents (and those claiming through them) can inherit from an adopted child as if the adopted child had been born to them.

Biological parents may NOT inherit from or through the child. The child may inherit by and through the biological parents UNLESS the adoptee is an adopted adult child or unless the relationship b/n the adoptee and the biological parents has been terminated and the court provides the adoptee's right to inherit from his biological parents has also been terminated.
If stepparent adopts spouse's child from pervious marriage
if natural parents marries adoptive parent (stepparent), the relationship b/n the child and the natural parent is not severed.
Child Born Out of Wedlock
A child born out of wedlock who has been legitimated according to the laws of TX or of any other jurisdiction, may inherit by, through and from both parents as if the child has not been born out of wedlock
The parents of a legitimated child may inherit by, through, and from the child as if the child had been born in wedlock.
A child born out of wedlock who has not been legitimated is treated as the legitimate child of the mother.
Such a child is also treated as the legitimate child of the father if:
(a) paternity has been established according to statute; OR
(b) the father has executed an acknowledgment of paternity that:
1) is in the record
2) is signed, or otherwise authenticated;
3) states that the child does not have a presumed father or has a presumed father whose full name is stated, and does not have another acknowledged or adjudicated father;
4) states that the father's claim is consistent with the results of any genetic testing; AND
5) states that the signatories understand the acknowledgement to be the equivalent of a judicial adjudication of paternity.
The presumption of paternity can be rebutted only by genetic testing that excludes him as the father or identifies a different man as the father. (a) Under the Family Code: Father is presumed father of any child born during the marriage.
Resident Aliens
No person is disqualified to take as an heir because he, or a person through whom he claims, is or has been an alien.
Escheat
If there is no one entitled to take under the intestacy statutes, the net estate escheats to the State.
Advancements
If a decedent dies partially or completely intestate, property he gave or transferred during his lifetime to an heir may be treated as an advancement against the heir's intestate share only if:
a. the decedent declared in a contemporaneous writing, or the heir acknowledged in writing, that the gift or non-testamentary transfer was an advancement; OR
b. the decedent's contemporaneous writing or the heir's written acknowledgement otherwise indicates the gift or non-testamentary transfer is to be taken into account when computing the division and distribution of the decedent's intestate estate.
Once it is established that an advancement was intended, the heir must figuratively return it to the estate (by having its value taken into account) if he or she wishes to participate in the distribution of the estate. This process is commonly referred to as "going into hotchpot."
The distributive shares of the heirs are then determined.
(1) When the value of the advancement equals or exceeds the heir's intestate share, the heir receives NOTHING ELSE from the estate but does NOT have to refund and of the advancement.
(2) If the advancement is less than the heir's intestate share, the heir is entitled to receive the difference.
A recipient of an advancement may elect not to go into hotchpot but this bars the recipient from participating in the distribution of the estate.
The value of the property given as an advancement is determined as of the time the heir came into possession or enjoyment of the property, or as of the time of death of the intestate, whichever happened first.
A gratuitous inter vivos transfer = absolute gift Not an advancement.
If the recipient of the advancement fails to survive the intestate, the property advances is NOT taken into account in computing division of intestate's estate, UNLESS the intestate's contemporaneous writing provides otherwise.
Simultaneous Death
Texas has adopted the Uniform Simultaneous Death Act, It applies regardless of whether the decedent left a will or died intestate.

120 hour Rule: if the owner of property and the would-be devisee or beneficiary of such property die simultaneously OR if the devisee fails to survive the owner by 120 hours, or if there is insufficient evidence to determine while person died first, the property is disposed of as if the owner had survived.
Devisee who does not survive testator by 120 hours is treated as if he predeceased the testator, unless the testator's will contains some language expressly dealing with simultaneous death or requiring that the devisee survive the testator, or survive the testator for a shorter period in order to take under the will.
If the right of beneficiary to succeed to any interest is conditioned upon his surviving another person (not the decedent), beneficiary must outlive that person by 120 hours to take.

If any interest in property is given alternatively to one of two or more beneficiaries, with the right of each to take being dependent upon his surviving the others, and all shall die within a period of less than 120 hours, the property shall be divided into as many equal portions as there are beneficiaries, and those portions shall be distributed respectively to those who would have taken in the event that each beneficiary had survived.

120 hour rule applies to an insured and a beneficiary.
A recipient who fails to account for an advancement in the probate proceedings
A recipient who fails to account for an advancement in the probate proceedings when ordered to do so by the court shall be deemed to have received a full share of the decedent's estate. The recipient must first put into hotchpot what was advanced in order to share what remains of the estate. The recipient may elect to receive only the portion of the estate covered by the advancement.
Loan rather than Advancement
If the money, or other property, given by the decedent to the heir was a loan, the heir would be required to repay the entire amount regardless of the size of the heir's intestate share
Slayer Statute
A beneficiary of a life insurance policy forfeits the beneficiary's interest in the policy if the beneficiary is a principal or an accomplice in willfully bringing upon the death of the insured.
Joint Owners in Estate Distribution
When joint owners with rights of survivorship die simultaneously or within 120 hours of each other, the property shall be distributed as follows:
1. 1/2 as if one had survived and
2. 1/2 as if the other had survived

If there are more than two joint tenants and all of them have died in circumstances that make it impossible to determine the order of death, the property will be distributed in the proportion that one bears to the whole number of joint tenants.
A Will
A will is a document executed by a testator or testatrix that takes effect on the death of the testator.

Usually, a will disposes of a person’s property, but need not actually do so in order to constitute a valid will.

A will may also include any codicil(s) as well as a testamentary instrument that:
a. appoints an executor or guardian;
b. directs how property may not be disposed of; or
c. revokes another will
A will may also include any codicil(s) as well as a testamentary instrument that:
a. appoints an executor or guardian;
b. directs how property may not be disposed of; or
c. revokes another will
Legacy
A legacy: gift of devise by will, whether of personally or realty
Capacity to Make a Will
1. In order to make a valid will, a person must be:
a. At least 18 years old
b. Or is lawfully married; OR
c. Member of the Armed Forces
Required Mental State to Make a Will
The required mental state can be divided into two categories, each of which must be met before a will can be valid:
a. Testamentary intent
(1) The person must intend the document to be a will.
(2) It is ineffective if the person intended the writing as a joke, or to accomplish some other purpose.
b. Testamentary capacity
(1) A person must be of sound mind in order to execute a valid will. In other words, the testator must have had testamentary capacity at the time of execution.
(2) There are four elements to testamentary capacity:
(a) The T must understand that the doc to be signed is a will
(b) The testator must understand that the effect of the document is to distribute property after his death
(c) The testator must know the nature and extent of the property subject to distribution (The T need not know exactly how much property is involved, but must know generally how much and what kind of property is involved).
(d) Testator must know the natural object’s of the testator’s bounty (Natural objects of testator’s bounty = children, spouse, siblings, and other family members)
Executor must have testamentary capacity at time of execution for the will to be valid. A person who is mentally incapacitated part of the time but who has a lucid interval: during which he meets the standard for mental capacity, can, in the absence of an adjudication of statute that has contrary effect, make a valid will, or a valid inter vivos donative transfer, provided such will or transfer is made during the lucid interval
Lucid Interval of Testator
The crucial period during which the executor must have testamentary capacity for the will to be valid is the time of its execution.
(a) A person who is mentally incapacitated part of the time but who has a lucid interval: during which he meets the standard for mental capacity, can, in the absence of an adjudication of statute that has contrary effect, make a valid will, or a valid inter vivos donative transfer, provided such will or transfer is made during the lucid interval
Burden of Proof as to the Testator's Soundness of Mind
The burden of proof as to the testator's soundness of mind is on the will's proponent, who is aided by a presumption that the testator was of sound mind when he executed the will.
(a) If evidence of lack of capacity is introduced, the proponent must: show soundness of mind by a preponderance of the evidence
1) T’s condition before or after that time will NOT invalidate the will, except insofar as such may be evidence of the condition of his mind at the time of execution
2) Self-executed will by self-proven affidavit is evidence of sound mind as a matter of law
(b) Mental capacity to make a will can be established by testimony of witnesses.
1) Nonexpert witnesses, even interested witnesses, can testify: to their knowledge of the testator’s conduct and statements near the time of the execution of the will, and may even be allowed to give a lay opinion on wither the testator had sufficient mental capacity

2) An expert witness may be permitted to: testify an give an opinion from personal knowledge of the testator, or based upon hypothetical questions
Mental capacity to make a will can be established by testimony of witnesses
Mental capacity to make a will can be established by testimony of witnesses.
1) Nonexpert witnesses, even interested witnesses, can testify: to their knowledge of the testator’s conduct and statements near the time of the execution of the will, and may even be allowed to give a lay opinion on wither the testator had sufficient mental capacity

2) An expert witness may be permitted to: testify an give an opinion from personal knowledge of the testator, or based upon hypothetical questions
Attested Will
An attested will: is one signed by the Testator (T) and at least 2 competent witnesses

It must be signed by: the T (a mark, such as an “X” is permissible), or in the T’s name by another person in the T’s presence and at the T’s direction

(1) Texas does not have a “subscription” requirement, so the testator’s signature may appear anywhere on the face of the will.

The testator does NOT have to sign the will in the presence of the witnesses. T may sign earlier.
Witnesses to a Will
(1) At least two witnesses to the execution of the will are required for an attested will.
(2) The witnesses must sign in: “in the presence of the testator” but need not sign in the presence of each other

(a) The words "in the presence of the testator" mean: a “conscious presence”. Thus, testator, unless blind, must be able to see the attestation from his actual position at the time, or at most, from such position as slightly altered, where he has the power readily to make the alteration without assistance

(b) As long as the testator and witnesses sign as part of “one contemporaneous transaction,” the exact order of signing is immaterial.

(3) Witnesses do not need to know they are witnessing a will (i.e., Texas does not have a “publication” requirement).
Interested Witnesses
(a) A witness who has a pecuniary interest under the will: is NOT a competent witness (bc they are not disinterested)


(b) Should any person be a subscribing witness to a will, and also be a legatee or devisee, if the will cannot be otherwise established: the bequest shall be void, and such witness shall be compelled to appear and give his testimony as if no such bequest had been made

1) But, if in such case the witness would have been entitled to a share of the testator’s estate had there been no will, he shall be entitled to as much of such share as does not exceed the value of the bequest to him in the will.

(c) The existence of an interested witness, however, never invalidates a will.
1) A bequest to the subscribing witness shall not be void if: his testimony proving the will is corroborated b one or more disinterested and credible persons who testify that the testimony of the subscribing witness is true and correct, and that the subscribing witness shall not be regarded as incompetent or non-credible witness.
Proof of Attested Will in Court
(1) If not self-proved, an attested written will may be proved in court:
(a) By sworn testimony or affidavit of one or more of the subscribing witnesses taken in open court
(b) If all the witnesses are non-residents of the county, or those who are residents are unable to attend court, by the sworn testimony of any one or more of them by deposition, wither written or oral;
(c) If no written opposition to the will is filed on or before the hearing date, then by the sworn testimony or affidavit of 2 witnesses taken in open court, or by deposition, to the signature or handwriting evidence by one or more of the attesting witnesses, or of the T, if he signed the will;
(d) if all of the witnesses are dead or beyond the jurisdiction, by 2 witnesses to the handwriting of one or both of the subscribing witnesses, or of the T, if signed by him, and such proof may be either by sworn testimony or affidavit taken in open court, or by deposition, either written or oral;
(e) if one witness can be found who can make the required proof, then by the sworn testimony or affidavit of such one taken in open court, or by deposition, to such signature or handwriting
Self-Proved Will
Any will may be simultaneously executed, attested, and "made self-proved" by:
(1) the T's acknowledgement of will as a free and voluntary act; AND
(2) The WS' affidavits that the T was apparently at least 18 years old and of sound mind, and was acting under no constraint of undue influence. In addition, T must state that the document is his will and must sign in the presence of the witnesses. The acknowledgment and affidavits must be made before an officer authorized to administer oaths.
If a will is self-proved: no further proof of its executions with the formalities and solemnities and under the circumstances required to make it a valid will are required.
(1) A self-proved will may be admitted to probate without the testimony of any subscribing witness, but otherwise it shall be treated no differently than a will not self-proved.
(2) A self-proved will may be contested, or revoked or amended by a codicil in exactly the same fashion as a will not self-proved.
A will may be made self-proved at the time of its execution or at any time thereafter during the lifetime of the testator and the witnesses.
A self-proved will may be admitted to probate without the testimony of any subscribing witness to establish the will's execution.
Holographic will
a. A holographic will: a will entirely in the handwriting of the T but NOT witnessed
(1) Valid in TX
(2) Such a will may be made self-proved at any time during the testator's lifetime by affidavit.
(3) If not self-proved, a holographic will may be proved by: 2 witnesses to his handwriting, which evidence may be by sworn testimony or affidavit taken in open court, or if such residents are non-residents of the county or are residents who are unable to attend court, by deposition, either written or oral
(a) A beneficiary under a holographic will may testify to such competent, relevant, and material facts as tend to establish that the alleged holographic will is valid without forfeiting any benefits under the will.

b. Holographic wills may be signed in an informal manner (e.g., “Sam”) and do not need to be dated.

c. Under the surplusage rule: printed matter, in and of itself, does not invalidate a holographic will. BUT TX requires at least that the material provisions of the holographic will be in the handwriting of the T.

(1) If material provisions are typed, not written, might not have a will at all.
(2) Material provisions: testamentary intent “I will, I devise, etc.”
(3) Extract holographic words by themselves, and if they could stand as a valid will by themselves without additional words, then holographic will is valid.
Surplusage Rule
Under the surplusage rule: printed matter, in and of itself, does not invalidate a holographic will. BUT TX requires at least that the material provisions of the holographic will be in the handwriting of the T.

(1) If material provisions are typed, not written, might not have a will at all.
(2) Material provisions: testamentary intent “I will, I devise, etc.”
(3) Extract holographic words by themselves, and if they could stand as a valid will by themselves without additional words, then holographic will is valid.
Noncupative Wills
Texas no longer recognizes nuncupative will, or oral, wills.
Lost Wills
a. A presumption of revocation arises when an original will is not produced in court, and the will was last seen in the possession of the testatrix or in a place to which she had ready access and cannot be found after her death.

b. The presumption may be overcome by: proof and circumstances contrary to the presumption of by proof that the will was fraudulently destroyed by another person

c. The standard by which the sufficiency of the evidence should be reviewed is by a preponderance of the evidence that will was not revoked by the testatrix.

d. A written will which cannot be produced in court shall be proved in the same manner as an attested written will or holographic will, and the same amount and character of testimony shall be required to prove the lost will as is required to prove a written will produced in court.

e. Cause of lost will’s non-production must be proved, sufficient to satisfy the court that it cannot by any reasonable diligence be produced, and the contest of such will must be substantially proved by the testimony of a credible witness who has read the will, has heard the will read, or can identify a copy of the will.
Codicils
1. Generally, a codicil is: an addition to, or an alteration of, a will
2. A codicil must be executed with the same formalities as a will.
Means if we have a typed written signed by T and witnessed by 2 disinterested witnesses), we can have holographic codicil (must be wholly in handwriting of T and signed, but not necessarily witnessed), or if there is a holographic will, can have typed codicil
3. A codicil modifies rather than replaces a will's provisions unless: there is express language of revocation or inconsistencies exist between the codicil and the will.
a. Because implied revocation is not favored in Texas, particularly where a codicil is concerned, inconsistencies will be reconciled as much as possible so as to avoid, or at least limit, an implied revocation of the will provision(s).
4. A properly executed codicil can incorporate: the terms of a prior invalid will through incorporation by reference if the codicil evidences the T’s intent to incorporate the prior will.
5. A codicil can also have the effect of revoking a will.
6. Republication by codicil may also be used to give testamentary effect to: a document created after the original will but before the codicil.
Republication by Codicil
A validly executed codicil republishes the will as of the date of the codicil

a. In other words, the will is considered to be re-executed upon execution of the codicil, even if the codicil does not expressly republish the prior will.

b. The effect of republication is that the will and codicil are viewed as one instrument to be interpreted according to the circumstances and law in effect at the time of republication.
Holographic Codicil
Texas case law provides that it is possible to have a holographic codicil to either an attested or holographic will.

a. An addition to or change in a will may be considered as a holographic codicil if:

(1) It is in the handwriting of the T

(2) Is expressly intended to have testamentary effect; and

(3) It is separately signed by the T
Incorporation by Reference
Gives life to a documentary that has no testamentary life (i.e. not executed), but giving effect to words on document.

1. A testator may incorporate by reference a separate document into a will if:

a. The separate document to be incorporated is in existence at the time the will is executed ; AND

b. The will or codicil refers that that specific document with specific certainty to identify it and the document meets this description


2. When these conditions are met, the court will find that the testator intended an incorporation by reference.
a. Documents that are incorporated by reference are NON-TESTAMENTORY DOCUMENTS.
Acts of Independent Significance
1. A will may dispose of property by reference to: acts and events that have significance apart from their effect upon the dispositions made by the will, whether the acts or events occur before or after the execution of the will, or before or after the T’s death
a. The independent event will impact the event even though it does not comply with testamentary formalities.
2. A legacy of personal property does not include: any contents of the property unless the will directs that the contents are included in the legacy. A devise of real property does not include an person property located on or associated with the real property or any contents of personal property located on the real property unless the will directs that the PP or contents are included in the devise.
Titled Personal Property
Includes: al tangible PP represented by a certificate of title, certificate of ownership, written label, marking, or designation that signifies ownership by a person. The term includes a motor vehicle, motor home, motorboat, or other similar property that requires a formal transfer of title.
"Contents" means:
a. "Contents" means: tangible personal property, other that titled PP, found inside or on a specifically bequeathed or devised item. The term includes clothing, pictures, furniture, coin collections, and other items of tangible PP that to NOT require a formal transfer of title and that are located in another item of tangible PP such as a cedar chest of other furniture.
A legacy of personal property does NOT include:
any contents of the property unless the will directs that the contents are included in the legacy. A devise of real property does not include an person property located on or associated with the real property or any contents of personal property located on the real property unless the will directs that the PP or contents are included in the devise.
Conditional Wills and Gifts
A conditional will: a will that is to take effect only upon the happening of a specified contingency stated in the will.
a. Is only operative if the condition happens or occurs, but its operation is defeated by failure or non-occurrence of such contingency.
b. The condition must be clear on the face of the will, and must comply with the formal requirements for a will.
c. Extrinsic evidence will NOT be allowed to make a facially valid will invalid
2. Because the effect of determining a will or a bequest to be invalid is that the property will pass in whole, or in part, by intestacy, and because courts prefer that property pass by will, courts will review a provision to determine if it is truly a condition.
3. Most courts, when faced with a questionable provision, will hold: that it is not a condition, but rather a statement of the T’s motive or inducement for making a will.
a. The courts in Texas have gone both ways on this issue.
4. The court may also consider parol evidence in determining the testator's intent.
Revocation
Only those acts of the testator, or changes in the testator's circumstances, specified by statute, will constitute a revocation. In other words, the testator cannot legally provide in his will alternative methods for revocation.
Methods of Revocation
Texas has specified that the only permissible methods to revoke a will are:
(1) By subsequent will, codicil, or other writing executed under written will formalities (may occur by express language of revocation or by implication through inconsistent provisions); OR

(2) By the document’s being destroyed or canceled, with intent to revoke it, by he T or another at T’s direction and in his presence.

In the event that inconsistencies are completely irreconcilable: the more recent will provision will generally prevail over a prior one
(1) Conflicts and errors will be reconciled whenever possible by giving effect to T’s dominant purpose

c. Texas does not recognize partial revocation of an attested will by physical act.

d. In contrast, interlineations and partial revocations of holographic wills are given effect, provided they were made by the testator’s hand.
Partial Revocation of Holographic Will
Interlineations and partial revocations of holographic wills are given effect, provided they were made by the testator’s hand.
Revocation Due to Changed Domestic Circumstances
a. A will is not revoked by a subsequent marriage of the maker.
(1) The surviving spouse may elect: against a will made prior to the marriage in the same manner and to the same extent as a surviving spouse may elect against a will executed subsequent to the marriage.

b. A subsequent divorce or annulment of marriage revokes those provisions of the will in favor of the former spouse unless the will expressly provides otherwise. Assuming will does not provide otherwise, the ex-spouse is treated as having predeceased the testator
(1) Rest of will remains in effect
(2) if parties remarry each other, the provisions for the former spouse are revived.
Mental Capacity to Revoke a Will
a. The mental capacity required to revoke a will is the same as the mental capacity required to make a will.

b. That mental capacity may be affected by: fraud, duress, undue influence, or insanity.

(1) No revocation occurs if someone holds a gun to Testator’s head or if T is handed paper for kindling by 3rd person who told T it was a scrap paper when it was actually T’s will

c. When a will is revoked by physical act, the testator must havehe requisite intent and capacity at the time the document is destroyed.
Revival of a Will
reinstatement of a will that has been validly revoked.

1. A will which has been revoked cannot be revived unless there is a re-execution of the will or an execution of another will or codicil which incorporates the revoked will by reference.
a. Rule does not apply to revocation by divorce or annulment, which can only be reinstated by remarriage of the parties.

2. Texas is a: NO revival of a revoked will state. Once a will is revoked by a subsequent will, it cannot be automatically revived by destroying the subsequent will.
Dependent Relative Revocation
Allows a court to: disregard the revocation of a will that was based on a mistake of law or fact. In other words, if T revokes a subsequent will under the mistaken assumption that he was reviving a prior will by doing so, the court will revive the 2nd will since the revocation was based on a mistake of law or fact and the wills had similar provisions.

There are no cases in Texas applying the DRR doctrine.
Contractual Wills: Agreement to Make a Will or to Die Intestate
a. A contract to make a will or devise, or not to revoke a will or devise, can be established only by:
(1) Provisions of a written agmt that is binding and enforceable; AND
(2) Provisions of a will stating that a contract does exist and stating the material provisions of the contract.

b. The contract must state clearly the requirements of the will, as such contracts are not favored.

c. The contract has the same requirements (e.g., meeting of the minds, consideration, etc.) as any other contract.
(1) Frequently, consideration is in the form of services.
(2) Similarly, an agreement by one person not to contest another's will may be sufficient consideration for the second person's promise to devise property.
Contractual Wills Between Spouses
a. Mutual promises by spouses will: will serve as sufficient consideration for a contract to make a will as long as the other elements of a contractual will are present
Joint Will
Is a document executed by 2 or more testators which is intended to serve as the will of each person who signed it.

If there is a contract to make a joint will, reciprocal will, or mutual will, the contract becomes irrevocable at the time of death of one of the parties to it.

(1) Such wills can be freely revoked and their provisions are not strictly enforceable during the lifetime of the testators.
Reciprocal Wills
Wills which contain similar provisions regarding the disposition of property to the other testator
(1) Are typically made by spouses but made be made by other parties
(2) May be reciprocal regarding the entire estate or only certain assets.

If there is a contract to make a joint will, reciprocal will, or mutual will, the contract becomes irrevocable at the time of death of one of the parties to it.

(1) Such wills can be freely revoked and their provisions are not strictly enforceable during the lifetime of the testators.
Mutual Wills
Are separate wills executed by 2 or more persons with reciprocal (or mirror) provisions for the distribution of assets.

If there is a contract to make a joint will, reciprocal will, or mutual will, the contract becomes irrevocable at the time of death of one of the parties to it.

(1) Such wills can be freely revoked and their provisions are not strictly enforceable during the lifetime of the testators.
Execution of a Joint or Reciprocal Will Does NOT by Itself:
Execution of a joint or reciprocal will does not by itself create a presumption of a contract not to revoke the will.

If there is a contract to make a joint will, reciprocal will, or mutual will, the contract becomes irrevocable at the time of death of one of the parties to it.

(1) Such wills can be freely revoked and their provisions are not strictly enforceable during the lifetime of the testators.
Construction of Wills: Rules of Construction
a. Four corners rule: the intentions expressed by the Testator within the four corners of the will controls the legal effect of its provisions.
(1) However, the court will look to the circumstances confronting the testator at the time of execution to interpret the language of the will and the natural objects of his bounty (i.e., devisees).

b. Although the language of the will is construed in light of the circumstances as they existed at execution, the will is considered to speak, or take effect, upon the death of the testator.
(1) In determining the property to be distributed, the will is construed as if it were executed immediately before the testator's death.

c. In interpreting a will, although there is a strong presumption in favor of the testator’s intent to dispose of his entire estate by will, that presumption does not arise when: the Testator fails, through design or otherwise, to make a complete disposition of his property.

d. A devise of real property will be presumed: to be devise of a fee simple, unless the will makes clear that the Testator intended to convey a lesser estate.
A devise of real property will be presumed to be:
d. A devise of real property will be presumed: to be devise of a fee simple, unless the will makes clear that the Testator intended to convey a lesser estate.
Construction of Wills: Ambiguities
a. The cardinal rule of construction is that effect must be given to the intent of the testator.
(1) If a will is not ambiguous, the language is given its ordinary meaning and construction is unnecessary.

b. Patent Ambiguities
(1) Appear on the face of the will
(2) Under modern Texas law: extrinsic evidence is admissible to show the Testator’s intent in the context of a patent ambiguity
(3) Although a court cannot use conjecture, the court may transpose or supply words, phrases, or clauses to when manifestly required to effectuate the intention of the testator.

c. Latent Ambiguities
(1) Arise when the language of the will, otherwise clear, is applied to the thing given or the person benefitted under the will, and some extrinsic fact necessitates interpretation or choice among two or more possible meanings.
(2) Where the ambiguity is latent, extrinsic evidence is admissible to resolve the ambiguity.
Latent Ambiguities
(1) Arise when the language of the will, otherwise clear, is applied to the thing given or the person benefitted under the will, and some extrinsic fact necessitates interpretation or choice among two or more possible meanings.

(2) Where the ambiguity is latent, extrinsic evidence is admissible to resolve the ambiguity.
Patent Ambiguities
(1) Appear on the face of the will

(2) Under modern Texas law: extrinsic evidence is admissible to show the Testator’s intent in the context of a patent ambiguity

(3) Although a court cannot use conjecture, the court may transpose or supply words, phrases, or clauses to when manifestly required to effectuate the intention of the testator.
Construction of Wills: Integration
Problems of integration arise when there is: uncertainty as to precisely what papers and terms were intended to be part of the will at the time of execution.

(1) Generally, this is not a problem, because the pages of a will are usually numbered and fastened together, or the writing of the will shows an internal coherence which carries from page to page.

(2) If a question of integration does arise, the proponent of the will must show: that the will offered for probate is actually the will the testator intended to make and no insertions or removals of pages from the will have occurred.
Classification of Legacies and Devises
a. Classification of testamentary dispositions—as specific, demonstrative, general, or residuary—is important in order to determine which dispositions are adeemed by extinction, are adeemed by satisfaction, and abate if the estate is insufficient.
Specific Devise
A specific devise or bequest disposes of: an identified item of property owned by the testator (i.e. “My 50 shares of X stock to Betty”)
Demonstrative Bequest
c. A demonstrative bequest: is a gift (usually an amount of money), payable primarily from a specified soured and, if that is inadequate, then from the general assets of the estate
(1) Any funds which are left over after the bequest is paid become part of the general assets of the estate (e.g., "$10,000 to A, payable out of my account in X Bank, and if this is insufficient, then out of my other property").
General Bequest
A general bequest: payable out of general assets of the estate, rather than requiring distribution of, or payment from particular assets

(1) Note that this differs from a specific bequest in that a specific disposition would refer to a particular 100 shares of ABC stock, identified by the word "my," as a part of the property of the testator's estate. The general bequest does not identify the stock as property of the estate; the executor could buy any 100 shares of ABC stock (assuming that such stock is publicly traded) and so satisfy the bequest.
Residuary Disposition
A residuary disposition: is a gift of the testator’s net probate estate after all claims against the estate and all specific, demonstrative, and general dispositions have been satisfied
Ademption by Extinction
a. A testamentary gift is adeemed by extinction—that is, the gift fails when the property specifically bequeathed or devised is not in T’s estate when T died
(1) Refers to specific bequests
b. The ademption may occur by: May occur by an intentional act on the part of the T, or by an involuntary circumstance
c. In order to avoid ademption, courts generally presume that the testator intended to create a general legacy when he fails to make a specific intention clear.
d. Ademption occurs even if the property has been exchanged for other property.
(1) However, if the testator transferred only a portion of the property devised: the beneficiary would be entitled to the remaining portion (pro tanto ademption)
e. The gift is not adeemed if only the form of the testator's ownership changed.
f. If the property was destroyed: the devisee might be able to collect the insurance proceeds payable to the executor of the estate.
g. Note that the doctrine of ademption by extinction applies only to property specifically described in the will, and not to general or demonstrative dispositions.
Pro Tanto Ademption
Ademption occurs even if the property has been exchanged for other property.

However, if the testator transferred only a portion of the property devised: the beneficiary would be entitled to the remaining portion (pro tanto ademption)

The gift is not adeemed if only the form of the testator's ownership changed.
Changes in Securities: Specific Devises of Stock
a. Specific devises of stock are often troublesome: because the stock may have changed in form and number through splits, dividends, mergers, and corporate name changes after the will was executed but before Testator’s death

b. Unless the will clearly provides otherwise, the beneficiary is entitled to any increase in value that is a result of actions taken by the corporate entity.
(1) The beneficiary would receive any shares acquired through a stock split, or any shares of another entity received as a result of a merger or sale of the original corporation.

c. Unless the will clearly provides otherwise, the beneficiary is not entitled to: a cash distribution relating to the securities and accruing before death, whether or not the distribution is paid before death.
Ademption by Satisfaction
a. Property that a testator gives to the intended beneficiary inter vivos may be treated as a satisfaction of a testamentary gift.
b. Ademption by satisfaction is analogous to advancement
c. In Texas, property given to a person by a testator during the testator's lifetime is considered a satisfaction, either wholly or partly, of a devise if:
(1) The Testator’s will provides for the deduction of the lifetime gift;
(2) The Testator declares in a contemporaneous writing that the lifetime gift is to be deducted from or is in satisfaction of the devise; OR
(3) The devisee acknowledges in writing that the lifetime gift is in satisfaction of the devise.

d. The doctrine of ademption by satisfaction only applies to gifts to the beneficiary.
(1) Payments made as a result of a legal obligation, or repayment of a debt, are not considered in determining whether a testamentary gift has adeemed.
Exoneration
a. Under the common law: if specifically devised property is subject to a lien on which the testator was liable, the devisee may have the lien exonerated out of the testator’s residuary estate.

b. For wills executed on or after September 1, 2005: TX reverses that CL rule and states that A specific devise of property passes to the devisee subject to any debt secured by the property, and the beneficiary has no right to exoneration from the testator’s estate. In TX, no liens will be exonerated (removed) absent a clear intention in the will.
(1) This rule may be overridden if the will in which the devise is made specifically states that the devise passes without being subject to the debt.
Exoneration of Wills After September 1, 2005
For wills executed on or after September 1, 2005: TX reverses that CL rule and states that A specific devise of property passes to the devisee subject to any debt secured by the property, and the beneficiary has no right to exoneration from the testator’s estate. In TX, no liens will be exonerated (removed) absent a clear intention in the will.
(1) This rule may be overridden if the will in which the devise is made specifically states that the devise passes without being subject to the debt.
Common Law Exoneration
Under the common law: if specifically devised property is subject to a lien on which the testator was liable, the devisee may have the lien exonerated out of the testator’s residuary estate.
Lapse
a. Under the common law: a legacy or devise to a person who predeceased the testator lapsed, or failed.
(1) In the absence of an alternate beneficiary, the lapsed devise fell into the residue of the testator's estate, and if there was no residuary clause, the property passed by intestacy.
b. Texas has enacted: an anti-lapse statute under which some gifts that would have failed at CL nevertheless pass to the descendants of the devisee.
(1) In the absence of a contrary intent expressed in the will: a gift to a deceased devisee who was a descendant of the testator or of the testator’s parent passes to the descendants of the devisee.
(2) The statute applies regardless of whether the deceased devisee died before or after the making of the will.
c. The testator may avoid the effects of the antilapse statute by: making a substitute gift or by specifying that the gift should lapse. Courts will give effect to the testator’s intent when it is discernible.
d. The anti-lapse statute also applies to the case in which a member of a class predeceases the testator.
(1) If the class member dies without qualified heirs: the other members of the class will receive a proportionately larger share.
Lapse of Gift to Class Member
The anti-lapse statute also applies to the case in which a member of a class predeceases the testator.
(1) If the class member dies without qualified heirs: the other members of the class will receive a proportionately larger share.
Slayer Statute and a Constructive Trust
a. By statute: a beneficiary of a life insurance policy who is convicted and sentenced as a principal or an accomplice in willfully causing the death of the insured will forfeit the life insurance proceeds.
(1) Otherwise, "[n]o conviction shall work corruption of blood or forfeiture of estate[.]" Thus, in Texas, title to property devised by the slayer's victim nevertheless passes to the slayer according to the terms of the will or by the laws of descent and distribution.

b. The Texas courts, however, will impose: a constructive trust in favor of the other beneficiaries/heirs upon the property inherited by the slayer from the victim.
Disclaimers (Renunciation)
a. The testator cannot force a beneficiary to accept a gift under the will. The beneficiary may: disclaim, or renounce, the gift for any reason, even to prevent the beneficiary’s creditors from gaining access.
(1) The same right to renounce intestate succession belongs to an heir or next of kin.
b. A renunciation may be filed for an incapacitated or protected person, or for the estate of a deceased person, by a person with representation authority.
c. A renunciation may be total or partial.
d. Statutes require the beneficiary to renounce the gift: within a specified period. The beneficiary must give written notice of the disclaimer to the personal representative, and to the Probate Court, for renunciation to be effective.
(1) Federal law requires: the renunciation of a present interest subject to federal taxes to be filed within 9 months after the decedent’s death, or 9 months after the beneficiary has been identified or the interest has vested.
(2) Under state law: the same time limit applies to an immediate gift. In the case of a future interest, state law requires that the disclaimer be properly effected within 9 months of the vesting of the interest.
Renunciation : Federal Law
Federal law requires: the renunciation of a present interest subject to federal taxes to be filed within 9 months after the decedent’s death, or 9 months after the beneficiary has been identified or the interest has vested.
Renunciation: State Law
Under state law: the same time limit applies to an immediate gift. In the case of a future interest, state law requires that the disclaimer be properly effected within 9 months of the vesting of the interest.
Renunciation: Statutory Requirements to be Effective
d. Statutes require the beneficiary to renounce the gift: within a specified period. The beneficiary must give written notice of the disclaimer to the personal representative, and to the Probate Court, for renunciation to be effective.
Acceptance of Disclaimer
(1) The question of what constitutes a beneficiary's acceptance of the gift—thereby precluding disclaimer—has arisen frequently.

(2) The statute provides that: “for the purposes of this section, acceptance shall occur only if the person making such disclaimer has previously taken possession or exercised dominion and control of such property in the capacity of beneficiary”
Effect of Disclaimer
(1) If the decedent has not provided for an alternative disposition: the renouncing person is deemed to have predeceased the decedent.
(a) Thus, the property will usually pass under the residuary clause, by intestacy, or according to the provisions of the antilapse statute.

(2) The disclaiming beneficiary may not direct who will receive the property; such an act would be inconsistent with the renunciation.
(a) Any future interest that takes effect after termination of the renounced interest will take effect as if the person renouncing had died before the even determining the taker.

(3) A renunciation relates back to the date of the decedent's death.
Waiver and Bar of Right to Renounce
The right to renounce is barred by: a. the would-be renouncer’s assignment, conveyance, or encumbrance of the property or interest;
b. by a written waiver of the right to renounce; or
c. by a sale of the property or interest under judicial sale.
Abatement
a. The problem of abatement arises where the assets of the testator's estate are insufficient to pay creditors' claims and the devises made in the will.
b. A testator may indicate in the will the order in which the assets of the estate are to be paid toward debts charged to the estate.
c. If the will says nothing to the contrary, the shares of distributees abate in the following order:
(1) Property not disposed of by the will;
(2) Residuary devises;
(3) General devises; AND
(4) Specific devises
The term "devise" refers to testamentary gifts of both personal and real property.
d. Within each class, gifts of personal property generally: will abate before gifts of real property
Abatement of Class Gifts
d. Within each class, gifts of personal property generally: will abate before gifts of real property
Class Gifts
a. A class gift exists when: a Testator makes a gift to a number of persons as a group and the group may either increase or decrease in number

b. Traditionally, to qualify as a class, the individuals had to be a natural group with the same relationship to the testator (e.g., "my children").
(1) Under modern law: a gift to several named individuals even of diverse relationships may constitute a class gift if such was the Testator’s intent.
(2) Existence of a class gift is a question of testamentary intent to be resolved from the whole will as well as from circumstances known to the testator at execution.

c. If the gift is an immediate gift (i.e., at testator's death): the class closes at Testator’s death if any members of the class are then in existence.

d. If the gift is postponed: the class will remain open until the time set for distribution (e.g. if the T devises property to his wife for life and then equally to his wife’s children, the class closes at the wife’s death, not the testator’s)
Class Gifts: Common Law
Traditionally, to qualify as a class, the individuals had to be a natural group with the same relationship to the testator (e.g., "my children").
Class Gifts: Modern Law
(1) Under modern law: a gift to several named individuals even of diverse relationships may constitute a class gift if such was the Testator’s intent.

(2) Existence of a class gift is a question of testamentary intent to be resolved from the whole will as well as from circumstances known to the testator at execution.
Construction of Terms in Class Gifts
(1) Today: a class gift to “children,” “issues,” or “descendants” includes members of that class by adoption, unless a contrary intent clearly appears.



(a) In Texas, however, a disposition to “children” excludes any child born out of wedlock and includes only marital children.
Closing of Class—Maximum Membership
(1) If a class gift to a general group such as children, sisters, and the like, is contained in a will: and the will does NOT specify when the class is to close, the following rules of construction determine when the class closes, i.e. when the maximum membership has been reached:
a. Rule of convenience: a person must be born before the period of distribution in order to share in a class gift.
(1) If the gift is an immediate gift, the class closes at the death of the testator. (This is also the time set for distribution of an immediate gift.)
(2) If the gift is postponed:, ordinarily there would be no inconvenience involved in allowing a class to remain open until the time set for distribution. Hence, closing is not at Testator’s death but at distribution date.
a) However, where the testator devises property to the children of A, each child to receive a share upon attaining the age of twenty-one:
b) This is necessary in order that the oldest child's share may be determined and allotted at the time stated for its distribution.
(3) Where per capita gifts are concerned, even if the gift is postponed, the general view is: that the class must close at the Testator’s death, whether or not there are class members in existence at the time.
Class Gift to "Next of Kin"
A gift to a class designated as "next of kin" shall be interpreted to mean: a gift to those who would take under the law of intestate succession, unless a contrary intention appears in the will.
Class Gift to Heirs of a Living Person
A gift to a class designated as heirs of a living person will be construed to be a gift to the children of that person, unless a contrary intention appears in the will.
Abatement
a. The problem of abatement arises where the assets of the testator's estate are insufficient to pay creditors' claims and the devises made in the will.
b. A testator may indicate in the will the order in which the assets of the estate are to be paid toward debts charged to the estate.
c. If the will says nothing to the contrary, the shares of distributees abate in the following order:
(1) Property not disposed of by the will;
(2) Residuary devises;
(3) General devises; AND
(4) Specific devises
The term "devise" refers to testamentary gifts of both personal and real property.
d. Within each class, gifts of personal property generally: will abate before gifts of real property
Advancements
If a decedent dies partially or completely intestate, property he gave or transferred during his lifetime to an heir may be treated as an advancement against the heir's intestate share only if:
a. the decedent declared in a contemporaneous writing, or the heir acknowledged in writing, that the gift or non-testamentary transfer was an advancement; OR b. the decedent's contemporaneous writing or the heir's written acknowledgement otherwise indicates the gift or non-testamentary transfer is to be taken into account when computing the division and distribution of the decedent's intestate estate.
Once it is established that an advancement was intended, the heir must figuratively return it to the estate (by having its value taken into account) if he or she wishes to participate in the distribution of the estate. This process is commonly referred to as "going into hotchpot." The distributive shares of the heirs are then determined.
(1) When the value of the advancement = or exceeds the heir's intestate share, the heir receives NOTHING from the estate but does NOT have to refund any of the advancement.
(2) If the advancement is less than the heir's intestate share, the heir is entitled to receive the difference.
A recipient of an advancement may elect not to go into hotchpot but this bars the recipient from participating in the distribution of the estate.
The value of the property given as an advancement is determined as of the time the heir came into possession or enjoyment of the property, or as of the time of death of the intestate, whichever happened first.
A gratuitous inter vivos transfer = absolute gift Not an advancement.
If the recipient of the advancement fails to survive the intestate, the property advances is NOT taken into account in computing division of intestate's estate, UNLESS the intestate's contemporaneous writing provides otherwise.
Self-Proved Will
Any will may be simultaneously executed, attested, and "made self-proved" by:
(1) the T's acknowledgement of will as a free and voluntary act; AND
(2) The WS' affidavits that the T was apparently at least 18 years old and of sound mind, and was acting under no constraint of undue influence. In addition, T must state that the document is his will and must sign in the presence of the witnesses. The acknowledgment and affidavits must be made before an officer authorized to administer oaths.
If a will is self-proved: no further proof of its executions with the formalities and solemnities and under the circumstances required to make it a valid will are required.
(1) A self-proved will may be admitted to probate without the testimony of any subscribing witness, but otherwise it shall be treated no differently than a will not self-proved.
(2) A self-proved will may be contested, or revoked or amended by a codicil in exactly the same fashion as a will not self-proved.
A will may be made self-proved at the time of its execution or at any time thereafter during the lifetime of the testator and the witnesses.
A self-proved will may be admitted to probate without the testimony of any subscribing witness to establish the will's execution.
Per Capita with Representation AKA per stirpes
Estate is divided into as many shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue surviving the decedent, each surviving heir in the nearest degree receiving one share, and the share of each deceased person in the same degree being divided among that person's issue in the same manner. Posthumous children are considered living at the time of their parent's death.
If there are no issue and no surviving spouse, the parents of the decedent will take in equal portions. If only one parent survives, the parent will take the entire estate unless the intestate's siblings of their descendants survive; in such case the parent will take 1/2 of the estate and the other 1/2 will pass to the siblings and their descendants.
a. If the estate shall go to the paternal and the other to the maternal kindred, it shall be divided in the following course: to the grandfather and grandmother in equal portions, but if only one of these be living, then the estate shall be divided into two equal parts, one of which shall go to such survivor, and the other shall go to the descendant(s) of such deceased grandfather or grandmother. If there be no such descendants, then the whole estate shall be inherited by the surviving grandfather or grandmother.
If there are no surviving grandparents, then the estate passes to their descendants, "and so on without end, passing in like manner to the nearest lineal ancestors and their descendants"