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148 Cards in this Set
- Front
- Back
What are the requirements for a duly executed will? |
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What is a proxy signature? |
Someone who signs the will at T's direction and in her presence |
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What is a codicil? |
later amendment or supplement to a will, must be executed with the same formalities you may have a holographic codicil, to an attested will |
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What is a will? |
instrument that is testamentary in character, revocable during the lifetime of testator, and operative at testator's death. |
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What is not required in a will in Texas? |
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Is the order of signing of the will important? |
Exact order of signing is not critical, as long as it is a contemporaneous transaction. |
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What is the conscious presence rule? |
Witnesses must sign will in presence of the Testator. They do not need to sign in each other's presence. To be within the testator's presence, the testator must either
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How to prove will in probate? |
There is a presumption that the will was duly executed. |
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what is a self-proving affidavit? |
Texas allows proof of a will by a self-proving affidavit which contains statements of the witnesses and serves as function as a deposition or interrogatory It is substitute for live testimony of attesting witnesses in open court. |
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What is the two-step will execution ceremony? |
When testator and witnesses signed the will, then after being sworn in by notary, they sign the affidavit. But if witnesses sign the affidavit and not the will, signatures on self-proving affidavits may be used, to validate the will. The consequence of this fail, is that the will is not self-proved. You can only use the signatures once, and due execution would still have to be proved by testimony of at least one attesting witness. |
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what is the one-step will execution ceremony? |
When the will's attestation clause is written in affidavit form, and the testator and witnesses, after being sworn in, sign the will only once. |
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What is an attestation clause? |
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what is the venue for probate of the will and administration? |
The county where the decedent resided. If the decedent was non resident of Texas, then
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Do intended beneficiaries of a will, have a cause of action against attorney for negligence in the execution of a will? |
No, in Texas's the attorney's duty runs only to the client. There is no privity of K between attorney and intended beneficiaries. |
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Can the executor of a will sue an attorney for loss of estate resulting from negligent estate planning advice? |
Yes, Executor can sue attorney for
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What is the effect of a beneficiary acting as witness in the execution of a will? |
When the beneficiary is also one of the attesting witnesses, it does not affect the validity of the will and the will will be admissible in probate. BUT, the bequest to the interested witness may be void |
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What are the exceptions to the interested witnesses losing its bequest? |
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What happens if interested witness is an heir if the testator had died intestate? |
He would get whichever is least of the (1) bequest under the will; and (2) the amount of his intestate share. e.g., C is interested witness and T's son. Under the will he would get $50K. If T had died without a will, C would get $250K. The state applies the whichever is least. |
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What is a holographic will? |
One that is handwritten and unwitnessed |
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Are holographic wills admitted into probate? |
Yes, so long as they are wholly in handwriting of the testator, and signed by testator. |
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What are some characteristics of holographic will? |
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What is the standard to prove whether a document is a holographic will? |
The question is whether it was intended to be a will, if it has testamentary intent. |
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Can extrinsic evidence be used to prove testamentary intent? |
Yes |
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How to prove whether will was wholly in testator's handwriting? |
may be proved in probate by testimony of 2 witnesses, to the testator's handwriting. Holographic wills may be self-proved if if accompanied by affidavit before a notary |
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What is the surplusage rule? |
A will must be wholly in testator's handwriting. But extraneous printed words, not necessary to complete the will, can be disregarded as surplusage.
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When does a will must take effect? |
at death, otherwise it is not a will |
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is an oral will valid? |
No. But testator may request another person to sign for him by his direction, and in his presence |
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What happens if beneficiary dies before the testator dies? |
If a will beneficiary dies during the testator's lifetime (predeceases), or within 120 hours after the testator's death, the gift lapses, it fails. |
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what happens to the devise if it fails because the beneficiary predeceases the testator? |
It becomes part of the residuary estate. |
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What is the anti-lapse statute? |
Generally, if beneficiary predeceases the testator (or dies within 120 hours of testator) the gift lapses (it fails). The anti-lapses protects them. The predeceased beneficiary's descendants take by substitution under the anti-lapse statute IF
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What does the anti-lapse statute does to predeceasing beneficiary's estate will? |
It ignores it. The anti-lapse statute names substitute takers. |
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what happens if will specifically has contrary provision to anti-lapse statute? e.g., "I bequest to X if she survives me" |
Anti-lapse statute does not apply because the will shows a contrary intention. |
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What if predeceased beneficiary does not leave any descendants? |
Then the anti-lapse statute does not apply (even if there is a will to someone else who is not a descendant of the testator's parents) and the bequest goes to the residuary estate. |
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What is the surviving residuary beneficiaries rule? |
When the residuary estate is devised to two or more persons, and the gift to one of them lapses (because of death-predecease testator), the remaining beneficiaries take the residuary estate in proportion to their interest. |
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what is the effect of the anti-lapse rule on the surviving residuary beneficiaries rule? |
When the anti-lapse rule applies (if predeceased beneficiary is descendant of testator's parents) then the surviving residuary beneficiary rule will not apply, and the anti-lapse wins. |
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are nonmarital children included in class gifts? what about adopted children? |
nonmarital children are Presumptively not included in a class gift.
But adopted children are presumptively included, unless clear language otherwise. |
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what is the class gift rule? |
When a will is made to a class (e.g. children, nephews and nieces), if a member of the class dies during the testator's lifetime, those class members who are alive at the testator's death take the gift.
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does the anti-lapse override the class gift rule?
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Yes, if predeceasing class member was a descendant of the testator's parent and left descendants who survived the testator.
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what if the will is made to individual beneficiaries? |
The class gift rule does not apply. If one of the individuals in the group dies, the other members do not get his share. The bequest goes into the residuary estate. e.g., T bequests to friend Ted's children Al, Bill, and Carl. Al dies, and leaves two children. Anti-lapse statute does not apply. Thus, gift lapses, and Al's share goes into the residuary estate. |
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when does a class closes? |
The class is closed, meaning that later-born class members do not share in the gift, when some class member is entitled to distribution. When the testator dies. subject to gestation principle. |
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What if a class member is dead at the time the will is executed? |
Generally, a gift is void if beneficiary is dead at the time the will is executed (subject to the anti-lapse statute) BUT, The anti-lapse does not apply in favor of the class member's descendants when the class member dies at the time the will is executed. |
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When do the intestate succession rules apply? |
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what is community property? |
There is a presumption that all property on hand on dissolution of the marriage is community property. including income from separate property |
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What is separate property? |
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What are the intestacy succession rules for community property? |
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What are the intestacy succession rules for separate personal property? |
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what are the intestacy succession rules for separate real property? |
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what should I talk about in any question dealing with a will or intestacy involving a surviving spouse? HEF |
Homestead,Exempt property set aside; Family allowance If home qualifies as homestead, wife is entitled to exclusive occupancy of homestead for so long she occupies it. Also some, personal property assets may qualify for an exempt personal property set aside in wife's favor. Finally, if wife owns little or no separate property, she can petition for family allowance in amount needed for her support for one year. These come off the top of the estate before intestate distribution is made. |
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What is per capita representation? |
property is divided into equal shares at the first generational level at which there are living takers. The share of each deceased person at that level passes to her descendant by right of representation. Divide by the number of people. E.g., Wife gets 1/3. And 3 Children get 2/3. If one deceased children had 2 children, then divide by number of people one level at a time. |
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what is the succession rule if no spouse or descendants? |
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Is there a limit on degree of relationship needed to take as heir? |
No, Texas does not have laughing heir statute. There is no limit on the degree of kinship that qualifies one to be an heir. And so on without end. |
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what if there is a substantial estate and no immediate family? |
administrator should hire genealogist to locate and identify remote relatives. |
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what is the intestacy rules for half-bloods? |
half-bloods take HALF as much as whole bloods. |
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What are the intestacy rules for adopted children? |
they are treated the same as natural child |
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can adoptive parents inherent to and through adopted child? |
Yes, just like they could for natural child. |
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Can adopted child inherit from or through natural parents? |
Yes, the adopted child can inherit from and through her natural parent. Unless, the decree terminating parent-child relationship terminated inheritance rights. IF silent, adopted child can inherit from natural parent. BUT the natural parent cannot inherit from natural adopted child. One way street. |
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can adult adopted inherit from adopting parent? |
Yes, but not from biological parents. |
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can will limit inheritance to biological children? |
Yes, it could say "children born of my body" |
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What are the intestacy rules for nonmarital children? |
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when can a nonmarital child inherit from biological father? |
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When is there presumption of paternity? |
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Can nonmarital child inherit from stepfather? |
no, unless adoption by estoppel. Adoption by estoppel permits inheritance from foster parent, but not his kin. |
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when is there adoption by estoppel? |
When there is an unperformed agreement to adopt. |
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does adoption by estoppel allow the stepfather to inherit from child? |
No, it's one way street. Only nonmarital child can inherit from stepfather.
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what is the 120 hour rule? |
In order to be an heir or beneficiary, requires survival by 120 after testator dies
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What if there is a failure to survive decedent by 120 hours? |
it is treated as having predeceased decedent. a person who fails to survive the decedent by 120 hours, is deemed to have predeceased the decedent for purposes of intestate succession |
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does the 120 hour rule apply to wills? |
Yes, as well as the anti-lapse statute. |
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does the anti-lapse statute applies to intestate successions? |
no, only to wills. |
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does the 120 hour rule applies to wills where there is language contrary to it? |
No. If the will says "to my son, if he survives me" Thus, even if son died hours after father, he survived him, and succession is applied |
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does the 120 hour rule apply to community property? |
Yes, if H and W die within 120 hours of each other, one half of all community goes to husband as if husband had survived 120 hours, and the other one half is distributed as if W had survived 120 hours. |
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does the 120 hour rule apply to life insurance policies? |
Yes, and joint and survivor bank accounts. |
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How to have a valid disclaimer by heir or beneficiary? |
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can a disclaimer be partial? |
Yes. But parent cannot disclaim on behalf of minor child. |
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why would anyone want to disclaim an interest in the decedent's estate? |
Avoid gift taxes, and avoid creditor's claims |
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What happens if there is an effective disclaimer? |
The estate is distributed as though disclaimant predeceased the decedent. The anti-lapse would apply if predeceased beneficiary is descendant of testator's parents |
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What is a lifetime gift to heir? |
When testator makes gift in advance to beneficiary. |
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Is a lifetime gift to heir/beneficiary advancement against his intestate share? |
No, unless 1. It is declared as such in contemporaneous writing b donor; or 2. acknowledged as such in writing by donee. |
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what happens if an advancement is established by contemporaneous writing by donor, or acknowledged as such by donee? |
The amount advanced is added to the net value of estate, then share advanced is reduced from that person. |
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what is the rule for unathorized commercial use of decedent's name or likeness? |
half and half rule paplies. The party making unauthorized use can be held liabile for damages. Damages goes one half to surviving spouse, and one half to descendant. All to spouse if no descendant, all to descendant if no spouse. |
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What happens if testator marries after will is executed? |
Assuming no community property, marriage has no effect on the will. The reason is that the law assumes that community property will go to the spouse. |
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What claims the spouse can assert? |
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what happens if testator is divorced after will is executed? |
divorce revokes all provisions in favor of former spouse and relatives of former spouse, including removal of appointments.
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what happens if couple reconciles and remarries? |
the divorce revocation rule only applies if they are divorced at the time of the testator's death.Thus no revocation. |
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What is the pretermitted child rule? |
It protects children. If a child born or adopted after the will is executed, and is not provided for or mentioned in will, and is not provided for by any nonprobate transfers taking effect at the testator's death, the child shares the estate according to specific rules |
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Who is covered under pretermitted child statute? |
Only afterborn and after adopted children. |
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does the pretermitted child statute apply if there is contrary language in the will? |
No, if the will says I don't like this child, then child has no rights under pretermitted child. It does not apply if child is covered in class. |
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Is the child protected if mentioned in will or provided for by nonprobate transfer? |
No. For example, if father did not include later adopted child in will, but includes him in life insurance policy, then the pretermitted child statute rule does not apply because he is protected already. |
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Pretermitted child Rule |
UNLESS child is provided for by nonprobate transfer taking effect at testator's death. Children alive at time of executed, are not protected. |
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pretermitted child analysis |
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what does codicil do to pretermitted child rule? |
under doctrine of republication of codicil, a will is deemed to have been executed on date of last codicil to the will. Thus new child is treated has having been born before the will was executeed, and has not rights as pretermitted child. |
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How to revoke a will? |
holographic instrument can revoke typewritten attested will, and viceversa |
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What is the presumption of revocation? |
When the last person seen with will was T, and will is not found after death. It is presumed that T destroyed it by physical act with intent to revoke. But presumption does not arise if will was last seen in possession of someone adversely affected by its content. |
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can a copy of lost will be probate? |
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what is the effect of words added to will after will has been executed? |
They are disregarded. No effect. |
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can a holographic codicil be added to will itself? |
yes, so long as it can be read outside of the context of the will. |
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can something on will be revoked by crossing it out? |
Not valid in Texas. Will must be fully revoked. no partial revocation |
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How to change a will? |
UNLESS, holograph wholly in the writing of the testator if evidentiary test is met= 2 persons who can testify as to the handwriting of testator. |
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is intent required for revocation? |
Yes, and the physical act as well. |
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does the act of revocation must be by testator? |
yes, or someone in testator's presence. Unless, holographic codicil. |
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can a will be revived? |
No, there is no revival of revoked wills. Unless, a rexecuted with attesting witnesses, or republished by executed codicil. |
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what is the dependent relative revocation? |
when testator revokes a will based on mistake of law or fact as to validity of another disposition. |
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what if several wills say my "last will"? |
you read the two instruments together, last will is treated as codicil of the firt and revokes the first only to the extent of inconsistent provisions. Unless it is wholly inconsistent. |
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What is ademption? |
You cannot bequest something you don't own. |
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What happens if when there are so many claims against the estate that there are not enough assets to cover all gifts made by the gift? |
Some legacies will be sacrificed in order to pay in order to pay the testor's debt. Generally, if the estate has enough money, debts and expenses are paid against the residuary estate. |
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What is the abatement order in Texas? The ones sacrificed first |
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what are general legacies? |
payable out of general assets and does not require delivery of particular item. "I bequeat to M $500" |
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what are demonstrative legacies? |
gift for certain amount of money, to be satisfied primarily out of a certain fund or particular property. " I bequeath to X $1000 to be paid out out of the Xerox stock" |
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how are demonstrative legacies treated? |
treated as specific bequest to the extent of the value of the property from which the legacy will be paid; AND general legacy to the extent of any excess. I bequest the $10K of Xerox stock. Stock is only valued at $6K. $6k will be specific bequest, and $4K general legacy. |
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does ademption apply to demonstrative legacies? |
No. Only to specific gift. |
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what does an specific bequest of stock includes? |
It also includes securities of another entity, owned by the testator as a result of a merger, takeover. |
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what if a gift is encumbered by lien or mortgage? |
For wills executed before September 1, 2005, the liens on specific devised property are exonerated from the residuary estate (paid for) For wills executed after September 1, 2005, the exoneration of liens rule, does not apply and beneficiary takes property as it is, subject to mortgage. |
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what is incorporated by reference? |
an extrinsic document not presnet when teh will was executed, and thus not part of the duly executed will, can be incorporated by reference into the will if:
No incorporation by reference when will only said "attached sheet" because no sufficient identification |
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can a holographic will incorporate typewritten document by reference? |
Only if it's wholly in handwriting of testator. |
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what are acts of independent significance or nontestamentary acts? |
lifetime acts with lifetime purpose are independent significantly. it's when a will provide that disposition will be determined by future unattested act occurring after execution of will. e.g., I will give you the automobile. At the time the will is executed the auto is a cobalt. When she dies, it's a benz. Beneficiary takes the benz
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What about contents of thing given? |
Bequest of thing includes contents (e.g., house), but the bequest only include tangible property and cash, no bequest of title documents. |
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What happens if there is a mistake in the will? e.g., Testator meant 300 shares, and secretary wrote 200 shares? |
The beneficiary will only get 200. Plain meaning rule. IF there is no ambiguity, extrinsic evidence is not admissible to overturn plain meaning of the words. Absent suspicious circumstances, it is conclusive that testor read and understood its contents. |
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What if there is a latent ambiguity in the will? |
Extrinsic evidence is allowed to cure latent ambiguity. e.g., Will says nephew John P Jones, but there are 2 nephews John P Jones. |
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What if extrinsic evidence does not cure the latent ambiguity? |
The gift fails. There would be no ascertainable beneficiary. |
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what if there is a patent ambiguity? |
When the mistake appears on the face of the will, extrinsic evidence is always allowed. E.g., I bequeath $25K, twenty five dollars to Bob. |
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When can a contract to make a will or not to revoke a will be established? |
Execution of joint wills does not suffice as evidence of existence of contract |
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what happens if will is determined to be contractual and survivor revokes the will and executes another? When there is a written agreement, or will refers to contract and provisions of contract |
If we have a valid will but subject to K, we enforce the K. |
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example of contractual will revoked by later will: |
H and W execute contractual will in which they agree that survivor will not revoke agreed disposition of assets. H Dies. W probates the will and accepts benefits, but then executes a new will revoking Will 1, and changes the beneficiaries. AFter W's death both wills are offered for probate. Will 1 cannot be probated because it was revoked by W. BUT beneficiaries of Will 1 can bring action to impress a constructive trust against the beneficiaries of Will 2 because execution of that will was in breach of W's cK in Will 1. |
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What are nonprobate assets? |
interest that pass at death other than by will or intestacy. |
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what are major types of nontestamentary assets or nonprobate assets? |
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Can a will direct nonprobate assets in contract to be disposed to a will beneficiary? |
No, contract governs. E.g., A will cannot direct proceeds of life insurance to be paid to someone else other than the named beneficiary in the life insurance. |
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What is the effect of a negative bequest? |
When the will does not make a complete disposition, words of disinheritance are ineffective. The words are given full effect. Thus disinherited beneficiary is treated as having predeceased testator--thus anti-lapse statute would apply. |
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What is the power of appointment? |
authority given to donee to designate within limits the persons who will take the property after donee dies.
e.g., To dana, and who she appoints by her last will |
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What is the general testamentary power? |
When donee is not limited in the class of beneficiaries to whom she can appoint. She can appoint anyone |
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what if power of appointment is not exercised? |
takers in default of appointment take property. E.g., to my daughter Dana, for her to distribute as she appoints in her last will. General testamentary power. If not exercised, Dana's descendants will take. |
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must the power of appointment be specific? |
Yes, will must expressly exercise the power of appointment, or takers in default will take. E.g., byt he power of appointment from my mom's will, My daughter takes.... specific reference to the power |
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what is the exercise of power of appointment by implication? |
it's an exception to the express requirement to exercise power of appointment. e.g., if assets subject tot he power of appointment include Greenacre, and Danna's will said " I devise Green Acre to my Son" this would exercise her power of appointment by implication. |
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what is the special power of appointment? |
When testamentary power is limited in the class of persons to whom beneficiary can appoint. |
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what is the statute of limitations to contest a will? |
2 years from the date the will was admitted to probate |
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who can contest will? |
Only parties who are heirs, or having pecuniary interest that would be affected by probate. |
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How to prove testamentary capacity? |
At the time the will was made. Evidence can't be too remote |
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does adjudication of incapacity conclusive evidence of lack of testamentary capacity? |
No, adjudication of incapacity involves a different legal test (capacity to contract, manage one's affairs). It may be admissible as evidence of testamentary capacity, but not dispositive Jury could find that will was executed during lucid interval. Fleeting moment when the testator met the testamentary capacity |
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what is the SOL to contest will based on fraud or forgery? |
two years after discovery |
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can a person who accepts benefits under will later contest it? |
No he is estopped. |
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how to prove undue influence? |
Contestant has burden of proof. Testamentary capacity subject to undue influence. Undue influence is existence of testamentary capacity subject to and controlled by dominant influence of power.
mental duress |
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is circumstantial evidence sufficient to prove undue influence? |
No.
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approach to will contest |
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When can you infer undue influence? |
when will was
inference of undue influence is strengthened because of suspicious circumstances |
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what is fraud in the inducement? |
where execution of will is result fraud, the will particular gift is void |
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What is the rule when a lawyer writes the will and also gets gift? |
IF a lawyer drafts a will that makes a gift to lawyer, or lawyer's descendant, the gift is void UNLESS the beneficiary is related to testator within third degree of consanguinity |
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what is the consanguinity test? |
count up to common ancestor, then count down 3. |
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When can action to annul marriage on ground of lack of capacity be filed? |
within 3 years of marriage, and 1 year within death of testator. |
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what is a no-contest clause? |
provide that if beneficiary contests the will, he shall forfeit his legacy. In Texas, non-contests clause are valid if beneficiary contests and loses, UNLESS there is good faith and just cause |
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how are no-contest clause strictly construed? |
The challenge must directly challenge the validity of the will. |