Reading...
Play button
Play button
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;
46 Cards in this Set
- Front
- Back
|
Wills
|
Wills
|
|
|
How old must a testator be to make a will?
|
18, unless married or in the armed forces
|
|
|
What are the requirements for an executed will?
|
- writing
- signed by T (no date needed) - 2 attesting witnesses (14 or older, credible) - must sign in T's conscious presence - do not need to know they're witnesssing a will - don't need to sign together |
|
|
What is a self-proving affidavit?
|
- substitute for W's testimony in probate court
- signed by Ws and T - If no sig on rest of will, can use affidavit sigs to validate will - but can't be used for 2 purposes |
|
|
Who can sue for attorney negligence?
|
T only
- the attorney owes no duty to intended beneficiaries |
|
|
What happens to a bequest to an interested witness?
|
Bequest is void unless:
1. will can be proved without interested W's testiomy 2. W's testimony corroborated 3. interested W would take in intestacy, in which case gets lesser of intestate and devised share |
|
|
What is a holographic will?
|
- Will entirely in T's handwriting
- signed by T - Holographic codicils ok (even on back of will) - 2 people to testify to T's handwriting |
|
|
What is the surplussage doctrine?
|
- If will is part handwritten and part typed, typed part discarded
|
|
|
Can you have an oral will in TX?
|
No. Statute repealed Sept 1, 2007.
|
|
|
What happens when a will devises a gift to deceased person?
|
The anti-lapse statute applies if person is a descendant of T's parent (e.g. brother, nephew):
- 120 rule applies - DOES NOT apply in intestacy |
|
|
What happens when a member of a class dies before T?
|
Anti-lapse statute applies if proper relationship to T (descendant of parent):
- later born class members do not take (class closes at death) - class member must not have died before T executed his will or not member of the class to being with |
|
|
What's the difference between per capita and per stirpes?
|
Per capita (by the head):
- each descendent gets an equal share - with representation: divided at first level with living takers Per stirpes (by the root): - each child of T is a root - one share for each family line under T |
|
|
In intestacy, how is community property divided?
|
If surviving spouse with desc. kids:
- 100% to spouse If surviving spouse with non-desc. kids: - 50% to spouse, rest to kids No surviving spouse: - desc. take per capita w/ rep No surviving desc.: - 1/2 to mom side, 1/2 to dad side |
|
|
In intestacy, how is separate property divided?
|
separate personal property:
- 1/3 to spouse, 2/3 to descendants separate real property: - 1/3 life estate to spouse, desc. get 2/3 outright, remainder in 1/3 - ALWAYS consider homestead right with spouse |
|
|
What happens to a child born out of wedlock in intestacy after death of father?
|
Doesn't inherit unless:
- adopted by D - born w/in 300 days of void or voidable marriage - parties married after birth and D asserted paternity - D resided with kid, asserted was his - OR paternity otherwise established |
|
|
From whom can adopted kids inherit?
|
- adopted parents
- natural parents - except adult adoption, only adopted parents - not two way street: natural parents can't inherit from kid |
|
|
What does the 120 hour rule apply to?
|
- wills
- intestacy - life insurance - joint and survivor bank accounts REMEMBER: anti-lapse only applies to wills |
|
|
How can a B disclaim a devise or inheritence through intestacy?
|
1. must disclaim in signed, notarized writing
2. within 9 months 3. filed with probate court effect: B predeceased T |
|
|
Is a lifetime gift an advancement?
|
No, unless contemporaneous writing by T or B stating it is.
- Also, a will provision can state this. |
|
|
What happens if T marries after will is executed?
|
Nothing. No pretermitted spouse statute in TX.
- wife can assert homestead, $15k cash allowance in lieu - also family allowance for one year support |
|
|
What happens if T divorces after will is executed?
|
All gifts revoked to ex-spouse and relatives of ex-spouse that are not also relatives of T.
- all treated as pre-deceasing T |
|
|
What happens if a child is born after the will is executed?
|
Pretermitted child takes:
- if only kid: intestate share of prop not devised to spouse - other kids: child shares in the total devise to those kids Doesn't apply if: - non-probate transfer providing for kid - codicil republishes the will after kid born |
|
|
How can a will be revoked?
|
- subsequent will explicitly or inconsistent provisions
- physical act of revocation with intent (burning, ripping, etc) - does not arise if will last seen in possession of someone adversely affected by contents |
|
|
How can you prove a lost will?
|
1. prove due execution
2. cause of lost will must be produced 3. contents substantially proved by W who has read the will or can id copy |
|
|
What is the effect of handwritten cross outs on the will itself?
|
NO EFFECT, unless will is holographic
- BUT, holographic codicils written on the will itself are valid if signed and complete if read alone - e.g. "I want Susan to take $500 rather than $5000 in paragraph 11, DS" |
|
|
Can a will be revived after revocation?
|
In TX, no:
- must write a new will - possibly discuss DRR if revoked due to mistake (never applied in TX) |
|
|
What are the different types of devises?
|
- specific: "I devise Blackacre to John"
- general legacy: "I devise $10k to John" - residuary: "All rest and residue to John." - demonstrative legacy: "I devise $10k to be paid out of sale of Exxon stock to John" |
|
|
What is the order of abatement of assets if not enough to cover claims?
|
1. Intestate property
2. Residue (personal prop.) 3. Residue (real prop.) 4. General legacies of pers. prop 5. General legacies of real prop. 6. Specific bequests of pers. prop. 7. Specific devises of real prop. |
|
|
How are estate taxes divided?
|
Pro rata among all Bs
- except gifts that qualify for marital/charitable deducation |
|
|
What happens if a piece of property devised is not in the estate at death?
|
Ademption. Applies only to specific bequests:
- "I devise Blackacre to John." BA sold, John get nothing - " I devise all interest in BA to John" John gets proceeds - "I devise my BMW to John", BMW sold buys Merc, Residue gets Merc - "I devise my BMW to John", BMW crash gets $20k insurance, John gets $20k |
|
|
How are bequests of stock treated?
|
"I give my 100 shares of IBM to Alice." - If T sells, Alice gets nothing
- If stock split / dividend, Alice gets proceeds - If cash divided pre-death, Alice doesn't get "I give 100 shares of IBM to Alice" - Alice gets date of death value of IBM stock if already sold |
|
|
What happens with a specific bequest of property encumbered by a lien?
|
Before 9/1/2005:
- lien exonerated out of residue estate unless will states otherwise After 9/1/2005: - statute abolished this. B pays. |
|
|
Can you incorporate an external writing by reference into the will?
|
Yes, if:
1. writing in existence at execution 2. will shows an intent to incorporate the writing 3. document must be clearly identified so no mistake |
|
|
What is an act of independent significance?
|
Lifetime act that affects the will:
- "I devise the car I own at my death to John" is ok |
|
|
What effect do mistakes in the will have?
|
None. T is presumed to have meant what he said.
- But, latent ambiguities can be cleared up with extrinsic evidence |
|
|
Is a contract relatiing to a will valid?
|
Yes, if:
1. K mentioned in the will along with material provisions OR 2. binding and enforceable written agreement If subsequent will breaches K: - constructive trust on Bs of sub will for benefit of Bs of previous |
|
|
What is required to prove sufficient capacity of T to make a will?
|
Must prove that T:
1. understands the nature of the act (that he was making a will) 2. knows the nature and approx. value of his property 3. knows natural objects of his bounty 4. understands disposition he's making Jury could find will executed during a "lucid interval" |
|
|
What's the statute of lims for will contests?
|
1. 2 years after will admitted to probate
2. if fraud/forgery, 2 years after discovery 3. persons under disability: 2 years after dis. removed |
|
|
Who has standing to contest a will?
|
- interested parties
- heirs legatees under earlier will - close friends, not named: no standing - executor of revoked will has standing |
|
|
What are the elements of undue influence?
|
1. existence and exertion of the influence
2. effect to overpower mind and will of T 3. product was will or devise that wouldn't have been made but for influence - unfairness not enough - if confidential relationship, inference of UI |
|
|
Is a no contest clause in a will enforceable?
|
Yes, unless contest brought:
1. in good faith and 2. with probable cause |
|
|
How much does a half blood take in intestacy?
|
Half as much as a whole blood
|
|
|
Who gets rights to decedents likeness in intestacy?
|
1. if spouse: 1/2 to spouse, 1/2 to kids
2. if spouse, no kids: 100% to spouse 3. if no spouse or kids: to parents 4. if none of the above: expires after 1 year |
|
|
Who can get a will from a safety deposit box?
|
Decedents:
1. spouse 2. parent 3. child over 18 4. executor in will Can deliver will only to executor or probate court |
|
|
Which papers are integrated into the will?
|
Only those present at attestation
|
|
|
Can a legatee who received benefit from a will contest it?
|
No. Estoppel applies.
|
