Wills- Tx Bar

Front 1

Intestate Succession for Community Property

Back 1

1. Survived by kids, not all of them are SS’s- ½ to decedent’s issue, per capita, ½ to SS
2. Survived by kids, all of them are SS’s- SS takes all
3. Survived by spouse only- SS takes all

Front 2

Intestate Succession for Separate Personal Property

Back 2

1. Survived by both spouse and kids- 1/3 to SS and 2/3 to kids
2. Survived by spouse only- SS takes all
3. Not survived by spouse- children take all

Front 3

Intestate Succession for Separate Real Property

Back 3

1. Survived by both spouse and kids- 1/3 to SS as life estate and 2/3 to kids outright
2. Survived by spouse only- 1/2 to SS and 1/2 to parents or parents descendents
3. Not survived by spouse- children take all

Front 4

When can children born out of wedlock inherit from father?

Back 4

1. Father executes sworn statement or
2. paternity presumed by TFC

Front 5

When is paternity presumed by Texas Family Code?

Back 5

(1) Child born during marriage or w/i 300 days
(2) Man lived in same household and represented to others he was father during kids 1st 2yrs, OR
(3)Parties married after child’s birth AND ONE OF FOLLOWING:
(a) man asserted paternity by filing record with BVS,
(b) vol named on birth cert. OR
(c) promised on record to support kid

Front 6

What are the inheritance rights of adopted children?

Back 6

i) Adopted child inherits from natural parents, but not vice versa
ii) Adopted child inherits from adopted parents, and vice versa
iii) adult adopted children don’t inherit from natural parents or vice versa
iv) Class gifts to “children” included adopted children

Front 7

What are the inheritance rights of step and foster children?

Back 7

Generally don’t inherit from parents
Exception is Adoption By Estoppel: If step/foster parents agree w/ natural parents to adopt kid but never do, they’re estopped from denying existence of valid adoption. Then kids inherit from parents but not vice versa

Front 8

Explain the Simultaneous Death Act

Back 8

Applies to intestate succession only.
Survivor must outlive T by 120 hours (5 days) to take.
If not, distribute 1/2 as if W survived H, and 1/2 as if H survived W.

Front 9

When is a lifetime gift considered an advancement?

Back 9

Only applies to intestacy.
No presumption of advancement unless either the decedent or the heir acknowledge the advancement in writing
Note: Executing will after signed agreement will cancel agreement (if will doesn’t acknowledge)

Front 10

When is a lifetime gift considered a satisfaction?

Back 10

(1) Will provides for satisfaction or
(2) Decedent or heir acknowledge the satisfaction in writing after will is made
(donee has to be named as a devisee in existing will before he can make written acknowledgement of satisfaction)

Front 11

Explain requirements of a valid disclaimer and effect.

Back 11

Must be written, signed & notorized.
File in court w/i 9 months of death
Irrevocable
Effect is that person is treated as predeceasing T

Front 12

Explain requirements of executing a valid will.

Back 12

1. Be 18, married, or armed services
2. need 2 credible witnesses 14 or older
3. signed by T
4. Witnesses must sign in T's presence

Front 13

Explain how to "prove" or will or "self-prove" a will

Back 13

To prove a will in probate, a witness must testify or if none living need 2 witnesses to testify to signature or handwriting.
To self-prove, can attach affidavit after will is executed- no need for witnesses later

Front 14

How does an interested witness keep from losing his inheritance?

Back 14

1. Have will proved by testimony of disinterested, attesting witness
2. Have testimony of the interested witness corroborated by a disinterested party
3. If disqualified, takes lessor of intestate share or legacy under will

Front 15

Explain requirements of a holographic will.

Back 15

1. Must be in T's handwriting & signed by him
2. No date & can sign anywhere
3. Extraneous printed words don't invalidate
4. Proved by testimony of 2 witnesses to handwriting

Front 16

Explain requirements of an oral will.

Back 16

1. Can't be made after Sept. 1, 2007
2. Only for personal property
3. Must be at home or in last sickness
4. If >$30, need 3 credible witnesses
5. Can't be probated after 6 months unless reduced to writing w/i 6 days

Front 17

Revocation by operation of law.

Back 17

Marriage has no effect.
Divorce revokes any provisions in favor of spouse and her family.
Birth/Adoption revokes only those parts that don't provide for kids

Front 18

Explain revocation by a physical act.

Back 18

Need intent to revoke and physical act
No partial revocation
Must be done in T's presence or ordered by T

Front 19

Explain burden of proof for revocation of a will

Back 19

1. Burden on will proponent but helped by presumption of continuity
2. But if last seen by T and can't find by reasonable search, or found mutilated, presumption is that T revoked.

Front 20

How do you revive a revoked will?

Back 20

1. Once 1st will is revoked, cannot be revived by revoking the 2nd will.
2. Must be reexecuted w/ full formalities
3. Republication by codicil accepted.

Front 21

Explain dependant relative revocation

Back 21

When the 2nd will is destroyed with the MISTAKEN BELIEF that the 1st will would be reinstated.
Has never been applied in TX

Front 22

What are requirements to prove a lost will?

Back 22

i) Need to establish due execution of the will
ii) establish cause of nonproduction; AND
iii) Contents must be substantially proved by testimony of credible witness (heard, read, or can identify a copy)

Front 23

Explain pretermitted child statute

Back 23

Children born/adopted after the execution of a will and not otherwise provided for (by nonprobate means)
ii) Share:
(1) T had no other C’s- takes share as if T died intestate & unmarried
(2) T had other C’s- takes an equal share as other C’s

Front 24

Explain incorporation by reference

Back 24

i) Writing is in existence at the time the will was executed
ii) Will must manifest an intent to incorporate the document
iii) Will must describe the writing sufficiently to permit its identification

Front 25

Who takes under the anti-lapse statute?

Back 25

descendant's of T's parents.
*Doesn't apply if it says, "To X, if he survives me"

Front 26

Explain the residuary rule

Back 26

If residue is left to two or more persons and one dies, the remaining beneficiaries take in their proportionate share

Front 27

Explain ademption

Back 27

1. Applies only to specific bequests
2. Where the gift is gone or destroyed, beneficiary takes nothing
Exception- specific devisee gets a general legacy equal to remaining amount of specific bequest (stocks)

Front 28

Do legatees get an increase in all stock shares/dividends?

Back 28

Only if it is a specific bequest. "my 100 shares" not "100 shares"

Front 29

Who is included in class gifts?

Back 29

Generally natural children by marriage and adopted children.
Class gifts give way to anti-lapse

Front 30

What is the Statute of Limitations for filing a will contest?

Back 30

1. 2 years from probate

Exceptions: 2 years from removal of incapacity if minor or 2 years from discovery if fraud

Front 31

Who has standing in will contest?

Back 31

Anyone whose share would increase if the will was invalid

Front 32

Explain requirements of the lack of testimentary capacity

Back 32

(1) T did not understand the nature of the act
(2) T did not know the nature and character of his property
(3) T did not know the objects of his bounty AND
(4) T did not understand the disposition he wished to make

Note: Capacity must relate to circumstances at time of execution
Mere old age or physical frailty, sickness, failing memory, etc. not sufficient for lack of capacity

Front 33

Explain the test for insane delusion

Back 33

(1) T’s belief in a state of supposed facts that do not exist; and
(2) No rational person would believe the supposed facts

Front 34

Explain the test for undue influence

Back 34

(1) Existence and exertion of influence
(2) Effect is to overpower the mind and will of testator
(3) Result is a will that would not have been executed but for the influence

Note: Circumstantial but not but good enough alone:
(1) Mere opportunity to influence
(2) Mere susceptibility to influence due to age or physical condition
(3) Mere fact of “unnatural” disposition that favors some family members over others

Front 35

Explain the test for fraud

Back 35

Someone knowingly makes false reps. w/ intent to deceive T, and T relies

Front 36

Are no-contest clauses valid?

Back 36

Clause will not be enforced against claimant as long as claimant had probable clause and brought in good faith

Front 37

What is an act of independent significance?

Back 37

1. When a will provides for an amount that will be determined in the future by acts that have a lifetime purpose and motive apart from will