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37 Cards in this Set

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  • Back
Intestate Succession for Community Property
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
Intestate Succession for Separate Personal Property
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
Intestate Succession for Separate Real Property
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
When can children born out of wedlock inherit from father?
1. Father executes sworn statement or
2. paternity presumed by TFC
When is paternity presumed by Texas Family Code?
(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
What are the inheritance rights of adopted children?
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
What are the inheritance rights of step and foster children?
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
Explain the Simultaneous Death Act
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.
When is a lifetime gift considered an advancement?
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)
When is a lifetime gift considered a satisfaction?
(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)
Explain requirements of a valid disclaimer and effect.
Must be written, signed & notorized.
File in court w/i 9 months of death
Effect is that person is treated as predeceasing T
Explain requirements of executing a valid will.
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
Explain how to "prove" or will or "self-prove" a will
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
How does an interested witness keep from losing his inheritance?
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
Explain requirements of a holographic will.
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
Explain requirements of an oral will.
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
Revocation by operation of law.
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
Explain revocation by a physical act.
Need intent to revoke and physical act
No partial revocation
Must be done in T's presence or ordered by T
Explain burden of proof for revocation of a will
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.
How do you revive a revoked will?
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.
Explain dependant relative revocation
When the 2nd will is destroyed with the MISTAKEN BELIEF that the 1st will would be reinstated.
Has never been applied in TX
What are requirements to prove a lost will?
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)
Explain pretermitted child statute
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
Explain incorporation by reference
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
Who takes under the anti-lapse statute?
descendant's of T's parents.
*Doesn't apply if it says, "To X, if he survives me"
Explain the residuary rule
If residue is left to two or more persons and one dies, the remaining beneficiaries take in their proportionate share
Explain ademption
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)
Do legatees get an increase in all stock shares/dividends?
Only if it is a specific bequest. "my 100 shares" not "100 shares"
Who is included in class gifts?
Generally natural children by marriage and adopted children.
Class gifts give way to anti-lapse
What is the Statute of Limitations for filing a will contest?
1. 2 years from probate

Exceptions: 2 years from removal of incapacity if minor or 2 years from discovery if fraud
Who has standing in will contest?
Anyone whose share would increase if the will was invalid
Explain requirements of the lack of testimentary capacity
(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
Explain the test for insane delusion
(1) T’s belief in a state of supposed facts that do not exist; and
(2) No rational person would believe the supposed facts
Explain the test for undue influence
(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
Explain the test for fraud
Someone knowingly makes false reps. w/ intent to deceive T, and T relies
Are no-contest clauses valid?
Clause will not be enforced against claimant as long as claimant had probable clause and brought in good faith
What is an act of independent significance?
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