• 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

1/53

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;

53 Cards in this Set

  • Front
  • Back
When is a holographic wills valid?
Valid as long as it is wholly in the testator's handwriting

(If any portion is not in the testator's handwriting, denied probate)
When are oral wills valid?
Valid if:

1. For personal property only

2. Made in person's last illness at his home

3. If over $30, you need three credible witnesses

4. (Must be reduced to writing within 6 days)
When does an oral will have to be probated?
Within six months after testator's death
When does the anti-lapse statute apply?
1. The predeceasing beneficiary is a descendant of the testator or a descendant of a testator's parent; AND

2. The predeceasing beneficiary leaves descendants that survive the testator by 120 hours
If a witness beneficiary proves up the will, how does he save his gift?
1. Get the second attesting witness to prove up the will;

2. Get two credible disinterested witness that were present at execution to corroborate the interested witness; or

3. Take as a statutory heir - interested witness would take the lesser of the amount under the will or his intestate share
How do you prove the will in probate?
1. One attesting witness testifies (or by deposition, interrogatory if he resides in another county)

2. Get two witnesses to testify to any signature on the will; or

3. Use a self proving affidavit
What happens if the only signature on the will is in the self-proving affidavit section?
The will is still valid and can be admitted to probate but the self-proving affidavit is not valid
What are the elements of a duly executed will?
1. Testamentary Intent
2. Majority (18 yrs old), Marriage, or Military
3. Signed by the testator (anywhere; it can be an X or a printed name)
4. Attested to by two witnesses
5. Witnesses signed in the testator's conscious presence (close enough that testator could see)
6. Must take effect at death
When the does a class for class gift close?
The class closes when any class member would have a right to receive a distribution

(the right to receive will occur at death of the testator plus 300 days for gestation)
How can a testator revoke a will?
1. By physical act (tearing up, burning, crumpling)

2. With a new will that largely contradicts the old one (revocation by implication) or it revokes a prior outright
How do you probate a lost will?
1. Content must be proved by someone that read the will

2. Must prove due execution

3. The reasons for non-production must defeat the presumption that the will was destroyed by testator
How can the testator revive a revoked will?
You cannot revoke a revived will in Texas
What is dependent relative revocation?
This may occur where the testator executed a new will (which revokes the prior one) but is admitted to probate because of some defect

The court may use the old will if it appears that the testator would have wanted to use the old one if something went wrong with the new one

In TX, the doctrine applies unless the dispositive terms of subsequent invalid will are different from earlier will
When the estate has creditor's claims against it, how do you decide who gets what?
Order of Abatement

1. Intestate Property
2. Residuary estate (personal then real)
3. General legacies (personal then real)
4. Specific bequests of personal property;
5 Specific devises of real property
How are the payment of death taxes divided among beneficiaries?
The beneficiary or heir must pay the a percentage of the taxes equal to, the value of their legacy divided by the total taxable estate value

(i.e, they pay their pro rate share of the taxable estate)
What is ademption?
Ademption occurs when a specific gift is not in the estate upon the testator's death
What is the effect of an ademption?
The devisee gets nothing because their gift is gone
I bequest "I give 1,000 shares of Google to S" adeemed if the shares are not in testator's possession upon his death?
No

This was a general bequest of the value of 1,000 shares of Google

S will get the value of the 1,000 shares
I bequest "I give my 1,000 shares of Google to S" adeemed if the shares are not in testator's possession upon his death?
Yes

Ademption applies because this is specific bequest of the testator's actual shares
If the beneficiary receives a home with a mortgage on it, it's true that he can have the mortgage paid by the residuary?
No

Texas abolished exoneration of liens doctrine

Today, a beneficiary receiving property subject to a lien does not have a right to lien being paid by the residuary estate
What is incorporation by reference?
When the will refers to something that was not present at will execution?
When is incorporation by reference valid?
If:

1. The intent to incorporate is shown on the will
2. The writing to be incorporated existed at the will's execution; and
3. The writing is clearly identified by the will
What happens if incorporation by reference fails?
The gifts falls into the residuary estate
How is a mistake in the will resolved?
The court will apply the plain meaning rule which says the court will give the plain meaning to the term or number at issue

No extrinsic evidence is allowed
How is a ambiguity in the will resolved?
The court will allow extrinsic evidence to determine what the testator was intending to do
What are nonprobate assets?
These are assets that pass outside the will upon the decedent's death
What are some examples of nonprobate assets
1. Life insurance proceeds
2. Death benefits
3. Appointment powers
4. Joint bank account w/ right of survivorship
5. Property held in joint tenancy w/ right of survivorship
6. Trust property
Is disinheritance language in a will enforced?
Yes

The property is distributed as though the "disinheritee" predeceased the testator
Explain the 120-Hour Rule
In order to take under a will or by intestacy, the beneficiary or heir must survive the testator by 120 hours (5 days)

(The will can remove the 120-hour rule with an "If he survives me" provision)
The will says "to Jack if he survives me." Jack lives one second longer than testator. Who takes the gift?
Jack takes.

The survival provision in the will makes the 120-hour rule inapplicable to this situation
What does an heir or beneficiary have to do to disclaim a gift?
They must have a disclaimer that is:

1. Signed, acknowledged and is in writing
2. File with 9 months of testator's death; and
3. File the disclaimer with probate court (w/ copy to personal representative)
What is the effect of a disclaimer?
We treat the disclaiming person as if they predeceased the testator
When does a testator make a valid advancement (lifetime gift)?
To make an advancement, there must be either a:

1. Contemporaneous writing by the donor; or
2. Written acknowledgment by the donee
What does a surviving spouse get when they not included in their spouse's will?
1. Retain their half of community property

2. Take the deceased spouse's share of community property if their were no kids or all the kids were from this marriage

3. Homestead ($15,000 if no homestead)

4. Allowance for support up to one year; and

5. Exempt personal property (or $5,000 if there is none)
What is the effect of a divorce on a will?
We read the will as if the ex-spouse predeceased the testator

(i.e. we cut the ex-spouse out and apply what's left)
What is a pretermitted child?
A pretermitted child is one that is born or adopted after the testator's will has been executed and the child is not provided for in the will
What can a pretermitted child get from the decedent parent?
1. If no other children - child gets the intestate share of all of decedent's property not bequeathed or devised to the other parent of the child

2. If there are other children alive at will execution, but they are not provided for either - same result as in number 1.

3. If other children provided for - child takes a proportionate share of class
Who has standing to contest a will?
The person must have an adversely affected interest in the outcome of the will as presented for probate
What is the burden of proof in a will contest?
The proponents of the will have the initial burden of proving that the testator had capacity

After the will is admitted (for a period of two years) the contestants have the burden to prove lack of capacity
When does a testator have the mental capacity to make a will?
At the time of will's execution, the testator must have:

1. Understood the act (i.e., writing a will);

2. Understood the gift he was making;

3. Know the natural objects of her bounty; and

4. Understand the nature and value of the property

(remember, even if a testator is adjudicated incompetent after the will's execution, he could have made the will during a "lucid interval")
When does undue influence occur?
Undue influence occurs where the testator is controlled by a dominant influence or power
What must the contestant prove to establish undue influence?
1. Existence of influence;

2. Exertion of influence

3. That overpowered will of testator; and

4. But for influence, the will or gift would not have been made
In what situations is there a presumption of undue influence?
Where the testator bequeaths a significant part of all of his property someone he had a confidential relationship with

Doctors, lawyers, psychologists
What is an in terrorem clause?
An in terrorm or no contest clause is one that says beneficiary that contests the will may forfeit his gift or receive a substantially smaller gift if he contests the will
Are in terrorem clauses valid in Texas?
Yes

In terrorem clauses will be upheld unless the will contest was brought in good faith and with probable cause (for the contest to exist)
Intestate distribution of separate property
1. No surviving spouse (SS) - property goes to children and their descendents

2. Surviving Spouse and no kids - SS gets everything

3. Surviving Spouse, leaving kids - SS gets 1/3 personal property (kids get 2/3); SS get 1/3 life in real property, remainder to kids
Intestate distribution of community property
1. No surviving kids or all kids are kids of the SS - decedent's 1/2 of CP passes to the SS

2. Kids from previous relationship - all children share decedent's 1/2 of CP - - SS retains his or her 1/2 of CP
How much to half-siblings take?
Half-siblings take 1/2 as much as whole

(Once you're adopted, you're considered whole)
How can an illegitimate child inherit from his father?
He has to establish paternity first
Are oral wills valid in Texas?
Yes if they are made:

1. For personal property only;

2. Made in the person's last illness at home (except when taken away to hospital and dies)

3. If over $30, need three witnesses

There's a six month limit on probate

Must be reduced to writing within 6 days
What are the elements of a holographic will?
Same elements as regular will, except no witness requirement

Is is valid as long as it is wholly in the testator's handwriting

It has to be signed, but not dated
How do you prove up a holographic will at probate?
Prove by two witnesses testifying to the testator's handwriting

("I, witness, recognize this as T's handwriting.")
What rights does the surviving spouse have with regard to the homestead?
SS is entitled to a life estate determinable.

The spouse is entitled to possess and occupy the homestead as long as he or she occupies it

When the occupancy ceases, the right ceases