Wills Flashcards
Duly Executed Will / Codicil
Testator must be 18 years old (or married/armed forces)
• Signed by T or at T’s discretion and in their presence
• 2 attesting witnesses over 14 years old
• Each witness must sign in testator’s conscious (aware of where they are and what they are doing) presence
Codicil (later amend or supplement to a will) must be executed w/same formalities as will
Must be intended to take effect at maker’s death. If operative during life then not a will
Proof of Wills in Probate
Self-proving affidavit serves the same function as a deposition or interrogatory to prove all elements of properly executed will were present
- 2-Step Will Execution Ceremony: T and witnesses sign will then sworn by notary T and witness sign the affidavit. If sign affidavit but not will, signatures on self-proving affidavit can be used (if necessary) to validate the will. But not self-proved.
- 1-step Will Execution Ceremony: Will’s attestation clause, prepared as a sworn statement
Venue for Probate of Will
County where decedent resided. If died in TX with no domicile or fixed residence in the state (1) county where principal property located, (2) county in which nearest kin located, (3) county where he died.
Attesting Witness if Beneficiary — Interested Witness Statute
Never affects validity of the will. But bequest to witness is void unless:
•Will can be proved without interested witness’ testimony
•OR the interested witness’ testimony is corroborated by the testimony of a disinterested and credible person (anyone present when will executed: lawyer, paralegal, bystander)
•OR interested witness would be an heir if will were not probated in which case interested witness takes whichever is least: lesser of legacy under the will or intestate share.
Holographic Wills
Handwritten, unwitnessed wills accepted as long as “wholly in the testator’s handwriting” and signed by the testator.
• Signature can be anywhere
• Need 2 people testifying to the handwriting; must be wholly in T’s handwriting—no typewritten words.
Surplusage Rule: extraneous printed words not necessary to complete the will or its meaning, can be disregarded
TX Anti-Lapse Statute
Applies only when the predeceasing beneficiary was a descendant (child, grandchild, bro, sis, nephew, niece) of T’s parent. Gift will not lapse if beneficiary of will predeceases testator. Descendible to decedent beneficiary’s heirs
Absent Anti-Lapse
Where the residuary estate is devised to 2+ persons, and the gift to 1 lapses, the remaining residuary beneficiaries take the residuary estate in proportion to their interests (absent contrary provision) unless dead at the time the will was made (then ignored from the will)
Class Gifts / Rule of Convenience / Void Gifts
A bequest to “children” does not include non-marital kids
If a member of the class predeceased T, the class members who survive T take. Read the will and determine takers of the class gift as of T’s death.
Rule of Convenience: Class is closed, meaning later born class members do not share in the gift, when some class member is entitled to a distribution. Done to determine min share of each class members.
Void Gifts: anti-lapse and surviving residuary beneficiaries rules apply. Exception: if class member was dead when the will was executed, anti-lapse does not apply in favor that class member’s descendants.
Interstate Succession: CP and SP if Survived by Spouse and Children
(1) decedent left no will, (2) will did not make a complete disposition of the estate, or (3) heir successfully contests will and denied probate
Survived by Spouse – Community Property(CP): salary and wages of either spouse, income from separate property (SP)
• If dies intestate and survived by descendants (at least one of whom s not also surviving spouse’s descendant—the ½ CP passes to descendants who take per capita w/representation. Surviving retains ½
Survived by Spouse – SP: property owned by either spouse before marriage; property acquired during marriage by gift, will, or inheritance
• SP passes by intestacy, 1/3 to surviving spouse and 2/3 to decedent’s descendants
Per Capita w/Representation
per capita at first level; by representation at next level. Go down to first generational level at which there are living takers and then divide amount allotted by representation amongst descendants
Not Survived by Spouse or Descendants / Disinheriting Parent / Half Bloods Inheritance / Unauthorized Commercial Use of Decedent’s Name or Likeness
If survived by both parents, ½ to each parent. If survived by 1 parent then ½ to them and the other ½ allotted based on per capita with representation.
o Parent cannot inherit if (1) abandoned and failed to support the child, (2) knowingly abandoned and failed to support child’s mother during pregnancy, or (3) was criminally responsible for death/serious injury of kid
o ½ bloods inherit ½ as much as whole bloods
No Limit on Degree of Relationship Needed to Take as Heir: ½ to maternal grandparents and kin, then paternal, and so on.
Unauthorized Commercial Use of Decedent’s Name or Likeness: ½ surviving spouse and ½ to descendants rule
Child Born out of Wedlock
1] presumption of paternity under the Family Code:
(a) child was born during marriage or
(b) parties married after child’s birth and man voluntarily asserted his paternity: (i) in a record with Bureau, or (ii) by consenting to be named father on birth certificate, (iii) by promising in a record to support the child, or
(c) during first two years of child’s life he resided with the child and represented to others child was his
Or [2] man signed sworn statement acknowledging paternity
Or [3] paternity was established in a paternity suit
Or [4] paternity is established in a probate proceeding by: C&C?
Adopted Kid Inheritance Rights
Adoption establishes parent-child relationship for ALL purposes of TX law. In decree terminating parent-child relationship inheritance rights expressly terminated (can inherit from adopted but not biological parent)
Posthumous Kids
No right of inheritance unless person was born before or was in gestation at the intestate’s death and survived for at least 120 hours. Person presumed to be in gestation if born within 300 days after the intestate’s death. Only if insemination occurred before testator’s death.
Death’s in Quick Succession
Must survive by more than 120 hours to take. If will requires survival, or covers simultaneous death or deaths in common disaster then 120-hour rules does not apply
120 hour rule applies to life insurance policies and joint and survivor banks accounts and also to property held in joint tenancy with rights of survivorship—treated like TIC: ½ passing as though one joint tenant survived; ½ passing as though other joint tenant survived. To trigger right of survivorship, 1 party must survive the other by 120 hours.
