Things I need to review/miss frequently

Question 1

Divorce Residential Qualifications

Answer 1

Either party must have been a domiciliary of Texas for the preceding six months and a resident of the county in which suit is filed for the preceding 90-day period. If this residency test is met with respect to one party, the court can grant a divorce even though it does not have personal jurisdiction over the other party.

Question 2

Protective Orders

Answer 2

After notice and a hearing, and upon a showing that family violence has occurred and is likely to reoccur, the court may issue a protective order prohibiting the respondent from: committing family violence, directly or indirectly communicating with a member of the family, going near the residence or place of employment of the other party; removing a child from the possession of the other party stalking the other party.

If the court finds a clear and present danger that a spouse will commit family violence again, a court may issue an ex party temporary protective order.

Question 3

Sole Managing Conservator

Answer 3

The best interests of the child is the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to the child.

Absent special circumstances, the court must appoint a parent as sole managing conservator unless (i) appointment of a parent would impair the child’s health or emotional development; (ii) one or both parents voluntarily relinquished possession and control of the child for one year or more, a portion of which period was within the 90 days preceding the commencement of the action to be appointed MC.

If the parties agree on who is to be the MC, court must appoint that person unless it finds that it would not be in the best interests of the child

A child age 12 or older may choose the person who is to have the exclusive right to designate the child’s primary residence, subject to judicial veto.

Unless there is a history of family violence, there is a rebuttable presumption that appointing the parents as JMCs is in the child’s best interest.

Question 4

Grandparents and SAPCR

Answer 4

A grandparent or other relative has standing to seek appointment as an MC if (i) both parents are deceased (ii) both parents, the surviving parent, or the MC consents, or (iii) the grandparent provides satisfactory proof that the child’s present circumstances would significantly impair the child’s health or emotional development.

Question 5

Modification of Order Establishing Conservatorship or Possession and Access

Answer 5

If the child has moved to a new county and has resided there for at least six months, upon motion by either party, transfers of the SAPCR to the new county is mandatory.

Grounds for modification: court can modify an order that provides for the appointment of a conservatorship if the modification would be in the best interests of the child and (1) the circumstances have materially and substantially changed since the date the order was entered; (2) the child is at least 12 years old and has expressed in chambers to the court the name of the person whom the child prefers to have the exclusive right to determine the child’s residence; or (3) the conservator who has the right to establish the child’s primary residence has voluntarily relinquished the primary care and possession of the child for at least six months.

The conviction or an order of deferred adjudication of a conservator for the offense of abuse of a child, or for an offense involving family violence, is a material and substantial change of circumstances that justifies the modification of an order.

Question 6

Enforcement of Custody Order

Answer 6

(1) Habeas Corpus, (2) Tort liability for interference with Child Custody, (3) criminal liability, (4) contempt.

Question 7

Grandparents and siblings may petition for reasonable possession or access

Answer 7

Under Texas, law, grandparents may have an independent cause of action to obtain and enforce their access rights under a SAPCR if at least one biological or adoptive parent’s rights have not been terminated and the parent who is a child of the grandparent (i) is dead, (ii) incapacitated, (iii) has been jailed for three months, or does not have actual court-ordered possession of or access to the child. The grandparent must also prove by a preponderance of the evidence either that the parent is unfit or that denial of possession or access by the grandparent would significantly impair the child’s physical condition or emotional well being.

Question 8

Enforcing Support Order

Answer 8

(1) Mandatory withholding from earnings for child support; (2) contempt; (3) suspension or nonrenewable of licenses and disqualification from state loans contracts; (4) money judgment for arrearages; (5) child support lien; can freeze assets if deliver notice of levy.

Question 9

Termination of Parent Child Relationship

Answer 9

Authorized if one of the grounds below is established, and termination is in the child’s best interest. Both of these elements must be proved by clear and convincing evidence.

(1) neglect
(2) abuse
(3) previous termination
(4) parental misconduct
(5) use of controlled substance in manner that endangers child
(6) failure to support for one year
(7) abandonment
(8) imprisonment for more than two years

Question 10

Adoption

Answer 10

A child may be adopted if the parent-child relationship as to each parent has been terminated or a suit for termination is joined with a suit for adoption

Step parent: A child may be adopted if the parent whose rights have not been terminated is the spouse of the petitioner

former step parent: A child may be adopted by a former stepparent if (1) the child is at least two years old, (2) the parent-child relationship has been terminated with respect to one parent, and (3) the former stepparent has been the child’s managing conservator or has had actual care, possession, and control of the child for at least six months (if the non terminated parent consents to the adoption) or at least one year (if the non terminated parent does not consent to the adoption.

Question 11

Ex Parte TRO for unreasonable acts

Answer 11

The court may issue a temporary restraining order ex party to prevent a variety of harassing actions. These harassing acts are of the sort that no reasonable person would think he would be allowed to commit

Question 12

Temporary Injunction After Notice and Hearing

Answer 12

After notice and a hearing, the court may issue a temporary injection (i) requiring a sworn inventory and appraisal showing the property and debts of the parties; (ii) requiring the support of either spouse; (iii) requiring the production of books and records; (iv) ordering the payment of attorney’s fees and future expenses; (v) appointing a receiver; (vi) and awarding one spouse exclusive occupancy of the residence and exclusive control of the parties usual business or occupation during the pendency of the case.w

Question 13

Community Property

Answer 13

Community property is all property that is not shown to be the separate property of one of the spouses. In Texas, the income from either spouse’s separate property belongs to the community. Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. The burden of proof is on the party contending that an asset is separate property; separate ownership must be established by clear and convincing evidence.

Question 14

Unconscionable premarital agreements

Answer 14

A premarital agreement, just as a marital agreement, is unenforceable against a party if it was not executed voluntarily of if it was unconscionable when made and (i) no fair disclosure was given of the property or obligations of the other party, (2) the right to disclosure was not waived in writing, and (3) the party had no adequate knowledge of the property or financial obligations of the other party.

Question 15

Conversion Agreements and Partition/Exchange Agreements

Answer 15

Conversion agreement: convert separate property into community property by written agreement. Must be made during the marriage with respect to existing property. Agreement must be in writing, signed by both spouses, and must specify the property being converted.

Partition Exchange Agreement: Convert community property into separate property. Partition must be based on a voluntary agreement by both spouses. Income from property will be treated as community unless the partition agreement specifies otherwise.

Question 16

Community Property: Tort Recovery for personal injuries.

Answer 16

pain and suffering: separate
loss of consortium: separate
disfigurement: separate 
lost wages: community property
medical expenses: community property

Question 17

Spousal Maintenance

Answer 17

The court may order maintenance for either spouse if the spouse seeking maintenance will lack sufficient property, including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs and

spouse convicted or deferred adjudication for criminal offense that constitutes an act of family violence, committed during the marriage within two years before date on which suit is filed or while suit is pending

(1) or spouse seeking maintenance is unable to earn sufficient income to provide for minimum reasonable needs because of an incapacitating physical or mental disability;
(2) has been married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for MRN
(3) is custodian of a child of the marriage who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for MRN.

The amount of spousal maintenance may not exceed the lesser of $5,000/month or 20% of the obligor spouse’s monthly gross income.

duration: 5 years if married less than 10 and eligibility is for family violence, and at least 10 years but not more than 20 years on other grounds
7 years for marriages between 20-30 years.
10 years if married for more than 30 years.

Question 18

Just and Right Division

Answer 18

Trial court must divide the community as it deems “just and right” Unequal division of community property can be made.

The presumption is that the trial court properly exercised its discretion. However, the record must reveal circumstances that justify an unequal division that was ordered. In finding that the trial court’s division was manifestly unjust, the court of appeals cannot reverse and order a different division, it must reverse and remand.

Question 19

Before appointing a guardian

Answer 19

Before appointing a guardian the court must find by clear and convincing evidence that alternatives to a guardianship and available supports and services were considered and determined not to be feasible.

Question 20

Guardianship Venue

Answer 20

Of Minor: may be brought in the county in which both parents reside, or if not in the same county, in the county of residence of the parent who is the child’s sole managing conservator or joint managing conservator with the greater period of physical possession.

Incapacitated Adult: in a proceeding for the appointment of a guardian for an incapacitated adult, venue lies in either the county of residence or the proposes ward or the county in which the principal estate of the ward is located.

Question 21

Guardian for Minor

Answer 21

One parent is entitled to be appointed guardian of the estate. If only one parent, the survivor is the natural guardian of the person of the minor children and is entitled to be appointed guardian of their estates.

If minor child is orphaned: Parent can make a written declaration appointing a guardian. Has to be in a will or meet the will requirements. Court will generally honor such requests. If last surviving parent did not produce such a document, child’s grandparent appointed in best interests of the child. If no living grandparents, nearest of kin is appointed. If no next of kin, court appoints a guardian. If 12 or older may generally choose the guardian.

Question 22

Guardian for persons other than a minor

Answer 22

The court appoints a guardian for an incapacitated adult according to the circumstances and considering the incapacitated person’s best interests. The probate court has broad discretion in the selection of a guardian. The ward’s spouse is entitled to be appointed in preference to any other person. If the ward is not married or if his spouse is disqualified, the nearest of kin to the ward is entitled to the guardianship. If has no relatives, the court will appoint a guardian. Court must make reasonable efforts to consider the incapacitated person’s preference.

Question 23

Persons disqualified to serve as guardians

Answer 23

1. Lacks capacity
2. Lacks experience to properly and prudently manage the estate or otherwise is an unsuitable choice
3. Has a conflict of interest.
4. Is a nonresident who has not named a resident agent
5. has been expressly disqualified.

Question 24

Proceeding for determination of incapacity

Answer 24

A court investigator investigates to determine whether a less restrictive alternative to full guardianship is appropriate. A physician’s report must describe the nature, degree, and severity of the incapacity. The proposed ward must be present, the court must find by clear and convincing evidence that the ward is incapacitated.

Before appointing a guardian the court must find by clear and convincing evidence that (i) the proposed ward is incapacitated; (ii) it is in the proposed ward’s best interests to have a guardian appointed; (iii) the rights of the proposes ward or his property will be protected by the appointment; and (iv) alternatives to the guardianship, as well as available support needs, were considered and determined not to be feasible.

Application for guardianship must present a written report from a physician based on an examination of the incapacitated person within the preceding 120 days which must (i) describe in detail the nature, degree, and estimated severity of the incapacity; (ii) state in what manner the proposed ward’s physical or mental health affects his ability to make reasonable decisions; (iii) state whether any current medication affects the demeanor of the proposed ward, and (iv) describe the precise physical and mental conditions underlying a diagnosis of senility.

Bond of property must be given and approved within 20 days after the letters of guardianship are granted

inventory must be filed within 30 days after the guardian qualifies

Question 25

Removing a guardian

Answer 25

Court may remove a guardian without notice or hearing if (i) she fails to take the oath of guardianship or post fiduciary bond within 20 days, or return an inventory within 30 days; (ii) she moves from Texas, is absent from the state for three months without the court's permission, or cannot be served with notices or other processes; or (iii) there is clear and convincing evidence that she has neglected or cruelly treats the ward, has neglected to educate or maintain the ward, or has removed assets from the estate or is about to do so. may remove after notice and hearing if there are sufficient grounds to believe that he has misapplied, embezzled, or removed assets from he state, or is about to do so; (ii) has been guilty of gross misconduct or mismanagement; (iii) fails to return any required accounting or report, or fails to obey an order of the court . . . Can file an application for a hearing to determine whether he should be reinstated as guardian, but only if he was removed without notice and a hearing and on the grounds that he either (i) mistreated the ward, or (ii) was guilty of misapplying or embezzling estate funds or removing assets from the estate. The court will reinstate the guardian only if it concludes that the applicant did not engage in the conduct that led to his removal.

Question 26

Elements of Negotiability

Answer 26

(1) Unconditional (2) promise or order to pay (3) a fixed amount of money (4) is payable to order or bearer (5) on demand or at a definite time (6) contains no unauthorized promise or undertaking

Question 27

HDC Analysis

Answer 27

(1) is the person a holder? (2) Does the person hold in due course? Due course requires the holder to take for value, in good faith, and without notice that the instrument is overdue, has been dishonored, contains an unauthorized signature or alteration, or is subject to any claim or defense. Good faith means honesty in fact and observance of reasonable commercial standards. ``` Real Defenses: Forgery Fraud in factum Alteration Adjudicated Incompetent Infancy Illegality Duress Discharge SOL Suretyship ```

Question 28

Commercial Paper SOL

Answer 28

Three years applies to actions (i) on unaccepted drafts (after date of dishonor) (ii) against issuers/acceptor's of cashier's checks, certified checks, etc. (iii) for conversion (iv) for breach of warranty and (v) to enforce other Article 3 rights. Six years applies to actions (i) on notes payable at a definite time or on demand and (ii) on certificates of deposit. SIX YEARS FROM THE DUE DATE.

Question 29

Liability of Parties

Answer 29

Before a holder can look to an endorser for payment, the holder must fulfill three prerequisites: (1) presentment, (2) dishonor, and (3) notice of dishonor. An endorser's liability on a check is discharged unless the check is presented for payment or given to a depository bank for collection within 30 days after the endorsement. Notice of dishonor must be given to an indorser within 30 days after dishonor.

Question 30

Transfer Warranties

Answer 30

Warranties are made by any person who transfers an instrument or customer or collecting bank that transfers an item for consideration. Transferor warrants that: (1) She is entitled to enforce the instrument (2) All signatures are genuine or authorized (3) The instrument or item has not been materially altered (4) No defense or claim of any party is good against her (5) She has no knowledge of any insolvency proceedings

Question 31

Duties of Drawee Bank to Customer

Answer 31

When a bank is the drawee, the bank may be liable to its customers for failure to honor the draft. The bank must honor a check as drawn. Therefore, it cannot charge the account (i) if there is no order by the depositor (where the drawer's signature is forged; (ii) for more money than the original order (where a third party altered the amount (iii) if the bank pays the wrong person (the forger if the payee's or indorsee's signature or (iv) if the item is postdated and the customer notifies the bank of the postdating.

Question 32

Effect of Unauthorized Signatures

Answer 32

Generally, an unauthorized signature is ineffective as the signature of the person whose name is signed but it is effective as the signature of the signer. The unauthorized signer therefore assumes all obligations to any party who gave value for the instrument. The Code specifies five circumstances in which a forgery or unauthorized signature will be validated because the person whose name is used has done something to preclude her from raising the issue (1) imposter or fictitious payee (2) Fraudulent Endorsements by employees (3) failure to exercise ordinary care (4) bank statement rule: A customer may not assert an alteration or forgery if his signature if he does not notify the bank within 1 year after the bank made the instrument available to him. A customer may not assert a forged indorsement more than 3 years after the cause of action accrues. (5) estoppel by certification

Question 33

Recovery for instruments mistakenly paid

Answer 33

Payment of an negotiable instrument is final, except that : (i) the payor can pursue those who breach presentment warranties; and (ii) the rule of finality operates only in favor of persons who took for value and in good faith and those who in good faith change their position in reliance on the payment or acceptance.

Question 34

Presentment warranties

Answer 34

A drawee can recover for breach of a presentment warranty, even from HDCs and persons who detrimentally relied on payment. On unaccepted drafts, persons obtaining payment warrant that (1) the warrantor is entitled to enforce the draft (in essence a warranty of good title) ( a forged endorser's signature destroys "good title," but a forged drawer's signature does not. (2) the draft is not altered (3) the warrantor has no knowledge that the drawer's signature is unauthorized

Question 35

Five Methods of Perfection

Answer 35

(1) filing (2) taking possession of the collateral (3) control (4) automatic perfection (5) temporary perfection.

Question 36

Requirements of financing statement

Answer 36

The financing statement must contain (i) the debtor's name and mailing address (ii) the secured party's name and mailing address (iii) an indication of the collateral covered by the financing statement and (iv) if the financing statement covers real property-related collateral, a description of the related real property, and the name of the record owner. Seriously misleading errors in the debtor's name such that it cannot be discovered using the debtor's correct name with the filing office's standard search logic will invalidate the financing statement. Name change: If the debtor's name changes, the financing statement is only effective against collateral acquired by the debtor before the name became insufficient and within four months after. For collateral acquired after the four month period, the secured party must refile using the debtor's correct name. Generally must file in the office of the secretary of state. Filing is valid for five years. A constitution statement may be filed, good for an additional five years. The continuation statement can be filed only within six months before the lapse of the filed statement.

Question 37

Automatic Perfection-PMSI in Consumer Goods

Answer 37

A PMSI in consumer goods is perfected as soon as it attaches; neither filing nor possession by the creditor is necessary.

Question 38

PMSI in Inventory Special Rule

Answer 38

A PMSI in inventory collateral has priority over a conflicting security interest in the same inventory or proceeds of the inventory that are chattel paper, instruments, or cash if: (i) it is perfected at the time the debtor gets possession of the inventory (filing must take place before the inventory is delivered to the debtor); and (ii) any secured party who has perfected his security interests in the same inventory receives a written notification of the PMSI before the debtor receives possession of the inventory and the notification states that the purchase money party has or expects to take a PMSI in the inventory of the debtor described by kind or type.

Question 39

Right to take possession and sell the collateral

Answer 39

The secured party can take possession of the collateral (even without judicial process, if this can be done without breach of the peace), sell it by public or private sale, and then sue to collect the deficiency. All aspects of the sale must be commercially reasonable. The debtor, any sureties on the debt, and, in non consumer goods cases, other secured parties generally are entitled to notice. The notice must be sent within a reasonable time before the sale, and it must contain details about the parties, the collateral, the time and method of the sale. In assessing the reasonableness of a sale, should discuss factors such as (1) the sufficiency of the advertising; (2) if the collateral had a limited market, whether people in the market were contacted; (3) whether the collateral needed cleaning or repair.

Question 40

DTPA-Professional Services Exception

Answer 40

The DTPA does not apply to a claim for damages based on the rendering of professional service, the essence of which is the providing of advice, judgment, opinion, or similar professional skill. Exceptions to the exemption: The professional services exemption does not apply to: (i) an express misrepresentation of a material fact that cannot be characterized as advice, judgment, or opinion; (ii) failure to disclose information concerning goods or services, with the intent to induce the consumer into a transaction; (iii) an unconscionable action that cannot be characterized as advice, judgment, or opinion; or (iv) breach of an express warranty that cannot be characterized as advice, judgment, or opinion.

Question 41

Claims under the DTPA

Answer 41

The defendant's wrongful conduct must be committed "in connection with" the consumer's transaction Four claims under the Act: (i) the use or employment of a false, misleading, or deceptive act or practice that is specifically enumeration in section 17.46(b) of the DTPA (known as the laundry list") and is relied on by a consumer to her detriment. (ii) breach of an express or implied warranty; (iii) any unconscionable action; (act or practice that takes advantage of the consumer's lack of knowledge, ability, experience, or capacity to a grossly unfair degree and to the consumer's detriment.) (iv) the use of any practice that violates a chapter of the Insurance Code dealing with unfair methods of competition and unfair or deceptive acts. A consumer must give the defendant at least 60 days' written notice before filing suit. Notice must give reasonable detail of the complaint and the amount of damages. 2 years after date of wrongful act or practice, or within 2 years after the consumer discovered , or in the exercise of reasonable diligence should have discovered the act or practice. A consumer must show that the defendant's conduct was a "producing cause" of economic damages or damages for mental anguish. A producing cause must be a substantial factor in bringing about the injury. Producing cause may be negated if the consumer purchases "as is" and the agreement is bargained for at arm's length and freely, knowingly, and intelligently negotiated.

Question 42

Main Laundry List Provisions

Answer 42

General misrepresentations: The defendant must make a statement of fact regarding goods or services that is inaccurate or false Misrepresentation regarding legal rights: violated if the seller of goods or services misrepresents the nature of the agreement or the rights and remedies available. Failure to disclose: (i) knowledge by the defendant of information regarding goods or services; (ii) nondisclosure of this information; (iii) an intent to induce the consumer to enter into the transaction; and (iv) causation.

Question 43

DTPA Damages

Answer 43

If the trier of fact finds that the defendant acted knowingly, the consumer may also recover damages for mental anguish. "Knowingly" means actual awareness that what the defendant is doing is false, deceptive, misleading, unfair, or a breach of warranty. The consumer must prove a relatively high degree of mental pain and distress. Additional punitive damages are awarded when the defendant has acted "knowingly" or "intentionally." For "knowing conduct, the consumer may be awarded up to three times the economic damages. For "intentional" conduct, the award may be up to three times both economic damages and damages for mental anguish. "intentionally" requires not just actual awareness but also a specific intent to cause detrimental reliance on, or detrimental ignorance of, the defendant's conduct. The DTPA also provides for equitable remedies, such as injunctions, rescission, restitution, and "any other relief which the court deems proper." Attorney's fees are awarded to the prevailing customer, even if her entire recovery is offset by a claim of the defendant. If the consumer brings a claim under a tie-in statute, she may recover any actual damages incurred.

Question 44

When independent administration laws do not apply

Answer 44

Rules governing dependent administration will apply only when the decedent did not leave a will naming an independent executor, and either (i) the distributes cannot agree that there should be an independent administration, or (ii) the probate judge finds that such administration would not be in the best interest of the estate.

Question 45

Remedies against wrongdoing by the independent executor

Answer 45

A court may remove an independent executor who: (i) fails to return an inventory and list of claims within 90 days after qualification; (ii) has misapplied or embezzled estate property; (iii) fails to make a required accounting; (iv) fails to give notice to charitable beneficiaries within 90 days after the will is admitted to probate; (v) is guilty of gross misconduct or gross mismanagement; (vi) becomes incapacitated or is sentenced to a penitentiary, or (vii) becomes incapable of performing his duties to a material conflict of interest.

Question 46

Other Procedures for Simplified Administration

Answer 46

Administration is necessary if (i) there are two or more debts against the estate; (ii) a judicial partition is desired; (iii) funds or other property due the estate must be recovered; or (iv) it is necessary to prevent real property in the estate from becoming a danger to the public.

Question 47

Probate of Will as Muniment of Title

Answer 47

1. Court must find that there are no unpaid debts owned by the estate other than the mortgage on the homestead. 2. An order admitting a will to probate as a muniment of title establishes the ownership rights of the beneficiaries named in the will, and they may treat the property as their own. 3. Affidavit must be filed within 180 days after the order admitting the will to probate as a muniment of title, certifying the terms of the will that have been fulfilled and the terms yet to be carried out.

Question 48

Statutory Heirship Proceeding

Answer 48

A statutory heirship proceeding establishes, by court order, that the person is dead, that he left no will, and that he was survived by the named persons as heir. It also fixes the amount of their intestate shares. Bona finds purchasers who deal with the legatees under the will probated as a muniment of title or persons named as heirs in the statutory heirship proceeding are completely protected.

Question 49

Administration of Small Estates

Answer 49

1. Value of estate does not exceed $75,000: Heirs of an intestate estate are entitled to distribution without the need for appointment of a personal representative or any kind of administration where the value of the intestate estate, not including homestead and exempt personal property, does not exceed $75,000. 2. If a homestead is the only real property in the decedent's estate, title to it may be transferred under a small estate administration affidavit. The affidavit must be recovered, and purchasers who rely on it are protected against an heir who was not disclosed in the affidavit. 3. If the v value of the estate, excluding homestead and exempt personalty, does not exceed the amount to which the surviving spouse or minor children are entitled as a family allowance, application can be made for the setting aside of a family allowance and an order that no administration is necessary.

Question 50

Dependent Administration: Steps in the Process

Answer 50

A dependent administration involves four steps at every stage in the process: petition, notice to interested parties, hearing, and subsequent judicial confirmation.

Question 51

Dependent Administration--Unsecured Creditors

Answer 51

1. Within one month after appointment, the personal rep must give notice to unsecured creditors by publication in a newspaper in the county. The notice must contain the representative's name, the address to which to send claims, and the date letters were issued. 2. To expedite the administration, may, but is not required to give notice by certified or register mail, return receipt requested, to an unsecured creditor having a claim for money against the decedent. The notice must expressly state that if the claim is not presented within 120 days after the date of receipt of the notice, the claim will be barred. 3. The personal representative must allow or reject the claim within 30 days after receipt. Failure to act within 30 days constitutes rejection. If the claim is rejected, the claimant must file suit within 90 days after such rejection; otherwise, the claim is barred.

Question 52

Dependent Administration--Secured Claims

Answer 52

Within two months after appointment, the personal representative must give notice by certified registered mail, return receipt requested, to all secured creditors who are known to the personal representative. A secured creditor can elect to present its claim for payment as a matured secured claim (i) within six months after appointment of the personal representative, or (ii) within 4 months after personal notice is received, whichever period is later. Alternatively, the secured creditor can elect to present its claim as a "preferred debt and lien. If this election is made, the debt is paid according to the terms of the note secured by the lien. If the note is not paid according to its terms by the decedent's successors, the credit must foreclose the mortgage or other lien in satisfaction of the debt. Is not entitled to a deficiency judgment.

Question 53

Appointment of Personal Representative

Answer 53

Statutory priority as to who is to be appointed personal representative is (i) the executor named in the will, (ii) the surviving spouse, (iii) the principal beneficiary named in the will, (iv) any other beneficiary named in the will, (v) the next of kin in nearest order of descent, (vi) a creditor of the decedent, or (vii) any other person of good character. Persons disqualified: minors, incapacitated persons, convicted felons, nonresident banks, or any other person the court finds unsuitable. A nonresident of Texas can serve as administrator but must appoint a resident agent for service of process.

Question 54

Administration Specifics: Notice and Inventory

Answer 54

Notice: Within 60 days after the will is admitted to probate, the executor must give notice, including a copy of the will or summary of the gifts made to the beneficiary, all beneficiaries name in the will. The executor must file an affidavit or certificate stating that all required notices have been given within 90 days after the will's admission to probate. Inventory: After qualification, the personal representative collects all estate assets so that they may be properly managed. The personal representative must file an inventory with the probate court within 90 days of qualifying unless the court grants an extension. She may also be required to file an "appraisement" of the estate assets.

Question 55

Valid Debts Against Homestead

Answer 55

(1) purchase money liens; (2) taxes on the homestead property; (3) mechanic's and material man's liens incurred in connection with improvements on the homestead, provided that the contract is signed by both spouses and is recorded; (4) federal tax liens; (5) a loan to pay off a federal tax lien or to divide a homestead on divorce; or (6) a home equity loans.

Question 56

Probate Homestead

Answer 56

If the decedent was survived by a spouse or minor children, the spouse is entitled to occupy the homestead as long as she chooses to occupy it. A minor child may occupy it until age 18.

Question 57

Family Allowance

Answer 57

The surviving spouse, minor children, and adult incapacitated children supported by the decedent are entitled to an allowance sufficient for their support and maintenance for one year. The surviving spouses separate property (but not community property, nonprobabte assets, or the spouse's salary) is taken into account in determining the entitlement to and amount of the allowance.

Question 58

Three forms of estate administration

Answer 58

The three forms of estate administration are (1) dependent (court supervised) administration, independent administration, and (iii) probate of John's will as a muniment of title. Small estate administration is not available unless died intestate.

Question 59

Trust Requirements

Answer 59

There must be: (1) A settlor; (2) who delivers; (3) trust property; (4) to the trustee; (5) with the intent to create a trust; (6) for the benefit of beneficiaries

Question 60

Trust Statute of Frauds

Answer 60

Generally, all trust must be evidenced by a writing by the settlor. However, an oral trust of personal property is valid if it names someone other than the settlor or a beneficiary as trustee, provided that, simultaneously with or prior to the transfer, the transferor expresses the intention to create a trust.

Question 61

Court created management trusts for minor or incapacitated person

Answer 61

Where large amounts of money are involved (making a guardianship administration in probate court inappropriate), a trust with a corporate trustee can be established. This type of trust is used primarily when: (1) a guardianship for a minor involves a large estate that, absent a trust, will be turned over to the ward at age 18; and (ii) a guardianship for an incapacitated person involves such a large sum that a corporate fiduciary's investment experience is warranted.

Question 62

Spendthrift Clauses

Answer 62

A spendthrift clause is one in which the beneficiary cannot voluntarily or involuntarily transfer his interest in the trust. There is an exception to spendthrift protection where the settlor designates himself as a beneficiary or if the trust is revocable by the settlor. However, spendthrift protection is not lost if a beneficiary has (i) an invasion power limited by an ascertainable standard relating to the beneficiaries health, education, maintenance, or support; or (ii) an inter vivid or testamentary power of appointment. Also, spendthrift trusts are reachable by creditors who furnish necessaries and by claimants of child support, and are subject to federal tax liens.

Question 63

Pure Discretion Trusts

Answer 63

A beneficiary of a pure discretion trust does not have any right to income or principal unless the trustee, in his discretion, chooses to make a distribution. As such, it is not reachable by the beneficiaries creditors. However, if the discretionary trust is in favor of the settlor, a creditor can reach the settlor's interest to the maximum extent that the trusts could make discretionary distributions for the settlor's benefit.

Question 64

Trusts--Self Dealing

Answer 64

Absent a contrary trust provision or court approval, a trustee cannot enter into any transaction in which she is dealing with the trust in an individual capacity. A trustee owes a duty of undivided loyalty to the trust and its beneficiaries. 1. cannot buy property from, or sell property to, the trust. 2. Cannot borrow trust funds, no matter how fair the interest rate and no matter how well secured the loan. 3. Cannot use trust assets to secure a personal loan. 4. Cannot gain any personal advantage from his position other than compensation for serving. The trustee is accountable for any profit arising out of administration of the trust, even if the profit was not the result of a breach of trust. The above self-dealing rules also apply to sales or loans to a trustee's relatives or business associates, and to a corporation of which the trustee is a director, officer, or principal shareholder.

Question 65

Trustee's liability to beneficiary

Answer 65

To remedy a breach of trust that has occurred or might occur, the court may (i) compel the trustee to perform her duties; (ii) enjoin the trustee from committing a breach of trust, (iii) compel the trustee to redress a breach of trust; (iv) order the trustee to account (v) appoint a receiver; (vi) remove or suspend the trust; (vii) reduce or deny compensation to the trustee; (viii) void the trustee's act, impose a line or constructive trust, or trace and recover trust property; (ix) or order any other appropriate relief. 4 year statute of limitations does not begin to run until (i) the trustee repudiates the trust, (ii) the trustee gives an accounting that fully discloses the conduct giving rise to the cause of action; or (iii) the trust relationship comes to an end.

Question 66

Standing to bring an action concerning a charitable trust

Answer 66

As a general rule, only the attorney general, charged with a statutory duty to represent the public and all potential beneficiaries of a charitable trust, has standing, The Texas courts have carved out an exception for the settlor of the trust, who has a special interest in the trust not shared by the general public.

Question 67

Trustee of charitable trust's power to name a new beneficiary

Answer 67

A trustee may name a new charitable beneficiary upon giving notice to the attorney general, but only when the replacement charitable beneficiary has the same or a similar charitable purpose as the failed beneficiary. Where the funds are to be diverted to a different charitable purpose, a judicial cy presented proceeding but be brought, in which the court may reform the trust to diver the funds to a charitable purpose as near as possible to the original purpose.

Question 68

Charitable Trusts--Required Notice

Answer 68

In any proceeding involving a charitable trust, a certified copy of the petition initiating the proceeding must be sent to the attorney general by registered or certified mail, enabling the attorney general to decide whether to participate in the proceeding. If such notice is not given, any judgment or settlement in the proceeding is voidable by the attorney general.

Question 69

Wills: Advancement of Intestate Share | Satisfaction of Legacies

Answer 69

In Texas, a lifetime gift or non testamentary transfer is considered an advancement against an heir's intestate share only if the intention to have it so treated is declared in a contemporaneous writing by the donor or acknowledged in writing by the donee-heir. A lifetime gift to a beneficiary named in an earlier will is not treated as being in total or partial satisfaction of the bequest unless: (1) the intention to have it so treated is declared in a contemporaneous writing signed by the donor or in a writing signed by the donee-legatee, or (ii) the will provides that legacies were to be reduced by such lifetime gifts.

Question 70

Formal Will Requirements

Answer 70

1. Must be 18 (or married or currently in the armed forces) to make a will.

Question 71

Attested will requirements

Answer 71

Three formal requirements for an attested will: (i) it must be singed by the testator (or by another person a the testator's direction and in her presence); (ii) there must be two witnesses (above age 14 who are credible); and (iii) the witnesses who subscribed their names to the will must do so in the presence of the testator. Proof of Wills in Probate: All that is required is the testimony of one attesting witness. If none of the witnesses is living, the will may be proved by the testimony or deposition of two witnesses (or one if after a diligent search only one can be found) to the handwriting of any one of the signatories to the will: the testator or either of the attesting witnesses. Self-Proved wills: A self-proved will is admitted to probate on the basis of an affidavit; there is no need to call attesting witnesses as further proof of its execution with the required formalities.

Question 72

Interested Witnesses Wills

Answer 72

Only consequence is that the bequest to the witness-benificiary may be void. The legacy is not purged if: (i) the will can be "otherwise established"; (2) the testimony of the interested witness is corroborated by a disinterested person; or (3) the witness-beneficiary would be an heir if the testator had died without a will.

Question 73

Holographic Wills

Answer 73

Texas recognizes handwritten and unwitnessed wills. A holographic will must be in the testator's handwriting and signed by him; the signature can appear anywhere. The will need not be dated and it can be written on anything. A holographic will may be proved in probate by the testimony of two witnesses to the testator's handwriting, taken in open court or deposition. Holographic wills can be self-proved by the testator making an affidavit before a notary.

Question 74

Nonprobate assets that cannot be disposed of by will

Answer 74

There are four categories of non probate assets: (i) property passing by contract; (ii) property passing by right of survivorship; (iii) property held in trust; and (iv_ pay or transfer on death arrangements.

Question 75

Revocation by physical act

Answer 75

Revocation by physical act requires a physical act and intent to revoke. In Texas, any physical act done to the will with the requisite intent to revoke the will constitutes a valid revocation. No partial revocation of attested wills by physical act is permitted in Texas.

Question 76

Wills-Burden of Proof and presumptions as to revocation

Answer 76

The burden of proof is on the will proponents. The proponent is aided by a "presumption" of continuity" that the will has had a continuous legal existence. But if there is any evidence that the testator may have revoked the will, the burden of proof is placed on the will proponent. A will last seen in the testator's possession and control, not found after a diligent search, is presumed to have been revoked by physical act. To rebut the presumption, the lack of revocation must be shown by a preponderance of the evidence. If the will is last seen in the testator's possession and control and is found in a mutilated condition after the testator's death, it is presumed that the testator did the mutilating, the testator revoked the will by physical act.

Question 77

Proof of lost wills in probate

Answer 77

Texas has a statute authorizing probate of a lost will. To probate a lost will: (i) due execution of the will must be established (must be proved by the testimony of at least one attesting witness); (ii) the cause of non production must be established (the will proponent must somehow overcome the presumption that the reason the will cannot be found is that the testator destroyed it with the intent to revoke; and (iii) the contents must be substantially proved by the testimony of a credible witness who has read the will, heard it read, or can identify a copy of the will.

Question 78

Incorporation by reference

Answer 78

This doctrine permits incorporation into the will of documents not present at the time the will was executed provided that : (i) the extrinsic writing was in existence at the time the will was executed; and (ii) the extrinsic writing is clearly identifiable from the language in the will.

Question 79

Procedural Rules Governing Will Contests

Answer 79

1. Contest Must be filed within two years after the will is admitted to probate. 2. Only interest parties can contest a will

Question 80

Grounds for contesting a will

Answer 80

1. Lack of testamentary capacity: (i) understand the nature of the act he was doing; (ii) know the nature and character of his property; (iii) know the objects of his bounty, and (iv) understand the disposition he was making. 2. undue influence: To establish undue influence, the contestant must prove the existence and exertion of an influence that overpowers the mind and will of the testator and results in a will that would not have been executed "but for" the influence. 3. fraud 4. mistake

Question 81

Unpaid and Watered Stock

Answer 81

Shares may be issued in exchange for any benefit (tangible or intangible) to the corporation, including cash, promissory notes, etc., but shares may not be issued until the full consideration has been received. Where par value stock is issued, the corporation must receive at least par value for each share. Issuance of par value shares for less than part is watered stock and can result in personal liability.

Question 82

Notice if Shareholder Meetings

Answer 82

Notice of the shareholder's meeting must be given to each shareholder of record entitled to vote. Notice must be sent not less than 10 days (if merger or share exchange is to be voted on, minimum is 21 days, or more than 60 days prior to the meeting. Notice must be given personally, by mail, or, with the shareholder's consent, by electronic transmission.

Question 83

Proxies

Answer 83

Proxies are irrevocable unless the appointment form conspicuously state that the proxy is irrevocable and the proxy is coupled with an interest.

Question 84

Cumulative voting date

Answer 84

Shareholders of a corporation incorporated on or after Sept. 1, 2003 have the right to cumulate their votes only if expressly permitted by the certificate of formation.

Question 85

Inspection of Books and Records

Answer 85

Any shareholder who has been a holder of record for at least six months or who owns at least 5% of outstanding shares of a corporation has a right to examine in person or by agent at any reasonable time upon written demand for any proper purpose the corporation books, records, accounts, and minutes and records of shareholder meetings.

Question 86

Preemptive Rights

Answer 86

In Texas, shareholders of a corporation incorporated on or after Sept. 1, 2003, do not have preemptive rights unless they are provided by the certificate of formation or by agreement. There are no preemptive rights in stocked used for services or property. Nor for shares sold to director, officers, employees, or agents,. for compensation. Nor for shares issued within 6 months of formation.

Question 87

Shareholder derivative suits

Answer 87

Conditions: (1) standing: shareholder must have been a shareholder of the corporation at the time of the act or omission complained of or must have become a shareholder by operation of law. (2) demand: a written demand that the corporation sue in its own right must be filed with the corporation, setting forth with particularity the subject matter of the claim. A shareholder may not file a derivative suit until 90 days after the demand has been made, unless the corporation rejects the demand sooner or the delay would cause irreparable injury. A derivative suit may not be discontinued or settled with the approval of the court.

Question 88

Board's actual authority to act

Answer 88

A director does not have the power to act unless (1) given proper notice for a director's meeting, (2) a quorum was present, and (3) a majority of the directors approved the action.

Question 89

Dissenting Shareholder's appraisal remedy

Answer 89

Shareholders who are dissatisfied with the (1) terms of a merger or share exchange, or (ii) the sale of all or substantially all assets, are permitted to compel the corporation to by their shares. 1. Corporation notifies shareholders 2. Shareholder makes demand and tenders shares

Question 90

Requirements for Deed in Texas

Answer 90

(1) in writing (2) signed by the grantor (3) designate a grantee (4) contain words of grant (5) contain an adequate legal description (6) be delivered and accepted by the grantee.

Question 91

Criminal P&E--Community Supervision Requirement

Answer 91

To allow the jury to recommend community supervision, I should file a sworn motion for community supervision stating that the defendant has never been convicted of a felony in Texas or elsewhere. This should be filed before trial.

Question 92

Criminal P&E--Number of Preemptory Challenges in non-capital felony cases

Answer 92

10 challenges.

Question 93

Criminal P&E--Juror becomes ill

Answer 93

The court need not grant a mistrial If in a felony case a juror becomes disabled after trial begins but before the instructions are read to the jury, the remainder of the jurors can reach a valid verdict. All of the jurors, however, must sign the verdict.

Question 94

Criminal P&E--Right to question expert witness

Answer 94

In a criminal case, a party against whom expert testimony is offered has a right on request to conduct void dire of the witness on underlying facts and date.

Question 95

Criminal P&E--Judge must follow jury's community supervision recommendation

Answer 95

If the jury recommends suspension of a sentence and placement of the defendant on community supervision and the defendant is eligible for community supervision, the judge must suspend the sentence and place the defendant on community supervision. Here, the punishment assessed does not exceed 10 years, so Lenny is eligible for community supervision and the court may not ignore the jury's recommendation.

Question 96

Civil P&E--Withdrawing deemed admissions.

Answer 96

Motion to Withdrawal the deemed admission. Trial court can grant the motion if establishes good cause for the withdrawal and opposing party will not be unduly prejudiced by the withdrawal.