Wills Flashcards
What are the requirements for a duly executed will?
1) . The testator must be 18 (or married or in the armed forces)
2) . He must sign it or have someone sign at his direction and in his presence
3) . Two attesting witnesses sign in his presence
4) . with testamentary intent.
Describe the witnesses requirement for an attested will.
They need not know he is signing a will
It must be a contemporaneous transaction with his signing
They need not sign in each others’ presence. In his presence means so long as his is conscious of where they are and what they are doing and could see them by slight physical exertion.
What is a residuary estate?
The estate that remains after administration expenses, debts, and specific requests have been made by the will
What is a probate administrator?
The decedent’s personal representative if appointed by a court
What is an executor?
The decedent’s personal representative if appointed by a will
What is a codicil?
An amendment or supplement to a will, required to be executed with will formalities. Executing a codicil is considered Republishing a will (even in context of divorce and pretermination)
How is a will proved in probate?
1) . It can be proved if one of the attesting witnesses testifies in open court or deposition/interrog. if outside the county
2) . If all witnesses are dead or unable to be located, then two people that can testify to T’s handwriting or either witness’s
3) . Self-proved
How can a will be self-proved?
1) . Sign the affidavit after signing the will. (if they sign the attestation clause but not the will, then the will is effective, but not self-proved)
2) . sign a will that includes an attestation clause reciting all the elements of due execution after T’s signature, but before witness’s signatures
What is the proper venue for probate proceedings?
Where the decedent resided OR if he had no domicile, then the county where his principal property is located or where he died.
When can a safe deposit box be examined?
By the decedent’s spouse, child over 18, or executor of a will in hte presence of a bank official.
Who has standing to sue a probate attorney for negligence?
Only the (probably deceased) client. But an executor that retains him can sue for excess estate taxes when appropriate.
Attesting witnesses as will beneficiaries?
A bequest to an attesting witness is void unless
1) . the will can be proved without that witness’s testimony
2) . the interested witness’s testimony is corroborated by a disinterested person, OR
3) . the interested witness would be an heir under intestacy, in which case he’ll take the lesser of the will’s bequest or intestate amount.
What is required for a holographic will?
It must be wholly in the testator’s handwriting and signed by him, with testamentary intent.
What state’s law controls probate?
The law of the state where the person died.
How do you prove the Testator’s handwriting for a holographic will?
2 person’s testify that it is his handwriting.
What is the surplusage rule?
extraneous printed words, not necessary to complete a will, can be disregarded.
What is testamentary intent?
Intent to take effect at death, not before.
What is a lapse?
When a gift is made to a person that predeceases the testator. Such a gift is void, and it passes into the residuary estate.
What is Texas’s anti-lapse statute?
Any gift to a descendent of the Testator’s parent (siblings, nieces, children, grandchildren) does not lapse, but passes to the devisee’s descendants that survive the testator by at least 120 hours. *Note that it does not pass the the devisee’s estate to do what he wants; it passes to devisee’s descendants by statute.
What are exceptions to the anti-lapse statute?
When the Testator uses survival language for the gift
What happens when a residuary estate is devised to 2 or more and it lapses to one or more?
That share gets divided among the rest of the residuary takers. There is residue of a residue.
What takes precedent- the anti-lapse statute or surviving residuaries rule?
The anti-lapse statute. So if B predeceases T, and T had devised his residuary estate to A & B, if B is T’s brother and has descendents, B’s dcendents take.
What is a class gift?
A gift to a class of persons
What is the rule of convenience?
It states that when any member of a class is entitled to a distribution of a gift, then the class closes. Therefore, class members born after T’s death don’t take.