Wills Flashcards
1
Q
What are the requirements for a duly executed will?
A
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.
2
Q
Describe the witnesses requirement for an attested will.
A
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.
3
Q
What is a residuary estate?
A
The estate that remains after administration expenses, debts, and specific requests have been made by the will
4
Q
What is a probate administrator?
A
The decedent’s personal representative if appointed by a court
5
Q
What is an executor?
A
The decedent’s personal representative if appointed by a will
6
Q
What is a codicil?
A
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)
7
Q
How is a will proved in probate?
A
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
8
Q
How can a will be self-proved?
A
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
9
Q
What is the proper venue for probate proceedings?
A
Where the decedent resided OR if he had no domicile, then the county where his principal property is located or where he died.
10
Q
When can a safe deposit box be examined?
A
By the decedent’s spouse, child over 18, or executor of a will in hte presence of a bank official.
11
Q
Who has standing to sue a probate attorney for negligence?
A
Only the (probably deceased) client. But an executor that retains him can sue for excess estate taxes when appropriate.
12
Q
Attesting witnesses as will beneficiaries?
A
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.
13
Q
What is required for a holographic will?
A
It must be wholly in the testator’s handwriting and signed by him, with testamentary intent.
14
Q
What state’s law controls probate?
A
The law of the state where the person died.
15
Q
How do you prove the Testator’s handwriting for a holographic will?
A
2 person’s testify that it is his handwriting.
16
Q
What is the surplusage rule?
A
extraneous printed words, not necessary to complete a will, can be disregarded.
17
Q
What is testamentary intent?
A
Intent to take effect at death, not before.
18
Q
What is a lapse?
A
When a gift is made to a person that predeceases the testator. Such a gift is void, and it passes into the residuary estate.
19
Q
What is Texas’s anti-lapse statute?
A
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.
20
Q
What are exceptions to the anti-lapse statute?
A
When the Testator uses survival language for the gift
21
Q
What happens when a residuary estate is devised to 2 or more and it lapses to one or more?
A
That share gets divided among the rest of the residuary takers. There is residue of a residue.
22
Q
What takes precedent- the anti-lapse statute or surviving residuaries rule?
A
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.
23
Q
What is a class gift?
A
A gift to a class of persons
24
Q
What is the rule of convenience?
A
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.
25
What happens when a member of a class predeceases the Testator?
Then the other members of the class take that share, not to the residuary estate, as would a specific bequest. This is subject to anti-lapse though, so if T bequests "to my brothers," and one dies, that brother's decendents take his share.
26
What is the gestation principle?
Family code presumption that children born within 300 days of T's death are presumed his.
27
What is per stripes?
By the roots, so divide the decedent's estate into as many shares as there are living children or children with living children. Old English version.
28
What is per capita?
start at the level with the first living descendant, then divide equally at each descending level. UPC version
29
What is per capita with representation?
divide the estate at the first level where there are living children or children with living children.
30
What is representation?
children stepping into the shoes of a deceased parent to take .
31
What is a void gift?
When a beneficiary in a will is dead at the time of the will's execution. It is void (same effect as a lapse), and has all the same exceptions as lapse, like anti-lapse and residuary beneficiary rules. BUT is a class member was dead at the time the will was executed, then the anti-lapse statute doesn't apply and the gift goes to the other class members.
32
What happens when a person dies intestate with a spouse?
1) . Community property goes all the spouse if there were no kids or all his kids were also the spouses kids. If he had kids not the spouse's then 1/2 to spouse, 1/2 to kids.
2) . separate personal property goes 1/3 to spouse, 2/3 to kids, regardless of which marriage. All to spouse if no kids
3) . separate real property goes 1/3 life estate to spouse and remainder and 2/3 to kids. If no kids then 1/2 FS to spouse and 1/2 FS to parents
33
What is a surviving spouse's homestead right?
The sole right to exclusive occupancy of the homestead for as long as she occupies it.
34
What is a family allowance?
The amount necessary to support the family for one year that comes off the top before other distributions are made.
35
What happens when a person dies without a spouse intestate?
1/2 of everything to each parent/grandparent, then down to siblings
36
How do 1/2 bloods take intestacy?
half as much as full-blodd siblings. Put a 2 under each full and a 1 under each 1/2. Total that to get the denominator, then put a one in all the half-bloods' numerators and a 2 in the fulls' numerators.
37
What is a laughing heirs statute?
A limit on the degree of relationship required to take, but we don't have one in Texas
38
When is there a presumption of paternity?
1) . When the child was born within 300 days of marriage
2) . parties married after child's birth and the man voluntarily asserts paterntity in a record with Bereau of vital Stats, consenting to be named father on birth vert., or resides with child during the first 2 years of the child's life and represented to others it's his child.
3) . sworn statement acknowledging paternity
4) . paternity suit
5) . paternity established in probate proceeding by clear and convinving evidence.
39
What must a court show to have genetic testing of a decedent?
Good cause
40
Children's inheritance and natural parents?
Children inherit from adopted parents and natural parents, unless parent-child relationship is severed AND inheritance rights are expressly terminated.
parents inherit from children unless parent-child relationship is severed.
People adopted as adults don't inherit from natural parents.
41
What is adoption by estoppel?
when a parent underperforms an agreemetn to adopt. Then the child inherits from the foster parent, but not his kin.
42
What is the 120 hour rule?
For wills and intestacy and any right of survivorship, a person must survive the decedent by 120 hours or be treated as predeceasing the decedent. The exception ot the rule is if the will requires survival or covers simultaneous death or death in a common disaster.
43
What is a disclaimer?
When the beneficiary or heir doesn't want to take. An effective disclaimer treats the heir/benficiary as predeceased. It is done primarily to avoid gift taxes and creditors' liens.
44
What is required for an effective disclaimer?
1) . written, signed, notarized record
2) . filed within 9 months of death ( a child gets 9 months after reaching 21; a charity gets later of 6 months after inventory of estate or 1 year after notice of bequest)
3) . filed with the probate court with a copy to the personal rep.
45
What is an advancement and how is it done?
When the testator makes a lifetime gift to a beneficiary that subtracts from his bequest.
Lifetime gifts are NOT treated as advancements unless they are declared as advancements by the donor in a contemporaneous writing, stated as such in the will, or acknowledged anytime in writing by the donee.
46
What is the half and half rule?
When hte decedent's name, voice, or likeness is used unauthorized in a commercal fashion. The surviving spouse is entitled to 1/2 damages, profits, and attorney's fees, and 1/2 to descendants. All of it goes to either of them if the other is dead.
47
What happens if the testator marries after executing a will?
Nothing. The will does not change. The spouse can get the homestead, 15,000$ if no homestead, family allowance, exempt personal property, or 5,000$ if no exempt personal property.
48
What happens if the Testator divorces after making a will?
Will is treated as if former spouse and former spouse's relatives predeceased testator, unless they remarry and are remarried at the time of his death.
49
What is a pretermitted child?
A child born or adopted after the will is executed.
50
How are pretermitted children treated If there were no other children when the will was executed,?
the child gets an intestate share of the property, unless he is provided for in nonprobate transfer
51
How are pretermitted children treated if there are children alive at the time of the will's execution?
If the other children are not provided for, then the child takes his intestate share of all property not bequethed to his other parent.
If the other children are provided for, the n the pretermitted child's share is no more than other children.
All unless he is provided for in nonprobate transfer
52
How can a will be revocated?
1) . by a subsequent testamentary instrument with proper formalities (holographic-attested will and vise versa OK)
2) . by physical act
53
How can revocation by physical act be done?
By destroying or cancelling the will or telling someon else to do it in his presence. No partial revocations allowed.
54
When is revocation presumed?
When the will was last in the Testator's presence and not found afterwards, or found torn or mutilated. It is not presumed if the will was last in possession of someone adversely affected by it or there is evidence to rebut the unfound/damage presumption.
55
How can a lost will be proved?
1) . Prove due execution like a normal will
2) . prove the cause of non-production, overcoming presumption of revocation
3) . the contents must be substantially proved by someone who is familiar with the will
56
Written changes made to a will itself?
They are invalid unless by themselves, fulfill the requirements for a holographic codicil
57
What is revival of revoked wills?
When the testator makes a will, then makes a second will, then destroys the 2nd will, thinking that will revive the first. He actually has no will and 2 revoked wills unless Dependent Relative Revocation operates to disregard the 2nd will's revocation, which was based on mistaken law/fact. Dictum case that has never been tested.
58
How will courts read a first document and a later document both saying "my last will?"
They will be read together unless they are wholly inconsistent, then the second will be a revocation by implication
59
What is a specific bequest?
When the testator gives something specific
60
What is a demonstrative legacy?
When the testator gives an amount from a specific source
61
What is a general legacy?
When the testator gives an amount from the estate
62
What's paid first, creditors or bequests?
creditors
63
What is the payment order of bequests when creditors start dipping into bequests?
1) . intestate property
2) . Residuary personal
3) . residuary real
4) . General legacies personal
5) . General legacies real
6) . specific personal (demonstrative?)
7) . specific real (demonstrative?)
64
What is ademption?
```
Property specifically (ONLY) devised by will that is not in the estate at death. The devisee doesn't take it, even if its proceeds are identifiable, using the Objective Identity doctrine.
The use of "my" can make something specific, while it's omission an make it demonstrative or general, pg. 27.
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65
Specific bequests of stock?
This includes, stock produced by splits, mergers, or stock dividends (not adempted), but not cash dividends or option exercises.
66
Gifts of encumbered property?
IF the will was executed before 2005, the lien is paid with the residuary estate, but if executed or republished after 2005, then the residuary estate is free from paying
67
What is incorporation by reference?
When a will incorporates another document:
1) . the writing must be in existence when the will was executed,
2) . the will must show an intent to incorporate teh writing, and
3) . the document must be clearly identified by language in the will, not "see attached sheet."
68
What are acts of independent significance?
When a testator devises something during life that changes what could be devised in the will, the bequest will only be valid if the act was done with independent significance for the testator's life. "I give my car to Alfred" effective if T buys a new car for herself during life.
69
Bequesting contents?
You can bequest the contents of something, but that's void as to title documents.
70
How are wills interpreted?
With the plain meaning rule. extrinsic evidence is allowed to cure latent or patent ambiguities.
71
When are contracts to make, revoke, or not revoke a will allowed?
If provisions in the will say that a contract exists with its material provisions OR there is an enforceable written agreement. Merely having a joint ore reciprocal will is not a contract.
If a contractual will is established, then the new will is admited to probate and a contructive trust is formed in favor of the contracted beneficiary.
72
What are nonprobate assets?
Anything outside will or intestacy, like rights of survivorship in bank accounts, life insurance contracts, trusts, or property with power of appointment.
73
What is the effect of a disinheiritance clause?
You can disinherit someone, treating them as predeceasing, but that doesn't apply to their descendents unless you explicitly say that. Under common law, if there was some estate going to intestacy, then the "disinheirited" person could get through that.
74
What is the power of appointment?
When the testator gives a devisee a life estate and the ability to appoint the remainderman. The appointee must exercise it by specific reference, not "whatever appointment powers I then have."
75
What is general and special testamentary power?
General gives the appointed person unlimited power to appoint the remainderman, while special limits it to a class of persons.
76
What is a taker in default of appointment?
when the testator names who will take if the appointed person does not name a remainder man
77
What must be shown for mental capacity to make a will?
Sufficient capacity to
1). Understand the nature of what he is doing
2). know the nature an approximate value of his property
3). know the natural objects of his bounty
4). understand the disposition he is making
All at the time of the will, not before or after.
78
Who has the burden of testamentary capacity?
The burden is on the will's proponents at probate, but a challenger has the later burden and must do it within 2 years.
79
Who has standing to contest wills?
Only interested persons: persons with an economic interest in the outcome.
80
How long can a person contest fraud or forgery?
2 years after its discovery.
81
When are you estopped from contesting a will?
When you accept its benefits and have knowledge of facts that might raise contest issues.
82
What is undue influence and who's burden of proof?
The will contestant must prove
1) . the existence and exertion of the influence
2) . the effect of overpowering the mind and will of the testator
3) . with the product of a will that was made that would not have been made but for the influence.
83
What is actions are and aren't preeumed undue influence?
```
Not:
opportunity to exert influence
susceptibility to influence
unnatural disposition
Inference when the will is done by one with a confidential relationship who benefits from the will
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84
What is fraud?
In the inducement when you trick the person into making the will for a made-up reason. In the execution when you make them think they're signing something else.
85
When can and can't a lawyer be a wil beneficiary?
He can't be a beneficiary, nor can an employee, parent, descendant or any of their spouses unless the beneficiary is related to the testator within 3 degrees of consanguinity (the count up count down method)
86
When can an action be filed to annul a marriage based on lack of capacity to consent to a marriage?
if the marriage happened within three years of T's death and the action is brought within 1 year after his death.
87
What are No contest clauses in wills?
When T says, "anyone who contests the will is disinheirted." They are given full effect unless the court finds that the contest was brought in good faith and with just cause. They are strictly construed and not effective against improper estate administration or if a party voluntarily dismisses, or a guardian files it
88
What is particularly special about Texas estate administration?
Unlike most states, a will an name an indepedent executor and provide that no action will be in court other than the probate of teh will, filing the inventory, and required appraisements. No court supervision or involvement, like trusts.
89
How can an independent adminstrator be appointed?
By any words, however informal, in the will, or by unanimous agreement of the distributees unless court finds against distributees that indepdepent administration is not in the estate's best interests.
Trustees and guardians can agree, and gifts condition on survival of set period are temporarily ignored.
90
What can an independent administrator do?
Anything an appointed administrator can do, including sell property to pay debts adminstration expenses and allowances.
If a will doesn't give the indepdendent executor the power of sale, the court order can give a power of sale with the interested beneficiaries' consent.
A purchase of real property is ok with a sworn affidavit that it's for a statutory purpose.
91
What must a personal representative of an estate do?
1) . post fiduciary bond within 20 days of appointment
2) . publish notice of adminstration in newspaper within 1 month
3) . give notice and copy of will to named will beneficiaries within 60 days
4) . file inventory of estate assets within 90 days of appointment, of for privacy, pay debts then file an affidavit in lieu of in inventory stating that debts have been paid.
5) . file certificate that notice to beneficiaries has been given within 90 days
6) . give accounting to interested parties upon demand within 15 months after will is admitted and 12 months after last accounting was rendered.
92
What does an indepdenent executor do to close the adminsitration?
He may
1) . File a closing report with verified affidavit showing property initially received, debts and expenses paid, and names and addresses ofdistributees,
2) . File notice of closing with verified affidavit showing all known debts and expenses paid and names and addresses of distributes, or
3) . File for declaratory judgment seeking judicial discharge of further duties.
93
What can an interested party do for a slow independent executor?
After 2 years, he can file a petition for distribution of the estate, which may get a show cause hearing
94
When can an independent executor be removed for cause?
1) . Not turn in inventory in 90 days
2) . doesn't give notice to beneficiaries within 60 days
3) . doesn't file certificate that notice has been given to beneficiaries within 90 days
4) . embezzlement or good reason to belive he is about to embezzle.
5) . Fails to make accounting
6) . gross misconduct or mismanagement
7) . incompetent or sentenced to penitentiary
8) . Material conflict of interest.
95
Where is proper probate/ guardianship jurisdiction?
Smaller counties that only have constitutional county courts do county court unless a contest matter arises, then the probate or district court until that matter is resolved.
Larger counties do it in either the county court or county court at law, with ocntested matters going to county court at law
Largest counties with statutory probate cours do it in probate courts.
96
What is minument of title?
Admitting a will for the sole purpose of passing/clearing title. Done simply to provide a ling in the chain of title, serving as a deed. It is allowed only when ther are no unpaid debts in the estate other than the homestead mortgage.
97
What is a statutory heirship proceeding?
a proceeding for formal recognition to establish a line of successor by heirship.
98
What can small estates do special from others?
They can be administered by affidavit if the estate minus the homestead and exempt property is lass than 50,000$. The affidavit serves as letter testamentary/administration granted to a personal representative and the person with the affidavit can use it to collect the estate's assets and to clear title in the homestead, but not other RP.
99
What is a nonstatutory affidavit of heirship?
Used to clear title in land when the owner died years ago. It is by realtives and neighbors, filed in county records.
100
When can will offerors for disallowed wills recover attornee's fees?
If the contest wsa made in good faith, even if the will loses.
101
What is a temporary administrator?
A person temporarily appointed personal representavie by a four with powers limited to those granted by the court for 180 days.
102
How can real property title devised by will be established?
record the will and the order admitting it to probate, regardless of the county where the land is.
103
What is the effect of a BFP in wills?
If an order validly admits a will to probate, land is transferred, and a BFP obtains land relying on that, he retains the land, though other "rightful" owner may recover sale proceeds.
104
How long after decedent's death can a will be probated?
Up to 4 years from decedent's death, unless you hsow it was not in default: give a reasonable explanation for why.
105
How does a court determine who to appoint as personal administrator?
1) . executor named in the will
2) . surviving spouse
3) . principal beneficiary named in the will
4) . other beneficiary in the will
5) . next of kin in nearest order of kinship
106
Who is disqualified from being appointed as a personal representative?
minors, incapacitated persons, convicted felons, or other the court finds unsuitable.
Nonresidents are ok, if they appoint a resident for service of process.
Temporary admins can be anyone.
107
When can personal administrators be liable for the property?
when they fail to act as a prudent person would
108
How are executors and administrators compensated?
Absent contrary provisions, the personal representative gets 5% of all sums actually received (not negotiations/contracts) and 5% of all sums paid out in cash, not counthing cahs on hand or cash distributed to beneficiaries and heirs.
109
What must creditors to to be paid on an estate?
1). The personal representative must publish notice within 1 month in a newspaper requiring all persons with claims to present them within the time prescribed by law.
2). the personal rep may give notice to unsecured creditors saying that they must present within 4 months or be barred. (this step isn't in a guardianship adminstration and is the only difference)
The personal rep must give personal notice to secured creditors within 2 months.
3). In a dependent (appointed) administration, the general creditor must file an authenticated claim and affidavit with the probate court or the administrator and the administrator must allow or reject the claim within 30 days. If he ignores it, then the claim is presumed rejected.
4). The creditor must file suit on a rejected claim within 90 days
5). In an indepdendent administration, the executor must give notice and publicaiont to secured creditors, but the presentment rules don't apply and there is no 90 day requirement.
110
When can an estate be sued?
Estates cannot be sued; only personal representatives can
111
What special remedies are available to a secured creditor for estates?
IF the decedent was personally liable on a mortgage, the creditor can present claim for payment out of the estate's general assets if he files his claim as a matured secured claim within 6 months of appointment or 4 months after receipt of personal notice, whichever is later.
If he doesn't file the matured secured claim, then it is a Preferred debt and lien with the result that he can only collect the security interest, and no deficiency
112
What is the payment priority for an estate?
Secured with preferred debt and lien takes foreclosed proceeds
1) . funeral expenses and last illness up to $15,000
1a) . Family allowance (beats illnesses)
2) . Expenses of estate administration
3) . Secured claims for matured secured claim
4) . child support arrearages
5) . state taxes
6) repayment of medicaid
7) . cost of confinement if imprisoned in Tx.
8) . All other claims, starting with other funearl and last sicknesses, then unpaid federal income taxes
113
What special rules are there for insolvent estates?
Partially insolvent estates (actually the surviving spouse) may get
1). homestead exemption
2). up to 60k personal property exemption, with up to 25, for jewelry.
solvent esattes only have temporary exemptions, during estate administration.
114
Secured self-help after debtor's debt?
The secured creditor may not foreclose on property after death. He must follow the statutory provisions, meaning he can only foreclose after approval if he is a mture secured claim and he can't foreclose in the first 6 months of estate if he is a preferred debt and lien.
115
What is emergency intervention?
Between 3 and 90 days after decedent's death, anyone can file for application of emergency intervention to pay funeral expenses and personal property protection as long as no appointment of a personal rep is pending
116
How can you sell real property as a court-appointed administrator?
1) . fil application for the sale describing property, amount of oustanding claims, etc.
2) . date for hearing set and notice to all interested persons
3) . have a hearing
4) . sell the property and report it to court within 30 days
5) . confirmation hearing and notice to interested parties
6) . give deed to purchaser
117
What are the Tx. homestead limitations?
10 acres if urban, 200 if rural for families
| 10 and 100 if single person
118
What are the benefits of a homestead?
both spoused must convey or mortgage it
free from crediotrs except
PMSI
property taxes
federal tax liens
mechanics liens signed and recorded
loans to divide homestead with divorce
equity loan for up to 80%
passes free of creditors on owner's death is survived by spouse, minor children, incapacitead adult, orunmarried adult still living at him
probate homestead as long as surviving spouse, incapacitated or minor children choose to occupy it.
119
What is a homestead allowance?
the surviving spouse, minor children, or incapacitated adult children can take 15,000$ if decedent did not own a homestead (apartment)
120
What is a personal property allowance?
up to 5,000$ worth of items on the list not in the estate.
121
What is a family allowance?
The amount needed to support the family for one year while the decedent's assets are in administration. The value of the spouse's separate property is not taken into account (?). It is charged against the entire community estate, not merely the survivor's half
