Wills and Estate Administration

Question 1

What makes a will valid?

Answer 1

1. Must be executed by a person over 18 (army, married) w/testamentary intent.
2. 2 witnesses must sign the will in T’s presence.
3. T must sign the will before the witnesses or in the same transaction.

Question 2

Where is proper venue?

Answer 2

1. Where T resided;
2. a. if T (a non-resident) had no domicile or fixed place of residence in the state, then in the county where principal property located OR
   b. county where T died.

Question 3

What is the Interested Witness Statute?

Answer 3

If there is an interested witness under a will (i.e. an attesting witness also a named beneficiary), it does not affect the will’s validity. The request to the interested witness becomes void UNLESS:

1. will proved w.p interested witnesses testimony
2. Interested witness’ testimony is corroborated by testimony of a disinterested and credible person
3. Interested witness would be an heir anyways in an intestate distribution in which case the interested witness would take the lesser of
   a. the bequest under the will
   b. Intestate distribution

Question 4

Residuary Beneficiary Rule

Answer 4

General Rule is when a Will Beneficiary predeceases the Testator, the Beneficiary’s gift lapses. (A dead person can’t hold title to property, and property under a Will is only inherited upon Testator’s death.) Where the residuary estate is devised to 2 or more persons, and the gift to one of them lapses, the remaining residuary beneficiaries take the residuary estate in proportion to their interests. This is subject to Anti-lapse §.

Question 5

To whom does the anti-lapse statute apply?

What does it do?

Answer 5

The anti-lapse § applies to Bs who predecease T & are descendants of the T’s.

The § prevents bequests to Bs from lapsing by allowing the descendants of the B to take B’s share.

Question 6

Intestate succession with a spouse

Answer 6

did T have any descendants?
If no descendants, SS gets all CP & personal SP, & ½ fee simple interest in all separate real property. The decedent’s parents get the other ½ interest.

If the deceased leaves SS & all his children are children of the spouse, then SS takes all CP, 1/3 of personal SP, & a 1/3 life estate in all separate real property. The children take 2/3 of SP & the remainder of the real property.

If deceased had children that were not children of the spouse, then SS will only take ½ of H’s CP, & all of the SP interests are the same as above.

Question 7

Intestate succession without a spouse

Answer 7

If the deceased has descendants, they will take the whole estate per capita w/representation. If the deceased had no descendants, the parents will take ½ each.

If one parent is dead, H’s siblings take that parent’s ½ share. If no parents, the estate passes to siblings & their descendants. If no siblings to deceased’s aunts/uncles & their descendants

Question 8

How does someone disclaim an inheritance or bequest?

Answer 8

A disclaimer must be in writing, signed, notarized, & filed w/the probate court & personal representative w/in 9 months after decedent’s death. The effect is to treat disclaimer as having predeceased the decedent.

Question 9

What claims does a wife have above & beyond intestacy or a will?

Answer 9

HEF. In Texas a wife can claim a probate homestead (right to occupy homestead rent-free for life) or if no homestead $15k. The wife can also claim a family allowance of one year’s support for the family, & an exempt personal property set aside of up to $60k or $5000 in cash. All this is taken from the community estate.

Question 10

10. What is the effect of divorce on a decedent’s estate?

Answer 10

Divorce revokes all gifts & fiduciary appointment in ex-spouse’s favor. (note, will not affected by T’s post-will marriage)

Question 11

What is a pretermitted child entitled to from a deceased’s estate?

Answer 11

A pretermitted child is a child born after the execution of a will who is not provided for by the will or some other non-probate transfer. If there are other children that have received something under the will, the child takes a pro-rata interest in those bequests. If there are no other children, or the other children are not provided for, child takes his intestate share of all property not bequeathed to SS. Remember that republication of a will by codicil can have an effect on pretermitted child’s status

Question 12

How is a will revoked?

Answer 12

A will can be revoked w/a subsequent testamentary instrument executed w/like formalities or by physical act. Texas does not recognize partial revocation by physical act. Where a will was last seen in testator’s possession & cannot be found there is a presumption that it was destroyed w/the intent to revoke. But, the accidental destruction of a will does not revoke it, even if the testator later decides to revoke it, the intent must be present at the time of the act.

Question 13

How can a lost will be proved?

Answer 13

A lost will can be proved by proving it was duly executed, proof of all or substantially all of its contents, & proof of the cause of the will’s non-production sufficient to rebut the presumption that it has been revoked

Question 14

Can a prior will be revived if a new one is not effective?

Answer 14

Texas does not allow for a revival of prior wills once they have been revoked. There is one exception called dependent relative revocation. In that case, the court can revive an old will if they find that testator revoked based on a mistake of law or fact about the validity of another disposition & the revocation was conditioned on the validity of the subsequent disposition.

Question 15

What happens if there is not enough to fill all bequests?

Answer 15

If all the assets the testator owns at death are insufficient to pay all debts & the expenses of the administration & also satisfy all the specific & general legacies in the will, this is the order of abatement (absent a contrary provision):

1) intestate property;
2) residuary legacies;
3) general legacies; &
4) specific legacies. W/in each category, personal property abates before real property.

Question 16

How can a document be incorporated into the will by reference?

Answer 16

The document must be in existence when the will is executed, the will must show the intent to incorporate, & the will must clearly identify the document.

Question 17

How are contractual wills created & what is the effect?

Answer 17

A contractual will is not enforceable unless there is clear indication of the contract in the will, or an enforceable written agreement. The execution of a joint or reciprocal will does not, by itself, suffice as evidence of a contract. The contract can be revoked at any time before the death of one of the testators w/notice to the other party

Question 18

What options are available for challenging the validity of a will?

Answer 18

A will can be challenged for seven reasons: 1) Defective execution; 2) Valid revocation; 3) Lack of testamentary capacity; 4) Undue influence; 5) Fraud; 6) Mistake; 7) Testator unaware of the will’s contents

Question 19

Specifically devised property not in estate at death?

Answer 19

T cannot devise property not owned at death; if the subject of a specific bequest isn’t in the estate at death, the gift is “adeemed” - it fails completely (ademption applies where T sold specifically devised property).

Question 20

Bequests of stock & other securities?

Answer 20

Specific language (“my 100 shares”), then ademption applies if the stock isn’t in the estate as such (it’s a specific bequest). But, if general language (“100 shares”), it’s a general legacy & B gets the date-of-death value of 100 shares if T already sold them. Note also, a specific legatee of stock takes additional securities resulting from action initiated by entity (i.e., stock from a stock split or stock dividend declared after the will was executed, or even different securities as the result of a merger, takeover, consolidation).

Question 21

What proves lack of testamentary capacity?

Answer 21

At the time of executing the will the testator must have had sufficient capacity to 1) understand the nature of the act he was doing; 2) know the nature & approximate value of his property; 3) know the natural objects of his bounty; & 4) understand the disposition he is making. Capacity to make a will may exist where capacity to make a contract does not. AVBD.

Question 22

What proves undue influence?

Answer 22

To establish undue influence, the contestant must prove: the existence & exertion of an influence, the effect was to overpower the mind & will of the testator & the product was the will that would not have been executed but for the influence. Pleading, begging, cajoling, or threatening is not enough, the mind of the testator must be overpowered. EEOP

Question 23

When is a no-contest clause valid?

Answer 23

Enforceable unless the contest was brought in good faith & w/probable cause. A no-contest clause is strictly construed & is not triggered by a suit to construe a will or by a contest filed by a guardian

Question 24

When can an independent administration be accomplished?

Answer 24

An independent administrator can be appointed when the will provides for one, or all distributees agree on an independent administration.

Question 25

What are the powers of an independent executor?

Answer 25

The executor has the power to do any act, w/out court order, that a dependent administration could be authorized to do by a court order. If the will creates a power of sale, real property can be sold irrespective of estate debts. If the will doesn’t specifically give power of sale, real property can only be sold to satisfy estate debts.

Question 26

How does a personal representative close the administration?

Answer 26

File a closing report w/the county court records containing a verified affidavit that shows: property initially received, debts paid & expenses, & names & addresses of distributees. May also file for a declaratory judgment seeking a discharge from liability on things that have been fully disclosed.

Question 27

What actions must a personal representative take upon appointment?

Answer 27

1. W/in 20 days he must post bond, unless the will waives bond.
2. He must publish a notice of administration in the local newspaper w/in 1 month.
3. He must file an inventory of the estate w/the court w/in 90 days.
4. He must give notice to named beneficiaries w/in 60 days after will admitted to probate.

Question 28

For what reasons can an independent administrator be removed for cause?

Answer 28

1) Failure to file inventory w/in 90 days;
2) Failure to give notice to named beneficiaries w/in 60 days of probate;
3) Misapplied or embezzled estate property or is about to;
4) Fails to make required accounting;
5) Is guilty of gross misconduct or mismanagement; or
6) Becomes incompetent or sentenced to penitentiary.

Question 29

What court has jurisdiction over probate?

Answer 29

In counties w/statutory probate courts or statutory county courts at law, such courts have exclusive original jurisdiction. In counties w/out either, the county courts & district courts have concurrent jurisdiction. The county court handles uncontested matters & the district court handles the contested matters.

Question 30

What method is available to clear title when no administration is necessary?

Answer 30

Depending on whether there is a will or not,
Testate a person can probate the Will as a Muniment of Title (will). The Will + the Order admitting it to probate, constitute a Muniment in Title (i.e. link in chain of title, serving same function as a deed), as long as there are no unpaid debts. Intestate  (i) File for a Statutory Heirship Proceeding. This formally recognizes and establish title of successors by inheritance. (ii) Small Estates Administration – by Affidavit issued by Court clerk serves same function as Letters of Administration – if value of probate estate less than $50k (excluding Homestead, Exempt Personal Prop.) Party with Affidavit can collect decedent’s assets by furnishing Affidavit copy, clear title to decedent’s Homestead.

Question 31

How long does a will have to be admitted to probate?

Answer 31

A will must be probated w/in 4 yrs of date of death. But if the person offering the will is not at fault, notice must be given to heirs, & the will can be probated as a muniment of title.

Question 32

What does the administrator have to do to notify creditors of the estate?

Answer 32

The administrator must give notice w/in 2 months to secured creditors. The secured creditors then have 4 mos. or 6 mos. from death to present their matured, secured claims. If they fail to do so, they will only be protected up to the value of the collateral. No notice other than the notice by publication is necessary for unsecured creditors, but an administrator can give personal notice to each that will trigger a 4 month SOL on the debt.

Question 33

How is a dependent administration different w/respect to creditors?

Answer 33

First, the claim must be authenticated. Next, the personal representative must allow or reject the claim w/in 30 days. Finally, the claimant must file suit on a rejected claim w/in 90 days or the claim will be barred.

Question 34

What is the priority of claims in an insolvent estate?

Answer 34

The order of payment is

1) funeral expenses & expenses of last illness up to 15k;
2) the family allowance;
3) administration expenses;
4) secured claims;
5) Child support reduced to judgment;
6) state taxes;
7) reimbursement to Medicaid;
8) cost of decedent’s confinement in prison;
9) all other costs

Question 35

What claims can a spouse make on the estate above the will or intestacy?

Answer 35

A spouse can claim a probate homestead (right to occupy homestead rent-free for life) or if there is no homestead a $15k allowance. The spouse can also claim exempt personal property up to $60k or if there is no property $5k. The SS is entitled to a family allowance sufficient for spouse & children’s maintenance for 1 yr by showing that they have inadequate SP for their support.