Wills (DONE) Flashcards
(162 cards)
1
Q
If a decedent dies intestate and is survived by descendants, all of whom are descendants of the surviving spouse, how should the community property be distributed?
A
All to the surviving spouse.
When a decedent dies intestate and is survived by descendants, all of whom are descendants of the surviving spouse, the surviving spouse retains his one-half community interest and inherits the decedent’s one-half interest. Thus, the surviving spouse takes all of the community property. In contrast, if at least one of the decedent’s descendants is not the surviving spouse’s descendant, the decedent’s one-half community interest passes to his descendants, who take per capita with representation. The surviving spouse still retains his one-half community interest. The decedent’s descendants take all of the community property only if the decedent is not survived by a spouse.
2
Q
If an unmarried decedent dies intestate and is survived by both parents and two children, how should her estate be distributed?
A
One half to each child.
When an unmarried decedent dies intestate and is survived by both parents and by two children, her estate passes one-half to each child. If no children or their descendants survive the decedent, one-half passes to her father and the other one-half passes to her mother.
3
Q
If a decedent dies intestate and leaves no spouse, children or their descendants, or either parent, how should his estate be distributed?
A
To his brothers and sisters or their descendants.
4
Q
A presumption of paternity giving rise to inheritance rights in a nonmarital child arises under the Family Code if:
A
The child was born during the marriage of the man and the child’s mother.
A presumption of paternity giving rise to inheritance rights in a nonmarital child arises under the Family Code if (i) the child was born during or within 300 days after the marriage (including an attempted but void or voidable marriage) of the man and the child’s mother, (ii) the parties married or attempted to marry after the child’s birth, and the man voluntarily asserted his paternity of the child in one of the following ways: a) the assertion of paternity is in a record filed with the Bureau of Vital Statistics, b) the man was voluntarily named as the child’s father on the birth certificate, or c) the man promised in a record to support the child as his own; or (iii) during the first two years of the child’s life, the man continuously resided in the same household as the child and represented to others that the child was his child. Paternity also may be established in paternity or probate proceedings or by the father’s written acknowledgment.
5
Q
How are the intestate shares of descendants distributed in Texas?
A
Per capita with representation.
6
Q
For purposes of inheritance, a nonmarital child will be treated the same as any other child of the decedent if the court finds that the decedent was the biological father of the child by which of the following evidentiary standards?
A
Clear and convincing evidence.
7
Q
A decedent and her only child were killed in a plane crash. Neither was alive when the emergency team reached them. The child is survived by a spouse, and the decedent is survived by only a brother. The decedent left a sizeable intestate estate and a life insurance policy with the child as the named beneficiary. Who will share in the decedent’s estate and the insurance proceeds?
A
The decedent’s brother will take the estate and the insurance proceeds.
8
Q
A husband and a wife were fatally injured in a car accident. The husband died at the scene of the accident, and the wife died two days later. The husband was survived by only a brother, and his will bequeathed his entire estate to his alma mater. The wife was survived by only a sister, and her will bequeathed her entire estate to her alma mater. How should the community property be distributed?
A
One-half to the husband’s alma mater and one-half to the wife’s alma mater.
If a husband and wife die within 120 hours of each other, one-half of all community property, including community property with right of survivorship, is distributed as if the husband had survived by 120 hours, and the other one-half as though the wife had survived by 120 hours. Here, the wife survived the husband by two days, which is less than 120 hours. Thus one-half of the community property will pass as though the husband survived the wife: to his alma mater pursuant to his will. The other one-half of the community property will pass as though the wife survived the husband: to her alma mater pursuant to her will. Because both decedents died testate, the intestate heirs, the brother and the sister, take nothing.
9
Q
What type of trust will be imposed when an heir or will beneficiary kills an intestate or a testator?
A
Constructive trust.
A constructive trust is imposed to prevent unjust enrichment on the ground that no one should be allowed to profit from her wrongful conduct. A constructive trust will be imposed where an heir or will beneficiary kills an intestate or a testator.
10
Q
A disclaimed interest passes as though:
A
The disclaimant predeceased the decedent.
11
Q
A will must be signed by a testator, or signed for him by another person:
A
By his direction and in his conscious presence.
12
Q
A will must be attested by two witnesses above the age of:
A
14
13
Q
What proof is required to probate an attested will?
A
The testimony of one attesting witness.
14
Q
In Texas, a beneficiary who contests a will with a no-contest clause:
A
Does not foreit her bequest if the challenge is unsuccessful but was brought in good faith and with just cause.
The contest itself does not trigger forfeiture unless the court finds that no reasonable grounds existed for contesting the will (i.e., it was a suit designed to provoke a settlement). Whether the beneficiary had just cause is a question of fact. If the contest is successful and the will is denied probate, there is never forfeiture because the no-contest clause is tossed out along with the will. Note that suits objecting to the court’s jurisdiction, challenging the appointment of an executor, or asking the court to construe the will are not will contests within the meaning of most no-contest clauses.
15
Q
Which of the following actions triggers a no-contest clause?
A
An action alleging the will was not properly executed.
16
Q
What is required to prove that a will or gift therein is a result of fraud?
A
(i) the speaker made false representations knowing them to be false,
(ii) the representations were made with the intent to deceive the testator,
(iii) the testator was ignorant of the falsity, and
(iv) relying upon such representations, the testator made a different will than he otherwise would have made.
17
Q
If the will makes an unnatural disposition that favors some family members over others:
A
It is not enough to establish undue influence.
To establish undue influence, the contestant must prove (i) the existence and exertion of an influence, (ii) that the effect of the influence was to overpower the mind and free will of the testator, and (iii) the will would not have been executed “but for” the influence.
18
Q
What are the elements a contestant must prove to establish undue influence?
A
(i) the existence and exertion of an influence,
(ii) the effect of the influence was to overpower the mind and free will of the testator, and
(iii) the will would not have been executed “but for” the influence.
The mere fact that the testator was old and physically frail may be considered as establishing the susceptibility of the testator’s mind to an influence but does not establish that the testator’s mind was in fact subverted and overpowered at the time the will was executed. Moreover, the mere fact that the will makes an unnatural disposition that favors some family members over others is not enough; it is only where all reasonable explanation for the devise is lacking that the trier of fact may take this circumstance as a badge of undue influence.
19
Q
After a will is admitted to probate, who has the burden to prove testamentary capacity?
A
The burden shifts from the will proponents to the will contestants to establish capacity.
20
Q
If the issue of testamentary capacity is raised at the time the will is offered for probate, who has the burden of establishing capacity?
A
The will proponents.
21
Q
What parties can contest a will?
A
Parties who can contest a will are the decedent’s heirs, legatees named in a prior will that was revoked by the will being offered for probate; spouses, creditors, assignees of any of the foregoing, and any other persons having a pecuniary interest that would be affected by the probate or defeat of the will. A grandchild is an heir, but a stepchild is not.
22
Q
How many years after a will has been admitted to probate can a will contest be filed?
A
Two years.
23
Q
A bequest to “children” does not include:
A
Nonmarital children
24
Q
The Texas anti-lapse statute covers predeceasing beneficiaries who are:
A
Descendants of the testator’s parents.
25
If a will beneficiary, who is a friend of the testator, dies during the testator's lifetime:
The gift becomes part of the testator's residuary estate.
26
If a testator's will bequeaths one-half of his estate to his wife and the other one-half to his brother, and the testator dies survived by his wife, his brother, a daughter born to him and his wife before he executed his will, and a son born to him and his wife after he executed his will, how should the separate property of the estate be distributed?
One-half to the wife, one-fourth to the brother, and one-fourth to the son.
If the testator made no provision for any of his children living when the will was executed, a pretermitted child takes the share of the estate he would have inherited if the testator had died intestate and unmarried, owning only that portion of his estate not bequeathed to the child's other parent. The wife takes one-half of the separate personal property. Only one-half of the remainder passes to the son under the pretermitted child statute, as he would only inherit one-half of the testator's estate if the testator had died intestate and unmarried. In making up this one-fourth share, the brother's share is reduced to one-fourth. The daughter, who was living when the will was executed but is not mentioned in the will, takes nothing.
27
If a testator's will bequeaths one-half of his estate to his wife and the other one-half to his brother, and the testator dies survived by his wife, his brother, and a daughter born to him and his wife after he executed his will, how should the separate property of the estate be distributed?
One-half to the wife and one-half to the daughter.
If the testator had no other children, a pretermitted child takes the share of the estate she would have inherited if the testator had died intestate and unmarried, owning only that portion of his estate not bequeathed to the child's other parent. Here, the bequest to the wife is not diminished by the pretermitted child statute because she was the daughter's parent. The wife takes one-half of the separate personal property. The other one-half passes to the daughter under the pretermitted child statute, as the daughter would be the testator's only intestate heir if he had died intestate and unmarried. The brother takes nothing.
28
The testator's signature on a holographic will must be where?
Somewhere (anywhere) on the will.
29
A holographic will must not contain:
Printed words
30
Who bears the burden of proving that the testator did not revoke the will?
The will proponent
31
What must be established to probate a lost will?
(i) due execution of the will must be proved by the testimony of at least one attesting witness,
(ii) the cause of nonproduction of the will must be proved to overcome the presumption of revocation, and
(iii) the contents of the will must be substantially proved by the testimony of a credible witness who has read the will, has heard it read, or can identify a copy of the will.
32
The pretermitted child statute applies to:
Afterborn and after-adopted children.
33
What is the effect of a will beneficiary's serving as an attesting witness?
The will is valid, and the witness-beneficiary could take a share of the estate.
34
In Texas, a valid holographic will must include:
Material provisions in the testator's handwriting.
35
What is the order of payment regarding the family allowance?
Nonprobate assets passing to the surviving spouse are NOT taken into account in determining the family allowance.
The family allowance is paid before all other claims except funeral expenses and expenses of last sickness up to $15,000 each and is a community obligation payable one-half out of the surviving spouse's one-half community interest. The surviving spouse's separate property is taken into account in determining the amount.
36
Who is entitled to occupy the homestead after the decedent's death?
If the decedent is survived by a spouse or by minor children, the spouse is entitled to occupy the homestead as long as she chooses.
The right to occupy is independent of title; if the property has been devised to some other person, such person takes title subject to the right of homestead occupancy. If the occupancy right is not claimed by the surviving spouse, a guardian of the decedent's minor children may use and occupy the homestead under a court order. The right of homestead occupancy is terminated when the homestead ceases to be the spouse’s principal residence. The surviving spouse’s homestead right is not extinguished by remarriage
37
If a decedent is survived by a spouse or minor child, the homestead descends free of debts and creditors’ claims (subject to state and federal statutory and constitutional exceptions):
If the homestead passes to any devisee.
The decedent’s homestead passes to any devisee free of debts and creditor’s claims (subject to the usual state and federal statutory and constitutional exceptions) when the decedent is survived by a spouse or minor child.
38
The homestead property can be attached, executed, or sold to satisfy what claims?
Purchase money mortgage on the homestead, a lien for property taxes, a federal tax lien against jointly filing spouses, etc.
The homestead is exempt from an unrecorded mechanic's lien. Mechanic’s and materialman’s liens incurred in connection with improvements on the homestead are valid only if: (i) a written contract is entered into prior to the commencement of the improvements or the furnishing of supplies; (ii) the contract is signed by both spouses; and (iii) the contract is recorded.
39
Who has priority to be appointed personal representatives of an estate?
The principal beneficiary named in the will has priority over other beneficiaries named in the will.
Persons are given priority of appointment as personal representative as follows: (i) persons named in the will as executors; (ii) surviving spouse; (iii) principal beneficiary named in the will; (iv) any other beneficiary named in the will; (v) decedent’s next of kin as determined by the intestacy statute; (vi) creditor of the decedent; and (vii) any other person of good character.
40
What is the statutory formula for payment of claims by an estate?
Unpaid child support is paid before state taxes.
Otherwise, expenses and claims are paid in the following order:
(i) funeral expenses and expenses of last sickness up to $15,000 each, with any excess classified as an "other claim";
(ii) expenses of administration;
(iii) secured claims to the extent the claim can be paid out of the proceeds of the property subject to the mortgage or other lien;
(iv) claims for unpaid child support;
(v) state taxes;
(vi) claims for the cost of confinement in prison;
(vii) claims for reimbursement for medical assistance payments made by the state on the decedent's behalf; and
(viii) all other claims.
41
In what case is an unsecured claim barred?
If the claimant does not file suit within 90 days of rejection of the claim.
In a dependent administration, if the claimaint does not file suit within 90 days of rejection of an unsecured claim, the claim is barred. Within 30 days after the receipt of an authenticated claim, the personal representative must file a written memorandum with the court either allowing or rejecting the claim. Failure by the representative to act on the claim within 30 days constitutes rejection of the claim. If the claim is rejected (either expressly by the representative’s written memorandum or automatically by the expiration of the 30-day period), the claimant must file suit within 90 days after such rejection; otherwise the claim is barred. An unsecured creditor can assert its claim at any time within the statute of limitations applicable to the particular claim.
42
When an undisclosed heir is discovered subsequent to the transfer of title to a homestead under a small estate affidavit:
The deed is valid, but the undisclosed heir can sue the heirs who received the consideration.
Title to a homestead that is the only real property in a decedent’s estate (whose value not including the homestead and exempt property does not exceed $75,000) may be transferred using a small estate affidavit. This affidavit if recorded in the county in which the homestead is located will protect bona fide purchasers for value of the homestead against lawsuits brought by heirs not disclosed in the affidavit. The undisclosed heir’s remedy is against the heirs who received consideration for the transfer of the homestead to the bona fide purchaser.
43
When a person dies intestate leaving a probate estate whose value does not exceed $75,000 not including homestead and exempt personal property:
The court may distribute both the personal property and the homestead without administration if the homestead is the only real property in the estate.
If the decedent owned non-homestead real property, a small estate affidavit cannot be used to clear title. If the value of the estate, not including homestead and exempt personal property, does not exceed the family allowance, the court may set aside the allowance and order that no administration is necessary. There is no rule that small estates exceeding the family allowance must be subject to administration.
44
When a person dies intestate, a statutory heirship proceeding:
Will not protect the named heirs from claims brought by omitted heirs.
45
Upon the death of one spouse, what property is subject to estate administration?
All of the community property as well as the deceased spouse's property.
The death of one spouse dissolves the community entity, compelling a division of the community estate. Therefore, all of the community property and not just the deceased spouse’s one-half share is subject to administration. The deceased spouse’s separate assets are also subject to administration. Community obligations are paid, and what is left is partitioned between the surviving spouse and the deceased spouse’s successors (through his will or by intestacy).
46
A person or entity that declines appointment as an independent executor:
May be appointed as administrator in a court-supervised administration in the discretion of the court.
47
Whose consent is required in order for the court to authorize independent administration of an estate?
A minor or incapacitated beneficiary, a beneficiary whose bequest is contingent on her survival for a period of time, and a beneficiary of a life estate in property.
Consent from a beneficiary of a REMAINDER interest in the property is not needed.
48
Even if all distributees consent, when is a court NOT able to authorize the independent administration of an estate?
When the will provides that there shall be no independent administration, even if independent administration is in the estate's best interest.
Otherwise, if all distributees consent, the court will authorize independent administration of an estate where the decedent dies intestate or the will names an executor without independent administrative powers if independent administration is in the estate's best interest. The court must appoint the independent executor named in the will even if independent administration is not in the estate's best interest.
49
For how long after a decedent passes may a will be submitted for probate?
More than four years after the testator's death as a muniment of title only.
-
A will can be admitted to probate more than four years after the testator’s death only if the party applying for probate was not in default by failing to present the will within the four years after the testator’s death, e.g., because he or she was unaware of the will’s existence until more than four years had passed and the will can only be probated as a muniment of title. Moreover, the person named in the will as executor cannot be appointed, nor can there be an administration of the estate.
50
What is the requirement for a duly executed will?
1) T must be 18 years old.
2) Signed by testator
3) Two attesting witnesses
4) Each witness must sign IN TESTATOR'S PRESENCE
(Codicil must be executed with the same formalities.
51
What distinguishes Texas law from common law for Wills?
Texas does not require:
1) that witnesses know they are witnessing a will
2) that testator sign in each other's presence
3) that witnesses sign in each other's presence
4) that the testator sign in "at the foot or end" of the will
52
Does it matter if a W signs before a W?
No, not if the execution ceremony is a contemporaneous transaction.
But if T signs after W's leave, then invalid.
53
Does it matter if a T's signature is barely legible?
No, any mark intended as T's mark is sufficient to satisfy the signature requirement.
54
Does it matter if the W's don't sign in each other's presence?
No, this is not required in Texas
55
What is the "conscious presence" requirement?
The W's are required to be in T's presence such that T is CONSCIOUS of where they are and what they are doing. It is not required that T actually be able to see the W's.
However, being in an adjacent room is considered too far and thus not in T's presence.
56
How many W's must attest to a will?
Only one W is required to attest in open court.
57
What happens if all W's are dead or cannot be located?
Testimony of two persons as to the handwriting of the testator or handwriting of either witnesses sufficient.
58
What is the effect of a self-proving affidavit?
It's a procedure that recognizes that most probates are harmonious, non-litigious affairs in which no one is challenging the validity of the will's execution.
The affidavit contains statements the witnesses would testify to in open court.
It is a SUBSTITUTE for live testimony of the attesting witnesses in open court.
59
What is a two-step will execution ceremony?
If witnesses sign an affidavit, but not the will, signatures on a self-proving will can be used to validate the will.
Consequences are that you can only use the signatures once, and due execution must be proved by testimony of at least one attesting witness.
60
What is a one-step execution ceremony?
The will's attestation clause recites all the elements of due execution, and is prepared as a sworn statement. Testator and witnesses sign only once.
61
Where is venue for the probate of a will and administration of the estate?
The county where decedent resided.
If decedent (nonresident) died in Texas but had no domicile or fixed place of residence in the state, then venue is
1) county where principal property is located, or
3) county in which nearest of kin reside, or
3) county where decedent died
62
The whom does the attorney's duty run to?
The client who contracted for his services. Only the client can sue the attorney for negligence.
There is no privity of contract between the attorney and beneficiaries.
63
When can the executor of an estate sue the attorney?
For:
1) Loss of estate of excess estate taxes paid because of attorney's negligent estate planing advice, or
2) Loss to estate resulting form allegedly negligent mischaracterization of assets as separate property rather than community property that led to decedent's liability.
64
What is the effect of making a beneficiary an attesting witness?
The interested witness does not affect the validity of the will, but the bequest to the witness is void.
65
What are the exceptions to the interested witness/void bequest?
1) Will can be proved without the interested witness's testimony
2) Or the interested witness's testimony is corroborated by the testimony of a disinterested and credible person,
3) Or the interested witness would be an heir if this will were not probated, in which case the interested witness takes whichever is least: the lesser of the legacy under the will or the intestate share.
66
What is required for a holographic will?
Holographic wills (handwritten and unwitnessed) are valid in Texas so long as they are WHOLLY in the handwriting of the testator and signed by the testator.
Requirements:
1) Was it intended as a will?
2) Was it signed by the testator?
3) Dating isn't required
4) Is it wholly in T's handwriting?
67
What is the surplusage rule?
Extraneous printed words, which are not necessary to complete the will or its meaning, can be disregarded for holographic wills.
68
What is the effect of a will that has lifetime effects, with effects meant to take place after T's death?
This is not a will, and is thus not enforceable unless there was consideration for the promises made in the "will".
69
Are oral wills valid in Texas?
No, the statute allowing oral wills was repealed in Texas/
70
What can be done if the T is so incapacitated they can't write?
Draft a will, then have an attorney sign it as a proxy by including "at his request and in his presence"
71
What is the Texas Anti-Lapse Statute?
When a will beneficiary predeceases the testator, the gift lapses unless the gift is saved by the anti-lapse statute.
The anti-lapse statute names the substitute taker.
Applies only when the predeceasing beneficiary was a descendant of testator's parent, AND left descendants who survive the testator by 120 hours.
72
What is the "surviving residuary beneficiaries" rules?
Where the residuary estate is devised to two or more persons, and the gift to one of them lapses, the remaining residuary beneficiaries take the residuary estate in proportion to their interests.
73
If there are both residuary estate beneficiaries and related beneficiaries, and one from each predeceases the testator, which rule applies?
Anti-lapse statute overrides the "surviving residuary beneficiaries" rule.
74
What is the rule for class gift construction?
In a gift by will to a class of persons, if a member of the class predeceases the testator, the class members who survive the testator take (absent a contrary will provision).
75
What is the rule of convenience for the class gift rule?
Later-born members of a class after T's death do not share in the gift.
76
When does intestate succession apply?
1) Decedent left no will (or will was not validly executed)
2) The will does not make a complete disposition
3) An heir successfully contests the will, and the will is denied probate
77
If X dies intestate, leaving a spouse and children, what CP do they take?
Spouse takes 1/2 CP
Children take X's 1/2 CP
78
If X dies intestate, leaving a spouse and children from ANOTHER marriage, what CP do they take?
Spouse takes 1/2 CP
Children still take 1/2 CP, even children from another marriage.
79
What is separate personal property?
Property owned by either spouse before marriage, or acquired during marriage by gift, will, or inheritance.
80
If decedent had separate personal property, and had two kids from a previous marriage and one kid from his current spouse, how is the separate property distributed?
1/3 to the surviving spouse, and 2/3 to each of the three children, for a total of 2/9.
81
How is separate personal property distributed if the decedent is survived by both of his parents and a surviving spouse, but no children?
ALL TO SURVIVING SPOUSE.
Parents and collateral kin never inherit separate personal property is the intestate was survived by his or her spouse.
82
How is separate real property distributed when an intestate dies, and is survived by a spouse and two children from another marriage and one child from his current marriage?
Current spouse = 1/3 life estate
Remaining children = Remainder (2/3) in fee simple, plus remainder following the 1/3 life estate.
Policy: Keeps the property in the family line
83
How is separate real property distributed when an intestate dies with no descendants, but a surviving spouse and parents?
1/2 to spouse in fee simple
1/2 to Parents (or descendants of parents)
84
How is separate real property distributed when an intestate dies survived by ONLY a spouse, and no descendants or parents or other kin?
ALL to surviving spouse in ee simple.
85
What is HEF?
If any question involves a surviving spouse, mention HEF:
1) Homestead (if applicable)
2) Exempt personal property set-aside
3) Family allowance.
Example: "If the home in Jetway County qualifies as a homestead, [wife] Joan is entitled to exclusive occupancy of the homestead for so long as she occupies it. Also, some of the personal property assets may qualify for an exempt personal property set-aside in Joan's favor. Finally, if Joan owns little or no separate property, she can petition for a family allowance in an amount needed for her support for one year. The exempt personal property set-aside and family allowance come 'off the top' of the estate before the intestate distribution is made."
86
What is a homestead?
If intestate's home qualifies as a homestead, surviving spouse is entitled to exclusive occupancy of the homestead for so long as she occupies it.
87
What is per capita with representation?
Per capita at first level; by representation at the next level.
Go down to the first generational level at which there are living takers, and multiple the fraction of distribution by each member of that generational level.
88
What is per capita with representation distribution if intestate decedent dies with a parent living?
If both parents living, 1/2 to each and nothing to siblings.
If one parent living, 1/2 to that one parent and then distributed among the rest with PCR.
89
What is the "bad daddy rule"?
A parent cannot inherit from or through a child if there is CLEAR AND CONVINCING evidence that parent:
1) Abandoned and failed to support the child
2) Knowingly abandoned and failed to support the child's mother during pregnancy, or
3) Was criminal responsible for the death or serious injury of a child.
90
What is the rule of half-blood kin in inheritance by collateral kin?
Half-bloods inherit inherit half as much as whole bloods.
Example: Alice dies intestate and her nearest kin are her full sister (“whole-blood”) Betty and her half- sister Carol (only one common parent), Betty would inherit two-thirds and Carol would inherit one-third of Alice’s estate.
91
What is a laughing heir statute?
Eliminates inheritance by remote relatives?
92
Is there a laughing heir statute in Texas?
No. In Texas, there is no limit on the degree of kinship that qualifies one to be an heir.
If the decedent was not survived by parents or descendants of parents, then 1/2 to maternal grandparents and their kin, 1/2 to paternal grandparents and their kind, etc., and so on without end, until heirs are found on maternal and paternal sides.
93
What is the rule for a child without a presumed father born out of wedlock?
Child cannot inherit from the biological father unless there's a presumption of paternity under the Family Code:
1) Child was born during (or w/in 300 days) marriage, or attempted but void marriage
2) Parties married after child's birth AND the man voluntarily asserted his paternity, OR
3) During the first two years of the child's life, he resided with the child and represented to others that the child was his.
94
How else, outside of the Family Code, can paternity be established?
1) Man signed sworn statement acknowledging paternity
2) Paternity was established in a paternity suit
3) Paternity is established in probate proceedings
(For good cause shown, court may order genetic testing of a decedent)
95
Are there legal inheriting rights for a step-child?
NO, unless there is adoption y estoppel.
96
What is the effect on inheritance of adopting a child?
Adoption establishes parent-child relationship for ALL purposes of Texas law, including full rights of inheritance.
97
How can inheritance rights be terminated?
In a decree terminating the parent-child relationship, the inheritance rights were expressly terminated.
98
What is the rule for posthumous children?
No right of inheritance unless the person was born before or was in gestation at the intestate's death and survived for at least 120 hours.
A person is presumed to have been in gestation if born within 300 day after the intestate's death.
99
What is the rule for deaths in quick succession?
The 120-hour rule.
If an intestate and potential taker both die in quick succession, the taker must survive the intestate by 120 hours in order to take as heir (thus passing what he would have taken to his heirs).
If a will is involved: If the taker does not survive the testator by 120 hours, any wills devising to the taker are read as if they predeceased the testator, and anti-lapse statute applies.
100
Does the 120-hour rule apply in a will conditioning a bequeathment on survival of the testator?
NO. If the will requires survival, or covers simultaneous death, or deaths in common disaster, the 120-hour rule does not apply.
101
Does the 120-hour rule apply to community property?
YES. If a husband and wife die within 120 hours of each other, one-half of the community property passes through H's estate as though H survived W, and one-half passes through W's estate, as though W survived H.
102
What is required for an heir or beneficiary to disclaim their interest in a testator/intestate's estate?
1) Must be in writing, signed, described the interest being disclaimed, and delivered.
2) There is no time limit on making a disclaimer. Can be made any time before accepting the interest.
103
What is the effect of disclaimer?
The disclaiming party is treated as though they predeceased the decedent.
104
Why would anyone want to disclaim an interest in a decedent's estate?
1) Avoid creditor's claims, except for federal tax liens or child support arrearages that have been reduced to judgment.
2) Avoid gift taxes (must be filed within 9 months)
105
What is the effect of a lifetime gift to an heir or will beneficiary?
(Common law vs. Texas Law)
COMMON LAW: Presumed to be an advancement to be taken into account in distribution of the estate.
TEXAS LAW: Not treated as an advancement unless 1) declared as such in contemporaneous writing by the donor, or 2) acknowledged as such by the donee
106
What types of changes in family to watch out for after a will is executed?
1) Testator marries after will executed
2) Testator is divorced after will executed
3) Pretermitted born or adopted after will executed
107
What happens if a testator is married after their will is executed?
Assuming there's no community property, marriage after execution of a will has NO EFFECT.
108
If marriage after execution has no effect, what claims can the new spouse assert after death of the testator?
"HEF"
1) Homestead: If testator owned residence, then spouse can assert a claim for a right to occupy the homestead rent-free. If no homestead, $45,000 cash allowance.
2) Exempt personal property set aside
3) Family allowance: Amount needs for support for a period of one year.
109
What happens if a testator is divorced after their will is executed?
A final decree of divorce or annulment of a marriage revokes all gifts and fiduciary appointments in favor of former spouse and relatives of the former spouse.
Read the will and distribute the estate as though former spouse and relative of former spouse predeceased the testator.
110
What happens if a child is born after the will executed, and there are no other children?
The child takes intestate share of the property not bequeathed to other parent.
111
What happens if a child is born after the will executed, and there ARE other children?
1) If such other children are NOT provided for - pretermitted child takes intestate share not bequeathed to other parent.
2) If such other children ARE provided for, child's share is limited to the gifts to such other children (No one's gift is reduced)
112
What is the exception for the pretermitted child gift?
If the pretermitted child is provided for by some other nonprobate transfer, such as life insurance, that takes effect at testator's death, child does not take.
If a non-probate gift indicates that the testator was mindful of the child, then they are not protected under the pretermitted child statute.
113
Does the pretermitted child statute apply to children who were alive at the time the will was executed, but not included in the will?
NO, they have no rights, because they were alive when executed.
Pretermitted child statute protects only after-born and after-adopted children.
114
What happens if a pretermitted child is born or adopted, and the testator died unmarried?
If the biological mother was not provided for in the will, then the pretermitted child would take everything, since nothing was bequeathed to the child's other parent.
115
How can a will be revoked?
1) By a subsequent testamentary instrument that expressly revokes earlier wills, or
2) By physical act
3) A holographic instrument can revoke a typewritten, attested will, and vice versa.
116
What are the presumptions as to revocation?
1) Where will was last seen in T's possession or control is not found after death --- T presumed to have destroyed will by physical act with intent to revoke.
2) Where will last seen in T's possession or control is found in torn or mutilated condition --- T presumed to have revoked the will by physical act.
117
When do the presumptions of revocation not arise?
These presumptions do not arise if the will is last seen in the possession of someone adversely affected by its contents.
Evidence is admissible tor but the presumption of revocation where will cannot be found or is in damaged condition.
e.g., will destroyed in fire that killed testator.
118
How is a lost will probated?
1) Due execution of lost will must be proved
2) Cause of will's non-production must be proved (must overcome presumption of revocation raised by non production)
3) Contents must be substantially proved by one who has read the will, heard it read, or can identify a copy of the will.
119
What are the rules governing changes made on the face of a will?
1) Words added to a will in handwriting are disregarded, because they're not part of the duly executed will.
2) A handwritten holograph at the bottom of a will that satisfies the signature requirement and is a complete thought will be a valid codicil to the will.
3) Partial revocation by physical act is NOT VALID in Texas. Only revocation in its entirety (crossing out words in a will is not effective.)
120
What is the requirement for changes made on the face of a HOLOGRAPHIC will?
Crossouts and interlineations are VALID as long as evidentiary test is met.
1) Two persons can testify that the crosscuts and interlineations are entirely in the testator's handwriting.
121
What is the Texas rule regarding revival of revoked wills?
Texas applies the common law doctrine for NO REVIVAL of revoked wills.
Once a will is revoked by a later will, the earlier will is "legally dead" and cannot be revived unless it is:
1) Re-exectued with attesting witnesses
2) Republished by a duly executed codicil
122
What is dependent relative revocation?
When testator revokes a will based on a mistake of law or fact as to validity of another disposition, this equity-type doctrine permits the court to disregard the revocation if it finds that the act of revocation was premised on the validity of another disposition.
(HAS NEVER BEEN TESTED)
123
What is the effect of executing a second will that is wholly inconsistent with the first, but makes no mention of revoking?
The first will is "revoked by implication".
124
What is the effect of revoking a codicil to a will?
Revocation of a codicil to a will does not revoke the will.
The part that was modified or revoked by codicil is restored and takes effect as though the codicil had never been executed.
125
What is abatement?
When there are so many claims against an estate that there are not enough assets to cover all the gifts made by the will, there is an order of abatement that is followed:
1) Intestate property (is testator died partially intestate)
2) Residuary estate - personal property
3) Residuary estate - real property
4) General legacies of personal property
5) General legacies of real property
6) Specific bequests of personal property
7) Specific devises of real property
126
What is ademption?
When specifically devised property is no longer in the estate at death, then the person to whom it was devised takes nothing (ademption).
127
Does ademption apply to devises of interest, rather than just the property outright?
NO. If the "interest" in the property is devised, but that property was sold to secure a mortgage, then the person to whom it was devised takes that interest in the mortgage rather than have ademption applied.
128
Does ademption apply to general gifts and demonstrative legacies?
NO. Ademption applies only to specific gifts, not general or demonstrative legacies.
If a demonstrative legacy no longer exists in the estate at the time of death (e.g., $25k to be paid out of stock) then that money comes from the sale of other assets to cover the gift, rather than ademption applying.
129
Does ademption apply to a specific gift in which the property is destroyed and insurance pays the claim?
If property is intended to be devised, but is destroyed and covered by insurance, the intended recipient of that claim does NOT get the insurance proceeds.
ADEMPTION APPLIES.
130
What is the special rule for bequest of stock and other securities?
If one type of stock becomes another, and is valued at twice as much, then the bequest becomes half of the new stock originally intended.
131
Are liens exonerated through a specific gift of encumbered property?
For wills executed BEFORE Sept. 1, 2005, liens on specifically devised property are EXONERATED from residuary estate.
For wills executed AFTER Sept. 1, 2005, the liens are not exonerated, and the beneficiary is no better off than the testator, taking the property subject to the lien or mortgage.
132
What are the rules for incorporation by reference?
An extrinsic document, not present when the will was executed and thus not part fo the duly executed will, can be incorporated by reference into the will if:
1) Writing must be in existence when will executed.
2) Will must show an intent to incorporate the writing, and
3) Document must be clearly identified by language in will, "such that there can be no mistake as to the identity of the document referred to."
133
Can a holographic will incorporate a typewritten document by reference?
NO
134
What are acts of independent significance?
Nontestamentary acts
These are lifetime acts with a lifetime motive or purpose, and even though they affect the outcome of the will, we give it full effect.
e.g., "Car at time of death to X", and T trades crappy car for new Mercedes.
135
What is the effect of mistakes or ambiguities in the will?
Under the 2015 statute, wills can be reformed to correct scrivener's errors to conform with testator's intent, if the mistake is shown by CLEAR AND CONVINCING evidence.
136
What is a latent ambiguity?
A mistake that cannot be ascertained from the face of the will. (generally misdescriptions through names, etc.)
EXTRINSIC EVIDENCE is admissible to cure latent ambiguities and ascertain what T meant.
137
What happens if extrinsic evidence does not cure latent ambiguities?
The gift fails, because there is no ascertainable beneficiary.
138
What is a patent ambiguity?
A mistake that can be ascertained from the face of the will.
EXTRINSIC EVIDENCE is allowed, so that the jury can decide what was intended.
139
What is required for a contract to make or not revoke a will?
A contract to make or not revoke a will can be established only by:
1) Provisions in the will stating that a contract does exist and stating the material provisions of the contract, or
2) A binding and enforceable written agreement.
(Evidence of a joint will or reciprocal wills is not enough evidence of the existence of a contract to create or revoke)
140
What are non-probate assets?
Interests that pass at death other than by will or intestacy, and are not part of the probate estate for administration purposes.
1) Property passing by right of survivorship (joint bank accounts, joint tenancies)
2) Property passing by contract (life insurance, employee death benefits)
3) Property held in trust, including a revocable trust; trust terms govern distribution
4) Property over which the decedent held the power of appointment.
141
Can you change a life insurance or retirement plan beneficiary designation through a will?
NO. Contracts govern change of beneficiary.
142
What is the effect of a disinheritance clause?
This is a negative bequest.
Negative bequests are given full effect, and the disinherited person is treated as though having predeceased the testator.
However, if the disinherited person had children, they still take, since only their parent was disinherited.
143
What is the purpose of a power of appointment?
To permit the life beneficiary to designate the remaindermen of the estate.
144
To whom can a person with the power of appointment appoint as recipients of the remainder of an estate?
To anyone, including themselves, creditors, or their estate.
145
Who are takers in default of appointment?
If a person with the power of appointment does not exercise that power, then the people who should take instead (as indicated in the will) are takers in default of appointment.
146
What is required for a person with the power of appointment to appoint recipients of an estate's remainder in their will?
The will must expressly exercise the power, as required in Texas.
147
What is a special testamentary power of appointment?
When a will limits the class of persons to whom the beneficiary can appoint.
148
What language is required for there to be an exercise of a power of appointment?
"With respect to the power of appointment in my mother's will"... etc.
149
What are the potential elements a will contest?
1) Sufficient capacity of testator
2) Undue influence
3) Fraud in the inducement
4) Lawyer gifts
5) No-contest clauses
150
Test for testamentary capacity?
Did T have sufficient capacity to:
1) Understand the nature of the act he was doing?
2) Know the nature and approximate value of his property?
3) Know the natural objects of his bounty?
4) Relate these elements so as to form an orderly disposition of his property?
151
At what time is the capacity of a testator related?
Must relate to the circumstances at the time the will was executed, or shortly before or thereafter.
The more distant in time a particular fact may be, the less significance it has in determining capacity.
Evidence that is TOO REMOTE is irrelevant to the condition at the time the will was signed.
152
What effect does an unrelated adjudication of "incapacitated" status have on the capacity of a testator?
Contractual incapacity is admissible as evidence of lack of testamentary capacity, but will not support a directed verdict, because it requires a different legal test.
153
Who has the burden of proof for testamentary capacity, and what is the filing deadline for a will contest under this theory?
The contestant has the burden of proof to show lack of capacity, and has two years in which to file a contest.
154
What is the filing deadline for the theories of fraud or forgery?
Two years after the fraud or forgery's discovery
155
What is the effect of a potential contestant accepting the benefit of a will?
They are estopped from contesting it, but only if they had full knowledge of the facts on which contest might be based when they accepted the distribution
156
Who can bring a will contest?
1) Intersted parties
2) Persons with economic interests that would be adversely affected by the will's probate
3) Heirs, legatees under earlier will whose interest would be defeated if the will is probated.
157
Test for undue influence?
Existence of a testamentary capacity subjected to and controlled by a dominant influence of power.
Contestant must prove:
1) Existence and exertion of influence
2) Effect was to overpower the mind and will of the testator, and
3) Product was will (of gift in will) that would not have been made BUT FOR the influence.
"Influence of the testator is not undue unless the free agency of the testator was destroyed and a will proceeded that express the will of the one exerting the influence, not of the testator."
158
What is NOT enough to establish undue influence?
1) Mere opportunity to exert influence not enough
2) Mere susceptibility to influence due to age or illness is not enough.
3) Mere fact of an unnatural disposition is not enough.
"Surmise, suspicion, and conjecture are not evidence of undue influence"
159
What is the effect of a confidential relationship with the testator that helps procure a will?
First state the undue influence test.
THEN: "There is an inference of undue influence is a gift is made to the person having the confidential relationship, which is strengthened when there are suspicious circumstances."
160
What is fraud in the inducement?
When one falsely tells a testator a lie that induces them to create a will providing them a benefit.
(Also raises undue influence issues)
161
What is the rule for a lawyer writing a will for T that includes a gift to himself, his wife, or employee?
The gift is VOID unless the beneficiary was related to T within the THIRD DEGREE of consanguinity (birth or adoption) or affinity (marriage).
162
What is the effect of a no-contest clause?
A person contesting the will that also receives a gift from the will forfeits his bequest.
These are given full effect unless the trial court finds just cause for bringing the contest.
