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Flashcards in Wills & Estates Deck (79)
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1
Q

Probate

A

Judicial proceeding in which the court 1) determines that the decedent left a validly executed wills (or died intestate, in which case heirs are determined) and 2) appoints a personal representative (executor if named in the will, administrator if appointed by the court)

2
Q

Letters Testamentary** (or letters of administration)

A

Show authority to wind up decedent’s affairs and administer the estate

3
Q

Non-Probate Transfers

A

Pass by right of survivorship, not through probate

4
Q

Residuary Estate

A

What remains after administration expenses and debts have been paid and any specific bequests made by the will have been satisfied

5
Q

Requirements of a Duly Executed Will***

A

Testator must be 18

Signed by testator or by someone at T’s direction and in her presence

Two attesting witnesses over age 14

Each witness must sign in Testator’s presence

No requirement that witnesses know they are witnessing a will, that the testator sign in the witnesses’ presence, that witnesses sign in each other’s presence, or that the testator sign at the foot or end of will)

6
Q

Order of Signing

A

Does not matter when the execution occurs in on contemporaneous transaction

7
Q

Conscious Presence Test

A

Testator does not have to be able to actually see the witnesses sign, so long as they are in his presence and he is conscious of what they are doing

8
Q

Proving Wills in Probate

A
  1. Testimony of one attesting witness in open court
  2. If all witnesses are dead or unreachable, testimony of two people as to the handwriting of the testator or either attesting witness. (one sufficient if no more can be reached)
  3. Self-proving affidavit acts as substitute for live testimony of the attesting witnesses in open court
    a) Two step ceremony - T and Ws sign will, then affidavit
    b) One step ceremony - Attestation clause cites all the elements of due execution, attestation clause is prepared as a sworn statement
9
Q

Proper Venue for Probate

A

County where decedent resided.

If decedent was not a TX resident, i) county where principal property located, ii) county in which nearest kin resides, or iii) county where died

10
Q

Who can examine contents of safe deposit box?

A

Spouse, child over 18, or anyone named executor in will.

ONLY IN PRESENCE OF BANK OFFICIAL

11
Q

If Attesting Witness is Beneficiary

A

Interested witness does not affect validity of will. But bequest to witness is void unless:

  1. Will can be proved without interested witness’s testimony
  2. OR the interested witness’s testimony is corroborated by the testimony of a disinterested and credible person,
  3. OR interested witness would be an heir if will were not probated, in which case interested takes lesser of intestate share and legacy under the will
12
Q

Holographic Wills

A

Recognized in TX, but must be wholly in testator’s handwriting and signed by testator.

Holographic codicil to typewritten will OK

Surplusage Rule - Extraneous printed words can be disregarded

13
Q

Can a document operative during T’s lifetime be a will?

A

No, must be intended to take effect at death

14
Q

TX Anti-Lapse Statute

A

Prevents the lapse of gifts left to beneficiaries who pre-decease the testator

Only applies if there is a will

Pre-deceasing beneficiary must be must be descended of testator’s parent and left descendants who survive testator by 120 hours

15
Q

Class Gifts Rule of Construction

A

In a gift by will to a class of persons, if a member of the class predeceases the testator, the class members who survive take

16
Q

Rule of Convenience

A

The Class-Closing Rule of Construction used to define takers of a class gift. The class is closed when some class member is entitled to a distribution

17
Q

Void Gifts

A

Where a named beneficiary was dead at the time the will was executed. Anti-lapse statute and surviving beneficiaries rules apply.

18
Q

Intestate Succession

A

Applies where:

1) Decedent left no valid will
2) Will does not make a complete disposition of the estate, or
3) Heir successfully contests the will and will is denied probate

19
Q

Intestate Succession: Surviving Spouse

A

Community Property - All, unless decedent survived by descendants who were not descendants of the surviving spouse. Then, spouse keeps her half, other half is divided among all children.

Separate Property - 1/3 if decedent left descendants

20
Q

HEF

A
  1. Homestead
  2. Exempt Personal Property
  3. Family Allowance

“If the home qualifies as a homestead, W 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 W’s favor. Finally, if W owns little or no separate property, she can partition for a family allowance in the amount needed for her support up to one year. The exempt personal property set-aside and family allowance come ‘off the top’ of the estate before the intestate distribution is made.”

21
Q

Do children born out of wedlock inherit from their natural father?

A

No, unless there is a presumption of paternity under the family code

  1. Child born during or within 300 days of marriage
  2. Parties married after child’s birth and man voluntarily asserted paternity in a record filed with the BVS, or by consenting to be named the father on birth certificate, or by promising to support the child
  3. During first two years of child’s life, he resided with the child and represented to others the child was his

OR: Man signed sworn statement acknowledging paternity

OR: Paternity established by suit

OR: Paternity established in probate proceedings

22
Q

Inheritance Rights of Adopted Children

A

Adoption establishes parent-child relationship for all purposes.

Adopted child can still inherit from natural parents unless inheritance rights were expressly terminated in the decree terminating the parent-child relationship

Person adopted as adult cannot inherit from biological parents.

23
Q

Posthumous Children

A

No right of inheritance accrues 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 days of the intestate’s death.

24
Q

120-Hour Rule

A

If heir or beneficiary passes within 120 hours (or 5 days) after you die, they are treated as if they predeceased you for purposes of inheritance.

Does not apply if will requires survival, covers simultaneous death, or deaths in a common disaster.

Applies to life insurance policies and joint and survivor bank accounts. Also to property held in joint tenancy with right of survivorship. In effect, treated as a tenancy in common: One-half passes as though the one joint tenant survived, one-half passes as though the other joint tenant survived.
*To trigger right of survivorship, one party must survive the other by 120 hours

25
Q

Disclaimer by Heir or Beneficiary

A

Must be in writing, signed, describe the interest being disclaimed, and delivered to decedent or personal representative.

No time limit on making disclaimer.

Estate acts as though disclaimant predeceased the decedent

26
Q

Lifetime Gifts in TX

A

Not treated as advancement (contra, common law) unless:

1) declared as such in a contemporaneous writing by the donor, or
2) Acknowledged as such in writing by the donee

27
Q

Half & Half Rule

A

Applies to decedent’s property right in the unauthorized commercial use of his name or likeness.

Party making unauthorized use can be liable for damages, profits obtained, exemplary damages, and attorney’s fees.

Recovery goes 1/2 to surviving spouse and 1/2 to descendants

28
Q

What if testator marries after will is executed?

A

No pretermitted spouse statute, marriage has no effect on will

29
Q

What if testator is divorced after 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 former spouse. Read as though former spouse and relatives predeceased the testator

30
Q

Pretermitted Child

A

If no other children when will executed: Chlid takes intestate share of all property not bequeathed to child’s other parent

If there are other children when will executed and they are not provided for: Child takes intestate share of all property not bequeathed to child’s other parent

If there are other children when the will is executed and they are provided for: Child’s share is limited to teh gifts to such other children. Nobody else’s gift is reduced.

Unless child is provided for by nonprobate transfer taking effect at testator’s death or is provided for or mentioned in the will (even if gift is contingent)

31
Q

Dealing with Community Property and a Pretermitted Child

A
  1. Take spouse’s half off table
  2. Take money bequeathed to other parent off table
  3. How much would child inherit if parent died unmarried
32
Q

Revocation of Wills

A

A will can be revoked by:

  1. A subsequent testamentary instrument that expressly revokes earlier wills, or
  2. By physical act
33
Q

Presumptions Regarding Revocation

A

Where last seen in T’s possession or control but not found after death, presumption: T destroyed by physical act with intent to revoke

Where will last seen in testator’s possession or control is found in torn or mutilated condition, presumption: T revoked by physical act

Presumptions do not arise if will last seen in the possession of someone adversely affected by its contents or if evidence is admissible to rebut the presumption or that will was destroyed by accident

34
Q

3-Point Test to Probate a Lost Will

A
  1. Due execution must be proved
  2. Cause of will’s nonproduction must be proved (overcoming presumption of revocation)
  3. Contents must subsequently be proved by one who has read the will, heard it read, or can identify a copy
35
Q

Changes made on face of executed will

A

Plastic overlay rule for holographic codicil

Partial revocation by physical act (crossing out one section) not valid in TX

36
Q

Revival of Revoked Wills?

A

Not in TX

37
Q

What to do when two wills are found

A

Later will treated as a codicil to the first and revokes the first only to the extent they are inconsistent.

If wholly inconsistent, first will is revoked by implication.

38
Q

Classes of Testamentary Gifts

A
  1. Specific devise or bequest: “I devise Blackacre to John.”
  2. Demonstrative Legacy: General amount from specific source (e.g., “I bequeath $25,000 to be paid out of the proceeds of the sale of my Exxon stock to Sally.”)
  3. General Legacy: “I bequeath $10,000 to my nephew, Ned.”
  4. Residuary Gift: “I give all the rest, residue, and remainder of my estate to B.”
  5. Intestate Property: E.g., partial intestacy because the will does not contain a residuary clause
39
Q

Order of Abatement of Legacies to Pay Debts

A
  1. Intestate property
  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
40
Q

Bequests of Stock and Other Securities

A

A specific bequest of stock includes stock produced by a stock split or stock dividend declared after the will was executed, but not cash dividends declared before death, even though not paid until after death

41
Q

Specific Gift of Encumbered Property

A

For wills executed before Sep. 1, 2005 liens on specifically devised real property are exonerated from residuary estate..

For wills executed on or after Sep. 1, 2005, specifically devised real property is taken subject to any lien, mortgage, etc.

42
Q

Ademption

A

If specific devise or bequest is not in the estate at the time of testator’s death, the gift is adeemed and the gift fails.

TX applies identity doctrine. Objective test, testator’s probable intent is irrelevant.

43
Q

Incorporation by Reference

A

An extrinsic document, not present when the will was executed and thus not part of 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 the will “such that there can be no mistake as to the identity of the document referred to.”

Holographic will cannot incorporate a typewritten document by reference

44
Q

Acts of Independent Significance (nontestamentary acts) Doctrine

A

Lifetime act with lifetime motive or purpose is given full effect even though it affects the will

45
Q

Mistakes or Ambiguities in Wills

A

Latent Ambiguity - Misdescription. Can be cured with extrinsic evidence, but if evidence does not cure, gift fails

Patent Ambiguity - “I bequeath the sum of Twenty-five dollars ($25,000)…” Can be cured with extrinsic evidence.

2015 Statute - Will scan be reforemd to correct a scrivener’s error to conform with the testator’s intent if the mistake is shown by clear and convincing evidence

Wills can also be reformed upon petition by executor if appropriate (i) to prevent impairment of estate’s administration, or (ii) to achieve tax objectives or to qualify beneficiary for governmental benefits

46
Q

Contracts Relating to Wills

A

A contract to make a will or not to 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

If contractual will is established, (i) the new will that purported to revoke the agreed upon disposition under the contractual will is admitted to probate, and then (ii) a constructive trust is imposed in favor of the beneficiaries of the contractual will

47
Q

NonProbate Assets

A

Pass at death other than by will or intestacy. Not part of the estate for probate purposes.

  1. Property passing by right of survivorship
  2. Property passing by contract (e.g. life insurance, employee death benefits)
  3. Property held in trust
  4. Property over which decedent held a power of appointment
48
Q

Words of Disenheritance

A

Given full effect under 1991 statute.

Distribute estate as though disinherited party predeceased the testator

49
Q

Power of Appointment

A

Permits life beneficiary to designate the remaindermen

Donee of a General Testamentary Power of Appointment - Is not limited in the class of beneficiaries. Can appoint the property to anyone, including herself, her creditors, or her estate.

Donee of a Special/Limited Testamentary Power of Appointment - Limited in the class of persons to whom she can appoint

Takers in Default of Appointment - Take property on death of donee if the power of appointment is not exercised

Will must expressly exercise power of appointment

To exercise power of appointment, must be a specific reference to the power

50
Q

What must be alleged and proved to show that a testator had sufficient mental capacity to make a will?

A

Did the testator have sufficient mental capacity to:

  1. Understand the nature of teh act he was doing?
  2. Know the nature and approximate value of his property?
  3. Know the natural objects of his bounty?
  4. Understand the disposition he was making?

Evidence of T’s capacity or lake thereof must relate to the circumstances at the time the will was executed

Adjudication of incapacity admissible as evidence of a lack of testamentary capacity, but will not support a directed verdict

51
Q

Who may contest a will?

A

Only interested parties, including those with an economic interest that would be adversely affected by the will’s probate and heirs under an earlier will who would be defeated if the will was probated

One who accepts benefits under a will is estopped from contesting it, only if he had full knowledge of the facts on which the contest might be based when he accepted the distribution

52
Q

Undue Influence

A

Existence of testamentary capacity subjected to and controlled by a dominant influence or power. Contestant has the burden of proof and must prove;

  1. Existence and exertion of the influencer
  2. Effect was to overpower the mind and will of the testator, and
  3. Product was will (or gift in will) that would not have been made but for the influence

Mere opportunity or susceptibility to influence not enough. Nor is the mere fact of an unnatural disposition.

Where a will is procured by one in a confidential relationship who benefits from the will, an inference of undue influence exists, and is strengthened when there are suspicious circumstances

53
Q

Gifts to lawyer in will he drafted

A

Void unless beneficiary was related to testator within third degree of consanguinity or affinity (marriage)

54
Q

No-Contest Clauses

A

Given full effect unless trial court finds the contest was brought in good faith with just cause

55
Q

Independent Administration

A

Central feature of TX estate administration law

Wills may name an independent executor, and provide that no action shall be held in the courts other than probate of the will and filing an inventory and list of claims of the estate

Consequence: Will is administered without court supervision or involvement

Authorized by Estates Code when provided for in will or if all distributees agree

Ind. administrator can do without court order whatever a dependent administrator can be authorized to do by court

56
Q

Timeline for Independent Administration

A
  1. Inventory to be filed within 90 days (or affidavit in lieu of)
  2. Interested parties entitled to an accounting upon demand after 15 months then every 12
  3. Interested party can petition for distribution 2 years after appointment of IE
  4. Within 120 days of appointment, IE must:
    a) Post fiduciary surety bond unless waived by will
    b) Publish notice of administration
    c) File inventory
    d) Give notice to named beneficiaries
    e) File certificate that notice to beneficiaries was given
57
Q

For what can IE be removed?

A
  1. Cannot be served with process
  2. Has misapplied or embezzled estate funds
  3. Failure to post bond
  4. Material conflict of interest
58
Q

How can an estate be administered with the least burden and cost without the appointment of a personal representative (IE)?

A

General Principle: TX favors informal administration of estates, but certain formalities are required where a procedure to clear title is required to recognize ownership rights of successors

  1. Probate will as Muniment (link in the chain) of Title (only possible if no unpaid debts other than mortgage on homestead)
  2. Statutory Heirship Proceeding - Can provide formal recognition to establish title of successors by inheritance
59
Q

Small Estate Administration

A

If decedent died intestate and the value of the probate estate (not counting homestead, exempt personal property, and non-probate assets) is less than $75,000, affidavit issued by court clerk serves same function as letters testamentary granted to an executor or letters of administration to administrator.

Party with affidavit can collect decedent’s assets by furnishing a copy of the affidavit.

Affidavit recorded in county where land is located can clear title to D’s homestead

Homestead must be only real property

60
Q

What if subsequently found will revokes gift already granted to beneficiary and sold to BFP?

A

Beneficiary under new will have an action against initial beneficiary to recover lost damages but cannot set aside the sale if order admitting first will to probate was validly issued

61
Q

When must a will be offered for probate?

A

Within 4 years, unless party shows he was not in default.

After 4 years, can only be probated as muniment of title, but no personal representative can be appointed and no estate administration can be opened

62
Q

Priority as to who is to be appointed personal representative?

A
  1. Executor named in will
  2. Surviving spouse
  3. Principal beneficiary named in will
  4. Any other beneficiary named in will
  5. Next of kin

Minors, incapacitated persons, convicted felons, and people the court finds unsuitable are all disqualified

63
Q

Can a nonresident serve as administrator of a TX estate?

A

Yes, but must appoint resident agent for service of process

64
Q

Temporary Administrator

A

Can be appointed for 180 days and have only the powers appointed by the court

65
Q

Compensation of Executors and Administrators

A

5% in, 5% out rule - Entitled to 5% of all sums actually received or paid out in cash

Does not apply to cash on hand or distributions to beneficiaries or heirs

66
Q

Procedures for Presentment of Creditors’ Claims Against an Estate

A

Same for dependent or independent administration

  1. Notice by publication in newspaper in the county
  2. Permissive personal notice to unsecured creditors
  3. Mandatory notice to secured creditors by registered or certified mail

In a dependent administration, a general creditor must file an authenticated claim supported by an affidavit with probate court or administrator. Administrator must write a memo of action on claim in 30 days or it is rejected and creditor must file suit within 90 days.

No 90 day requirement for independent administrations

67
Q

Secured Creditors

A

If decedent was personally liable on a note secured by a mortgage, the creditor can present its claim for payment out of the general assets of the estate, even if teh note is not yet due.

Creditor must file claim as matured secured claim or it will be classified as a preferred debt and lien meaning it can foreclose but is not entitled to a deficiency judgment (but if preferred, has priority over all other claims)

68
Q

Order of Priority for Claims Against Estate

A

Class 1: Funeral expenses and expenses of last illness up to $15,000

Class 2: Expenses of administration

(IRS claims between 2 and 3)

Class 3: Secured claims to extent covered by lien

Class 4: Child support arrearages

Class 5: State Taxes

Class 6: Claims for repayment of medicaid assistance paid by state

Class 7: Cost of confinement if died in prison

Class 8: All other claims

69
Q

HEF

A

H - Homestead: Qualifying residence exempt from creditors’ claims

E - Exempt Personal Property Set-Aside: Up to $100,000 of personal property, including auto, furnishings, cattle, etc. (jewelry cannot exceed $25,000)

  • -If estate is solvent, exempt property set-aside is only temporary during period of estate administration, after which property passes under will or intestacy.
  • -If estate is insolvent, set-aside is permanent
70
Q

Outline procedural steps for sale of real property in a court-supervised administration

A
  1. File application for sale describing property, amount of outstanding creditor’s claims, property on hand available to pay creditors, other facts showing need to sell real estate for authorized purpose: funeral and admin. expenses, debts, family allowance, etc.
  2. Date for hearing set, notice given to all persons interested in the estate
  3. Hearing held, at which court orders sale and specifies terms
  4. Property sold, sale reported to court within 30 days
  5. After notice to interested parties, confirmation hearing is held and court affirms sale
  6. Personal representative gives deed to purchaser
71
Q

2013 Anti-Forfeiture Statute

A

Applies to Independent Administration

Secured creditor who elects matured secured claim cannot foreclose on mortgage without approval of independent executor or court approval.

Secured creditor with preferred debt and lien cannot exercise foreclosure rights within first 6 months of administration

72
Q

Consequences of Qualifying as a Homestead

A
  1. Both spouses must join in conveyance or mortgage of homestead property (even if HS is one spouse’s separate property)
  2. Free from creditors’ claims, except: (purchase money mortgage lien, taxes on property itself, federal tax liens, MML for improvements on the HS, up to 80% of value of equity in second mortgage)
  3. HS passes free of creditors’ claims if survived by spouse or minor child
  4. Probate Homestead - Right to occupy HS rent-free for life, or for so long as occupied as a homestead, in favor of surviving spouse or minor children
73
Q

If decedent did not own a homestead (i.e., apartment dwellers)

A

$45,000 in lieu of homestead

74
Q

Family Allowance

A

Provides support for surviving spouse and minor children during period when D’s assets are in probate administration.

Permissible Allowance: Amount needed for support for one year (even if survivor earns money and received nonprobate tranfers)

75
Q

TX Proof of Lost Wills Statute

A

Allows wills to be probated even if they cannot be produced in court, if the will proponent meets a 3-point statutory test:

  1. Due execution must be proved as in any other case
  2. Testimony must establish the cause of the will’s non-production sufficient to show that the will cannot be produced after diligent search
  3. The will’s contents must be substantially proved by the testimony of a credible witness who has read the will or heard it read, or who can identify a copy of the will
76
Q

Under TX Statute, who is entitled to inherit when decedent dies intestate?

A

Surviving spouse and children to the exclusion of everyone else

77
Q

How can spouses create a joint tenancy with a right of survivorship with respect to community property?

A

Both spouses must sign the governing instrument

Agreement must specify a right of survivorship. “As joint tenants” is not sufficient to create a survivorship estate.

“Shall vest in and belong to the survivor” or words of like effect are sufficient

78
Q

Options for transferring the assets of an estate to the appropriate heirs:

A
  1. Statutory Heirship Proceeding - An action for a declaratory judgment, which can provide formal recognition to establish title of successors by inheritance without need to appoint a personal representative
  2. Order of No Administration - Court may enter an order that no administration of decedent’s estate is necessary if there are no unpaid debts apart from the mortgage and the entire value of the assets–excluding the homestead and exempt personal property–does not exceed the amount to which the surviving spouse, minor children, and adult incapacitated children are entitled as a family allowance
  3. Small Estate Administration by Affidavit - Available if intestate decedent’s estate does not exceed $75,000, not including homestead and exempt personal property and there are no debts other than a mortgage on the homestead
  4. Probate Will as Muniment of Title - Only an option when a will exists
79
Q

How are life insurance beneficiary designations and joint tenancy dispositions governed?

A

By the lifetime transfer rule for community property. Spouses may make a reasonable gift of community property without the other spouse’s consent, subject to the fraud on the spouse doctrine. Under the doctrine, a gift may be challenged if it was intended to defeat community property rights. Factors the court considers include:

a. Whether the donee is related to the spouse
b. The amount of the gift relative to the entire community estate
c. Whether the other spouse receives at least that much in other property
d. Whether the gift was the donor’s sole management property