Term
| Requirements for Duly Executed Will |
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Definition
-T must be 18, married, or in the armed forces
-Signed by testator or by someone at her direction in her presence (proxy signature)
-Two attesting witnesses over 14
-Each W must sign in T's presence
-CODICIL must be executed with the same formalities |
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Term
| What does Texas NOT require for it to be a validly executed will? |
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Definition
-That Ws know they're witnessing a will
-That T sign in the Ws' presence - T could have signed EARLIER
-That Ws sign in each other's presence
-That T sign at the end of the will |
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Term
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Definition
| Witnesses MUST sign in T's conscious presence - T must be conscious of where they are and what they're doing - if T was in a coma, it's not valid |
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Term
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Definition
| If a witness dies before will is probated, just need other witness to testify in open court BUT if all witnesses are dead, testimony of 2 people to T or W's handwriting - OR just one person's testimony |
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Term
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Definition
Affidavit contains statements the Ws would testify to in open court - serves the same function as live testimony
-Could sign affidavit after signing the will, or add attestation clause to the will |
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Term
| Interested Witness Statute |
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Definition
If witness is interested party, WILL IS STILL VALID - just makes bequest to W void UNLESS:
-Will can be proved without W's testimony, OR
-Interested W's testimony is corroborated by the testimony of a disinterested person - attorney, paralegal, etc. - who was present at will signing, OR
-W would be an heir if will weren't probated, in which case they'll take whichever is less b/w will and intestate share |
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Term
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Definition
Recognized in Texas so long as they're:
-Wholly in T's handwriting and signed by T |
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Term
| Surplusage rule - holographic wills |
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Definition
| Extraneous printed words, not necessary to complete the will or its meaning, can be disregarded |
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Term
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Definition
-Must be intended to take effect AT DEATH (not before)
-Claims that "I'll sign the necessary docs later" is NOT intending to make a will |
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Term
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Definition
-Normally, when a will beneficiary dies before T, the gift lapses -ONLY APPLIES when predeceased beneficiary was descendant of T's parent (child, grandchild, brother, sister, nephew, niece) AND left descendants who survive T by 120 hours
-Allows predeceased beneficiary's issue to take |
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Term
| Lapse in Residuary Estate |
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Definition
| Where residuary estate is devised to 2+ persons, and the gift to one of them lapses, the remaining residuary beneficiaries take the residuary estate in proportion to their interests |
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Term
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Definition
In a gift by will to a class of persons (children, brothers, etc.), if a member of the class dies before T, the class members who survive T take
-CANNOT identify the individuals within the class, otherwise when an individual dies first, their share falls into the residuary estate |
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Term
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Definition
| Class closes when some class member is entitled to a distribution |
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Term
| Per stirpes (per capita with representation) |
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Definition
| One share for each family line - start cutting up shares at the next descendant, living or not - so if there are kids, A and B, they each get 1/2 - if they had died, and A had 3 kids, they would all split A's 1/2 share, and B's kids (however many) would split B's 1/2 share |
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Term
| INTESTATE: What does wife take if husband dies and he has kids from another marriage? |
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Definition
Wife: 1/2 community property
Kids: split the other 1/2 amongst themselves |
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Term
| What if husband had stocks and bonds before marriage - how distributed? |
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Definition
| 1/3 to wife, 2/3 to children |
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Term
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Definition
If A and B have a kid then part ways, and the kid doesn't grow up with B as his dad, he probably can't inherit from B, UNLESS:
-Child was born during or w/i 300 days after marriage (or attempted/void marriage)
-Parties married after child's birth and man voluntarily asserted his paternity by:
--In record with Bureau of Vital Statistics
-By consenting to be named father on birth certificate
-During first 2 yrs of child's life, lived with the child and represented to others that it was his kid; OR
--Man signed affidavit claiming paternity
--Paternity was established in a suit
--Established in probate proceedings by C&CE |
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Term
| Inheritance Rights of Adopted Kids |
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Definition
| Adoption establishes parent-child relationship for all purposes of TX law |
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Term
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Definition
Must survive by 120 hours to inherit from decedent
-If will requires survival or covers simultaneous death, this rule doesn't apply |
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Term
| Disclaimer by Heir or Beneficiary |
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Definition
Must be written, signed, acknowledged
Must be filed within 9 months after decedent's death
Must be filed with probate court, with copy to personal representative |
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Term
| Lifetime Gift to Heir or Will Beneficiary |
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Definition
Lifetime gifts to children are treated as an advancement of their intestate share UNLESS:
-Declared otherwise in a contemporaneous writing by the donor;
-Acknowledged as such in a writing by the donee
IF TREATED AS AN ADVANCEMENT: $300,000 estate + $30,000 gift, then divided three ways among the kids |
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Term
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Definition
If no other kids when will was executed, child takes intestate share of all property not bequeathed to other parent
If there are other kids, and they're not provided for, child takes intestate share not bequeathed to other parent; if they are provided for, child's share is limited to the gifts to such other children |
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Term
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Definition
| A will is deemed executed on the date of the last codicil to thewill |
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Term
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Definition
Can be revoked by
-A subsequent testamentary instrument executed "with like formalities," OR
-By physical act (T destroys or cancels the will, OR has someone else destroy it in his presence) |
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Term
| Presumptions of Revocation |
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Definition
If will was last in T's possession before death, but now can't be found
If found torn or mutilated
REVOCATION PRESUMPTION DOESN'T ARISE if last seen with someone who was adversely affected by its contents |
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Term
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Definition
1) Due execution must be proved
2) Cause of will's non-production must be proved (overcome presumption of revocation)
3) Contents must be substantially proved by one who's read will, heard it read, or can identify a copy of it |
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Term
| Changes on Face of Executed Will |
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Definition
Crossing out, re-writing something - INVALID
Writing a full sentence at the bottom of the page that has meaning on its own - VALID |
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Term
| Abatement of Legacies to Pay Debt |
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Definition
Abate in the following order:
-Intestate property
-Residuary estate - personal property
-RE - real property
-General legacies - PP
-General legacies - RP
-Specific bequests - PP
-Specific bequests - RP |
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Term
| Bequests of Stock and Securities |
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Definition
If T sells "my 100 shares" of stock before he dies, heir will get nothing
If T says "give 100 shares" of stock, heir will get whatever those 100 shares were worth on the day of T's death
INCLUDES STOCK PRODUCED BY A STOCK SPLIT OR DIVIDEND |
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Term
| Specific Gift of Encumbered Property |
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Definition
| If Blackacre is conveyed to Ann, but when T dies, it's subject to a mortgage, does it come out of the residuary estate or the value of the house? -If executed before 9/1/05: liens on specifically devised property are exonerated from residuary estate, and so the lien has to be paid off On or after 9/1/05: executor doesn't have to pay the mortgage debt out of the residuary estate - property is passed with the encumbrance still intact |
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Term
| INCORPORATION BY REFERENCE |
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Definition
Extrinsic doc can be incorporated by reference into the will IF:
1) Writing is in existence when the will is executed
2) Will shows an intent to incorporate it
3) Document must be clearly identified by language in the will - NO MISTAKE as to which document the will is talking about
"Attached sheet" is NOT SUFFICIENT |
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Term
| ACTS OF INDEPENDENT SIGNIFICANCE |
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Definition
| If T states in will, "I give the car that I own at my death to A" and a year before her death she buys a Benz, A will get that Benz |
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Term
| Mistakes or Ambiguities in a Will |
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Definition
Look to the plain meaning - extrinsic evidence is inadmissible
If there's a latent ambiguity (like giving money to nephews with similar names), CAN USE EXTRINSIC EVIDENCE |
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Term
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Definition
1) Understand the nature of his act
2) Know nature and approximate value of his property
3) Know the natural objects of his bounty (his heirs)
4) Understand the disposition he was making
EVEN IF USUALLY INCOMPETENT, could've executed a valid will during a "lucid interval" |
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Term
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Definition
Contestant has burden of proof to prove
1) Existence and exertion of the influence
2) Effect was to overpower the will and mind of T, AND
3) Product was will wouldn't have been made but for the undue influence
CAN LOOK TO:
-Mere opportunity, susceptibility, or fact of unnatural disposition is NOT enough
INFERRED IF: will was procured by someone in a confidential relationship with T who benefits from the will |
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Term
| Independent Estate Administration |
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Definition
Allowed under the Probate Code when:
1) Provided for in the will
2) If all distributees agree
Must file inventory of estate assets within 90 days after appointment - public record, to make sure all debts are paid - then file an affidavit in lieu of an inventory |
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Term
| Priority as to Who's Appointed Personal Representative |
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Definition
1) Executor named in will
2) Surviving spouse
3) Principal beneficiary named in will
4) Any other beneficiary in will
5) Next of skin
NO MINORS, INCAPACITATED PERSONS, OR CONVICTED FELONS, or anyone the court finds "unsuitable"
NONRESIDENT CAN SERVE but has to appoint TX resident for service of process |
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Term
| Creditors' Claims in a Guardianship Administration |
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Definition
| MUST give personal notice to unsecured creditors, requiring them to present all claims for money within 4 months of receipt of notice - otherwise claim is barred |
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Term
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Definition
| Surviving spouse/minor child has right to occupy homestead (even if separate property) rent-free for life, or so long as she chooses - NOT in favor of unmarried adult child! (GTFO) |
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Term
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Definition
Right to take charge of the ward
Duty to provide care, supervision and protection
Duty to provide food, clothing, medical care and shelter
Power to consent to medical and psychiatric treatment (think Britney Spears' dad) |
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Term
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Definition
Right and duty to manage ward's property
Enforce ward's obligations
Bring or defend suits by or against the ward |
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Term
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Definition
| Children 12+ can pick their own guardian in writing filed with court, unless court decides their pick isn't in their best interest |
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Term
| Priority in Appointing a Guardian |
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Definition
FOR ADULT:
1) Spouse
2) Nearest next of kin
FOR MINOR:
1) Surviving parent
2) Grandparent
3) Nearest next of ski |
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Term
| Reasons to Remove Personal Representative |
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Definition
Gross mismanagement and gross misconduct
Failure to file inventory within 90 days |
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Term
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Definition
-Qualify by taking oath and posting fiduciary bond within 20 days
-Publish notice of admin in newspaper within 1 month
-File inventory of the estate w/i 30 days
-File application for monthly allowance to be expended on ward's behalf within 30 days |
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Term
| Removing a Guardian Ex Parte |
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Definition
Court can remove guardian w/o their permission if:
-Guardian fails to qualify by giving oath & bond within 20 days
-Moves from TX or is absent for >3 months
-Has neglected/cruelly treated the ward |
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Term
| Is the proposed ward incapacitated? |
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Definition
| Standard is clear and convincing evidence |
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