all of it Flashcards
In a non-jury trial, a court _____ interview children over the age of 12 in determining conservatorship issues and _____, in its discretion interview children under the age of 12
must; may
What are the Holley factors
best interests of the child - desires of the child, emotional & physical wellbeing, emotional and physical danger, stability of the home, acts or omissions, parent abilities
Can the court look at martial status, gender, sex, race, or religion when appointing joint managing conservators?
No
Is there a presumption that separating sibling is not in the best interests
Yes
What can you go after to collect child support
garnishment of wages, money judgment, contempt, lien on non-exempt property, revocation of licenses (like a lawyer license)
maximum amount of wages that can be garnished for child support
50%
ST - Is PMSI-holder entitled to superpriority against even prior perfected interests?
Yes!
CP - What are the requirements for a promissory to be negotiable
(1) written, signed agreement
(2) providing an unconditional promise
(3) to pay a fixed sum
(4) of money
(5) on demand or a specified date
(6) contains language of negotiability
(7) does not contain any additional undertakings
If you see negotiable - should you think commercial paper or secured transactions
COMMERCIAL PAPER
CP - When determining if a bank should have honored a check, what steps do you go through
- Identify type of instrument at issue (note or draft)
2. Is check negotiable?
CP - For order paper to be negotiable, what do you need to make sure of
check is made out to specific people and both people indorsed (signed) the check
CP - What’s the midnight rule
Allows the bank until midnight the next day after a check is dishonored to debit the account
what does testamentary intent/capacity require
That the testator:
(1) understands the nature of her act
(2) knows the nature and objects of his bounty (loved ones, etc)
(3) knows the nature and extent of property
(4) understands the disposition they’re making (final disposition of assets)
When does a certificate of deposit go outside the probate process
when there is a named beneficiary - typically when there is a joint tenant with the right of survivorship
Upon the death of one joint tenant, a checking account becomes the sole property of the ___________
surviving joint tenant
Hypo: There is a $500K life insurance policy naming Thomas as the insured, Julie as the beneficiary, and Thomas’ estate as the default beneficiary.
Julie is now dead.
Goes to the default beneficiary, the estate – proceeds pass through intestate scheme
How many homestead exemptions can you claim?
only 1
Does a trustee violate his duties when he fails to prepare an accounting?
Yes - when a trustee gets property of the trust in his possession, it is mandatory that the trustee put together a statement of accounting showing all the assets of the trust within 90 days and then again once every 12 months
Does a trustee violate his duties if he purchases a luxury vehicle for himself?
Yes, a trustee is not allowed to partake in any kind of self-dealing. They can be reasonably compensated for being a trustee, but a luxury car is not reasonable compensation
Does a trust beneficiary have a right to demand a statement of accounting at any time
yes
Does a trustee violate his duties if he loans himself $250,000? What if they pay the money back?
Yes - even if they pay the money back, it is a breach of the trustee’s duty as a trustee and self-dealing
Does a trustee violate his duties if invests money into a new fossil fuels venture that was started by two former business partners?
No - a trustee has a duty to diversify the trust and invest money as a prudent investor would - would need to show he did research and a reasonably prudent investor would have invested
What are the remedies if trustee breaches duty
- petition court to have trustee removed
- ## recover money that was wrongly spent
Trusts - Can you waive your claims of breach if you didn’t file suit within the SOL outlined in the trust instrument
No - a settlor can’t waive liability from a trustee for gross negligence, intentional misconduct, and self-dealing
what is a small estate affidavit
Basically if the person died without anything and you don’t want it to seem like overkill
- The deceased person died without a Will;
- At least 30 days have passed since the date of death;
- No person has filed an application to be appointed as personal representative of the estate;
- The value of the probate estate is $75,000 or less, not counting the value of the homestead and other exempt property; and
- The total assets (not counting homestead and exempt property) exceed the total known debts of the estate (
Is an LLC liable for the torts an employee commits during the course of employment
Yes BUT just because the LLC is liable doesn’t mean the managers or members themselves are liable
Can LLC members and managers limit their liability?
Yes, but only for negligence - they cannot limit their liability to the LLC for gross or willful misconduct
Is this provision in a partnership agreement valid: “any partner who wishes to access RPL’s books and records may do so, but only (i) during normal business hours; (i) under Ashley’s supervision, and (iii) after reimbursing RPL for the reasonable cost of making the books and records available”
Yes, a partnership agreement may restrict the right the right to inspect books and records but only if its reasonable. These would be considered reasonable.
Can a partnership agreement limit the partners liability?
No - in a general partnership, all partners are liable for the obligations and debts of the partnership. This cannot be modified b/c it’s one of the basic tenants of a GP
Can a partnership agreement limit a partners liability for beach of duty of care and duty of good faith to only when they’ve engaged in willful or intentional misconduct
Yes - although a partnership agreement cannot completely limit the duty of care and good faith, they can modify what constitutes a breach
Can a partnership agreement specify a choice of law under which it will be governed?
Yes, but only if there is some reasonable connection or reason for the choice - can’t be out of left field
Is a bank required to give the buyer a “Seller’s Disclosure Of Property Condition” after a foreclosure sale?
No, this is one of the statutory exceptions to a seller having to provide a disclosure of the property condition - in a foreclosure sale, the home is sold “as-is”
What’s the statute of limitations for a spouse to bring a claim that they are entitled to property they didn’t get
2 years
weird question
If there is an oil and gas lease on a piece of property and the land is sold in a non-judicial foreclosure sale, is the land still subject to the oil and gas lease?
Yes, the property is still subject to the oil and gas lease. The oil and gas lease was properly recorded in the county and is a valid encumbrance on the land. When a buyer buys property in a non-judicial foreclosure sale, they take the property with all its encumberances.
Can you sell two or more tracts of non-contiguous lots in a non-judicial foreclosure sale?
No, since a non-judicial foreclosure sale requires that the land be sold in the county where the land is located, selling it in one sale likely violates that rule
Does Texas allow a trustee with a deed of trust to commence a non-judicial foreclosure sale/
Yes, but there are restrictions
Can creditors attach a lien to a homestead?
No, with a few exceptions - home improvement liens, purchase money mortgages, tax liens, owelty, home equity, refinancing
What steps can a shareholder take to prevent the BOD from taking an action they disagree with/an ultra vires action (j2012)
They can file an injunction to enjoin the action
Who is the primary party responsible for plugging a well? What if they can’t be found?
The primary party responsible for plugging an abandoned well is the operator that had control over the well at the time of its abandonment.
If the operator cannot be found, then persons with a working interest in the well at the time of its abandonment may be held responsible for plugging the well.
Can landowners and royalty interest holders be responsible for plugging a well?
No, they cannot be held responsible for not plugging the well
What happens if neither the oil company nor the working interest holder can be found?
Railroad Commission will use funds accrued for the purpose of paying for the clean-up of abandoned wells to pay for plugging the well
If the oil company doesn’t pay royalty payments can the lease terminate?
No you can sue for damages b/c its a breach but the lease doesn’t terminate
For a will that is executed after September 1, 1979 & it says its a joint will that cannot be revoked, what else do you need
It must be established by written agreement that is binding and enforceable, basically you need the will + a separate contract not to revoke
Commercial paper - what happens if an instrument has been lost, destroyed, or stolen,?
The person entitled to enforce the instrument can bring an action for conversion
What is conversion
An instrument is converted when it’s taken by transfer from someone who isn’t entitled to enforce it OR a depository or payer bank makes payment on the instrument to someone who isn’t entitled to enforce it
When does a grandparent have standing to file suit
if they are (1) the biological grandparents (2) one of the parents is dead (3) the other parent is incarcerated, unavailable, or otherwise unfit to be the parent
Must show that substantial harm will result to the children if not!!
What is a spendthrift clause & what does it protect from?
A spendthrift trust expressly restricts the beneficiary’s power to voluntarily or involuntarily transfer his equitable interest.
When does a spendthrift clause apply
As long as the property remains in the trust & its inapplicable after its been paid out to the beneficiary
Courts will not enforce spendthrift clauses in cases in which the settlor is also the beneficiary, as this would provide an easy way for individuals to avoid their creditors.
When will a court not enforce a spendthrift clause
Courts will not enforce spendthrift clauses in cases in which the settlor is also the beneficiary, as this would provide an easy way for individuals to avoid their creditors
What types of creditors CAN reach into a spendthrift clause
Texas limits the effects of spendthrift clauses to certain classes of creditors, so as not to include children and spouses entitled to support, those providing basic necessities to the beneficiary, and holders of federal or state tax liens.
Is a trust presumed to be revocable unless expressed otherwise?
Yes, unless specified in the trust instrument
Will a trust fail for a lack of trustee? (or if the trustee dies, resigns, becomes disabled, or fails to accept the office?) What’s the exception
No - the court will appoint a successor trustee. However, if the settlor named a specific trustee or expressed that the trust would only continue under that specific trustee, then the trust may fail
If self-dealing is an issue, what is there an irrebuttable presumption of?
That the trustee breached the duty of loyalty, even if the transaction was made in good faith or to benefit the trust
Does the trustee have the power to terminate the trust?
No, unless the trust instrument contains such provisions
Who has standing to challenge a charitable trust?
Only the settlor or state attorney general acting on behalf of all beneficiaries
What does attachment require (Valuable COW)
value given, collateral rights, and oral pledge(+ possession) or WIGS (written, identifying, signed, and granted)
WIGS
written, identifying, granting, and signed agreement
- identifying means it reasonably describes the collateral
- granting means it grants a security interest in the identified collateral
- signed means authenticated by the debtor. Authentication can be electronic
a valid financing starement must contain 3 things…
you, the farmer, and the cow
what’s something in the scope of employment (absolutely terrific professional person)
the right Act, Time, Place, and Purpose
When can a partnership dissolve without court involvement (when it gets WET)
written consent, event happens, or term ends
What must you normally include when you file articles of corporation? (you spawn a corporation)
shares, prepared, address info, why formed, and name
What increases the risk of veil piercing (three I’s)
insufficient initial funding, ignored formalities, injustice
If the BOD is considering a decision you don’t agree with, what’s another thing you can do beyond file for an injunction
call for a special meeting to vote on a fundamental change
