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 (