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1
Q

EXECUTION OF WILLSWhat are the Formal Requirements (4)?

A

FormalitiesThe requirements are:1) The testator MUST BE OF SOUND MIND AND 18 years of age, married, or in the armed forces.2) The will must be SIGNED BY TESTATOR, or by someone at the testator’s direction and in his presence, which is called the proxy signature.3) The will must be WITNESSED BY TWO ATTESTING WITNESSES over 14 years old.4) Each witness must sign in the testator’s CONSCIOUS PRESENCE.This means that the testator must be generally conscious that the will is being signed by the witness.Here, the testator does not have to see the process of signing.He only needs to be in the same room or close by where he could see is sufficient.The testator is considered not in presence, however, if the witness signs the will in an adjoining room or while the testator is unconscious.For Example, if the testator is dead or in a coma.On the other hand, witnesses do not need to know that they are signing a will or sign in each other’s presence.Also, the testator does not need to sign in presence of witnesses or sign before the witnesses. This means the testatorcan sign afterwards as long as he signs immediately afterwards.The testator also does not have to sign at the end of the will or date the will.

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2
Q

EXECUTION OF WILLSAttestation Clause1) What is an attestation clause? Where does it appear?2) Is the Clause Mandatory?3) Is inclusion of this clause Prima Facie Evidence of something?

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Attestation Clause1) Next, the Attestation Clause is a clause that appears at the end of a will and describes what just happened.2) This clause is not mandatory but optional in Texas.3) The clause is prima facie evidence of the facts recited, and it is useful when a witness has bad memory is a hostile witness whosays the testator was not in room when witness signed

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3
Q

EXECUTION OF WILLSCodicil1) What is a codicil?2) What are the formal requirements?3) What kind of codicil does Texas allow?

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Codicil1) Moving on, a Codicil is a later AMENDMENT or supplement to a will.2) It must be executed with the same formalities as a will.3) Furthermore, Texas allows a holographic codicil to an attested will or an attested codicil to a holographic will.

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4
Q

EXECUTION OF WILLSProving Will in Probate1) How to Prove a will in Probate? Exceptions (3)?2) Where is venue? Exceptions (2)?

A

Proving Will in Probate1) To Prove a Will in Probate, the execution of a will can be proven by the testimony of 1 attesting witness in open court.If a witness resides outside the county, it can be proven by a deposition or interrogatory.It can also be proven by a self-proving affidavit.And if all witnesses are dead or cannot be located, it can be proven by testimony of 2 persons who are familiar with the testator’s signature or signature of either attesting witness.2) The venue is usually the county where the decedent resided. However, if the decedent was a nonresident, then the venue should be the county where the principal property is located or the county where he died.Nonresident Example: Decedent having no domicile or residence in Texas.

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5
Q

EXECUTION OF WILLSProving Will in Probate1) What about contents of a safe deposit box? Requirements?2) If will is found in safe deposit box, who should it be delivered to?3) Whats a self-proving affidavit?—-What function does it serve?4) How can a party validate a will that does not contain signatures of attesting witnesses? Requirement?5) What’s a privity bar?6) If Atty makes a mistake, who and what can be done?7) Who can’t sue the atty?8) Can atty keeps secrets? From who and under what circumstances?

A

1) Now, contents of a safe deposit box may be examined, without a court order, in the presence of a bank official by the decedent’s spouse, his child over 18, or the person named as the executor in the will.2) A will found in safe deposit box may be delivered to the executor named in will or the probate court.3) The self proving affidavit is a notarized statement of what just happened.—-It serves the same function as deposition and interrogatory and acts as a substitute for the attesting witness’s testimony in court.4) If the will does not contain signatures of attesting witnesses, BUT SELF PROVING AFFIDAVIT DOES, a party can use those signatures to validate the will. In this case, the will is not self proved and HAS TO CALL ONE WITNESS to testify.5) In a PRIVITY BAR, an attorney is not liable to anyone but the client, who is usually the decedent.6) If the attorney made a mistake, estate can sue the attorney.7) Beneficiaries, on the other hand, cannot sue the attorney. 8) When the attorney represents the executor, all attorney-client communications are privileged and cannot be discovered bybeneficiaries.

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6
Q

EXECUTION OF WILLSInterested Witness1) What’s an Interested Witness case? Is the will still valid? When is will still valid (2)?2) If the interested witness would be an heir and there is no valid will?

A

Interested Witness1) Lastly, in cases of an Interested Witness, which is an ATTESTING WITNESS who is ALSO a BENEFICIARY under the will, the will is still valid but the gift to the witness is VOID UNLESS EITHER:a) The WILL can be PROVED WITHOUT the interested witness’ TESTIMONY,b) Or the interested witness’s testimony is CORROBORATED by the testimony of a disinterested and credible person, such as aperson who was present at the will execution.2) If the interested witness would be an heir and there is no valid will, then he takes the lesser of the legacy under will or the intestate share.Example:If the testator leaves a will with a bequest of $20,000 to his nephew Nathan, then Nathan is an interested witness to the will.If a will were found to be invalid, Nathan would receive $9,000 as an heir.Nathan gets $9,000 unless 1 disinterested and credible person corroborates his will, then he can get $20,000.

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7
Q

OTHER WILLSHolographic Will1) Whats a holographic will?2) Can a holographic will valid?3) Three Requirements of a Holographic Will (3)?4) What evidence is admissible if will is ambiguous?5) How do you prove a holographic will (2)?

A

Holographic Will1) The first is a Holographic Will, which is a handwritten will without witnesses.2) Holographic will can be valid in Texas even if it was not valid in the state the testator lived in when he wrote it.For Example, the holographic will is still valid if a client moved and was domiciled in Texas when he died.3) There are three requirements of a holographic will:a) It must be ENTIRELY HANDWRITTEN BY TESTATOR. If any part is mechanically produced, it is not wholly in handwritingand is not a will unless it is mere extra printed words that are not necessary to complete the will.b) It must be SIGNED BY TESTATOR. Where the quote “I, John smith” is good enough as signature, the word “I” without a nameis not enough.c) HANDWRITTEN PORTIONS MUST SHOW TESTAMENTARY INTENT.An issue arises when the will does not have the statement “this is my will”.On Exam: LOOK FOR WORDS that SHOW there was INTENT to dispose of property.For Example, “I, John Smith, leave my property to” sounds like a will.4) Extrinsic evidence is admissible if the will is ambiguous.Also, the testator must be intended to take effect at the testator’s death.5) To prove a holographic will, there has to be at least TWO PEOPLE TESTIFY that it is WHOLLY in the TESTATOR’S HANDWRITING.There can be a holographic codicil (AMENDMENT) to a typewritten, witnessed Will.

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8
Q

OTHER WILLSNuncupative Will1) WTF is that?2) Are they valid? Since when (now/before)?3) What kind of property is applicable to this will?4) $ amount? If met, what is needed?

A

Nuncupative Will1) Next, a Nuncupative Will is an ORAL WILL.2) In Texas, nuncupative wills made on or after September 1, 2007 are NOT VALID. However, you need to learn about it because oral wills made before September 1, 2007 are still valid.Oral will is made during the testator’s last illness at his home or if he is sick away from home and dies before returning.3) It is for personal property only.4) And if an oral will disposes of more than $30, it MUST HAVE THREE WITNESSES to be valid.

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9
Q

LAPSEIntestate Rules Application1) What if beneficiary dies before Testator? Exception?2) What’s the Anti-lapse Statute?—-What does it apply to?—-When will anti-lapse not apply?3) What happens if no one qualifies to take by anti-lapse?—-What’s the consequence of this?

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LapseIntestate Rules Application1) In general, if a will is executed and the beneficiary dies before the testator or within 120 hours of testator’s death, the gift to the beneficiary lapses.2) However, an anti-lapse statue will substitute another beneficiary for the dead one.—-The anti-lapse statute only applies to gifts under a will.—-Also, anti-lapse will not apply if there is an express requirement of survivorship.No Substitute Beneficiaries Example: “If he survives me”.3) If no one qualifies to take by anti-lapse, the gift lapses and goes into RESIDUE.—-As the consequence, the predeceasing beneficiary must be a descendant of the testator’s parents, such as the testator’s children, grandchildren, siblings, or nieces, and the predeceasing beneficiary must leave descendants who survive the testator by 120 hours.Examples:If the testator leaves something to his brother and his brother dies before the testator, the brother’s children can take place of brother.If the testator leaves something to his child and his child dies before the testator, child’s children can take place of that child.

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10
Q

LAPSEIntestate Rules Application1) What’s the Surviving Residuary Beneficiaries Rule?2) Between the Anti-lapse statute and Surviving Beneficiaries Rule, who wins?

A

1) For the Lapse in Residuary Estate, under the surviving residuary beneficiaries rule, when the residuary estate is devised to 2 or more persons and the gift to one of them lapses, the remaining beneficiaries take the residuary estate in proportion to their interests.Example:If the testator’s will devises that “all the rest and residue of my estate in equal shares to my good friend Alan, my brother Bill and my sister Clara”, and Alan dies before the testator, leaving a child, Andy, who survives the testator by 120 hours.Also, Bill and Clara survive Testator.Since Alan is a friend, not a descendant of the testator’sparents, ANTI-LAPSE STATUTE DOES NOT APPLY.Bill and Clara, on the other hand, can take half each assurviving residuary beneficiaries.2) Furthermore, the anti-lapse statute TRUMPS surviving residuary beneficiaries rules.Example: With the same facts as the last example, if Clarapredeceases the testator, leaving a child, Carl, who survives the testator by 120 hours, and Alan and Bill also survive Testator, then Carl gets Clara’s 1/3 share of residuary estate under anti-lapse statute because Clara was a sister of the testator and anti-lapse statute trumps the surviving residuary beneficiary rule.Under the lapse rule, if there is a class gift and a member dies before the testator, the gift does not lapse, rather, the class members who are alive at the testator’s death divide the total gift.Example:The testator leaves Blackacre to the children of his friend Joe and the residuary to his wife.At the time the will was executed, Joe had 2 children, Al and Bill, but after the will is executed and before the testator’s death, Carl is born to Joe.Al dies but is survived by a son, Al, Jr. And then the testator dies.18 months later, Joe has a child, Donna.Results:Bill and Carl take half each as surviving members.Under the rule of convenience, a class closes at the testator’s death. Therefore, Donna is excluded from sharing in the gift.Subject to the gestation principle, to be included in a class, a child has to be conceived for at least 300 days at the time of the testator’s death.And under the anti-lapse rule, if the class member that died was also a descendant of the testator’s parents who left children, his gift should not pass to other class members but rather it should pass to the issue of the dead class member.With the same facts as above, if the will specifies that it isthe gift to “children of his brother, Joe”, since Al was adescendant of the testator’s parents, anti-lapse statute applies and Al, Jr. would take the gift.

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11
Q

LAPSEIntestate Rules Application3 Methods for Distribution?

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3 Methods for Distribution:(1) Based on per capita, there should be one share for each descendant.The language that makes per capita is “to my descendant per capita.”On Exam: To find out the distribution, count the number of people alive and divide by that number.(2) Based on per stirpes, there would be one share for each family line.The language that creates per stirpes is “to my descendants per stirpes.”Under the per stirpes distribution, the descendants of adeceased person take by representation the share that the deceased person would have taken had he survived to be an heir.(3) when there is per capita with representation, heirstake equally at the first generational level with a living heir.

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12
Q

INTESTATE SUCCESSIONWhen do intestate rules apply?

A

Intestate Succession1) ApplicationIntestate rules apply when:a) The decedent leaves no willb) His will is not valid,c) The will does not make a complete d) disposition of the estate,d) Or his heir successfully contests the will and the will is denied probate.

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13
Q

INTESTATE SUCCESSIONMarried Persons1) How can property be categorized for married persons without a will?2) If all children belong to both the dead and surviving spouse?(C/P)3) If there are mixed children (C/P)4) If there are no children left (C/P)5) What happens with Separate PERSONAL Property when spouse and children?6) What happens with Separate REAL Property when spouse and children?7) If they do not have children? (S/P/P)8) What happens to Separate REAL Property when spouse and children?

A

Married Persons1) In cases of intestate succession for Married Persons, property can be categorized into COMMUNITY or SEPARATE property.2) If ALL CHILDREN belong to both the dead and surviving spouse, then ALL COMMUNITY PROPERTY goes to SURVIVING SPOUSE.3) If there are mixed children, then the SURVIVING SPOUSE gets HALF of the COMMUNITY PROPERTY, and the dead spouse’s CHILDREN, BOTH MIXED AND WHOLE, SHARE his (other) HALF of the COMMUNITY PROPERTY.4) If there are no children left, then all COMMUNITY PROPERTY goes to the SURVIVING SPOUSE.5) On the other hand, ONE THIRD of SEPARATE PERSONAL PROPERTY will be given to SPOUSE and TWO THIRDS to the CHILDREN OR THEIR DESCENDANTS.6) For SEPARATE REAL PROPERTY, ONE THIRD LIFE ESTATE goes to the SURVIVING SPOUSE and TWO THIRDS REMAINDER to their CHILDREN or Descendants.7) If they do not have children, the SPOUSE gets ALL of the SEPARATE PERSONAL PROPERTY that belongs to him.8) And for SEPARATE REAL PROPERTY, the SPOUSE gets HALF in FEE SIMPLE, and the DECEDENT’s PARENTS OR their DESCENDANTS, such as the dead spouse’s brothers and sisters, get HALF in FEE SIMPLE.However, if there are NO SURVIVING PARENTS OR DESCENDANTS, then the SPOUSE gets ALL.**On Exam: After discussing distribution among the spouse and children or descendants, mention homestead, exempt personal property set-aside, and family allowance.

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14
Q

INTESTATE SUCCESSIONIntestate Law for Single Decedent1) Who takes is decedent is single?2) If no descendants… six situations:

A

Intestate Law for Single Decedent1) The Intestate Law for a Single Decedent is that his descendants take all.2) Nevertheless, if he has no descendants, there are different situations.a) If both of his parents are alive, each of his parents gets half of his estate.b) If only 1 parent is alive, that parent receives half while the other half goes to his brothers and sisters or their descendants.If there are no brothers or sisters, then all of it goes to the surviving parent.c) If no parents are alive, then estate passes to his brothers and sisters or their descendants.d) If the decedent has no surviving parents, brothers or sisters, or the brothers and sisters’ descendants, half of his estate goes to his maternal grandparents and the other half to his paternal grandparents.And of course, if one side has all died out, then all estatepasses to the surviving side.

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15
Q

INTESTATE SUCCESSIONShares of Ancestors & Collaterals1) What are Laughing heirs? Are they curt off?2) What about half-blood collateral kin v. full blood?—-explain it.

A

Shares of Ancestors & Collaterals1) Laughing heirs are persons so remotely related to the decedent that they suffer no sadness at the decedent’s death.In Texas, laughing heirs are not cut off.2) Moreover, a half-blood collateral kin gets only half as much as a full blood.—-In detail, if a person dies and the estate is going to pass to their siblings, a half sibling will only inherit half as much as a full blood sibling. This means that full bloods are treated as 2 people when dividing shares.

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16
Q

INTESTATE SUCCESSIONA) Children Born Out of WedlockB) Can they inherit from natural father? Exceptions (4 BIG ONES)?IMPORTANT–REVISIT

A

Children Born Out of WedlockA) They CANNOT inherit from their natural fathers.B) There are THREE EXCEPTIONS to this rule, where children born out of wedlock can inherit from their natural father if:(1) There is a presumption of paternity under Family Code.This presumption exists if the child was born during or within 300 days after marriage. A child born within 300 days after his father has died is presumed to be the child of the dead father and can inherit.This presumption also exists if the parties married after child’s birth and the man voluntarily asserted his paternity in one of 3 ways:a) In a record filed with Bureau of Vital Statistics,b) By consenting to be named father on birth certificate,c) Or by promising in a record to support the child.And the presumption also exists if during the first 2 years of a child’s life, a man resided with him, and the man represented to others that he was the father.(2) Children born out of wedlock can inherit from their natural father if the natural father signed a sworn statement acknowledging paternity,(3) Paternity was established in a paternity suit,(4) Paternity is established in probate proceedings by clear and convincing evidence Additionally, for good cause, Court may order a genetic testing.Now, step or foster children cannot inherit from their stepparents or foster parents except in cases of equitable adoption, where a child can inherit from a step or foster parent but cannot inherit from their relatives.The rule requires that step or foster parents take custody of a child under a valid agreement with the legal custodian that theywill adopt the child.

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17
Q

INTESTATE SUCCESSIONInheritance Rights of Adopted Children1) Who can Adopted child inherit from?2) Who can inherit from an Adopted Child?3) Is adult adoption allowed?

A

Inheritance Rights of Adopted Children1) Adopted child can inherit from adoptive parent and their relatives.Adopted child can also inherit from biological parents and their relatives UNLESS parental rights have been TERMINATED.2) Adoptive parents can inherit from adopted child.However, BIOLOGICAL parents CANNOT inherit from adopted child.3) Also, adult adoption is allowed.

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18
Q

BARS TO INHERITANCE120 Hour Rule1) What is the 120 hour rule?2) What happens if heir fails to survive?3) Where does it NOT apply?

A

Bars to Inheritance120 Hour Rule1) Under the 120 hour rule, an heir has to survive the decedent by 120 hours or 5 days in order to take.2) If the heir fails to survive by 120 hours, then he is deemed to have PREDECEASED the decedent.Also, the anti-lapse statute applies in wills.This rule applies in intestacy and wills.When it applies to community property, each spouse is treated as if they survived the other, and the disposal of community property applies.The 120 hour rule also applies to joint tenancies with right of survivorship and life insurance policies.3) It does not apply IF A DIFFERENT PROVISION HAS BEEN MADE IN THE WILL, deed, etc. which provides for longer or shorter survival times.For Example, “if she survives me” means survival by an instant of time.

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19
Q

BARS TO INHERITANCEDisclaimer1) Which parties can make a disclaimer? Which cannot?2) Requirements for a valid disclaimer (3)?3) What happens when disclaimer is in effect?4) Seven general rules?5) Why disclaim? Reasons (2)?

A

Disclaimer1) Parties who can make a disclaimer include intestate heirs and testate heirs.Also, an executor or guardian can make a disclaimer on behalf of a deceased, incapacitated person, or heir.On the other hand, parents CANNOT disclaim on behalf of their children, only a personal representative may.2) A valid disclaimer must be:a) Written, signed and acknowledge.b) Filed within 9 months after decedent’s death.c) And filed with the probate court with a copy to personal representative.3) When disclaimer is in effect, the disclaimant is treated as if they predeceased the decedent.Again, when a person is dealing with a will, anti-lapse statute applies.4) Let me summarize the seven general rules:a) Disclaimer can be partial.b) Disclaimer is irrevocable.c) Intestate heirs can disclaim.d) The executor or guardian can disclaim on behalf of a minor child.e) A parent, acting as a parent, cannot disclaim on behalf of a minor child.f) A child can disclaim within 9 months of turning 21.g) And the charitable beneficiary can disclaim within 9 months of receiving notice of the gift.5) Reasons to disclaim are to avoid gift taxes and creditor’s claims.

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20
Q

GIFTS MADE DURING LIFETIME1) ADVANCEMENTa) What is Advancement?b) What is an advancements value?c) When does advancement apply?d) When is a lifetime gift to a descendant treated as an advancement (2)?2) SATISFACTIONa) When is a lifetime gift to a will beneficiary a partial satisfaction of a gift made in an earlier will?

A

1) Advancementa) Advancement is a gift made by the testator, while he was alive, to his heir.b) The value of an advancement is what is intended to be deducted from the heir’s eventual share in the estate after thetestator’s death.c) It only applies to intestacy.d) A lifetime gift to a descendant is not treated as an advancement UNLESS:—-There is a contemporaneous writing by the donor stating that the gift was meant as an advancement,—-Or the donee acknowledges such in writing.2) Satisfactiona) A lifetime gift to a will beneficiary is not a partial satisfaction of a gift made in an earlier will UNLESS there is a contemporaneous writing by the donor stating that the gift wasmeant as a satisfaction, or the writing has to accompany the gift.

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21
Q

CHANGES AFTER WILL EXECUTEDMarriage1) Whats the effect of marriage? What does it mean?2) Who must update the will to include spouse?

A

Marriage1) First, there is no effect of a marriage.This means that if a testator marries after a will is executed, the marriage has no effect on will. The marriage does not protect pretermitted or omitted spouse.And it is up to the testator to update his will and include spouse.

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22
Q

CHANGES AFTER WILL EXECUTEDOmitted Spouse1) What can omitted claim (3)? 2) How much can omitted spouse get?

A

Omitted Spouse1) However, an omitted spouse can claim homestead. Personal property set aside, and family allowance.2) Breaking these claims down, the omitted spouse can get:—-$15,000 allowance in place of homestead if do not own homestead.—-$5,000 in place of other exempt property.And money amount for support for one year.

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23
Q

CHANGES AFTER WILL EXECUTEDDivorce1) What effect does divorce have?2) What does Ex-spouse get? Unless?

A

Divorce1) Divorce or annulment of a marriage revokes all gifts in a will that were in favor of the ex-spouse and any fiduciary appointments.The ex-spouse gets nothing UNLESS they remarry each other.

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24
Q

CHANGES AFTER WILL EXECUTEDPretermitted Child1) When does pretermitted child occur?2) What if there are no other children?3) What if there are other children but they are not provided for?4) What if there are other children, and the children provided for were devised different amounts?5) Does pretermitted child statute apply to children born out of wedlock?6) When does pretermitted child NOT apply (2)?

A

Pretermitted Child 1) It occurs when a child is omitted from the will because the will was executed before the child was born or adopted.2) If there are no other children when the will is executed, the child takes intestate share of all property not bequeathed to the other parent.3) On the other hand, if there are other children but they are not provided for, the omitted child takes intestate share of allproperty not bequeathed to the other parent.If there are other children who are provided for, then the child’s share is limited to the gifts to such other children.Nobody else’s gift is reduced.4) If there are other children, and the children provided for were devised different amounts, then give the pretermitted childtheir fair share of each gift.5) Now, the pretermitted statute also applies to children born out of wedlock.6) However, a pretermitted child statute does not apply if:a) The child is provided for or mentioned in the will,b) Or if the child is provided for by a nonprobate transfer that takes effect at the testator’s death.In addition, if a nonprobate transfer reflects that the testator-parent was mindful of the child, the child has no rights under the statute.

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25
Q

REVOCATION OF WILLSRevoke Methods1) How can will be revoked (2 methods)?2) Subsequent Writing method (6)?3) Physical Act method (2 things)?—-Examples of both parts?

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Revoke Methods1) Wills can be revoked by SUBSEQUENT WRITING or by PHYSICAL ACT.Let’s look at these two methods in detail.2) Regarding the subsequent writing:a) Holographic will can revoke a typewritten attested will and vice versa as long as they are valid.b) A will is expressly revoked if the subsequent instrument states that it replaces the old will.c) A will can be impliedly revoked partially or totally when the subsequent instrument is inconsistent.d) If a testator executes a second will that does not expressly revoke an earlier will, courts, if at all possible, try to reconcile the wills and read them together as one will by treating the second will as a codicil.e) If the second will is totally inconsistent with the first will, however, Court cannot reconcile and the second will revokes first will.f) And revoking a codicil does not revoke the entire will: Part of the will that was modified or revoked by codicil takes effect again.3) In contrast, to revoke a will by PHYSICAL ACT, there needs to be a physical act AND INTENT TO REVOKE.—-PHYSICAL ACT includes tearing, burning, cutting, and canceling a will.This physical act has to be done by the testator, or caused by the testator to be done by someone else in the testator’spresence and at his direction.—-As for the INTENT, the physical act cannot be an accident.

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26
Q

REVOCATION OF WILLSPresumptions (2)1) If the testator was the last one to have possession of the will, and the will cannot be found?2) If the testator was last seen with the will and it is found destroyed?3) When do these presumptions NOT arise?

A

Presumptions1) If the testator was the last one to have possession of the will, and the will cannot be found, the presumption is that the testator destroyed and revoked the will.2) If the testator was last seen with the will and it is found destroyed, there is a presumption that he has revoked hiswill and all copies even if a copy exists which is not in his possession.3) Nevertheless, these presumptions do not arise if the will was last seen in possession of someone who was adversely affected byits contents, and the presumptions can be rebutted.

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27
Q

REVOCATION OF WILLSProbating Lost Wills1) What elements need to be satisfied (3)?

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Probating Lost Wills1) The following elements need to be satisfied:a) Due execution must be proved by witnesses,b) The cause of will’s non-production must be proved,c) And the content of the will must be substantially proved by a person who has read the will or heard it read.

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28
Q

REVOCATION OF WILLSChanges on Face of Executed Will1) What happens if words are added to will after execution?a) What’s an Attested Codicil?2) What if words are crossed out on ATTESTED will after execution?3) What if words are crossed out in a HOLOGRAPHIC will after it has been executed

A

Changes on Face of Executed Will1) First, words added to a will after it has been executed are disregarded UNLESS it is a valid attested or holographic codicil.a) Attested codicil is a codicil that is witnessed and signed and means something on its own, and a holographic codicil is a handwritten and signed codicil that means something on its own.2) Second, words crossed out in an attested will after it has been executed are not valid.Here, a partial revocation by physical act, such as lines through portions of a will, is not allowed. If the testator wants to change the will, he has to write a new one or make acodicil to existing one.3) And third, words crossed out in a holographic will after it has been executed are valid if at least 2 persons testify that it iswholly in the testator’s handwriting.

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29
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REVOCATION OF WILLSWill Revival1) What’s the dependent relative revocation doctrine? Requirements?I dont understand this

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Will Revival1) The dependent relative revocation doctrine can revive a provision of a former will that has been revoked where:a) The new will or codicil is void by operation of law.b) The former provision was revoked at the same time the new provision was created.c) The testator believed the new provision was valid,d) And but-for the testator’s belief that the new will was valid, he would not have revoked the former provision.If the testator crosses something out, thinking it is valid to do so, then the cross-out is undo.If the testator destroys the first will after the second will turns out to be defectively executed, it will reinstate the first will.And if the testator writes on the back of the first will stating “Will-1 is revoked because I have made a new will”, the revocation is set aside because the mistake is regarding therevocation.Example:Will-1 is executed,Will-2 is executed and revokes Will-1,And the testator destroys Will-2 and wants to bring back Will-1,Both wills would have been revoked, and the revocation of Will-2 will only bring back Will-1 if:a) Will-1 still exists.b) The testator wanted Will-1 back.c) And Will-2 is revoked by physical act.

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30
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BARS TO TESTAMENTARY GIFTS SUCCESSIONTestamentary GiftsWhat are the Five types of Testamentary Gifts?

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Testamentary GiftsThere are 5 types of testamentary gifts:(1) Specific device or bequest refers to a particular item specified in the will.Example: “I devise Blackacre to my son John”.(2) General legacy refers to money not from a particular asset.Example: “I give $10,000 to my nephew John”.(3) Demonstrative legacy refers to money from a particular account.Example: “$10,000 to be paid from the sale of my GM stock”.(4) Residuary gift refers to everything else that is not specified.Residuary Gift Example: “I give all the rest, residue and remainder of my estate to Bob.”(5) Intestate property, which is property passing under partial intestacy because a will was poorly drafted and does not contain a residuary clause.

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31
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BARS TO TESTAMENTARY GIFTS SUCCESSIONAbatement1) When does it arise?2) How can order of abatement be changed?3) How should debts be paid off/in what order (4)?

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Abatement1) Abatement arises when there is not enough property in the estate to pay both the debts and all the gifts made in the will.2) The order of abatement can be changed by the will or rebutted by intent.3) Debts should be paid by sacrificing gifts in the order of:a) Intestate propertyb) Residue propertyc) General propertyd) Then specific propertyIn detail, intestate property should be paid first if the testator died partially intestate.For residue, general property, and specific property, personal property is paid first, then real property.Next, demonstrative legacies are treated the same as specific bequest to the extent of the value of specified property and treated as a general legacy to the extent of excess.For Example, if a will made a bequest of $25,000 to be paid out of proceeds of sale of IBM stock, but the stock was only worth $16,000 at Testator’s death, for abatement purposes, it would be treated as a specific bequest as to $16,000 and as a general legacy as to $9,000.

32
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BARS TO TESTAMENTARY GIFTS SUCCESSIONPro Rata Apportionment of Estate Taxes1) What happens when the testator dies?2) Who has to help pay?3) In what proportions?4) How to calculate?

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Pro Rata Apportionment of Estate Taxes1) When the testator dies, his estate is going to be taxed.2) Every beneficiary of the will has to help pay these taxes, except beneficiaries of interests that qualify for charitable or marital deduction do not have to pay.3) Beneficiaries pay in proportion of the amount of the estate they received.4) To calculate this portion, add up the estate and figure out the percentage of the estate each beneficiary received, and each beneficiary pays tax according to their percentage.

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BARS TO TESTAMENTARY GIFTS SUCCESSIONAdemption1) What does ademption refer to? Where does ademption apply?2) When the estate is to be given the proceeds from the sale of an asset that has been sold before the testator dies, who are entitled and under what circumstances?3) What’s the Identity Doctrine?Hint: if a beneficiary is given a gift under a will….

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Ademption1) Ademption refers to a property that was given away in a will and does not exist at the time of the testator’s death. Here, the beneficiary of the gift gets nothing.Ademption only applies to specific gifts.Stock Example:“I give my 100 shares of stock” is specific gift that may be adeemed or taken away.“I give 100 shares of stock” is a general legacy that cannot be adeemed, where the beneficiary gets value of the stock at thedate of death.Stock from a stock split and stock dividend declared after a will is executed are specific bequests.2) Nonetheless, when the estate is to be given the proceeds from the sale of an asset that has been sold before the testator dies, then the beneficiaries are entitled to the proceeds if the proceeds can be traced.3) Under the identity doctrine, if a beneficiary is given a gift under a will, the gift is destroyed before the testator dies, and insurance proceeds are given for that destroyed gift, that beneficiary is not entitled to the proceeds. The testator’s intent is irrelevant.

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BARS TO TESTAMENTARY GIFTS SUCCESSIONExoneration of Liens1) To what does this apply?2) In Texas?3) If the testator gives specific gift under will, but the specific gift is encumbered with a lien, what must executor do?4) What effect on beneficiary?5) What happens if the testator was not personally liable for the lien?6) How can a lien be paid?

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Exoneration of Liens1) It only applies to wills.2) In Texas, exoneration of liens doctrine have been abolished to wills executed on or after September 1, 2005.3) If the testator gives specific gift under will, but the specific gift is encumbered with a lien, such as a mortgage, the executor must pay lien out of the residuary estate so that the lien is exonerated.4) Also, the beneficiary takes free of the lien if the testator was personally liable for the lien.5) On the other hand, if the testator was not personally liable for the lien, such as a non-recourse debt, the lien is not exonerated.6) A lien can only be paid out of residuary estate.

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REFERENCE TO ACTS AND EVENTS OUTSIDE WILLIncorporation by ReferenceHow can testator incorporate a document into a will (3 elements)?

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Incorporation by ReferenceThe testator can incorporate a document into a will by referring to it in the will if all of the three following elements are met.1) The document is in existence at the time the will is executed,2) The will shows intent to incorporate the writing,3) The document is clearly identified in the will.For Example, the quote “For details see attached sheet” is not clearly identified.

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REFERENCE TO ACTS AND EVENTS OUTSIDE WILLActs of Independent SignificanceWhat effect?

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Acts of Independent SignificanceActs of independent significance have no effect on terms of the will IF it was a lifetime act with a lifetime purpose or motive, without intent to change the will.

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REFERENCE TO ACTS AND EVENTS OUTSIDE WILLContents of Property Bequeathed1) What are the limits of a bequeath of property? What is included? Exception?

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Contents of Property BequeathedA bequeath of property, such as a desk or house, does not include the contents within the property UNLESS the language of the will specifically provides so.The content refers to tangible property and cash only. It does not include deeds, stock certificates, and etc.

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REFERENCE TO ACTS AND EVENTS OUTSIDE WILLMistakes or Ambiguities in The Will1) What’s the Plain meaning rule?2) What kind of evidence admissible? To cure what?3) What if the evidence doesn’t cure?

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Mistakes or Ambiguities in The Will1) Under the plain meaning rule, if there is no ambiguity in the will, the language of the will controls, even if there is a mistake in the will because there is a conclusive presumptionthat the testator read the will and intended all of its contents.2) Here, extrinsic evidence is admissible to cure a latent or patent ambiguity.Latent ambiguity is where the mistake is not apparent on the face of the will, whereas latent ambiguity is when the mistake is apparent on the face of the will.3) If extrinsic evidence does not cure the ambiguity, the gift fails.

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REFERENCE TO ACTS AND EVENTS OUTSIDE WILLContracts Relating to Wills1) How can a contract to make a will or not to revoke a will be established?2) What kind of evidence does the execution of a joint will or reciprocal will provide to prove evidence of a contract?3) How can a contractual will be revoked?

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Contracts Relating to Wills1) A contract to make a will or not to revoke a will can be established only by stating that a contract does exist and stating the material terms of the contract, or, by a binding andenforceable written agreement.2) The execution of a joint will or reciprocal will does not, of itself, suffice as evidence of the existence of a contract.3) A contractual will can be revoked by giving notice to the other party to the contract.

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REFERENCE TO ACTS AND EVENTS OUTSIDE WILLWhat are Non-Probate Assets?What aren’t they?Some major types (4)?

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Non-Probate Assets1) Non-probate Assets are interests that pass at death other than by will or intestacy.2) They are not part of the probate estate for administration purposes.3) Major types of non-probate assets include:a) Property passes by right of survivorship, such as joint bank accounts.b) Property passes by contract, such as life insurance and employee death benefits.c) Property held in trust.d) And property over which the decedent held a power of appointment.

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REFERENCE TO ACTS AND EVENTS OUTSIDE WILLNegative BequestsWhat kind of effect are given to words of disinheritance in a will?

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Negative BequestsHere, words of disinheritance in a will are given full effect in Texas, even if there is a partial intestacy. When a person is disinherited, that person’s children may still inherit as heirs.

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POWERS OF APPOINTMENT1) What Purpose for these powers?2) Rules (General/Special powers)?

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1) PurposeThe purpose of powers of appointment is that it permits the life beneficiary to designate the remaindermen.2) RulesIf a donee has GENERAL powers of appointment, he can appoint the property to anyone, including himself, his creditors, or his estate.But if a donee has SPECIAL powers of appointment, he can appoint the property only to those members in the specified class.Also, to exercise a power of appointment, there must be a specific reference to the power. A blanket exercise of the poweris insufficient.

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WILL CONTESTS1) Who has Standing?2) Who can bring a will contest?3) Names/lingo?

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Standing1) Only interested parties have standing to bring a will contest.2) People with an economic interest that would be adversely affected by a will’s probate can bring a will contest.3) They are either heirs or legatees under an earlier will whose interest would be defeated if this will was probated.

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WILL CONTESTSTestamentary Capacity1) Testator must be of age AND (means 4 things)?2) Evidence of capacity must?3) What does Adjudication of incapacity establish?

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Testamentary Capacity1) If the testator is of legal age, he must also have the capacity to create a will, which means that he:a) Understands the nature of the act he is doing, such as writing a will.b) Knows the nature and approximate value of his property.c) Knows the natural objects of his bounty.d) And understands the disposition he is making.2) The evidence of a testator’s capacity must relate to the circumstances at or near the time the will was executed.3) Adjudication of incapacity is admissible as evidence of incapacity, but it does not mean a person lacks the capacity to create a will. In other words, the jury could still find thatthe will was created during a lucid interval.

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WILL CONTESTS1) What does finding of Undue Influence require proof of (3)?2) Five examples of undue influence

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Undue Influence1) Assuming the testator is of legal age and sufficient capacity, undue influence requires contestant to prove:a) The existence and exertion of influence,b) The effect was to overpower the mind and will of the testator,c) And that the product was a will or gift in will that would not have been made but for the influence.2) Examples of situations that are not enough to form undue influence:a) Mere opportunity to exert influence.b) Mere susceptibility to influence due to illness or age.c) And mere fact of unnatural disposition.d) Where a will is procured by one in a confidential relationship, there is an inference of undue influence, which is strengthened when there are suspicious circumstances.e) Also, if an attorney drafts a will that makes a gift to the attorney, or to his heir or employee, the gift is void.This is UNLESS the beneficiary was related to the testator within the third degree by blood or marriage.

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WILL CONTESTSWhen are No-Contest Clauses not given full effect?When do No-Contest clauses NOT apply (4)?

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No-Contest Clause1) No-contest Clauses are given full effect UNLESS Court finds that the contest was brought in good faith and with probable cause.No-contest clauses do not apply to and thus do not lose gift when there is a:a) A will construction suit, where the suit was filed to determine what the will means.b) An action brought against the executor alleging improper administration of the estate.c) A contest is brought by the guardian of an incapacitated beneficiary,d) Or the mere filing of will contest, and the party then voluntarily dismisses the action.

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WILLS ADMINISTRATIONIndependent Administration1) As a result of Independent Administration, most estates in Texas are administered….?2) When can a person have an independent administration (2)?important

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Independent AdministrationIt is the central feature of Texas estate administration.1) As a result, most estates in Texas are administered WITHOUT COURT SUPERVISION or INVOLVEMENT.2) Also, a person can have independent administration when it is provided for in the will or if all distributees agree.As long as the will provides that independent administration is preferred, it is sufficient. Here, words can be informal.It is also sufficient if all distributees agree UNLESS the judge finds that independent administration is not in the best interest of the estate.To clarify, if there is a trust created, income beneficiaries must agree, but remaindermen do not have to agree.And if the distributee under independent administration is a minor or incapacitated, his guardian can agree.Without court order, an independent executor can do anything a dependent administrator can be authorized to do, as long as the act relates to proper settlement of estate or preservation of estate assets.

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WILLS ADMINISTRATIONIndependent Administration1) What power is not given to independent executor? What does purchaser have to show? When is purchaser not protected?2) Who is entitled to an accounting from whom? By when (2)?3) How to close an administration by independent executor? How to compel closing or distribution from independent executor?important

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1) However, the power of sale is not given to the independent executor. Any purchaser then will have to show that the executorhad authority to sell the property. If there was enough cash in the estate to pay debts, then the purchaser is not protected.2) Concerning the accounting from independent executor, interested parties are entitled to an accounting on demand either:a) 15 months after the will is admitted to probate, b) Or 12 months after the last accounting was rendered.3) Now, the following procedures to close administration by an independent executor are optional.File closing report with verified affidavit that property initially received, debts and expenses paid, and names and addresses of distributees.Or file for declaratory judgment seeking judicial discharge from further liability.As for compelling closing or distribution from independent executor, an interested party can petition for distribution 2 years after the executor was appointed.This is a show cause hearing where a party can ask for a distribution, but there is no absolute right for the distribution.

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WILLS ADMINISTRATIONIndependent Administration1) What actions must personal representative take and by when (4)?2) How may an independent executor be removed for cause (6)?3) Jurisdiction in will admin?—-Within counties with statutory county courts at law or statutory probate courts?—-Within counties with only constitutional county courts (2)?important

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1) Actions the personal representative must take within 120 days of appointment include:a) Post fiduciary bond within 20 days.b) Publish notice of administration in newspaper of general circulation within 1 month.c) File inventory of estate within 90 days.d) And give notice to charitable beneficiaries within 30 days after will is admitted to probate.2) Now, an independent executor may be removed for cause if he:a) Fails to return inventory within 90 days of appointment.b) Fails to give notice to charitable beneficiaries within 30 days of will being admitted to probate.c) Misapplied or embezzled property.d) Fails to make a required accounting.e) Is guilty of gross misconduct or mismanagement.f) Is incompetent or is sentenced to penitentiary.3) Furthermore, JURISDICTION in will administration has the IDENTICAL RULES with the one IN GUARDIANSHIP.—-Within counties with statutory county courts at law or statutory probate courts, county court has exclusive original jurisdiction.—-On the other hand, within counties with only constitutional county courts:a) County court and district court have concurrent jurisdiction.b) And the county court judge can request a statutory probate court judge assigned to the case.

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WILLS ADMINISTRATIONMuniment of Title1) What is Muniment of Title?2) What does it need/not need?3) When can a person admit the will to probate using a muniment of title?

A

Muniment of Title 1) Muniment of Title is a unique Texas procedure where the will is filed through a probate proceeding to transfer the ownership of real estate to the beneficiaries in the will without a deed or a full probate.2) There is no need to appoint the executor, but it needs formal recognition to establish title.3) A person can only admit the will to probate using a muniment of title if there are no unpaid debts, other than the mortgage on the homestead.

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WILLS ADMINISTRATIONStatutory Heirship Proceeding1) When to use a Statutory heirship Proceeding?2) How can it be used?

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Statutory Heirship Proceeding1) If there is no will, a statutory heirship proceeding can establish by court order that a person died without a will and was survived by heirs named by the court.On Exam: When the deceased dies intestate without a need for formal administration, use statutory heirship proceeding to formally recognize the title of successors by inheritance.2) The statutory heirship proceeding can also be used to collect a bank account in the decedent’s name. Wherein the bank isprotected if it pays in reliance on the order.

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WILLS ADMINISTRATIONSmall Estate Administration1) Who is this process available to?2) What does executor need to do?3) How else can this process be used?

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Small Estate Administration1) This process is only available to those who die without a will and leave an estate worth less than $50,000 not including thehomestead.2) The executor needs to file an affidavit if value of intestate probate estate is less than $50,000. The $50,000 does not include homestead, exempt personal property, or non-probate property.3) Additionally, this process can be used to clear title to the homestead but not any other real property.

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WILLS ADMINISTRATIONQualified Community Administration

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Qualified Community AdministrationTexas law provides that when a spouse dies without a will and all children are born of the marriage, the community property passes to the surviving spouse.However, if the decedent dies intestate with descendants other than the ones with his wife, the surviving spouse must qualify with a bond and has the power of an independent executor.Here, distribution cannot be compelled until 12 months pass.

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WILLS ADMINISTRATIONNon-statutory Affidavit of Heirship1) What is a Non-statutory Affidavit of Heirship?2) How can filing party prove?

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Non-statutory Affidavit of Heirship1) It is a process used to clear title to the land where the owner died years ago and no action was taken to clear title to land.2) The filing party can get affidavits from neighbors or relatives of family history and file affidavit in county records.

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WILL PROBATESummary

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SummaryWill probate is the court process by which a will is proved valid or invalid, and probate is the legal process wherein the estate of a decedent is administered.

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WILL PROBATEUnsuccessful Will Probate consequences?

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Unsuccessful Will ProbateFor fees in an unsuccessful will probate, the party who brought the will to probate is entitled to attorney fees if the will was brought in good faith.

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WILL PROBATETemporary Administrator1) How/why is temporary administrator appointed?2) What are their Powers?3) Time Limitation on Appointment?

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Temporary Administrator1) A temporary administrator can be appointed pending appointment of a permanent personal representative.2) Temporary administrator powers are limited to those granted by Court.3) And temporary administrator appointment cannot exceed 180 days, except in a will contest, where temporary administrator can last until the will contest ends.

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WILL PROBATERecording Title to Probate Property1) How to record title to probate property?2) What does filing party need to do?

A

Recording Title to Probate Property1) To record title to probate property, nothing needs to be done in the county of probate.2) The filing party simply needs to file a will and order admitting title to probate in any other county or state where the property is located.

59
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WILL PROBATE1) When Second Will Found? Who’s protected?2) What can Second will taker do?

A

Second Will Found1) In setting aside a deed when a second will is found, as long as the order admitting the first will to probate was validly entered, then a bona fide purchaser who relies on a valid court order is protected.2) The taker under the second will has an action to recover sale proceeds against the party who sold the land.

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WILL PROBATETime to Probate Will1) When must filing party offer will? Exception?2) Consequences of late filing?

A

Time to Probate Will1) A filing party must offer the will within 4 years of the deceased’s death UNLESS the filing party can show that he could not have known about the will.2) If the will is probated after its time limit, it will only be as a muniment of title and no estate administration can be opened.

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WILL PROBATEPersonal Representative1) Priority list as to who can be appointed as the personal representative (5)?

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Personal RepresentativeThis following priority list does DOES NOT APPLY TO TEMPORARY ADMINISTRATOR, which court can appoint whoever they want.1) The priority list as to who can be appointed as the personal representative is:a) The executor named in will.b) The surviving spouse if the deceased dies intestate.c) The principal beneficiary named in will.d) Any other beneficiary named in will.e) And the next of kin, in the nearest order of kinship if the deceased dies intestate.

62
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WILL PROBATENonresidentWho can and can’t (4) serve as personal representative?

A

NonresidentLastly, a nonresident of Texas can serve as guardian or personal representative as long as they appoint a resident agent for service of process.However, the following people cannot be a personal representative:a) Minors.b) Incapacitated persons.c) Convicted felons.d) And a person whom the court finds unsuitable.

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LIABILITY OF PERSONAL REPRESENTATIVEGeneral Rule

A

General RuleBefore we go into any details, let’s cover the general rule of personal representative. That is, a personal representative has the general fiduciary duty to act like a prudent person in all circumstances.

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LIABILITY OF PERSONAL REPRESENTATIVECompensation of Executors & Administrators

A

Compensation of Executors & AdministratorsThe Compensation of Executors and Administrators is ruled by the 5% in 5% out rule, where absent a contrary will provision,executors and administrators are entitled to 5% of all sums actually received and 5% of all sums paid out in cash.This rule does not apply to cash on hand or the collection of life insurance policies.In addition, this rule does not apply to distributions to the beneficiaries or heirs.

65
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LIABILITY OF PERSONAL REPRESENTATIVENotice to Creditors in Administration

A

Notice to Creditors in AdministrationThere are three types of Notice to Creditors in Dependent or Independent Administration.1) The first one is notice by publication. Within 1 month of being issued letters testamentary, personal representative mustpublish notice in a newspaper of general circulation.2) The second is permissive personal notice to unsecured creditors, where personal representative may give notice that the creditor must present the claim within 4 months, or the claim is barred.3) And the third is personal notice to secured creditors. Within 2 months, personal representative must give personal notice tocreditors by registered or certified mail.

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LIABILITY OF PERSONAL REPRESENTATIVECreditors Procedures

A

Creditors ProceduresIn dependent administration, creditors must file an authenticated claim supported by an affidavit with Court or the administrator.The administrator must write a memo allowing or rejecting the claim within 30 days. If nothing is done, then the claim ispresumed rejected. If the claim is disallowed, the creditor must file suit within 90 days or the claim is barred.Here, the creditor cannot bring a claim for money unless they first present it to the administrator and it is rejected. This rule does not apply to unliquidated or contingent claims.In independent administration, the failure to present a claim does not affect the creditor’s right to bring an action on the claim.

67
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LIABILITY OF PERSONAL REPRESENTATIVE

A

Suing EstateIn the lawsuit, the filing party cannot name an estate because it is not an entity, but the filing party has to name the personal representative.In a matured secured claim, where there was personal liability on a note secured by a mortgage, the creditor can present its claim for payment out of the general assets of the estate even though the claim is not yet due.Creditors must file by the later of 6 months of the date of appointment of the personal representative or 4 months of personal notice.If creditors fail to do this, the secured creditor is treated as a preferred debt and lien and can only look to security interestin satisfaction of the debt.Creditors can foreclose on the mortgage, but there is no deficiency judgment.Regarding creditor’s claims in a guardianship, in addition to the rules above, there is mandatory personal notice to knowncreditors, either secured or unsecured.Claims against an estate should be paid in the following order.One: Funeral expenses and expenses of last illness up to $15,000.Two: Family allowance.Three: Expenses of administration.Four: Secured claims to extent covered by the lien if creditor filed a matured secured claim.Five: Child support arrearages reduced to judgment Six: State taxes.Seven: Claims for repayment of Medicaid assistance paid by state.Eight: Cost of confinement if decedent imprisoned in Texas prison.And nine: All other claims, including funeral expenses, larger than $15,000.

68
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LIABILITY OF PERSONAL REPRESENTATIVE Set Aside in Insolvent Estate

A

Set Aside in Insolvent EstateThe set aside is only temporary in a solvent estate, but the following assets may be set aside in insolvent estate.Residence may qualify for homestead exemption.And furnishings, auto, and cattle up to $60,000 may qualify for exempt personal property. However, jewelry cannot exceed $15,000.

69
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LIABILITY OF PERSONAL REPRESENTATIVEEmergency Intervention for Payment

A

Emergency Intervention for PaymentTo pay funeral expenses and to protect personal property in rental unit, personal representative can seek emergency intervention no sooner than 3 days and no later than 90 days after deceased’s death.

70
Q

FORECLOSURE

A

ForeclosureIn a dependent administration, a party must get court approval for foreclosure. On the other hand, a party does not need courtapproval in an independent administration for foreclosure.

71
Q

FORECLOSUREDependent Administration

A

Dependent AdministrationThe procedural steps for sale of real property in Dependent Administration are:One: The personal representative should file an application for the sale describing the property, amount of outstanding claims,property on hand to pay creditors, and other facts showing need to sell for authorized purpose such as pay funeral expense,debts, and family allowance.Two: Date for hearing will be set, and the notice should be given to all persons interested in the estate.Three: Hearing will be held, at which court orders sale and specify terms.Four: Property is sold, and the sale will be reported to Court within 30 days.Five: After the notice is given to interested parties, the confirmation hearing is held and court affirms the sale.And six: The personal representative then gives deed to purchaser.

72
Q

FORECLOSUREHomestead Exemption

A

Homestead ExemptionIn urban areas, homestead exemption is limited to 10 acres without regard to the value of improvements, but this land mustbe used as a residence or business.On the other hand, in rural areas, homestead exemption is limited to 200 acres for family and 100 acres for single individual.

73
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FORECLOSUREConsequences of Property as Homestead

A

Consequences of Property as HomesteadThe consequences of a property qualifying as a homestead include:a) Both spouses must join in any conveyance of this property.b) This property is free from creditors claims with limited exceptions.c) This property passes free of creditor’s claims if owner is survived by the spouse, minor child, or unmarried adult child living with the decedent.d) And for the minor child and spouse, they have the right to occupy homestead rent free for life, or for so long as he chooses. However, he cannot pass this right along when he dies.This is only regarding the minor child or spouse, not the unmarried adult child.

74
Q

FORECLOSUREExempt Creditors

A

Exempt CreditorsThe creditors for the following debt can keep their claim against a homestead.a) Purchase money mortgage lien.b) Taxes on the homestead itself.c) Federal tax liens and loan to pay off federal tax lien.d) Mechanics or materialman’s lien for improvements, if the written contract is signed by husband and wife, entered beforeimprovements made, and recorded loan to enable parties to distribute or divide homestead on divorce.e) And equity loan for up to 80% of the value of the equity.

75
Q

FORECLOSUREHomestead Occupant & Legal Owner

A

Homestead Occupant & Legal OwnerThe legal owner must pay casualty insurance premiums and mortgage principal payments, while the occupant must pay real property taxes and mortgage interest payments.

76
Q

ALLOWANCEAllowance in Lieu

A

Allowance in LieuFirst, allowance in lieu of homestead is $15,000 if the decedent did not own a homestead.In contrast, allowance in lieu of exempt personal property is $5,000 to the extent that items on exempt personal property list are not in the estate at death.

77
Q

ALLOWANCEFamily Allowance

A

Family AllowanceFamily Allowance is used to provide support for the surviving spouse and minor children during the period decedent’s assetsare in administration.Family allowance comes off the top of the estate. They are over and above the amount inherited.Also, Court does not take into account either the size of the community estate to determine if an allowance is allowed, or thesize of the separate property in determining the size of the allowance.Lastly, the allowance is charged against the entire community estate as a community obligation. This means it is charged halffrom each half of the community property.