Execution of Wills

Question 1

What are non-probate transfers?

Answer 1

These are interests that pass by right of survivorship. This includes life insurance proceeds or employee death benefits.

Question 2

What is the residuary estate?

Answer 2

This is the estate that remains after administration expenses and debts have been paid and any specific bequests made by the will have been satisfied.

Question 3

What are the requirements to execute a will?

Answer 3

1. Must be 18 years old (otherwise, married or in the military).
2. Signed by testator.
3. Must have two attesting witnesses over 14.
4. Each witness must sign in testator’s presence.

Question 4

When T is 17, he writes a will. He was unmarried and not in the military. Will the will he wrote at 17 been executed and apply at his death at age 99?

Answer 4

No. Any will executed while under 18 is invalid.

Question 5

What is a will and what does it include?

Answer 5

A will is an instrument that is testamentary, revocable during the testator’s lifetime, and is operative after testator’s death.

A will includes a codicil and a testamentary instrument that appoints a guardian or guardian or revokes another will.

Question 6

Does TX law require witnesses to know that they are witnessing a will, as opposed from other legal documents?

Answer 6

No.

Question 7

Does TX law require a testator to sign in the witnesses’ presence?

Answer 7

No, but testator should sign will contemporaneously with the witnesses (before or after witnesses sign).

Question 8

Does TX law require witnesses to sign in each other presence?

Answer 8

No. TX law requires that the witnesses sign in the testator’s presence.

Question 9

Does TX law require that testators sign at the end of the will?

Answer 9

No, testators can sign the will wherever on the will - including the back of the will.

Question 10

Is a signature of a witness or testator valid if it is barely legible?

Answer 10

Yes. Any marking indicating a signature is sufficient.

Question 11

What does it mean for witnesses to sign in testator’s “conscious” presence?

Answer 11

Testator does not need to actually see the witnesses sign the will, but he should be near him enough that testator is conscious of where the witnesses are and what they are doing. He should be able to see them by some slight physical exertion on his part (such as moving a curtain).

Question 12

If will was taken to an adjoining room when a witness signed it, is this in the testator’s presence?

Answer 12

No.

Question 13

How do you prove the validity of a will if one of the witnesses dies before the testator?

Answer 13

Testimony of the surviving witness in open court can satisfy the proof of wills in probate. If the surviving witness lives outside the US, testimony may be secured by deposition or interrogatory.

Question 14

How do you prove the validity of a will if both witnesses are dead or cannot be found?

Answer 14

Use testimony of two people to identify the testator’s handwriting or handwriting of either attesting witnesses. If only one such person can be located, the testimony of that person is sufficient. *There is a presumption that the testamentary formalities were complied with, even if there is no attestation clause.

Question 15

What is a self-proving affidavit?

Answer 15

It is an affidavit (thus, sworn) statements the witnesses would testify to in open court. It is a substitute for live testimony of the attesting witnesses in open court.

Question 16

What is the two-step will execution ceremony?

Answer 16

Testator and witnesses sign the will, then after being sworn in by a notary they sign an affidavit.

If the witnesses did not sign the will but only signed the affidavit, then this can be used to validate the will. BUT you can only use the signatures once and due execution must be proved by testimony of at least one of the attesting witnesses.

Question 17

What is the one-step will execution ceremony?

Answer 17

The will has an attestation clause: “testator declared to us that this was her last will and asked that we witness it.” The testator and witnesses only need to sign once.

Question 18

What is the proper venue for the probate of will and administration of estate?

Answer 18

a) county where testator resided

If testator is a non-resident who dies in TX, the proper venue for his will is: i) county where principal property located, ii) county in which nearest of kin reside, or iii) county where he died

Question 19

What is the rule regarding contents of a safe deposit box?

Answer 19

The contents of a safe deposit box can be examined without court order as long as it is in the presence of a bank official and examination is done by a spouse, child over 18, or named executor.

Question 20

What is privity of contract for wills?

Answer 20

Attorney’s duty is to the client (testator), not to the testator’s beneficiaries.

Question 21

What is the exception for the privity of contract for wills?

Answer 21

An executor can sue an attorney for:

i) loss to estate of excess estate taxes paid because of attorney’s negligent estate planning advice or
ii) loss to estate resulting from allegedly negligent mischaracterization of assets as separate property rather than community property led to decedent’s and thus his estate’s liability

Question 22

Can one of the beneficiaries of the will be an attesting witness?

Answer 22

An interested witness never affects validity of the will, but the bequest to the witness is void UNLESS:

a) will can be proved without interested witness’ testimony (aka the other attesting witness is alive)
b) the interested witness’ testimony is corroborated by the testimony of a disinterested and credible (someone who watched the signing and didn’t sign)

OR

c) the interested witness would be an heir if this will was not probated, in which case the interested witness takes whichever is least: the lesser of the legacy under the will or the intestate share

Question 23

What type of trust will be imposed when an heir or will beneficiary kills an intestate or a testator?

Answer 23

A constructive trust is imposed to prevent unjust enrichment on the ground that no one should be allowed to profit from her wrongful conduct. A constructive trust will be imposed where an heir or will beneficiary kills an intestate or a testator.

Question 24

After a will is admitted to probate, who has the burden to prove testamentary capacity?

Answer 24

After a will is admitted to probate, the burden of proof as to testamentary capacity shifts from the will proponents to the will contestants.

If the issue of testamentary capacity is raised at the time the will is offered for probate, the will proponents have the burden of establishing that the testator had capacity.

Question 25

T bequests will to “his children.” Does this include T’s children born out of wedlock?

Answer 25

Bequest to “children” prima facie includes marital children only. However, nonmarital children may not be excluded if an intention to include nonmarital children can be shown by express statements, by implication from words in the will, or by surrounding facts and circumstances.