Execution of Wills Flashcards
Probate
judicial proceeding to determine whether a valid will exists and appoints a personal representative (executor if named in the will; administrator if appointed by court)
Non-probate transfers
Interests that pass by *right of survivorship (e.g. a joint and survivor bank account) or under terms of a *contract (e.g. life insurance proceeds or employee death benefits)
residuary estate
remaining estate after administration expenses and debts have been paid off and any specific bequests made by the will have been satisfied
Requirements for Wills and Codocils
Testator must be 18 years old (or married or in armed forces)
- Signed by T (any mark as long as its intended to be one) or someone at T’s direction in T’s presence (proxy signature)
- Two attesting witnesses (over age 14)
- each witness must sign in T’s presence
Execution of Wills: Non-requirements
- witnesses do not have to know they are signing a will as opposed to another legal document
- T does not have to sign in the witnesses’s presence (can sign earlier)
- witnesses do not have to sign in each other’s presence
- T can sign anywhere on the will s/he wants
Execution of Wills: Death Requirement
Will or codicil must be intended to take place at death of testator, not while alive
Execution of Wills: Contemporaneous Signing Between Witness and Testator
It is ok if the witness signs the will before the testator as long as it is part of a contemporaneous signing
Execution of Wills: Witness Signing In Conscious Presence
Testator does not have to be able to see witness signing; just has to be near enough to him so that he is conscious of where witness is and what witness is doing
Ex. Witness signing behind a hospital screen from testator: good
Ex. Witness signing in another room from testator: not good
Execution of Wills: Proving Wills in Probate
- testimony of one attesting witness in open court. If she lives outside the county, testimony can be procured by deposition or interrogatory
- if all witnesses are dead and cannot be located, testimony of two persons (or one, if necessary) as to the handwriting
Execution of Wills: Self-Proving Affidavit
Will admitted to probate based on an affidavit that witnesses would testify in open court to its validity
Execution of Wills: Two-Step Will Execution
- testator and witnesses sign the will, then testator and witnesses sign affidavit.
- if witnesses sign the affidavit, but not the will, signatures on affidavit can be used to validate the will
Execution of Wills: One-Step Will Execution
- attestation clause on will written in affidavit form and witnesses and testator sign only once
Execution of Wills: Venue for Probate and Administration
- county where decedent resided
- if decedent is a non-resident but died in Texas with no domicile, either:
(a) county where principal property is located
(b) county in which nearest of kin reside; or
(c) county where decedent died
Execution of Wills: Retrieval of Will from Safe Deposit Box
Bank may permit contents of a safe deposit box to be examined by spouse/parent/child or executor named in the will.
Will found may be delivered either to executor or or probate court.
Execution of Wills: Attorney Liability
Attorney who negligently prepares or supervises will is not liable to intended beneficiaries bc there is no privity of
BUT
executor can sue for losses to the estate from negligent estate-planning advice.
