*** P child V. CHANGES IN FAMILY AFTER WILL IS EXECUTED Flashcards
A.
V. CHANGES IN FAMILY AFTER WILL IS EXECUTED
TESTATOR MARRIES AFTER WILL IS EXECUTED
[Feb. 2010; five times since 1997] John executes will leaving his entire estate to his mother. John marries Marsha, dies a year later. Assuming no community property, what claims can Marsha assert against John’s separate estate?
Does Texas have a “pretermitted spouse” statute? Marriage following execution of a will:
Reason:
What claims can Marsha assert, then?
no
has no effect on the will
CP system
#1. If John owned residence: Probate homestead (10 acres if urban, 200 acres if rural): right to occupy the homestead rent-free. [See Estate Administration outline.] #2. If John did not own a residence: $45,000 cash allowance in lieu of homestead. #3: Family allowance: Amount needed for support for period of one year. #4: Exempt personal property set-aside: Up to $60,000 of tangible personal property items. [See Estate Administration outline.] #5: $30,000 allowance in lieu of #4: Items not on exempt property list.
B. TESTATOR IS DIVORCED AFTER WILL IS EXECUTED
27. [Feb. 2002; seven times since 1988!] Hobie Gates is married to Winky, who has a child (Wookie) by her first marriage. Hobie ‘s will devises Blueacre “to my wife Winky if she survives me, otherwise to Winky’s daughter Wookie,” and the rest of his estate to his sister Sue. The will names Winky as independent executor “if she is able; otherwise my brother Sam is to serve as executor.” Two years later Hobie and Winky divorce. Then Hobie dies without ever having changed his will.
Who takes Blueacre?
Who serves as executor?
But if the couple reconcile and remarry, so that Winky is Hobie’s wife at death,
Final decree of divorce or annulment of a marriage revokes all gifts and fiduciary appointments in favor of former spouse and relatives of the former spouse [who are not relatives of the testator]. Read the will and distribute the estate as though former spouse [and relatives of former spouse] predeceased the testator.
sister Sue under residuary clause
Sam; this is fiduciary
she takes under the will. The statute applies to revoke the gifts and fiduciary appointments only if they are divorced at testator’s death.
***C. PRETERMITTED CHILD: BORN OR ADOPTED AFTER WILL IS EXECUTED
If no other children when will executed:
If there are other children when will executed . . .
and such other children are not provided for:
and such other children are provided for:
Child takes* intestate share of all property not bequeathed to other parent of the child.
Child takes* intestate share of all property not bequeathed to other parent of the child.
Child’s share* is limited to the gifts to such other children. Nobody else’s gift is reduced.
*UNLESS child is provided for by nonprobate transfer (e.g., life insurance, joint bank account) taking effect at testator’s death.
- [July 2000] Tex’s will bequeaths his estate two-thirds to his wife Wendy and one-third to his sister Sue. Two years later, Tex and Wendy have a child (Clyde); then Tex dies without revising his will. Tex and Wendy owned community property worth $240,000. What are Clyde’s rights?
Who takes the CP?
28a. [July 1990] Same facts, except that Clyde had not been born when Tex died — but Wendy was three months pregnant.
If testator had NO OTHER CHILDREN when will executed: Pretermitted child takes intestate share of property not bequeathed to child’s other parent. The child takes share of the estate he would have inherited if the testator had died intestate, unmarried, and owning only that portion of his estate not bequeathed to the child’s other parent.
Who takes the CP? First, wife Wendy takes: (1) Her one-half CP: $120,000
(2) [share of Tex’s 1/2 CP bequeathed to child’s other parent]: follow will, 2/3 * 120k = 80k to Wendy
40k left
Clyde [share of remaining CP he would have inherited if Tex had died intestate, unmarried]: all of 40k
presume in gestation , so same answer as above
- [Feb. 2002] At the time she made her will, Tess had two children: Ann and Bill. After she made the will, Tess and her husband Hal adopted a child Chris. Tess died survived by Hal, by Ann, Bill and Chris, and by her sister Sarah. Tess’ will left 2/3 of her estate to Hal and 1/3 to Sarah. Tess and Hal owned community property worth $450,000; Tess owned no separate property. What rights if any do the children have in this estate and why?
[July 2011] Ann and Bill? No rights, because they were alive when the will was executed
only protect afterborn/ adopted children
Chris? If testator HAD OTHER CHILDREN when will executed but other children are NOT provided for: Pretermitted child takes intestate share of property not bequeathed to child’s other parent. Child takes that part of the estate he would have inherited had the testator died intestate, unmarried, owning only that portion of the estate not bequeathed to the child’s other parent.
Who takes the CP?
First, husband Hal takes: (1) His one-half CP: $225,000
(2) [share of Tess’ 1/2 CP bequeathed to child’s other parent]:
2/3 * 225k = 150k to Hal
Chris [share of remaining CP he would have inherited if Tess had died intestate, unmarried]:
1/3 * 75k = 25k
remaining 50k to the sister Sarah by will
We look to the intestacy rules not because Tess died without a will, but because the statute tells us that is how we compute Chris’s share. Here, Tess had three children, so Chris’s share would be 1/3. After carving out Chris’s share, the will applies to the remaining assets.
29a. [Feb. 2010, July 2011] At the time she made her will, Tess had two children: Ann and Bill. After she made the will, Tess and her husband Hal adopted a child Chris. Tess died survived by Hal, by Ann, Bill and Chris, and by her sister Sarah. Tess’ will left 2/3 of her estate to Hal and 1/3 to Sarah. Tess and Hal owned community property worth $450,000; Tess owned no separate property.
, except that Tess’ will devised Blackacre (her separate property) “to my children, Ann and Bill, in equal shares,” and devised her residuary estate 2/3 to Hal and 1/3 to Sarah. What are Chris’ rights?
29b. [July 1992] What if Ann and Bill were given different amounts? Same facts as in #29, except that Tess’ will devised Blackacre to her daughter Ann, $15,000 to her son Bill and her residuary estate 2/3 to Hal and 1/3 to Sarah. What are Chris’ rights?
If testator HAD OTHER CHILDREN when will executed but other children ARE provided for: Pretermitted child’s share is limited to gifts to other children (even if they are contingent gifts and the other children take nothing—meaning that pretermitted child’s share also would be zero). No other beneficiary’s bequest is reduced.
Meaning that we don’t look to intestacy rues; we only look to . . .
gifts to the other children (reduced) treating like a class gift
29b. Chris takes 1/3 of each gift: blackacre and 15k
Example: Marty has a will that bequeaths his estate “to my wife Wendy and my brother Bob in equal shares.” Thereafter, Marty and Wendy adopt Alice. Marty takes out a $100,000 life insurance policy that names Wendy as primary beneficiary, and Alice as contingent beneficiary. Then Marty dies, survived by Wendy and Alice, without having changed his will.
Although Alice was not provided for or mentioned in the will, she was provided for outside the will by a transfer that was intended to take effect at Marty’s death. The fact that Alice was named as contingent beneficiary and did not actually receive any insurance proceeds does not matter. The pretermitted child statute does not apply.
Pretermitted child statute does not apply if (1) child is provided for or mentioned in the will [July 2002: bequest “to my children”; July 2005: provision made for stepchild who T adopted after will executed], or (2) child is provided for by a nonprobate transfer that takes effect at the testator’s death. [Feb. 2008: $50,000 life insurance policy; $2 million estate.] For these purposes, a contingent gift is sufficient provision for the child. This shows that purpose of the statute is not to guarantee that a child takes a share of the estate; but only to protect against accidental omissions. If a nonprobate transfer reflects that testator was mindful of the child, the child has no rights under the statute.
- in 2005, Harry executed a will that left his entire estate to his wife wanda; they had no children. In 2007, Harry had an affair with Blaze Starr, resulting in a son: Curly (whom Harry sheepishly acknowledged as his child). Despite this indiscretion, Wanda decided to stick with Harry, who died in 2013 survived by Wanda and Curly; Harry’s will is admitted to probate.
This triggers Rule 1: Because Harry had no children at the time the 2005 will was executed, Curly as a pretermitted child take the intestate share he would have taken had his father died intestate, unmarried, and owning only that property not bequeathed to the child’s other parent. But the child’s other parent is Blaze Starr, was bequeathed nothing! This means that if Harry died intestate and unmarried, Curly would take the entire estate as a pretermitted child—leaving Wanda with nothing! To remedy this oddity, the statute was amended to limit the nonmarrital pretermitted child’s share to one-half of the parent’s estate.
meaning: for CP, child can only get 1/4, because surviving parent takes her 1/2, and split the rest of 1/2 with the child; SP each takes half
*
30a. in 2005, Harry executed a will that left his entire estate to his wife wanda; they had no children. In 2007, Harry had an affair with Blaze Starr, resulting in a son: Curly (whom Harry sheepishly acknowledged as his child). Despite this indiscretion, Wanda decided to stick with Harry, who died in 2013 survived by Wanda and Curly; Harry’s will is admitted to probate.
, except that in 2011, Hobie executed a codicil to his 2005 will that named Baker Bank instead of Able Bank as executor. Hobie died two months ago, survived by all of the aforementioned parties.
Does Curly take an intestate share as a pretermitted child?
no
[July 2002] Under the doctrine of republication by codicil, a will “speaks” (is deemed to have been executed) on date of last codicil to the will. Curly is treated as having been born before the will was executed, and has no rights as a pretermitted child.
pretermitted child statute only applies to what property? but not?
vs. intestate succession:
what options are available to transfer to heirs
for certificate of deposit account and checking account
only probate estate, only when there is a will
intestate: no will
non probate estate can’t use either one: 401k plan; retirement accounts governed by account agreement (all paid to the beneficiary);
nonprobate assets follow agreement;
probate:
1, small estate administration by affidavit, only available if intestate decedent’s estate doesnt exceed 50k (not including homestead and exempt personal property) and there are no debts other than a mortgage on the homestead, but only to clear title for homestead
2,statutory heirship proceeding: for extra RP other than homestead, not necessary to have an administrator appointed as personal representative
3, affidavit that not necessary for administration exists, and the estate affairs can be wound up by using the affidavit, when there is no unpaid debts other than the mortgage
for certificate of deposit account and checking account watch out for the creation of the right of survivorship
