TBE --Wills & Estates Flashcards
02/14 #7:
Linda, a Texas widow, died in January 2013 with a valid attested will dated November I, 2012. The will was not self-proved. Linda’s husband, Peter, had died in 2008.
After Peter’s death, Linda had reunited and become engaged to her high school sweetheart, Jack. Shortly before the wedding, Linda realized Jack was a liar and a cheat, and, in September 2012, she broke off
the engagement.
Linda’s son, Hank, her stepdaughter, Elizabeth, and her ex-boyfriend, Jack, survived her. At the time of her death, Linda owned the following assets:
a. A $500,000 Retirement Account earned during Linda’s employment with Micro Systems, Inc., that designates Jack as the beneficiary. The beneficiary designation was signed by Linda on June I, 2012;
b. A $100,000 Certificate of Deposit, held with Peter, as joint tenants with right of survivorship;
c. A Home, valued at $250,000;
d. A Checking Account in the amount of $100,000 held as joint tenants with Jack. However, Linda owned 100% of the funds deposited to the account, and she had added Jack as a signer on the account only as
a matter of convenience.
The dispositive paragraphs of Linda’s will stated as follows:
A. I hereby leave my Micro Systems, Inc. Retirement Account to my son, Hank, and my stepdaughter, Elizabeth, in equal shares.
B. I leave my Certificate of Deposit to my son, Hank,
C. I leave my home to my son, Hank, and my stepdaughter, Elizabeth, in equal shares.
D. I leave the rest of my estate to my son, Hank.
E. I absolutely do not want Jack to have any of my assets.
Hank asserts that the since the will was signed after Linda’s relationship with Jack ended, and that Linda clearly intended for her Retirement Account and all of her other property to pass under the will, Jack should
take nothing.
Since the will is not self-proved, how may the attested will be proved in court and what proof must be presented? Explain fully.
The will must be probated in court. A valid attested will must be probated through the probate court in Texas.
To have a valid attested will, the will must be signed by the Testator, have at least 2 witnesses, who should be disinterested in the will, and be notarized. The original will or an authenticated copy of the will must be presented to the court for probate.
If all of these requirements are met, and the will has not been subsequently revoked, then it is a valid attested will.
Linda’s will is a valid attested will. This means that she signed the will, there were at least 2 disinterested witnesses, and the will was properly notarized. The 2 witnesses did not have to actually witness Linda sign the will, they just must authenticate that it is her signature.
If all of these of conditions are met, then the probate court will have a valid presumption that the will is valid.
What would defeat that will is evidence that it has been revoked, but there is no evidence of revocation here. The proof that must be presented is the witness signatures and notary stamp and signature. These are present, so this is a valid attested will.
02/14 #7:
Linda, a Texas widow, died in January 2013 with a valid attested will dated November I, 2012. The will was not self-proved. Linda’s husband, Peter, had died in 2008.
After Peter’s death, Linda had reunited and become engaged to her high school sweetheart, Jack. Shortly before the wedding, Linda realized Jack was a liar and a cheat, and, in September 2012, she broke off
the engagement.
Linda’s son, Hank, her stepdaughter, Elizabeth, and her ex-boyfriend, Jack, survived her. At the time of her death, Linda owned the following assets:
a. A $500,000 Retirement Account earned during Linda’s employment with Micro Systems, Inc., that designates Jack as the beneficiary. The beneficiary designation was signed by Linda on June I, 2012;
b. A $100,000 Certificate of Deposit, held with Peter, as joint tenants with right of survivorship;
c. A Home, valued at $250,000;
d. A Checking Account in the amount of $100,000 held as joint tenants with Jack. However, Linda owned 100% of the funds deposited to the account, and she had added Jack as a signer on the account only as
a matter of convenience.
The dispositive paragraphs of Linda’s will stated as follows:
A. I hereby leave my Micro Systems, Inc. Retirement Account to my son, Hank, and my stepdaughter, Elizabeth, in equal shares.
B. I leave my Certificate of Deposit to my son, Hank,
C. I leave my home to my son, Hank, and my stepdaughter, Elizabeth, in equal shares.
D. I leave the rest of my estate to my son, Hank.
E. I absolutely do not want Jack to have any of my assets.
Hank asserts that the since the will was signed after Linda’s relationship with Jack ended, and that Linda clearly intended for her Retirement Account and all of her other property to pass under the will, Jack should
take nothing.
Assuming the will is admitted to probate, analyze fully to whom and in what proportions the following assets should be distributed:
a. Retirement Account?
b. Certificate of Deposit?
c. Home?
d. Checking Account?
When the will is admitted to probate, the following assets will be distributed in this order.
a. Retirement Account
A retirement account with a named beneficiary does not pass through the probate process. Linda’s will states that she wants it to go to Hank and Elizabeth in equal shares. However, because they are not named beneficiaries on the account, and because the retirement account will not go through the probate process, neither will receive the retirement account. Jack will receive the full retirement account because he is the sole named beneficiary and because the account will not go through probate.
b. Certificate of Deposit
A certificate of deposit (CD) can also have a named beneficiary. Similar to the retirement account, if there is a named beneficiary, the CD’s will not pass through the probate process. In this case, the CD’s named Peter as joint tenant with right of survivorship. Peter pre-deceased Linda. So Peter’s rights in the joint tenancy passed to Linda. Therefore Linda owned the CD’s by herself, and there is in effect no named beneficiary. The CD’s will then pass through the probate process and pass to Hank as stated in her will Hank will receive the Certificates of Deposit in full.
c. Home
A house will pass through probate as specified in a will provided that there are no other claims to the home. All indications here are that Linda owned the home free and clear of any other interest. Linda specified in the will that the wants Hank and Elizabeth to have the home in equal shares. Therefore they both will receive one-half of ownership in the house as tenants in common. Hank and Elizabeth will both have an equal one-half share in the home.
d. Checking Account
Upon the death of one joint tenant, a checking account will become the sole property of the surviving joint tenant. Linda deposited the funds, but the account names Jack as a joint tenant and he is a co-signer on the account. Therefore Jack has an immediate full interest in the $100,000. Because Jack is a co-signer on the account, the family can expect this account to be wiped out immediately. If it is not, then under the community property laws of Texas, Hank will have a right of ownership in the community property of the account. The burden will be on Hank to prove that the full amount was deposited by Linda and was her separate property. Any interest would automatically be split by Hank and Jack. But I would expect the account to be cleaned out before then. Any residuary to the estate would pass to Hank as specified in the will.
02/14 #8:
Thomas and Julie, both Texas residents, married in 1983. Thomas and Julie had two natural children, Betsy and Alice, and an adopted child, Evan. Julie died in 2000. Evan died two years ago in 2012, leaving two children, Sarah and Claire. Betsy has one daughter, Laura. Alice has no children. Thomas died intestate in January 2014.
Thomas had a brief romance with Nancy right after Julie’s death. A year before his death, Thomas was told by Nancy that he was the father of her 13-year-old son, Dudley. Thomas denied that he was Dudley’s father. Nancy had listed a fictitious name for the father on Dudley’s birth certificate. A paternity test was
never administered.
Thomas is survived by Betsy, Alice, Sarah, Claire, Laura, and Dudley, (“Claimants”) all of whom claim the right to inherit from Thomas.
At the time of his death, Thomas owned the following assets:
a. A Homestead purchased in 1983 with Julie;
b. A $500,000 Life Insurance Policy naming Thomas as the insured, Julie as the beneficiary, and Thomas’s estate as the default beneficiary;
c. A $100,000 savings account, held with Betsy and Evan as joint tenants with right of survivorship;
d. A $200,000 Retirement Account, the contractual language of which states that “succession to the rights of the account holder is limited to the following named beneficiaries: The descendants of Thomas as
equal beneficiaries, per stirpes;” and
e. A Certificate of Deposit in the amount of $50,000, held with Julie as joint tenants with right of survivorship.
Which of the Claimants are entitled to inherit from Thomas and which are not? Explain fully.
Betsy, Alice, Sarah, and Claire are entitled to inherit from Thomas. Dudley might be able to inherit from Thomas.
Under Texas’s intestacy scheme, Texas follows per capita with representation. In other words, the first line of descendants take, then the second line of descendants take in equal portions the share that his/her/their parent was entitled to receive if the parent dies. Furthermore, adopted children are treated like natural children, and take the same shares as natural children.
Here, Betsy and Alice take because they are direct, first-line descendants of Thomas. They are born of Thomas’s blood, so they will take no doubt.
Claire and Sarah, on the other hand will take, in equal shares, the portion that Evan was entitled to receive. Although Evan was an adopted child, he is treated the same as Betsy and Alice. Therefore, Claire and Sarah will be able to take Evan’s share, in equal portions. Laura will not take because Betsy is still alive. If Betsy predeceased Thomas, however, Laura would take the full portion that Betsy was entitled to received. Dudley will only be able to take if it can be proved, by clear and convincing evidence, that Thomas was his biological father.
Here, it doesn’t seem like that Dudley will take because Nancy was unable to procure genetic testing from Thomas before he died, and no presumption of paternity was established otherwise because he was never married to Nancy, nor was he adjudicated Dudley’s father, nor did Thomas acknowledge paternity of Dudley.
Therefore, Betsy, Alice, Sarah and Claire are entitled to inherit from Thomas. Dudley will most likely not be able to inherit from Thomas unless Nancy or someone else can obtain a sample of Thomas’s DNA, and tests it, which would conclusively establish by 99% that Thomas is Dudley’s biological father.
02/14 #8:
Thomas and Julie, both Texas residents, married in 1983. Thomas and Julie had two natural children, Betsy and Alice, and an adopted child, Evan. Julie died in 2000. Evan died two years ago in 2012, leaving two children, Sarah and Claire. Betsy has one daughter, Laura. Alice has no children. Thomas died intestate in January 2014.
Thomas had a brief romance with Nancy right after Julie’s death. A year before his death, Thomas was told by Nancy that he was the father of her 13-year-old son, Dudley. Thomas denied that he was Dudley’s father. Nancy had listed a fictitious name for the father on Dudley’s birth certificate. A paternity test was
never administered.
Thomas is survived by Betsy, Alice, Sarah, Claire, Laura, and Dudley, (“Claimants”) all of whom claim the right to inherit from Thomas.
At the time of his death, Thomas owned the following assets:
a. A Homestead purchased in 1983 with Julie;
b. A $500,000 Life Insurance Policy naming Thomas as the insured, Julie as the beneficiary, and Thomas’s estate as the default beneficiary;
c. A $100,000 savings account, held with Betsy and Evan as joint tenants with right of survivorship;
d. A $200,000 Retirement Account, the contractual language of which states that “succession to the rights of the account holder is limited to the following named beneficiaries: The descendants of Thomas as
equal beneficiaries, per stirpes;” and
e. A Certificate of Deposit in the amount of $50,000, held with Julie as joint tenants with right of survivorship.
To whom and in what proportions should the following assets be distributed:
a. Homestead?
b. Life Insurance Policy?
c. Savings Account?
d. Retirement Account?
e. Certificate of Deposit?
a. The Homestead is intestate property, and will be distributed according to Texas’s intestacy scheme in the Texas Probate Code. Here, the Homestead will go to Betsy 1/3, Alice 1/3, Sarah 1/6 and Claire 1/6. Dudley must establish, by clear and convincing evidence that Thomas was his biological father in order to take. The fractional interest of each descendant would be split up differently, but Dudley would take as much as Betsy and Alice.
b. The Life Insurance Policy of $500,000 is intestate property as well because although it would normally count as non-probate property, the default beneficiary is Thomas’s estate, and, therefore, it will be distributed according to the intestacy scheme in the Texas Probate Code as stated above. Betsy 1/3, Alice 1/3 and Sarah 1/6 and Claire 1/6. Again, Dudley must establish the same burden the Thomas was his biological father for him to take the same as Betsy and Alice.
c. The savings account is non-probate property and shall pass according to the terms on the account. Therefore, Betsy shall receive all of the $100,000. The property does not pass to Evan’s heirs - Sarah and Claire because the account is a joint survivorship account, and the funds from such an account passes to the survivor of such an account.
d. The retirement account is intestate property because the language, “succession to the rights of the account holder is limited to the following named beneficiaries: The descendants of Thomas as equal beneficiaries, per stirpes.” This language is basically the same as saying nothing because that is how the property would have passed if nothing was stated on the account. Therefore, because of the above-mentioned reasons stated in “a.” and “b.”, Betsy gets 1/3, Alice gets 1/3 and Claire and Sarah get 1/6 each. Dudley too if he can prove Thomas was his biological father.
e. The certificate of deposit shall also pass by intestacy because it was Thomas’s sole property, having survived Julie. Therefore, because of the above-mentioned reasons in “a.”, “b.” and “d.”, the certificate of deposit will pass to Betsy 1/3, Alice, 1/3, Sarah and Claire 1/6 each, and Dudley only if he can show by clear and convincing evidence that Thomas was his biological father, which is unlikely.
07/13 #1:
Aunt, a resident of Texas, was 70 years old when she executed a valid will leaving her estate to her three nieces, Niece I, Niece 2, and Niece 3. Aunt had never married or had children of her own.
When Aunt was 75 years old, she was diagnosed with cancer. Over the next two (2) years, Aunt was treated with several courses of chemotherapy and months of radiation. Niece I took considerable time off from work to accompany Aunt to her treatments and doctor appointments. Niece 2 and Niece 3 never participated in any of Aunt’s medical care.
When it became apparent that Aunt was terminally ill and could no longer live at home, Niece I assisted Aunt in making arrangements for Aunt to enter a hospice center to spend her last days. Over the next six months, Niece I visited Aunt almost daily and attended to her every need. She encouraged Niece 2 and Niece 3 to visit Aunt, but they rarely visited or contacted Aunt.
During that time, Aunt was generally alert. She continued to manage her finances and pay her bills. Occasionally, she would become somewhat confused about which bills she had already paid.
Four days before she died, Aunt asked Niece I to call Aunt’s lawyer (Lawyer) and asked her to come to the hospice center. Niece 1 did so, met Lawyer in the lobby of the hospice center, and directed her to Aunt’s room. Niece I then left to go to work.
When Lawyer entered the room, she found Aunt in her bed. Unbeknownst to Niece I, Aunt requested that Lawyer prepare a new will (“Second Will”) leaving all of her possessions to Niece I, including the ranch, the house, the livestock, and all of her money. Lawyer asked where Aunt’s money was located, and Aunt responded that all of her accounts, including her brokerage account, were held at ABC Investments and that the accounts designated her estate as the beneficiary. Lawyer told Aunt she would return two days later.
Lawyer prepared Second Will, which expressly revoked the earlier will. Lawyer arrived to find Aunt waiting for her in a guest conference room. Aunt commented that she was relieved to “get this matter taken care of!” Lawyer noted that Aunt appeared to be in much pain and discomfort.
Lawyer watched as Aunt reviewed Second Will. Lawyer asked Aunt if she knew what she was signing and if she understood what was in the document. Aunt said, “I sure do. This is the new will I asked you to prepare, and I am leaving everything to my favorite niece who has taken such good care of me. I am really disappointed in the other two.” The Second Will was then properly executed, and Lawyer took it back to her office.
After Aunt died, Niece I contacted Lawyer and discovered that she was the sole beneficiary to Aunt’s estate. Niece I requested that Lawyer file Second Will for probate.
Niece 2 and Niece 3 filed a contest to Second Will, asserting that Aunt lacked testamentary capacity to execute Second Will and that Second Will, due to Aunt’s age and medical condition, was the product of undue influence by Niece I.
Did Aunt lack the testamentary capacity to execute Second Will? Explain fully.
No, Aunt did not lack testamentary capacity to execute Second Will.
In order for a will to be valid, the testator must have sufficient mental capacity when executing the will.
In Texas, a testator has sufficient testamentary capacity if at the time the will was executed, she could
(1) understand the nature of the act (that she is creating a will),
(2) understand the approximate value and nature of her property,
(3) understand the nature of her bounty, and
(4) understand the disposition she is making.
The standard for testamentary capacity is lower than that needed for capacity to enter into contracts. When a will is contested for lack of testamentary capacity when the will is offered for probate, the burden of proof that the testator had proper mental capacity is on the proponent of the will. Evidence of the testator’s mental capacity at or near the time the will was executed is relevant.
Here, there is sufficient facts that Niece 1 can use to prove Aunt’s mental capacity. First, up until her death, Aunt was “generally alert” and even managed her own finances. Although she sometimes go slightly confused, this alone is not enough to indicate lack of capacity. When Second Will was executed, Aunt had requested that Lawyer draft the Second Will, and when Lawyer brought Aunt the Second Will, she was relieved to get the execution taken care of. The Lawyer asked Aunt if she understood what was in the document, and if she knew what she was signing. She replied that she did, and that she had asked Lawyer to prepare Second Will. This satisfies Element 1.
Just days before she died, when she asked Lawyer to draw up the will, she was able to list all of her property and accounts, which made up her state. Therefore, she meets element 2, because she understands the approximate value and nature of her estate.
Then, she said that she understood that she was giving her all of her property (which she identified specifically) to Niece 1, who took care of her, and that she was disinheriting the other nieces because they did not take care of her. This satisfies Element 3 and 4, because she understands who her family is, and she understands that the Second Will is disposing of all her property to Niece 1.
Therefore, Aunt meets the elements for capacity.
07/13 #1:
Aunt, a resident of Texas, was 70 years old when she executed a valid will leaving her estate to her three nieces, Niece I, Niece 2, and Niece 3. Aunt had never married or had children of her own.
When Aunt was 75 years old, she was diagnosed with cancer. Over the next two (2) years, Aunt was treated with several courses of chemotherapy and months of radiation. Niece I took considerable time off from work to accompany Aunt to her treatments and doctor appointments. Niece 2 and Niece 3 never participated in any of Aunt’s medical care.
When it became apparent that Aunt was terminally ill and could no longer live at home, Niece I assisted Aunt in making arrangements for Aunt to enter a hospice center to spend her last days. Over the next six months, Niece I visited Aunt almost daily and attended to her every need. She encouraged Niece 2 and Niece 3 to visit Aunt, but they rarely visited or contacted Aunt.
During that time, Aunt was generally alert. She continued to manage her finances and pay her bills. Occasionally, she would become somewhat confused about which bills she had already paid.
Four days before she died, Aunt asked Niece I to call Aunt’s lawyer (Lawyer) and asked her to come to the hospice center. Niece 1 did so, met Lawyer in the lobby of the hospice center, and directed her to Aunt’s room. Niece I then left to go to work.
When Lawyer entered the room, she found Aunt in her bed. Unbeknownst to Niece I, Aunt requested that Lawyer prepare a new will (“Second Will”) leaving all of her possessions to Niece I, including the ranch, the house, the livestock, and all of her money. Lawyer asked where Aunt’s money was located, and Aunt responded that all of her accounts, including her brokerage account, were held at ABC Investments and that the accounts designated her estate as the beneficiary. Lawyer told Aunt she would return two days later.
Lawyer prepared Second Will, which expressly revoked the earlier will. Lawyer arrived to find Aunt waiting for her in a guest conference room. Aunt commented that she was relieved to “get this matter taken care of!” Lawyer noted that Aunt appeared to be in much pain and discomfort.
Lawyer watched as Aunt reviewed Second Will. Lawyer asked Aunt if she knew what she was signing and if she understood what was in the document. Aunt said, “I sure do. This is the new will I asked you to prepare, and I am leaving everything to my favorite niece who has taken such good care of me. I am really disappointed in the other two.” The Second Will was then properly executed, and Lawyer took it back to her office.
After Aunt died, Niece I contacted Lawyer and discovered that she was the sole beneficiary to Aunt’s estate. Niece I requested that Lawyer file Second Will for probate.
Niece 2 and Niece 3 filed a contest to Second Will, asserting that Aunt lacked testamentary capacity to execute Second Will and that Second Will, due to Aunt’s age and medical condition, was the product of undue influence by Niece I.
Was the evidence sufficient to support a finding that Second Will was the product of undue influence? Explain fully.
No, there is not sufficient evidence to support a finding that Second Will was the product of undue influence.
In Texas, a contestant must prove the following to establish undue influence on a testator:
(1) existence and exercise of influence that
(2) overcomes the mind and free will of the testator,
(3) which results in a will that the testator would not have otherwise made.
Mere surmise suspicion not enough to prove undue influence, and therefore, mere opportunity to influence, the testator’s susceptibility to influence because of age or illness, or an unnatural disposition can be considered but not enough alone to prove undue influence.
Niece 1 did have the opportunity to influence Aunt, since she was the only one around. Further, Aunt was 75 years old and terminally ill. Lastly, she did disinherit her other two nieces. However, these facts alone do not prove undue influence.
Here, Niece 1 was not present in the room when Second Will was requested or executed. Niece 1 did not even know that there was a Second Will until after Aunt died.
Therefore, there was no existence or exercise of influence on the Aunt at all. The facts make clear that the desire to make a new will, and the contents of Second Will, came from the exercise of free will from Aunt, and Aunt alone. This negates the first element of undue influence, and therefore, undue influence cannot be supported by the facts and the Nieces cannot meet their burden of proof to show undue influence and invalidate the will.
07/13 #2:
Rick and Alice married in 1986. At the time of their marriage, Alice owned Blackacre, which had been in her family for three generations. They had one child, Evan. Alice died in 1995 and left a valid will leaving all of her property to Rick. Before her death, she had told Rick that she hoped he would make sure that one
day Evan would inherit Blackacre.
Rick married Suzy in 1998. At the time of their marriage, Suzy had a six-year-old daughter, Ginger, who was conceived during a one night stand. Suzy had no further communication with Ginger’s father after
the night of conception.
At the time of the marriage, Rick and Suzy agreed that Rick would formally adopt Ginger, and Ginger was thrilled when Rick told her he intended to do so. At the wedding ceremony. the priest asked Ginger jokingly, “Do you take this man to be your father?” Ginger enthusiastically said, “Yes’” Ginger believed from that moment forward that she was now the adopted daughter of Rick.
After the marriage, Rick and Suzy consulted an attorney regarding the adoption and learned that they would have to terminate the parental rights of Ginger’s birth father. Suzy was reluctant to involve him in their lives, so a formal statutory adoption never took place. Nevertheless, Rick raised Ginger as his own child in every way, and, although Ginger never assumed Rick’s surname, she always called him “Dad” and acted as Rick’s dutiful daughter, returning his love and affection in the continued belief that she was his adopted
daughter. Rick and Suzy divorced in 2012, but Ginger did not alienate herself from Rick.
In January 2013, Rick sold Blackacre and used the proceeds to purchase Whiteacrc, located in McLennan County, Texas. Rick died three months later, survived by Suzy, Ginger, and Evan.
After Rick’s death, Ginger found an electric bill, dated October 2010, with the following handwritten, on the back of the bill:
“My Will
“I leave Blackacre, located in Bosque County, Texas, to my son, Evan. I leave the rest of my estate to my wife, Suzy, if she survives me, and if she does not survive me, to my heirs.
/s/ R.”
Both Ginger and Suzy recognized the handwriting as Rick’s.
Suzy claims that the writing on the back of the electric bill is Rick’s valid will and claims that she is entitled to the entire estate.
Evan disputes that the writing is a valid will, but claims that, if it is a valid will, he is entitled to receive Whiteacre because the proceeds of the sale of Blackacre were used to purchase Whiteacre, and his mother had
expressed the wish that Rick leave Blackacre to him. Evan further claims that, if the writing is not a valid will, then he is entitled to all of Rick’s estate.
Ginger learned for the first time after Rick’s death that Rick had never formally adopted her. Nevertheless, Ginger claims that the lack of a formal adoption is irrelevant and asserts that she is entitled to her fair share of the estate.
Does the writing found on the back of the electric bill constitute a valid will? Explain fully.
The writing on the back of the electric bill constitutes a valid holographic will.
At issue are the requirements for a holographic will in Texas.
In Texas a holographic will is valid if it is wholly in the handwriting of the testator, expresses testamentary intent, and is signed by the testator. There is no requirement that a holographic will be attested nor is there a requirement that it be dated. Although all of the will must be entirely in the testator’s handwriting, non- handwritten material is permitted if it is not required for the will and is mere surplusage. Handwriting may be verified by two persons who can testify to their knowledge of the testator’s handwriting, and that the will is written entirely in that handwriting.
Here all of the will is written entirely in Rick’s handwriting. The statement “My will” is probably sufficient to establish that Rick intended for the document to constitute his will, especially because it then dealt with the disposition of all of his property. The will also appeared to be intended to take effect on Rick’s death. Rick’s signing “R” is also sufficient because in Texas a testator may sign anywhere on the document and any mark intended to be that of the testator and authenticate the document is sufficient. The fact that the will is written on the back of a electric bill is irrelevant because all of the terms needed to constitute a valid holographic will are in the testator’s handwriting and any printed words on the electric bill are surplusage and may be ignored.
It is not required that the testator write his holographic will on a blank piece of paper.
Ginger and Suzy are competent to testify as to Rick’s handwriting because in Texas two persons who are familiar with the testator’s handwriting are sufficient to establish the validity of a holographic will.
Although there might be some issue as to an interested witness taking under the will, such an interested witness never affects the validity of a will, only the validity of a disposition.
Because the will was wholly in Rick’s handwriting, was signed by Rick, and was evidenced by testamentary intent, the writing constituted a valid holographic will.
07/13 #2:
Rick and Alice married in 1986. At the time of their marriage, Alice owned Blackacre, which had been in her family for three generations. They had one child, Evan. Alice died in 1995 and left a valid will leaving all of her property to Rick. Before her death, she had told Rick that she hoped he would make sure that one
day Evan would inherit Blackacre.
Rick married Suzy in 1998. At the time of their marriage, Suzy had a six-year-old daughter, Ginger, who was conceived during a one night stand. Suzy had no further communication with Ginger’s father after
the night of conception.
At the time of the marriage, Rick and Suzy agreed that Rick would formally adopt Ginger, and Ginger was thrilled when Rick told her he intended to do so. At the wedding ceremony. the priest asked Ginger jokingly, “Do you take this man to be your father?” Ginger enthusiastically said, “Yes’” Ginger believed from that moment forward that she was now the adopted daughter of Rick.
After the marriage, Rick and Suzy consulted an attorney regarding the adoption and learned that they would have to terminate the parental rights of Ginger’s birth father. Suzy was reluctant to involve him in their lives, so a formal statutory adoption never took place. Nevertheless, Rick raised Ginger as his own child in every way, and, although Ginger never assumed Rick’s surname, she always called him “Dad” and acted as Rick’s dutiful daughter, returning his love and affection in the continued belief that she was his adopted
daughter. Rick and Suzy divorced in 2012, but Ginger did not alienate herself from Rick.
In January 2013, Rick sold Blackacre and used the proceeds to purchase Whiteacrc, located in McLennan County, Texas. Rick died three months later, survived by Suzy, Ginger, and Evan.
After Rick’s death, Ginger found an electric bill, dated October 2010, with the following handwritten, on the back of the bill:
“My Will
“I leave Blackacre, located in Bosque County, Texas, to my son, Evan. I leave the rest of my estate to my wife, Suzy, if she survives me, and if she does not survive me, to my heirs.
/s/ R.”
Both Ginger and Suzy recognized the handwriting as Rick’s.
Suzy claims that the writing on the back of the electric bill is Rick’s valid will and claims that she is entitled to the entire estate.
Evan disputes that the writing is a valid will, but claims that, if it is a valid will, he is entitled to receive Whiteacre because the proceeds of the sale of Blackacre were used to purchase Whiteacre, and his mother had
expressed the wish that Rick leave Blackacre to him. Evan further claims that, if the writing is not a valid will, then he is entitled to all of Rick’s estate.
Ginger learned for the first time after Rick’s death that Rick had never formally adopted her. Nevertheless, Ginger claims that the lack of a formal adoption is irrelevant and asserts that she is entitled to her fair share of the estate.
Assuming that the writing is a valid will, as among Suzy, Ginger, and Evan, to whom and in what proportions should Rick’s estate be distributed? Explain fully.
Suzy and Evan will take in equal proportions under the will.
At issue is whether Ginger was validly adopted by Rick and how the estate will be distributed.
Ginger was probably a child due to adoption by estoppel.
Under the probate code an adopted child is a child for all purposes. Although there was no formal adoption, there was likely adoption by estoppel.
Adoption by estoppel occurs when there was an agreement to adopt by a step-parent, but for some reason the formal adoption never took place, the child believed that she had been adopted, and the parent treated the child as his own for all purposes holding the child out as his own. Divorce revokes all bequests to the former spouse and her heirs unless the heirs are also related to the other spouse.
Under the probate code, specifically devised property is adeemed if it is not in the testator’s estate at death. Those who take under a residuary clause of a will take in equal shares.
Here Suzy and Rick agreed that Rick, Ginger’s stepfather, would formally adopt Ginger and Ginger was aware of this fact. It was only after consulting with an attorney and Suzy’s reluctance that the decision to not formally adopt took place. Additionally Rick treated her as his daughter for all purposes and Ginger genuinely believed that she was adopted by Rick. The fact that Ginger never took Rick’s name is not dispositive, especially here where it appears that Rick held the child out as his own and only declined to go through with the formal adoption process because Suzy did not want to involve the true father who had been a one night stand.
Because it appears that adoption by estoppel would apply on the facts, Ginger will be treated as a child of Rick for the purposes of inheriting from his estate.
Under the will Evan was given a specific bequest of Blackacre and Suzy was given the remainder if she were to survive Rick otherwise the remainder was to go to Rick’s heirs. The gift to Suzy was revoked in 2012 when Rick and Suzy divorced, therefore all of Rick’s residuary estate would pass to his heirs under the residuary clause of Rick’s valid will.
The bequest of Blackacre was a specific bequest of real property, but Blackacre was not in Rick’s estate when he died because he had sold it to purchase Whiteacre.
A specific bequest not in the testator’s estate is adeemed and fails.
Texas follows the identity rule and will not trace a specifically devised gift in an attempt to satisfy a testator’s probable intent.
Therefore the gift to Evan fails and Whiteacre will pass under the residuary of Rick’s will.
Because Ginger was a child of Rick due to adoption by estoppel, her status as an heir was not revoked when Suzy and Rick divorced because although she was a relative of Suzy, she was also a relative of Rick.
Ginger is therefore entitled to inherit from Rick. Because Rick’s will left his property to “my heirs” after the gift to Suzy was revoked and the gift to Evan was adeemed, and Ginger and Evan are the heirs of Rick as his children, they each take one half of Rick’s estate.
02/13 #5:
Roland, a Texas resident, died without a will two months ago, survived by his wife (Frances) and an adult child (Thomas) of the marriage. Roland also had one adult child (Andrew) from a previous marriage.
At the time of his death, Roland had no debts other than the mortgage lien on his homestead, and Roland owned the following community property assets:
(a) A $100,000 Retirement Account that designates Frances, as his beneficiary;
(b) A $25,000 Certificate of Deposit, held with Frances, as joint tenants with right of survivorship;
(c) A Homestead valued at $250,000, subject to a mortgage lien of $50,000;
(d) A Checking Account in the amount of $10,000 held as joint tenants with Frances; and
(e) Other Personal Property valued at $5,000.
At the time of his death, Roland also owned a lake lot valued at $50,000, which he had inherited from his mother after his marriage to Frances.
Who is entitled to inherit from Roland? Explain fully.
Frances, Thomas and Andrew are entitled to inherit from Roland.
At issue are the persons entitled to inherit from a decedent who dies intestate (without a will).
In Texas, the intestacy rules distribute probate community property in a different manner than separate property. Non-probate assets are not distributed pursuant to the intestacy rules.
Under the intestacy rules, the heirs and surviving spouse, if any, of the decedent inherit the probate property. Heirs include children and step-children. The nonprobate assets, such as joint and survivorship bank accounts, pass according to their terms.
Here, Roland died intestate, without a will. His probate assets will pass to his surviving spouse, Frances, and to his heirs, Thomas, his child, and Andres, his step-child. His non-probate assets will pass according to their terms. As discussed below, the retirement account and the certificate of deposit are the non-probate assets that will pass to Frances.
02/13 #5:
Roland, a Texas resident, died without a will two months ago, survived by his wife (Frances) and an adult child (Thomas) of the marriage. Roland also had one adult child (Andrew) from a previous marriage.
At the time of his death, Roland had no debts other than the mortgage lien on his homestead, and Roland owned the following community property assets:
(a) A $100,000 Retirement Account that designates Frances, as his beneficiary;
(b) A $25,000 Certificate of Deposit, held with Frances, as joint tenants with right of survivorship;
(c) A Homestead valued at $250,000, subject to a mortgage lien of $50,000;
(d) A Checking Account in the amount of $10,000 held as joint tenants with Frances; and
(e) Other Personal Property valued at $5,000.
At the time of his death, Roland also owned a lake lot valued at $50,000, which he had inherited from his mother after his marriage to Frances.
To whom and in what proportions should the following assets be distributed:
a. Retirement Account? Explain fully.
b. Certificate of Deposit? Explain fully.
c. Homestead? Explain fully.
d. Checking Account? Explain fully.
e. Other Personal Property? Explain fully.
f. Lake lot? Explain fully.
(a) The retirement account will be distributed to Frances.
The retirement account is a non-probate transfer that will pass according to its terms. The account designates Frances as the beneficiary.
Therefore, the account will be distributed to Frances.
(b) The certificate of deposit will be distributed to Frances.
The certificate of deposit is also a non-probate transfer that will pass according to its terms.
Because Frances and Roland are designated as joint tenants with right of survivorship on the certificate, the certificate will automatically pass to Frances on Roland’s death.
Therefore, the certificate of deposit will be distributed to Frances.
(c) The homestead will be distributed half to Frances and 1/4 each to Thomas and Andrew.
If the decedent dies intestate and has a surviving spouse and children who are not of the marriage (“step-children”), the surviving spouse receives half of the community property, and the children split the other half between themselves.
Here, Frances as the surviving spouse will receive a 1/2 interest in the homestead, and Thomas and Andrew will each receive a 1/4 interest. However Elizabeth may have a claim to the homestead which allows her to live there, rent free, for life. She may also claim a family allowance in the amount to support her for one year, and a personal property set aside up to $60,000.
(d) The checking account will be distributed one half to Frances and 1/4 each to Thomas and Andrew.
As set forth above, if the decedent dies intestate and has a surviving spouse and step-children, the surviving spouse receives half of the community property, and the children split the other half. If an account does not include express language indicating the owners are joint tenants with right of survivorship, the account will not automatically pass to the other if one dies. It will pass as probate property under the intestacy rules.
Here, the account does not indicate that Roland and Frances are joint tenants with rights of survivorship.
Therefore, the account will pass as community property under the intestacy rules.
Therefore, Frances will receive a 1/2 interest in the checking account, and Thomas and Andrew will each receive 1/4.
(e) The personal property will be distributed one half to Frances and 1/4 each to Thomas and Andrew.
As set forth above, if the decedent dies intestate and has a surviving spouse and step-children, the surviving spouse receives half of the community property, and the children split the other half.
Here, Frances will receive a 1/2 interest in the personal property, and Thomas and Andrew will each receive 1/4.However, as set forth above, Elizabeth may have a claim to a personal property set aside of up to $60,000.
(f) The lake lot will pass 1/3 to Frances as a life estate and 2/3 to Thomas and Andrew as a remainder.
If a decedent dies with a surviving spouse, the decedent’s separate real property will pass as a 1/3 life estate to the surviving spouse and as a 2/3 remainder to the children. Although property inherited during the marriage is considered community property, a gift to one spouse during the marriage will be considered the separate property of that spouse.
Because Roland inherited the lake lot during the marriage, the lake lot is Roland’s separate property.
Therefore, it passes as a 1/3 life estate to Frances and as a 2/3 remainder to Thomas and Andrew.
02/13 #5:
Roland, a Texas resident, died without a will two months ago, survived by his wife (Frances) and an adult child (Thomas) of the marriage. Roland also had one adult child (Andrew) from a previous marriage.
At the time of his death, Roland had no debts other than the mortgage lien on his homestead, and Roland owned the following community property assets:
(a) A $100,000 Retirement Account that designates Frances, as his beneficiary;
(b) A $25,000 Certificate of Deposit, held with Frances, as joint tenants with right of survivorship;
(c) A Homestead valued at $250,000, subject to a mortgage lien of $50,000;
(d) A Checking Account in the amount of $10,000 held as joint tenants with Frances; and
(e) Other Personal Property valued at $5,000.
At the time of his death, Roland also owned a lake lot valued at $50,000, which he had inherited from his mother after his marriage to Frances.
What options (probate and non-probate) are available to transfer the assets of Roland’s
estate to the appropriate heir(s)? Discuss any advantages or disadvantages of each option.
Explain fully.
The options for transferring Roland’s estate include the probate proceedings of
- muniment of title,
- statutory heirship proceeding and
- small estate administration (although the last would probably not be available because Roland’s estate is more than $50,000, and the first may not be available because there is no will).
Options for non-probate transfer would include a
-non-statutory affidavit of heirship.
At issue are the various ways to transfer assets of an intestate decedent.
A muniment of title requires a will, and consists of filing the will like a deed. Because there was no will, this would not be available.
A statutory heirship proceeding consists of the court finding who the heirs are and what their inheritance will be. There may not be any debts of the estate. This is a fairly simple proceeding, and could be an option for Roland’s estate. The disadvantage is that it is a probate proceeding involving the court, which could be more timely and expensive.
A small estate administration requires an estate that is $50,000 or less, not including the homestead. The advantage is that this is a quick and fairly easy process. The disadvantage is that the estate must be fairly small. Because Roland’s estate not including the homestead is more than
$50,000, this option would not be viable.
Last, Roland’s estate could use the nonprobate proceeding of non-statutory heirship affidavit. Here, friends and relatives sign an affidavit indicating what property the decedent owned and who gets what distribution. This is advantageous because it does not involve the court.
Here it may not be available because there could be competing interests in some of the property between Frances and Andrew and Thomas, so it may not be viable.
02/13 #6:
John and Elizabeth married in 1991 in Kansas. In 1992, while still living in Kansas, John executed a valid will that was self-proving by an affidavit that complied with Kansas law. In that will, he left all of his property to Elizabeth.
John and Elizabeth moved to Texas in 1993. They had no children of the marriage, and the will made no provision for children. In 1994, John, during a period of separation from Elizabeth, conceived a child, Buddy, with another woman, Mary. It was later determined by a court-ordered paternity test that John was Buddy’s father. John paid child support until Buddy turned the age of 18. John made no provisions for Buddy or Mary in his will. John died of a heart attack in January 2013, survived only by Elizabeth and Buddy. Elizabeth filed John’s 1992 will for probate.
Buddy, now 19 years of age, timely claims that he is entitled to a share of John’s estate. Buddy also correctly points out that the self-proving affidavit that John executed in Kansas does not comply with the requirements in the Texas Probate Code for a self-proving affidavit and claims that it is not valid in Texas.
At the time of John’s death, John had the following assets:
(a) A Ranch located in Bosque County, Texas that he inherited from his father;
(b) A 40l(k) retirement plan naming Elizabeth as the beneficiary;
(c) $800,000 in cash assets that are characterized as community property; and
(d) A Homestead valued at $600,000 that was purchased after the marriage with community property funds.
To what extent, if any, is Buddy entitled to a share of John’s estate? Explain fully.
Buddy is entitled to a share of john’s estate as a pretermitted child. Buddy takes title to ½ of john’s probate estate: the ½ of the ranch, the $800,000, and of the homestead (subject to elizabeth’s homestead right of occupancy). Elizabeth takes the other ½ of these assets, takes the 401 K plan that names her as beneficiary.
At issue are the rights of a nonmarital child who was born after the parents will was executed.
The Texas pretermitted child statute applies to a nonmarital child if the child would be an heir had the parent died intestate.
Buddy meets this test, because the court ordered paternity test established that john was his father.
Where (as here) the testator has no children when the will was executed, the pretermitted child takes that share of the estate he would have inherited of the testator died intestate, unmarried, and owning only that property not bequeathed the child’s other parent.
Here, buddy’s other parent was Mary, and she was bequeathed nothing under the will. If the statute stops here, the bequest to Elizabeth under john’s will would be wiped out, and buddy would take the entire estate.
To avoid this result, the statute was amended to provide that the amount passing to the pretermitted child may not reduce the amount passing to the TESTATOR’S spouse by more than ½.
Therefore, buddy takes ½ of the probate estate as a pretermitted child, and Elizabeth takes the remaining ½ under the will.
The pretermitted child statute applies only to assets that comprise the probate estate.
Buddy is not entitled to any share of the 401 K plan, as it is a nonprobate asset.
02/13 #6:
John and Elizabeth married in 1991 in Kansas. In 1992, while still living in Kansas, John executed a valid will that was self-proving by an affidavit that complied with Kansas law. In that will, he left all of his property to Elizabeth.
John and Elizabeth moved to Texas in 1993. They had no children of the marriage, and the will made no provision for children. In 1994, John, during a period of separation from Elizabeth, conceived a child, Buddy, with another woman, Mary. It was later determined by a court-ordered paternity test that John was Buddy’s father. John paid child support until Buddy turned the age of 18. John made no provisions for Buddy or Mary in his will. John died of a heart attack in January 2013, survived only by Elizabeth and Buddy. Elizabeth filed John’s 1992 will for probate.
Buddy, now 19 years of age, timely claims that he is entitled to a share of John’s estate. Buddy also correctly points out that the self-proving affidavit that John executed in Kansas does not comply with the requirements in the Texas Probate Code for a self-proving affidavit and claims that it is not valid in Texas.
At the time of John’s death, John had the following assets:
(a) A Ranch located in Bosque County, Texas that he inherited from his father;
(b) A 40l(k) retirement plan naming Elizabeth as the beneficiary;
(c) $800,000 in cash assets that are characterized as community property; and
(d) A Homestead valued at $600,000 that was purchased after the marriage with community property funds.
To whom and in what proportions should the following assets be distributed? Explain fully.
(a) The Ranch
(b) The 401(k)
(c) $800,000 cash
(d) The Homestead
-At issue a pretermitted child’s share of the decedent’s separate property.
Separate property is defined as property owned by a spouse before marriage; property acquired during marriage by gift, will, or inheritance; and a spouse’s tort recovery for personal injury.
a)
Under the intestacy statute, which is used to determine a pretermitted child’s share, separate real property passes to the decedent’s children.
Because the pretermitted child’s share cannot reduce the spouse’s share by more than ½, buddy takes title to ½ of the ranch, which was john’s separate property (inherited from his father). Title to the other ½ ranch passes to Elizabeth under the will.
b)
-The 401 K account is a nonprobate asset and passes according to the terms of the plan. Thus, buddy does not take a share of the 401 K. Elizabeth, as the named beneficiary, will take the 401 K account.
c)
-At issue here is the share of a pretermitted child in community property. Under the intestacy statute, which is used to determine a pretermitted child’s share, if the decedent was survived by children or other descendants, at least one of whom was not the surviving spouse’s descendant, the decedent’s ½ community interest passes to his descendants. The surviving spouse retains her ½ community interest. Because the pretermitted child’s share cannot reduce the spouse’s share by more than ½, buddy would take only ½ john’s ½ community share of the $800,000 cash ($200,000). Elizabeth will take her ½ community share plus ½ of Johns community share ($600,000).
d)
-the homestead, which is also community property, I’ll be divided similarly to the cash. Buddy will take ½ of john’s ½ community interest in the homestead (1/4 of the title) subject to elizabeth’s homestead right of occupancy. Elizabeth retains her ½ community interest and takes ½ john’s interest. Thus, Elizabeth will have title to ¾ homestead.
02/13 #6:
John and Elizabeth married in 1991 in Kansas. In 1992, while still living in Kansas, John executed a valid will that was self-proving by an affidavit that complied with Kansas law. In that will, he left all of his property to Elizabeth.
John and Elizabeth moved to Texas in 1993. They had no children of the marriage, and the will made no provision for children. In 1994, John, during a period of separation from Elizabeth, conceived a child, Buddy, with another woman, Mary. It was later determined by a court-ordered paternity test that John was Buddy’s father. John paid child support until Buddy turned the age of 18. John made no provisions for Buddy or Mary in his will. John died of a heart attack in January 2013, survived only by Elizabeth and Buddy. Elizabeth filed John’s 1992 will for probate.
Buddy, now 19 years of age, timely claims that he is entitled to a share of John’s estate. Buddy also correctly points out that the self-proving affidavit that John executed in Kansas does not comply with the requirements in the Texas Probate Code for a self-proving affidavit and claims that it is not valid in Texas.
At the time of John’s death, John had the following assets:
(a) A Ranch located in Bosque County, Texas that he inherited from his father;
(b) A 40l(k) retirement plan naming Elizabeth as the beneficiary;
(c) $800,000 in cash assets that are characterized as community property; and
(d) A Homestead valued at $600,000 that was purchased after the marriage with community property funds.
How should the court rule on the validity of the Kansas self-proving affidavit? Explain fully.
-a court will likely rule that the Kansas Self-proving affidavit is valid and can be relied upon in proving due execution of john’s will.
The issue is whether effect can be given to a Self-proving affidavit executed in another state that does not meet the requirements of the Texas estates code.
The Texas statute does not mandate that the exact statutory language be used. An affidavit will be recognized if its terms are in substantial compliance with the Texas form.
An examination of the Kansas provision will likely show that it substantially compliance with the Texas form and thus can be relied upon in proving up the will. Even if the Kansas affidavit was held to be ineffective, this would not affect the validity of john’s will. A Self-proving affidavit merely simplifies proof of the wills due execution. The will could nonetheless be established by the testimony of one of the wills attesting witnesses.
07/12 #11:
Tom and Ann, lifelong residents of Waco, Texas, met in 1990. Ann was a widow with three young children, Gail, Libby, and Pete. Tom and Ann married in 1991.
Tom was the sole income earner of the family. Ann never worked outside the home. Tom supported Ann’s three children until they reached the age of 18. During their marriage, Tom and Ann bought and paid
off a house, which they paid for from Tom’s earnings. They maintained joint checking and joint savings accounts, neither of which had rights of survivorship or a payable-on-death beneficiary, and Tom had a 401(k) retirement account funded with his earnings.
Ann had inherited china, silver, and antique furniture from her mother, who died after Ann’s marriage to Tom. Ann had used these items to furnish their home.
In 2011, Ann died without a will. She was survived by Tom, Gail, Libby, and Pete. Tom believes that inasmuch as he had been the sole income earner during the entire marriage, he is entitled to inherit all the
property free of any participation by any of Ann’s children. At the very least, he believes he should have the right to keep and use the real property and the china, silver, and furniture during his lifetime.
Gail, Libby, and Pete, with whom Tom’s relationship is strained, claim they are entitled to inherit all of Ann’s estate. They also claim that Tom is personally liable for Ann’s funeral and burial expenses.
What interests, if any, does Ann's estate have in the following items of property, and to whom and in what proportions should they be distributed: (a) The home in Waco? (b) The checking and savings accounts? (c) The china, silver, and furniture? (d) The 401(k) retirement account? Explain fully.
-Ann’s ½ interest in community property (the Waco home and checking and savings account) should be distributed to her children, and Tom retains his ½ community interest. Ann’s separate personal property (China, silver, furniture) passes by intestate succession to Tom (1/3) and Ann’s children (sharing 2/3). Ann’s estate has no interest in the 401 K retirement account.
In a community property state such as Texas, property owned by a spouse before marriage; property acquired during marriage by gift, will, or inheritance; and a spouse is tort recovery for personal injury are all considered separate property. All other property acquired during marriage is community property.
If a decedent dies intestate and is survived by descendants, at least one of whom is not also the surviving spouse’s descendant, the descendants ½ community interest passes to his descendants, who take per capita with representation. The surviving spouse retains his ½ community interest.
At issue is the intestate distribution that should be made since Ann died without a will.
(a) The Waco home was community property because it was acquired from Thomson earnings during the marriage. As and was survived by descendants who were not tom’s descendants, answer ½ community interest in the home passed by intestacy to her three children (1/6 to each), and Tom retains his ½ community interest.
(b) Checking account presumptively community property, and there’s no evidence to overcome the community presumption. As with the home, Ann’s ½ community interests in the accounts passed by intestacy to her three children (1/6 each), and from retained his ½ community interest.
(c) The China, silver, and furniture were Ann’s separate property because they were inherited. Separate personal property passes by intestacy, 1/3 to surviving spouse and 2/3 to the decedent’s descendants.
(d) Ann’s estate has no interest in the 401 K retirement account, and the intestate succession rules do not apply to the account.
07/12 #11:
Tom and Ann, lifelong residents of Waco, Texas, met in 1990. Ann was a widow with three young children, Gail, Libby, and Pete. Tom and Ann married in 1991.
Tom was the sole income earner of the family. Ann never worked outside the home. Tom supported Ann’s three children until they reached the age of 18. During their marriage, Tom and Ann bought and paid
off a house, which they paid for from Tom’s earnings. They maintained joint checking and joint savings accounts, neither of which had rights of survivorship or a payable-on-death beneficiary, and Tom had a 401(k) retirement account funded with his earnings.
Ann had inherited china, silver, and antique furniture from her mother, who died after Ann’s marriage to Tom. Ann had used these items to furnish their home.
In 2011, Ann died without a will. She was survived by Tom, Gail, Libby, and Pete. Tom believes that inasmuch as he had been the sole income earner during the entire marriage, he is entitled to inherit all the
property free of any participation by any of Ann’s children. At the very least, he believes he should have the right to keep and use the real property and the china, silver, and furniture during his lifetime.
Gail, Libby, and Pete, with whom Tom’s relationship is strained, claim they are entitled to inherit all of Ann’s estate. They also claim that Tom is personally liable for Ann’s funeral and burial expenses.
What rights, if any, does Tom have to keep and use the real property and the china, silver, and furniture during his lifetime? Explain fully.
-Tom can qualify for a homestead exemption for the Waco home, but it is unlikely that the china, silver, and furniture qualify as exempt personal property under the Probate Code.
At issue is whether Tom has a right to use the Waco home even though the 3 children also own it. Also at issue is whether Tom may keep Ann’s separate property in the home under the exempt personal property exception.
In Texas, a surviving spouse may qualify to live in the family home under the homestead laws. This home must be the primary residence, and the spouse only has a right to it as long as they occupy it. Minor children and incapacitated adults also have a right to use the homestead.
Here, the Waco home is clearly the family residence where Tom and Ann have lived for a long time. Thus, even though Tom only has a 1/3 life estate in the property, he has the right to live there as long as he likes, and even until he dies!
The furnishings are trickier because they are technically only 1/3 Tom’s property under intestacy distribution rules.
In Texas, the surviving spouse may petition to exempt certain personal property up to $60,000 in order to prevent creditors from seizing furniture and other things that make up a home. Otherwise, the surviving spouse could potentially sit in an empty homestead with no money or furnishings.
Here, Tom argues that the china, silver, and furniture should stay in the homestead during his lifetime even if he only owns 1/3 of them. However, it is not clear that Tom is asking to exempt these items or if they are capable of exemption given the fact that they are separate property. On these facts, I would say that an appraiser should determine the value of Ann’s separate tangible property. Tom is entitled to take 1/3, and the children are entitled to take 2/3. However, Tom does not have a right to keep all the china and furniture in the homestead because:
a) not all of it belongs to him under intestacy laws; and
b) it is not clear that those types of things would qualify for a homestead exemption, or if Tom is claiming one.
07/12 #11:
Tom and Ann, lifelong residents of Waco, Texas, met in 1990. Ann was a widow with three young children, Gail, Libby, and Pete. Tom and Ann married in 1991.
Tom was the sole income earner of the family. Ann never worked outside the home. Tom supported Ann’s three children until they reached the age of 18. During their marriage, Tom and Ann bought and paid
off a house, which they paid for from Tom’s earnings. They maintained joint checking and joint savings accounts, neither of which had rights of survivorship or a payable-on-death beneficiary, and Tom had a 401(k) retirement account funded with his earnings.
Ann had inherited china, silver, and antique furniture from her mother, who died after Ann’s marriage to Tom. Ann had used these items to furnish their home.
In 2011, Ann died without a will. She was survived by Tom, Gail, Libby, and Pete. Tom believes that inasmuch as he had been the sole income earner during the entire marriage, he is entitled to inherit all the
property free of any participation by any of Ann’s children. At the very least, he believes he should have the right to keep and use the real property and the china, silver, and furniture during his lifetime.
Gail, Libby, and Pete, with whom Tom’s relationship is strained, claim they are entitled to inherit all of Ann’s estate. They also claim that Tom is personally liable for Ann’s funeral and burial expenses.
Is Tom personally liable for Ann’s funeral and burial expenses? Explain fully.
-No, Tom is not personally liable for Ann’s funeral and burial expenses.
At issue is who must pay for the decedent’s funeral expenses.
Generally, these expenses come off the top of the estate. Thus, before any distribution is made, the family may petition the court to take funeral expenses out of the entire estate’s value. That way, the family can make sure these expenses are timely paid and that the decedent is laid to rest.
07/12 #12:
John and Marie, lifelong residents of McLennan County, Texas, married in 1952. John had a child, Robert, from a prior marriage. John and Marie had three children from their marriage, Tom, Nick, and Grace.
John and Marie raised their three children and Robert, although Marie never adopted Robert.
In 1965, unbeknownst to Marie, John executed his first and only will. It was in all respects validly executed, but was not self-proved. The two witnesses to the will were John’s lawyer, who drafted the will, and the lawyer’s secretary, both of whom still reside in McLennan County.
The provision in the will appointing an executor stated, “To serve as Executor of this will and my estate, I appoint my spouse.” The will contained no other provisions concerning the administration of the estate.
The dispositive provision of John’s will stated, “I give, devise, and bequeath all of my property, of whatsoever nature, and wheresoever situated, to my spouse, or if she does not survive me, to my children.”
John died on Christmas Day 2008 survived by Marie and the four children. On his deathbed, John told Marie about the 1965 will and said, “In that will, I have left everything to you.” John’s attorney was able to find John’s file and provide Marie with a photocopy of the will. But, despite a diligent search, the original will is never found. The file contains no information regarding what happened to the original will.
At the time of John’s death, his property was community property, consisting of the family home, which John and Marie had purchased in 1954, and a joint checking account with rights of survivorship in the names of John and Marie. All debts and final expenses were paid shortly after John’s death.
Marie has found a buyer for the home at a very good price and wishes to sell it. The children, however, oppose the sale. Neither the buyer nor the title company is willing to proceed unless she can establish that she
has clear title to the property.
Without a probate proceeding, can Marie produce clear title to the house in her sole
name? Explain fully.
Marie cannot produce clear title to the house without a probate proceeding.
The issue is whether a probate proceeding is necessary to establish the title of a decedent’s successors.
The title clearing function important function of the probate process, and establishes the ownership rights of the decedent’s successors in interest. In order for a person to be able to sell real property, the records of the county in which the land is located must show that the person as good title.
Where (as here) a decedent left a will, the will in the court order admitting it to probate constitute a link in the chain of title, serving much the same function as a deed conveying title.
Whether the house was titled in John’s sole name or in john and marie’s name, Marie can not to convey marketable title unless and until the probate records establish that by reason of john’s death, Marie is now the sole owner of the house.
