Will and Trust

Question 1

The requirement for exacting will: 1. 18 years old

• Singed by the testator 2. two attesting witnesses 3. Each witness must sign in testator’s presence (conscious) -> Codicil must be executed with same formality -> Testator can sign any anywhere on the will to make it valid

Answer 1

• Order of signing not important -> as long as they are contemporaneous, any mark will be sufficient
• Venue: 1. where principal property located 2. county where nearest of next kin resides or 3. where testator died

Question 2

• only testator can sue the attorney for negligence, not beneficiary
• Witness can be the beneficiary, it does not affects validity of will, unless: 1. proved without his testimony, 2. corrobated by disinterested and credible person 3. the interested witness would be an heir if this will not probated, in which case the interested witness takes whichever is least: lesser of (i) legacy under the will or (ii) intestate share self prove ->nortarized required

Answer 2

• Holographic Wills: Written but unwitnessed -> 1. ask is this intended to be a will. 2. Was it signed by testator? 3. Dated? ( In Texas it doesn’t matter) 4. Was it handwritten ? (Has to be handwritten)
• The non-essential part of will can be discarded - The documents needs testatmentry intent
• Oral Will - Not Valid in Texas -> Fixed by proxy signature + 2 witnesses
• Anti-lapse -> predeceasing beneficiary was descendant of testator or testator’s parents, his descendent or parent’s takes the gift.

Question 3

Lapse: 1. Residual beneficary takes their porportional share.

• Class Gift: The one who survives the testator takes all according to their proportion. -> The class closes when some class member is entitled to a distribution
• Intestate succession rule -> 1. No will 2. Will does not make a complete disposition of estate, or 3. an heir successfully contests the will, and will denied probate -> Spouse takes all community property (eg. spouse takes 1/2 and all children’s takes the other half)
• Seperate personal property: surviving always takes 1/3 (Eg. spouse + parent -> each half in fee simple for separate real property)

Answer 3

• Per capital at the first level of generation line
• Adoption by estoppel p[permits inherantce from foster parents, but not his kin
• Termination decree can end parent-child relationship as well as legal rights.
• The new born must survive 120 hours to inheritance (if will requires survival, or cover simultaneous death, or death in a common sister, the 120 hours does not apply.
• Disclaimer must be in writing, signed, describe the interests being disclaimed, and delivered (The gift goes to children)
• Lifetime gift to child treated as advancement to distribution of esate at death. (common law approach, but in Texas, not advancement unless contemp writing by the donor, or (ii) acknowledged as such in writing by the donee.
• Will executed before marriage ->No effect on community property, spouse still takes half
• Divorce revokes all gifts and apply to former spouse’s relatives as well.

Question 4

• Pretermitted Child (Doesn’t apply when there is codicil): Steps of will: 1. Surviving spouse takes community property 2. Look at will, distribute to surviving spouse. 3 .Look at if any children name mentions on will 4. If no, then Pretermitted child takes 1/all children member * remaining estate and Remaining goes to whoever else on the will. If yes, all children + Pretermitted Child class gift, if children receieves different amount, pretermitted children takes 1/3 each (video 2:35-2:45; 28-29)

Answer 4

• Codicil needs complete thoughts + signature (no partial revocation). If the specific property devised is sold or conveyed -> Children gets nothings, ademption.
• Will executed on or after September 1, 2005, the “exoneration of liens” doesn’t apply -> For mortgagee purpose
• Will cannot change provision of contract
• Priority of appointed personal representative: 1. executor named in will 2. Surviving Spouse 3. Principal beneficiary named in will
• 2 years statute of limitation -> Estate cannot be sued -> have to go after representative
• Guardianship admin -> mandatory notice to unsecured creditors
• Guardian of person: take cares of the ward, to person; Guardian of the estate: manage property !!!

Question 5

• Deliver of Assets has to be transferred personally by the Trustor.
• No trust ever fails for lack of trustee. Court can appoint suitable trustee
• Accept Trust by conduct or signature
• Need beneficiary named and trust purpose indicated
• If trustee has duty to perform, no trust arises.
• If sole beneficiary is trustee, no trust arises (cannot have duty to yourself)
• Beneficary has to be identified (“best friend” doesn’t count
• Watch for language “wish and desire” is non binding, vs “hope” and “would like”
• Partial restrain is valid, but total restrain is not (e.g. “marriage”)
• Oral trust of land not laid, must be in written
• Early termination of Trust: 1. should the court order termination of the trust? 2. Has the purpose been fulfilled? becomes impossible to fulfill? 3. Do we have changed circumstances? 4. Would termination of the trust further the accomplishment of trust’s purpose?

Answer 5

Will admin and Guardian: - Decendent’s homestead passes to any devices free of debts and creditors’ claims when the decedent is survived by a spouse or minor child

• Personal representative priority: 1. person named in the will as executed. 2. surviving spouse 3. principle beneficiary named in the will 4. any other beneficiary named in the will 5. decedent’s next of kin 6. creditor 7. other persons
• In dependent Administration, if the claimant does not file suit within 90 days of rejection of an unsecured claim, the claims is barred.
• A will can be admitted to probate more than 4 years after the estator’s death only if the party applying for probate was not in default.
• A Guardian of the person does not have to be appointed if either of the minor’s parents is living
• Letter of Guardianship expires after 1 year and 4 months unless renewed
• If a trust management is a minor, the trust terminates: 1. On the date of court order, no later than 25th birthday or his death.

Question 6

• When dies intestate and survived by Descendents, and all of the Descendents are Descendents of the surviving spouse -> spouse takes all (his half and 1/2 interests from des); if at least one descendent is not his child -> 1/2 pass to descendent with per capita.
• If intestate, no des, children, spouse or parent -> goes to des of his parents
• Father’s oral statement does not establish parenity
• If H and W dies within 120 hours, pass community property as the wife survived H and H survived W
• Witness needs age of 14
• After a Will is admitted to probate, contestant has burden, if at the time the will is offered for probate, the proponent has burden to prove.

Answer 6

• Stepchildren, if omitted from will, cannot contest will -> file within 2 years
• “Children” in Texas include marital children only.
• “Descendants” does not include adopted adults
• Pretermitted Child, if there is only 1 child in total, takes all. If there’s two he only takes half, learning question 28-29
• Holographic will has to be all in writing.