Wills Flashcards
Requirements for a Duly Executed Will
- -18 (or married or armed forces)
- -signed by testator (or proxy at testator’s direction and in his presence)
- -two attesting witnesses over age 14 (each sign in testator’s presence)
codicil
later amendment or supplement
must be executed with same formalities
does witness need to know that he is signing a will?
no, just needs to attest to testator’s signature
does the testator have to sign the will in the witnesses presence?
no could do it earlier
do the witnesses have to sign in each other’s presence?
nop
does the testator have to sign at the end of the doc?
no he can sign anywhere
witness must sign in testator’s ‘conscious presence’
not necessary that the T actually be able to see the witnesses when they sign as long as he could see them if he moved a little
how many witnesses need to prove the will in court?
only one. testimony of one of the attesting witnesses in open court will be enough
what if all the witnesses pre-decease T?
then testimony of 3 ppl as to handwriting of T or either attesting T will work (or only 1)
Self Proving Affidavit
statements witness would testify to in open court (over 18, witnesses signed in presence, sound mind)
substitute for live testimony of attesting witness
two step process:
everyone sign will then sworn in by notary and witnesses gin affidavit
one step process
will’s attestation clause after testator’s signature and above witnesses
if witnesses sign the self proving affidavit but not will
signatures will be used for will but not affidavit
venue for probate of will and admin of assets
county where decedent resides or principal property located
examining contents of safe deposit box
may be examined w/o court order in the presence of bank officials by:
- spouse
- child over 18
- person named as executor in will
will found in box may be delivered to either executor in will or probate court
duties of attorney who wrote the will
attorney’s duty runs to only the person who retained him
but executor can sue for:
- -loss to estate b/c excess estate taxes paid b/c negligent advice
- -loss to estate from allegedly negligent mischaracterization of assets as SP or CP
Interested Witness
when attesting witness would be beneficiary
since you only need one witness to attest, get the one that’s not the beneficiary.
interset of witness won’t affect validity of will but will make the bequest void unless it can be corroborated by any disinterested person who was present
or if would also be an heir, take whatever would be less
Holographic Will
wholly in handwriting of testator
handwitten, un-witnessed will wholly in handwriting of testator and signed by testator is ok
here, just writing name would be enough, dont have to sign
can have a holographic codicil to a typewritten witnessed will
Testamentary Intent
must be intended to be a will when it was written, must intend it to only take effect on death
extrinsic evidence is admissible to help determine intent
letter to lawyer asking him to change will doesn’t count
does a holographic will need a date?
no date req
how do you prove a holographic will?
have 2 ppl who can attest to the handwriting (that style of handwriting)
Surplusage rule for holographic wills
ex: hotel stationary.
extraneous printed words, not necessary to complete the will or its meaning can be disregarded
oral wills?
nope, repealed Sept. 1, 2007
Proxy signature in holographic will
someone randomly dying. you can write the whole thing for them and sign it with 2 witnesses
not technically holographic but it’s ok as long as it was at T’s discretion and in his presence
Texas Anti Lapse Statute
if beneficiary predeceases the T, the gift lapses (fails) unless it is saved by the anti-lapse statute.
only applies when pre-deceasing beneficiary was a descendant of testator’s parent (child, grandchild, brother, sister, niece) AND left descendants who survived T by 120 hours
anti lapse doesn’t go through dead beneficiary’s will, but goes to the descendants
it’s done if the will doesn’t apply contrary provisions
if someone in a class gift group predeceases testator
he doesn’t get anything
3 times for intestate succession
no will
partial will (partial intestacy)
heir successfully contests will and will denied probate
Intestate, survived by spouse, CP
salary and wages and income from sep prop
if kids all from the current spouse
–wife take all CP and kids take nothing
if kids not all from surviving spouse
- -wife gets her 1/2 CP
- -kids split other 1/2 CP
intestate, survived by spouse, Sep. Personal Prop
typically:
- -wife 1/3
- -kids 2/3
wife and parents but no kids
–all to spouse
intestate, survived by spouse, sep. real prop
typical:
- -wife 1/3 life estate
- kids 2/3 outright, remainder following wife’s 1/3 life estate
wife and family but no kids
- -wife gets 1/2 fee simple
- -parents/family get other 1/2
wife and no one else besides aunt/uncle
–wife gets all b/c no immediate family
family allowance
if wife owns little to no sep property than she can petition for allowance in amount that is needed for her support for 1 year
intestate, not survived by spouse or descendants
if survived by both parents, each gets 1/2
when parent can’t inherit from kid
abandoned/failed to support
knowingly abandoned failed to support mother while preggo
criminally responsible for death or serious bodily harm to kid
half bloods
inheritance by collateral kin, half bloods inherit half as much as whole
whole blood get 2/3
half blood get 1/3 share
no laughing heirs in Texas
no limit on degree or relationship needed to take as heir
so even remote relationship is ok
intestate, if dead guy not survived by wife, kids, or parents
1/2 to maternal grandparents/kin
1/2 to paternal grandparents/kin
child can’t inherit from father unless presumption of paternity. presumptions:
- child born during or w/in 30 days after marriage or attempted marriage
- parties married after kids birth and man voluntarily asserts paternity by
- -record filed with bureau of vital statistics
- -consenting to be on birth cert
- -promising in record to support kid - during first 2 years of kids life lived w/it and called it his
- sworn statement acknowledging paternity
- paternity est. in paternity suit
- paternity est. in probate proceedings
- -for good cause shown can do DNA
child inheriting from man who raised him
not unless he was adopted by that guy
adoption by estoppel: unperformed agreement to adopt
–permits inheritance from foster parent but not his kin
Inheritance Rights of Adopted kids
adoption makes parent/kid relationship (unless will says ‘kids of my body’ or something)
can still inherit from bio parents unless decree terminating parental rights says otherwise
persons adopted as adults can inherit from adopting parents but not bio
bio parents can’t inherit from kids they gave away
120 Hour Rule
beneficiary must survive T by more than 120 hours (if no contrary provisions)
if beneficiary doesn’t survive then the gift passes as though beneficiary predeceased T (so the anti-lapse stat could apply)
rule doesn’t apply if the deaths were all in a common disaster
120 hour rule applies to CP
if husband/wife dies w/in 120 hour of each other 1/2 of CP passes through H’s estate and one 1/2 through 1/2
120 hour rule applies to life insurance policies, etc.
life insurance policies, joint/survivor bank accounts, property held in joint tenancy, WROS
to trigger right of survivorship must survive by 120 hours
how to make an effective disclaimer of gift in a will/life insurance beneficiary/employee dearth benefit
- written, signed, acknowledged before notary
- filed within 9 months of D’s death
- filed w/public court, copy to personal rep (2 copies)
disclaimer can be partial
but parent can’t disclaim for his kid, has to be kids legally appointed guardian
Effect of disclaimer?
as though that person predeceased decedent
Revoking trusts
beneficiary of irrevocable inter vivos trust can disclaim w/in 9 months of trust being created
beneficiary of revocable trust can disclaim w/in 9 months of being irrevocable trust
when can a beneficiary disclaim?
1 year after receiving notice of bequest or
6 month after inventory of estate is filed
lifetime gifts to descendent?
not treated as advancements unless:
- declared as such as contemporaneous writing by donor
- acknowledged as such in writing by donee
so just ignore the lifetime gift and distribute the usual way
lifetime gift to beneficiary not treated as as partial satisfaction of bequest made unless:
- declared as such in contemporaneous writing by donor
- acknowledged as such in writing by donee
- will provides bequests are to be reduced by such lifetime gifts
when T marries after he makes a will
marriage has no effect on the will
- no pretermitted spouse stat in texas so no effect on will
- CP laws makes sure spouse gets 1/2, so law finds that good enough
new wife can assert:
- homestead
- 15K in lieu of homestead
- family allowance for 1 year
- exempt personal property to be set aside
- 5K in lieu of exempt personal property
when T is divorced after will executed
final decree of divorce/annulment of marriage revokes all gifts/fiduciary appointment in favor of:
- -former spouse
- -relatives of former spouses
Read as though the other ppl predeceased testator
also applies to revocable trusts and life insurance policies
but if they remarry she will take under will again
pretermitted Child: no other kids when will executed
child takes intestate share of all property not bequeathed to other parent of child
pretermitted child: other kids when will executed
and kids not provided for: kids take intestate share of all property not bequeathed to other parent
and kids are provided for
kid takes a share of gifts to other kids
(unless kid is provided for in some other way)
Republication by Codicil
will sleeks (aka deemed executed) on date of last codicil to will
may change if kid is pretermitted or not
how can T revoke his will?
physical act
subsequent will (holographic or typewritten)
presumptions about revocation
- will last seen in T’s possession/control and not found after death. assume T destroyed it to revoke it
- will last seen in T’s possession and it was found all torn and mutilated. assume destroyed and revoked
Lost will
to probate a lost will, 3 point test:
- due execution proved as in any other case
- cause of wills non production must be proved (overcome presumption of revocation)
- contents substantially proved by one who has read will, heard it, or can ID copy
making changes to a will
crossing something out and writing something else in won’t count b/c it’s all about duly executed will at time witnesses signed
can write more at the end of a holographic will and it would be a codicil (but has to be able to stand alone)
cross outs and write ins in holographic will is ok if 2 ppl can attest to the handwriting of the write in
can you revive a revoked will?
no
unless dependent relative revocation: T revokes a will based on mistake of law/facts to validity of another disposition
abatement of testator’s property
intestate residuary personal residuary real general legacy of personal general legacy of real specific personal specific real
Ademption
trying to give something it no longer has
my shares of stock may abate but ‘shares of this stock’ won’t, just have to buy it
Specific Gift of Encumbered Property
executors must pay debts of testator
person wanting fulfillment of debt can take whatever the testator had, but not reach the other parts of the estate
incorporation by reference
extrinsic doc, not present when will executed can be incorporated by reference into will if
- writing in existence when the will was executed
- will shows intent to incorporate the writing
- doc clearly IDed by language in will (attached sheet is not enough)
holographic will can’t incorporate a typewritten doc by reference
Latent and Patent Ambiguity
Latent: only know mistake when you try to apply will. can use extrinsic evidence
patent: obvious mistake. extrinsic evidence is ok
contracts relating to wills
contract to make a will or not revoke one est. by
- provisions in will stating contract does exist and material provisions on contract or
- binding and enforceable written agreements (buy/sell, prenup)
execution of a joint will or a reciprocal will isn’t enough
if made and then revoked use constructive trust
can be revoked by giving notice to other party in contract
disinheritance
you can disinherit people. you distribute as though the disinherited person predeceased
only for that person though, not that person’s descendants
Power of Appointment
gives the life beneficiary the power to designate the remainderman of the gift
general testamentary power of appointment: not limited in class of beneficiaries who she can appoint-can be anyone
special testamentary power of appointment: the T limits the group who can take
person with the power must expressly exercise it. if it isn’t mentioned then the takers in default of the appointment will take (unless it is exercised by implication, like giving away a part of it)
the default ppl are named by T
contesting T’s capacity
- understand the nature of the act he was doing
- know the nature and approximate value of estate
- know the natural objects of his bounty
- undersand the disposition he was making
evidence of capacity/lack must be around time of will
not always presumed if judged incapacitated by court b/c he could be in a lucid interval when he writes the will
timing of will contest
at time offered for probate: burden of proof on proponent to show capacity
after will admitted to probate: contestants have burden of proof
person under disability can file contest w/in 2 years of disability being removed
if accept benefits under will estopped from contesting it only if had full knowledge of facts on which contest might be based
who can contest a will?
only interested parties can bring will contest
economic interest adversely affected by will’s probate
(not close friend, not someone named in earlier revoked will b/c it’s gone forever)
Undue Influence (manipulating old ppl)
contestant has burden to prove:
- existence/exertion of influence
- effect was to overpower mind/will of testator and
- product was will or gift in will that wouldn’t have been made but for influence
what to always mention in will contest questions
4 point test for capacity
3 point test for undue influence and discuss b/c no clear answer
marrying old guys
action to annul marriage on ground old dude lacked capacity to consent to marriage can be filed if marriage took place w/in 3 years of death and action w/in 1 year after death
no contest clauses
given full effect unless the TC finds that the contest was brought in good faith and with just cause
strictly construed to not apply to will construction suits or actions brought against executor alleging improper admin of estate
Independent Administration
the will may name independent executor
-no action in courts other than probate of will, filing inventory, and required appraisement
when is it in the will? any words, however informal
one can be picked if all the distrubutees agree
Independent Executor
can do w/o a court order, anything dependent admin can do with a court order
power to sell property to pay off debts, amdin expenses, allowances (if there is enough cash in the estate to cover debts then probably not a good sale)
Inventory
personal rep must file inventory of estate assets w/in 90 days after appointment
accounting
interested parties are entitled to accounting from the independent executor on demand
15 days after will admitted to probate and successive accountings on demand
12 days after last accounting rendered
Closing the Admin
–file closing report with verified affidavit showing property initially received, debts/expenses paid, names/address of distributees
–file notice of closing with verified affidavit that shows all known debts and expense paid and name and address of distrubutee
–ask declaratory judgment seeking judicial discharge
–interested party can petition for distribution of estate 2 ears after Independent executor appointed. have a show cause hearing to explain why executor not done yet
executor (in a will) or administrator (appointed by court) must do what?
post fiduciary bond w/in 20 days unless waived by will
publish notice of admin in newspaper w/in 1 month
file inventory of estate w/in 90 days
give notice/copy of will to named beneficiaries w/in 60 days after will admitted to probate unless property value less than 2K
file cert that notice to beneficiaries has been given w/in 90 days
when can the independent executor be removed
didn’t do any of the things he is supposed to do or
guilty of gross misconduct or mismanagement
becomes incompetent or is sentenced to penitentiary
material conflict of interest prevents him from properly performing duties
jurisdiction for probate proceedings
county court
ways to probate an estate w/o a personal rep
- If there is a will: muniment of title only
- no need to have executor, no need to formally administer estate but will clear title to land in estate. but only works if there is no debt - Intestacy: statutory heirship proceeding
- no need to do formal administration
- judgment states person died intestates, names heirs and amounts - Intestacy: small estate admin by Affidavit
- -value of estate less than 50K
- -affidavit serves same function as letters of testamentary–so the party with it can collect assets and clear title on homestead (homestead only!)
non statutory affidavit of heirship
used primarily to clear title to land where owner died years ago and no action is taken to clear the title
get affidavits by the ppl who knew about the family and the land
attorney fees for will contests
if the independent executor offers the will to probate but the will is denied for any reason the IE is still entitled to attorney fees from the estate
Temporary Administer
appointed pending appointment of permanent personal rep
powers limited by those granted to court
BFPSs
BFP who rely on court orders (orders admitting wills to probate, letting things be sold) will be protected
ex: when you don’t know that there is a valid will so you go by an older will or through intestacy
Time Period for Probating Wills
will must be offered for probate w/in 4 years
unless the party offering the will shows he was not in default for not probating w/in that period
Priority for who is appointed personal rep
executor named in will spouse principal beneficiary in will any other beneficiary in will next of kin, in nearest order of kinship
but a temporary administrator can be anyone
People who can’t be personal reps
minors
incapacitated ppl
convicted felons
ppl court finds unsuitable
IE and insurance
even if the testator didn’t keep stuff insured the IE can be held liable for failing to insure assets b/c the general test is:
if prudent person would insure the item than the IE is under a duty to do so
Compensation for Executors and Administrators
5% in, 5% out rule
if no other provision, rep gets commission of 5% all sums received and 5% all sums paid out in cash
can you sue the estate?
no, it’s not an entity. must be brought against the personal rep
secured creditors
if decedent is personally liable on a note secured by a mortgage, the creditor can present a claim for payment out of general assets of the estate even if the note isn’t due
–last chance for mortgagee to get anything
must file claim as mature the later of:
- -6 months from date of personal reps appointment
- -4 months after receipt of personal notice
claims agains the estate (order or priority)
funeral expenses and expenses of last illness up to 15K
family allowance
expenses of administration
secured claims, to extent covered by lien if creditor filed a matured, secured claim
child support arrearages reduced to judgment
state taxes
repayment of medicaid assistance paid by state
cost of confinement if imprisoned
all other claims including extra funeral/medical
Emergency Intervention
to pay funeral expenses or to protect the stuff in a rental unit
no sooner than 3 days an no later than 90 after death, any person can file an application for emergency intervention
lets them get funds from bank account
what a gift includes
gift of a receptacle, like a house, gives all tangible property in the house but not intangibles
contractual will
will is not contractual unless:
states that a contract exists
sets out contract’s material terms
adoption by estoppel
if foster parent gains custody of kid under agreement w/natural parent that they will adopt the kid and then they never do
presumed father
child born during marriage, 30 days
parties marry after birth and claims kid
during first 2 years he lived with kid and claimed it
statement of paternity
paternity est. in probate/paternity
kid can petition for a DNA test
undue influence (3)
contestant has the burden of proof:
- -existence/exertion of influence
- -effect of which was to overcome the mind/will of testator
- -product of which is a will that would not have been made but for the influence
can be raised on inference if the person is in a confidential relationship
destroyed the free will of the testator
Fraud (4)
where execution of the will is the result of fraud, it will be invalid
party seeking to prove fraud must prove:
- speaker made false reps knowing they were false
- reps made with intent to deceive T
- T ignorant to falsity
- relying on reps T made a will different from what he would have
proof of lost will (3)
duly executed
–lawyer or witnesses say so
cause of the non production
–overcome presumption is was revoked b/c last seen in T’s presence
contents of the will
-by testimony or the other copy
independent administrator
if the executor in the will files an affidavit indicating unwillingness to do it, then the ditributees of the estate can collectively pick someone else
court will appoint person unless not in best interest of estate and then court will make it dependent instead of independent
who can’t be an executor?
convicted felon
when do you have to do a will contest?
2 years (2 years after discovery of fraud/forgery)
how long can you try to offer a later will for probate?
4 years
small estate administration by affidavit
intestate, less than 50K
no need for personal rep
affidavit can clear title to the homestead, but not to the other party
statutory heirship proceeding
intestate
no need for personal rep
court can enter order naming heirs and respective shares
duty of the independent executor
offer the will for probate and defend it
so he has standing to contest a later will and submit his will to probate, even if it’s not the most current one
satisfaction of legacies
lifetime gift to person named in will is treated as total/partial satisfaction of gift if:
–intention for it to be like that is in contemporaneous writing signed by either party
–will provides legacies reduced by lifetime gifts
applies to gifts made after will executed not before
acts of independent significance
when you do thinks with the gifts during your lifetime
the moving the Picasso into the living room ex
disclaiming gift
file notarized instrument of disclaimer of probate 9 months of death
can’t disclaim it if you already took ownership interest in it
