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Wills and Trusts > Wills > Flashcards

Wills Flashcards

1
Q

Requirements for a Duly Executed Will

A
  • -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)
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2
Q

codicil

A

later amendment or supplement

must be executed with same formalities

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3
Q

does witness need to know that he is signing a will?

A

no, just needs to attest to testator’s signature

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4
Q

does the testator have to sign the will in the witnesses presence?

A

no could do it earlier

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5
Q

do the witnesses have to sign in each other’s presence?

A

nop

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6
Q

does the testator have to sign at the end of the doc?

A

no he can sign anywhere

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7
Q

witness must sign in testator’s ‘conscious presence’

A

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

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8
Q

how many witnesses need to prove the will in court?

A

only one. testimony of one of the attesting witnesses in open court will be enough

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9
Q

what if all the witnesses pre-decease T?

A

then testimony of 3 ppl as to handwriting of T or either attesting T will work (or only 1)

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10
Q

Self Proving Affidavit

A

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

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11
Q

if witnesses sign the self proving affidavit but not will

A

signatures will be used for will but not affidavit

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12
Q

venue for probate of will and admin of assets

A

county where decedent resides or principal property located

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13
Q

examining contents of safe deposit box

A

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

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14
Q

duties of attorney who wrote the will

A

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
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15
Q

Interested Witness

A

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

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16
Q

Holographic Will

A

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

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17
Q

Testamentary Intent

A

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

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18
Q

does a holographic will need a date?

A

no date req

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19
Q

how do you prove a holographic will?

A

have 2 ppl who can attest to the handwriting (that style of handwriting)

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20
Q

Surplusage rule for holographic wills

A

ex: hotel stationary.

extraneous printed words, not necessary to complete the will or its meaning can be disregarded

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21
Q

oral wills?

A

nope, repealed Sept. 1, 2007

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22
Q

Proxy signature in holographic will

A

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

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23
Q

Texas Anti Lapse Statute

A

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

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24
Q

if someone in a class gift group predeceases testator

A

he doesn’t get anything

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25
Q

3 times for intestate succession

A

no will
partial will (partial intestacy)
heir successfully contests will and will denied probate

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26
Q

Intestate, survived by spouse, CP

A

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
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27
Q

intestate, survived by spouse, Sep. Personal Prop

A

typically:
- -wife 1/3
- -kids 2/3

wife and parents but no kids
–all to spouse

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28
Q

intestate, survived by spouse, sep. real prop

A

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

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29
Q

family allowance

A

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

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30
Q

intestate, not survived by spouse or descendants

A

if survived by both parents, each gets 1/2

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31
Q

when parent can’t inherit from kid

A

abandoned/failed to support
knowingly abandoned failed to support mother while preggo
criminally responsible for death or serious bodily harm to kid

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32
Q

half bloods

A

inheritance by collateral kin, half bloods inherit half as much as whole

whole blood get 2/3
half blood get 1/3 share

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33
Q

no laughing heirs in Texas

A

no limit on degree or relationship needed to take as heir

so even remote relationship is ok

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34
Q

intestate, if dead guy not survived by wife, kids, or parents

A

1/2 to maternal grandparents/kin

1/2 to paternal grandparents/kin

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35
Q

child can’t inherit from father unless presumption of paternity. presumptions:

A
  1. child born during or w/in 30 days after marriage or attempted marriage
  2. 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
  3. during first 2 years of kids life lived w/it and called it his
  4. sworn statement acknowledging paternity
  5. paternity est. in paternity suit
  6. paternity est. in probate proceedings
    - -for good cause shown can do DNA
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36
Q

child inheriting from man who raised him

A

not unless he was adopted by that guy

adoption by estoppel: unperformed agreement to adopt
–permits inheritance from foster parent but not his kin

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37
Q

Inheritance Rights of Adopted kids

A

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

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38
Q

120 Hour Rule

A

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

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39
Q

120 hour rule applies to CP

A

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

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40
Q

120 hour rule applies to life insurance policies, etc.

A

life insurance policies, joint/survivor bank accounts, property held in joint tenancy, WROS

to trigger right of survivorship must survive by 120 hours

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41
Q

how to make an effective disclaimer of gift in a will/life insurance beneficiary/employee dearth benefit

A
  • 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

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42
Q

Effect of disclaimer?

A

as though that person predeceased decedent

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43
Q

Revoking trusts

A

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

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44
Q

when can a beneficiary disclaim?

A

1 year after receiving notice of bequest or

6 month after inventory of estate is filed

45
Q

lifetime gifts to descendent?

A

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
46
Q

when T marries after he makes a will

A

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
47
Q

when T is divorced after will executed

A

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

48
Q

pretermitted Child: no other kids when will executed

A

child takes intestate share of all property not bequeathed to other parent of child

49
Q

pretermitted child: other kids when will executed

A

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)

50
Q

Republication by Codicil

A

will sleeks (aka deemed executed) on date of last codicil to will

may change if kid is pretermitted or not

51
Q

how can T revoke his will?

A

physical act

subsequent will (holographic or typewritten)

52
Q

presumptions about revocation

A
  1. will last seen in T’s possession/control and not found after death. assume T destroyed it to revoke it
  2. will last seen in T’s possession and it was found all torn and mutilated. assume destroyed and revoked
53
Q

Lost will

A

to probate a lost will, 3 point test:

  1. due execution proved as in any other case
  2. cause of wills non production must be proved (overcome presumption of revocation)
  3. contents substantially proved by one who has read will, heard it, or can ID copy
54
Q

making changes to a will

A

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

55
Q

can you revive a revoked will?

A

no

unless dependent relative revocation: T revokes a will based on mistake of law/facts to validity of another disposition

56
Q

abatement of testator’s property

A 
intestate
residuary personal 
residuary real 
general legacy of personal
general legacy of real 
specific personal 
specific real
57
Q

Ademption

A

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

58
Q

Specific Gift of Encumbered Property

A

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

59
Q

incorporation by reference

A

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

60
Q

Latent and Patent Ambiguity

A

Latent: only know mistake when you try to apply will. can use extrinsic evidence

patent: obvious mistake. extrinsic evidence is ok

61
Q

contracts relating to wills

A

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

62
Q

disinheritance

A

you can disinherit people. you distribute as though the disinherited person predeceased

only for that person though, not that person’s descendants

63
Q

Power of Appointment

A

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

64
Q

contesting T’s capacity

A
  1. understand the nature of the act he was doing
  2. know the nature and approximate value of estate
  3. know the natural objects of his bounty
  4. 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

65
Q

timing of will contest

A

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

66
Q

who can contest a will?

A

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)

67
Q

Undue Influence (manipulating old ppl)

A

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
68
Q

what to always mention in will contest questions

A

4 point test for capacity

3 point test for undue influence and discuss b/c no clear answer

69
Q

marrying old guys

A

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

70
Q

no contest clauses

A

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

71
Q

Independent Administration

A

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

72
Q

Independent Executor

A

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)

73
Q

Inventory

A

personal rep must file inventory of estate assets w/in 90 days after appointment

74
Q

accounting

A

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

75
Q

Closing the Admin

A

–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

76
Q

executor (in a will) or administrator (appointed by court) must do what?

A

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

77
Q

when can the independent executor be removed

A

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

78
Q

jurisdiction for probate proceedings

A

county court

79
Q

ways to probate an estate w/o a personal rep

A
  1. 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
  2. Intestacy: statutory heirship proceeding
    - no need to do formal administration
    - judgment states person died intestates, names heirs and amounts
  3. 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!)
80
Q

non statutory affidavit of heirship

A

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

81
Q

attorney fees for will contests

A

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

82
Q

Temporary Administer

A

appointed pending appointment of permanent personal rep

powers limited by those granted to court

83
Q

BFPSs

A

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

84
Q

Time Period for Probating Wills

A

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

85
Q

Priority for who is appointed personal rep

A 
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

86
Q

People who can’t be personal reps

A

minors
incapacitated ppl
convicted felons
ppl court finds unsuitable

87
Q

IE and insurance

A

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

88
Q

Compensation for Executors and Administrators

A

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

89
Q

can you sue the estate?

A

no, it’s not an entity. must be brought against the personal rep

90
Q

secured creditors

A

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
91
Q

claims agains the estate (order or priority)

A

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

92
Q

Emergency Intervention

A

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

93
Q

what a gift includes

A

gift of a receptacle, like a house, gives all tangible property in the house but not intangibles

94
Q

contractual will

A

will is not contractual unless:

states that a contract exists
sets out contract’s material terms

95
Q

adoption by estoppel

A

if foster parent gains custody of kid under agreement w/natural parent that they will adopt the kid and then they never do

96
Q

presumed father

A

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

97
Q

undue influence (3)

A

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

98
Q

Fraud (4)

A

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
99
Q

proof of lost will (3)

A

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

100
Q

independent administrator

A

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

101
Q

who can’t be an executor?

A

convicted felon

102
Q

when do you have to do a will contest?

A

2 years (2 years after discovery of fraud/forgery)

103
Q

how long can you try to offer a later will for probate?

A

4 years

104
Q

small estate administration by affidavit

A

intestate, less than 50K
no need for personal rep
affidavit can clear title to the homestead, but not to the other party

105
Q

statutory heirship proceeding

A

intestate
no need for personal rep
court can enter order naming heirs and respective shares

106
Q

duty of the independent executor

A

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

107
Q

satisfaction of legacies

A

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

108
Q

acts of independent significance

A

when you do thinks with the gifts during your lifetime

the moving the Picasso into the living room ex

109
Q

disclaiming gift

A

file notarized instrument of disclaimer of probate 9 months of death

can’t disclaim it if you already took ownership interest in it

Wills and Trusts (4 decks)

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