Wills Flashcards
Intestate Succession: Community Property
Survived by Descendants, ALL of Whom are Spouse’s Descendants: surviving spouse takes ALL CP
Survived by Descendants, Some of Whom are NOT Spouse’s Descendants: decedent’s 1/2 CP interest passes to his descendants (take per capita with representation); surviving spouse retains her 1/2
Not Survived by Descendants: surviving spouse takes all CP
Intestate Succession: Separate Property
Survived by Spouse and Descendants: surviving spouse takes 1/3 SP and 2/3 passes to children or their descendants; surviving spouse life estate in 1/3 separate real property and remainder in 1/3, and outright ownership of 2/3, passes to children/their descendants
Survived by Spouse But Not Descendants: surviving spouse takes all separate personal property and 1/2 of separate real property, other 1/2 to parents or descendants of parents
Not Survived by Spouse: entire estate to children/their descendants; (if none) 1/2 to each parents; (if only 1 parent) 1/2 to parent 1/2 to brothers/sisters/their descendants; (if no descendants or parents) to brothers/sisters/descendants; (if none) 1/2 each to maternal/paternal grandparents/their descendants *no matter how remote, property goes to related person (heir) and if none, property escheats to state
Descendants Take Per Capita with Representation: property is divided into equal shares at first generational level at which there are living takers (share of each deceased personal at that level passes to descendants by representation)
120-Hour Rule
- Applies to everything (wills, joint bank accounts, survivorship estates of real and personal property, life insurance proceeds)
- Community Property: if H and W die within 120 hours of each other, 1/2 of all CP is distributed as if H had survived, and the other 1/2 as though W had survived by 120 hours
Disclaimer by Heir, Will Beneficiary, or Life Insurance Beneficiary
- Disclaimer must be by written, notarized instrument filed n the proper court, at any time within 9 months after decedent’s death
- Disclaimer must state disclaimant is not in arrears on child support (even if unmarried without children)
- Disclaimed interest passes as though disclaiming party predeceased decedent
- Disclaimer may be partial
- Beneficiary may be estopped to disclaim after accepting benefits of the property
Will: Formal Requirements
- T must be over age 18 (or married or in armed forces)
- T must have testamentary capacity
Attested Will: 3 requirements
- Signed by T (or by someone in his presence at his direction)
- 2 attesting Ws (testimony of 1 W = sufficient proof for probate of the will)
- Both Ws signed in T’s conscious presence (*Order of signing not critical if one contemporaneous transaction)
Interested Witnesses
- Do NOT affect validity of the will
- Consequence = bequest to W/B may be void
- W/B can keep his bequest if: (1) will can be “otherwise established” (i.e., by testimony of disinterested attesting W)’ (2) testimony of interested W is corroborated by disinterested person; or (3) W/B would be an heir if the T had died without a will
Holographic Wills
- Must be wholly in the T’s handwriting and signed by T anywhere on the document
- Surplusage rule: extraneous printed words (i.e., words not necessary to complete the will) do NOT invalidate the holographic will
- Must have testamentary intent (intent the document be a will)
- May be proved in probate by testimony of 2 Ws to T’s handwriting (court or deposition)
- Can be self-proved by T’s affidavit before a notary
Non-probate Assets
4 categories
(1) property passing by K (life insurance proceeds, employee benefits, etc.)
(2) property passing by right of survivorship
(3) property held in trust
(4) bonds, mortgages, promissory notes, securities accounts, Ks, or any other arrangements that provide they’re to be paid or transferred upon death to a designated person
Proof of Lost Wills in Probate
Authorized by TX statute: must prove
(1) due execution of will (by testimony of at least 1 attesting W)
(2) cause of non-production (must overcome presumption will can’t be found because T destroyed it with intent to revoke); and
(3) contents must be substantially proved by testimony of credible W who’s read, heard, or can identify a copy of thte will
Pre-Termitted Child Statute
Testator Had No Other Children When Will Executed: child takes share he would’ve inherited if T had died intestate and unmarried, owning only portion of estate not bequeathed to child’s other parent… but if child was born out of wedlock and is not the child of the surviving spouse, the spouse’s share cannot be reduced by more than 1/2
Testator Had Other Children When Will Executed and DID Provide for Them: child takes share of bequests to other children he would’ve received had T included all pretermitted children within children whom benefits were conferred, and given an equal share of these benefits to each child (bequests to children are reduced)
Testator Had Other Children When Will Executed and did NOT Provide for Them: child takes part of estate he would’ve inherited had T died intestate, owning only portion of estate not bequeathed to parent of child
Texas Anti-Lapse Statute
- Applies ONLY to gifts by WILL and ONLY if there is no contrary provision in the will (also applies to VOID GIFTS in a will i.e., if person was dead when will was executed)
- Applies if the predeceasing B (1) was a descendant’s of T’s parents, and (2) left descendants who survived the T
- Effect: B’s descendants take by substitution under the statute
- If a residuary legatee doesn’t survive T, anti-lapse statute will trump rule that other residuary Bs take his share in proportion to their interests in the residue
- Does NOT apply in favor of descendants of a class member (re: class gift) if member was dead when will was executed
Exoneration of Liens and Order of Abatement
Wills executed BEFORE Sept. 1, 2005 = liens on specifically devised property are paid out of the residuary estate (discharging the lien)
Wills executed ON or AFTER Sept. 1, 2005 = no exoneration of liens unless T specifically directs the lien is to be exonerated
Order of Abatement:
(1) intestate property
(2) residuary legacies
(3) general legacies
(4) specific legacies
* in each category, persona property abates before real property
Will Contests
- Must be filed within 2 years after will is admitted to probate (Exceptions: minors/incapacitated persons have 1 wills after removal of disabilities; contested based on fraud or forgery has 2 years from discovery)
- Only INTERESTED PARTIES (heirs, legatees named in prior revoked will being offered for probate, spouses, creditors, anyone with pecuniary interest that would be affected by probate or defeat of the will) can contest a will
- Legatee who accepts benefits under a will, with full knowledge of contest-related facts, is estopped from latign contesting the will
- B is entitled to expenses incurred in defending or contesting the will (even if unsuccessful) if action was in good faith
- Grounds for contesting the will: lack of testamentary capacity, undue influence, fraud, mistake, or that T did not know the contents of the will
- No Contest Clauses: enforceable unless contest was brought (1) in good faith and (2) with probable cause
(Lack of?) Testamentary Capacity
T must have sufficient capacity to
(1) understand the nature of the act he was doing (i.e., understand he was executing a will)
(2) know the nature and character of his property
(3) know the objects of his bounty
(4) understand the disposition he was making
- Ws CANNOT testify as to T’s legal capacity (but MAY answer questions like “Was T of sound mind?”)
- Lucid, sensible holographic will = evidence of testamentary capacity
- T adjudicated incompetent is evidence but not conclusive
- Will may be invalid if it’s the product of insane delusion
Undue Influence
Contestant must prove (1) existence and (2) exercise of an influence that (3) overpowers the mind and will of the T and (4) results in a will that would not have been executed “but for” the influence
The following alone are not enough: mere opportunity to exert influence, mere susceptibility to influence because of age or physical condition, or mere fact of “unnatural” disposition that favors someone unexpectedly or over other family members
