Wills

Question 1

Codicils

Answer 1

• Supplement to a will that alters, amends, or modifies the will, rather than replacing it• Republishes will as of the date of the codicil• Must be executed with the same formalities as a will• Texas permitted nuncupative codicils under the same circumstances as it permitted nuncupative wills

Question 2

abatement

Answer 2

gifts by will are reduced when the assets of the estate cannot pay necessary debts

Question 3

If a kid born out of wedlock wants to inherit, what test do you put

Answer 3

Can only inherit by clear and convincing evidence that (1) the decedent was the father or (2) that decedent was presumed father according to texas family code. Texas family code - presumptive father would need to (1) be married to the mother at the birth (2) married the mother or shortly thereafter and took an affirmative step to demonstrate he was the parent (like putting his name on the birth certificate) or (3) lived with the child for the first 2 years of life and held himself out to be the father

Question 4

What does a holographic will need to be valid

Answer 4

in Texas, to be valid, a holographic will must (1) entirely in the testator’s handwriting (which can be proved by testimony in probate court (2) executed and signed by the testator over the age of 18 of sound mind with capacity and testamentary intent (evidence in the will of the intent to distribute property “upon my death” provides intent (3) date or witnesses is not required

Question 5

If the grantor clearly does not have intent to grant a more limited estate, what will courts presume the testator meant to convey?

Answer 5

Free simple absolute - reason –> to promote free alienability

Question 6

Is extrinsic evidence of testamentary intent allowed?

Answer 6

Generally no, Texas courts will only look at the 4 corners of the will and honor the language present regardless of what interested parties may be believe what was intended

Question 7

What if a will has conflicting or ambiguous language?

Answer 7

A party may present extrinsic evidence of testamentary intent

Question 8

T/F Texas courts are inclined to favor a stronger life estate in the presence of ambiguous or conflicting language and in the absence of extrinsic evidence b/c public policy favors the stability of a stronger interest in property and a more permanent disposition

Answer 8

true!

Question 9

Under Texas law, when a will cannot be located, the applicant must prove 3 things:

Answer 9

1. The will was validly executed2. The reason why the will cannot be found and3. the content of the will through a credible witness who either read, heard, or saw it

Question 10

How can a will be revoked or modified?

Answer 10

with the EXACT SAME formalities as a real will - in writing, signed, in the presence of two witnesses who also sign it

Question 11

Can you revoke a will orally?

Answer 11

No!!

Question 12

Does a holographic will need to be dated?

Answer 12

Nope

Question 13

Does a holographic will need to be witnessed?

Answer 13

Nope

Question 14

Does Texas recognize oral wills?

Answer 14

No - they have been abolished in Texas and are not allowed under any circumstances

Question 15

T/F A codicil can only be read to modify the parts of the prior will that it expressly contradicts or revokes

Answer 15

True! The rest of the will remains valid

Question 16

Does a child of the decedent’s who was given up for adoption still have a right to inherit?

Answer 16

Yes, they do not lose their inheritance rights unless they were adopted as adults or the rights are expressly terminated in the decree terminating the parent child relationship

Question 17

Does a CD account pass through probate?

Answer 17

yes

Question 18

What’s a valid non-probate transfer of a CD?

Answer 18

joint tenancy with the right of survivorship

Question 19

What’s the default succession rule/plan

Answer 19

per capita with representation

Question 20

Who does the marital homestead belong to? (regardless of whether it was community property or not)

Answer 20

The surviving spouse for the rest of their life (life estate)

Question 21

If there is a surviving spouse and the decedent has children but they are children from a previous marriage, how are things split?

Answer 21

CP - 1/2 to the surviving spouse and 1/2 to their kids SP - 1/3 of personal property and real property to SS, the remaining to the kids

Question 22

Is a surviving spouse personally liable for the deceased funeral and burial expenses?

Answer 22

No, the funeral and burial expenses come out of the estate before the estate is distributed

Question 23

Does Texas honor wills & self-proving affidavits that were validly executed in other states?

Answer 23

The TPC provides that if a will meets the formalities required in the state in which it was executed, it will be honored under Texas law if the party later moves to Texas.

Question 24

If the person has something like “other personal property” in their estate on death, it is presumed to be what

Answer 24

community property!

Question 25

When spouses die within 120 hours of each other and neither has left a will, what happens?

Answer 25

The estate is distributed as though the husband predeceased the wife and the wife predeceased the husband, with each receiving the other’s 1/2 CP share to be distributed to any living heirs.

Question 26

When is a partition agreement invalid?

Answer 26

same as a prenup!!

• When there was not a voluntary signing of the agreement by the party,
• When the agreement was unconscionable when signed and before signing the agreement, that party
• Was not given a fair and reasonable disclosure of the property or obligations of the other party
• Did not waive, in writing, a right to that information
• Did not have, or reasonably couldn’t have had, adequate knowledge of the property or debts of the other party

Question 27

Does Texas allow partition agreements?

Answer 27

Yes, under Texas law, spouses are allowed to partition and exchange their community property as long as the agreement is signed by both parties, specifically states that property is being partitioned, and specifically describes the property to be partitioned and exchanged.

Question 28

What can a partition agreement contain?

Answer 28

partition of future earnings and income, income from separate property (and any increases) and after-acquired property

Question 29

What’s the doctrine of Cy Pres?

Answer 29

—a court may modify a charitable trust to seek an alternative charitable purpose if the original one becomes illegal, impracticable, or impossible to perform; new purpose must be “as near as possible” to original purpose; settlor’s intent re alternative controls; if alternative not intended, resulting trust for benefit of settlor’s estate

Question 30

Who can designate a new charitable beneficiary if the other one isn’t possible anymore?

Answer 30

the trustee may select a replacement beneficiary for a failed charitable beneficiary; must consult with settlor if living/not incapacitated; must have same/similar charitable purpose as failed beneficiary

Question 31

Who has standing to bring a wrongful death action?

Answer 31

The surviving spouse, children, and parents of the deceased person may file a wrongful death claim in Texas. Any one of these individuals may file the claim singly, or a group of them may choose to file it together.

Question 32

If there is a pretermitted child and there are no other children, how do you distribute

Answer 32

pretend as though the decedent died intestate (that they had no will)

Question 33

if the family doesn’t file a wrongful death suit within 3 months of the date of death, can anyone else file suit?

Answer 33

If the surviving spouse, children, or parents do not file a wrongful death claim within three months of the date of death, the personal representative or executor of the deceased person’s estate may file the claim instead, unless a surviving family member specifically requests that the wrongful death claim not be filed

Question 34

Where a will gives a specific bequest of property to a beneficiary, what happens to the specific devise if the property named is no longer in the estate when the testator dies?

Answer 34

It is considered adeemed and will fail

Question 35

I devise my house to Ned. If I sell my house and then use the proceeds to buy a boat, can Ned claim the boat?

Answer 35

No!! Since it was a specific bequest that didn’t exist when I died, it fails.

Question 36

Will the court trace a specifically devised gift in an attempt to satisfy a testor’s probable intent?

Answer 36

No