Wills Flashcards

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1
Q

Duly Executed Will / Codicil

A

Testator must be 18 years old (or married/armed forces)
• Signed by T or at T’s discretion and in their presence
• 2 attesting witnesses over 14 years old
• Each witness must sign in testator’s conscious (aware of where they are and what they are doing) presence

Codicil (later amend or supplement to a will) must be executed w/same formalities as will

Must be intended to take effect at maker’s death. If operative during life then not a will

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2
Q

Proof of Wills in Probate

A

Self-proving affidavit serves the same function as a deposition or interrogatory to prove all elements of properly executed will were present

  • 2-Step Will Execution Ceremony: T and witnesses sign will then sworn by notary T and witness sign the affidavit. If sign affidavit but not will, signatures on self-proving affidavit can be used (if necessary) to validate the will. But not self-proved.
  • 1-step Will Execution Ceremony: Will’s attestation clause, prepared as a sworn statement
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3
Q

Venue for Probate of Will

A

County where decedent resided. If died in TX with no domicile or fixed residence in the state (1) county where principal property located, (2) county in which nearest kin located, (3) county where he died.

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4
Q

Attesting Witness if Beneficiary — Interested Witness Statute

A

Never affects validity of the will. But bequest to witness is void unless:
•Will can be proved without interested witness’ testimony
•OR the interested witness’ testimony is corroborated by the testimony of a disinterested and credible person (anyone present when will executed: lawyer, paralegal, bystander)
•OR interested witness would be an heir if will were not probated in which case interested witness takes whichever is least: lesser of legacy under the will or intestate share.

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5
Q

Holographic Wills

A

Handwritten, unwitnessed wills accepted as long as “wholly in the testator’s handwriting” and signed by the testator.
• Signature can be anywhere
• Need 2 people testifying to the handwriting; must be wholly in T’s handwriting—no typewritten words.

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

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6
Q

TX Anti-Lapse Statute

A

Applies only when the predeceasing beneficiary was a descendant (child, grandchild, bro, sis, nephew, niece) of T’s parent. Gift will not lapse if beneficiary of will predeceases testator. Descendible to decedent beneficiary’s heirs

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7
Q

Absent Anti-Lapse

A

Where the residuary estate is devised to 2+ persons, and the gift to 1 lapses, the remaining residuary beneficiaries take the residuary estate in proportion to their interests (absent contrary provision) unless dead at the time the will was made (then ignored from the will)

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8
Q

Class Gifts / Rule of Convenience / Void Gifts

A

A bequest to “children” does not include non-marital kids

If a member of the class predeceased T, the class members who survive T take. Read the will and determine takers of the class gift as of T’s death.

Rule of Convenience: Class is closed, meaning later born class members do not share in the gift, when some class member is entitled to a distribution. Done to determine min share of each class members.

Void Gifts: anti-lapse and surviving residuary beneficiaries rules apply. Exception: if class member was dead when the will was executed, anti-lapse does not apply in favor that class member’s descendants.

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9
Q

Interstate Succession: CP and SP if Survived by Spouse and Children

A

(1) decedent left no will, (2) will did not make a complete disposition of the estate, or (3) heir successfully contests will and denied probate

Survived by Spouse – Community Property(CP): salary and wages of either spouse, income from separate property (SP)
• If dies intestate and survived by descendants (at least one of whom s not also surviving spouse’s descendant—the ½ CP passes to descendants who take per capita w/representation. Surviving retains ½

Survived by Spouse – SP: property owned by either spouse before marriage; property acquired during marriage by gift, will, or inheritance
• SP passes by intestacy, 1/3 to surviving spouse and 2/3 to decedent’s descendants

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10
Q

Per Capita w/Representation

A

per capita at first level; by representation at next level. Go down to first generational level at which there are living takers and then divide amount allotted by representation amongst descendants

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11
Q

Not Survived by Spouse or Descendants / Disinheriting Parent / Half Bloods Inheritance / Unauthorized Commercial Use of Decedent’s Name or Likeness

A

If survived by both parents, ½ to each parent. If survived by 1 parent then ½ to them and the other ½ allotted based on per capita with representation.

o Parent cannot inherit if (1) abandoned and failed to support the child, (2) knowingly abandoned and failed to support child’s mother during pregnancy, or (3) was criminally responsible for death/serious injury of kid

o ½ bloods inherit ½ as much as whole bloods

No Limit on Degree of Relationship Needed to Take as Heir: ½ to maternal grandparents and kin, then paternal, and so on.

Unauthorized Commercial Use of Decedent’s Name or Likeness: ½ surviving spouse and ½ to descendants rule

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12
Q

Child Born out of Wedlock

A

1] presumption of paternity under the Family Code:

(a) child was born during marriage or
(b) parties married after child’s birth and man voluntarily asserted his paternity: (i) in a record with Bureau, or (ii) by consenting to be named father on birth certificate, (iii) by promising in a record to support the child, or
(c) during first two years of child’s life he resided with the child and represented to others child was his

Or [2] man signed sworn statement acknowledging paternity

Or [3] paternity was established in a paternity suit

Or [4] paternity is established in a probate proceeding by: C&C?

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13
Q

Adopted Kid Inheritance Rights

A

Adoption establishes parent-child relationship for ALL purposes of TX law. In decree terminating parent-child relationship inheritance rights expressly terminated (can inherit from adopted but not biological parent)

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14
Q

Posthumous Kids

A

No right of inheritance unless person was born before or was in gestation at the intestate’s death and survived for at least 120 hours. Person presumed to be in gestation if born within 300 days after the intestate’s death. Only if insemination occurred before testator’s death.

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15
Q

Death’s in Quick Succession

A

Must survive by more than 120 hours to take. If will requires survival, or covers simultaneous death or deaths in common disaster then 120-hour rules does not apply

120 hour rule applies to life insurance policies and joint and survivor banks accounts and also to property held in joint tenancy with rights of survivorship—treated like TIC: ½ passing as though one joint tenant survived; ½ passing as though other joint tenant survived. To trigger right of survivorship, 1 party must survive the other by 120 hours.

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16
Q

Heir or Beneficiary’s Right to Disclaim

A

Must be in writing, signed, describe the interest being disclaimed, and delivered (to the trustee). No time limit on making a disclaimer. If disclaimed then treated as though disclaimant predeceased decedent

Avoids creditors’ claims (except fed tax liens, beneficiary or heir subject to child support arrearages have been reduced to judgment)and avoids gift taxes—must be filed within 9 months

17
Q

Lifetime Gift to Heir or Beneficiary

A

A lifetime gift to a descendant (or any other heir) is not treated as an advancement unless (i) declared as such in contemporaneous writing by the donor or (ii) acknowledged as such in writing by the done.

18
Q

Changes in Will after Execution: Marriage Post-Death / Divorce / Pretermitted Child

A

T Marries after Will Executed: No effect on the will. CP gives adequate protection.

T Divorced after Will Executed: Rd the will and distribute as if former spouse and relatives of former spouse predeceased T.

Pretermitted Child: Born or Adopted after Will is Executed:
—If no child, child takes intestate share of all property not bequeathed to other parent of child

—If other children,
• Such other children not provided for: child takes intestate share of all property not bequeathed to other parent of child
• Are provided for: child’s share is limited to the gifts to such other children. Nobody else’s gift is reduced.
• Note: pretermitted child’s share is limited to a share of the probate estate; not non-probate transfers like life insurance, survivorship bank accounts.

19
Q

Revocation of Wills

A

A will can be revoked (1) by a subsequent testamentary instrument that expressly revokes earlier wills or (2) physical act. Holographic instrument can revoke a typewritten, attested will—after revocation, it is legally dead and cannot be revived (could lead to intestate succession)

20
Q

Presumptions as to Revocation

A

Where will last seen in T’s possession or control is not found after death: T destroyed will by physical act with intent to revoke / last seen in T’s possession or control is found in torn or mutilated condition, presume: T revoked the will by physical act.

Presumptions don’t arise if last seen in someone adversely affected by its contents or evidence is admissible to rebut presumption of revocation where will cannot be found or is found in damaged condition or destroyed by accident

21
Q

Proof of Lost Wills (3 point test)

A

(1) Due execution must be proved as in any other case (witnesses testify that executed properly—wholly in handwriting and signed)
(2) Cause of will’s nonproduction must be proved (overcome presumption of revocation raised by will’s nonproduction—evidence that will last seen in possession of someone adversely affected by the will or person had access to the will under suspicious circumstances is sufficient to rebut)
(3) Contents must be substantially proved by one who reads the will, heard it read, or can ID a copy of will (material contents)

22
Q

References to Acts and Events Outside Will

A

Incorp by Reference: An extrinsic doc, not present when the will was executed and thus not part of the duly executed will, can be incorp by ref into the will if: (1) writing must be in existence when will executed; (2) will must show an intent to incorp the writing; and (3) must be clearly identified by language in the will.

Acts of Independent Significance: A lifetime motive or purpose

23
Q

Mistakes or Ambiguities in Will

A

Will’s can be reformed to correct scrivener’s error to conform with testator’s intent, if mistake is shown by C&C evidence. Also can be reformed upon petition by executor if appropriate: (i) to prevent impairment of estate’s administration, or (ii) to achieve tax objectives or to qualify beneficiary for gov benefits.

Extrinsic evidence can be used to explain patent and latent ambiguities.

24
Q

Ks Relating to Wills

A

A K to create or revoke a will can be est only by (1) provisions in the will stating that a K does exist and stating the material provisions of the K, or (2) a binding and enforceable written agreement.

If contractual will is established (i) the new will that purported to revoke the agreed-upon disposition under the contractual will is admitted to probate and then (ii) a constructive trust is imposed in favor of the beneficiaries of the contractual will.

25
Q

Non-probate/Testamentary Assets

A

Interests that pass at death other than by will or intestacy; are not part of the probate estate for admin purposes.

(1) Property passing by right of survivorship (2) property passing by K: life insurance, employee death benefits (3) property held in trust, including revocable trust; trust terms govern distribution (4) property over which the decedent held a power of appointment

26
Q

Disinheritance Clause “Negative Bequest”:

A

Words of disinheritance in a will are given full effect

27
Q

Powers of Appt

A

Donee has General Testamentary Power of Appt, not limited in class of beneficiaries to whom she can appoint the property to anyone, including herself or her creditors or her estate.

Limited/Special Testamentary power of appointment because limited in the class of persons to whom she can appoint.

28
Q

Will Contests

A

Did T have sufficient capacity to (can be lucid intervals):
• Understand the nature of the act he was doing? (writing at will)
• Know the nature and approximate value of his property?
• Who the natural objects (inheritors) of his bounty?
• Understand the disposition he was making?

29
Q

Burden of Proof in Will Contests (standing?)

A

If the will is contested at time offered for probate, burden of proof on the will proponent to show testator had capacity.

After will admitted to probate, contestants have burden and have two years to file a will contest.
• Fraud or forgery, two years from date of discovery.
• Only interested parties can bring a will contest: persons with an economic interest that would be adversely affected by the will’s probate (heirs—not stepkids, legatees under earlier will).

30
Q

Undue Influence over Testator

A

Undue Influence: Contestant has burden of proof and must prove:
• Existence and exertion of the influence
• Effect was to overpower the mind and will of T and
• Product was will (or gift in will) that would not have been made BUT FOR the influence

NOT ENOUGH: mere opportunity; susceptibility; unnatural disposition

31
Q

No Contest Clause in Wills

A

Strictly construed. In wills and trusts are given full effect unless trial court finds that the contest was brought in good faith and with just cause.