Wills

Question 1

What makes a will valid?

Answer 1

What makes a will valid? Legal capacity + testamentary capacity & intent. Must be executed by a person over 18 (or married or in army) w/ testamentary capacity & intent. Formalities: signed (any mark) by T (or by his direction in his “conscious presence”); signed by 2 witnesses attesting to T’s signature (over 14); each att. W must sign the will in T’s presence (order of signing not critical). *T must sign the will before the witnesses or in the same/contemporaneous transaction.

Proof: 1 attesting W; if dead, 2 handwriting Ws either T/W

Question 2

Requirements for holographic will?

Answer 2

1) entirely in T’s handwriting & 2) signed by T (anywhere). Testamentary intent is required & can be shown by 1) testamentary language; or 2) extrinsic evid. of intent if ambig. Date NOT needed; extraneous printed words ok. Holographic codicil to typewritten, witnessed will is OK! Proof: testimony of 2 Ws to T’s handwriting. NOTE: Oral wills after Sept 1, 2007 NOT VALID

Question 3

What is a self-proving will?

Answer 3

Admitted to probate on the basis of an affidavit; no need to call attesting Ws. One-step process: attestation clause prepared as sworn statement – Testator & W sign only once.

Question 4

What procedure must be followed to contest a will?

Answer 4

Will contest can ONLY be filed by interested party w/in 2 years.

Question 5

What options are available for challenging the validity of a will?

Answer 5

1) Defective execution; 2) Lack of testamentary capacity; 3) Undue influence; 4) Fraud; 5) Mistake; 6) Testator unaware of the will’s contents.

Question 6

What proves lack of testamentary capacity?

Answer 6

At the time will executed, the testator must have had sufficient capacity to 1) understand the nature of the act; 2) know the extent of his property; 3) know the natural objects of his bounty; & 4) understand the disposition he is making. Capacity to make a will may exist where capacity to make K does not. AEBD.

Question 7

What proves undue influence?

Answer 7

The contestant must prove 1) influence was exerted on T 2) that overpowered the mind and will of T, and 3) resulted in a will that would not have been executed but for the influence. Pleading, begging, cajoling, or threatening is NOT enough; the mind of the testator must be overpowered. EEOP

Question 8

What proves fraud?

Answer 8

Knowingly false representations + intent to deceive T + T reliance on representations + T made a will he otherwise would not have made.

Question 9

When is a no-contest clause valid?

Answer 9

Enforceable unless the contest was brought in good faith & w/probable cause. A no-contest clause is strictly construed & is not triggered by a suit to construe a will or by a contest filed by a guardian.

Question 10

What law applies to Intestacy?

Answer 10

​Personal Property: law of intestate’s domicile at death. Real Prop: situs(where real prop located)

Question 11

Intestate w/ Surviving Spouse?

Answer 11

Did T leave descendants?

• If no descendants: SS gets all CP & personal SP, & ½ fee simple interest in all real SP. The decedent’s parents get the other ½ interest in T’s real SP.
• If ALL T’s children are children of the spouse: SS takes all CP, 1/3 of personal SP, & a 1/3 life estate in all real SP. Kids take 2/3 of personal SP, outright 2/3 real SP & remainder of SS’s 1/3 life estate.
• If T had children that were NOT children of the spouse: then SS will only take ½ of H’s CP, & all of the SP interests are the same as above.

Question 12

Intestate w/ NO Surviving Spouse?

Answer 12

If the deceased has descendants, they will take the whole estate per capita w/representation. If the deceased had no descendants, the parents will take ½ each. If one parent is dead, H’s siblings take that parent’s ½ share. If no parents, the estate passes to siblings & their descendants. If no siblings to deceased’s aunts/uncles & their descendants.

Question 13

How do descendants to whom intestate SP passes take?

Answer 13

Per capita w/ representation: equal shares at 1st generational level of living takers, dead taker’s descendants take.

Question 14

What claims does a wife have above & beyond intestacy or a will?

Answer 14

H E F! 1) probate Homestead (right to occupy homestead rent-free for life) or if no homestead $15k; 2) an Exempt personal property set aside of up to $60k or $5000 in cash & 3) Family allowance of one year’s support for the family. All taken from the community estate.

Question 15

Common issues affecting determination of heirs?

Answer 15

Adoption: treated same as natural child; kid inherits from/ through adoptive but only from biological parents. Non-marital kids: inherit from mom; dad only if TFC paternity presumption met, executed stmt of paternity, or paternity estblsh’d in probate by C&C. Half-blood: inherit only half as much as relatives of whole blood. Stepkids: do not inherit

Question 16

Succession problems common to inheritance & wills?

Answer 16

120 hour rule: person who does not survive decedent by 120 hours is deemed to predecease him. Murder by Heir/ Beneficiary: heir who kills decedent forfeits ALL profits, constructive trust results. Advancement: lifetime gift considered an advancement against heir’s intestate share ONLY IF in contemporaneous writing by donor or acknowledged in writing by donee-heir. Disclaimer: in writing, signed, notarized, & filed w/ probate court w/in 9 months after decedent’s death – treat as predeceased.

Question 17

How is a will revoked?

Answer 17

A will can be revoked by:

• Operation of law: Divorce revokes ALL provisions in favor of former spouse & her relatives; prop is distributed as if spouse predeceased. Pretermitted children revoke will to extent necessary to make up for their share(see 31)
• Physical Act: = T’s physical act + intent to revoke. Attested wills: can NOT be partially revoked by phys act; all or nothing. Holographic: partial revocation is OK if entirely in T’s handwriting)
• Subsequent writing (will or codicil): must be executed w/ testamentary formalities & T has testamentary capacity. Holographic codicil can revoke written, attest will (& vice-versa)! Will revoked to extent stated in subsequent instrument (full or partial ok; same true for incons provs)

Question 18

Revocation burden of proof & presumptions?

Answer 18

Burden of proof is on will proponent. Will last seen in T’s possession & cannot be found = presumption will destroyed w/the intent to revoke. But, presumption disappears if evidence exists person adversely affected by will had access to it. Also, accidental destruction of will does not revoke, even if T later decides to revoke; intent must be present at time of act.

Question 19

Can a prior will be revived if a new one is not effective?

Answer 19

Texas does not allow for a revival of prior wills once they have been revoked. EXCEPTION: DDR–dependent relative revocation. In that case, court can revive an old will if they find T revoked based on a mistake of law or fact about the validity of another disposition & the revocation was conditioned on the validity of the subsequent disposition.

Question 20

How can a lost will be proved?

Answer 20

A lost will can be proved by establishing 1) it was duly executed, 2) the cause of the will’s non-production (suf to rebut presumption it has been revoked), & 3) contents of the will, either by testimony of credible witness (who has read/seen) or copy. PROB ON

Question 21

Exam language for a distribution with a will?

Answer 21

If decedent dies leaving a will, the decedent’s estate should generally be distributed accd to the will. If will is validly attested & self-proved, will controls.

Question 22

What are lapsed gifts? What does TX’s anti-lapse § do?

Answer 22

RULE: if Beneficiary predeceases Testator, the gift lapses. TX anti-lapse§: applies to WILL Bs who predecease T & are descendants of the T’s parents [child, grandkid, bro/sis, nephew/niece] + leave descendant who survives 120hrs! Prevents bequests to Bs from lapsing by allowing the descendants of the B to take B’s share. PROB ON EXAM

Question 23

Lapse in residuary estate?

Answer 23

Where residuary estate devised to 2 or more people & gift to 1 lapses, remaining residuary beneficiaries take residuary in proportion to their interests.

Question 24

Class gift rule?

Answer 24

Gift by will to class of persons (“kids” etc), only surviving class members take (unless anti-lapse § saves)! Class closes (meaning later born members of class excluded from sharing) when some class member is entitled to distribution (known as “Rule of Convenience”).

Question 25

120 HR Rule?

Answer 25

Beneficiary must survive T by 120hrs; if not, treat as if predeceased (NOTE: anti-lapse§ can apply – save gift!). If will requires survival, 120hr does NOT apply.

Question 26

Abatement: what happens if there is not enough to fill all bequests?

Answer 26

If all the assets the testator owns at death are insufficient to pay all debts & the expenses of the administration & also satisfy all the specific & general legacies in the will, this is the order of abatement (absent a contrary provision): 1) intestate property; 2) residuary legacies; 3) general legacies; & 4) specific legacies. W/in each category, personal property abates before real property

Question 27

Ademption: specifically devised property not in estate at death?

Answer 27

T cannot devise property not owned at death; if a the subject of a specific bequest isn’t in the estate at death, the gift is “adeemed” - it fails completely (ademption applies where T sold specifically devised property).

Question 28

Satisfaction in context fo Will:

Answer 28

lifetime gift to beneficiary named in earlier will is NOT treated as being in total or partial satisfaction of bequest unless 1) said intention declared in contemporaneous writing by donor or acknowledged in writing by donee-heir, or 2) will provides legacies were to be reduced by such lifetime gifts.

Question 29

Bequests of stock & other securities?

Answer 29

Specific language (“my 100 shares”), then ademption applies if the stock isn’t in the estate as such (it’s a specific bequest). But, if general language (“100 shares”), it’s a general legacy & B gets the date-of-death value of 100 shares if T already sold them. Note also, a specific legatee of stock takes additional securities resulting from action initiated by entity (i.e., stock from a stock split or stock dividend declared after the will was executed, or even different securities as the result of a merger, takeover, consolidation).

Question 30

What is the effect of divorce on a decedent’s estate?

Answer 30

Divorce revokes all gifts & fiduciary appointment in ex-spouse’s favor; T’s marriage post-will execution=NO effect!

Question 31

What is a pretermitted child entitled to from a deceased’s estate?

Answer 31

A pretermitted child is a child born/ adopted after execution of a will who is not provided for by the will or by any other nonprobate transfer. If other children have received something under the will, the child takes a pro-rata interest in those bequests. If there are no other children, or the other children are not provided for, pretermitted child takes his intestate share of all property not bequeathed to SS. Remember: republication of a will by codicil can have an effect on pretermitted child’s status!

Question 32

How can a document be incorporated into the will by reference?

Answer 32

The document must be in existence when the will is executed, the will must show the intent to incorporate, & the will must clearly identify the document.

Question 33

How are contractual wills created & what is the effect?

Answer 33

A contractual will is not enforceable unless there is clear indication of the contract in the will, or an enforceable written agreement. The execution of a joint or reciprocal will does not, by itself, suffice as evidence of a contract. The contract can be revoked at any time before the death of one of the testators w/notice to the other party.

Question 34

Non-testamentary assets?

Answer 34

Interests that pass at death other than by will or intestacy; NOT PART of probate estate! 1) prop passing by rt of survivorship (joint bank acct, etc.) 2) prop passing by K (life ins beneficiary, EE death benefits) 3) prop held in trust (trust governs distribution) 4) items designed to be paid or transferred upon death (bonds, mortgages, promissory notes, securities accounts, Ks, etc).

Question 35

Where is proper venue for will probate/administration?

Answer 35

TX Resident: county of domicile (ie where T resided). NON-TX Resident: either in the county where principal assets/property located OR county where T died. [3]

Question 36

How long does a will have to be admitted to probate?

Answer 36

A will must be probated w/in 4 yrs of date of death. But if the person offering the will is not at fault, notice must be given to heirs, & the will can be probated as a muniment of title.

Question 37

What court has jurisdiction over probate?

Answer 37

In counties w/statutory probate courts or statutory county courts at law, such courts have exclusive original jurisdiction. In counties w/out either, the county courts & district courts have concurrent jurisdiction. County court handles uncontested matters & the district court handles the contested matters.

Question 38

When is independent administration available [3]?

Answer 38

Intestacy; independent administrator can be appointed when the will so provides or all distributees agree to have one. Court can veto if finds IA is not in best interest of the estate.

Question 39

In what priority is a personal representative appointed [5]?

Answer 39

1) executor named in will, 2) surviving spouse, 3) principal beneficiary in will, 4) any other beneficiary in will, 5) decedent’s next of kin under intestacy, 6) creditor of decedent, 7) any other person of good character.

Question 40

What are the powers of an independent executor?

Answer 40

The executor has the power to do any act, w/out court order, that a dependant administration could be authorized to do by a court order. If the will creates a power of sale, real property can be sold irrespective of estate debts. If the will doesn’t specifically give power of sale, real property can only be sold to satisfy estate debts.

Question 41

How does a personal representative close the administration?

Answer 41

May [optional] file a closing report w/the county court records containing a verified affidavit that shows: property initially received, debts paid & expenses, & names & addresses of distributees. May also file for a declaratory judgment seeking a discharge from liability on things that have been fully disclosed.

Question 42

What actions must a personal representative (executor if named in will; administrator if by court) take upon appointment? (4 things)

Answer 42

W/in 20 days he must post bond, unless the will waives bond; publish a notice of administration in local newspaper w/in 1 month. He must file an inventory of the estate w/the court w/in 90 days. He must give notice to named beneficiaries w/in 60 days after will admitted to probate.

Question 43

For what reasons can an independent administrator be removed for cause?

Answer 43

1) Failure to file inventory w/in 90 days; 2) Failure to give notice to named beneficiaries w/in 60 days of probate; 3) Misapplied or embezzled estate property or is about to; 4) Fails to make required accounting; 5) Is guilty of gross misconduct or mismanagement; 6) Becomes incompetent or sentenced to penitentiary; or 7) material conflict of interest prevents proper performance of administrator’s duties.

Question 44

What methods are available to clear title when no administration is necessary?

Answer 44

Depending on whether there is a will or not, a person can file a muniment of title (will) or for a statutory heirship proceeding (if no will). Informal or small estate administration may also be appropriate.

Question 45

What is an informal administration?

Answer 45

Texas law favors informal administration. Available in small, uncomplicated estates not including legal title items (property) if all distributes agree & judge doesn’t veto.

Question 46

What is a muniment of title proceeding?

Answer 46

To apply: 1)estate can have no debts 2) file w/in 180 days. Testator’s will is probated as muniment of title; court determines the will is valid, then operates to transfer property from testator to beneficiaries. NO executor appointed & NO administratn

Question 47

What is a statutory heirship proceeding[3]?

Answer 47

Court order establishes the person is dead, left no will, and survived by people named as heirs; also fixes amount of intestate shares. Does NOT require appointment of personal representative.

Question 48

What is a small estate administration[4]?

Answer 48

Where decedent dies intestate leaving estate whose value (not including homestead) does NOT exceed $50,000, heirs entitled to the estate w/ NO need for appointment personal rep/admin/etc. Heirs need only file an affidavit w/ basis for distribution.

Question 49

What does the administrator have to do to notify creditors of the estate?

Answer 49

No SOL; administrator must give notice to secured creditors w/in 2 mos (unsecured=1 mo) after appointment. The secured creditors then have 4 mos. or 6 mos. from death to present their matured, secured claims. If they fail to do so, they will only be protected up to the value of the collateral. No notice other than the notice by publication is necessary for unsecured creditors, but an administrator can give personal notice to each that will trigger a 4 month SOL on the debt.

Question 50

How is a dependent administration different w/respect to creditors?

Answer 50

First, the claim must be authenticated. Next, the personal representative must allow or reject the claim w/in 30 days. Finally, the claimant must file suit on a rejected claim w/in 90 days or the claim will be barred.

Question 51

What is the priority of claims in an insolvent estate [2]?

Answer 51

The order of payment is 1) funeral expenses & expenses of last illness up to 15k; 2) the family allowance; 3) administration expenses; 4) secured claims; 5) Child support reduced to judgment; 6) state taxes; 7) cost of decedent’s confinement in prison; 8) reimbursement to Medicaid; 9) all other costs.

Question 52

What claims can a spouse make on the estate above the will or intestacy?

Answer 52

A spouse can claim a probate homestead (right to occupy homestead rent-free for life) or if there is no homestead a $15k allowance. The spouse can also claim exempt personal property up to $60k or if there is no property $5k. The SS is entitled to a family allowance sufficient for spouse & children’s maintenance for 1 yr by showing that they have inadequate SP for their support.