Wills

Question 1

what do you call somene who died

Answer 1

decedent

Question 2

what is testate

Answer 2

when a decedent dies with a will

Question 3

what is intestate

Answer 3

decedent dies without a will

Question 4

codicil

Answer 4

a supplement that either amends or revokes a decedent’s will in whole or in part

Question 5

what is intestate succession

Answer 5

a default estate plan, developed by legislature, for distributing property when the decedent dies

Question 6

what is an heir

Answer 6

an individual entitled to receive property BY INTESTATE SUCCESSION (living people do not have heirs)

Question 7

what is an issue

Answer 7

also known as a descendant

it is decedent’s lineal line, i.e. decedent’s kids, their kids, and so on

Question 8

what is a collateral

Answer 8

a decedent’s relative through an ancestor (e.g. siblings, cousins, aunts, uncles)

Question 9

for intestate successsion, decedent’s actual will is irrelevant. T/F

Answer 9

t

Question 10

during intestate succession, what happens when decedent had a kid but kid does not survice him, and instead the kid’s kid (so grandchild) does survice him

Answer 10

a child can stand in the parent’s shoes for purposes of INTESTATE succession. this is called REPRESENTATION

Question 11

what happens in INTESTACY when spouses die close to each other in time or simultaneously

Answer 11

texas follows Uniform Simultaneous Death Act.

if proven with clear and convincing evidence that heir survived other spouse by 120 hours or more, then s/he intherits the first decedent. but if not (if married couple dies less than 120 hours apart), then each take a 1/2 interest in the community property as if they had each predeceased each other

Question 12

in intestacy, if marriage lasted fewer than ___ yrs, then an interested party can challenge the marriage on ground that ____ lacked capacity to consent and, if proven, the court can declare the marriage void

Answer 12

3 yrs; decedent

Question 13

in intestacy, how do we determine the share of the community estate that the surviving spouse gets?

Answer 13

situation A: spouse + 0 = all
if the decedent is survived by the spouse and no descendants, the surviving spouse takes the entire share of the community estate, both her half and decedent’s half

situation B: spouse + unrelated descendents = half
if the decedent is survived by a spouse and at least one descendent that is UNRELATED to the spouse, the surviving spouse takes nothing from the decedent’s half of the community estate. the unlrelated decedent takes the decedent’s community estate

situation B: spouse + related descendents = all
if the decedent is survived by a spouse and descendants of the SURVIVING SPOUSE, the spouse takes all of the decedent’s community estate

Question 14

in intestacy, how do we determine share of the decedent’s separate estate that the surviving spouse gets?

Answer 14

situation A: spouse + 0 = all personal and 1/2 real
if the decedent is survived by a spouse and no descendents, the surviving spouse takes:
-all of the decedent’s separate personal estate
-1/2 of the decedent’s real property
-and the remaining assets go to the descedent’s ANCESTORS OR COLLATERAL

situation B: spouse + descendents = 1/3 personal and life estate in 1/3 real
if the decedent is survived by a spouse and descendents, the surviving spouse takes:
-1/3 of the decedent’s personal property
-a life estate in 1/3 of the decedent’s real property
-and remaining assets got to decedent’s DESCENDANTS

situation C: no spouse (straight playa)
if there is no surviving spouse, the entire separate goes to the descendents (if no descendents, it goes to the ancestors and collaterals)

Question 15

what happens in intestacy if decedent dies with no heirs?

Answer 15

the property ESCHEATS to the state

Question 16

the effect of adoption is to sever the child’s relationship with the natural parents, unless..

Answer 16

the adoption is by a stepparent (for purposes of inheretence.. so i.e. could inherit from both naturl and stepparent)

Question 17

in texas, foster parents and stepparents are/are not recognized for purposes of inheritence.

Answer 17

are

Question 18

what is adoption by estoppel

Answer 18

when a parent makes a promise to a child or acts in a way to give the impression that they have a parent-child relationship

courts have applied this concept in intestate succession ONLY, not in context of a will

Question 19

how are posthumously born children treated?

Answer 19

if child conceived before father’s death but born after, the child will be treated as if born before the father died

Question 20

how do we calculate the issue’s share and what are the three steps

Answer 20

the texas distributes per capita with representation

1. divide the property equally at first generation where a member survives the decedent
2. if there are deceased members at that generation, their share drops down to their surviving issue at the next generation (“representation”)
3. if a deceased member of a generation is not survived by living issue, then that member does not take a share

Question 21

to disinherit a child, you must

Answer 21

have a properly executed will. child is treated as if predeceased the decedent

Question 22

if a testator does not dispose of all his property by will, the remainder will..

Answer 22

pass by intestate succession

Question 23

for a will to be valid, it must… (will eleborate on other slides)

Answer 23

general rule:

1. be a signed writing*
2. have witnesses who testify
3. have testementary intent

*texas allows oral wills in limited circumstances. also if cannot sign, can be an agent/third party in testator’s presence and by his direction

Question 24

where does the sig need to be located on the will?

Answer 24

in some states, must be at bottom, but in texas it can be anywhere as long as the testator INTENDED her sig to be her signature

Question 25

capacity requirements for writing a valid will

Answer 25

must be 18 (or in the armed forces) and of sound mind

Question 26

what are the requirements for the form of the signature?

Answer 26

a formal signature is not required. so long as the testator INTENDS to sign

Question 27

texas requires that wills be signed IN THE PRESENSE of at least __ witnesses. the witnesses must also…

Answer 27

2 witnesses

• sign the doc (does not need to be at the same time) IN THE PRESENSE of the testator
• be over 14 yrs old
• attest to the will (unless Boren amendment)

competency is measured at time of signing

Question 28

what is the boren amendment

what is the new alternative method

Answer 28

allows a signature on a self-proving affidavit to serve as the sig on a will. but if so, then not self-proving. (if signed on both, then self-proving)

As an alternative to the self-proving of a will by the affidavits of the testator and the attesting witnesses, a will executed on or after September 1, 2011, may be simultaneously executed, attested, and made self-proved before an officer authorized to administer oaths.

Question 29

what is the rule for how to determine whether the testator of will was “in the presense” of a witness and whether the witness was in the presense of a testator

Answer 29

the traditional rule is called the line of site rule. the witness and testator must observe or have the opportunity to obsese the signing of the other

IN TEXAS: The testator and the witnesses must be aware of each other’s presence and of what each is doing, although they are not required to actually watch each other sign. The witnesses need not read the will, and in Texas they need not even be aware that the instrument is a will. Just must be aware of the significance.

Question 30

how does texas treat wills with witnesses that have a financial interest in the will

Answer 30

if an attesting witness has a direct financial interest under the will, it will not affect the VALIDATING of the will BUT the specific bequest to that witness is void UNLESS:
-a disinterested witness testifies in support of the will

texas courts rarely invoke this doctrine

also, even if a specific bequest is void, the intended beneficiary can still take an intestate share no greater than the intended gift

Question 31

does texas follow the strict compliance (common law) or substantial compliance (modern view) of wills?

Answer 31

strict compliance. so if a formality is missing, the will is invalid

Question 32

what is a holographic will? requirements

Answer 32

an informal will written in handwriting of the decedent

they DO NOT need to have a witness but must be signed

Question 33

what if there is stuff on the holographic will that is not in the testator’s writing?

Answer 33

some jxs hold that if there are any markings not in the testator’s handwriting, the will will be invalidated

in texas, printed material and any other markings not in the testator’s handwriting will be DISREGARDED and the will still valid as long as the non-handwritten stuff is not necessary to complete the instrument (should not be material provisions)

Question 34

how is testamentary intent treated for holographic wills

Answer 34

It must be clear that the document was intended by the testator to be a will. Intent can be presumed by the use of certain language (e.g., “I bequeath”), or by the testator’s use of a printed form will.

Question 35

what are the formalities of a codocil (thing that supplements a will, does not replace)

Answer 35

same as a will

Question 36

can a formal will be amended by writing/holograph?

can a holographic will be amended by formal will?

Answer 36

yes

yes

Question 37

a decedent can avoid probate by transferring property via a will substitute, including [name 5]… include why they avoid probate

Answer 37

1. joint tenancy - avoids bc has right of survivorship
2. revocable trust - avoids bc it is an inter vivos transfer
3. pour-over will - avoid bc it distributes property under trust
4. POD (payable on death) contract - avoids bc it distributes by an inter vivos transfer (e.g. life insurance)
5. deed - avoids bc it is an inter vivos transfer

Question 38

what is the diff between a joint will and a reciprocal will? what is the big thing makes these wills alike and the reason why many use them?

Answer 38

joint will - a single doc executed by 2 ppl, serves as a will for each of them
reciprocal will - separate wills executed by diff ppl, but contain provisions that mirror one another

for both wills, the parties can enter into a valid contract not to revoke them. a party can still revoke the will, but it opens the door for an interested party to bring a breach of K claim against the estate

Question 39

wills are ambulatory. what the fuck does that mean?

Answer 39

they are capable of being altered or revoked, in whole or in part, at any time until the testator’s death

Question 40

what are three ways to revoke a will

Answer 40

1. subsequent instrument
2. physical act
3. operation of law

Question 41

ways to revoke a will (subsequent instrument): explain dat shit

Answer 41

a testator can revoke a will by a subsequent will or codicil

two situations: express revocation and inconsistency

express revocation: later writing EXPRESSLY revokes the prior will. this way invovles a LATER WRITING. just expressly revoking the will orally is not enough.
inconsistency: if a later writing is inconsistent with prior will(s), and so long as it is validly executed, the later doc will control

Question 42

ways to revoke a will (physical act): explain dat shit

Answer 42

a testator may also revoke a will in its entirety by engaging in a physical act of destruction such as tearing that shit up, bruning it in front of your spoiled shithead children while laughin maniacally, or crossing out the doc.

the testator must intend for the physical act to revoke the will (obviously)

LOST WILL: if there is a will once known to exist and now cannot be found after the testator’s death, there is a REBUTTABLE PRESUMPTION that the testator recked the will by physical act (person trying to argue for will must show its existence by clear and convincing evidence… can admit duplicate originals into evidence but not a copy)

Question 43

ways to revoke a will (operation of law): explain dat shit

Answer 43

under texas law, divorce revokes all will provisions in favor of the former spouse, unless there is evidence that the testator wanted the will to survive

just separation (not legal divorce) will not do this

Question 44

explain wills vs codicil revocation

Answer 44

revoking a will automatically revokes codicils attached to the will but revoking codicils does not automatically revoke the underlying will (actually “revives” the will)

Question 45

what happens when you have one will, then revoke and make a new will (for example you accept your son’s sexuality and decide to include remake will with him in it), but then later you become a raging homophobe again and rip up Will 2? what happens to will 1?

Answer 45

if will 1 becomes active again, that is called revival. Texas DOES NOT have automatic revival. you must re-execute the will.

Question 46

what is dependent relative revocation?

Answer 46

provides a safety for a testator who MISTAKENLY revokes a will, either mistake of law or mistake of fact

e.g. can mistakenly think a second will you just created is valid, or can mistakently believe semoene named in your will just died.

texas courts have never actually applied DDR but has been mentioned in dicta

Question 47

how are wills supposed to be interpreted in texas

Answer 47

plain meaning doctrine

courts tend to give the words in the will their plain meaning. you assume the testator meant the plain meaning of what he said, even if he meant something else (so extrinsic evidence is generally inadmissible to determine meaning)*

*wills may incororate extrinsic document by reference (see other slide)

Question 48

a will may incorproate an intrinsic document that is not testamentary in nature, provided:

Answer 48

1. the document is in existence at the time of the execution;
2. the testator intends the document to be incorproated into the will; AND
3. the doc is described in the will with sufficient certainty as to permit its identification

e.g. “this will makes bequests in accordance with the list hidden in my underwear, right beneath my ball sack (i.e. my lil nuts, lil potats, or beani babies)

Question 49

what is the doctrine of ACTS of independent significance

Answer 49

A will may provide for the designation of a beneficiary or the amount of a disposition by reference to some unattested act or event occurring before or after the execution of the will or before or after the testator’s death if the act or event has some significance apart from the will (i.e. unrelated to the will). The act may identify the beneficiaries or the property bequeathed.

Question 50

at COMMON LAW, a testamentary gift would lapse/not lapse if an intended benefiary did not survive the testator

in texas…

Answer 50

common law -> lapse

Almost all states have enacted anti-lapse statutes providing for alternate disposition of lapsed bequests. Under Texas’s anti-lapse statute, if a gift in a will was made to a predeceased descendant of the testator’s parents who left descendants of his own, then such descendants succeed to the gift.

In order to take, the descendants of the beneficiary who predeceased the testator must survive the testator by 120 hours. The statute applies unless explicit language in the will indicates a contrary intention (e.g., “to my son John only if he survives me”). The anti-lapse statute also applies to void gifts (i.e., gifts to an individual that was deceased at the time the will was executed). Distribution of a lapsed gift is per capita with representation

so really a 2 step analysis:

1. family relation..the lapsed gift must have been intended for a descendent of the testator’s parent
2. survived by issue.. the intended beneficiary must have left surviving issue

Question 51

common law rule with lapses and class gifts and shit

Answer 51

at common law, class gifts were sort of an exception to the lapse rule so if a member lapsed, the rest of the class shared that member’s gift

you should keep this in mind just in case the test asks a question with a class fift and the lapse recipient is not protected by the texas anti-lapse statute (like not a ramily relation)

if the class member is covered by the anti-lapse statute and leaves issue, the anti-lapse statute controls (not the common law regime)

Question 52

name 4 types of gifts and define them hoes

Answer 52

1. specific gift: a gift of a particular piece of property (“my dildo to bob”)
2. a general gift: a gift of property satisfied by general assets of the estate (“$10k to bob”)
3. demonstrative gift: general gift but from a particular source (“$10k to bob from my chase account, but if funds insufficient, then from estate’s general assets”)
4. residuary gift: whatever is left over

Question 53

what is abatement. how it work?

Answer 53

if the estate does not have sufficient funds to pay debts or make gifts, the gifts will be abated, or reduced, in a specific order. UNLESS the will says otherwise, the specific order of abatement is:

1. intestate property (first thing to be reduced)
2. property in a residuary gift
3. general bequests
4. specific bequests to non-relatives
5. specific bequests to relatives (last thing to be reduced)

for Demonstrative gifts, if they an be satisfied, then treated like specific gifts (so #4 or 5), but if not, then they are treated as general gifts (so #3). so essentially if you can get all the debts paid by getting to #3 WITHOUT the demonstrative gift, then cool, push it over to 4/5. if not, then eat the demonstrative gift before moving onto actual specific gifts

Question 54

what is ademption. what are the two baisc kinds and how do they work

Answer 54

ADEMPTION BY EXTINCTION
The doctrine of ademption applies only to specific bequests. If the subject matter of a specific bequest is missing or destroyed (“extinct”), the beneficiary takes nothing (not even insurance proceeds or the equivalent in cash).
A substantial change in the nature of the subject matter of a bequest will operate as an ademption but a merely nominal or formal change will not.

The intent of the testator is not relevant in most states, including Texas, if the bequest is entirely extinct.

Courts are inclined to avoid ademption by a variety of means, including the classification of a specific bequest as general or demonstrative, the classification of an inter vivos distribution as a mere change in form, and the creation of other exceptions to the doctrine.

ADEMPTION BY SATISFACTION
A general, specific, or demonstrative legacy may be satisfied in whole or in part by an inter vivos transfer to the legatee after the execution of the will if it was the testator’s intention to satisfy the legacy by the transfer.

Question 55

example of a LATENT ambiguity vs a PATENT ambiguity.. which allows extrinsic evidence to resolve?

how about mistakes?

Answer 55

“i give my hagoo to my brother”
if i have two brothers, this is a latent ambiguity bc it is only ambiguous due to facts beyond the will

“i give my bro, who lives at 123 fake st, my hagoo. just to reiterate, my brother at 124 fake st gets my hagoo”
this is a patent ambiguity bc it appears on the face of the doc

extrinsic evidence is allowed to explain EITHER kind of ambiguity

however, for mistakes, courts are not likely to allow extrinsic evidence even if someone can prove it was a genuine mistake to give the hagoo to brother 1 intsead of brother 2

Question 56

what is elective share and forced share

Answer 56

In common law states, the elective share gives the surviving spouse a fraction of the decedent’s estate if the surviving spouse elects to take the elective share rather than any gift contained in the will or any amount that would otherwise pass to the spouse.

The elective share does not exist in community property states such as Texas. Instead, the surviving spouse is entitled to a forced share of one-half of the community property.

Question 57

what can a spouse dispose of in will in terms of community and separate property

Answer 57

spouses have an unrestricted right to dispose of their separate property and may exercise testamentary dispostion over his or her 1/2 interst in the community estate

Question 58

what is an advancement to a child

Answer 58

it is a lifetime gift to a child that is treated as satisfying all or part of hte child’s INTESTATE share.

operates like an ademption by satisfaction except advancement is for intestacy

Question 59

when can we tell if a gift is an advacement to a child vs just a plain old regular old orinary old gift?

Answer 59

common law: any lifetime gift is presumed to be an advancement
TEXAS LAW: fuck that common law bullshit. a gift is an advancement ONLY if the decent OR the heir declares in a contemporaneous writing that the gift is an advancement

Question 60

how do you calculate the effect of an adancement?

Answer 60

you use some motherfucking shit call hotchpot analysis

1. ADD the value of the advancements back into the intestate estate
2. DIVIDE the resulting esate by the number of children taking
3. DEDUCT the child’s advancement from the child’s intestate share

so e.g. imagine bilbo shitbags dies intestate, survived by three children, A, B, and C. estate is worth $50k. A received an $8k advancement and B received a $2k advancement. C did not receive an advancement bc he’s the shitty son.

so, first ADD the advancements back – 50 + 8 + 2 = $60k
then, DIVIDE into equal shares – 60 / 3 = $20k
and finally, DEDUCT the advancements:

A is 20 - 8 = $12k
B is 20 - 2 = $18k
C = $20k
(if you add these, they equal the current $50k estate)

Question 61

if intentional, a parent is free to disinherit her children. t/f

Answer 61

t

Question 62

how does texas treat unintentional disinherited kids, like when a dude has a kid after he executes a will

Answer 62

if the testator had no other children whne the will was executed, then the omitted child takes an intestate share

if testator had at least 1 child at execution of the will AND the will devises property to at least one of those children, then the omitted child takes an equal share from that portion of the property already devised to the other child (so law treats the future child as being at least as favored as most favored specified child)

Question 63

what is the motherfucking slayer rule?

Answer 63

a person cannot profit from murdering another. in will context, a benficiary who murders the decedent is barred from taking under the decedent’s will. treated as if he predeceased the testator.

keep in mind courts have NOT applied the slayer rule in cases of involuntary manslaughter and self-defense, so the slayer rule requires INTENTIONAL murder

Question 64

a person may disclaim a testementary gift. how?

Answer 64

the disclaimer must:

1. be in writing
2. declare the disclaimer
3. describe the interest or power being disclaimed
4. be signed by the disclaimer AND
5. be delivered to or filed with the personal representative

Question 65

what is someone who challenges a will actually doing? what is dis called

Answer 65

they are challenging probate…they dont think the will should be admitted to probate. this is called a will contest. it is an objection to the validity of a will, often concerning capacity

Question 66

a will contest must be made within ___ of opening probate

Answer 66

2 yrs

Question 67

to have standing, a claiming in a will contest must…

Answer 67

be an interested party. in other words, somene who:

• will stand to benefit financially under the will
• would take under intestate succession but not under the will OR
• someone interested in the welfare of an incapacitated person, including a minor

Question 68

what is a forfeiture clause

Answer 68

it is designed to deter a benficiary from challenging a will

state that a beneficiary will lose his/her share if he files a challenge. if the claim is baseless, then the clause is enforceable. but the clause will not be enforced if the claimant actually has JUST CAUSE for that bitch and brought the claim in GOOD FAITH

Question 69

what is the basic capacity standard for writing a valid will? who has burden? and what are the Qs the will writer must have been able to appreciate?

Answer 69

must be at least 18 and be of SOUND MIND. the contestant (aka challenging the will) bears burden of proof, obviously

who- the natural objects of his bounty
what- the nature and character of her property
why- the nature of the act
when- mental capacity AT TIME OF EXECUTION OF THE WILL
how- the plan of the attempted disposition
TEST IS NOT WHEHTER TESTATOR ACTUALLY UNDERSTOOD BUT WHETHER HAD ABILITY/CAPACITY TO

Question 70

what is an insane delusion

Answer 70

is a false beleif to which the testator adheres in spite of all reason and evidence to the contrary. so the testator may have general capacity, but has an INSANE DELUSION as to some belief.

someone challenging will can declare invalid if prove that the testator had an INSANE DELUSION and that the delusion was the BUT-FOR CAUSE of the testamentary disposition

e.g. if a dude is extremely paranoid and thinks his wife is cheating with no evidence at all, and leaves her nothig, the wife would have good cause to challenge for insane delusion

Question 71

what is the required proof to invalidate a will based on undue influence?

Answer 71

this is some Anna Nicole Smith shit. think of undue influence in tersm of a coercive relationship. contestant alleges that a THIRD PARTY controlled the testator’s decision-making process

contestant bears initial burden of showing:

1. the existence and exertion of influence
2. that caused the suspect disposition (MOST IMPORTANT)
3. the influence overpowered the mind and the will of the testator.

there is a presumption of undue influence when the influencer had a confidential relationship with the testator. usually professional in nature.. doctor, lawyer, therapist, caregiver, etc

Question 72

what is the consequence of successfully showing undue influence

Answer 72

the suspect beneficiary is treated as if he predeceases the testator to the extent the gift is in excess of the beneficiary’s intestate share, if any

Question 73

what is the rule re drafters of wills being beneficiaries

Answer 73

any provision making a gift to the drafter of a will of his of her family is INVALID UNLESS the rafted is related to the testator

Question 74

what are the elements of showing fraud and who bears burden

Answer 74

contestant bears burden of showing that that beneficiary engaged in an unlawful misrepresentation at the time of the execution.

must show that he beneficiary made the misrepresentations with:

1. the intent to deceive the testator AND
2. the purpose of influencing the testamentary disposition

Question 75

what are the two types of fraud

Answer 75

fraud in the inducement - misrep that causes the testator to make a different will than he would have otherwise made

fraud in the execution - misrep as to the character or contents of the will itself (e.g. takes advantage of client’s bad eyesight)

Question 76

what is the remedy for fraud

Answer 76

a constructive trust is the most common remedy for fraud

Question 77

what is an executor

what is an adminstrator

Answer 77

executor = rep who is named in the will

administrator = rep who is appointed by the court

Question 78

what is the priorty for choosing an adminstrator

Answer 78

1. surviving spouse
2. a principal legatee (receiving a legacy) under the will
3. any other legatee under the will
4. nearest living relative
5. creditor of the decedent (HUH?? YUHHHHH DAS RIGHT)
6. any other individual of good character

Question 79

can the personal rep be paid?

Answer 79

under texas law, the personal representative can be, but does not have to be, paid. there is a cap on the total amount: 5% of amounts paid into or out of the estate

Question 80

if necessary, the court may appoint a temporary representative. T/F

Answer 80

T

Question 81

jx. which courts have jx

Answer 81

couty and district courts have concurrent jx. if it is uncontested, then county. if it is contested, then district. but some large counties have dedicated probate courts

rulings can be appealed to the appellate court

Question 82

how is venue determined

Answer 82

was the decedent a texas resident? if so, venye is proper in the county of the domicile at death.

if not, venue is most likely proper in the county in which she died or where her assets are located

Question 83

what is the statue of limitation

Answer 83

a probate proceeding must commence within 4 yrs after the decedent’s death, UNLESS good cause is shown

Question 84

procedures. notice and inventory

Answer 84

60 days after admitting a will to probate, the reps must give notice to beneficiaries of the intended gift

90 days after the appointment, a rep must file inventory including the assets and any claims owed to the estate

Question 85

explain the general idea bout the homestead exemption. specific definitions/allowance will be on another slide bitch

Answer 85

here’s the gist. it provides two protections for the decedent’s home. one, the right to occupy by the decedent’s spouse and children. two, a right that shields title against the claims of decedent’s creditors

what is the homestead? it’s the property that the decedent uses as a home or as a home and business

Question 86

define the diff kinds of homsteads

Answer 86

urban homestead - capped at 10 acres located within a municipality that is served by police, fire, and at least 3 utilities

rural homestead - capped at 200 acres if does not meet the urban definition (100 if single individual)

the homestead must be either urban or rural, not both

Question 87

what are exception TO THE homestead exemption?

Answer 87

so these are claims that can always be asserted against the property:

1. purchase money liens ($ used to purchase the property)
2. taxes (like property tax)
3. tax liens
4. second liens on the homstead, under circumstances
5. owelty of partition (and after the partition the testator received less or more than was fair in the partition)

Question 88

in probate process, what is family allowance

Answer 88

DISCRETIONARY amount fixed by the court to support spouse, minor children, and adult incapacitated children of the decedent.

taken from the community estate. lasts for 1 year. it is to maintain the standard of living that the family had

Question 89

what the fuck if muniment of title?

Answer 89

procedure used when the administration of the estate is unnecessary or unavailable

enables devisees to receive good title to real proeprty. avoids costs from standard probate. decedent cannot have outstanding debts for this.

the order admitting a will to probate as muniment of title establishes the devisees as the new owners of real property. to be probated as muniment of title, the estate must be ENTIRELY real property

Question 90

what is the most common form of estate administration in texas

Answer 90

ad independent executor is named by the testator or chosen by the beneficiaries to settle the estate, and the method is WITHOUT COURT SUPERVISION

the powers of the independent executor:

• settle creditor claims
• exempt property set asides and allowances
• wrap up the decedent’s financial affairs
• make distributions
• alienate property in certain sits

Question 91

generally, unsecured creditors can file a claim up until…

Answer 91

the estate closes, UNLESS an unsecured credtitor received optional certified/registered mail notice, in which case must file within 4 months of receiving notice

for background, the personal rep must deliver notice to UNSECURED creditors within ONE MONTH of appointment by PUBLICATION IN A NEWSPAPER in the jx. alternatively, can opt to sent personal notice through mail but if so must explain that claim will be barred if no response within 4 months

Question 92

if an unsecured creditor wants to make a claim, must authenticate by affidavit. T/F

Answer 92

if independent adminstration, then no. no formalities. if dependent administration, then must be authenticated by affidavit and filed with the court or persnal rep.

after that, the rep must repond within 30 days

Question 93

for secured creditors, the personal rep has __ after appintent to notify..

Answer 93

2 months after appintment to notify creditors then known

Question 94

after a secured creditor is notifed by a personal rep, they then have 2 options..

Answer 94

option 1: presentement as preferred debt and lien
the creditor will look to collateral for payment on the debt. instead of taking the debt from the assets of the decedent’s estate, the creditor takes the collateral

option 2: presentment as matured secured claim
the creditor will take the proceeds from the sale of the encumbered property (class 3). if the sale of proceeds are insufficient, the creditor is entitled to a deficiency judgment (class 8)

Question 95

what are the priority of claims by creditors

Answer 95

Class 1 - expenses of decedent’s funeral, sickness, and family allowance
Class 2 - adminstrative espenses
Class 3 - secured claims
Class 4 - child support arrearages that have been reduced to the judgment
Class 5 - taxes, penalties, interest
Class 6 - costs of decedent’s confinement in prison
Class 7 - cost of medical assitance claims by the state
Class 8 - all other claims