Wills Flashcards
what do you call somene who died
decedent
what is testate
when a decedent dies with a will
what is intestate
decedent dies without a will
codicil
a supplement that either amends or revokes a decedent’s will in whole or in part
what is intestate succession
a default estate plan, developed by legislature, for distributing property when the decedent dies
what is an heir
an individual entitled to receive property BY INTESTATE SUCCESSION (living people do not have heirs)
what is an issue
also known as a descendant
it is decedent’s lineal line, i.e. decedent’s kids, their kids, and so on
what is a collateral
a decedent’s relative through an ancestor (e.g. siblings, cousins, aunts, uncles)
for intestate successsion, decedent’s actual will is irrelevant. T/F
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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
a child can stand in the parent’s shoes for purposes of INTESTATE succession. this is called REPRESENTATION
what happens in INTESTACY when spouses die close to each other in time or simultaneously
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
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
3 yrs; decedent
in intestacy, how do we determine the share of the community estate that the surviving spouse gets?
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
in intestacy, how do we determine share of the decedent’s separate estate that the surviving spouse gets?
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)
what happens in intestacy if decedent dies with no heirs?
the property ESCHEATS to the state
the effect of adoption is to sever the child’s relationship with the natural parents, unless..
the adoption is by a stepparent (for purposes of inheretence.. so i.e. could inherit from both naturl and stepparent)
in texas, foster parents and stepparents are/are not recognized for purposes of inheritence.
are
what is adoption by estoppel
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
how are posthumously born children treated?
if child conceived before father’s death but born after, the child will be treated as if born before the father died
how do we calculate the issue’s share and what are the three steps
the texas distributes per capita with representation
- divide the property equally at first generation where a member survives the decedent
- if there are deceased members at that generation, their share drops down to their surviving issue at the next generation (“representation”)
- if a deceased member of a generation is not survived by living issue, then that member does not take a share
to disinherit a child, you must
have a properly executed will. child is treated as if predeceased the decedent
if a testator does not dispose of all his property by will, the remainder will..
pass by intestate succession
for a will to be valid, it must… (will eleborate on other slides)
general rule:
- be a signed writing*
- have witnesses who testify
- 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
where does the sig need to be located on the will?
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
capacity requirements for writing a valid will
must be 18 (or in the armed forces) and of sound mind
what are the requirements for the form of the signature?
a formal signature is not required. so long as the testator INTENDS to sign
texas requires that wills be signed IN THE PRESENSE of at least __ witnesses. the witnesses must also…
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
what is the boren amendment
what is the new alternative method
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.
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
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.
how does texas treat wills with witnesses that have a financial interest in the will
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
does texas follow the strict compliance (common law) or substantial compliance (modern view) of wills?
strict compliance. so if a formality is missing, the will is invalid
what is a holographic will? requirements
an informal will written in handwriting of the decedent
they DO NOT need to have a witness but must be signed
what if there is stuff on the holographic will that is not in the testator’s writing?
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)
how is testamentary intent treated for holographic wills
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.
what are the formalities of a codocil (thing that supplements a will, does not replace)
same as a will
can a formal will be amended by writing/holograph?
can a holographic will be amended by formal will?
yes
yes
a decedent can avoid probate by transferring property via a will substitute, including [name 5]… include why they avoid probate
- joint tenancy - avoids bc has right of survivorship
- revocable trust - avoids bc it is an inter vivos transfer
- pour-over will - avoid bc it distributes property under trust
- POD (payable on death) contract - avoids bc it distributes by an inter vivos transfer (e.g. life insurance)
- deed - avoids bc it is an inter vivos transfer
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?
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
wills are ambulatory. what the fuck does that mean?
they are capable of being altered or revoked, in whole or in part, at any time until the testator’s death
what are three ways to revoke a will
- subsequent instrument
- physical act
- operation of law
ways to revoke a will (subsequent instrument): explain dat shit
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
ways to revoke a will (physical act): explain dat shit
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)
ways to revoke a will (operation of law): explain dat shit
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
explain wills vs codicil revocation
revoking a will automatically revokes codicils attached to the will but revoking codicils does not automatically revoke the underlying will (actually “revives” the will)
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?
if will 1 becomes active again, that is called revival. Texas DOES NOT have automatic revival. you must re-execute the will.
what is dependent relative revocation?
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
how are wills supposed to be interpreted in texas
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)
a will may incorproate an intrinsic document that is not testamentary in nature, provided:
- the document is in existence at the time of the execution;
- the testator intends the document to be incorproated into the will; AND
- 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)
what is the doctrine of ACTS of independent significance
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.
at COMMON LAW, a testamentary gift would lapse/not lapse if an intended benefiary did not survive the testator
in texas…
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:
- family relation..the lapsed gift must have been intended for a descendent of the testator’s parent
- survived by issue.. the intended beneficiary must have left surviving issue
common law rule with lapses and class gifts and shit
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)
name 4 types of gifts and define them hoes
- specific gift: a gift of a particular piece of property (“my dildo to bob”)
- a general gift: a gift of property satisfied by general assets of the estate (“$10k to bob”)
- 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”)
- residuary gift: whatever is left over
what is abatement. how it work?
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:
- intestate property (first thing to be reduced)
- property in a residuary gift
- general bequests
- specific bequests to non-relatives
- 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
what is ademption. what are the two baisc kinds and how do they work
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.
example of a LATENT ambiguity vs a PATENT ambiguity.. which allows extrinsic evidence to resolve?
how about mistakes?
“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
what is elective share and forced share
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.
what can a spouse dispose of in will in terms of community and separate property
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
what is an advancement to a child
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
when can we tell if a gift is an advacement to a child vs just a plain old regular old orinary old gift?
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
how do you calculate the effect of an adancement?
you use some motherfucking shit call hotchpot analysis
- ADD the value of the advancements back into the intestate estate
- DIVIDE the resulting esate by the number of children taking
- 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)
if intentional, a parent is free to disinherit her children. t/f
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how does texas treat unintentional disinherited kids, like when a dude has a kid after he executes a will
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)
what is the motherfucking slayer rule?
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
a person may disclaim a testementary gift. how?
the disclaimer must:
- be in writing
- declare the disclaimer
- describe the interest or power being disclaimed
- be signed by the disclaimer AND
- be delivered to or filed with the personal representative
what is someone who challenges a will actually doing? what is dis called
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
a will contest must be made within ___ of opening probate
2 yrs
to have standing, a claiming in a will contest must…
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
what is a forfeiture clause
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
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?
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
what is an insane delusion
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
what is the required proof to invalidate a will based on undue influence?
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:
- the existence and exertion of influence
- that caused the suspect disposition (MOST IMPORTANT)
- 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
what is the consequence of successfully showing undue influence
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
what is the rule re drafters of wills being beneficiaries
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
what are the elements of showing fraud and who bears burden
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:
- the intent to deceive the testator AND
- the purpose of influencing the testamentary disposition
what are the two types of fraud
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)
what is the remedy for fraud
a constructive trust is the most common remedy for fraud
what is an executor
what is an adminstrator
executor = rep who is named in the will
administrator = rep who is appointed by the court
what is the priorty for choosing an adminstrator
- surviving spouse
- a principal legatee (receiving a legacy) under the will
- any other legatee under the will
- nearest living relative
- creditor of the decedent (HUH?? YUHHHHH DAS RIGHT)
- any other individual of good character
can the personal rep be paid?
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
if necessary, the court may appoint a temporary representative. T/F
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jx. which courts have jx
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
how is venue determined
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
what is the statue of limitation
a probate proceeding must commence within 4 yrs after the decedent’s death, UNLESS good cause is shown
procedures. notice and inventory
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
explain the general idea bout the homestead exemption. specific definitions/allowance will be on another slide bitch
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
define the diff kinds of homsteads
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
what are exception TO THE homestead exemption?
so these are claims that can always be asserted against the property:
- purchase money liens ($ used to purchase the property)
- taxes (like property tax)
- tax liens
- second liens on the homstead, under circumstances
- owelty of partition (and after the partition the testator received less or more than was fair in the partition)
in probate process, what is family allowance
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
what the fuck if muniment of title?
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
what is the most common form of estate administration in texas
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
generally, unsecured creditors can file a claim up until…
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
if an unsecured creditor wants to make a claim, must authenticate by affidavit. T/F
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
for secured creditors, the personal rep has __ after appintent to notify..
2 months after appintment to notify creditors then known
after a secured creditor is notifed by a personal rep, they then have 2 options..
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)
what are the priority of claims by creditors
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
