Wills (DONE) Flashcards
If a decedent dies intestate and is survived by descendants, all of whom are descendants of the surviving spouse, how should the community property be distributed?
All to the surviving spouse.
When a decedent dies intestate and is survived by descendants, all of whom are descendants of the surviving spouse, the surviving spouse retains his one-half community interest and inherits the decedent’s one-half interest. Thus, the surviving spouse takes all of the community property. In contrast, if at least one of the decedent’s descendants is not the surviving spouse’s descendant, the decedent’s one-half community interest passes to his descendants, who take per capita with representation. The surviving spouse still retains his one-half community interest. The decedent’s descendants take all of the community property only if the decedent is not survived by a spouse.
If an unmarried decedent dies intestate and is survived by both parents and two children, how should her estate be distributed?
One half to each child.
When an unmarried decedent dies intestate and is survived by both parents and by two children, her estate passes one-half to each child. If no children or their descendants survive the decedent, one-half passes to her father and the other one-half passes to her mother.
If a decedent dies intestate and leaves no spouse, children or their descendants, or either parent, how should his estate be distributed?
To his brothers and sisters or their descendants.
A presumption of paternity giving rise to inheritance rights in a nonmarital child arises under the Family Code if:
The child was born during the marriage of the man and the child’s mother.
A presumption of paternity giving rise to inheritance rights in a nonmarital child arises under the Family Code if (i) the child was born during or within 300 days after the marriage (including an attempted but void or voidable marriage) of the man and the child’s mother, (ii) the parties married or attempted to marry after the child’s birth, and the man voluntarily asserted his paternity of the child in one of the following ways: a) the assertion of paternity is in a record filed with the Bureau of Vital Statistics, b) the man was voluntarily named as the child’s father on the birth certificate, or c) the man promised in a record to support the child as his own; or (iii) during the first two years of the child’s life, the man continuously resided in the same household as the child and represented to others that the child was his child. Paternity also may be established in paternity or probate proceedings or by the father’s written acknowledgment.
How are the intestate shares of descendants distributed in Texas?
Per capita with representation.
For purposes of inheritance, a nonmarital child will be treated the same as any other child of the decedent if the court finds that the decedent was the biological father of the child by which of the following evidentiary standards?
Clear and convincing evidence.
A decedent and her only child were killed in a plane crash. Neither was alive when the emergency team reached them. The child is survived by a spouse, and the decedent is survived by only a brother. The decedent left a sizeable intestate estate and a life insurance policy with the child as the named beneficiary. Who will share in the decedent’s estate and the insurance proceeds?
The decedent’s brother will take the estate and the insurance proceeds.
A husband and a wife were fatally injured in a car accident. The husband died at the scene of the accident, and the wife died two days later. The husband was survived by only a brother, and his will bequeathed his entire estate to his alma mater. The wife was survived by only a sister, and her will bequeathed her entire estate to her alma mater. How should the community property be distributed?
One-half to the husband’s alma mater and one-half to the wife’s alma mater.
If a husband and wife die within 120 hours of each other, one-half of all community property, including community property with right of survivorship, is distributed as if the husband had survived by 120 hours, and the other one-half as though the wife had survived by 120 hours. Here, the wife survived the husband by two days, which is less than 120 hours. Thus one-half of the community property will pass as though the husband survived the wife: to his alma mater pursuant to his will. The other one-half of the community property will pass as though the wife survived the husband: to her alma mater pursuant to her will. Because both decedents died testate, the intestate heirs, the brother and the sister, take nothing.
What type of trust will be imposed when an heir or will beneficiary kills an intestate or a testator?
Constructive trust.
A constructive trust is imposed to prevent unjust enrichment on the ground that no one should be allowed to profit from her wrongful conduct. A constructive trust will be imposed where an heir or will beneficiary kills an intestate or a testator.
A disclaimed interest passes as though:
The disclaimant predeceased the decedent.
A will must be signed by a testator, or signed for him by another person:
By his direction and in his conscious presence.
A will must be attested by two witnesses above the age of:
14
What proof is required to probate an attested will?
The testimony of one attesting witness.
In Texas, a beneficiary who contests a will with a no-contest clause:
Does not foreit her bequest if the challenge is unsuccessful but was brought in good faith and with just cause.
The contest itself does not trigger forfeiture unless the court finds that no reasonable grounds existed for contesting the will (i.e., it was a suit designed to provoke a settlement). Whether the beneficiary had just cause is a question of fact. If the contest is successful and the will is denied probate, there is never forfeiture because the no-contest clause is tossed out along with the will. Note that suits objecting to the court’s jurisdiction, challenging the appointment of an executor, or asking the court to construe the will are not will contests within the meaning of most no-contest clauses.
Which of the following actions triggers a no-contest clause?
An action alleging the will was not properly executed.
What is required to prove that a will or gift therein is a result of fraud?
(i) the speaker made false representations knowing them to be false,
(ii) the representations were made with the intent to deceive the testator,
(iii) the testator was ignorant of the falsity, and
(iv) relying upon such representations, the testator made a different will than he otherwise would have made.
If the will makes an unnatural disposition that favors some family members over others:
It is not enough to establish undue influence.
To establish undue influence, the contestant must prove (i) the existence and exertion of an influence, (ii) that the effect of the influence was to overpower the mind and free will of the testator, and (iii) the will would not have been executed “but for” the influence.
What are the elements a contestant must prove to establish undue influence?
(i) the existence and exertion of an influence,
(ii) the effect of the influence was to overpower the mind and free will of the testator, and
(iii) the will would not have been executed “but for” the influence.
The mere fact that the testator was old and physically frail may be considered as establishing the susceptibility of the testator’s mind to an influence but does not establish that the testator’s mind was in fact subverted and overpowered at the time the will was executed. Moreover, the mere fact that the will makes an unnatural disposition that favors some family members over others is not enough; it is only where all reasonable explanation for the devise is lacking that the trier of fact may take this circumstance as a badge of undue influence.
After a will is admitted to probate, who has the burden to prove testamentary capacity?
The burden shifts from the will proponents to the will contestants to establish capacity.
If the issue of testamentary capacity is raised at the time the will is offered for probate, who has the burden of establishing capacity?
The will proponents.
What parties can contest a will?
Parties who can contest a will are the decedent’s heirs, legatees named in a prior will that was revoked by the will being offered for probate; spouses, creditors, assignees of any of the foregoing, and any other persons having a pecuniary interest that would be affected by the probate or defeat of the will. A grandchild is an heir, but a stepchild is not.
How many years after a will has been admitted to probate can a will contest be filed?
Two years.
A bequest to “children” does not include:
Nonmarital children
The Texas anti-lapse statute covers predeceasing beneficiaries who are:
Descendants of the testator’s parents.
If a will beneficiary, who is a friend of the testator, dies during the testator’s lifetime:
The gift becomes part of the testator’s residuary estate.
If a testator’s will bequeaths one-half of his estate to his wife and the other one-half to his brother, and the testator dies survived by his wife, his brother, a daughter born to him and his wife before he executed his will, and a son born to him and his wife after he executed his will, how should the separate property of the estate be distributed?
One-half to the wife, one-fourth to the brother, and one-fourth to the son.
If the testator made no provision for any of his children living when the will was executed, a pretermitted child takes the share of the estate he would have inherited if the testator had died intestate and unmarried, owning only that portion of his estate not bequeathed to the child’s other parent. The wife takes one-half of the separate personal property. Only one-half of the remainder passes to the son under the pretermitted child statute, as he would only inherit one-half of the testator’s estate if the testator had died intestate and unmarried. In making up this one-fourth share, the brother’s share is reduced to one-fourth. The daughter, who was living when the will was executed but is not mentioned in the will, takes nothing.
If a testator’s will bequeaths one-half of his estate to his wife and the other one-half to his brother, and the testator dies survived by his wife, his brother, and a daughter born to him and his wife after he executed his will, how should the separate property of the estate be distributed?
One-half to the wife and one-half to the daughter.
If the testator had no other children, a pretermitted child takes the share of the estate she would have inherited if the testator had died intestate and unmarried, owning only that portion of his estate not bequeathed to the child’s other parent. Here, the bequest to the wife is not diminished by the pretermitted child statute because she was the daughter’s parent. The wife takes one-half of the separate personal property. The other one-half passes to the daughter under the pretermitted child statute, as the daughter would be the testator’s only intestate heir if he had died intestate and unmarried. The brother takes nothing.
The testator’s signature on a holographic will must be where?
Somewhere (anywhere) on the will.
A holographic will must not contain:
Printed words
Who bears the burden of proving that the testator did not revoke the will?
The will proponent
What must be established to probate a lost will?
(i) due execution of the will must be proved by the testimony of at least one attesting witness,
(ii) the cause of nonproduction of the will must be proved to overcome the presumption of revocation, and
(iii) the contents of the will must be substantially proved by the testimony of a credible witness who has read the will, has heard it read, or can identify a copy of the will.
The pretermitted child statute applies to:
Afterborn and after-adopted children.
What is the effect of a will beneficiary’s serving as an attesting witness?
The will is valid, and the witness-beneficiary could take a share of the estate.
In Texas, a valid holographic will must include:
Material provisions in the testator’s handwriting.
What is the order of payment regarding the family allowance?
Nonprobate assets passing to the surviving spouse are NOT taken into account in determining the family allowance.
The family allowance is paid before all other claims except funeral expenses and expenses of last sickness up to $15,000 each and is a community obligation payable one-half out of the surviving spouse’s one-half community interest. The surviving spouse’s separate property is taken into account in determining the amount.
Who is entitled to occupy the homestead after the decedent’s death?
If the decedent is survived by a spouse or by minor children, the spouse is entitled to occupy the homestead as long as she chooses.
The right to occupy is independent of title; if the property has been devised to some other person, such person takes title subject to the right of homestead occupancy. If the occupancy right is not claimed by the surviving spouse, a guardian of the decedent’s minor children may use and occupy the homestead under a court order. The right of homestead occupancy is terminated when the homestead ceases to be the spouse’s principal residence. The surviving spouse’s homestead right is not extinguished by remarriage
If a decedent is survived by a spouse or minor child, the homestead descends free of debts and creditors’ claims (subject to state and federal statutory and constitutional exceptions):
If the homestead passes to any devisee.
The decedent’s homestead passes to any devisee free of debts and creditor’s claims (subject to the usual state and federal statutory and constitutional exceptions) when the decedent is survived by a spouse or minor child.
The homestead property can be attached, executed, or sold to satisfy what claims?
Purchase money mortgage on the homestead, a lien for property taxes, a federal tax lien against jointly filing spouses, etc.
The homestead is exempt from an unrecorded mechanic’s lien. Mechanic’s and materialman’s liens incurred in connection with improvements on the homestead are valid only if: (i) a written contract is entered into prior to the commencement of the improvements or the furnishing of supplies; (ii) the contract is signed by both spouses; and (iii) the contract is recorded.
Who has priority to be appointed personal representatives of an estate?
The principal beneficiary named in the will has priority over other beneficiaries named in the will.
Persons are given priority of appointment as personal representative as follows: (i) persons named in the will as executors; (ii) surviving spouse; (iii) principal beneficiary named in the will; (iv) any other beneficiary named in the will; (v) decedent’s next of kin as determined by the intestacy statute; (vi) creditor of the decedent; and (vii) any other person of good character.
What is the statutory formula for payment of claims by an estate?
Unpaid child support is paid before state taxes.
Otherwise, expenses and claims are paid in the following order:
(i) funeral expenses and expenses of last sickness up to $15,000 each, with any excess classified as an “other claim”;
(ii) expenses of administration;
(iii) secured claims to the extent the claim can be paid out of the proceeds of the property subject to the mortgage or other lien;
(iv) claims for unpaid child support;
(v) state taxes;
(vi) claims for the cost of confinement in prison;
(vii) claims for reimbursement for medical assistance payments made by the state on the decedent’s behalf; and
(viii) all other claims.
In what case is an unsecured claim barred?
If the claimant does not file suit within 90 days of rejection of the claim.
In a dependent administration, if the claimaint does not file suit within 90 days of rejection of an unsecured claim, the claim is barred. Within 30 days after the receipt of an authenticated claim, the personal representative must file a written memorandum with the court either allowing or rejecting the claim. Failure by the representative to act on the claim within 30 days constitutes rejection of the claim. If the claim is rejected (either expressly by the representative’s written memorandum or automatically by the expiration of the 30-day period), the claimant must file suit within 90 days after such rejection; otherwise the claim is barred. An unsecured creditor can assert its claim at any time within the statute of limitations applicable to the particular claim.
When an undisclosed heir is discovered subsequent to the transfer of title to a homestead under a small estate affidavit:
The deed is valid, but the undisclosed heir can sue the heirs who received the consideration.
Title to a homestead that is the only real property in a decedent’s estate (whose value not including the homestead and exempt property does not exceed $75,000) may be transferred using a small estate affidavit. This affidavit if recorded in the county in which the homestead is located will protect bona fide purchasers for value of the homestead against lawsuits brought by heirs not disclosed in the affidavit. The undisclosed heir’s remedy is against the heirs who received consideration for the transfer of the homestead to the bona fide purchaser.
When a person dies intestate leaving a probate estate whose value does not exceed $75,000 not including homestead and exempt personal property:
The court may distribute both the personal property and the homestead without administration if the homestead is the only real property in the estate.
If the decedent owned non-homestead real property, a small estate affidavit cannot be used to clear title. If the value of the estate, not including homestead and exempt personal property, does not exceed the family allowance, the court may set aside the allowance and order that no administration is necessary. There is no rule that small estates exceeding the family allowance must be subject to administration.
When a person dies intestate, a statutory heirship proceeding:
Will not protect the named heirs from claims brought by omitted heirs.
Upon the death of one spouse, what property is subject to estate administration?
All of the community property as well as the deceased spouse’s property.
The death of one spouse dissolves the community entity, compelling a division of the community estate. Therefore, all of the community property and not just the deceased spouse’s one-half share is subject to administration. The deceased spouse’s separate assets are also subject to administration. Community obligations are paid, and what is left is partitioned between the surviving spouse and the deceased spouse’s successors (through his will or by intestacy).
A person or entity that declines appointment as an independent executor:
May be appointed as administrator in a court-supervised administration in the discretion of the court.
Whose consent is required in order for the court to authorize independent administration of an estate?
A minor or incapacitated beneficiary, a beneficiary whose bequest is contingent on her survival for a period of time, and a beneficiary of a life estate in property.
Consent from a beneficiary of a REMAINDER interest in the property is not needed.
Even if all distributees consent, when is a court NOT able to authorize the independent administration of an estate?
When the will provides that there shall be no independent administration, even if independent administration is in the estate’s best interest.
Otherwise, if all distributees consent, the court will authorize independent administration of an estate where the decedent dies intestate or the will names an executor without independent administrative powers if independent administration is in the estate’s best interest. The court must appoint the independent executor named in the will even if independent administration is not in the estate’s best interest.
For how long after a decedent passes may a will be submitted for probate?
A will can be admitted to probate more than four years after the testator’s death only if the party applying for probate was not in default by failing to present the will within the four years after the testator’s death, e.g., because he or she was unaware of the will’s existence until more than four years had passed and the will can only be probated as a muniment of title. Moreover, the person named in the will as executor cannot be appointed, nor can there be an administration of the estate.
What is the requirement for a duly executed will?
1) T must be 18 years old.
2) Signed by testator
3) Two attesting witnesses
4) Each witness must sign IN TESTATOR’S PRESENCE
(Codicil must be executed with the same formalities.
What distinguishes Texas law from common law for Wills?
Texas does not require:
1) that witnesses know they are witnessing a will
2) that testator sign in each other’s presence
3) that witnesses sign in each other’s presence
4) that the testator sign in “at the foot or end” of the will
Does it matter if a W signs before a W?
No, not if the execution ceremony is a contemporaneous transaction.
But if T signs after W’s leave, then invalid.
Does it matter if a T’s signature is barely legible?
No, any mark intended as T’s mark is sufficient to satisfy the signature requirement.
Does it matter if the W’s don’t sign in each other’s presence?
No, this is not required in Texas
What is the “conscious presence” requirement?
The W’s are required to be in T’s presence such that T is CONSCIOUS of where they are and what they are doing. It is not required that T actually be able to see the W’s.
However, being in an adjacent room is considered too far and thus not in T’s presence.
How many W’s must attest to a will?
Only one W is required to attest in open court.
What happens if all W’s are dead or cannot be located?
Testimony of two persons as to the handwriting of the testator or handwriting of either witnesses sufficient.
What is the effect of a self-proving affidavit?
It’s a procedure that recognizes that most probates are harmonious, non-litigious affairs in which no one is challenging the validity of the will’s execution.
The affidavit contains statements the witnesses would testify to in open court.
It is a SUBSTITUTE for live testimony of the attesting witnesses in open court.
What is a two-step will execution ceremony?
If witnesses sign an affidavit, but not the will, signatures on a self-proving will can be used to validate the will.
Consequences are that you can only use the signatures once, and due execution must be proved by testimony of at least one attesting witness.
What is a one-step execution ceremony?
The will’s attestation clause recites all the elements of due execution, and is prepared as a sworn statement. Testator and witnesses sign only once.
Where is venue for the probate of a will and administration of the estate?
The county where decedent resided.
If decedent (nonresident) died in Texas but had no domicile or fixed place of residence in the state, then venue is
1) county where principal property is located, or
3) county in which nearest of kin reside, or
3) county where decedent died
The whom does the attorney’s duty run to?
The client who contracted for his services. Only the client can sue the attorney for negligence.
There is no privity of contract between the attorney and beneficiaries.
When can the executor of an estate sue the attorney?
For:
1) Loss of estate of excess estate taxes paid because of attorney’s negligent estate planing advice, or
2) Loss to estate resulting form allegedly negligent mischaracterization of assets as separate property rather than community property that led to decedent’s liability.
What is the effect of making a beneficiary an attesting witness?
The interested witness does not affect the validity of the will, but the bequest to the witness is void.
