Wills & Estate Admin.

Question 1

What makes a will valid?

Answer 1

Must be executed by a person (T) over 18 (or married/in army) w/ testamentary intent. It must be (1) signed (any mark) by T (or by his direction in his conscious presence) (2) two witnesses attesting to T’s signature (over age 14); (3) each attending witness must sign the will in T’s presence. T must sign the will before the witnesses or in the same/contemporaneous transaction

Question 2

What is a holographic will/codicil?

Answer 2

Valid if wholly in T’s handwriting and signed by T. Testamentary intent is required and can be shown by (1) testamentary language or (2) extrinsic evidence of intent if ambiguous. No date required because it is intended to take ffect at death.

Question 3

Where is proper venue?

Answer 3

Where T resided. If T (a non-resident) had no domicile or fixed place of residence in the state, then in the county where principal property located OR county where T died.

Question 4

When someone dies in T’s lifetime, ask these two questions:

Answer 4

(1) does the anti-lapse statute apply (2) does the surviving residuary Beneficiary’s rule apply? Remember - Anti-lapse trumps surviving residuary rule

Question 5

To whom does the anti-lapse statute apply?

Answer 5

The anti-lapse statute applies only to a Beneficiary who predeceases T, was a descendant of the T’s parents (blood-related), and has descendants who survive the T by 120 hours

Question 6

What does the anti-lapse statute do?

Answer 6

It only applies when there is a WILL. The statute prevents bequests to dead beneficiaries from lapsing by allowing the descendants of the beneficiary to take B’s share. Remember, dead B’s will does NOT effect how T’s gift passes (because B’s will has already been probated, in theory). If B has no descendant’s then B’s gift lapses and goes into residuary estate

Question 7

Surviving Residuary Beneficiary Rule

Answer 7

When the residuary estate is devised to two or more beneficiaries, and one beneficiary’s gift lapses, the surviving B’s take residuary estate in proportion to their interests

Question 8

Common Non-Probate Assets

Answer 8

A non-probate asset does not pass by probate or intestate. Usually, the account agreements govern their distribution (401(k) retirement accounts go to named beneficiary - note: predeceasing spouse is not entitled to an interest); CD, checking account, or other asset w/ right of survivorship (ROS = valid if both spouses signed & ROS properly indicated, SS takes)

Question 9

Common probate assets of Community Property

Answer 9

Homestead (mortgage passes with homestead; surviving spouse has sole right of occupancy for as long as she keeps it as her primary residence); cash, car, etc.

Question 10

Intestate Leaving Spouse with no descendants

Answer 10

Surviving spouse gets all CP and personal SP; 1/2 fee simple interest in all decedent’s seperate real property. The decedent’s parents get the other 1/2 interest

Question 11

Intestate Leaving Spouse and only children of the spouse

Answer 11

Surviving Spouse takes all CP. Surviving Spouse gets 1/3 of personal SP; The children take 2/3 of SP. SS gets a life estate in 1/3 of separate real property; remainder in that one-third and outright ownership of the other two thirds passes to the children.

Question 12

Intestate leaving spouse and children, at least one of whom were not the child of the spouse

Answer 12

Surviving Spouse retains 1/2 in CP; D’s 1/2 CP passes to his descendants, who take per capita w/ representation. Surviving Spouse gets 1/3 of personal SP; The children take 2/3 of SP. SS gets a life estate in 1/3 of separate real property; remainder in that one-third and outright ownership of the other two thirds passes to the children.

Question 13

Intestate No Spouse

Answer 13

If the deceased has descendants, they will take the whole estate per capita w/ representation. If the deceased has no descendants, the parents take 1/2 each. If one parent is dead, siblings take that parent’s 1/2 share. If no parents, the estate passes to siblings and descendants. If no siblings, to decedent’s aunts/uncles and their descendants.

Question 14

What is the 120-hour rule

Answer 14

To inherit anything, by will or intestate succession, a person must survive the decedent by 120 hours, absent a contrary provision in a will or statute. If person does not survive decedent by 120 hours, they are treated as though they predeceased the decedent

Question 15

What effect does the 120-hour rule have on a right of survivorship?

Answer 15

To trigger the right of survivorship, one party must survive the other by 120 hours. If not - it passes as it otherwise could have without the ROS

Question 16

Can adopted children inherit from their bio parents?

Answer 16

(1) No if inheritance rights were expressly terminated in the decree terminating parent-child relationship for adoption (2) if the decree was silent on inheritance rights, then child can show up to inherit from parent.

Question 17

Can a child w/o a presumed father inherit from the man he claims is his father?

Answer 17

Yes, if child establishes paternity via (1) the paternity presumption (2) man’s sworn statement acknowledging paternity (3) in a paternity suit (4) in a probate proceeding by C&C evidence

Question 18

Can adopted children inherit from their adopted parents?

Answer 18

Yes. The adoption established a parent-child relationship for all purposes. A child adopted as an adult can inherit from his adopted parents, but then no longer from his biological parents

Question 19

Can a step-child inherit from his step-parent caretaker?

Answer 19

No, but possibly. Generally, stepchildren do not inherit, unless adoption by estoppel is established

Question 20

If T gives H1 a gift of land during his lifetime and tells H2 and H3 that they will get similar gifts when they [insert condition here], is H1’s gift an advancement of his inheritance from T?

Answer 20

No, it is not treated as a portion of H1’s inheritance given in advance (before T’s death), unless donor declares it in a contemporaneous writing or H1 acknowledges it in writing

Question 21

How does someone disclaim an inheritance bequest?

Answer 21

A disclaimer must be in writing, singed, notarized, and filed with the probate court and personal representative within 9 months after decedent’s death. The effect is to treat disclaimer as having predeceased the decedent?

Question 22

What claims does a surviving spouse have above and beyond intestacy or a will? [HEF]

Answer 22

In Texas, a surviving spouse can claim (1) a probate HOMESTEAD (right to exclusively occupy homestead rent-free for life) OR allowance of up to $45k. (2) an EXEMPT personal property set aside of up to $100k (family or $50k (single) or allowance of up to $30k; and (3) a FAMILY allowance of one year’s support for the family. All this is taken from the community estate.

Question 23

What is the Surviving Spouse’s Homestead right of occupancy?

Answer 23

The surviving spouse has the exclusive right of occupancy for as long as she continues to use the residence. She must pay property taxes. If she stops using it as her principal residence, the right to occupy terminates. Urban homestead: less than 10 acres; Rural: less than 200

Question 24

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

Answer 24

Divorce revokes all gifts and fiduciary appointment in ex-spouse’s favor. Note: will is not affected by T’s post-will marriage

Question 25

What is a pretermitted child?

Answer 25

A pretermitted child is a child bron after the execution of a will who is not provided for by the will or some other non-probate transfer, but would be an heir if T had died intestate. He gets a share only of the probate estate assets.

Question 26

What is a pretermitted child entitled to?

Answer 26

(1)If no other children when executed, child takes* intestate share of all property not bequeated to other parent of child
(2) If other children not provided for when executed, child takes* intestate share of all property not bequeathed to other parent of the child (3) If other children ARE provided for when executed, child’s share* is limited to the gifts to such other children. Nobody else’s gift is reduced.
* UNLESS the child is provided for by non-probate transfer (life insurance, joint bank acct.) taking effect at testator’s death.
Pretermitted child’s share is limited to a share of the probate estate, not non-probate transfers such as life insurance

Question 27

When does the pretermitted child statute not apply?

Answer 27

(1) child is provided for or mentioned in the will “to all my children” (2) if the child is provided for in a non-probate asset; (3) if a republication of a will by codicil effects permitted child’s status, as a will is deemed executed on the date of the last codicil.

Question 28

How is a will revoked?

Answer 28

A will can be revoked w/ a subsequent testamentary instrument executed w/ like formalities or by physical act. TX does not recognize partial revocation by physical act. Where a will was last seen in testator’s possession & cannot be found, there is a presumption it was destroyed w/ intent to revoke. But the accidental destruction of a will does not revoke it, even if the testator later decides to revoke it, the intent must be present at the time of the act.

Question 29

How can a lost will be proved?

Answer 29

A lost will can be proved by proving it was duly executed, proof of all or substantially all of its contents (w/ testimony of person who read it or can ID a copy) & proof of the cause of the will’s non-production sufficient (after diligent search) to rebut the presumption that it has been revoked

Question 30

How to prove a will was duly executed?

Answer 30

(1) there is a self-proving affidavit (2) one of the attesting witnesses must testify that T was over 18, signed the will, it was witnessed by 2 W’s who each signed in T’s presence

Question 31

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

Answer 31

TX does not allow for revival of a prior will once they have been revoked. There is one exception called dependent relative revocation. In that case, the court can revive an old will if they find that testator revoked based on a mistake of law or fact about the validity of another disposition and the revocation was conditioned on the validity of the subsequent disposition.

Question 32

What happens if there is not enough to fill all bequests?

Answer 32

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

Question 33

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

Answer 33

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

Question 34

How are contractual wills created and what is the effect?

Answer 34

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 with notice to the other party.

Question 35

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

Answer 35

A will can be challenged for seven reasons: (1) defective execution (2) valid revocation (3) lack of testamentary capacity (4) undue influence (5) fraud (6) mistake (7) testator unaware of will’s contents

Question 36

Specifically devised property not in estate at death?

Answer 36

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

Question 37

Bequests of stock and other securities

Answer 37

Specific language (“my 100 shares”, then ademption applies if the stock isn’t in the estate as such (it is a specific bequest). But, if general language (“100 shares”), it is a general legacy and 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 38

What proves a lack of testamentary capacity?

Answer 38

At the time of executing the will, the testator must have had sufficient capacity to (1) understand the nature of the act he was doing (2) know the nature and approximate value of his property (3) know the natural objects of his bounty; and (4) understand the disposition he is making. Capacity to make a will may exist where capacity to make a contract does not. (AVBD = Acts Value Bounty Disposition)

Question 39

What proves undue influence?

Answer 39

To establish undue influence, the contestant must prove: the existence and ecertion of an influence, the effect was to overpower the mind and will of the testator, and the product was the 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 =Existence, Effect to Overpower, Product)

Question 40

When is an inference of undue influence raised?

Answer 40

Where a will is procured by one in a confidential relationship who benefits from the will, there is an inference of undue influence, which is strengthened when there are suspicious circumstances. Mere opportunity to influence; mere susceptibility to influence, mere surmise/conjecture is NOT ENOUGH.

Question 41

When is a no-contest clause valid?

Answer 41

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

Question 42

When can an independent administration be accomplished?

Answer 42

An independent administrator can be appointed when the will provides for one or all distribuees agree on an independent administration

Question 43

What are the powers of an independent executor?

Answer 43

The executor has the power to do any act, without court order, that a dependent administrator 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 44

How does a personal representative close the administration?

Answer 44

File a closing report with the county court records containing a verified affidavit that shows: (1) property initially received (2) debts paid and expenses (3) names and addresses of distribuees. May also file for a declaratory judgment seeking a discharge from liability on things that have been fully disclosed.

Question 45

What actions must a personal representative take upon appointment? (4)

Answer 45

(1) Within 20 days he must post bond, unless the will waives bond. (2) within 1 month, he must publish notice of administration in the local newspaper; (3) within 90 days of qualification, he must file an inventory of the estate with the court; (4) within 60 days after admitted to probate, he must give notice to named beneficiaries

Question 46

For what reasons can an independent administrator be removed for cause? (7)

Answer 46

(1) failure to file inventory w/in 90 days after qualification. (2) failure to give notice to charitable B’s w/in 90 days after will admitted to 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; and (6) becomes incompetent or sentenced to penitentiary; (7) becomes incapable of properly performing duties due to a material conflict of interest.

Question 47

What court has jurisdiction over probate?

Answer 47

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

Question 48

What alternative method is available to clear title when no administration is necessary?

Answer 48

Depending on whether there is a will or not, a person can file a muniment of title (will) or for a statutory heirship proceeding. To apply for a muniment of title the estate may not have debts.

Question 49

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

Answer 49

A will must be probated within four years of death. But if the person offering the will is not at fault, notice must be given to heirs and the will can be probated as a muniment of title

Question 50

What is a non-probate method of distributing an intestate decedent’s debt-free estate?

Answer 50

(1) a small-estate administration by affidavit if estate does not exceed $75,000 (not incl. homestead or exempt personal property) and there are no debts other than a homestead mortgage

Question 51

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

Answer 51

the administrator must give notice w/in 2 months to secured creditors. The secured creditors then have 4 months or 6 months 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 four month SOL on the debt

Question 52

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

Answer 52

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 53

What is the priority of claims in an insolvent estate?

Answer 53

(1) Funeral expenses and expenses of last illness up to $15k (2) 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 54

What may the court consider in determining the need for/amount of family allowance?

Answer 54

The surviving spouse’s SP (but NOT CP, nonprobate assets, or spouse’s salary) is taken into account in determining the entitlement to and amount of the allowance. Must show there is inadequate SP for support for one year.

Question 55

Statutory Heirship Proceeding

Answer 55

Establishes, by court order, that the person is dead, that he left no will, and that he was survived by the named persons as heirs. Also fixes amts. of intestate shares. BFPs who deal with legatees under will probated as a minument of title or persons named as heirs in SHP are copmletely protected

Question 56

Probate of Will as Muniment of Title

Answer 56

Order admitting will to probate as MOT establishes the ownership rights of beneficiaries named in will, and they may treat the property as their own. Order will protect BFP’s dealing w/ estate. Cannot be entered unless court finds there are no unpaid debts.