Wills & Estate Administration Flashcards
Calculating Share in Intestacy
- Divide Property equally among the 1st generation with at least 1 surviving member
- Pass shares of each member of that generation that does not survive to then-living issue
- Non-living heir with no living issue does not receive a share
Distribution of Separate property in intestacy:
Surviving spouse and non descendants
[Spouse + 0]
Spouse takes all of decedent’s separate personal property estate + 1/2 separate real property
Remaining 1/2 of separate real property to ancestors or collaterals
Distribution of Separate property in intestacy:
Surviving spouse and descendants
[Spouse + 1]
Spouse takes 1/3 separate personal property + life estate in 1/3 separate real property
Remaining assets to descendants
Distribution of Separate property in intestacy:
No spouse
Entire separate estate to descendants
If no descendant, ½ each to surviving parents.
1 surviving parent – ½ to parent, ½ to parent’s children
No parents, then to children of parents
No children of parents, then ½ to children of maternal grandparents, ½ to children of paternal grandparents
If none, then to closest relative (even the most remote relatives may inherit)
If none, to the state
Distribution of Community Property in intestacy:
Surviving spouse and no descendants
[Spouse + 0]
All decedent’s comm. prop. to spouse
Distribution of Community Property in intestacy:
Surviving spouse and at least 1 unrelated descendant
[Spouse + 1 UR]
All decedent’s comm. prop. to descendants
Distribution of Community Property in intestacy:
Surviving spouse and all descendants related
[Spouse + 1 R]
All decedent’s comm. prop. to spouse
Intestacy
The default statutory distribution scheme applied when an individual dies without disposing of his property through non-probate instruments or a valid will
The decedent’s intent is irrelevant
Under the Uniform Simultaneous Death Act, what is the rule to be deemed a survivor?
Must have survived the decedent by 120 hours
Proven by clear and convincing evidence
What happens if under the Uniform Simultaneous Death Act, if spouses die less than 120 hours apart?
Deemed to each have predeceased the other
1/2 of community property to each as if they were the surviving spouse
Required formalities for a will
- Must be in writing
- Signed by the testator (who is 18 + and of sound mind)
- Signed or acknowledged in the presence of and attested to by 2 witnesses
- Testamentary intent
Testamentary Intent
Testator must -
(i) understand she is executing a will
(ii) intend that it have testamentary effect
Witness requirements
- Above the age of 14
2. May be interested, but bequest to the witness is void unless corroborated by 1 or more disinterested persons
Requirements of a Holographic Will
- Witnesses not required, unless contested
- Handwritten and signed by the testator
- Capacity (rebuttable presumption of incapacity if testator lacked capacity at any time during which the will could have been executed).
- Testamentary Intent
Requirements for nuncupative wills
(Oral wills)
- Executed before 9/1/2007
- Valid only for oral disposition of property worth less than $30
- Made during testator’s last sickness
- Either put into writing within 6 days or probated within 6 months of testator’s death.
Codicil
Supplement to a will that alters, amends, or modifies the will, rather than replacing it
Will Substitutes
- Revocable trusts
- Pour-over wills
- Bank Accts. & securities registered in beneficiary form
- Payable on Death Clauses
- Life Insurance
- Deeds
- Retirement Plans
When can a will be revoked?
Any time before death
How can a will be revoked?
- revocation by subsequent instrument
- Revocation by physical destruction with intent to revoke
- Revocation by operation of law (divorce)
In the case of a lost will, the proponent must establish:
By Clear and Convincing Evidence the following:
- Will was duly executed
- Cause of the will’s non-production (rebuttable presumption of revocation by destruction)
- Proponent’s inability to produce by reasonable diligence
- Contents of the will by credible witness (true copy sufficient)
Dependent Relative Revocation
a testator who revokes a will under a mistaken belief that the revocation will revive an earlier will, and who would not otherwise have revoked the will, has not effectively revoked his will
Order of Abatement of Creditors’ Claims
- Intestate property;
- Residuary bequests;
- General bequests; then
- Specific bequests, including demonstrative legacies
Abating personal property first within each category
Exoneration of Liens applies unless provided otherwise to wills executed when?
BEFORE 9/1/2005
Rights of Surviving Spouse
- Spousal Support
2. Forced share of community property
Pretermitted child’s share:
Other parent is not the surviving spouse
the child’s share must not reduce SS’s share by more than one-half
Pretermitted child’s share:
Testator had no other children
the child takes a share as if the testator died intestate and unmarried (excluding any part of the estate devised to the child’s other parent)
Pretermitted child’s share:
Testator made provisions for other children
the child’s share is limited to the provisions made for the other children, with the other children’s shares reduced to pay the pretermitted child’s share
Pretermitted child’s share:
Testator made no provisions for other children
the child takes as if the testator had no other children, which is the share he would take if the testator had died intestate and unmarried (excluding any part of the estate devised to the child’s other parent)
Statute of Limitations on Will Contests
2 years
Grounds to Contest a Will
- Testamentary Capacity
- Undue Influence
- Fraud
- Tortious Interference
- Testator unaware of the contents of the will
Testamentary capacity
At the time of execution, testator knew:
(i) the nature of the act;
(ii) the nature and character of his property;
(iii) the natural objects of his bounty; and
(iv) the plan of the attempted disposition
Probate
a process by which a decedent’s will is judicially determined to be valid, or, if no will, the process by which his heirs are judicially determined
Order of Priority to serve as administrator:
- The surviving spouse;
- The principal legatee under the will;
- Any other legatee under the will;
- The nearest living relative;
- Any creditor of the decedent; and
- Any other individual of good character.
Compensation of an administrator
Entitled to 5% of all amounts paid into or out of the estate
May be overridden by a will stating personal representative is entitled to reasonable compensation
Jurisdiction for probate
Concurrent jurisdiction in district and county courts
•County - uncontested
•District - contested
Larger counties have probate courts (exclusive jurisdiction)
Venue for Probate
TX Residents: county of domicile at death
Non-TX residents, died in TX: where decedent died or majority of assets are located
Non-TX Residents, died outside TX: domicile of nearest relative in TX; majority of assets are located
Statute of Limitations for Probate
4 years, unless good cause shown
Must conclude within 2 years of commencement
Probate Procedures
- Notice to Beneficiaries within 60 days
- Filing the inventory and management of inventoried assets or filing an affidavit in lieu of an inventory
- Homestead, exempt personal property, and family allowance if the estate is insolvent
- Paying debts, taxes, and administration expenses
- Filing of Accounts
- Distributing the net estate
Muniment of Title - applicability
Used when the only reason for formal probate is to transfer title to property, and there are no outstanding debts or other compelling reasons for probate
Conclusively establishes the legatees’ rights to probate property
Muniment of Title - procedure
An affidavit must be filed within 180 days after the will is admitted to probate as muniment of title, certifying which of the testamentary terms have been fulfilled and which have yet to be fulfilled
Forms of Estate Administration
- Informal Administration
- Independent Administration
- Dependent Administration
Types of Informal Administration
- Family Settlement
- Settlement pursuant to written agreement
- Order of no necessity
- Small estate administration
- Payment on behalf of minor or incompetent
- Collection of final paycheck
Informal Administration permitted when
Individual dies owning only personal property
Independent Administration permitted when
- Provided for in the will
2. All distributees agree and collectively petition court to appoint independent administrator
Procedures of Independent Administration
Independent executor files inventory of estate assets and their values and a listing of creditor claims
After filing, no court supervision
Rights & Responsibilities of the Independent Executor
•May exercise all powers granted under the decedent’s will, or would be granted to a dependent executor
• If a power to sell real property is not included in the will, the court and intended beneficiaries must consent
o Even if such power is not included or the beneficiaries did not consent, an independent executor is still permitted to sell real property if necessary to pay debts or the family allowance
• After 15 months, may be required to account to interested parties upon request, and thereafter every 12 months
- Does not need to formally close estate
- Unless an interested person files an objection within 30 days, the independent administration of estate is considered closed
• May then apply for a declaratory judgment discharging him from further liability in connection with the estate administration
Dependent Administration
Court-supervised administration
Dependent Administration - applicability
Necessary when the court is unable to find testatrix intended to appoint an independent executor and either: (i) interested parties cannot agree that independent administration is appropriate, or
(ii) the court holds that would not best serve the estate’s interests
Procedure of Dependent Administration
At each step in the probate process:
(i) a petition be filed with the court,
(ii) notice be served on interested parties and creditors, (iii) a first and second hearing be conducted, and
(iv) a court order be signed
- Administration may be closed when all debts have been paid in full or to the extent assets will permit their payment
- Representative must present an account for final settlement
- Court approves the accounting and enters an order directing the representative to distribute to all entitled persons any of the remaining estate assets
- After all assets have been delivered, the representative may apply for an order releasing him and discharging his sureties
Notice to Unsecured Creditors
- Notice by publication in a newspaper of general circulation within 1 month
- Personal notice of known unsecured creditors
Information required to be contained in Notice to Unsecured Creditors
(i) name of estate,
(ii) personal representative’s name,
(iii) address to which claims should be sent,
(iv) instruction how to address claim, and
(v) date of appointment
Notice to Secured Creditors
Personal notice within 2 months of appointment to all known creditors
In an independent administration, unsecured creditors must present
(i) a written instrument, hand-delivered with proof of receipt, or mailed by certified mail, return receipt requested with proof of receipt, to the administrator
(ii) a pleading filed in a lawsuit with respect to the claim,
(iii) a written instrument or pleading filed in the court in which the administration of the estate is pending
Presentment of an unsecured claim in a dependent administration
claims of unsecured creditors must be authenticated and filed with the personal representative or the court before they may be considered by the personal representative, after which personal representative has 30 days to allow or disallow the claim by a writing filed with the court
Presentment of an unsecured claim in a independent administration
No particular formalities
Presentment of Secured Claims
- As a Matured Secured Claim
2. As Preferred Debt and Lien
Presentment as a Matured Secured Claim
Must give notice to the independent administrator by:
(i) a written instrument that is hand-delivered with proof of receipt, or mailed by certified mail, return receipt requested with proof of receipt, to the administrator;
(ii) a pleading filed in a lawsuit with respect to the claim;
(iii) a written instrument or pleading filed in court in which administration of estate is pending
If claiming a matured secured claim, secured creditor
o May not exercise any remedies that prevent the payment of the higher priority claims and allowances; and
o May not exercise contractual collection rights during the administration
Presentment as a Preferred Debt and Lien
A secured creditor may present its claim as a preferred debt and lien, in which case the debt will be paid according to the terms of the note secured by the lien
o Waives the right to collect the debt from the assets of the decedent’s estate
o Must foreclose lien in satisfaction of the debt if the note is not paid by the decedent’s successors in interest
Priority of Creditor Claims
- Expenses of decedent’s last sickness and funeral (capped at $15,000), followed by family allowance
- Administration expenses
- Secured claims if mortgaged property sold and proceeds are not used to pay (1) and (2)
- Child support arrearages that have been reduce to judgment
- State taxes, penalties, and interest
- Cost of decedent’s confinement in prison
- Costs of medical assistance claimed by TX
- All other claims
When a deficiency makes it impossible to pay all members for 1 class, that class must be paid pro rata.
