wills, estate administration, and guardianship Flashcards
In what four situations can a child born out of wedlock (“without a presumed father”) inherit from the natural father?
1) Presumed father under family code:
(a) child BORN DURING (or w/ 300 days after) MARRIAGE or attempted but void or voidable marriage; or
(b) parties MARRIED AFTER CHILD’S BIRTH and the man VOLUNTARILY ASSERTED HIS PATERNITY: (i) in a record filed with Bureau of Vital Statistics, or (ii) by consenting to be named father on birth certificate, (iii) by promising in a record to support the child; or
(c) DURING FIRST TWO YEARS OF CHILD’S LIFE he resided with the child and represented to others that the child was his.
OR 2) acknowledged father: man signed sworn statement acknowledging paternity
OR 3) adjudicated father: paternity established in a paternity suit
OR 4) paternity is established in probate proceedings by clear and convincing evidence
family law note: the other type of father is an alleged father
Does a bequest to children “born of my body” include adopted children?
No.
Does anti-lapse statute apply to intestate succession?
No, just wills.
What does 120 hour rule apply to?
Everything, unless will says otherwise. (including wills, intestacy, life insurance, joint and survivor bank accounts, joint tenancies w/ right of survivorship)
Effective disclaimer requirements
(signed, child support, 9 months, filed)
1) must be written, signed, and acknowledged (notary)
2) must state that disclaimant is not in arrears on child support
3) must be filed w/ 9 months after decedent’s death, and
4) must be filed with probate court, with copy to personal representative
Distribution of recovery for unauthorized commercial use of decedent’s name, voice, or likeness
Half and half rule. Absent disposition during lifetime or by will, recovery goes (i) one-half to surviving spouse and one-half to descendants, (ii) all to spouse if no descendants, (iii) all to descendants if no spouse.
Rights of surviving spouse, minor child, and incapacitated adult child whom decedent was obligated to support
(Same answer to: If decedent’s spouse married the spouse after execution of spouse’s will and so gets nothing under the will, what claims are available?)
1) probate homestead (10 urban, 200 rural): right to occupy homestead rent-free
2) if didn’t own residence: $45,000 cash allowance in lieu of homestead
3) Family allowance: amount needed for support for period of one year (value of surviving spouse’s SP, but not CP, taken into account.) Paid out of both spouse’s CP.
4) exempt personal property set-aside: up to $60,000 of tangible personal property items (15k limit on jewelry).
5) $30,000 allowance in lieu of #4, if items not on exempt property list
“Divorce revokes” rule revokes all gifts and fiduciary appointments in favor of former spouse and relatives of former spouse who are not relatives of testator. Does “divorce revokes” rule apply if testator remarries the former spouse before dying?
No. Former spouse takes under will.
Pretermitted child rules–
A) If no other children when will executed:
If there are other children when will executed,
–B) and such other children are NOT provided for:
–C) and such other children are provided for:
A) child takes intestate share of all property not bequeathed to other parent of the child.
B) child takes intestate share of all property not bequeathed to other parent of the child.
C) child’s share limited to the gifts to such other children. Nobody else’s gift is reduced.
BUT- child does not take if child is provided for by nonprobate transfer that takes effect at testator’s death (even a contingency)
Limit on nonmarital pretermitted child’s share
one half of parent’s estate
To probate a lost will, three-point test:
Due execution, cause, contents
1) due execution must be proved as in any other case
2) cause of will’s non-production must be proved (must overcome presumption of revocation raised by will’s nonproduction)
3) contents must be substantially proved by one who has read will, heard it read, or can identify copy of will
Is partial revocation by physical act valid in TX?
No. But testator can cross out and add in parts of a holograph if 2 persons can testify the additions are wholly in her handwriting.
TX applies the CL doctrine of no revival of revoked wills. How can a revoked will be revived?
1) re-execute with attesting witnesses, or
2) republish by a duly executed codicil
Note- dependent relative revocation applies where T revokes will based on a mistake of law or fact as to the validity of another disposition. DRR permits court to disregard the revocation that was based on the mistake of law or fact. DRR has been mentioned in dictum but NEVER applied by TX courts.
If so many claims against T’s estate that there’s not enough assets to cover all the gifts made in the will, then devises and legacies abate in the following order:
I R G S
1) intestate property (if T died partially intestate)
2) residuary estate- personal then real
3) general legacies of personal then real
4) specific bequests of personal then real
- demonstrative legacies: not in statute, but likely treated like specific bequests to the extent of the value of the specified property, and as a general legacy to the extend of the excess (ex: “$25 paid from sale of X stock.” Stock worth $10. So $10 specific, $15 general).
Does ademption apply to specifically devised property not in estate at death?
Yes, unless wills says “I give my interest in X property.” Ademption does not apply to demonstrative (ex: $25 from sale of X stock) or general legacies (ex: $25).
What is included in a specific bequest of stock?
Stock from a stock split and a stock dividend, and securities resulting from a merger, takeover, or acquisition. but does not include a cash dividend declared before T’s death or securities obtained through exercising a stock option.
Exoneration of liens doctrine
For wills EXECUTED before 9/1/2005, absent contrary will provision, liens on specifically devised property are exonerated from the residuary estate. For later wills, doctrine abolished by statute, so get title subject to the lien (ex: mortgage).
Note: watch out for effect of republication by codicil.
incorporation by reference
writing in existence, intent to incorporate, clearly identified by language in will
Capacity to make a will
Sufficient capacity to understand:
1) nature of act
2) nature and approximate value of property
3) natural objects of bounty
4) disposition
