Wills & Estates Flashcards
Advancements
Gift requires donative intent, transfer, and acceptance. Transfer is presumed to be a gift and not an advancement.
Advancement if: (1) decedent stated in contemporaneous writing that gift was advancement or (2) recipient acknowledges in writing that gift was advancement
effect of will after advancement
if not incorporated by reference into the will, there is no advancement
Incorporation by reference
(1) document in existence at the time of the will AND (2) will refers to document with sufficient certainty
Anti-lapse statue
if the predeceased beneficiary is a descendant of the testator, or the testator’s parents, and leaves a descendant, then the anti-lapse statute will prevent the testamentary gift from lapsing to the residuary estate.
Pretermitted Child
child born or adopted after the creation of the parent’s will and is not provided for in the will or otherwise.
Entitled to a share of the decedent’s estate that he would have received had the testator died intestate UNLESS (1) will provides for child; (2) will intentionally omits child; (3) T had living children when will executed and ALL children are omitted; (4) will leaves entire estate to surviving spouse; or (5) T made other provisions for the child to take effect at T’s death (life insurance)
cannot divest other parent
can only divest surviving non-parent spouse by 50%
life insurance policy
non-probate transfer device governed by contract law and does not pass through the will.
insurance code provides that a beneficiary who willfully brings about the death of the insured forfeits his interest in the policy, and the policy proceeds are payable to the contingent beneficiary or to the nearest relatives
Class Gift
a class gift exists when the T makes a gift to number of persons as a group. The group can increase or decrease in number. Must be T’s intent to make class gift.
If gift is immediate, it closes at T’s death (rule of convenience).
If gift is contingent, class will remain open until time set for distribution.
Members of the class are those alive at the time at distribution of the gift
community property
all property acquired during marriage is assumed to be CP. CP is property acquired during marriage not through gift, devise, descent, or personal injury claims not including lost wages.
Joint checking and savings account
presumed to be community property. If one person dies before severance, the interest of the decedent passes by will or intestacy as if the decedent’s interest had been severed.
Joint tenants
in Texas, no automatic right of survivorship. Parties must expressly state it.
retirement plans
retirement plans acquired and contributed to during marriage are CP, using the inception of title. A spouse that did not contribute to the retirement plan and predeceases the contributing spouse does not have an interest in the retirement account at death.
Homestead allowance
court sets aside for the use and benefit of the surviving spouse, as well as any minor children and unmarried children remaining with the family of the deceased. All property of the estate that is exempt from execution or joint sale.
Spouse and minor child have exclusive right to occupy a homestead as long as it is used for principal residence
If the homestead is SP => spouse retains 1/3 interest and exclusive occupancy rights
Funeral and burial expenses
funeral and burial expenses are generally expenses of the estate. Surviving spouse can petition the court to take such funeral and burial expenses out of the estate’s value
120 hour rule
anyone who does not survive the decedent for more than 120 hours is deemed to have predeceased the decedent
disclaimer
heir may disclaim an interest that would pass to him by inheritance if he delivers a written, signed disclaimer that describes the interest being disclaimed
may be made at any time before the heir accepts any interest in the property. The disclaimed interest will lapse to residual estate unless anti-lapse statute
cannot disclaim if in arrears of child support
Will contest SOL
will contest must be filed within two years after the will is admitted to probate. A contest based on fraud or forgery may be instituted within two years after discovery of the fraud or forgery.
Testamentary Capacity
at the time the will was signed, T (1) understood the nature of the acts T was doing; (2) knew the nature and character of property; (3) knew the natural objects of her bounty; and (4) understood the act of making a will
evidence must relate to circumstances at or around the time the will is executed, unless such evidence is probative of a lack of capacity at the time the will was executed
undue influence
contestants must prove: (1) existence and exertion of a dominant influence; (2) made to subvert the mind of the Testator; (3) without which the will would not have been made
opportunity, susceptibility, unnatural disposition, are all NOT enough to establish UI; there must be evidence that influence was actually exerted
Paternal inheritance rights
(1) paternity is presumed under Family Code; (2) father executes a statement of paternity; or (3) paternity is established in court proceedings
presumed father
(1) child born during marriage; (2) parties married after child’s birth and man voluntarily asserts paternity; (3) during the first two years of child’s life, the man continuously resided in the same household as the child and represented to others that the child was his
will execution
(1) testator had legal capacity (18, married, or military); (2) in writing; (3) signed by testator; (4) attested by two witnesses 14+; (5) witness subscribe their names in testator’s presence
Spouse omitted from will
Texas does not have an omitted spouse statute, so a marriage following execution of a will has no effect on the will
holographic will
(1) written with testamentary intent; (2) wholly in T’s handwriting; (3) signed by T
Gifting community property
one spouse may make a reasonable gift of community property without the other spouse’s consent, subject to the fraud on the community doctrine
A gift may be challenged if it was intended to defeat community property rights. Factors are: (1) donee’s relation to T; (2) amount of the gift relative to entire community estate; (3) whether the spouse receives at least that much in other property; and (4) whether the gift was the donor’s sole management property
per capita with representation
estate is divided equally at the first degree of relation and if there is a deceased heir at the first degree, descendants of that heir receive equally divided portions of his share
independent will administration
even if will does not provide, there can be one if all beneficiaries agree and the probate judge does not veto on ground that an independent administration would not be in the estate’s best interest
non-probate transfers
assets that do not pass by intestate succession. Including (1) life insurance, (2) JT w/ right of survivorship; (3) joint bank account w/ right of survivorship; or (4) anything else that passes at death pursuant to a contract
adoption by estoppel
must be a showing that the stepparent agreed with the natural parent that he would adopt the child and then failed to perform the agreement
Will Prove-up
if a will is not self-proved, one of the attesting witnesses must testify that all of the steps of due execution were satisfied
if both attesting witnesses are dead or not located, two witnesses must testify as to the validity of the signature of the testator or either witness
Lost will
a will not produced in court may be admitted to probate if the will proponent establishes: (1) proof of the will’s due execution; (2) testimony must establish the cause of the will’s non-production, sufficient to show that the will cannot be produced after diligent search; and (3) will’s contents must be substantially proved by the testimony of a credible witness who has read the will or heard it read, or who can identify a copy of the will
if a lost will cannot be probated because its contents cannot be established, proof of existence of the will can be shown to establish that it revoked a prior will
presumption of lost will
presumption that if the will was last seen in T’s possession or under his control, and the will cannot be located, that T revoked the will by physical act
presumption disappears if there is evidence that a person adversely affected by the will had access to it
non-surviving spouses
when a husband and wife die within 120 hours of each other, one-half of the CP passes through the wife’s estate, one-half of the CP passes through the husband’s estate
minor beneficiary
a guardian must be appointed to receive and manage his share of the estate
ambiguity
where a will is reasonably capable of more than one meaning and there is no indication of any evidence that would cure the ambiguity, courts rely on rules of construction in ascertaining testator’s probable intent.
there is a strong presumption that one who writes a will intends to completely dispose of his entire estate rather than having any pass by intestacy
where a will is written by a layperson not shown to be familiar with legal terminology, courts are reluctant to place great emphasis on technical terms
Dependent (court supervised) administration
neither easy nor advantageous since it involves substantial court supervision, as most actions require prior court approval. Includes necessary court costs and attorney’s fees
small estate administration
heirs entitled to distribution, without appointment of personal representative, if:
(1) assets exceed liabilities;
(2) 30 days from decedent’s death;
(3) no petition/appointment of representative;
(4) value of non-exempt assets < $50K; AND
(5) compliant small estate affidavit filed and served
