Wills & Estates Flashcards
Preamble
TX will and probate law governs the disposition os assets upon death. TX allows for independent administration. As a result, most estates in Texas are administered w/out ct supervision or involvement.
Actions Personal Representative Must Take When Appointed
- post bond (120 days)
- publish notice (1 mo)
- fie inventory (90 days)
- notice to Bs (60 days)
Valid Holographic Will Requirements
- clear testamentary intent;
- be wholly in testators handwriting;
- signed by T
Ways to Clear Title when no Administration is Necessary
- muniment of tittle (there is will)
- statuary heirship proceeding (there is not will)
- informal or small estate admin
Probate Asset List
- homestead
- checking account
- personal property
- savings account
- goods and home furnishing
- 401K
Non-Probate Assets List
- Ks
- retirement account
- certificate of deposit
- life insurance policy
- EE death benefit
- property held in trust
- bonds
- mortgages
- promissory notes
- securities accounts
Claims Wife Has Above & Beyond Intestacy or Will
- homestead right or 15K;
- family allowance;
- exempt PP up to 60K or 5K cash
Undue Influence Requirements
- existence an execution of influence;
- effect to overpower mind and will of T;
- product of will, but for test
Lost Will Requirements
- duly executed;
- all or substantially all contents;
- cause of non-production rebuttal
Lapsed Gift Meaning & TX Anti-Lapse Statue
- Bs predecease T
- dependents of T’s parents
- Bs Ds take Bs share
Small Estate Administration
- D dies intestate
- estate value (not including homestead) doesn’t exceed $50K
- NO need for appoint of personal rep/admin
- heirs only file an affidavit w/ basis for distribution
Informal Administration
- TX favors this
- available in small and uncomplicated estates
- all Bs agree and judge doesn’t veto
Reasons Independent Administrator Removed for Cause
- failure to file inventory
- failure to give Bs notice
- misapplied or embezzled funds
- failure to make accounting
- gross misconduct or mismanagement
- incompetent or in jail
Personal Rep Priority Appointment
- executor named
- SS
- principal B
- any other B
- Ds next of kin
- creditor
- good character
Options Available for Challenging Validity of Will
- defective execution
- valid revocation
- lack of testamentary capacity
- undue influence
- fraud
- mistake
- T unaware of contents
How to Incorporate Document Into Will
- must exist at time will executed
- intent to incorp
- clearly identify doc
How to be Appointed Independent Executor
- file petition to probate will +
2. ask to be appointment as independent executor
Will Revocation Req
1.
2. physical act + intent (concurrently)
When Independent Admin Available
- will says so
2. all Bs agree
Statutory Heirship Proceeding
- ct order establishes person is dead
- left no will
- survived by ppl named as heirs
- fixes amount of intestate shares
- does not require appt of personal rep
What is a Muniment of Title Proceeding
- estate has no debts
- filed w/in 180 days
- ct determines if will is valid
- no executor and no administration
Way Personal Representative Closes Administration
- file closing report
- verified affidavit
- show property initially received, debts paid, expenses
- names and addys of distributees
- declaratory judgment (optional)
Priority of Claims in Involvement Estate
- funeral expenses and last illness up to $15K
- family allowance
- administration expenses
- secured claims
- child support
- state taxes
- condiment to prison in TX
- medicaid
- others
Priority of Claims in Involvement Estate
- intestate property
- residuary legacies
- general legacies
- specific legacies
Venue to Probate or Administer Will
- where T resided
- where property located
- where T died
Testamentary Capacity Req
- at time of execution
- know nature of act
- know nature of approx value of property
- know natural objects of bounty
- know disposition making
Valid Will Req
- over 18 or married or in army
- testamentary intent
- two witnesses sign
- T signs
