Wills & Estates Administration Flashcards

Question

What is the effect of a person being adopted as an adult?

Answer 1

Inherits from and through the adoptive parents, but NOT from and through her natural parents.

Answer 2

Child may still have some of the rights of an adopted child for purposes of inheritance if she can establish ADOPTION BY ESTOPPEL, sometimes called "equitable adoption."

Answer 3

1) Intestate decedent "foster" parent must have made an AGREEMENT with the child's natural parents (or those in a similar position to adopt the child); 2) Intestate decedent must treat the child AS HIS OWN; AND 3) Also requires child's performance of services to the adoptive parent(s) consistent with a parent-child relationship; The effect of this is that the child can inherit ONLY from the adoptive parent and THOSE IN PRIVITY WITH HIM.

Answer 4

TEXAS: Collateral relatives of the half-blood take ONLY 1/2 of the amount of an estate to which they would be entitled were they relatives of the whole blood. However, if the surviving whole-blood sibling dies without any descendants, then the half-blood sibling takes all.

Answer 5

A decedent's heirs may consist of a multi-generational class of people that take the estate through representation of their parents. TEXAS FOLLOWS PER CAPITA WITH REPRESENTATION

Answer 6

Also known as "modern per stirpes." Here are the steps: 1) First, find at least one person surviving the decedent who is a member of the closest generation entitled to share in the decedent's estate. 2) Then, the living persons in that generation receive one share of the decedent's estate. Also, each deceased member of that same generation who leaves a surviving descendant receives a share as well. The share of the deceased member passes to that member's surviving descendants.

Answer 7

Common Law Advancements - lifetime gifts to a child by a decedent was PRESUMED to be a pre-payment, or advancement, of the child's inheritance. The child bore the burden of proving that the gift was intended as an outright gift rather than as an advancement. TEXAS STATUTORY LAW DOES NOT FOLLOW THE COMMON LAW PRESUMPTION. HOTCHPOT: When a gift constitutes an advancement for purposes of determining the intestate distribution of the decedent's estate, a hypothetical hotchpot is computed by: The portion of the estate (if any) to which the child receiving the advancement is entitled is determined by first computing her share of the hotchpot under the laws of descent and distribution. 1) IF the advancement is LESS than her share of the hotchpot, she receives the difference. 2) IF the advancement is MORE than her share of the hotchpot, she receives NOTHING. EXAMPLE: Estate = 250k. Three kids (A, B, and C). C receives an advancement of $50k. Total estate = 300k with the included advancement (this is the hotchpot). Each child is entitled to $100k (1/3). C's advancement is $50k less then her share of the hotchpot. Thus, C is entitled to the difference ($50k).

Answer 8

If a decedent dies intestate as to all or a portion of her estate, property the decedent gave during her lifetime to a person who, on the date of the decedent's death, is the decedent's heir, OR property received by the decedent's heir under a non-probate transfer, IS AN ADVANCEMENT against that heir's intestate share ONLY IF ON OF THE FOLLOWING IS TRUE: 1) The decedent declared in a CONTEMPORANEOUS WRITING that the gift or transfer is an advancement; 2) The heir acknowledged IN WRITING (no need to be contemporaneous) that the gift or transfer is an advancement; OR 3) The decedent's contemporaneous writing or the heir's written acknowledgment otherwise indicates that the gift or transfer is to be taken into account in computing the division and distribution of the decedent's intestate estate.

Answer 9

IF the recipient of an advancement does NOT survive the decedent, the property advanced IS NOT TAKEN INTO ACCOUNT, UNLESS the decedent's contemporaneous writing provides otherwise.

Answer 10

1) Testamentary Intent (all wills require this); 2) Testamentary Capacity (all wills require this); 3) Writing (all wills in Texas must now be in writing); 4) Compliance with formallities

Answer 11

T must intend to make a testamentary disposition by the specific document that T is executing. Does NOT require that T realize the document is a "will" for purposes of law. T does NOT have testamentary intent if T intends the document to make a PRESENT GIFT or a FUTURE LIFETIME GIFT. EXCEPTION: If the document in question does not purport to make a testamentary disposition but simply appoints an executor or a guardian of T's children as of T's death, it can be valid as a will even though T lacks any intent to effectuate a testamentary disposition by that document.

Answer 12

1) Must be SIGNED by T or someone who signs for T AT T'S DISCRETION AND IN T'S PRESENCE. Any mark intended to serve as the signature of T will suffice. Can appear anywhere on the document, but failure to sign at the end may raise an issue as to whether T's name was intended as a signature. NO REQUIREMENT THAT T SIGN IN FRONT OF A WITNESS. 2) ATTESTATION - if not a holographic will, the will MUST be attested by TWO WITNESSES. The witnesses must subscribe their names to the will IN THEIR OWN HANDWRITING AND IN T'S PRESENCE.

Answer 13

A will may be made self-proved under: 1) Two-step method (traditional) - involves executing a self-proving affidavit in addition to the will; OR 2) One-step method (new) - Requires inclusion in the will of certain language and adherence to an execution ceremony. IF SELF-PROVED, there is no need for witnesses to appear in court to testify concerning the will's due execution for admission to probate.

Answer 14

No literal requirement, but it is good practice to do so. Can help if later wills are made.

Answer 15

Requires that T meet an age (legal capacity) requirement and a mental capacity requirement (testamentary capacity). AGE OR AGE SUBSTITUTE: At the time of execution T must be 18, or be (or have been) married, OR be a member of the U.S. armed forces. MENTAL CAPACITY: At the time of execution, T must be of SOUND MIND. This means that T must have been capable of understanding the following: 1) The act that T is engaged in; 2) The nature and extent of T's property; 3) The persons to whom T intended to devise the property and the natural objects of T's bounty; 4) The mode of distribution among his devisees; AND 5) Sufficient memory to mentally collect these elements, perceive their relation to one another, and form a reasonable judgment concerning them. NOTE: EVEN IF T HAS SOUND MIND, IF THE WILL IS A PRODUCT OF AN INSANE DELUSION, THE WILL CAN BE CONTESTED (may be limited to the portions affected by the insane delusion).

Answer 16

1) AGE - Must be at least 14 years of age. 2) PRESENCE - Must subscribe their names IN T'S CONSCIOUS PRESENCE. This means that T (unless blind) could have seen the attestation from T's actual POSITION OR SLIGHTLY ALTERED POSITION. NO REQUIREMENT THAT THE WITNESSES SIGN OR ATTEST IN EACH OTHER'S PRESENCE 3) NO NEED FOR AWARENESS - Need not know that the document they are attesting is a will.

Answer 17

Interested Witnesses - An interested witness (devisee) does NOT render the will invalid. May mean that the bequest to the witness is void. DEFAULT RULE: A bequest to an interested witness is VOID. EXCEPTION: A bequest to an interested witness is NOT void: 1) If the will can be "otherwise established," such as by the testimony of a disinterested witness to the will (a drafting attorney, fiduciary, or creditor of the testator is not an interested witness unless she is also a legatee under the will); 2) If the interested witness's testimony can be CORROBORATED by a "disinterested and credible person" (not another witness) who testifies to the truth of the witness's testimony; or 3) To the extent of its value not exceeding the share of the estate to which the interested witness would have been entitled had there been no will (i.e., the intestate share--the gift cannot exceed the value of that share).

Answer 18

A holographic will is one made ENTIRELY IN THE HAND-WRITING OF THE TESTATOR. Including typewritten "surplusage" does not negate the validity of a will that is otherwise valid as a holograph. SURPLUSAGE THAT IS TYPEWRITTEN MUST NOT BE NECESSARY TO COMPLETE THE WILL. Filling in blanks on a pre-printed will form by hand is UNLIKELY TO CONSTITUTE A VALID HOLOGRAPH; critical language is likely to be typewritten in these forms. A HOLOGRAPHIC WILL NEED NOT BE WITNESSED. TO BE ENFORCEABLE - All of the other requirements of a will must be met (intent, capacity, T's signature, writing).

Answer 19

Yes if the elements are all met.

Answer 20

Yes, if T attaches to the will an affidavit stating that: 1) The document is a will; 2) T was 18 years of age when T executed it (or that T met the age-substitute requirements); 3) T was of sound mind; AND 4) T has not revoked the will.

Answer 21

THE TWO-STEP METHOD - An affidavit treated as distinct from the will is attached to the will. It is SIGNED BY T AND THE TWO WITNESSES TO THE WILL BEFORE A NOTARY, who then notarizes the affidavit. The affidavit recounts facts establishing prior due execution of the will. This method requires that T publish the will. If either T or the witnesses failed to sign the will, but did sign the self-proving affidavit, the signatures on the affidavit will be treated as though they were on the will itself (HOWEVER THE WILL WILL NOT BE SELF PROVED IF THIS HAPPENS). THE ONE-STEP METHOD - The will is self-proved through execution before a NOTARY of a single document that includes both the traditional form of a will and two clauses recounting facts sufficient to establish due execution. One clause is signed by the T; another clause is signed by the two witnesses; and notary present at execution signs and affixes her seal to the document. T and the witnesses sign only one time. THE ONE-STEP METHOD REQUIRES THE WITNESSES TO SIGN IN EACH OTHER'S PRESENCE AND THAT T SIGN IN THE PRESENCE OF BOTH WITNESSES AND A NOTARY.

Answer 22

These are writings that AMEND a previously executed will. Requirements for executing a valid will apply to codicils. A signed holographic codicil is valid as a typewritten codicil executed with will formalities. A valid holographic codicil can amend a type written will and vice verse. A codicil RE-PUBLISHES THE WILL that it modifies IF republication is consistent with T's intent. This means that the will, as modified by the codicil, is treated as having been executed as of the DATE OF THE CODICIL. Date is important in determining whether a child qualifies as a pretermitted child.

Answer 23

IF executed ON OR AFTER SEPTEMBER 1, 1979: a contract to make or not to revoke a will or devise can be established in two ways: 1) By an enforceable written agreement (ex: premarital agreement); OR 2) By provisions of a will stating that a contract does exist and stating the material provisions of the contract. Merely referring to a contract in a will and supplying extrinsic evidence of the terms of the contract is NOT enough under Texas law. Mere execution of a joint will or reciprocal will does NOT by itself suffice as evidence of the existence of a contract.

Answer 24

Joint Will: A single document executed by two people as the will of each one. Reciprocal Will: Separate wills that have been executed by different people (typically a husband and wife) but that contain provisions that reflect one another.

Answer 25

The intended beneficiary must sue the estate of the breaching decedent in contract and seek remedial relief.

Answer 26

There are THREE METHODS: 1) SUBSEQUENT WRITING - Can be done by a valid new will, codicil, or declaration of revocation. Can be whole OR partial (usually by codicil), express OR implied. INCONSISTENCIES BETWEEN ORIGINAL WILL AND CODICIL ARE RESOLVED IN FAVOR OF THE CODICIL (the inconsistent provisions of the will are REVOKED). Subsequent writing must meet all will requirements. 2) PHYSICAL ACT - Requires that the will has been destroyed or cancelled. Destruction includes burning, obliterating, or tearing. Cancelling a will includes making a mark intended to negate the entire will. MUST BE WHOLE / CANNOT BE PARTIAL. There must be INTENT to revoke, and must be performed BY T or by someone T causes to perform the act IN T's PRESENCE. 3) OPERATION OF LAW - A provision in a will in favor of a person who was T's spouse at the time of execution is effectively revoked by operation of law if T and spouse later divorce, UNLESS the will expressly provides otherwise. T's spouse is treated as if pre-deceasing T. Same rule applies to relatives of T's former spouse, UNLESS that person is also T's relative. Can also occur in the case of many devisees and the presence of pretermitted children. The provision is void, but the REST OF THE WILL IS STILL VALID.

Answer 27

There is a PRESUMPTION that the will has been VALIDLY REVOKED BY T. NOTE: Does not apply if the will was not last seen in the POSSESSION OF T. This is a REBUTTABLE presumption and can be rebutted by: 1) Evidence that a person other than T fraudulently destroyed the will; OR 2) Evidence that T recognized a will's continued validity and continued her affection for the devisees under the will.

Answer 28

If the presumption that it was validly revoked has been rebutted, then a lost will can be probated if the proponent of the will can prove both of the following: 1) The cause of the will's non-production. Must satisfy the court that the will can't be produced by any reasonable diligence; AND 2) The contents of the will. YOU NEED SUBSTANTIAL PROOF to meet this requirement. Must include the testimony of a credible witness who has read the will or a copy, has heard the will read, OR can identify a copy of the will.

Answer 29

Revocation of a codicil to a will DOES NOT REVOKE the will itself, not does it revoke prior codicils. If the sole codicil to a will is revoked, the will is effective as ORIGINALLY WRITTEN. Revocation of a will that has been amended by codicil REVOKES BOTH the will and the codicil. Texas follows the NO-SURVIVOR RULE: A revocation of a subsequent will does NOT revive a previous will that the subsequent will once revoked. Prior will remains revoked UNLESS RE-EXECUTED with the required formalities OR is republished by codicil.

Answer 30

If T revokes a will based on a MISTAKEN ASSUMPTION AS TO THE VALIDITY OF AN ALTERNATE DISPOSITION of property, the revocation may be nullified IF: Doing so results in a disposition that BETTER EFFECTUATES T'S INTENT than the disposition of T's estate that would result from the revocation itself. This is the exception to the No-Survivor Rule. Requires specific circumstances.

Answer 31

Reduction of testamentary gifts necessary to pay the expenses and claims of creditors of T's estate, or to fund other testamentary gifts. Bequests and devises abate in the following order, UNLESS T's will provides for a different scheme: 1) Property not disposed of by will, but passing by intestacy; 2) Personal property of the residuary estate (whatever is left in the estate); 3) Real property of the residuary estate; 4) General bequests of personal property (general bequests first, then demonstrative legacies coming from a specific source); 5) General devises of real property (unclear definition); 6) Specific bequests of personal property (described with particularity such that it is distinguished from T's other property, and T intended for beneficiary to receive that particular item rather than cash or other property from his general estate); 7) Specific devises of real property.

Answer 32

Then there is no abatement to satisfy that debt. Rather, the lien remains classified as a preferred debt and lien against the specific property securing the debt. The specific property securing the debt of a secured creditor passes to the devisee SUBJECT TO THE DEBT. However, a will can change this result by specifically stating that the devise passes without being subject to the debt. A general provision for payment of debts in the will does NOT change this result (does not "exonerate" the lien). IF the secured creditor instead elects to have its claim treated as a MATURED SECURED CLAIM to be paid in due course of administration, it will be paid that way.

Answer 33

PR must sell the property and apply the sales proceeds in payment of the debt.

Answer 34

ESTATE TAXES PR of T's estate must charge EACH PERSON interested in the estate that portion of the total estate tax assessed against the estate that applies to that person's interest. Can be altered by T's will.

Answer 35

Property that is specifically devised or bequeathed that is not in T's estate as of T's death. That property is considered to have "adeemed." EFFECT: Beneficiary TAKES NOTHING.

Answer 36

Texas courts won't apply ademption when T'S INTENT AS EXPRESSED IN THE WILL indicates that T does not intend for a specific bequest or devise to adeem.

Answer 37

Unless T's will provides otherwise, a devise of securities that are owned by T when she executes the will also includes: Securities subsequently acquired by T by way of stock split, stock dividends, a reorganization, a redemption, an exchange, a merger or another form of corporate reorganization.

Answer 38

Extinction - Property doesn't exist anymore in the estate. Satisfaction - Property is no longer in the estate because it was given ahead of time to the intended beneficiary.

Answer 39

IF: 1) T's will provides for deduction of the lifetime gift; 2) T declares in a CONTEMPORANEOUS WRITING that the lifetime gift is to be deducted from or is in satisfaction of the devise; OR 3) The devisee acknowledges in writing that the lifetime gift is in satisfaction of the devise.

Answer 40

Lapse - If a devisee of any gift other than a residuary gift fails to survive T, her gift lapses and falls into the residuary of T's estate. TEXAS ANTI-LAPSE STATUTE - If a devisee is: 1) A descendant of one of T's parents; AND 2) The devisee fails to survive T (or is treated as not surviving T under the 120-hour rule); THEN 3) THE GIFT DOES NOT LAPSE IF: The descendants of the devisee survive T by 120 HOURS. Those descendants take the gift in place of the named devisee. IF the descendants consist of MULTI-GENERATIONAL CLASS, more remote descendants take their shares by representation (per capita with representation (modern per stirpes) method that applies in intestacy).

Answer 41

1) Residuary devises, general legacies, specific devises, and demonstrative gifts. 2) Class gifts, except in the case of a class member who was deceased at the time of the execution of the will. NOTE: If there are two or more residuary devisees under T's will, and one of the residuary devises fails, the remaining residuary devisees share the failed gift, UNLESS the anti-lapse rule applies.

Answer 42

Words of a document not present at the will's execution may be incorporated into the terms of the will. REQUIREMENTS: 1) Documents must be in EXISTENCE at the time of the will's execution; 2) Will must manifest intent to incorporate the terms of the document; AND 3) Will must clearly IDENTIFY the document intended to be incorporated by reference.

Answer 43

False This would destroy the "entirely in T's handwriting" requirement.

Answer 44

Every piece of paper present at the time and place of the execution of a will and intended to be part of the will is INTEGRATED into the will. To avoid confusion as to what papers are intended to be part of a will: 1) T and the witnesses should INITIAL each numbered page of the will; AND 2) The pages of the will should be in the same style and size font and stapled together.

Answer 45

Although a disposition in a will cannot be fully ascertained from the terms of the will alone, the will may dispose of property or identify devisees by reference to facts, such as acts and events, that have significance apart from dispositions made by the will. SPECIAL EXCEPTIONS: 1) A legacy of personal property does not include any contents inside of it (chest filled with other property) unless the will states otherwise.. 2) A devise of real property does not include any personal property located on or associated with the real property or any contents of personal property located therein, unless the will states otherwise.

Answer 46

Courts purport to focus on T's intent. Words of the will are controlling in determining T's intent. PLAIN MEANING RULE: A plain meaning in a will CANNOT be altered by the introduction of extrinsic evidence that another meaning was intended. Extrinsic evidence cannot create an ambiguity in a will when the words used are unambiguous. Courts in Texas are willing to consider extrinsic evidence whether the ambiguity is patent or latent.

Answer 47

THIS IS UNDER THE "TEXAS SLAYER STATUTE" Court can impose a CONSTRUCTIVE TRUST on property received from a decedent's estate by an heir or devisee who killed the decedent. Forfeiture of life-insurance proceeds where a named beneficiary has been convicted as a principal or accomplice in the willful homicide of the insured.

Answer 48

A disclaimer to accept an interest or power to which the disclaimant is otherwise entitled to by will or intestacy.

Answer 49

Any person who may be entitled to receive any property as a beneficiary and who intends to effect disclaimer irrevocably.

Answer 50

If a person is entitled to receive property, the following representatives of the person can also disclaim the property on her behalf: 1) Guardian of an incapacitated person, PR of deceased person, or guardian ad litem of an unborn or unascertained person, WITH PRIOR COURT APPROVAL; 2) The independent executor of a deceased person, WITHOUT PRIOR COURT APPROVAL; 3) The attorney in fact or agent appointed under a durable power of attorney, if authorized by the power.

Answer 51

Effective as of the death of the decedent. Relates back for all purposes to the decedent's death. NOT subject to the claims of any creditor of the disclaimant. Unless the decedent's will provides otherwise, the property subject to the disclaimer passes as if the person disclaiming had predeceased the decedent.

Answer 52

Used to avoid creditors and transfer taxes (except in the case of a FEDERAL TAX LIEN. RECENT TEXAS RULE: If there is an ADJUDICATION OF CHILD SUPPORT ARREARAGES, THE DISCLAIMER IS INEFFECTIVE.

Answer 53

Yes, they can be in whole or in part.

Answer 54

Must be evidenced by a WRITTEN MEMORANDUM and acknowledged before a notary public. MUST BE FILED NOT LATER THAN 9 MONTHS AFTER THE DEATH OF THE DECEDENT. This is done in probate court. A copy of the memorandum must be delivered IN PERSON OR MAILED BY REGISTERED OR CERTIFIED MAIL TO THE PR OF THE DECEDENT'S ESTATE WITHIN 9 MONTHS OF THE DECEDENT'S DEATH.

Answer 55

The purported disclaimer functions as an assignment of the property to those who are entitled to take in the event that the person trying to disclaim had pre-deceased the decedent.

Answer 56

Yes in probate court if the child is under 18, the parent cannot inherit if the court finds by CLEAR AND CONVINCING EVIDENCE that the parent has: 1) Voluntarily abandoned and failed to support the child for at least THREE YEARS before the date of the child's death; 2) Voluntarily, with knowledge of the pregnancy, abandoned the mother of the child from pregnancy until birth and did not support the child from birth; OR 3) Convicted or has been placed on community supervision, for being CRIMINALLY responsible for the death or serious injury of a child, if the conduct caused the death or serious injury (can be any child). The Parent is treated as if they predeceased the child.

Answer 57

VOID UNLESS the bequest is made to T's spouse, ascendant, descendant, or a person related within the third degree of consanguinity to T. ALSO VOID if to the attorney's parent, descendant, OR EMPLOYEE. Gift will NOT be deemed void as to a bona fide purchaser for value from a devisee.

Answer 58

1) Lack of capacity 2) Undue Influence or Duress 3) Fraud 4) Failure to Comply with Execution Formalities

Answer 59

T must have general mental capacity when the will was executed (no insane delusions). For Insane Delusions: 1) Causation Required - If a person suffers from an insane delusion, any part of the will CAUSED by the insane delusion FAILS. If the insane delusion causes T to execute the ENTIRE WILL, the entire will FAILS. 2) Nature of Insane Delusion - Must be a belief of a state of supposed facts that do not exist and which no RATIONAL PERSON would believe. A mere conviction resulting from illogical reasoning from the facts does NOT constitute an insane delusion. Further, a SUBJECTIVE BELIEF that cannot be established as factually true or false CANNOT be considered an insane delusion.

Answer 60

Undue Influence / Duress - CONTROL was exercised OVER T'S MIND such that it OVERCAME HER FREE AGENCY AND FREE WILL and substituted the will of another to CAUSE T to do what she would not have done BUT FOR SUCH CONTROL. There are THREE ELEMENTS: 1) The existence and exertion of influence (MERE OPPORTUNITY TO INFLUENCE IS NOT ENOUGH); 2) The influence must overpower T's mind; AND 3) The influence CAUSES T to execute a will (or provision in a will) that T would not have executed in the absence of the influence. DIFFERENCE BETWEEN UI AND DURESS - UI is mental coercion, whereas duress is typically physical coercion, such as force or threats of force. THE LEGAL CONSEQUENCES OF BOTH ARE THE SAME.

Answer 61

Court MAY INVALIDATE the entire will, if necessary to properly effectuate T's intent. Many jurisdictions - a court may strike portions of a will that are the product of UI, if the rest of the will properly carries out T's intent. There is authority for the proposition that UI may invalidate revocation of a will. There is also authority that if UI has prevented T from making a will, a CONSTRUCTIVE TRUST may be imposed on those who are unjustly enriched by the disposition from UI.

Answer 62

Exists when someone intentionally misrepresents facts to T with: 1) The PURPOSE OF CAUSING T to take action in a will, AND 2) With the result that T TAKES ACTION that he/she would not have taken BUT FOR the misrepresentation. There are TWO TYPES OF FRAUD: 1) Fraud in the Execution (fraud in the factum) - T has been deceived with respect to the contents or character of the will, with the result that the will does not carry out T's intent (imagine being tricked into signing a will). 2) Fraud in the Inducement - Person misrepresents the facts, and that misrepresentation causes T to execute a will, to include certain provisions in the will, to revoke or refrain from revoking a will, or not to execute a will. CONSEQUENCES - If only one or more provisions in a will are affected, there is authority that ONLY those provisions will be invalidated. IF the fraud goes to the WHOLE WILL, the entire will should be invalidated. COURT MAY IMPOSE A CONSTRUCTIVE TRUST IF THE WILL WAS NOT CREATED AND DOING SO WOULD BEST CARRY OUT THE TESTATOR'S INTENT.

Answer 63

TWO YEARS from the date of the will's admission to probate. IF FRAUD OR FORGERY, TWO YEARS AFTER the discovery of such forgery or fraud. IF INCAPACITATED (minors) - TWO YEARS AFTER the removal of their disabilities. FOR A WILL CONSTRUCTION SUIT - FOUR YEARS from the date an actual controversy has occurred.

Answer 64

Testamentary Capacity Issues - If raised when the will is FIRST offered for probate, the PROPONENT of the will bears the burden of proving capacity, even if the will is self-proved. If raised SUBSEQUENT to the admission of the will into probate, the CONTESTANT bears the burden of proving the absence of testamentary capacity. Undue Influence / Duress / Fraud Issues - The CONTESTANT or party opposing admission of the will to probate bears the burden of proving undue influence and fraud.

Answer 65

Persons interested in the estate. "Interested Person" - Heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate. REQUIRES that the person have a FINANCIAL INTEREST in order to contest a will. A person also has standing to challenge a will IF she was a devisee under a PRIOR WILL that the challenged will revoked. Finally, an interested person also includes anyone interested in the welfare of an incapacitated person, including a minor (this would be someone like a guardian).

Answer 66

A no-contest clause provides that a devisee forfeits any amount to which he is entitled under a will should he contest the will. GENERALLY ENFORCED IN TEXAS. EXCEPTION: A provision in a will that would cause a forfeiture of a devise or provision in favor of a person for bringing any court action, including contesting a will, is UNENFORCEABLE IF the person bringing the action contrary to the forfeiture clause establishes the following by a PREPONDERANCE OF THE EVIDENCE: 1) JUST CAUSE existed for bringing the action; AND 2) The action was brought and maintained in GOOD FAITH. NOTE: THE PRESUMPTION IS IN FAVOR OF ENFORCING THE NO-CONTEST CLAUSE.

Answer 67

TEXAS RECOGNIZES NO ELECTIVE SHARE, or forced share, of H's estate to which an SS is entitled. HOWEVER, don't confuse elective share with the "widow's election" will.

Answer 68

H by will purports to transfer the entire CP in trust, giving W an income interest for life. The transfer of CP in trust is EFFECTIVE UNDER TX LAW IF W CONSENTS. When W dies, her estate will NOT include the property now held in trust, including the portion that was once her half of the CP.

Answer 69

H has the burden of proving that the gift is NOT constructive fraud.

Answer 70

If constructive fraud is found, a court will set aside the gift. COURT EXAMINES: 1) The size of the gift in relation to the total size of the community estate; 2) The adequacy of the estate remaining to support W in spite of the gift; AND 3) The relationship of the donor to the donee.

Answer 71

TEXAS ESTATES LAW recognizes NO concept of quasi-community property in contexts not involving divorce. H's SP consisting of accumulated earnings from wages earned during marriage domiciled in another state REMAINS H'S SP when H and W later move to TX and H dies.

Answer 72

Spouse of an employee entitled to receive benefits under a private pension plan governed by ERISA has SURVIVORSHIP RIGHTS to benefits when the employee spouse dies first. If the first spouse who predeceases the employee spouse was the person listed under the pension fund under ERISA, the second wife (the SS) has rights that supersede the rights of the predeceased first wife.

Answer 73

1) A right of occupancy by the SS and any minor children. The decedent's SS is entitled to occupy the homestead for the life of the SS (minors until they are no longer minors or until SS moves out or dies). 2) A right of an heir or devisee to receive TITLE to the decedent's homestead FREE FROM THE CLAIMS of many of the decedent's creditors. Rights of heirs and devisees are SUBJECT TO the rights of the SS and minor children.

Answer 74

1) Purchase money liens; 2) Tax liens; 3) Owelty of partition liens; 4) Liens based on refinancing of valid liens against the homestead; 5) Mechanic's and materialman's liens; 6) Liens arising from home equity loans; AND 7) Reverse mortgages.

Answer 75

Then an allowance in lieu of homestead may be awarded by a court, up to $45,000. The allowance is DISCRETIONARY with the court. It is based on the needs of the family's maintenance for ONE YEAR FROM DECEDENT'S DEATH. NO ALLOWANCE: 1) To the SS if SS has sufficient property for her maintenance; 2) To the children if children have sufficient property for their maintenance; or 3) To adult incapacitated children of the decedent if the decedent was NOT supporting them at the time of death. COURTS LOOK TO THE FAMILY'S STANDARD OF LIVING.

Answer 76

GENERALLY NO. EXCEPTIONS: 1) When the estate is INSOLVENT - Those still alive retain the right to receive exempt personal property. 2) When the estate is SOLVENT - Those still alive are entitled to USE exempt property WHILE the estate is being ADMINISTERED.

Answer 77

YES A child of T born or adopted AFTER the execution of T's will is a pretermitted child. RULE: MAY take a share of T's estate as a pretermitted child. Texas statute applies ONLY to T's child, NOT to an issue of T's child. It has been held that this COVERS NON-MARITAL CHILDREN, IF the child would be entitled to take an intestate share of T's estate. AMOUNT depends on a number of factors: 1) Is the child under consideration mentioned in T's will, provided for in the will, or otherwise provided for by T? If so, CHILD TAKES NOTHING. INCLUDES NON-PROBATE TRANSFERS AT DEATH, BUT NOT LIFETIME GIFTS. 2) Did T have any children when the will was executed? If not, pretermitted child succeeds to the portion of T's separate and community estate to which the child would have taken had T died intestate, without a SS; and owning ONLY that portion of the estate NOT devised or bequeathed to the other parent of the pretermitted child. 3) Did T have other children when the will was executed and provide for them in the will? If so, portion of T's estate is limited to the disposition made to the children under the will. The child receives an equal share as the other children. 4) Did T have other children when the will was executed but NOT provide for them in the will? If so, child succeeds to the portion of T's SP and CP to which the child would have received had T died intestate, without a SS, and owning only that portion of his estate not devised or bequeathed to the other parent of the child. 5) Is T's SS the other parent of the pretermitted child? If not, the portion of T's estate to which the child is entitled may not reduce the portion of T's estate passing to T's surviving spouse by more than 1/2 (so child gets 1/2 of H's 1/2 CP share and 1/2 of H's SP).

Answer 78

True. A will that is not admitted to probate is ineffective to evidence title to property.

Answer 79

Yes if creditors can be paid by a family member and the decedent's assets consist of UNTITLED property to be distributed in accordance with an agreement between the heirs of the decedent.

Answer 80

1) A court with probate jurisdiction must be petitioned to appoint a Personal Representative for the estate. The court then issues letters testamentary to the PR when T died with a will. Alternatively, the court issues letters of administration to the PR if the decedent died without a will. 2) All applications for the letters must be filed WITHIN FOUR YEARS of the death of the decedent. EXCEPTION: When administration is necessary to recover funds or other property due to the estate of the decedent. 3) No will can be admitted to probate after a lapse of FOUR YEARS from the death of the T.

Answer 81

There is an exception to the SOL if a person applying for probate can prove that he or she was not in default in failing to present the will for probate within four years. NO LETTERS TESTAMENTARY WILL BE ISSUED. INSTEAD, PROCEDURE IS KNOWN AS ADMITTING THE WILL AS A MUNIMENT OF TITLE.

Answer 82

1) Provide the required statutory notices to creditors and beneficiaries; 2) Collect assets; 3) File an inventory of assets with the court; 4) Pay creditors and expenses of administration; 5) Distribute assets to devisees or heirs; AND 6) File any necessary reports with the court.

Answer 83

If there is no Statutory Probate court and no County Court at Law, then the Constitutional County Court has original jurisdiction of probate proceedings. If the matter is contested in Constitutional County Court, the judge may on his own motion or shall on the motion of any party request the assignment of a Statutory Probate Court judge to hear the contested matter OR transfer the matter to the district court. If there is a county court at law, the CCL and the CCC have concurrent original jurisdiction. CCC can transfer contests to CCL on its own motion or must do so on the request of a party. IF THERE IS A STATUTORY PROBATE COURT, THAT COURT HAS ORIGINAL AND EXCLUSIVE JURISDICTION OF ALL PROBATE PROCEEDINGS, REGARDLESS OF WHETHER CONTESTED OR UNCONTESTED.

Answer 84

Proper venue depends on whether the decedent was a Texas resident. 1) Resident - County where decedent resided. 2) Non Resident Who Died In Texas - If decedent died in Texas, proper venue is in the county where a decedent's principle estate was at the time of death OR in the county where the decedent died. 3) Non Resident Who Died Outside of Texas - Any county in Texas where the decedent's nearest of kin resides, OR if there are none, then in the county where the decedent's principal estate was situated at the time of death.

Answer 85

1) Executor named in the will or any interested person, may make application to the court for an order admitting a will to probate. 2) Executor named in the will or any interested person, may make application to the court for the appointment of the executor named in the will. 3) An interested person may also make application to the court for the appointment of an administrator, if: (a) no executor is designated in the will; (b) executor named is disqualified, refuses to serve, is dead, or resigns; OR (c) if there is no will.

Answer 86

Any person interested in an estate. An opposition to probate the will must be filed PRIOR TO the will's admission to probate. Doing so after admitted into probate is a will contest (not an opposition to probate).

Answer 87

A court will grant letters testamentary or of administration to persons who are qualified to act, in the following order: 1) Named executor in the will; 2) SS; 3) Principle devisee; 4) Any devisee; 5) Any next of kin of the deceased (nearest in order of descent first); 6) Creditor of the deceased; 7) Any person of good character residing in the county who applies for the letters; 8) Any other person not disqualified to serve under the TEC; 9) Any appointed public probate administrator. If there is more that one person equally qualified, the court will choose whoever is most likely to administer the estate well.

Answer 88

1) Incapacitated person; 2) Convicted felon (unless pardoned); 3) Nonresident natural person or corporation who has NOT appointed a resident Texas agent to accept service of process; 4) Corporation not authorized to act as a fiduciary in Texas; 5) Any person whom the court finds to be UNSUITABLE.

Answer 89

Type Written Wills - Unless self-proved, it must be proved by sworn testimony or affidavit of one or more of the subscribing witnesses OR by sworn deposition testimony of one or more witnesses. If no contest or no witnesses are alive, a witness can testify as to the handwriting of the attesting witnesses and/or of T. Self-Proved Wills - can be admitted without the testimony of witnesses regarding its due execution. Must have prima facie evidence of its having been duly executed. An opponent of the will can offer evidence that overcomes the presumption of due execution. Self-Proved Will from another State or Foreign Country - if self-proved in accordance with laws of the state or country when executed, treated as self-proved under Texas law. Holographic Wills - If NOT self-proved, may be proved by TWO witnesses to T'S HANDWRITING.

Answer 90

Applicant must prove to the SATISFACTION of the court that: 1) Decedent is dead and that FOUR YEARS HAVE NOT ELAPSED since his death and prior to the application; 2) The court has jurisdiction and venue over the estate; 3) The citations have been served and returned; AND 4) The person for whom letters testamentary or of administration are sought is entitled by law and is not disqualified. ADDITIONAL PROOF NECESSARY FOR PROBATE OF A WILL: 1) If not self-proved, that T, at the time of executing the will, was at least 18 years of age and of sound mind; 2) If not self-proved, that T executed the will with the formalities and solemnities and under the circumstances required by law to make it a valid will; AND 3) T had not revoked the will. ADDITIONAL PROOF FOR ISSUANCE OF LETTERS TESTAMENTARY: 1) Must show the court that the person whom the letters are to be granted is NAMED as executor in the will. ADDITIONAL PROOF FOR ISSUANCE OF LETTERS OF ADMINISTRATION: 1) Must prove to the satisfaction of the court that there exists a NECESSITY for an administration of the estate.

Answer 91

Letters Testamentary - BEFORE THE 21ST DAY after the will has been probated. Letters of Administration - Granted by the court if it determines that a necessity for administration exists in the following cases: 1) When a person dies intestate; 2) When no executor is named in a will; 3) When the executor is deceased; 4) When the executor fails to accept and qualify before the 21st day after probate of the will; 5) When the executor fails to present the will for probate within the 31ST DAY after the death of T and the court finds NO GOOD CAUSE for no presenting the will for probate during that period. Letters CONTINGENT on Qualification of PR are delivered by the clerk to the PR.

Answer 92

1) Two or more debts exist against the estate; 2) Desire for court to partition the estate among the distributees; 3) Administration is necessary to receive or recover funds or other property due the estate; OR 4) Court determines that another reason justifies administration.

Answer 93

OATH AND BOND Deemed qualified when PR has: 1) Taken and filed the required oath; and 2) Filed the required bond with the clerk. MUST BE DONE BEFORE THE 21ST DAY AFTER DATE OF ORDER GRANTING LETTERS TO PR. BOND REQUIREMENT DOES NOT APPLY IF: 1) The will states that no bond is required of the executor (very common); OR 2) PR is a corporate fiduciary. An interested person can still petition the court to require PR to make bond, and court will do so if the court finds that the executor has been mismanaging the estate so as to harm creditors or devisees. If bond is required - court sets the amount of bond AS IS NECESSARY TO PROTECT CREDITORS AND THE ESTATE. If the PR is entitled to ALL of the decedent's estate after payment of debts, the required bond is only that amount which is sufficient to protect creditors.

Answer 94

If the court finds that the PR managed the estate prudently, the PR is entitled to receive a commission of 5% on the amounts they receive in cash and pay out in cash. NOTE: The 5% statutory commission cannot exceed 5% of the gross fair market value of the estate subject to administration. The court can INCREASE PR's compensation if it finds: 1) Default compensation is UNREASONABLY LOW; OR 2) PR manages a farm, ranch, factory, or other business of the estate. Also, T, by will, can set the executor's compensation - in which case there is no 5% rule to be applied.

Answer 95

Standard of Care - PR must take care of the property of the estate as a PRUDENT person would take OF HIS OWN PROPERTY. Must keep any buildings in GOOD REPAIR, extraordinary casualties excepted, unless directed not to do so by an order of the court. Duty to Collect and Protect - PR must collect and take into possession the personal property, record books, title papers, and other business papers of the estate. Must deliver the same to the people entitled them when the administration has been closed or a successor has received letters.

Answer 96

Not later than the 60TH DAY after the date of an order admitting a decedent's will to probate, PR must provide a statutory notice to each beneficiary named in the will whose identity and address are KNOWN to the PR, or through reasonable diligence can be ascertained. CONTENT: 1) Must notify the beneficiary and decedent; 2) Inform the beneficiary that he is named in the will and that it was admitted to probate; 3) Provide the PR's contact information; AND 4) Provide a copy of the will or a summary of the beneficiary's gifts under the will.

Answer 97

Within ONE MONTH after receiving letters, PR must provide notice requiring each person who has a claim against the estate to present the claim in the statutory period. HOW? - By publishing the notice in the newspaper printed in the county where the letters were issued, or, by posting the notice (if there is no new paper). Sending notice to the comptroller by certified or registered mail if the decedent remitted or should have remitted taxes administered by the comptroller. CONTENT: 1) Date the letters were issued; 2) Address to which the claim may be presented; AND 3) Instruction that the claim be addressed in care of the PR. PR MUST FILE A COPY OF THE PUBLISHED NOTICE AND THE PUBLISHER'S AFFIDAVIT.

Answer 98

Unsecured Creditors - At any time before estate administration is closed, the PR MAY GIVE NOTICE by certified or registered mail, return receipt requested. Notice must state creditor must present the claim BEFORE THE 121ST DAY after the receipt of the notice or the claim is BARRED. Content is same as general notice. Secured Creditors - MANDATORY NOTICE WITHIN 2 MONTHS after receiving letters. PR must give notice of the issuance of the letters to each person known to the PR to have a claim for money against the estate secured by the estate property. Within a reasonable time after PR learns of a secured claim to whom notice was NOT previously given, the PR must give notice of the issuance of letters.

Answer 99

Before the 91ST DAY after the PR's qualification, PR must prepare and file with the clerk of court a single instrument with a verified, full, and detailed inventory of all the property of the estate which has come into the PR's possession or knowledge. Includes all real property of the estate situated in Texas and all personal property of the estate wherever situated. MUST specify what portion of the property is SP and what is CP.

Answer 100

The PR must set out in the inventory her appraisement of the FMV of each item as of the date of death. If the court appoints an appraiser, the PR must determine the FMV of each item of the inventory with the assistance of that appraiser.

Answer 101

PR must attach to the inventory a complete list of all claims due or owing to the estate, which must state: 1) The name of each person indebted to the estate and his address when known; 2) The nature of the debt; 3) The date of the indebtedness and when it was or will be due; 4) The amount of each claim; AND 5) Whether the claim is SP or CP.

Answer 102

If there are NO UNPAID DEBTS, except for secured debts, taxes, and administration expenses, at the time the inventory is due, an INDEPENDENT EXECUTOR MAY FILE with the court clierk, in lieu of the inventory, appraisement, and list of claims, an AFFIDAVIT stating that all debts, except for secured debts, taxes, and administration expenses, are paid AND that all beneficiaries have received a verified, full, and detailed inventory. MUST BE FILED WITHIN THE 90 DAY PERIOD FOR FILING INVENTORIES. RECENT STATUTORY AMENDMENT authorizes this.

Answer 103

IF WITHOUT GOOD CAUSE, PR CAN BE FINED AN AMOUNT NOT TO EXCEED $1,000.

Answer 104

SS is entitled to retain possession and control of all CP that was under her sole management during the marriage. HOWEVER, SS may, by WRITTEN INSTRUMENT filed with the clerk, waive this right, enabling the PR to administer the entire community estate. If spouse dies intestate and the CP passes to the SS, no administration of CP is necessary.

Answer 105

Yes, the PR must apply to do so with the court and file a final account of the condition of the estate. Court may accept the resignation and appoint a successor PR. Court will NOT discharge the resigning PR or release her on her bond until a final order is issued or a judgment on her final account.

Answer 106

1) Independent; 2) Dependent' 3) Small Estates; and 4) Temporary.

Answer 107

Action without court approval This method requires little court supervision. Unless TEC provides otherwise, an Independent Executor may take any action with or without a court order. NOTE: Independent Administrator has the same power. After inventory is filed, any action by an IE shall not be had in the court EXCEPT where the TEC specifically and explicitly provides for some action in court.

Answer 108

Unless limited by the terms of the will, an IE or IA have the power of sale for the same purposes as a PR has in a dependent administration, but WITHOUT the requirement of court approval. Procedural requirements applicable to a dependent administration do not apply here.

Answer 109

Court may include a grant of authority in the PR to sell real property, if the beneficiaries with an interest CONSENT to this in their application for independent administration or in their consents to the independent administration.

Answer 110

1) By will - "NO other action shall be had in the probate court in relation to the settlement of his estate than the probating and recording of his will, and the return of an inventory, appraisement, and list of claims of his estate." MERELY DESIGNATING THE PR AS IE IS GOOD ENOUGH. 2) Agreement by Beneficiaries - ALL of the distributees may agree and COLLECTIVELY designate that the executor named in the will serve as IE and that the administration be independent. Court will allow this as long is it is in the BEST INTERESTS OF THE ESTATE. If no executor in will, there can be a collective agreement to designate a qualified person, firm, or corporation to serve as IE. 3) Agreement of Heirs - All distributees may follow the same process as beneficiaries would under a will. Court may NOT appoint IA unless and until all heirs have been determined.

Answer 111

In general, duties governing PRs apply to IEs, including duty of care, collection, and notification to beneficiaries and creditors. Treatment of Claims - IE may approve or reject claims against the estate and must classify and pay claims approved in the same order provided in TEC. Treatment of Exempt Property - IE must set aside and must deliver to those entitled, exempt property and allowances for support and allowances in lieu of exempt property.

Answer 112

NO ANNUAL ACCOUNTING REQUIRED. AFTER 15 MONTHS from the date that the court clerk first issues letters to the PR, any person interested in the estate MAY DEMAND AN ACCOUNTING FROM THE IE. Only ONE accounting can be demanded EVERY 12 MONTHS after the initial accounting. Petition for Accounting - any time after the expiration of TWO YEARS from the date that letters were issued, a person interested in the estate may petition the probate court for an accounting and distribution. Court may order an accounting to be made by the IE at such time as the court deems proper.

Answer 113

Unless the court finds a continued necessity for administration of the estate, the court will ORDER ITS DISTRIBUTION by the IE to the persons entitled to the property. If the court finds a continued necessity for administration, the court will order the distribution of any portion of the estate that the court finds should not be subject to further administration. IF ALL PROPERTY IS ORDERED DISTRIBUTED by the executor and the estate is fully administered, the Court may order the IE to file a FINAL ACCOUNT with the court and may enter an order closing the administration and terminating the power of the IE.

Answer 114

IE must distribute any of the remaining assets after all debts have been paid, except for a reasonable reserve of assets that the IE may retain in a fiduciary capacity pending court approval of the final account.

Answer 115

Yes for the following reasons: 1) Failure to comply with statutory duties; 2) Incapacity; OR 3) Becoming incapable of properly performing fiduciary duties due to a material conflict of interest.

Answer 116

IE may file an action for declaratory judgment seeking to discharge the IE from any liability involving matters relating to the past administration of the estate that have been fully and fairly disclosed. Each beneficiary must be personally served with citation. Court may require the IE to file a FINAL ACCOUNT.

Answer 117

All debts have been paid, no pending, litigation, and IE has distributed all assets remaining. IE may file a CLOSING REPORT OR A NOTICE OF CLOSING OF THE ESTATE. Closing TERMINATES the power and authority of the IE, and persons dealing with properties of the estate, or with claims against the estate, must deal directly with the distributees of the estate.

Answer 118

PR takes the same general actions as an IE, except the PR is required to obtain COURT APPROVAL before taking any actions. Duties governing all PRs apply to administrators of dependent administration.

Answer 119

If a probate judge determines that the interest of the decedent's estate requires the IMMEDIATE appointment of a PR, he shall by written order, appoint a temporary administer with LIMITED POWERS. DURATION - Must be specified and MAY NOT EXCEED 180 DAYS, unless made permanent. APPROPRIATE WHEN necessary to PRESERVE the estate, such as to prevent stealing or some imminent harm, or to respond in a legal action against the estate.

Answer 120

Quick form of administration of an INTESTATE ESTATE when the value of estate assets, not including the homestead and exempt property, DOES NOT EXCEED $50,000. NOT AVAILABLE FOR NON-HOMESTEAD REAL PROPERTY. There must be an AFFIDAVIT FOR TRANSFERRING HOMESTEAD - Title to a decedent's homestead, that is the only real property in a decedent's estate, may be transferred on an affidavit. Must be recorded in the deed records of a county in which the homestead is located.

Answer 121

It is possible then to obtain a court order dispensing with the need for administration. Procedure - SS, minor children, or adult incapacitated children must file an application requesting that the court make a family allowance and enter an order that no administration is necessary. EFFECT - Order constitutes sufficient legal authority for payment or transfer of property without administration to persons entitled to receive the estate.

Answer 122

If the expenses of the decedent's last illness, funeral charges, and expenses of the proceeding have been paid or secured, the court will: 1) Make a family allowance; AND 2) If the entire assets of the estate, not including homestead and exempt property, are thereby exhausted, the court will order that there be no administration, and will assign to the SS, minor children, and adult incapacitated children the ENTIRE ESTATE.

Answer 123

Generally, a creditor must present its claim to the PR at any time before the estate is closed, unless suit is barred by the general statute of limitations. EXCEPTION: An UNSECURED creditor's claim for money MUST BE PRESENTED WITHIN 4 MONTHS OF THE CREDITOR'S RECEIPT OF THE OPTIONAL NOTICE.

Answer 124

In an AFFIDAVIT authenticating the claim must state: 1) Claim is just - satisfied if affiant states that the affiant has made diligent inquiry and examination and believes the claim is just.; 2) All legal offsets, payments, and credits have been allowed; AND 3) The facts on which the claim is founded (if not based on written instrument). In IA - Creditor's notice of claim must appear in one of the following forms: 1) Written instrument complying with affidavit requirements for authenticating claims that is hand delivered or mailed by certified mail; 2) In a pleading filed in a lawsuit with respect to the claim; OR 3) In a pleading or written instrument that complies with requirements for affidavits authenticating claims that is filed in probate court.

Answer 125

WITHIN SIX MONTHS after the date letters are granted to the PR OR WITHIN FOUR MONTHS after the date notice is received by the creditor (whichever is LATER). Creditor must notify the PR to have creditor's claim approved as a: 1) Matured secured claim to be paid in due course of administration; OR 2) Preferred debt and lien on the specific piece of property. NOTE: If an IA, creditor must also record a notice of the creditor's election to have the claim approved as a matured secured claim in the deed records of the county in which the real property is located.

Answer 126

Out of the general assets of the estate. CLAIM IS SUBORDINATED TO PAYMENT OF THE FIRST $15,000 OF FUNERAL AND LAST ILLNESS EXPENSES, FAMILY ALLOWANCE, AND EXPENSES OF ADMINISTRATION.

Answer 127

Property passes to the devisee entitled to take it SUBJECT TO THE DEBT. If the PR or distributee fails to pay according to the terms of the debt, the creditor can look only to the property securing the debt for payment. Creditor CANNOT reach other assets of the estate.

Answer 128

1) IA - If the IE rejects the claim, creditor must simply bring suit against the IE before the expiration of the normal SOL. 2) DA - If PR rejects claim (inaction on the claim by the PR for 30 days is rejection), the creditor must bring suit on the claim in the probate court WITHIN 90 DAYS OF THE REJECTION, or else the claim is barred.

Answer 129

The TEC states that claim against the estate have the following priority of payment: 1) Class 1 - Funeral expenses and expenses of last sickness for a reasonable amount to be approved by the court, NOT TO EXCEED $15,000, with any excess to be classified and paid as OTHER UNSECURED CLAIMS. 2) Class 2 - Expenses of administration and expenses incurred in the preservation, safekeeping, and management of the estate, and unpaid expenses of administration awarded in a guardianship of the decedent. 3) Class 3 - Matured secured claims, including state tax liens. These are paid in order of their priority. 4) Class 4 - Claims for the principal amount of and accrued interest on delinquent child support and child support arrearages that have been confirmed AND reduced to money judgment, and claims for unpaid child support obligations. 5) Class 5 - Claims for state taxes, penalties, and interest. 6) Class 6 - Claims for the cost of confinement established by the Texas Department of Criminal Justice. 7) Class 7 - Claims for repayment of medical assistance payments made by the state to or for the benefit of the decedent. 8) Class 8 - All other claims. FEDERAL CLAIMS HAVE PRIORITY OVER ALL DEBTS OF THE DECEASED DEBTOR EXCEPT FUNERAL EXPENSES, ADMINISTRATIVE EXPENSES, AND FAMILY ALLOWANCE.

Answer 130

When there is a deficiency of assets to pay all claims of the same class, OTHER THAN SECURED CLAIMS FOR MONEY, the claims in that class must be paid PRO RATA.

Answer 131

When administration of an estate is unnecessary or unavailable, a will can be probated as a muniment of title. This enables devisees to receive GOOD TITLE to real property and certificated property. Benefit: Costs associated with complying with the duties of a PR can be avoided.

Answer 132

Applicant must prove to the satisfaction of the court that: 1) T is dead; 2) FOUR YEARS have not elapsed since T's death and prior to the application; 3) Court has jurisdiction and venue over the estate; 4) Citation has been served and returned in the manner and for the length of time required by the TEC; 5) T's estate owes no unpaid debt, excluding debts secured by liens on the real estate; 6) If the will is not self-proved, T, at the time of executing the will was at least 18 years of age and T executed the will with the formalities and solemnities and required by law to make it a valid will; AND 7) T did not revoke the will.

Answer 133

Must give notice by service of process to each of T's heirs whose address can be ascertained with reasonable diligence. Notice is NOT required to any heir that files with the court a signed affidavit of NO OBJECTION to the offer of T's will for probate.

Answer 134

There can be no unpaid debts owed by T's estate other than those secured by liens on the real estate. HOWEVER, if there are unpaid debts, court can still admit the will as a muniment of title into probate if the court finds for "ANOTHER REASON" that there is no necessity for administration of the estate.

Answer 135

Constitutes sufficient legal authority to every person that: 1) Owes money to the estate; 2) Has custody of property of the estate; 3) Is a registrar or transfer agent of any evidence of indebtedness of property belonging to the estate; AND 4) To those purchasing or otherwise dealing with the estate. Those entitled to receive property under the will are entitled to treat the properties to which they are so entitled as though the record of title were vested in their names.

Answer 136

BEFORE THE 181ST DAY (unless extended by the court) after the date a will is admitted into probate as a muniment of title, the applicant MUST FILE A SWORN AFFIDAVIT with the court stating specifically the terms of the will that HAVE AND HAVE NOT BEEN FULFILLED. Failure to do so does NOT affect title to property passing under the terms of a will.

Answer 137

An application to the probate court may be made to determine and declare the heirs, without also applying for letters of administration. May be brought at any time after the decedent's death. Proceedings may be instituted by various persons interested in the estate, including: 1) PR; 2) Person claiming to be a creditor; 3) Trustee; and 4) Party seeking appointment of an IA.