Wills - Texas

Question 1

Define Ademption.

Answer 1

Ademption is the the act by which a specific legacy becomes inoperative because of the disappearance of its subject matter from the testator’s estate in his lifetime. The general rule is that a specific legacy is adeemed if the thing given is disposed of by the testator during his lifetime.

Only applies to specific gifts.

Question 2

Note how a testamentary gift is adeemed by extinction.

Answer 2

A testamentary gift is adeemed by extinction—that is, it fails—when property specifically bequeathed or devised is not in the testator’s estate at the time of the testator’s death. The ademption may occur by an intentional act on the part of the testator (e.g., a sale or gift) or by an involuntary circumstance (e.g., fire or theft).

Question 3

Anti-Lapse Statute.

Answer 3

A gift will not lapse and it will be saved for someone else by the statute.

The Texas anti-lapse statute applies only when the predeceasing beneficiary was a decedent of T or T’s parent (certain close relationship) (one of their own kids
or grandkids or their siblings or nieces and nephews or so on down) and that devisee must have descendants who survive by 120 hours, that descendant will take.

Question 4

The testator may avoid the effects of the anti-lapse statute by:

Answer 4

Making a substitute gift or by specifying that the gift should lapse. Courts will give effect to the testator’s intent when it is discernible.

Question 5

Note whether a beneficiary has to accept a gift, how a gift is renounced and the effect of this.

Answer 5

The testator cannot force a beneficiary to accept a gift under the will. The beneficiary may disclaim, or renounce, the gift for any reason, even to prevent the beneficiary’s creditors from gaining access. A renunciation may be total or partial, but in either event it is irrevocable. Statutes require the beneficiary to renounce the gift within a specified period. The beneficiary must give written notice of the disclaimer to the personal representative, and to the probate court, for the renunciation to be effective.

Question 6

A class gift exists when:

Answer 6

A testator makes a gift to a number of persons as a group and the group may either increase or decrease in number. The class closes at testator’s death if any members of the class are then in existence. If the gift is postponed, class remains open until the time set for distribution.

Question 7

Note the effect of the birth or adoption of a child on a previously executed will.

Answer 7

The birth of a child to, or adoption of a child by, the testator does not revoke a previously executed will. Neither does the birth of a child born out of wedlock revoke the father’s will if the testator has been adjudicated the father or has acknowledged the child as his by written instrument filed with the court.

Question 8

State the share to which a pretermitted child is entitled.

Answer 8

A pretermitted child is entitled to succeed to a portion of the testator’s estate whenever he is not mentioned in the testator’s will, provided for in the testator’s will, or otherwise provided for by the testator. If he is not provided for by the testator, he is entitled to the share he would have inherited if the testator had died intestate.

Question 9

Note the capacity required to make a will.

Answer 9

A person must be at least 18 years old, or is or has been lawfully married, or is a member of the armed forces, in order to make a valid will.

Question 10

Note the signature requirement for a will.

Answer 10

An attested will must be signed by the testator or in the testator’s name by another person in the testator’s presence (proxy signature) and at the testator’s direction. Any mark intended as testator’s signature is sufficient

Question 11

Define Testamentary Intent.

Answer 11

To have testamentary intent, the person must intend the document to be a will.

May have testamentary intent even if one does not know they are making a “will”.

Question 12

Note the witness requirement for the execution of the will.

Answer 12

At least two witnesses to the execution of the will are required. The witnesses must sign “in the presence of the testator” but need not sign in the presence of each other and the order does not matter. The testator does not have to sign in the presence of the witnesses. The testator may sign earlier and need not sign at the end of the will. The witnesses do not need to know they are witnessing a will.

Question 13

The existence of an interested witness never invalidates a will. The bequest to the interested/subscribing witness shall not be void if:

Answer 13

Will can be proved without the interested witness’s testimony, OR the interested witness’s testimony is corroborated by one or more disinterested and credible persons who testify that the testimony of the subscribing witness is true and correct, OR the interested witness would be an heir if the will were probated, in which case the interested witness takes whichever is least: the lesser of (i) the legacy under the will or (ii) intestate share.

Question 14

Note whether a holographic will is valid in Texas.

Answer 14

A holographic will (a will written entirely in the testator’s handwriting and signed by the testator but not witnessed) is valid in Texas.

Question 15

Where a will is not produced in court, and the will was last seen in the possession or control of the testator or in a place to which he had ready access and cannot be found after his death, presumption:

Answer 15

testator destroyed will by physical act with intent to revoke.

Question 16

Where will last seen in testator’s possession or control is found in torn or mutilated condition and cannot be found after his death, presumption:

Answer 16

testator revoked the will by physical act.

Question 17

A presumption of revocation may be overcome if:

Answer 17

(1) the will was last seen in the possession of someone adversely affected by its contents or (2) evidence that is admissible contrary to the presumption

Question 18

Note the effect of a codicil.

Answer 18

A codicil must be executed with the same formalities as a will. A validly executed codicil republishes the will as of the date of the codicil. A codicil modifies rather than replaces a will’s provisions unless there is express language of revocation or inconsistencies exist between the codicil and will.

Question 19

A contract to make a will or devise, or not to revoke a will or devise, can be established only by:

Answer 19

provisions of a written agreement that is binding and enforceable: and

provisions of a will stating that a contract does exist and stating the material provisions of the contract.

Question 20

Note the requirements for contractual wills.

Answer 20

The contract must state clearly the requirements of the will, as such contracts are not favored. The contract has the same requirements as any other contract.

Question 21

Note the intestate estate distribution if the decedent is survived by a surviving spouse w/ descendants:

Answer 21

Separate Property—

• 1 + K↓
  a. ) SS = 1/3 SPP and 1/3 LE SRP
  b. ) K↓ = 2/3 SPP and SRP (1/3 VR FSA & 2/3 FSA)

Community Property—

• All to SS if:
  a. ) All Ds K↓ also SS, OR
• If D has K↓ not SS:
  a. ) SS = keeps her ½ community interest
  b. ) ALL K↓ = D’s ½ community interest

Question 22

Intestate succession rules apply when:

Answer 22

(1) decedent left no will (or will not validly executed); (2) the will does not make a complete disposition of the estate (partial intestacy); or (3) an heir successfully contests the will and will is denied probate.

Question 23

Note the intestate estate distribution if the decedent is survived by a surviving spouse w/o descendants:

Answer 23

Separate Property—

• No K↓
  a) . SS = All SPP, ½ SRP FSA
  b. ) Other ½ SRP FSA pass as if no SS, if no Ps or Sib.↓ = all to SS

Community Property—

• All to SS if:
  a. ) D = no K↓

Question 24

If any question (whether dealing with a will or intestacy) involves a surviving spouse you should mention:

Answer 24

Homestead (if applicable), Exempt personal property set-aside, and Family allowance (H.E.F).

Question 25

SAMPLE ANSWER

Answer 25

pg. 12

Question 26

In Texas, an individual has a property right in the use of his name, voice, signature, photograph, or likeness after his death. Thus, if ownership of that property right has not been transferred at or before his death, the property right vests:

Answer 26

Entirely in the surviving spouse, if there are no surviving descendants; one-half in the surviving spouse and one-half to his surviving descendants; entirely in the surviving descendants, if there is no surviving spouse; or entirely in the surviving parents, if there is no surviving spouse or descendants.

Question 27

State the share of descendants or collateral heirs and how it will be distributed.

Answer 27

The share will be distributed first to descendants of the decedent per capita by representation.

Question 28

Note how distribution per capita by representation works.

Answer 28

Under per capita by representation, the estate is divided into as many equal shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left descendants who survived the decedent, each surviving heir in the nearest degree receiving one share, and the share of each deceased person in the same degree being divided among that person’s descendants in the same manner. Posthumous children are considered as living at the death of their parent.

Question 29

Note the effect of adoption on the relationship between the child and his natural parents and the child and his adopted parents.

Answer 29

Adoption generally severs the relationship between the child and the natural parents, and creates the same relationship between the child and the adopted parents as between a child and his natural parents.

Question 30

Note the inheritance rights of a child born out of wedlock who has been legitimated according to the laws of Texas or of any other jurisdiction.

Answer 30

A child born out of wedlock who has been legitimated according to the laws of Texas or of any other jurisdiction, may inherit by, through, and from both parents as if the child had been born in wedlock.

Question 31

Texas has specified that the only permissible methods to revoke a will are by:

Answer 31

(1) by a subsequent testamentary instrument (will, codicil, or other writing) that expressly revokes earlier wills, or (2) by physical act (the document is destroyed or canceled) with intent to revoke it, by the testator or by another at his discretion and in his presence.

Question 32

Note whether Texas recognizes partial revocation of an attested will by physical act.

Answer 32

Texas does not recognize partial revocation of an attested will by physical act.

Question 33

State the Dependent Relative Revocation doctrine.

Answer 33

The Dependent Relative Revocation (“DRR”) doctrine allows a court to disregard the revocation of a will that was based on a mistake of law or fact. In other words, if testator revokes a subsequent will under the mistaken assumption that he was reviving a prior will by doing so, then the court will revive the second will since the revocation was based on a mistake of law or fact and the wills had similar provisions.