Wills & Elder Care

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  1. Execution / Valid Wills
    1. T = 18

    2. signed by T' (or at his direction)

    3. 2 Witnesses

    - Witnesses must sign in T's consciouse presence (one contemporaneous transaction)

    - T doesn't have to sign in W's presence

    - W doesn't have to sign in other W's presence and doesn't have to know signing a Will
  2. Without Self-proving affidavit
    1. 1 of the witnesses

    2. or 2 W's as to signature of T
  3. Venue (probate)
    1. residency; if no residency

    2. where property located or where died
  4. Safe Deposit Box
    1. can exmaine w/o court orer w/ bank official by SS, executor, or child over 18

    2. deliver Will to Executor or Court
  5. Interested Witness
    Does not invalidate, but bequest is invalid, unless:

    1. W proved w/o interested W testimony;

    2. corroborated by T' of disinterested person; or

    3. if W is an heir under intestacy, takes lesser of bequest and intestacy amount
  6. Holographic Will (requirements)
    1. wholly in handwriting

    2. signed ("I, Joe" counts as signature)

    3. intent (evidence allowed to prove)

    - can have holographic codicil to typed will

    - intent must be to take effect at death
  7. Oral Will
    1. last sickness

    2. at home or if not at home, doesn't return home

    3. personal property only

    4. if more thatn $30, then need 3 Witnesses
  8. Disclaimer (probate)
    1. written, signed, notary

    2. w/in 9 months of death

    3. filed w/ court (copy to rep)

    4. can be partial

    5. executor/g' can disclaim; parent can not for minor
  9. Advancement
    lifetime gift not advancement unless:

    1. declares at tiem of gift, in writing

    2. acknowledged by donee in writing
  10. Marital Status after Will Executed
    Later married: doesn't affect (b/c homestead, CP, allowance protects SS)

    Later divorced: ex-spouse treated as predeceased
  11. Revocation
    1. by subsequent instrument

    2. physical act

    3. presumed revoked if in T's possession and can't find

    4. no "partial revocation" (can't cross out lines)
  12. Lost Will
    1. duly executed

    2. overcome presumption of revocation

    3. contests proved by someone who read or heard will
  13. Change on face of Will
    1. words added/changed = ignored

    2. if "I want X to take Z instead of A" + signed = valid

    3. "$5k, date, Mary" = not valid

    4. unless these changes are to holographic Will and 2 persons testify towards handwriting!
  14. Revival
    1. no revival by terminating subsequent Will

    2. unless: execute codicil to prior Will
  15. Types of Bequests:
    1. specific: my car to Y

    2. demonstrative: $25k from sale of exxon to X

    3. general: $25k to X

    4. residue

    5. intestacy
  16. Abatement (order)
    • 1. intestacy
    • 2. residue - personal property
    • 3. residue - real

    4. general - personal property

    5. general - real

    6. specific (demonstrative) - personal property

    7. specific (demonstrative) - real

    (demonstrative not in statute; treated like specific. this is not example of I give exxon stock in estate to...)
  17. Pro-rate Estate Tax Apportionment
    from all of estate - probate and non-probate
  18. Ademption: Devised Property Not In Estate
    • 1. "Exxon stock to Joe" - if Exxon stock not in estate
    • = Joe gets nothing

    • 2. "proceeds of exxon stock" and no exxon stock in estate,
    • = if traceable at death, Joe gets proceeds (but not insurance proceeds)

    • 3. Demonstrative - "$25k from exxon stock"
    • = doesn't matter where exxon stock is; Joe gets $25K!
  19. Bequests of Stock (not in estate)

    "I give MY 100 shares of Exxon stock to X"
    - if not in estate = ademption (gets nada)

    • - if split and there are 200 since execution
    • = X gets all 200
  20. Bequests of Stock (not in estate)

    "I give 100 shares of Exxon stock to X"
    It's not specific, so

    = X gets value of 100 shares of stock!
  21. Anti-Lapse: Gift to predeceased beneficiary lapses, unless:
    1. B is descendant of T's Parents; and

    2. B leaves descendants who survive T by 120 hrs.

    • - predecased B's Will is meaningless
    • - if B not survived by descendants, gift falls to residue
    • - "if he survives me" = anti-lapse does not apply
    • -
  22. Anti-lapse (residuary - surviving B rule)

    - and anti-lapse exception
    Gift to A,B, C and only A,B suvive = 1/2 to A; 1/2 to B

    But if C was kin = 1/3 A; 1/3 B; 1/3 C
  23. Anti-lapse (class gifts)
    • class gift rules:
    • - class closes at Ts death
    • - compare: if to A,B and C the kids of my friend, then if C fails to survive, then 1/3A; 1/3B and 1/3 lapses

    - however, anti-lapse would apply if C were kin
  24. per capita - by the head

    "to my children per capita"
    • children: A and B
    • A has 2 kids
    • B has 1 kid

    = each child takes 1/2
  25. per capita - by the head

    "to my descendants per capita"
    • children: A and B
    • A has 2 kids
    • B has 1 kid

    = each descendant takes 1/5
  26. Strict Per Stirpes

    Children: A and B
    A has 2 kids
    B has 1 kid

    A and B predecease
    • = A's children take 1/2
    • = B's child takes 1/2
  27. Per Capita w/ Representation (sample 1)

    Two children: A and B
    A has 3 kids
    B has 2 kids

    A predeceases
    - texas intestacy

    • Per Capita at First level;
    • By representation at Second level

    • = A's kids take 1/2
    • = B takes 1/2
  28. Per Capita w/ Representation (sample 1)

    Two children: A and B
    A has 3 kids
    B has 2 kids

    A and B predecease
    Each grandchild takes 1/5

    (b/c that is the "first level" now)
  29. Rule of Convenience
    Class of class gift closes when some class member is entitled to a distribution (for outright gifts, this = at Ts death)

    subject to 300 day gestation period
  30. adult child adopted
    takes as "child" under Will, but not intestacy
  31. Void Gifts: named B
    named B was dead at time will was executed =

    anti-lapse, surviving residuary B rules apply
  32. Void Gifts: Class Gift
    If class member was dead at time of Will, then anti-lapse does not apply

    T did not intend to include deceased sister in "all to my bros and sisters
  33. Adopted Children
    adopted child inherits from parents; and parents inherit from adopted child

    child can also inherit from natural parent (unless decree severed parent relationship)

    natural parent can not, however, inherit from child

    person adopted as adult cannot inherit from bio parent
  34. 120 hr rule (basic)
    • - applies in intestacy and in Will
    • - but: if Will includes "if he survives me" not 120 rule (only needs to survive by any amount of time and would then pass via beneficiary's Will or his intestate succession)
  35. 120 hour rule (CP)
    H treated as survived W; and

    W treated as suvived H
  36. 120 hr rule (other types)
    applies to Life insurance

    joint and survivor bank accounts

  37. Pretermitted Child (if no other children when executed Will):
    - child takes intestate share of all property not bequethed to other parent of child

    2/3 to SS and 1/3 to Sister

    = C would get intestate share of the 1/3 to Sister (amount not bequested to SS). Here, = 100% b/c no other kids!

    FYI - gestation applies; treated as though child was alive and born after Will executed
  38. Pretermitted Child (if other children alive and NOT provided for):
    Child takes intestate share of all property not bequethed to other parent of child

    2/3 to SS and 1/3 to Sister

    = C would get intestate share of the 1/3 to Sister (amount not bequested to SS). Here, 1/3 of the 1/3 would be the intestate share b/c C has 2 siblings.
  39. Pretermitted Child (other children and ARE provided for)
    child's share is limited to the gifts to such other children (kids A and B split their share w/ C; no other beneficiary's gift is reduced)

    ex: my kids A and B get $90k. = A, B, C all get $30k

    even if contingency! so, if needed to do X to get $100 and don't, then pretermitted child also gets nada!

    exception: if C was provided for by non-probate transfer
  40. Pretermitted Child (other children ARE provided for, but get different bequests!):
    limited to their share.

    A gets Blackacre; B gets $90k; C is pretermitted

    = C gets 1/3 Blackacre and $30k
  41. Pretermitted Child: Application to LI, contingent gifts, etc.
    Statute does not apply if:

    1. child is provided for or mentioned in Will; or

    2. provided for by nonprobate transfer that takes effect at Ts death

    Contingent gift is sufficient (contingent LI beneficiary or contigent gift in Will). B/C purpose is not to make sure child takes, but to protect against accidental omission.
  42. Lookback Period - medicaid
    outright - 3 years

    trust - 5 years
  43. penalty period - medicaid
    non-exempt property disposed of (divided by) monthly medicaid cost

    ex: $400k property (divded by) $4k month cost

    disqualified for medicaid for 100 months
  44. Miller Trust (B Trust)
    put income in trust, must pay back gov't upon death

    must be over 65?

    remainder to remaindermen
  45. A Trust
    put assets in trust,

    pay back gov't at death

    remainder to remaindermen
  46. C - Trust
    pooled income charitable trust

    a Supplemental Needs Trust that is managed by a Non- for-profit organization
  47. Income Cap & Asset Cap
    $2,022.00 a month income

    $2,000 / individual

    $3,000 / married (both spouses in nursing home)
  48. Exempt Property
    Homestead - If the spouse or certain dependent relatives continue to reside in the home, it is excluded.

    • Also, if the applicant intends to return to the home, the home is excluded. However, a person
    • who is eligible for Medicaid benefits in Texas may not exclude a home in another state.

    Estate Recovery: Without proper planning, a nursing home resident may not be able to leave their home to their family, but instead their heirs may have to sell the home to repay the state for the amount of Medicaid benefits received.

    • Vehicle - One vehicle is excluded if its current retail
    • value is $4,500.00 or less. However, the value of a vehicle used for medical purposes at least four times per year is unlimited. In some
    • cases, another vehicle may be exempt

    • Life Insurance -total face value of all of the
    • policies is equal to or less than $1500.00,

    Burial Funds and Prepaid Funeral Contracts - Up to $10,000 of an irrevocable burial contract

    • Properly Structured Immediate Annuities - Assets placed into a properly structured Medicaid Friendly Annuity are excluded assets. There
    • are several requirements when applying for Medicaid benefits that must be met in order for the assets placed into the annuity to be excluded.
  49. Impoverished Spouse (max)

    H/W: Divide in 1/2. W can only keep up to $109,560. Everything in excess must be considered Hs and he must plan accordingly/spend down

    Can go to court to raise
  50. Impoverished Spouse (minimum)
    H/W: Divide in 1/2. W must have at least $21,912. If less, then H gives her an amount so that she has $21,912

    ex. $30,000 between them

    She has $15,000 and then H gives her $6,912. H plans accordingly with his remaining $8,088
  51. Special Need Trust
    Medical or social services not included in the estate Medicaid program will not be counted as income. Distributions for food, clothing, shelter, or cash will be counted as income to the client.
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Wills & Elder Care
Barbri - Wills
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