Wills

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jpbehnke
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108556
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Wills
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2011-10-13 19:05:13
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Wills trusts intestacy intestate
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Review cards for Texas Wills Law School class.
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  1. Types of Intestacy
    • Total: No will
    • Partial: Will doesn't dispose of all property
    • NB: Always include residuary clause
  2. Application of Intestacy
    Mechanical
  3. Collateral Relatives
    Relatives who share your blood but are not your ancestors.

    • Parents, Grandparents, etc. = Ancestors;
    • Siblings, Cousins = Collaterals
  4. Married Community Property Intestate Distribution Scheme
    • ≥1 Surviving Descendant:
    • All Marital Children:
    • SS gets DS's 50% (100%)
    • ≥1 Non-Marital Children:
    • SS keeps her 50% (50%);
    • Children divide equally

    • No surviving descendants:
    • SS gets DS's 50% (100%)
  5. Married Separate Property Intestate Distribution Scheme
    • Personal Property:
    • ≥1 Surviving Descendant:
    • SS = 1/3
    • Children = 2/3
    • No Surviving Descendant:
    • SS = 100%

    • Real Property:
    • ≥1 Surviving Descendant:
    • SS = 1/3 (LE)
    • Children = 2/3 (Remainder in LE)
    • No Surviving Descendants:
    • SS = 1/2
    • Parents and their issue = 1/2
  6. Single Individual Property Intestate Distribution Scheme
    • ≥1 descendant:
    • 100% to descendants
    • 2 parents:
    • 50/50 each
    • 1 parent:
    • 50% Surviving Parent
    • 50% Their Children (if none, then to parent)
    • No parents:
    • 100% to parents' children (bros and sisters)
    • No parents, siblings, etc.
    • 100% to grandparents and their children
    • Etc.
  7. Per Stirpes
    Divide at first generation, even if no survivors
  8. Per capita w/ representaiton [Tex.]
    Divide equally at first generation with surviving individual.
  9. Per capita at each generation
    Each surviving member at each generation gets the same share
  10. Ancestral property
    Abolished––all prop. is treated as though it was always individual's property
  11. Escheat
    When an individual has no surviving relatives, his property goes to the state
  12. Do we inherit through our parents?
    No.
  13. Half-blooded Heirs
    Treated as full-blooded heirs. Irrelevant.
  14. Adopted Individuals
    • Children: May inherit from adopted and bio-parents.
    • Adults: Can't inherit from or through bio-parents.
  15. Equitable adoption
    Person who puts himself out as a child's parent or makes promises as to create a K equitably adopts.
  16. Adoption by Estoppel
    Man doesn't claim paternity, but acts like child's parent, he may equitably adopt
  17. Step-parent adoption note
    Step-parents and parents should adopt their children
  18. Non-marital Children
    • Mom:
    • Pretty easy to tell if child is her issue

    • Dad:
    • Child must show paternity (born during marriage, born w/in 300 days of divorce, first 2 years of child's life, you hold them out as your own, etc.)
    • Ct. decree of paternity
    • Adoption
    • Father executes paternity statement
    • Post-death determination of paternity (clear and conv.)
    • ART Statutes
  19. Discovery rule re. non-marital children
    Doesn't apply
  20. Children of a null marriage
    Treated as issue of value marriage
  21. Illegitimate children
    May establish inheritance rights through a statute
  22. Children of bigamous relationships
    No disc. based on marital status.
  23. ART Children Parents
    • Mom:
    • Is mom

    • Dad:
    • Provides sperm
    • Consents in writing w/ woman
    • Both openly treat child as their own

    NB: If mom is married, child may have no father
  24. Post-divorce ART children
    Ex-spouse whose material is used w/o consent is not a parent.
  25. After death ART children
    Deceased spouse whose material is used w/o consent is not a parent.
  26. Gestational agreements
    • Mother=intended mother (not birth mom)
    • Father=intended mother's husband, regardless of sperm donor

    NB: Single person can't enter gestational agreement
  27. Unworthy heirs
    Unpermitted by Tex. Const.
  28. How to deal w/ unworthy heirs
    CP goes to murdering spouse, but ct. makes constructive trust which forces it to go to descendants

    Prevents unjust enrichment
  29. Bad parents
    Ct.'s discretion to prevent bad parent from inheriting from child
  30. Conditions triggering disinheritance
    • 1) Ct. order
    • 2) Deceased child under 18
    • 3) Evil act by clearn and conv. ev. (abandonment, abandoning mom, parent resp. for death of 'a' child)

    Result: Bad parent is seen as dying first
  31. Voidable marriage
    • 1) pending at time of death
    • 2) void if: (decedent married w/in 3 mos of death, intersted person files voiding app., ground = lack of capacity at marriage

    Result: Survivor is not SS of DS
  32. Who died first
    • One who dies w/in 120 hours of decedent is considered to have pre-deceased
    • No common disaster requirement
    • Will not be applied if causes escheat
    • If survival is ambiguous, presume they didn't
    • Spouses are considered as predeceasing each other
  33. Advancement
    Prepayment of inheritance; must be accounted for at death of testator
  34. Advancement requirement
    • 1) declare it an advancement in contemporaneous writing;
    • 2) post-facto acceptance by advancee
  35. Disclaimers
    Disavowing ownership of devised property
  36. Disclaimer requirements
    • 1) disclaimer doc (written and notarized)
    • 2) prop. filed (<9 mos. from death in ct. where probated)
    • 3) notice rep. by personal svc. or cert. mail
  37. Are disclaimers revocable?
    No.
  38. Are partial disclaimers allowed?
    Yes.
  39. Disclaimer after acceptance
    Can't do it.
  40. How does disclaimed property pass?
    As though disclaimer predeceased
  41. Can disclaimed property recipient disclaim?
    No.
  42. Release and conveyance of expectancy
    You can convey what you expect to inherit. Not binding on heirs! It's a gamble for the purchaser.
  43. Assignments
    You can assign your prop. to someone immediately after death of testator, even if probate is not complete
  44. Equitable conversion
    Real prop. being sold, but before closing, can be converted to personalty and distributed as such (as personal, not real, property)
  45. Presumption of Intestacy
    If you're dead long enough and no will is produced, intestacy is presumed
  46. Alienage
    Does not matter
  47. How long does it take for title to pass after death?
    No shorter time exists.
  48. Postumous heirs
    • Lineals can inherit (child or grandchild)
    • Collaterals may not
    • Posthumous ART children––some have time after which child can't get estate
  49. Conflict of Laws
    • Marital Rights
    • Law of spouse's domicile at time of acquisition

    • Succession Rights
    • Personal prop = domicile at death
    • Real prop = situs of prop
  50. Tortious Interference
    Interfering with an heir getting his inheritance may be liable for the loss of that inheritance
  51. Disinheritance (Neg. Will)
    Allowed

    NB: Has no effect on intestate distribution
  52. Substantial Compliance
    Not in Texas. Must follow the rules.
  53. Validity Requirements
    • 1) Legal Capacity
    • 2) Testamentary Capacity
    • 3) Testamentary Intent
    • 4) Appropriate Formalities
  54. Legal Capacity Requirements
    • 18 y/o;
    • Married;
    • Armed forces at time of execution
  55. Testamentary Capacity Requirements
    • 1) Understand what you're doing
    • 2) Comprehend the effect of what you're doing
    • 3) Know general nature and extent of property
    • 4) Know who your heirs would be
    • 5) Concurrence of these factors

    NB: Low std., lower than capacity to K
  56. What to do when testator lacks capacity:
    Guardianship
  57. Testamentary Capacity Ev. Allowed
    • Lay testimony
    • Expert testimony
    • Ev. R. 704
    • VERY broad. Anything wierd you've ever done in your life may be subject.
  58. Testamentary Intent Requirements
    Intend that the instrument you're using is to devise your property after death

    NB: It is not necessary that you know you're making a will, just upon your intention to create a revocable disposition of your property to take effect after your death
  59. Effect of Outside Influence on Testamentary Intent
    Not effective will.

    Ex: Undue influence or compulsion, ceremonial participation, and jest
  60. Ev. to show lack of testamentary intent
    • If it looks like a will: ex. ev. allowed
    • If it doesn't: ex. ev. is not allowed

    NB: Extrinsic ev. is allowed to show intent
  61. Valid Will Formalities
    • 1) In writing (doesn't matter in what)
    • 2) Signed by testator
    • 3) Attestation of witnesses

    NB: Holographic only needs the first two
  62. Testator Signature Requirement
    None, so long as he makes a distinguishable mark.

    Doesn't matter where he signs it.
  63. Proxy Signature
    • 1) By testator's direction;
    • 2) In testator's presence

    NB: No disability/uneduc. requirement
  64. Capacity of Will Attesting Witnesses
    • 1) Two
    • 2) Above 14 y/o
    • 3) Credible to testify in court
    • 4) W/capacity at time of attestation

    • NB: SPA helps reduce likelihood of testifying in court.
    • NB: Knowledge you're witnessing a will is not necessary; knowledge only necessary for SPAs.
  65. Subscription of Witnesses
    • 1) Time: Contemporaneous w/ will exec. (can be attested before T signs, so long as its close in time)
    • 2) No marks
    • 3) No proxies

    NB: Case law is not clear if *subscription* is necessary, so long as it's signed
  66. Proximity of Attesting Witness to T at Time of Attestation
    In T's presence. Presence is "conscious presence"––unless blind, T must be able to see T.

    NB: If blind, T must be reasonably able to see witness if he had sight

    NB: Strict––no other-room attestations

    • Other state requirements:
    • Witnesses attest in each other's presence
    • T signs in front of witnesses
  67. Witnesses as Beneficiaries
    No effect on will, but effect on gift

    Void, unless exception applies (B is an heir)
  68. Exceptions to B Witness's gift being void
    If B Witness is an heir, he gets the lesser of intestate share or devise.

    Will is otherwise established (e.g., another disinterested witness)

    Corroboration by a disinterested and credible person
  69. Drafting Attorney as Witness to Will
    Don't do it. Doesn't invalidate will, but should be avoided.
  70. Self-proving Affidavit
    Nearly universal; substitutes for in-court testimony

    Does not strengthen will, just makes it easier to fight contests
  71. SPA Process
    One-step process––inside the will; witnesses signatures are sworn by notary
  72. Preferred Witness Characteristics
    • 1) Familiar w/ T
    • 2) Supernumerary are good for likely contested wills
    • 3) Healthy
    • 4) Traceable
    • 5) Impress juries

    SHIFT
  73. Execution Ceremony
    Complicated and probably not as important as other things. Review day before test.
  74. Holographic Will Requirements
    • 1) In handwriting of T
    • 2) Signed (can't have adopted sig)

    • NB:
    • Intent jx.––were non-holographic parts intended to be part of will?
    • Surplusage jx.––non-holographic parts are viewed as surplus (do the written parts stand alone?)
    • Material provision jx.––if material provisions are holographic, it's sufficient
  75. SPA w/ holographic will
    Can have them attached. A little silly, though.
  76. Signature location
    Anywhere, so long as it's intended to be a signature (e.g., not a trust named after you).
  77. Usage of Holographic Wills
    • Emergency situations
    • Situations where privacy is key
    • Interim wills while waiting for official will to be drawn up
  78. Noncupative will
    Oral. Not allowed after Sept. 1, 2007.
  79. Military will
    Executed to federal standards. Makes it easier on JAGs.
  80. Specific bequest/devise
    Ascertainable at time of will execution.

    E.g., my 1998 Tahoe, VIN XXXXXXXXXXX
  81. Specific devise of general nature
    Not ascertainable until time of death.

    E.g., I leave my car to X.
  82. General gift
    Not sufficiently described to be specific.

    E.g., legacy
  83. Demonstrative gift
    Legacy out of a payable fund

    E.g., $1,000 out of my Frost Bank Acct.
  84. Residual Gift
    Gift to avoid intestacy OR main gift
  85. Will Revocation
    • 1) Capacity
    • 2) Intent
    • 3) Physical Act
  86. Will Revocation By Operation of Law
    • 1) Ademption
    • 2) Divorce
    • 3) Lapse
    • 4) Failure to outlive by 120 hours
    • 5) PC
    • 6) Voidable marriage
    • 7) Murder (constructive trust)
  87. Will Revocation by Act
    • 1) Physical act (tearing will, thick line through signature, burning)
    • 2) Subsequent writing ("I revoke all prior wills and codicils)

    NB: Intent w/o destruction is not enough.
  88. Burden of Proof for Will Destruction
    • Applicant must prove will was not destroyed
    • BUT, there is a presumption of non-revocation

    NB: If T possesses will at time of death and it can't be produced, revocation is assumed
  89. Proof of Lost Will
    • 1) Cause of Non-production;
    • 2) Ct. satisfied original couldn't be found thru reasonable diligence;
    • 3) Prove the content of the will by person who:
    • - Read the will
    • - Heard contents of the will read aloud
    • - Can ID a copy of the will
  90. Partial Revocation of Will
    • Approaches:
    • 1) Effective to revoke a gift;
    • 2) No effect on gift [Tex.] (Unless revocation is a stand alone statement––words have meanings, crossing through someone's name doesn't make a statement)
  91. Subsequent Writing to Revoke Will
    • Types:
    • 1) New will
    • 2) Codicil
    • 3) Declaration in writing w/ will formalities
    • Methods:
    • 1) Express (include execution date to make later revocations easier)
    • 2) Revocation by inconsistency––e.g., two inconsistent wills w/ no dates, can't tell which is valid
  92. Revival of Revoked Will
    • Must re-execute and re-publish
    • If a will is properly executed and revokes all prior wills, prior wills don't take effect unless re-published.
  93. Conditional Will Revocation
    • Kinds:
    • 1) Express (only effective upon some condition precedent or subsequent)
    • 2) Implied (Dependant Relative Revocation) (two wills, revokes first, second is invalid––if two wills are similar, follow the first one rather than send through intestacy; if very diff., follow intestate route)
  94. Republication of Revoked Will
    • Methods:
    • 1) Codicil
    • 2) Re-execute prior will
  95. Multiple original wills
    • Don't do it.
    • Presumptions:
    • 1) If cannot locate all originals, T destroyed one w/ intent to revoke all; OR
    • 2) T got wise and only wanted one version of the will
  96. Will Interpretation and Construction:

    Interpretation
    Determine T's actual intent from will or permitted ev.
  97. Will Interpretation and Construction:

    Construction
    Determine T's presumed intent from will or external ev.
  98. Will Interpretation and Construction:

    Who raises the issue?
    • 1) Personal rep (to escape liability)
    • 2) Beneficiaries and heirs (want more)
  99. Will Interpretation and Construction:

    Rules of C&I
    • 1) If residual clause is present, presumption of no intestacy
    • 2) If contradictory provisions, take later one
    • 3) If two ways to interpret and one gives disparate amts, go w/ the non-disparate way
    • 4) Read will as a whole, in its entirety
  100. Types of Ambiguity
    • Patent
    • Latent
    • No apparent ambiguity
  101. Patent Ambiguity
    Fibrulous brok deem quan nibulous brok.
  102. Latent ambiguity
    Language has a clear meaning, but outside fact creates need for interpretation (any material fact which may give meaning is allowed)

    e.g., I leave my 1974 Toyota Truck to X. You have a 1974 Ford Mustang and a 2008 Toyota Truck.
  103. No apparent ambiguity w/in will
    Ex. ev. not allowed to "clear" this up––"settled legal meaning" rule does not allow for ex. ev. when terms used have a settle legal meaning.
  104. Ambiguity––Who decides what?
    • 1) Ct. decides if it's ambiguous
    • 2) Ct. decides meaning if it's unambiguous
    • 3) Fact finder decides facts to clear up ambiguities
  105. Integration of Testamentary Writings
    • 1) External (diff. docs make up will)
    • 2) Internal (will is a unified instrument)
  106. Incorporation of a Will by Reference
    • Treat written material of will as not part of will
    • Requirements:
    • 1) T must intend incorporation;
    • 2) Incorp'ed writing must be extant at execution;
    • 3) Incorp'ed writing must be reasonably ID'ed;

    NB: Instrument not fully integrated into will must be described so as to preclude all possibilities of mistake
  107. Incorporation Issue––Which do we probate?

    Valid will + valid codicil =
    Both
  108. Incorporation Issue––Which do we probate?

    Valid will + invalid codicil =
    Will only
  109. Incorporation Issue––Which do we probate?

    Invalid will + valid codicil =
    Both. Codicil incorporated the will
  110. Incorporation Issue––Which do we probate?

    Invalid attested will + valid holo. codicil =
    Probate codicil only because, if merged, will wouldn't be holo. anymore.
  111. Incorporation Issue––Which do we probate?

    Invalid holo. will + valid holo. codicil =
    Both
  112. Facts of Independent Significance:
    Something with a legal purpose other than to dispose of property at death.

    • Can you look outside the four corners of a will at death to determine distribution?
    • 1) If something is a FOIS, yes (its legal purpose is something other than to dispose of property at death. E.g., a trust)
    • 2) If something is not a FOIS, no. (its legal purpose is only to dispose of prop. at death. E.g., the letter in my desk that tells people what they get)
    • NB: Class members can be ID'ed using ex. ev. (e.g., I leave to my co-workers) and to resolve ambiguities
  113. Pour-over Provisions
    • Property goes into inter vivos trust
    • (It's easier to change a trust than a will; off public record; can put $ in someone else's trust)
  114. Types of Pour-over Trusts
    • 1) T's trust (even if not extant at execution)
    • 2) Others' trust (even if not extant at execution)
    • 3) Trust not in existance, so long as in writing and ID'ed in will.
  115. Terms Governing Trust
    Current terms––even if made after T's death
  116. Contents of Will Devises (e.g., property in a desk)
    • Presumption: No
    • Remedy: Expressly include terms in the will
  117. Precatory language
    • 1) On beneficiary? Not binding
    • 2) On personal rep? Probably binding
  118. Class Gifts
    People in a certain group take originally, equally, and absolutely.
  119. Time of Determining Class Memebership
    • 1) Express language in will;
    • 2) Earlier of: natural closing of class (no more kids when dead) or when 1st class mem. entitled to prop.

    NB: Adopted children are generally included, even if adopted as adult
  120. Deadman's statute
    Re: Words of T as ev. in will litigation TRE 601(b)

    • 1) Only applies to party of lawsuit;
    • 2) Only applies if axn is by or against a personal rep (not party against party)
    • 3) Only oral statements are allowed;
    • 4) Exceptions: If corroborated; or called by opposite party to testify
  121. Will Contests:

    Who has motive?
    Person who would benefit under prior will or intestacy.
  122. Will Contests:

    Who may contest?
    Any interested person under §3(r) (heirs, devisees, spouse, creditors, etc.)
  123. Will Contests:

    Necessary parties
    Beneficiary institutions of higher ed. or charities
  124. Will Contests:

    Type of trial
    Jury trial available
  125. Will Contests:

    Statute of Limitations
    • 1) No fraud: 2 years
    • 2) Fraud: 2 years from discovery of fraud
    • 3) Tolled if: minor, incompetant (get guardian to avoid this)
  126. Will Contests:

    Temporary administrators
    Ct. appointee who oversees the property while it's in dispute.
  127. Will Contests:

    Contest grounds
    • Lack of Capacity
    • Lack of Testamentary Intent
    • Failure to Satisfy Formalities
    • Insane Delusion
    • Undue Influence
    • Duress
    • Fraud
    • Mistake
  128. Will Contests:

    Insane delusion
    1) T believes a state of facts that do not exist and no reasonable person would believe

    NB: There must be a nexus between devise and delusion
  129. Will Contests:

    Undue Influence
    • Elements:
    • 1) Influence exists and is exerted;
    • 2) Subverted T's mind; and
    • 3) Causation (T wouldn't have made the will but for the influence)

    • Prove thru:
    • 1) Direct and circum. ev.
    • 2) Relationship
    • 3) Susceptiblity/ability to resist
    • 4) B connected w/ will prep or execution

    • BoP:
    • On contesting party to show U.I. (can't show person could have exerted influence, must show he did)
  130. Mortmain Statute
    • 1) Limits gifts to charities under certain circumstances (e.g., churches telling people they'll go to Heaven if they donate)
    • 2) Usu. held unconst.
    • 3) Tex. doesn't have one––must attack gifts to charities on regular UI
  131. Attorney as Drafter and Beneficiary
    Gift void (also to supervising attorney, parent, descendant, employees, and spous of attorney or supervising attorney)

    • Exceptions: B is T's spouse, ancestor, related w/in 3d°, bona fide purchaser
    • Impact on Law License: Can't take a substantial gift from client––but what's substantial?
  132. Will Contests:

    Duress
    Same as undue influence, but physical
  133. Will Contests:

    Fraud
    • Elements:
    • 1) False rep to T;
    • 2) Misrep. was known to be false;
    • 3) Misrep. was reasonably believed by T;
    • 4) Misrep. caused T to execute will he wouldn't have w/o the fraud
  134. Types of Fraud
    • 1) Fraud in factum (T deceived as to contents of will)
    • 2) Fraud in inducement (T deceived as to ex. facts and made will based on those facts)
  135. Will Contests:

    Mistake
    • 1) Mistake in factum (T didn't know he was signing a will, but not because of evil conduct) (No intent)
    • 2) Mistake in inducement (T incorrect about ex. fact and makes will based on that fact) (NO REMEDY!)
  136. Remedies:

    Denial of Probate
    Most common remedy. Will is not probated.
  137. Remedies:

    Constructive trust
    Creature of equity. Prop. goes in a trust for the benefit of the rest of the family.
  138. In terrorum provisions
    "If you contest this will, you're disinherited."
  139. Ways to avoid will contest
    • In terrorum provisions
    • Explain reasons for gifts
    • Avoid bitter/hateful language
    • Holographic wills
    • Enhance will execution ceremony
    • Video recording of ceremony
    • Good witnesses
    • Documentation of transaction via writings
    • Other ev. to document T's axns
    • Preserve prior wills
    • Reexecute same will on regular basis
    • Suggest testator make more traditional gift
    • Make gift to disinherited-heir-apparent at execution (harder to say he lacked capacity)
    • Recommend alternative estate planning techniques
    • Ante-mortem probate
    • Family settlement agreements
  140. Conditional wills
    Only take effect upon the happening of a certain contingency
  141. Determining conditionality
    • Presumption:
    • 1) Will is general, no conditions
    • 2) Events presumed to be inducements (reasons you make will), not conditions precedent
  142. Conditional Gifts
    Spec. gifts depend upon a contingency
  143. Validity of Conditions on a Conditional Gift
    • 1) Statements of use (precatory language, not conditions)
    • 2) Illegal or against public policy or purpose (ineffective)
    • 3) Personal habits (often upheld)
    • 4) Marriage (depends on facts; e.g., marrying someone of the wrong religion)
  144. Combination Wills
    • 1) Joint wills: Rare. Single doc w/ will of two or more people
    • 2) Reciprocal wills: Two docs with parallel disp. (husband and wife)
    • 3) Contractual wills: See contractual wills card
  145. Contractual wills
    Will executed (or not revoked) pursuant to a valid K to dispose of/not dispose of prop. in a particular manner

    • Remedy for Breach:
    • Constructive trust
    • Evidence:
    • Four corners only––no ex. ev.
    • Revocability:
    • While alive, generally easily revoked, when no one dies, irrevocable (though will is still revocable, only K is irrevocable)
  146. Election wills
    If you accept a benefit under a will, you must accept all terms

    e.g., "I leave my house to Bill Sanders. I leave the rest of my estate to my wife." Wife has to give up her CP in house to get the rest of the estate.
  147. Interpretation Rules of Election
    Election only exists if will is open to no other construction; BoP is on person trying to show election exists
  148. Burial Plots
    Health and Safety Code §711.309––Must make spec. mention of plot in will––if not specified, SS automatically gets one plot and rest of plots pass to heirs
  149. Ademption
    A gifted item not in the estate; void.
  150. Basic Principals of Ademption
    • 1) Specific gift adeems;
    • 2) When prop. is voluntarily partitioned, you get T's part
    • 3) Pro tanto––gift still valid, you only get what T owns (T leaves 100 acres, sold 25, you get 75)
  151. Stock Ademption
    Easily adeemed
  152. Ademption by Satisfaction
    Remember Sept. 1, 2003!

    • Proven by:
    • 1) Express statement in will;
    • 2) T's contemporaneous writing;
    • 3) Post-facto acknowledgement by advancee
  153. Conveyance and Reacquistion of Property
    T gives B land, B sells it, T buys it back and still has B getting land in his will. Does he get it back?

    Unless the requirements of ademption by satisfaction are met, yes.
  154. Sept. 1, 2004
    Ademption by Satisfaction Changed
  155. Sept. 1, 2005
    Exoneration no longer presumed
  156. Exoneration
    Paying the debts of devises through the residuary. Problematic.

    100K house and 100K cash problem

    Important: Can't exonerate debts on a spec. gift w/ another unless will provides for it (paid off house and ranch w/ lien––you get house free and clear and ranch w/ mortgage)
  157. Appreciation and Depreciation Effect on Devises
    None.
  158. Securities value change
    Change of form rather than substance

    • Automatically get the following:
    • 1) Stocks from a stock split, dividend, redemption, etc.
    • 2) Another org's stocks due to merger

    • Do not get:
    • 1) Newly purchased stocks thru market or purchase options;
    • 2) Acquired thru cash dividend reinvestment plan
  159. Cash Divident
    Based on accrual date, not when paid or rec'd
  160. Interest on Money in Estate
    Begins running at jgmt rate one year from death
  161. Abatement
    Testator dies w/o enough property to cover debts and gifts
  162. Abatement Order
    • 1) Intestate prop.
    • 2) Residuary (personal then real)
    • 3) General (personal then real)
    • 4) Specific (personal then real)

    • NB: Within a gp., abatement is pro rata (all lose the same)
    • NB: T can specify diff. order
  163. Tax Apportionment
    • Presumed.
    • Covers probate and non-probate assets
    • NB: Can provide otherwise in will
  164. Marriage Affect on Will
    None
  165. Divorce Affect on Will
    Divorced spouse is seen as predeceasing T

    • 1) Ex-spouse is no longer B
    • 2) Ex-spouse's relatives are no longer B (adopt step-child to prevent)
    • 3) Ex-spouse is no longer fiduciary (guardian, executor, etc.)
  166. Pretermitted Children
    Children born or adopted after will execution.

    • NB:Doesn't know they have to exist
    • NB: Creates forced share
  167. PCs aren't entitled to shares when:
    • 1) T provides for PC in will ("Residuary to Children")
    • 2) T provides for PC in non-probate asset (e.g., trust)
    • 3) T mentioned PC in will
  168. PC distribution
    • If no gifts to children:
    • 1) Determine amt. not going to PCs other parent;
    • 2) Give PC share of this amt. as though T died intestate w/ no SS

    • If gifts to children:
    • 1) Determine amt of estate going to children;
    • 2) Divide by # of children and PC;
    • 3) PC gets that

    NB: Non-PC's shares are reduced
  169. Lapse
    B predeceased T
  170. Lapse distribution
    • 1) Under express terms of will
    • 2) Saved by legal rule (anti-lapse statute; cy pres doctrine)
    • 3) Via residuary clause
    • 4) Via intestacy
  171. Anti-lapse statutes
    Saves gifts for descendants of predeceasing B
  172. Tex. Anti-lapse statute
    • 1) B predeceased T
    • 2) B has descendants
    • 3) B is a descendant of T or T's parents
    • 4) Gift passes to B's descendants (per cap. w/ rep)
  173. Avoiding Anti-Lapse Statute
    Provide alternative gifts in will
  174. Partial Lapse in Residuary Clause Example
    Fact Pattern: "I leave $X to A, B, and C." (anti-lapse doesn't apply). A predeceases T.

    • 1) Orthodox: 1/3 passes through intestacy
    • 2) Modern: Survivorship clause read in and B and C split
  175. Don't Over Apply Survivorship Reading-In
    Don't do it
  176. Cy pres
    Saves lapsed charitable gifts

    • Element:
    • 1) T must have charitable intent;
    • 2) Find similar charity to give prop. to
  177. Will Revocation
    • Requirements:
    • 1) Intent
    • 2) Capacity
    • 3) Physical Act
  178. Act of Revocation
    • 1) Subsequent writing
    • 2) Physical act (burning, dark line thru sig, tearing)

    NB: Intent w/o destruction is not enough
  179. Will Revocation by Operation of Law
    • 1) Ademption
    • 2) Divorce
    • 3) PCs
    • 4) Predeceasing
    • 5) Lapse
    • 6) Voidable marriage
    • 7) Murder
  180. BoP for will destruction
    • Applicant must prove will not destroyed
    • BUT, presumption of non-revocation

    NB: If T has will in possession at time of death and it's not produced, presumption of revocation
  181. Proof of Lost Will
    • Necessary:
    • 1) Cause of non-production
    • 2) Ct. satisfied that will can't be found through reasonable efforts
    • 3) Prove content of the will (someone who read it, heard it, or can ID a copy)

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