Wills, Estate Admin, Guardianship, Intestacy.txt

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Wills, Estate Admin, Guardianship, Intestacy.txt
2011-10-20 16:58:59

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  1. Urban Homestead -
    • 10 Acres
    • residence
  2. Rural Homestead
    • 200 acres (if married)
    • 100 acres (if single)
  3. Homestead - Benefits/Consequences
    • 1. both spouses must join in conveyance
    • 2. Free creditors claims (w/ exception)
    • 3. passes free of crediotors claims at death IF survived by spuose, minor child or unmarried adult child who lived with decedent
    • 4. SS or minor child - right to occupy rent free for life so long as elects homestead
  4. Where homestead and title are divided, who pays what?
    SS / minor child: property taxes and mortgage interest

    Title Holder: insurance and principal
  5. Homestead - what if SS remarries and there was a descendent of H from prior marriage
    • H's son inherited 1/2 CP interest
    • SS has right to occupy during life, but if remarries and then dies, her new H does not have right to occupy (b/c son's TIC interest and rights therein kick in)
  6. Homestead allowance
    $15,000 in lieu of homestead if didn't have a homestead (don't get a choice if had a homestead)
  7. allowance in leiu of exempt personal property
    $5,000 - available to extent items on exempt personal property list are not in estate at death
  8. Family Allowance
    1. provides support for SS and minor children while assets in admin

    2. "amount needed for support for a period of 1 year"

    (don't consider community estate; consider value of SP owned by the SS though)
  9. G of Person
    take charge of ward, care, supervision, protection, clothing, food, medical, psychiatric care
  10. G of the Estate
    • manage ward's property
    • enforce ward's obligations
    • bring and defend suits
  11. Pay into court registry
    In leiu of G of minor, if amoutn is less than $100,000


    Can obtain court order to sell minor's property (stock) in which proceeds go to court registry (also under $100k)
  12. Appointment by Written Declaration (G')
    1. must be appointed unless court finds disqualified, dead or not in BIOC

    • 2. execution same as formities of Will
    • -2 witnesses in presence of declarant
    • - or wholly in handwriting and signed
    • - can be self-proved
  13. Can Bond Be Waived by Will (for G')
    - of Person - yes

    - of Estate - no (not by Will0
  14. Can Child Name G'?
    Yes, in writing filed with court

    court can veto if not in BIOC
  15. Venue
    1. G of Minor
    2. G for incapacitated adult
    3. G named in parent Will
    • 1. county of parents
    • 2. county where ward resides
    • 3. county of probate or appointee resides
  16. Standing to Bring G'
    1. any person can bring

    court wants brought to attention
  17. if bring G and fail, can get attny fees?
    yes, if brought in good faith
  18. Eligibilty of G of P/E of Minor
    • 1. parents,
    • 2. person designated by parent
    • 3. ascendatnes
    • 4. next of kin
  19. Eligibility G' Incapacitated Adult
    • 1. named by parent in Will
    • 2. person named by ward in designation for self
    • 3. spouse
    • 4. next of kin
  20. Can 2 peopel be appointed as co-G?
    No, unless they are H/W
  21. Disqualification from Appoitnment
    • 1. incapacitated
    • 2. conflict of interest (unless ct appoints ad litem to rep ward)
    • 3. inexperience, lack of education, other reason incapable of prudent management
    • 4. person disQd in designation
    • 5. sexual offender
  22. B/C lose all legal and civil rights, want to limit powers - how?
    • 1. order specifies powers, duties and limitations of G
    • 2. amoutn of funds that can be expended w/o approval
    • 3. if ward regains skills, ward or interested person can petition to remove or modify G
  23. Safeguards to protect proposed ward
    • 1. appoint attorney ad litem - yes
    • 2. appoint guardian ad litem - courts discretion
    • 3. court invetigator - yes, to investigate petition and determine whether less restrictive means available
    • 4. court visitor - no, but statutory courts have program (volunteers - look into living conditions)
    • 5. presence of ward in court - yes, unless court determines unnecessary
    • 6. jury trial - wrd can request on motion
    • 7. evidentiary standard of incapacity - clear and convincing (all other items preponderance)
  24. Letters of Guardianship Valid for How Long?
    16 months
  25. G take oath and post bond w/in?
    20 days
  26. Publish Notice of Admin in Newspaper w/in?
    1 month
  27. File Inventory
    30 days
  28. application for monthly allowance?
    30 days

    • - must state separate amounts for edciation/maintenance
    • - maintenance of ward's property
  29. G' reimbursement
    Yes, if show:

    • - C/C evidence that expenditures
    • - Reasonable and Property
    • - Not possible to get prior court approval
  30. Court removal of G w/o Notice
    1. no oath/bond

    2. moves from TX and absent 3 months

    3. neglect, curelly treated, failed to maintan/educate ward, embezzle, removed assets from TX (C/C evidence)
  31. Court removal of G' after notice/hearing
    1. Neglect, failed to educate, embezzle (but no C/C evid.)

    2. gross misconduct or mismanagement

    3. fails to cmply w/ court order or file accounting (annually)

    4. incapacity, sentenced or simply incapable of performing duties
  32. Duty to Invest asset not immediately needed for education, support or maintenance

    Application for order authorizing G' to develop/implemnt investment plan or modify/elimitate duty to invest w/in:
    180 days
  33. how to invest?
    1. as a prudent person considering:

    • - age, education, income of ward
    • - costs of supporting ward
    • - size and nature of estate
  34. How to Invest Portfolio
    • Portfolio Investment Theory:
    • - overall investment of assets in relation to eachother
    • - rather than considering individual investment in isolation
  35. G can do these w/o court order or approval (4 things - all others require court approval):
    1. retain property/not diversify prop of E or acquired by E w/o liability for 1 year

    2. investment decisions consistent with plan approved by court

    3. expend amounts if C/C evidence reasonable and property (and can't conveniently acquire approval)

    4. insure property, pay taxes, court costs, bond premiums, release liens, vote stocks, pay calls
  36. Sale of Property w/ court approval only for (other than when in compliance with investment plan):
    1. pay claims / expenses

    2. wards maintenance

    3. unproductive property can be disposed of

    4. home equity loan: improvements/repairs and educational/med expenses
  37. Compensation G of Person
    cannot exceed 5% of ward's gross income (not include social security or benefits)
  38. G of Estate
    • Reasonable compensation
    • - 5% of income + 5% money paid out considered reasonable

    - "money paid out" does not include distributions on settlement of estate or court approved tax motivated gifts
  39. Can G be terminated if still incapacitated?
    Yes, if burdensom in relation to income

    or can pay amounts into court registry
  40. Minor: inheriting $2 million (G appointed): how to deal w/ $?
    1. court created management trust

    - over 50k, bank must be Trustee (unless another T in best interest or bank won't serve)

    - cna continue until 25 (or other?)
  41. Minor: inheriting $2 million (no G appointed): how to deal w/ $?
    • 142 Trust
    • Ben is Trustee
    • Continue until 25
  42. 867 Trust
    for incapacitated adult continues until court determines or ward is restored

    don't need G appointed first

    50k more, must be corp trustee

    Can't include exculpatory clause in 867 or 142
  43. Gov benefits only (small estate of ward). What can we do?
    Guardian to Receive Funds from Gov Source

    Can expend amounts without approval less than $12k

    Need court approval for over $12k
  44. Temporary Guardian (when?):
    1. Substantial evidence ward requires immediate appointment

    2. powers limited by court

    3. only for 60 days
  45. Ward needs estate planning (exposed to taxes likely). What can G do?
    1. Apply to court to compel person in possession of EP docs to turn over to court (including attny) for purposes of establishing an EP.

    2. court approved tax-motivated gifting (annual exclusion)
  46. G charitable gifting?
    Yes, from income if:

    • 1. qualifty for charitable deduction
    • 2. income will exceed $25k
    • 3. gift not exceed 20% of income
  47. G proceedings - property court when ancillary issues (divorce, child support, etc.)
    probate court ---- all can be brought in probate court b/c these are matters incident to guardianship
  48. Exoneration of Lines for Spec Real Prop
    1. pre 05: paid out of Estate

    2. post 05: debt goes w/ property
  49. Incorporation by Reference: 3 requirements
    1. in existence when executed

    2. intent to incorporate

    3. clearly ID ("attached sheet" not sufficient)
  50. Acts of Independent Significance
    "lifetime acts given full effect"

    - ex: I give picasso in bedroom to X. Picasso moved to living room. X does not get picasso
  51. Gifts w/ Contents
    1. Gift of Chest: does not include contents

    2. Gift of Chest and Contents: gets tangible property and cash; does not include intangbles (stocks/deed)
  52. Mistakes and Ambiguities in Will
    Plain meaning rule.

    No extrinsic evidence (w/ exception)
  53. Latent Ambiguity
    No Mistake on Face of Will

    X to John Smith (but had friend named John Sands and another named Jason Smith)

    Extrinsic evidence allowed (if doesn't help, gift fails0
  54. Patent Ambiguity
    Mistake on Face of Will

    "I give twenty five dollars ($25,000) to John"

    Extrinsic evidence allowed
  55. Contractual Wills -
    1. established by providing in Will stating K exists and including material provision or a binding K (buy-sell)

    2. can revoke by giving notice to other party of K
  56. Negative Bequests
    "$1k to H, nothing to child"

    H/W divorce

    W dies, residue goes to child

    old law: asset go to child due to statute,

    new law: this is given effect and child gets nothing
  57. Exercise of POA by Implication
    If POA is over X and state in Will, I give X = effective exercise

    otherwise must specifically reference POA (any POA I have is NOT sufficient)
  58. Testamentary Capacity
    • Understand:
    • - nature of what doing (signing Will)
    • - nature/value of property
    • - objects of bounty
    • - disposition making

    (distance between execution and evidence of incapacity limits contestability)
  59. Adjudication of Incapacity
    admissable as evidence, but is a different legal test, so not consclusive
  60. Burden of Proving Incapacity

    • 1. at time of will == proponents
    • 2. after will admitted (2 yr SOL) = contestants

    offering later will is not a contest and not subject to 2 yr SOL
  61. Who Can Contest Will?
    1. economic interest AND adversely affected

    2. Heirs, even if W2 is better than W1

    3. Executor of W1 can contest W2
  62. Undue Influence (3 elements):
    1. existence of exertion

    2. effect was to overpower mind and will of testator

    3. gift would not have been made but for influence

    (opportunity, susceptibility and unnatural disposition are evidence, but not conclusive)
  63. Undue Influence (effect of confidential relationship)
    not conclusive, but:

    1. Inference of UI

    2. shifts burden to proponent (not contest burden, but to rebut influence)

    3. if proponent can't rebut, satisfies contestant's burden of proof
  64. Gifts to Lawyer
    Void - even if family, employee, spouse, unless:

    - withing 3rd degree of consaquinity (birth) or affinity (marriage)

    - step up to commin anscestor adnd step down from common ancestor to beneficiary
  65. No Contest Clause:
    Valid and disinherits, unless:

    There is probate cause and brought in GF

    • Not triggered in:
    • - Will construction suit
    • - action against executor for improper admin
    • - constest by G of B
    • - if voluntarilly dismissed
  66. Independent Aministration: (when proper)
    • 1. if provided in Will
    • ("as ind. executor" or as little as "w/o court supervision")

    • 2. all distributees agree
    • -if Trust, then income B's;
    • -G of distributee;
    • -survival is presumed
  67. Independent Administrator's Powers to Sell Assets
    Same as Dep, but must relate to:

    • 1. proper settlement of estate; or
    • 2. preservation of estate assets

    - if enough assets to settle debts, then tough to prove sal eof real property was for 1 or 2 above
  68. Accounting from Ind Exec (dates):
    - 15 months after probate on demand; and

    - 12 months after last accounting
  69. Independent Executor (Closing Estate):
    May close:

    1. filing closing report w/ verified affidavit: property received, debts/exp paid, name/add of distributees; or

    2. file for delcaratory judgment seeking discharge; or

    3. interested party may petition to close after 2 yrs
  70. Removal (Ind. Executor):
    • fails to file Inv.
    • fails to notify charity
    • embezzles
    • fails to give accounting
    • incompetent
    • gross misconduct/mismanagement
    • sentenced to pen
  71. Jurisdiction - Probate & G
    • 1. Statutory County / probate Court
    • - county gets exclusive orig jx; appeals to appeals court

    • 2. counties w/ contintutional county courts
    • - uncontested: county court
    • - contested: remove to district court or can assign to county (regardless, returns to county when DC matter resolved)
  72. Muniment of Title
    - valid Will, but no need for formal admin/exec

    - formal recognition needed to transfer title

    - no unpaid debts

    - can be used when will was not probated w/in 4 yrs

    Will + order admitting to probate as MOT serves same fx as a Deed
  73. Statutory Heirship Proceeding
    - No Will & no need to for admin

    - But formal recognition needed to transfer title

    • - Judgment (same fx as deed) says:
    • 1. intestate
    • 2. name/add of heirs
    • 3. shares each is entitled
  74. Small Estate Affidavit
    1. Less than $50k (not including homestead and exempt prop)

    2. serves fx of Letters

    3. affidavit issued by court clerk allows party to collect asset by furnishing affidavit

    4. clears homestead title (but not other RP)

    5. Debts cannot exceed Assets (other than debt secured by homestead); include list of assets/liabilities

    6. no rep or app pending

    7. wait 30 days from death

    8. sworn by Heirs and 2 disinterested Ws

    - include family facts/info showing distributee (or assignee, if applicable)

    - file in the county where homestead located

    -BFPs protected; but subject to decedent's claims. left out heir can collect from heir who sold to BFP
  75. Qualified Community Administration
    Spouse qualifying as admin by giving blood?

    - 1/2 CP to desc from 1st marriage, rest to SS
  76. Unqualified Community Admin
    Spouse may sell assets without appointment to pay community debts

    as long as not otherwise enough assets to pay such debts
  77. Determination of Heirship
    1. court determines ID of heirs

    2. Requires: NO WILL & No admin open

    3. Notice on all distributees

    4. Ad Litem appointed to represent unknown heirs

    5. May request admin to be opened if necessity for administration

    6. Transfers title pursuant to intenstacy
  78. Non-Statutory Affidavit of Heirship
    used to clear gaps in title

    Filed in county

    affidavit signed by 2 disinterested Ws (neighbors/relatives)
  79. Temporary Administration
    - Appointment prior to exec/admin to handle estate as seen fit by court

    - no greater than 180 days unless appointed during contest
  80. Probate:

    Property in another county; and

    Probate from out of State
    file Certified Copy of Will and Order in all counties where property located

    No ancillary probate procedure in TX (just file the out of state Will and Order in county?)
  81. Subsequent Will found after property sold
    W1 Probated. All to X. X sold property to Y.

    W2 found - All to A.

    = Y is protected as BFP. A brings suit against X to recover funds.
  82. Probate after 4 years:
    if can show "not in default"

    can only bring Muniment of Title (no appointment of admin/exec after 4 yrs)
  83. Exec/Admin Priority of Appointment
    • 1. named in Will
    • 2. SS
    • 3. Beneficiary (primary)
    • 4. Beneficiary (other)
    • 5. Next of Kin
  84. 5 in - 5 out (explain)

    - does not apply to cash, life insurance, distributions to beneficiaries.

    - may be awarded extra compensation for unusual effort

    - if exec awarded comp, but dies before receipt, exec's estate doesn't have alcaim for it
  85. Ind Admin - Permissive Unsecured Creditor gives Notice of Claim by (new)
    1. writtend instrument hand delivered with proof of receipt or mailed by cert mailed to exec or attny

    2. pleading filed in lawsuit with respect to claim

    3. written instrument/pleading filed in court of administration
  86. Probate Notice to Creditors (timeline same for Dep/Ind)
    1. By publication: 1 Month

    2. Permissive to Unsecured (any time, but can give 4 mo deadline and if don't bring, barred)

    3. Secured: 2 months
  87. Estate is not an entity that can be sued
    bring suit against the Administrator/Executor
  88. Secured Creditor - Example

    Note - 180k

    Bank forces sale of home and gets 160k
    I) Mature Secured Claim: if files timely (6mo/4mo req), gets deficiency judgment for 20k

    • II) Prefered Debt and Lien: does not file timely, doesn't get assets from general estate
    • - no deficiency judgment
    • - but priority over some other claims
  89. Priority of Claims:
    • 1. funeral / last illness up to 15K
    • 2. family allowance
    • 3. expenses of admin
    • 4. IRS income taxes
    • 5. secured claims: to extent covered by lien and file as MSC
    • 6. child support arrearage
    • 7. state tax
    • 8. repayment of medicaid assistance
    • 9. cost of confinement if imprisoned in TX
    • 10. all other (including funeral/last illness > 15K)
  90. Insolvement Estate (set asides)
    1. homestead

    2. exempt personal property set aside: up to 60k. cattle/auto/furnishings

    • - jewelry limited to 15k
    • - exempt pp is temporary if estate is solvent (after admin, property passes by will)
  91. Emergency Intervention
    1. to pay funeral expenses

    2. protect personal property in rental unit

    • - 3-90 days after death
    • - any person can file as long as no application pending
    • - to w/draw funds from acct to pay funeral
  92. Independent Admin w/ Will Annexed - 145(c)
    - will doesn't provide for IA

    - all distributees agree and collectively designate NAMED EXECUTOR as Independent Exec.
  93. Independent Administration w/ Will Annexed - 145(d)
    - no named Executor

    - all distributees agree adn designate qualified person as Independent Executor
  94. Hearing Date
    Monday after 10 days from filing of Application

    Clerk posts notice
  95. Proof of Death and Other Facts
    • 1. person died less than 4 yrs
    • 2. cout has jx and venue
    • 3. citation served
    • 4. executor qualified and not disqualified
    • 5. will not revoked
    • 6. personal named as Exec or Ben agree to appointment (145)
    • 7. administration is necessary
  96. Hearing Docs (other than Proof of Death)
    1. Order Admitting Will to Probate

    2. Oath - must be signed w/in 20 days from Order signed
  97. Intestacy - Community Property
    With Descendants other than w/ SS (or pre-93 if desc were SS's descendants):

    - 1/2 to SS; 1/2 to Descendants

    Without Descendants or W/ Descendants of SS:

    - all to SS
  98. Intestacy - Separate Personal Property
    SS & Descendants (any):

    • - 1/3 to SS
    • - 2/3 to Descendants

    SS Only: All to SS

    Without SS or Descendants: 1/2 to Mom; 1/2 to Father
  99. Intestacy - Separate Real Property
    w/ SS & Children (any):

    • - 1/3 LE to SS
    • - 2/3 to Descendants (and remainder of LE)

    • w/ SS Only:
    • - 1/2 to SS
    • - 1/4 to mom; 1/4 to father

    w/o SS or Desc: 1/2 to mom; 1/2 to father
  100. Intestacy - Descendants but no SS
    In all cases, 100% to Descendants
  101. Joint Determination of Heirship and Ind. Admin
    • All beneficiaries must agree to
    • 1. Ind. Admin; and
    • 2. to the person serving as Administrator.

    • --Courts likely require two witnesses -
    • -- usually applicant (admin) and a disinterested witness, (even though you typically need two disinterested for Det of Heirship)--
  102. Ancillary Probate?
    Just get an Exemplified Copy from court and file in appropriate TX county

    transfers title
  103. Can a trust dictate whether a Trustee has to give an accounting?
    Settlor may not waive the Trustee's responsibility to provide accounts

    (Hollenbeck v. Hanna)
  104. Keep Beneficiary of Trust Informed?
    • Trustee shall keep B reasonably informed concerning:
    • 1 - administration of trust
    • 2- material facts necessary to protect intersts; BUT

    REPEALED - BUT still have common law duty to keep B informed
  105. ROS - new legislation
    A survivorship agreement will not be inferred from the mere fact that the account is a joint account or designated JTTEN, JT, or otherwise

    MUST SAY ROS, or ...

    Sufficient: On the death of one party to a joint account, all sums in the account on the date of the death vest in and belong to the surviving party as his or her separate property and estate
  106. POD
    only between the parties, so if X granted POD to A and B, and X dies - there is not a POD between A and B unless account specifies otherwise
  107. ROS - between H/W
    - both parties must sign if CP

    • (1) "with right of survivorship";
    • (2) "will become the property of the survivor";
    • (3) "will vest in and belong to the surviving spouse"; or
    • (4) "shall pass to the surviving spouse."
  108. ROS - who signs?
    only the decedent need sign the designation
  109. Determination of Heirship
    - No Will, no admin necessary

    • - may determine and declare in the manner hereinafter provided who are the heirs and only heirs of such decedent, and their respective shares and
    • interests, under the laws of this State

    - may also be used where G to determine where remaining assets go
  110. Determination of Heirship - who brings and what is in app
    brought by: personal rep, Exec, any person claiming prop, creditor, Guardian

    • 1. name decedent
    • 2. name/address/relationship heir and %
    • 3. info about unknown/deceased heirs
    • 4. all children are listed
    • 5. each marriage listed, with facts about each
    • 6. died w/ or w/o a will (and what was left out if had a will)
    • 7. description of property
    • 8. facts about any omission

    supported by the affidavit of each applicant
  111. Heirship - Parties
    The unknown heirs of such decedent,

    all persons who are named in the application as heirs

    all persons who are shown by the deed records of the county in which any of the real property described in such application is situated to own any share or interest in any such real property,
  112. Heirship - Citation
    • Citation shall be served by registered
    • or certified mail upon all distributees 12 years of age or older

    if executed the application need not be served

    • A parent, managing conservator, guardian, attorney ad
    • litem, or guardian ad litem of a distributee who is at least 12 years of age but younger than 19 years of age may not waive citation
    A statement of facts concerning the family history, genealogy, marital status, or the identity of the heirs of a decedent shall be received in a proceeding to declare heirship, or in a suit involving title to real or personal property, as prima facieevidence of the facts therein stated, if the statement is contained in either an affidavit or any other instrument legally executed and acknowledged or sworn to ... or any judgment of a court of record, and if the affidavit or instrument has been of record for five years or more in the deed records of any county in this state in which such real or personal property is located at the time the suit is instituted, or where decedent had his domicile at the time of his death.

    If there is any error in the statement of facts in such recorded affidavit or instrument, the true facts may be proved by anyone interested in the proceeding in which said affidavit or instrument is offered in evidence.
  114. Use Affidavit as the...
    Testimony of the 2 disinterested Witnesses; and

    Reduce to writing as "proof of facts"