wills I.txt

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wills I.txt
2013-06-23 21:24:54

Wills I
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  1. ***requirements for a duly executed will
    (1) signed by T; (2) 2 attesting W over age 14; (3) each w must sign in T's PRESENCE. also, T has to be at least 18
  2. these things are NOT REQUIRED by TX law
    no publication (w doesn't need to know it's a will); T doesn't need to sign in W's presence (can be done earlier); doesn't have to be at the foot or end of will
  3. the exact order of signing b/w Ws & T is not determinative where the execution ceremony is
  4. what counts as a signature?
    any mark intended to authenticate
  5. do witnesses have to signin EACH OTHER'S presence?
  6. does W have to know they're signing a will?
  7. do you need an attestation clause?
  8. what is an attestation clause?
    appears on the line below t's signature & above w's signature--recites elements for due execution.
  9. what is the value of an attestation clause?
    it is prima facie evid of the facts recited. it is useful if (1) w has bad memory; (2) hostile w
  10. the witnesses must sign in the T's
  11. what is the conscious presence test
    it means that the T must be conscious of the Ws & know what they are doing & be capable of seeing them by some physical exertion on his part. it is not necessary that T actually see the Ws
  12. how do you prove a will when one of the attesting w's dies?
    you can prove by the testimony of one W in open ct (can be by depo/interrogatory)
  13. how do you prove a will if all Ws are dead/missing
    testimony of TWO persons re: the handwriting of the T or handwriting of EITHER attesting W. If only one person can be located, that will do. presumption that the formalities are met, despite the lack of an attestation clause.
  14. what is appropriate probate/admin venue?
    county where decedent resided. if nonresident or no domicile, then (1) county where principal PROPERTY located; or (2) county where decedent DIED
    this is a substitute for live testimony of attesting Ws in open ct--you don't need them, it's the same. if you are missing sigsnatures, but the affidavit is signed, can substitute, but can only use the signatures ONE time--thus it won't be considered self-proved.
  16. does an intended ben have a cause of action against negligent atty?
    no--no privity of k. only duty to client who contracted for services.
  17. does an interested W affect validity of the will?
  18. a bequest to an interested W will be VOID UNLESS
    (1) will can be proved w/o interested W's testimony (that is, if the other W is alive); OR (2) interested W testimony si corroborated by testimony of a disinterested & credible person--this can be anyone that was there; OR (3) * where the interested W would be an HEIR if this particular will were NOT probated, then the interested W will take the least of the LEGACY under the will or the intestate share
  19. w/ a holographic will, first ask
    was this intended to be a will?
  20. can you introduce extrinsic evid w/r/t the issue of testamentary intent?
    yes if it is unclear
  21. what if part of the holographic will is typewritten?
    the will will be denied probate--it is all or nothing. UNLESS the typewritten part falls under the SURPLUSAGE RULE.
  22. what is the surplusage rule?
    extraneous printed words that are not necessary to complete the will or its meaning can be disregarded & this will not affect the admissibility of the will
  23. must a will be intended to take effect at death or can it be operative during lifetime?
    a will must be intended to take effect at death.
  24. what do you do if someone is about to die & can't write--can they make an oral will?
    no, the statute was repealed--use a proxy signature.
  25. what happens to a gift when a will beneficiary predeases the T?
    gift lapses--UNLESS saved by the ANTI-LAPSE STATUTE
  26. when does the TX anti-lapse gift statute apply?
    only when the predeceasing ben was a descendant of T's parents & the descendants survived by 120 HRS
  27. will terms that would negate the application of the anti-lapse statute
    if an alternate taker is named or if it states "if he survives me." these provisions provide for the contingency of death.
  28. does the antilapse gift rule apply to gifts of a residuary?
    this rule states that it will be split among the remaining residuary beneficiaries in proportion to their interest. This rule is trumped by the anti-lapse gift statute
  30. class gift rule of construction
    if a member of a class predeceases the T, the surviving class members will take--T was group-minded. HOWEVER, the ANTI-LAPSE STATUTE could apply. Look at the phrasing.
    the class closing rule of construction--the class closes when some class member is ENTITLED TO A DISTRIBUTION. however, it is subject to the GESTATION PRINCIPLE (300 day presumption)
  32. intestacy for CP survived by spouse: if survived by spouse & descends all of whom were descendents of the surviving spouse & decedent, then
    spouse takes all CP
  33. intestacy for SP PERSONAL PROPERTY when survived by spouse & children
    spouse takes 1/3, children. children/descendants, of this marriage or an earlier marriage, take 2/3
  34. intestacy for SP PERSONAL PROPERTY when survived by spouse BUT NO children
    all to surviving spouse
  35. intestacy for SP REAL PROPERTY when survived by spouse & children
    spouse gets 1/3 LIFE ESTATE; children get 2/3 LE & remainder
  36. intestacy for SP REAL PROPERTY when survived by spouse BUT NO children
    spouse gets 1/2 in FS; parents, descendants of parents get 1/2 in FS. but if no descendants or parents, or descendants of parents, all to surviving spouse.
  37. in any question discussing a surviving spouse, you should also mention
    HEF. homestead, exempt personal property set-aside & family allowance.
  38. how do descendents take in an intestacy situation in TX?
    per capita w/ representation - divide at the first generational level w/ living takers
  39. what if you die intestacy as a single person w/o descendants?
    give to the parents first, 1/2 each. if only one parent, that parent gets half w/ any brothers & sisters getting the rest. if no brothers & sisters then the parent will get the entire estate. if there are no parents, then it will go 1/2 to each set of grandparents (2 moeties) & so on w/o end (never escheats to the state b/c there is no laughing heir statute in tx)
  40. presumption of paternity under the family code
    child was born during (or 300 days after) marriage; parties married after birth & the man voluntarily asserts his parnity by filing a record w/ bureau of vital statistics consenting to being on birth certificate, promising in a record to support the child; OR during the first 2 years of the child's life he represents the child is his. or if a man signed a sworn statement acknowledging paternight. or paternity was established in a paternity suit. or paternity is established in a probate proceeding.
  41. how much do half-bloods inherit?
    half bloods inherit half as much as whole bloods
  42. unperformed agreement to adopt
    adoption by estoppel
  43. inheritance rights of adopted children
    adopted children inherit & you can inherit from your adopted child. adopted child can also inherit from natural born parents unless terminated by parent-child relationship. genetic parents can't inherit from a child that was given for adoption. also look for "born of my body"--this means only natural born children.
  44. the 120 HR RULE
    says that tyou have to survive by 120 hrs to take as a heir. otherwise read as though beneficiary predeceased. anti-lapse rule may apply in those situations (although remember anti-lapse only applies if there is a will). will not apply if the will requires SURVIVAL. 120 hr rule applies to life ins policies & joint & survivor bank accts, property held w/ JTWROS as well. applies to community property--if they die within 120 hrs of each other, just distribute half as if one predeased & half as if hte other predeceased.
  45. disclaimer by heir or beneficiary
    you can disclaim gifts. (1) must be written, signed acknowledged before notary. (2) must be filed within 9 MO after D's death. (3) must be filed w/ the probate ct w/ copy to personal rep. disclaimer can be partial. intestate heir can disclaim. if disclaimer, you treat as if disclaimant predeceased (thus may consider anti-lapse statute here). you mmay disclaim for gift tax purposes & to avoid creditor's claims
  46. in TX a lifetime gift is not treated as an advance unless
    (1) *declares in a CONTEMPORANEOUS writing by donor; (2) acknowledged in a writing by the donee
  47. What do you do if there is a marriage after the will?
    it doesn't affect the will. We have CP. but, you can get probate homestead or 15k cash allowance in lieu of homestead. family allowance ($$ for a yr). exempt personal property set aside or 5k. HEF.
  48. what about divorce after the will is exeuted?
    you treat as if former spouse & relatives of former spouse predecease. divorce revokes rule,.
    this is if you are born OR adopted AFTER the will is executed. if there are NO OTHER CHILDREN when will is executed, the child will take the inestate share of all property not bequeathed to the other parent of the child. if there ARE other children when the will is executed but they are NOT PROVIDED FOR, then it's the same as if there were no children at time of execution. HOWEVER, if there were children at the time of the will's execution & they ARE provided for, then it is limited to the intestate share of such gift & no one else's share is reduced. contribute pro rata here. the pretermitted child rule will not apply if the child is otherwise provided for by a nonprobate transfer that TAKES EFFECT UPON THE DEATH OF THE TESTATOR. can apply to children that are born out of wedlock.
  50. republication by codicil
    when you amend a will, it is the same as if you had just written it--it is republished. thus this can prevent the pretermitted child rule from applying.
  51. revocation of wills
    will can be revoked by (1) subsequent testamentary instrument executed w/ like formalities; or (2) by a physical act.
  52. presumptions re: revocation
    if a will is last seen in T's possession & not found afterdeath, then revocation is presumed. if last seen in T's possession & found torn up, then presumption T revoked. Don't arise if last seen w/ someone who is adversely affected by the will or if the presumption is rebutted.
  53. proof of lost wills doctrine
    cann probate a copy of the will that is not the original only if certain conditions are met. must establish: (1) DUE EXECUTION of the will. (2) CAUSE OF NONPRODUCTION of the will must be proved (must overcome presumption of revocation. (3) CONTENTS must be substantially proved.
  54. what happens if you cross out & modify part of a type-written rule
    has no effect at all. words added to a will are disregarded. cannot partially revoke a type-written will. use the plastic overlay sheet test--see if it makes sense outside of the context--then we may have a codicil. must write a new will or codicil--that's the only way to do it in tx. UNLESS the will is HOLOGRAPHIC. crossouts are valid if 2 people testify to handwriting. can do partial revocation of a HOLOGRAPHIC WILL.
  55. is there revival or revoked wills in TX?
    no. it is legally dead after revocation. must re-execute or republish w/ a duly executed codicil. UNLESS DRR applies
  56. what happens if there are two wills
    read them together. if second one is wholly inconsistent, revoked by implication.
  57. abatement of legacies
    intestate property; residuary gift( personal than real); general legacy (personal then real); ; specific devise or bequest (personal then real)
  58. ademption
    this is where a gift fails b/c it was not in the estate at death. ademption does not apply to demonstrative legacies (payment of general amount from a specific source)
  59. common law identity doctrine applied in TX
    probable intent is irrelevant--just apply the ademption rules