Texas Bar Essays Subjects Massive Review

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Texas Bar Essays Subjects Massive Review
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  1. Requirements for a valid will
    • Capacity
    • Intent
    • Formalites
  2. Testamentary Capacity
    18 years old (unless married or member of the armed force) and of sound mind
  3. Requirements to be of "sound mind"
    • Understand the nature and extent of your property
    • Understand the object of you bounty
    • Understand the nature of the document (it's a testamentary instrument that distributes property at death)
  4. Sound mind presumption
    Testator presumed to be of sound mind; if rebutted, proponent must show testator had capacity by preponderance
  5. Undue Influence upon Testator
    • Influence existed;
    • Subverted Testator's mind;
    • No will w/o the influence
  6. Factors for determining if undue influence happened
    • Opportunity;
    • Susceptibility;
    • Successfulness of person exercising influence
  7. Effect of Undue Influence
    Invalidates provision subject to influence;
  8. Wills: Fraud in the Execution
    Fraud as to nature of writing itself; will invalid
  9. Wills: Fraud in the Inducement
    Extrinsic facts which affect distribution (if testator knew the truth, would he do the same thing?)

    E.g., Child claims to be Testator's son, but he's not
  10. Wills: Mistake in execution
    Mistake as to nature of the document; will invalid
  11. Wills: Mistake in the inducement
    Testator is mistaken as to facts; no relief

    E.g., T thinks child is his of T's own accord, no on told him; kid isn't
  12. Conditional will
    Will won't take effect unless condition takes place ("If I during my trip...")
  13. Wills: Proxy signature
    Allowed if at Testator's direction and in his presence
  14. Wills: Witness requirements
    • Must see doc (don't need to know it's a will)
    • Can sign before T does, so long as it's a part of one continuous act
  15. Wills: Effect of being an interested witness
    You can get gift, but not more than your intestate share (unless corroborated by disinterested, credible witness)
  16. Integrated Wills
    Physical attachment to a will, not usu. valid
  17. Wills: Incorporation by Reference
    Allowed; instrument references another doc in existence and sufficiently ID'd in will
  18. Act of Independent Significance
    Will valid for some reason independent form role to distribute property (e.g., employee list)
  19. Codicil
    Amendment to will; must meet req's of regular will
  20. Divorce effect upon will
    Ex-spouse treated as though he predeceased testator
  21. Will revocation
    Testator took action that showed intent to revoke will, expressly or impliedly
  22. Partial revocation of will by physical act
    Not possible in Texas; all or nothing
  23. Revocation effect on copies on will
    Revocation of one executed copy by physical act = revocation of all copies
  24. Presumption when estate can't find will when will was in testator's possession
    • Presumed it was destroyed; rebutted by extrinsic evidence
    • Show:
    • 1) evidence that a will existed in the first place;
    • 2) what happened to the will; and
    • 3) the intended disposition of the will.
  25. Will revival
    Bring will back to life; 2 new witnesses needed w/ appropriate formalities
  26. Republication of will
    Reincorporation by reference of will (T makes will 1, revokes it, makes will 2, makes codicil saying "codicil in addition to will 1.")
  27. Dependent Relative Revocation
    Testator has valid will then revokes to make alternative (invalid) disposition; the first will remains in effect
  28. Types of Distributions under a will
    • Specific;
    • Demonstrative ($100,000 from sale of house);
    • General ($100,000 from will);
    • Residuary;
    • Intestacy

    DEBTs are collected in reverse, collecting personal before real in each category
  29. Wills: Satisfaction
    • Testator gives inter vivos gift:
    • (1) wills says it was satisfaction at time;
    • (2) testator notes in contemporaneous writing; or
    • (3) or beneficiary recognize its satisfaction in a later writing
  30. Wills: Advancement
    • Advance on intestate share; inter vivos gift meant in lieu of intestate share
    • Proven by testator (contemporaneous)  or beneficiary's (later/contemporaneous) writing
  31. Increase in estate property
    • Before death: Goes to estate
    • After death: specific: goes to beneficiary; general/demonstrative: general estate
  32. Exoneration: Common law
    Estate pays of encumbrance on property
  33. Exoneration: Date
    Sept. 1, 2005
  34. Exoneration: Texas Current Law
    No exoneration unless will says so (wills after Sept. 1, 2005)
  35. Lapse
    Beneficiary predeceases testator; gift lapses
  36. 120 hour rule
    If beneficiary does not outlive testator by 120 hours, he is said to have predeceased testator
  37. Anti-Lapse
    Beneficiary predeceases testator and is descendant of testator or his parent, no lapse; passes to beneficiary's descendants
  38. Will: Disclaimer
    • Written;
    • Signed;
    • Verified;
    • Filed w/in 9 mos of death;
    • Filed w/ ct. and personal rep;
    • Can be partial;
    • Is irrevocable
  39. Pretermitted Child
    Child not mentioned in will who was born/adopted after will execution
  40. Pretermitted child: Claim to estate
    • Entitled to intestate share UNLESS:
    • Will disinherits child;
    • Transfer to child outside will;
    • Provision made for ≥1 child living at time of will, PC gets equal share to living children
  41. Charitable trust difference
    • Don't require ascertainable beneficiaries; 
    • AG enforces on behalf of public;
    • Must be created for charitable purpose;
    • Cy pres allowed to reform purpose of trust
  42. Requirements for Valid Trust
    • Ascertainable beneficiary;
    • Mechanics;
    • Proper purpose;
    • ID'able corpus;
    • Intent

    AMP II
  43. Trust creation capacity
    18 and of sound mind
  44. Trusts: Settlor retaining too much control
    Trust destroyed
  45. Trust: Intent
    Manifestation of intent w/ putting res in trust; no specific language needed (but don't be wish-washy)
  46. Effect of Beneficiary of Trust being the Trustee
    Not allowed UNLESS there are multiple beneficiaries
  47. Trusts: Class gift problems
    ≥1 person of class must be definitely ascertainable

    E.g., "To my friends" ≠ valid trust because we don't know who "friends" are
  48. Mechanics of Creating Trust
    Settlor declares he holds property in trust for certain beneficiaries; splits legal and equitable title
  49. Testamentary Trust
    Trust created through will
  50. Pour-over Provisions
    Property in estate "pours over" into a trust created by Testator inter vivos
  51. Trustee Powers
    • Expressly granted
    • Sell
    • Invest
    • Apportion
    • Invade principal
  52. Trustee delegating his powers
    Nope, unless for a short time
  53. Co-trustee voting requirements to take action
    • Majority; unanimity not required;
    • Co-trustee has duty to prevent breach by other co-trustees––trustee should not participate in transaxn and express dissent in writing
  54. Trustee Duties
    • MAD CaRL
    • Make trust property productive;
    • Account (to ct every 12 most, to B when requested [within reason]);
    • Defend;
    • Collect/preserve/segregate trust corpus;
    • Reasonably invest (reasonably prudent investor);
    • Loyalty and care
  55. Remedies against Trustee
    • Injunction;
    • Rescission;
    • Damages from breach;
    • Removal
  56. Trustee Liability to 3d Parties
    • Trust can't be sued or sue; Trustee must do both
    • On K: Sue trustee; trustee can seek indemnity or reimbursement if K was proper and breach wasn't result of trustee's duty
    • On tort: Personal liability from tort committed by Trustee in the course of administration; collectable from trust corpus
  57. Beneficiary of trust ability to bring suit for trust
    • Trustee won't;
    • Trustee knowingly participated in causing loss to trust;
    • Trustee has abandoned trust
  58. Trust: Apportionment: Income
    • Cash Dividends: Treated as income (to B);
    • Stock Dividends: Treated as principal (to remainderman);
    • Wasting assets [property depleted by its use, e.g., lumber]: Remainderman gets hosed, so treat all fairly, separate between corpus and income
  59. Trust: Expenses
    • Ordinary: Charged to income
    • Extraordinary: Charge to principal
  60. Trusts: Transfers of Beneficiary Interest
    General rule: Freely transferable, creditor can attach trust interests
  61. Discretionary Trust
    Trustee has discretion to determine what beneficiary gets; beneficiary cannot force testator to exercise discretion
  62. Spendthrift Trust
    Beneficiary can't transfer his interest, but creditor can't reach trust (can only get beneficiary's distributions after they're made)

    (Government can get to trust)
  63. Trust: Modification by Settlor
    Revocable trust: Can modify (but too much = trust fails)
  64. Trust: Modification by Beneficiary
    Can't do it UNLESS he can show special circumstances for modificatino that does not harm purpose of trust or other beneficiaries; court can approve
  65. Trust: Termination
    If revocable, terminable (if not, not terminable);
  66. Trust: Termination by Beneficiary
    If all beneficiaries consent and early termination doesn't violate a material purpose of trust
  67. Cy pres
    If settlor had general charitable purpose and original purpose is unattainable/fulfilled, ct. can change purpose to keep trust alive
  68. Resulting Trust
    Trust fails, returns res to settlor or his estate
  69. Constructive Trust
    Avoids unjust enrichment
  70. Purchase money resulting trust
    Pay money and title goes elsewhere (if to a child, presumed gift; if not, presumed PMRT)

    E.g., A buys car and pays purchase price and transfers title to C. If A can prove this wasn't a gift, C would hold title in PMRT, A can get car back to reunify title
  71. Requirements to be guardian
    • Adult;
    • Competent;
    • Good character;
    • Not intebted/in lawsuit with ward
  72. Types of Guardiance
    • Of the person;
    • Of the estate
  73. Burden to require guardian
    • C&C ev.: Ward is incapacitated and guardian is in his best interest
    • Preponderance: That person selected is qualified to be guardian
  74. Powers of Guardians of the Person
    • Physical possession of ward;
    • Determine domicile;
    • Care and protection for ward
  75. Powers of Guardian of Estate
    Possess and manage all of ward's property (can't purchase or exchange prop., settle estate claim, or abandon worthless prop. w/o ct. order)
  76. Guardian: Duties
    • Fiduciary
    • Of the person: Duty of care (provide food, etc.)
    • Of the estate: Duty to manage the estate as a reasonably prudent person
  77. Guardian reimbursement rights
    Reimbursed for necessary and reasonable expenses incurred in caring for ward or his estate
  78. Guardian compensation
    Allowed; at ct's discretion; paid from estate or special gov't funds

    • Reasonable:
    • Person: 5% of ward's gross income
    • Estate: 5% of ward's estate paid out
  79. Modification of guardianship
    Any person acting in best interest of ward can commence modification proceeding; ward needs atty ad litem
  80. Guardianship termination
    Any person acting in best interst of ward can commence modification proceeding; ward needs atty ad litem

    If ct finds by preponderance that guardianship isn't needed, ct. will terminate
  81. Guardianship of person terminates when...
    Capacity restored; suit to terminate is commenced; and ct orders
  82. Guardianship of estate terminates when...
    • Minor ward is 18;
    • Estate of ward exhausted
  83. Tax: Gross Income
    All income, from whatever sources derived, including compensation, interest, rent, etc.
  84. Death benefits paid by reason of death: Income?
    Nope.
  85. Gifts: Income?
    Nope
  86. Interest of gov't obligations (e.g., bonds): Income?
    Nope
  87. Compensation for injuries or sickness when P.I.: Income?
    Nope.
  88. Meals/lodging furnished at convenience of employer: Income?
    Nope.
  89. Gain of sale of residence: Income?
    Nope; if personal and only extends to $250K [single] or $500K [married]
  90. Tax: Ownership and Use Test
    During 5 year period, owner must own/use prop. for >2 years in order to exclude gain on sale of residence
  91. Illegal activities resulting in gains: Income?
    Yep.
  92. Rent: Income?
    Yep.
  93. Prizes/awards: Income?
    Yep.
  94. Scholarships: Income?
    Nope; unless scholarship depends upon student conferring benefit on school = income to FMV of svc.
  95. Gifts to employees: Income
    Yep; unless close familial relationship and context makes it look like a gift
  96. Tax: Trade/Biz expenses
    "Ordinary and necessary expenses" paid or incurred while carrying on biz: Deductible
  97. Biz use of a home: Deductible?
    Nope, unless it's "continuously and regularly" used for biz purpose
  98. Education expenses: Deductible?
    Yep, but only continuing education (e.g., CLE), not education needed to enter a trade (e.g., law school)
  99. How big must estate be to be subject to estate tax?
    >$5M
  100. Gift made in contemplation of marriage
    Gift w/ condition subsequent (marriage)

    TEXAS: Fault-based approach, breaker gets hosed
  101. Prenups: Requirements
    • Valid in Texas;
    • Capacity to K;
    • Voluntarily entered;
    • Signed writing;
    • Effective upon marriage
  102. Requirements for Formal Marriage
    • License (72 hour wait, unless good cause/armed forces);
    • Before 30 days from getting license;
    • Conducted by person authorized
  103. Req'd for people <18 to get married
    • 16-18: Ct. order or parental consent
    • <16: Ct. order only
  104. Requirements for Informal Marriage
    • Agreed to be married;
    • Lived together in Tex. as H/W;
    • Represented they were married;
    • No defined time: Longer = more likely; BUT, ceasing to live together before 2 years = presumption of non-marriage
  105. Requirements for Declaration of Marriage
    • Written and signed "declaration of informal marriage" w/ vital statistics office;
    • Agreed to be married;
    • Lived as H/W;
    • Represented they were married; and
    • Haven't been married to anyone else
    • Minors can't do this
  106. Nonage
    Impediment to marriage:

    • One/both parties are <16 w/o ct. order: marriage void
    • Both parties ≥16L marriage voidable
  107. Marriage: Consanguinity
    Voids incestual marriages
  108. Marriage: Bigamy
    Void marriage
  109. SSM/Civil union
    Void; not allowed in TEx.
  110. Marriage: Impotence
    • Marriage voidable if:
    • Either party permanently at time of marriage;
    • Pet'r didn't know of it;
    • Pet'r hasn't voluntarily cohabited w/ impotent spouse since learning of it
  111. Marriage: Intoxication
    • Marriage voidable if:
    • Pet'r was under the influence and lacked capacity;
    • Hasn't voluntarily cohabited since intoxicating effects ended
  112. Marriage: Fraud, duress, force
    • Marriage voidable if:
    • Other party used fraud, etc. to induce;
    • Pet'r hasn't voluntarily cohabited w/ party since learning of fraud/escaping duress/force
  113. Marriage: Effect of lack of mental capacity
    • Marriage voidable if:
    • At marriage, one party didn't have mental capacity/understanding of nature to consent; AND
    • Pet'r hasn't voluntarily cohabited w/ other party after capacity returned or pet'r should have discovered mental defect
  114. Concealed divorce
    Divorcees can't marry 3d party w/in 30 days after divorce decree; voidable if you do
  115. Anullment
    Marriage never occurred, BUT cts can do just/right division of CP and award maintenance
  116. Putative spouse
    Protects person who believes he's married but there's an impediment to marriage; gives rights he'd have had if validly married
  117. Marriage: Cure of impediment
    If parties continue to cohabit, automatically validly married
  118. Protective Order: Temp. ex parte order
    • Requirements:
    • Sworn application by party seeking protection; and
    • Finding by court that there is clear and present danger of family violence
    •  
    • Protects against domestic violence; extraordinary relief; no notice req'd to respondent;
    • Enforced by contempt of court
  119. Temp. Ex Parte Order: Duratin
    20 days (unless extended by ct. sua sponte or upon petition)
  120. Protective Order Requirements
    • Family violence has occurred; and
    • Will occur in the future;
    • Ct must issue if it finds these
  121. Effects of protective order
    • Stay away provisions (including places);
    • No comms;
    • No harassing, annoying, embarrassing conduct;
    • No firearm possession;
    • no more violence; and
    • No harming/threatening pets
  122. Protective order: Duration
    up to 2 years (or longer if respondent caused serious bodily harm to pet'r)
  123. Protective Order: Enforcement
    Arrest w/o warrant (copy must arrest w/o warrant if respondent violates provision of Order)
  124. Marriage: Support Obligations
    Each spouse must support the other
  125. Spouse tort liability
    Spouses can sue each other; not vicariously liable for each other's torts, but comm. prop. can be obtained by tort-creditor
  126. Spouse: Rape exemption
    Gone. No means no.
  127. Divorce: SMJ
    • Required:
    • Domicile of ≥1 spouse in texas for >6 mos prior to divorce OR in county for 90 day period; AND
    • Valid marriage
  128. Divorce: Personal Jx
    Not req'd unless seeking an in personam judgment
  129. Divorce: Long arm
    • If pet'r is resident of Tex. at time suit is file, ct. can have personal jx. over nonresident if:
    • Tex. was last marital residence of the parties; and
    • Pet. was file w/in 2 years since couple ceased having marital residence in Tex.
  130. Divorce: Waiting period
    No sooner than 60 days after pet. was filed
  131. Divorce: Temporary Orders
    Orders during the pendancy of divorce; prevents spoliation, concealing property, spending more money than reasonably necessary
  132. Divorce: Mediation
    Sua sponte or by agreement
  133. Divorce: Counseling
    Ct. may order parties to counseling; if ct. believes reconciliation is possible, it can continue the proceedings and direct parties to continue counseling for up to 60 days
  134. Divorce: Collaborative law process
    Wretten agreement to engage experts, advisors, and professionals to serve in neutral capacity; avoids battle of experts (but if it falls apart, each side has to get new attys and go to court)
  135. Divorce: Right to jury trial?
    Yep.
  136. Divorce: Grounds: Fault
    • Fault:
    • Abandonment (left for ≥1 year);
    • adultery;
    • cruelty (needs course of conduct rendering marriage intolerable);
    • felony conviction w/ prison ≥1 year
  137. Divorce: Grounds: No-fault
    • Insupportability ("Discord or conflict destroying legitimate ends of marriage w/ no expectation of reconciliation");
    • Living apart for ≥3 years;
    • Confinement in mental hosp. for ≥3 years
  138. Divorce: Property Division
    Must be just and right having due regard to both parties and any children thereof (doesn't mean 50/50)
  139. Just and Right Division: Factors
    • Main factors:
    • Earning capacity;
    • Bax consequences;
    • Fault;
    • Benefits innocent spouse would enjoy if marriage had continued
  140. Divorce: Atty fees source
    Community property
  141. Divorce: Jury verdict in property division
    Advisory only! Ct. has ultimate say.
  142. Divorce: Settlement
    Parties can agree to property division and submit it to court; court can accept or schedule a hearing, it cannot just modify the agreement
  143. Spousal maintenance
    • Allowed by ct decree or agreement;
    • Req's:
    • Payor has committed family violence ≤2 years divorce pet.;
    • Marriage ≥10 years;
    • Spouse can't meed reasonable needs;
    • Unable to earn sufficient income to provide for min. reasonable needs because of disability; OR
    • Custodian of child who needs substantial personal supervision due to disability and spouse can't earn sufficient income to provide for min. reasonable needs because of it
  144. Spousal Maintenance: Factors for awarding
    • Ability to provide for min. reasonable needs;
    • Education/skills/time needed to get them;
    • Duration of marriage;
    • Contribution to spouse as homemaker;
    • Marital misconduct
  145. Spousal maintenance: Limitations on Payments
    Less of $5000 or 20% monthly gross income
  146. Spousal maintenance: Duration
    • ≤20 years: 5 years;
    • 20≤30 years: 7 years;
    • >30 years: 10 years max
  147. Spousal maintenance: Mod/termination
    Upon motion and proper showing of material and substantial change of party to marriage or child
  148. Spousal maintenance: Enforcement
    Contempt and garnishment of wages
  149. Rights of illegitimate children
    • Right to support if legit children have support;
    • Right to inheritance from mom and bio-dad
  150. Establishing mother-child relationship
    • Woman gave birth to child;
    • Adopted child;
    • Had maternity adjudicated
  151. Establishing Father-child relationship
    • Unrebutted presumption;
    • Acknowledgement;
    • Adjudication;
    • Adoption;
    • Consented to IVF and baby results
  152. Presumptions of Paternity
    • Married during conception/birth;
    • Married after birth and man voluntarily listed as factor, record filed w/ state includes this assertion, or man promised to support child as his own;
    • During first two years of child's life he is in same house and holds child out as his own
  153. SoL for establishing parent-child relationship
    • No presumed father: Indefinite;
    • Presumed father: 4th birthday unless lack of access (didn't live together nor had sex during conception time) OR mistaken paternity (presumed dad mistakenly believed he was bio-dad based upon misrep)
    • Lack of Access/Mistaken Paternity: Indefinite
  154. Establishing parent-child relationship: Standing
    Child, mother, man wishing for adjudication of paternity, gov't agency, auth. adoption agency, person related to mother w/in 2° of consanguinity, or intended parent
  155. Parental rights
    Custody/control of child (religious, moral, and educational decisions); discipline; support and provided w/ needed clothes, food, shelter, medical and dental care, and education
  156. SAPCR
    • Suit affecting parent-child relationship;
    • Managing or possessory conservator appointed, access to child established, or termination requested
  157. SAPCR: Standing
    Parent; gov't; person in actual care, control, and possession ≥6 mos (or ≥12mos for fostered kids); or relative w/in 3° consanguinity
  158. SAPCR: Grandparents
    Can request managing conservatorship to protect kids' health or emotional development

    CANNOT file the suit, must join existing suit
  159. Termination of parental rights
    • Involuntary
    • Voluntary
    • Termination ≠ no support obligations
  160. Req's for voluntary termination
    • Signed >48 hrs after birth;
    • Two credible witnesses;
    • Verified
  161. Adoption
    • Adults can adopt (married or unmarried);
    • Look to child's best interests
  162. Adult adoption allowed?
    Yep.
  163. Who must report child abuse?
    Anyone w/ cause to believe child's physical/mental health has been affected by abuse/neglect must report immediately
  164. Professional's requirement to report child abuse
    NOT PROTECTED BY PRIVILEGE; must report w/in 48 hours
  165. Physician duty to report child abuse
    Must report to CPS and refer minor to them for svcs/intervention.
  166. Managing conservator rights
    Make maj. decision about child
  167. Joint managing conservatorship
    Sharing rights to child
  168. Primary managing conservator
    Chooses primary residence of child (can be limited by ct. to specific geographic area)
  169. Possessory conservator
    Right to possession of child, other rights are limited
  170. Favored parties to be managing conservators
    Parents; ct. must appoints parents unless it's not in child's best interest due to impairment of child's physical health or emotional development

    Rebuttable presumption that parents are in the best interest of the child
  171. Std. Possession Order (SPO)
    Rebuttably presumed to be in best interst of children >3 years (<3 years, ct. will grant possession as needed under circumstances)
  172. Agreed parenting plan
    Parents can agree to plan; ct. will approve or set hearing, can't just modify agreement
  173. Conservatorship: Jury trial?
    • Allowed w/ respect to conservator appointment;
    • Which managing conservator will be primary; and
    • Whether there will be geographic limits

    JNOV req'd: Can't just reject jury findings, must order new trial if verdict is against the great weight of the evidence

    CAN'T have jury for child support or specific conditions of child possession/access
  174. Grandparent/3d party rights to children
    Ct. can order reasonable possession/access to GP if GP overcomes presumption that parent acts in best interest of child by preponderance that child's mental health/physical well-being will be harmed w/o possession
  175. Grandparent rights to children: standing to bring suit for access
    Bio-GPs have standing to request access
  176. Enforcement of Possession order for child
    • Habeas petition:
    • File verified application to take custody of child;
    • Heard on next judicial day after writ is executed; and
    • Ct. finds applicant for writ is entitled to possession;
    • Court shall return child to applicant
  177. Child support: Limits
    20% (+5% per each child up to 40%) of net resources UP TO $7500 of obligor's income

    (e.g., if obligor makes $21,000/mo, his max support for one child will be $1,500 [20% of 7,500])
  178. Child support: Medical support
    • Must carry child on his ins. or reimburse obligee;
    • Cost of complying is not calculated in net resources
  179. Effect of failing to pay support upon possession of child
    Nothing––can't deny access for failure to pay
  180. Child support: Income withholding
    Ct. must order but obligee needn't enforce
  181. Child support: Duration
    • Later of 18 years or high school graduation;
    • Emancipation;
    • Death;
    • Indefinitely if child is disabled
  182. Child support: Retroactive
    Allowed, but usu. not for longer than 4 years previous
  183. Child support: Enforcement
    Needs personal jx.: Garnishment, any means ct. can use for judgment on debt
  184. Interstate Family Support Act: Long Arm
    Indiv. had sex in Texas and child was conceived here, but he's never returned; has jx.
  185. Interstate Family Support Act: Continuing jx
    Once a state has jx, it continues until both obligor and obligee leave Texas
  186. Interstate Family Support Act: Enforcement
    Crosses state lines; direct enforcement allowed (no ct. order needed to garnish)
  187. Uniform Child Custody Jx. And Enforcement Act: Home State Jx.
    • Child lived w/ parent in state for ≥6 most (if ≤6 mos, since birth); then
    • No other state is child's home and ≥1 parent has "significant connection" w/ Texas; then
    • No other home state, no substantial connections, but Tex. is more "appropriate forum jx."; then
    • No other state would have jx. under above stds (vacuum jx)
  188. Uniform Child Custody Jx. And Enforcement Act: Declining jx
    Any court can decline jx., will drop to next possible jx. on list
  189. Uniform Child Custody Jx. And Enforcement Act: Continuing jx.
    Once state has jx, it keeps it until neither child nor obligor nor obligee live in state (unless they consent to state's jx)
  190. Uniform Child Custody Jx. And Enforcement Act: Temp Emergency Jx
    • Child in state and has been abandoned; or
    • Child/sibling/parent is subjected to/threatened with mistreatment/abuse
  191. Uniform Child Custody Jx. And Enforcement Act: Interstate Enforcement
    Other state's custody order can be enforced in Tex. if registered; Tex. ct. can grant any relief available under Tex. law to enforce registered child custody determination
  192. DTPA:
    Liberally-construed law to protect consumers against deceptive acts by any seller
  193. DTPA: Consumer
    Person who seeks or acquires goods or services by purchase or lease (unless a biz w/ gross assets of ≥$25M)
  194. DTPA: Prof'l services
    No DTPA for jobs whose essence is providing advice, jgmt, opinion, or prof'l skill; applies to attys, physicians, and accountants
  195. When does DTPA apply to prof'l services?
    • Express misrep of material fact not qualifying as advice, etc.;
    • Failure to disclose information in order to induce consumer to enter transaxn;
    • Unconscionable actions;
    • Breach of express warranty
  196. Does DTPA apply to PI?
    Nope (can get mental anguish, though).
  197. DTPA: Transaxns w/ Ks' for >100K
    • DTPA doesn't apply if:
    • K relates to transaxn costing >$100K;
    • Consumer repped by atty (not provided/suggested by ∆);
    • K doesn't involve consumer's residence
  198. DTPA: $500K agreement (no K needed)
    • DTPA won't apply if:
    • Transaxn >$500K; and
    • Doesn't involve consumer's residence
  199. Advertising publisher's liability under DTPA for the ad of an advertiser?
    None.
  200. DTPA: Defendant
    Anyone who violates DTPA so long as goods/services form basis of complaint and ∆ acted in connection w/ consumer transaction
  201. DTPA: Privity requirement
    Nope.
  202. DTPA: Waiver
    • Nope, unless:
    • Signed (by consumer) writing;
    • Not in disparate bargaining position;
    • Consumer repped by atty (of his own choosing);
    • Waiver conspicuous, bold, 10 pt; and
    • Title "Waiver of Consumer Rights"
  203. DTPA: Cumulative remedies allowed?
    Yep; DTPA provisions not exclusive and can bring along w/ other laws/CoAs; can't recover under DTPA and another law for same act
  204. DTPA violations
    • Laundry list;
    • Breach of express/implied warranty;
    • Unconscionable actions;
    • Violation of Ch. 541 of the Tex. Ins. Code
  205. Main DTPA laundry list provisions
    • (5) repping that g/s have characteristics/benefits they don't have;
    • (7) repping g/s are of particular std, quality, or grade, when they are of another;
    • (12) repping that agreement confers rights, remedies, or obligations it doesn't confer;
    • (22) repping that work/svcs were performed when they weren't;
    • (24) failing to disclose info w/ intent to induce the transaxn consumer couldn't have entered w/ the information
  206. Warranties under DTPA
    • DTPA doesn't create, allows CoA under:
    • UCC warranties of merchantability/fitness for particular purpose;
    • Warrant to repair in good and workmanlike manner
  207. DTPA: Unconscionability
    Act/practice that takes advantage of lack of knowledge, experience, ability, or capacity to a grossly unfair degree
  208. DTPA: Statutory defenses
    • Obtained repped info from official gov't records;
    • Obtained from another source (e.g., mfg tells dealer car gets 30 mpg when it doesn't);
    • Concerning test req'd by gov't agency
  209. DTPA: Producing cause
    Substantial factor that brought about the injury and w/o which the injury would not have occurred (no need for foreseeability, though)
  210. DTPA: SoL
    2 years after discovery/should have discovered false/misleading act occurs

    Extended by 180 days if consumer proves delay was caused by ∆'s knowing conduct calculated to induce consumer to refrain from filing suit
  211. DTPA: Notice
    • 60 days written notice:
    • Detailing specific complaint; and
    • Damages for and atty fees to date
    •  
    • Not needed if <60 days from SoL running or claim asserted as counterclaim
  212. Effect of failing to give proper notice for DTPA claim
    ∆ files plea in abatement w/in 30 days of original answer; suit must be abated until proper notice given
  213. DTPA: Mediation
    Either party can file mot. to compel mediation; if <$15K, moving party must pay costs
  214. DTPA: Mediation request deadline
    W/in 90 days from service of pleading seeking relief
  215. DTPA: Settlement offer deadline(s)
    W/in 60 days after filing suit; THEN w/in 90 days after answering; THEN w/in 20 days after mediation concludes
  216. DTPA: Settlement offer contents
    Offer to pay damages and reasonable atty fees incurred to date
  217. DTPA: Settlement deemed rejected after ____ days after tender w/o acceptance.
    30
  218. DTPA: Effect of rejecting settlement offer
    If it goes to trial and damages = or substantially =, or are more than dmgs found by trier of fact, π recovers the lesser of damages tendered in settlement or found by trier of fact

    Can limit atty fees, too! If amt is =, substantially =, or more than offered amount
  219. DTPA: Remedies
    Economic, mental anguish, trebled
  220. DTPA: Economic Damages
    Compensation for pecuniary loss (including costs of repair/replacement)

    DOES NOT cover punitives, P&S, mental anguish, loss of consortium, physical impairment
  221. DTPA: Mental anguish damages
    Available if ∆ acted knowingly/intentionally
  222. DTPA: Treble damages: Knowing
    Treble economic damages and then mental anguish damages
  223. DTPA: Trebled damage: Intentional
    Trebled economic damages AND Trebled mental anguish damages
  224. DTPA: Atty fees
    • π: Shall be awarded if π is successful;
    • : If successful and suit was groundless and brought in bad faith/harassment purposes, can get atty fees
  225. DTPA: Tie-Ins
    Allow other specifically-noted statutes to be enforced under DTPA; allows recovery (and trebling) of actual damages
  226. DTPA: Main tie-ins
    • Health spa act
    • Home solicitation act ($25/$100, three day cooling off period)
    • TDCA
  227. FDCPA:
    (Federal) Fair Debt Collection Practices Act
  228. FDCPA: Applies to...
    "Regularly engaged" collectors collecting on 3d party's behalf
  229. FDCPA: Communications with 3d parties
    • NOT allowed unless:
    • To obtain debtor location;
    • W/ prior direct consent of consumer;
    • W/ express permission to ct.; or
    • As needed to effectuate post-jgmt judicial remedy
  230. FDCPA: Communications with 3d parties: Things they're not allowed to say/do
    • Consumer owes debt;
    • No more than one contact (unless person requests them to call back);
    • No postcards about debt;
    • No language/symbols to communicate collector is in collection biz; or
    • Only contact atty once collector knows consumer is repped by one
  231. FDCPA: Communications with consumer
    • No unusual time/place;
    • If knowledge consumer is repped by atty, must contact atty; 
    • If consumer's employment prohibits consumer from receiving such comms
  232. FDCPA: Ceasing comms
    Must stop if consumer notifies in writing that he refuses to pay debt or wants collector to stop
  233. FDCPA: Debt validation
    • Collector must give accurate notice about existence and amt of debt:
    • W/in 5 days from call;
    • Amount of debt;
    • Name of creditor;
    • Request w/in 30 days to verify will req collector to send verification;
    • No answer w/in 30 days = validation of debt;
    • If requested, will provide name of original creditor
  234. FDCPA: Disputed debts
    If consumer notifies collector w/in 30 days, collector must cease collection of debt until they validate the debt
  235. FDCPA: Overshadowing
    Collector can't demand consumer pay immediately or take axn prior to end of 30 day dispute period
  236. FDCPA: Prohibited conduct
    • No harassment/abuse;
    • No making threats;
    • No false or misleading statements, or unfair pracices
  237. FDCPA: Enforcement
    Violator liable for atual damages and additional damages not to exceed $500
  238. FDCPA: Factors for additional damages of up to $500
    • Frequency;
    • Nature; and
    • Intentionality of noncompliace
  239. FDCPA: Defenses
    Bona fide error: violatio was unintentional and a bona fide error, notwithstanding procedures in place to avoid such violations
  240. FDCPA: SoL
    1 year from date act occurs
  241. FDCPA: Effect on state law
    Doesn't alter, annul, or affect anyone from complying w/ state laws!
  242. FDCPA: Venue
    Where underlying K debt was signed
  243. FDCPA: Use of collectors real name
    Required when calling; must ID collection services real name
  244. TDCA: Application
    Not just to 3d party debt to collectors and allows criminal penalties
  245. TDCA: DTPA actionable?
    Yep.
  246. TDCA: Bond req
    Collectors must post ≥10K bond, send SoS copy
  247. TDCA: Prohibited acts
    Threats/coercion; Harassment/Abuse; Unfair/unconscionable means; Fraudulent, deceptive, or misleading reps
  248. TDCA: Liability of creditor for 3d party collector
    None unless knowledge it repeatedly or continuously engaged in violations of TDCA
  249. TDCA: Enforcement
    • Criminal: $100–$500 per violation; misdemeanor
    • Civil: Injunction; actual damages
  250. TDCA: Atty fees?
    Yep. Same as DTPA circumstances.
  251. TDCA: Bona fide error defense
    Yep; available to collector/creditor
  252. 541:
    Prohibits unfair competition in insurance and unfair/deceptive acts or practices
  253. 541: DTPA actionable?
    Yep.
  254. 541: Unfair competition
    No misrepping policy Ks, false info/ads, defamation of insurer, etc.
  255. 541: Unfair/deceptive acts/practices:
    • Misrepping material fact/policy provision at issue;
    • No good-faith attempt to effectuate prompt, fair, equitable settlement of claim after its liability is clear;
    • No prompt provision of reasonable explanation for reason of denial or offer of settlement;
    • Failing w/in a reasonable time to affirm/deny coverage or submit reservation of rights; and
    • Refusing to pay claim w/o conducting reasonable investigation w/ respect to claim
  256. 541: 3d party claims
    Not allowed (e.g., person I get in a wreck with is dissatisfied w/ my ins. co.)
  257. 541: Standing
    Any person suffering damages under the act
  258. 541: Notice
    Same as DTPA
  259. 541: Remedies
    Actual, injunctive relief
  260. 541: Atty fees
    Same as DTPA
  261. 541: SoL
    Same as DTPA
  262. 541: Medation
    Same as DTPA
  263. 541: Settlement
    Same as DTPA
  264. 541: Obtaining income tax returns
    Not w/o court order
  265. Unfair Claim Settlement Practices Act
    • No misrepping pertinent facts/policy provisions;
    • Can't fail to acknowledge w/ reasonable promptness comms relating to claim;
    • No stds for prompts investigation for claim;
    • Several others, see notes
  266. Unfair Claim Settlement Practices Act: Enforcement
    State Dep't may enforce
  267. 542:
    Prompt payment of claims
  268. 542: DTPA actionable?
    Nope.
  269. 542: Receipt of notice of claim
    • W/in 15 days, must:
    • Acknowledge receipt of claim;
    • Commence investigation of claim;
    • Request all times that insurer reasonably believes will be required from claimant
  270. 542: Notice of acceptance/rejection of claim
    W/in 15 days of all items needed to secure proof of loss, notification in writing
  271. 542: Payment deadline
    W/in 5 days of accepting claim
  272. 542: Delay in payment of insurance claim
    For >60 days, insurer pays claim + 18% interest
  273. Insurer Duty of Good Faith and Fair Dealing
    First party breach: Insurer fails good faith attempt to effectuate fair, prompt, and equitable settlement of claim when insurer's liability becomes clear

    3d party claims: Stowers Doctrine: If insurer rejects unconditional settlement offer in policy limits and case goes to trial, ins. co. must pay entire jgmt, even if outside coverage limits
  274. What must LT and remainderman pay on land? (E.g., it's encumbered by a mortgage)
    A person holding a remainder in a mortgaged property has a duty to pay the principal.

    A life tenant has a duty to pay the interest on a mortgage.

    However, the life tenant's duty is capped at: (1) rents and profits derived from a third person in possession of the property; or (2) the reasonable rental value of the premises, if the life tenant remains in possession of the property.
  275. Conflicting dates between typed and handwritten dates on a negotiable instrument; is date still ascertainable?
    Yes. The TX UCC states that the date for calculating the demand period is the handwritten date.
  276. If method of calculating interest on a negotiable instrument is no longer ascertainable, is it still negotiable?
    Yes. The interest will be obtained from TX UCC provisions that provide a default rate based upon the judgment's locale.
  277. Requirements for negotiability
    • Unconditional promise to pay;
    • A fixed amount of money;
    • To order or bearer;
    • Upon demand;
    • Without any additional undertakings; and
    • Signed by the maker
  278. Conditional indorsement effect upon a note's negotiability?
    None.
  279. Deed of Trust
    • A security interest given to a trustee that is generally treated like a mortgage;
    • Trustee holds deed until debt is paid
  280. Who can bring a cause of action on behalf of a decedent's estate?
    Only a personal representative.
  281. Self-proving affidavit: Witnesses sign the affidavit, but not the will.
    Signatures operate as if they were on the will, but the will is not self-proving. It must thereby be proven by at least one witness attesting to the will in court.
  282. Self-proving affidavit
    If an SPA is attached to the will no further proof of its execution is required.
  283. Wills: Animal bequests valid in Texas?
    Yep.
  284. Requirements for non-judicial foreclosure
    • Power of sale clause;
    • Written notice of default;
    • Opportunity to cure;
    • 20 days prior to posting notice of sale;
    • 21 days prior to sale, give notice to debtor and public;
    • Hold the first Tuesday of each month at the county courthouse, between 10 and 4
  285. Types of Notice for Notice State
    • Actual;
    • Constructive;
    • Inquiry
  286. Rights of a Mineral Interest Owner to the Surface Estate
    Ingress and egress
  287. Accommodation doctrine
    • ERA
    • Existing use;
    • Reasonable alternative;
    • Available on-tract
  288. Date surface destruction test gave way to ordinary and natural meaning test:
    June 8, 1983
  289. Standard of Review of Trial Court's Property Division in a divorce:
    Abuse of discretion
  290. Types of Royalty Interests
    • (1) the landowner’s royalty paid under the terms of a lease;
    • (2) the nonparticipating royalty interest (NPRI); and
    • (3) the overriding royalty
  291. Royalty interest
    the nonpossessory right to a share of production free of the costs of production.
  292. Nonparticipating royalty interest
    • Entitles owner to stated share of production;
    • No rights to delay rentals or bonus payments
  293. Overriding royalty interest
    Used to compensate workers who perform services related to the property of the lessee
  294. Pugh Clause
    • Allows a lessor to limit the lessee’s pooling power;
    • It does not prevent pooling, only modifies the amount of acreage that can be held by a pooled well;
    • Severs the lease into acreage held by the pooled unit well and unpooled acreage.
  295. Dry Hole Clause
    • Related to rent payments in the event of a dry well;
    • If well is unproductive, lessee can maintain lease by paying delay rentals.
  296. Are royalty interest owners subject to production costs?
    No. HOWEVER, if lease has "at the well" language, they may be liable for non-production costs, such as the cost of transportation, marketing, and compressing the gas once it has reached the surface.
  297. Requirements for the Notice before foreclosure
    • Written notice;
    • State the earliest time at which the sale will begin
  298. Must non-judicial foreclosure sales result in a fair price?
    Nope. Judicial sales must.
  299. If land is located in two counties, where must notice be posted?
    In both counties.
  300. Invalidating a foreclosure sale
    • May only occur if the deficiency of the sale is egregious enough to overturn the sale;
    • Must look to interests of the innocent 3d party buyer;
    • EXTREMELY difficult to overturn the sale
  301. Types of Deeds
    • General
    • Special
    • Quitclaim
  302. Warranties included in a general warranty deed
    Seller warrants that no title defects have occurred during her ownership of the property and no defects in the chain of title
  303. Warranties included in a special warranty deed
    Seller warrants that no title defects have occurred during his ownership of the property (no warrant of no defects in chain of title)
  304. Warranties included in a quitclaim deed
    None, he only conveys whatever interest he may have.
  305. Is a trustee's deed a general, special, or quitclaim deed?
    • It depends upon the circumstances of the sale and is fact-specific.
    • If it occurred at a foreclosure sale, it's likely a quitclaim deed.
  306. Types of remedies under UCC breach of K
    • Expectation damages
    • Incidental damages
    • Consequential damages
    • Specific performance
    • Rescission
  307. Expectation Damages
    • If nonconforming goods:
    • Damages = value of goods contracted for - value of goods received

    Can also recover for amount of cost to repair nonconforming good received
  308. UCC applies to contracts for the sale of goods over:
    $500
  309. Incidental Damages
    Cost associated with obtaining replacement goods (e.g., you're sold a nonconforming truck; you can get the costs associated with looking for a conforming truck)
  310. Consequential Damages
    Additional losses that occur as a direct result of the breach.
  311. UCC: Specific Performance
    • Parties must perform the contract as agreed;
    • Hard to get, good must be unique, etc.
  312. UCC: Rescission
    • Available in cases of fraudulent misrepresentation;
    • Allows the contract to be "undone"
  313. Homestead Allowance
    After probate has commenced, homestead is set aside for the benefit of the surviving spouse for her lifetime
  314. Intestacy: Community property division if non-marital children exist
    • 50% to spouse
    • 50% per stirpes to children
  315. Intestacy: Personal property division
    • 1/3 to spouse
    • 2/3 to children
  316. Intestacy: CP division if no non-marital children
    100% to spouse
  317. Validity of SPA from other jurisdictions
    Court can refuse to allow the SPA into evidence and require witnesses to attest to the will; BUT, court can accept the SPA, too, if it's properly executed under the laws of the other state
  318. Liability of Limited Partners in LPs
    Cannot be held liable for partnership obligations beyond the amounts they contributed to the partnership
  319. Liability of General Partners in LPs
    Unlimited; can seek indemnity for the LP, though, if liability incurred in the ordinary course of business.
  320. LLP relation to GP
    Like a GP in taxation status and management, but liability of partners is limited
  321. Mixed-character marital property
    Marital property acquired with both community and separate funds; it is divided pro rata according to the portions of CP and SP used to acquire it.
  322. Ways to acquire personal jx. in Texas Paternity Suit
    • Person served while in Texas;
    • Person has sex while in Texas and the child may have been conceived as a result
  323. SoL on Paternity Suits
    • 4 years: If child has presumed, acknowledged, or adjudicated father.
    • Indefinite: If child has no presumed, acknowledged, or adjudicated father.
  324. Persons who can bring suit to establish child paternity
    • The child;
    • Mother of the child;
    • Legal representative of an authorized person who is deceased, incapacitated, or a minor;
    • A person related w/in 2° of consanguinity if the mother is dead
  325. Can a court order genetic testing?
    • Yep. Failure to submit can lead to:
    • Contempt citation;
    • A fine; or
    • The court adjudicating his paternity
  326. 99% rule and genetic testing
    A rebuttable presumption of paternity is created if the DNA results are 99% certain.

    • Can be rebutted by presenting other testing that excludes him as the father; or
    • Present another man who could be the father; or
    • Saying the test used is not one generally relied upon by experts in the field
  327. Presumption in regard to substantial gifts bequeathed to minors
    A donor may not wish the minor to have full use or control of the bequest until they reach the age of majority
  328. Custodian of substantial bequests to minors
    • Only one custodian for each gift;
    • Gift must be placed in an account in the custodian's name, on behalf of the minor;
    • Any adult or a trust company; 
    • Must manage and invest property as a reasonably prudent investor;
  329. Requirements to request guardianship
    • Application filed for *each* ward in the proper county––single guardianship of two or more wards is improper;
    • The ward must have an attorney ad litem;
  330. Venue for Guardianship Proceedings
    • The county in which both parents reside;
    • County in which the sole managing conservator resides;
    • County in which the joint managing conservator who has greater period of possession of the children
  331. Requirements to bring derivative action
    • Shareholder must hold shares at the time of the action;
    • Shareholder must adequately represent the interests of the corporation;
    • Notice of the claim 90 days before filing unless demand rejected or irreparable harm will result
  332. Bank has a duty of _________________ in regard to detecting forgeries.
    Ordinary care
  333. If customer does not discover a forgery within _____________, the customer is not entitled to reimbursement.
    1 year.
  334. Non-possessory (but not ousted) Co-T's duty to pay taxes:
    The non-possessory co-T has to pay taxes on the land, but they are offset by the value the possessory co-T had in the land.

    E.g., Pco-T pays $100 in taxes on land, but derived $50 benefit from land. NPco-T must pay $25.
  335. Minor enters contact, then disaffirms the K. Can minor ratify the K when he reaches majority w/o additional consideration?
    Yes.
  336. Mother Hubbard Clause
    • "Lease includes all land owned by lesor adjacent to the land";
    • Purpose: Pick up small strips of land not specifically included in granting clause;
    • Doesn't pick up large tracts
  337. Shut-in royalties
    • Payment to maintain an oil and gas lease after the end of the primary term;
    • Only paid on wells capable of producing
  338. Are NPRI's entitled to shut-in royalties?
    Yep.
  339. Division Orders
    • Agreements for how to divide payments between interest-holders;
    • Binding until revoked;
    • Protects payor from double liability––hosed interest holder can't sue payor, must sue party who took too much payment
  340. Implied covenants in O&G lease
    • Against drainage;
    • To market;
    • Develop
  341. Implied covenant to protect against drainage
    MIO can't buy two tracts and drill on  one and drain yours
  342. Standard MIO must act under
    Reasonably prudent operator
  343. Implied covenant to market
    • Must find good price for minerals;
    • No self dealing;
    • Can't sit on lease and pay shut-ins
  344. Implied covenant to develop
    Must act as a RPO regarding development

    e.g., can't drill one well on 500 acres when multiple wells could be drilled
  345. Illegitimate child can't inherit unless
    • Unrebutted presumption of paternity;
    • Acknowledgement of paternity;
    • Adjudicated paternity;
    • Established in probate proceedings by C&C
  346. Warranty of habitability in Texas?
    Nope. LL must repair conditions that materially affect health and safety of tenant (or tenant can use constructive eviction).
  347. Warranty of suitability in Texas?
    For commercial leases, yes; covers latent defects in the essential facilities of the property
  348. Latent v. Patent Defect
    • Latent: Can't be discovered through reasonably thorough inspection of the property
    • Patent: Defect can be discovered in reasonably thorough inspection
  349. Can fixture be removed by tenant?
    • Factors:
    • Degree of attachment;
    • General custom;
    • Degree of harm to premises if removed;
    • Trade fixture (can always be removed).
    •  
    • Must be removed before lease is up (or reasonable time thereafter)
  350. Remedies for failing to convey marketable title
    • Notify seller and give reasonably time to cure;
    • If not cured: rescission, dmgs, specific performance
  351. Order of proceeds application from foreclosure sale
    • Cost of foreclosure (including atty fees);
    • Foreclosed mortgage;
    • Junior interests;
    • Mortgagee (if deficient, get deficiency judgment)
  352. Installment land K
    Pay off mortgage as you go; if you miss a payment, they can take property back immediately
  353. Installment land K: Effects of default
    • Seller must give buyer notice of prospective forfeiture;
    • Must give 60 days to cure
  354. Intentional underemployment
    • Court can award for earning potential rather than actual earnings if it believes obligor spouse is intentionally underemployed;
    • Obligee spouse must show evidence obligor is intentionally underemployed (e.g., spouse is making substantially less than before divorce);
    • Obligor spouse must show that underemployment was not intentional
  355. If spouse uses separate property to buy property, but puts it under both spouse's names, is it still separate property?
    Nope. Presumed a gift to the other spouse and thereby gives each 1/2 of the property as separate property.
  356. Requirement to ignore statutory limit for child support
    • Must give specific findings of fact as to why the statutory mandate is being ignored.
    • Factors:
    • Special needs of the child;
    • Both parents' abilities to support the child
  357. Deed requirements for valid conveyance
    • Adequately describe property;
    • Signature of conveying party
  358. Deed requirements to be recordable
    • Valid deed;
    • Witnessed or acknowledged by notary public
  359. Homesteads are still subject to
    • Purchase money mortgages,
    • federal tax liens,
    • unpaid property taxes on the property,
    • mechanics' and materialmen's liens on the property if in writing,
    • loans to enable divorce, and home equity loans for up to 80% of the property
  360. Production in paying quantities
    roceeds from selling the oil or gas – the operation costs – taxes = positive figure
  361. Need PPQ in order to obtain royalty interests?
    Nope. Royalty interests are obtained before production costs are deducted.
  362. Three types of probate
    • Independent executor,
    • Dependent executor, and
    • Muniment of title
  363. Muniment of title
    • Small estates (<$50,000 with no debt);
    • Easiest way to settle the estate
  364. Independent administration
    • - Same power as a dependent administrator;
    • - Must file an application for letters testamentary; and
    • - Post a bond within 20 days of the letters being issued.
    •  
    • - File inventory w/in 90 days;
    • - Give notice to named B's w/in 60 days;
    • - Post notice for all creditors w/in 30 days;
    • - Must give accounting w/in 15 months of issuance of letters testamentary and every 12 months after that
    •  
    • (Absent clear distinction otherwise, person named in will should be executor)
  365. Dependent administration
    • Most difficult administration type;
    • Can do everything dependent administrator does, but must first get court permission
  366. What must be included in a mortgage?
    • At a minimum:
    • the identity of the parties (the mortgagor and mortgagee),
    • the intent to create a security interest, and
    • a description of the property.
  367. 3 rules for acts outside statement of purpose:
    • Ultra vires k's are valid;
    • Shareholders can seek injunction;
    • Responsible officers and directors are liable to corp for losses
  368. Preemptive rights date
    Sept. 1, 2003
  369. Two ways BoD act is valid
    • Unanimous written and signed consent to act w/o meeting;
    • Meeting satisfying quorum and voting rules (quorum present, majority vote)
  370. BoD: Nonfeasance liability
    Only liable if breach of duty caused loss
  371. BoD: Misfeasance
    Board hurts corporation through affirmative act, BUT protected by BJR
  372. BJR
    Court will not 2d guess decision made in good faith, informed, and with rational basis
  373. BJR doesn't apply when:
    • Interested director transaction deal b/w the corp and director;
    • Competing ventures;
    • Corp. opp.

    UNLESS deal was fair/material facts disclose AND disinterested D's approved
  374. How director is not liable for misfeasance:
    • Voted against act;
    • Put it in writing (either in minutes or leter to corp. secretary)
  375. Indemnification of Directors
    • None: if liable for willful/intentional misconduct;
    • Mandatory: D is wholly successful on merits
    • Permissive: Anything not above
  376. S/h mgmt of corp when
    • Close corp;
    • Art or unanimous s'holder agreement provides for s'holder mgmt
  377. Right of s'holder to inspect books
    • Owns stock for at least 6 mos or has ≥5% of oustanding shares;
    • Written demand stating proper purpose;
    • If corp doesn't allow, s'holder can get ct. order and recover expenses/atty fees
  378. Fundamental change requirements
    • Board approval; AND
    • 2/3 s'holder vote
    •  
    • (Allows dissent and appraisal unless on nat'l stock exchange or ≥2000 shares)
  379. Dissent and appraisal
    • Written objection before vote and intent to demand payment;
    • Abstain or vote against; AND
    • Written demand to be bought out w/in 20 days
  380. Corp. Dissolution requirements
    • Written consent of s'holders; OR
    • Board res. and 2/3 s'hodler vote; THEN
    • Send notice of dissolution to creditors
  381. Presentment Warranties for Negotiable Instruments
    • (1) Warrantor could enforce draft at time of transfer
    • (2) No alterations
    • (3) No knowledge that signature of drawer is unauthorized
  382. Transfer Warranties for Negotiable Instruments
    • (1) Transferor is entitled to enforce instrument
    • (2) All sigs are authentic and authorized
    • (3) No alterations
    • (4) Not subj. to defense
    • (5) No knowledge of any insolvency proceeding against maker
  383. Drawers can sue for breach of __________, not  __________.
    Presentment warranties; transferor warranties.
  384. Perfection without security agreement
    "Pledge" collateral; creditor takes possession of the collateral––no security agreement is needed.
  385. When can trustee designate new beneficiary without a hearing?
    When it's a charitable trust and the beneficiary fits with the material purpose of the trust (still must notify the AG)
  386. Father knows of child and supports the child as though child was his, but no official acknowledgement, adjudication, etc. Is he father?
    Yep. Paternity established.
  387. Paternity by Estoppel
    Man voluntarily assumes child support for the care of the child.
  388. Requirements for a new partner to join
    Unanimous consent
  389. Is notice required for the annual BoD meeting?
    Nope.
  390. Is notice required for a special meeting of the BoD?
    • Yep; reasonable notice required.
    • Needs time, place, and date of meeting. Not purpose (purpose only needed for s'holder meeting).
    • Vote w/o notice are invalid.
    • WAIVED if all board members show up.
    • Called by 10% of shares, or bylaws.
    • Notice given to all s'holders w/in 10-60 days before meeting
  391. Notice through email or other means okay?
    If in the bylaws.
  392. Requirements for valid board vote:
    • Quorum (even if one walks out);
    • Majority vote yea.

    E.g., 7 directors. 4 show up. Quorum present. One leaves before vote. 2 vote yes, 1 votes no. Valid action (although there is some unsurity about this).
  393. Is a board member who shows up just to contest validity of the meeting counted in a quorum?
    No.
  394. Presumption when a will is ambiguous between a more permanent estate (e.g., F.S.A.) and a more limited estate (e.g., LE).
    The more permanent disposition will be gone with, usually.

  395. CP divided?
    All to SS.

  396. CP divided?
    • 1/2 to SS
    • 1/2 to children, per cap w/ representation

  397. Personal SP divided?
    • 1/3 to SS
    • 2/3 to descendants

  398. Personal SP divided?
    • 1/3 to SS
    • 2/3 to children per cap. w/ rep

  399. Personal SP divided?
    • All to SS
    • None to other heirs

  400. Real SP divided?
    • 1/3 LE to SS 
    • 2/3 to children per cap w/ rep; 1/3 in remainder

  401. Real SP Divided?
    • 1/3 LE to SS 
    • 2/3 to children per cap w/ rep; 1/3 in remainder

  402. Real SP divided?
    • 1/2 to SS in FS
    • 1/2 to parents

  403. Real SP divided?
    • 1/2 to SS
    • 1/2 to parents' descendants (brother)

  404. Real SP divided?
    100% to SS

  405. Property divided?
    100% to children, per cap. w/ rep.

  406. Property divided?
    100% to kids, per cap w/ rep

    (In this case Y and Z get 1/3 each, C gets 1/3 (but if C had brother, each would get 1/6))

  407. Property divided?
    1/2 to each parent

  408. Property divided?
    • 1/2 to living parent
    • 1/2 to collaterals, per cap w/ rep

  409. Property divided?
    100% to descendants of collaterals, per cap w/ rep

  410. Property divided?
    • 1/2 to maternal side
    • 1/2 to paternal side
  411. Will administration preference
    • Named executor
    • Surviving spouse
    • Primary beneficiary
    • Any beneficiary
    • Next of kin
  412. Intestate admininstration
    • Surviving spouse
    • Next of kin
  413. How can a trustee purchase trust property from the trust?
    He can't.
  414. Trustee compensation
    • "Reasonable" compensation;
    • 5% of trust assets has been found to be reasonable;
    • 1/2 from corpus, 1/2 from principal
  415. Considerations of reasonably prudent investor standard
    • Economic benefits;
    • Long term benefit to trust portfolio;
    • Effect of purchase on overall portfolio
  416. Breach of Duty: Can liability be abolished in corporate docs?
    Nope. Can be indemnified.
  417. Indemnity of Directors
    • Must: O/D sued in his capacity and is completely successful
    • May: Any other act *not resulting from willful or gross neg*
    • Can't: Acts resulting from willful or gross neg
  418. Lease document requirements
    • Names of the parties;
    • Duration of lease;
    • Date rent is due;
    • Amount of rent

    (Notarization, etc. not required)
  419. Tenant right to ED condemnation proceedings
    None. But, may be able to get reduced rent to compensate for his loss of use of the leasehold.
  420. Can buyers break a lease and get rid of tenant on land they're interested in?
    Yes. If tenant is behind on lease, or hurting the property in such a way so as to hurt the property value.
  421. Debt collection: MiniMiranda
    First communication from creditor must state that the communication is from a debt collector and that any information obtained may be used to collect the debt.

    (All subsequent comms must include this, too)
  422. Proportionate reduction clause
    "If the owner owes less than he conveys, his payment will be reduced proportionately."
  423. RRC regulates the Rule of Capture to protect:
    • Correlative rights;
    • Prevent waste;
    • Protect the environment
  424. RAP avoidance in O&G lease
    "Top lease must vest w/in 21 years." Lessors are usually happy to grant that.
  425. Contract for will
    • Valid contract;
    • Reference in the will stating K exists and K's material provisions
  426. Dishonor occurs when
    • Proper presentment for payment is made and refused;
    • Notice of dishonor may be given by any reasonable commercial manner
  427. Holder of negotiable instrument must meet 5 requirements
    • Take instrument for value;
    • In good faith;
    • Without notice of dishonor;
    • No notice of unauthorized signatures;
    • No notice of defenses or claims
  428. Transfer of negotiable instrument occurs when
    Delivered by a person other than its issuer for the purpose of giving right to enforce the instrument to the person receiving delivery
  429. Automatic stay prevents
    • Lawsuits;
    • Enforcement of pre-bankruptcy judgments;
    • Act to obtain possession of estate prop;
    • Act to create/perfect/enforce liens on debts that arose before bankruptcy;
    • Act to recover on claim against debtor on debt arising before bankruptcy; 
    • Setoff debt that occurred before bankruptcy;
    • Proceedings in US tax court
  430. Can principals partially ratify an act of an agent?
    Nope. It's all or nothing.
  431. Three ways to extinguish S/I through sale:
    • SP authorizes;
    • BIOCOBS;
    • Garage sale
  432. If an SP can't get secured collateral w/o a breach of peace, what should he do?
    Replevin
  433. Cumulative voting formula
    (Shares voting / (directors + 1)) + 1
  434. (Adult) Guardianship application: Requirements of doctor's examination
    • Applicant must file a doctor's report of the proposed ward created w/in 120 days before application;
    • Must list specific facts for court to base its opinion on
  435. Factors for granting JMC or SMC
    • Presumption for JMC;
    • Factors:
    • Parties' working relationship;
    • What children want (if over 12);
    • Geographic distances;
    • Relationship of all parties;
    • Age of the child
  436. Ways to invalidate a prenup:
    • Unconscionable;
    • No fair notice of nature and extent of prop (didn't waive such notice and didn't have a chance to become knowledgeable about the prop); or
    • Involuntary
  437. Considerations for property division
    • Separate property;
    • Earning capacity;
    • Custody of children of the marriage;
    • Family violence; and
    • Fault of marriage breakup
  438. Special s'holder meeting
    • 10 ≤ 60 days' notice;
    • Can only conduct biz that's in the cert
  439. Required offices of corp
    Pres. and sec. (can be same person)
  440. Presentment party has right to require:
    • Name of presenting party;
    • Exhibition of the instrument;
    • Full payment
  441. Banks don't have to honor a check after _____.
    6 mos
  442. Corp and LLC Cert. Requirements
    SAND PODS

    • Stock information
    • Agent: Name/Address
    • Name (w/ corp)
    • Duration
    • Purpose
    • Organizers: Name/Addresses
    • Directors? Number, names, addresses
    • Shareholder agreement governance? Name/Address of managers
  443. Classification of retirement benefits?
    Apportionment
  444. When can independent administration be accomplished?
    • Will provides for one;
    • All distributees agree on intep. admin.
  445. Power of Indep. Executor
    • Any act dependent admin. could do, but w/o court order necessary;
    • BUT, if will creates power of sale, RP can be sold irrespective of estate debts;
    • BUT, if will doesn't give power of sale, RP can only be sold to satisfy debt
  446. How does personal rep close administration?
    • File closing report containing:
    • Property rec'd;
    • Debts paid;
    • Expenses;
    • Names/addresses of distributees
  447. Personal rep's duty to creditors:
    • Give notice w/in 2 months to SP creditors;
    • SPs then have 4–6 mos from death to present their claims (if they don't, they'll only be protected up to value of collateral)
  448. Priority of claims in insolvent estate
    • Funeral expenses and medical bills up to $15K;
    • Family allowance;
    • Administration expenses;
    • Secured claims;
    • Child support;
    • State taxes;
    • Cost of confinement in prison;
    • Reimbursement to medicaid;
    • All other costs
  449. Spousal claims in will or intestacy:
    • HEF: Occupy homestead for life;
    • If no homestead: $15K allowance;
    •  
    • Can claim exempt personal prop up to $60K;
    • If none: $5K allowance;
    •  
    • Can claim family allowance for maintenance for 1 year by showing inadequate SP for their support
  450. Trustee resignation
    • Court approval;
    • Show he can no longer appropriately serve as trustee;
    • Must provide accounting
  451. Who can enforce charitable trust?
    • Any specifically named charitable B;
    • AG
  452. Trustee accounting req's
    12 months after trust creation and then every 12 months
  453. SoL to bring suit against trustee
    4 years
  454. Allocation of O&G interests in Trusts
    • Delay rental: Income
    • Royalty/Bonus: Equitably (Presumed equitable: 15% to principal; pre-2004 27.5% to principal)
  455. Trustee exculpation
    S can include exculpatory clause relieving Trustee of liability EXCEPT for gross neg, fraud, or bad faith
  456. Guardian duties upon appointment
    • Take oath;
    • Post fiduciary bond w/in 20 days;
    • Publish notice of admin. w/in 30 days;
    • Inventory of estate w/in 30 days;
    • Application for monthly allowance w/in 30 days;
    • Application to develop investment plan w/in 180 days
  457. Removal of S/I
    • Consumer: w/in 20 days
    • Non-consumer: on debtor's request
  458. What if SP fails to comply w/ debt default req's?
    • SP liable for actual damages;
    • If consumer good: 10% recover of purchase price and all interest charged
  459. Debtor right of redemption
    • Right to redeem prop. for money currently due and addt'l reasonable expenses BEFORE:
    • Property has been sold or strictly foreclosed;
    • Or contract for sale has been entered
  460. Strict foreclosure
    • Consumer transaxn: Sale of collateral for total satisfaction of debt (unless >60% of good is paid for)
    • Non-consumer: Total or partial satisfaction

    Either way: debtor must consent
  461. How to handle commingled funds in bank acct?
    • CP presumed to be w/drawn first;
    • SP is lowest intermediate balance
  462. Standard for promoter to make a profit
    • Promoter must fully disclose any profit being made on dealing w/ corp;
    • Profit figured on FMV;
    • Approval by maj. of disinterested directors or all initial s'holders
  463. Which s'holders can vote in annual meeting?
    S'holder of record on the record date
  464. S'holder agreements must be filed w/
    the corp.
  465. Distributions can only come from
    Surplus
  466. Stuff not discharged in bankruptcy
    • 1. Back taxes
    • 2. Debt of obtained by fraud (imputed if bought luxury good >$550 and files w/in 90 days)
    • 3. Extension of consumer credit w/in 70 days of bankruptchy if >$825
    • 4. Debts incurred while acting as a fiduciary
    • 5. Not listing debts in time to allow creditors to make claim
    • 6. Debts for domestic support
    • 7. Debts from tort commission
    • 8. Student loans
  467. Types of Easements
    • Defined: Non-possessory use in land;
    • Appurtenant;
    • In gross
  468. Appurtenant easment
    Directly benefits the use and enjoyment of a specific piece of liand
  469. Easement in gross
    No dominant estate, benefits a person, not land
  470. Rule of convenience
    Once any member of a class is entitled to a distribution, the class closes
  471. Typical savings clauses on O&G leases
    • Completion clause;
    • Force majeure;
    • Shut-in royalty
  472. Temporary cessation doctrine (O&G)
    Sudden stoppage due to mechanical breakdown; must fix w/in a reasonable time

    (if lease says what a reasonable time is, must go by that time; e.g., "60 days to repair after temporary cessation", MIO doesn't repair until 61 days because area flooded for 50 days--doesn't cut it)
  473. If a subK exists on a contract for real property, the owner should withhold:
    10% (if they have notice of the subK)
  474. If a subK informs owner he's not been paid, what should the owner do?
    Withhold the amount necessary to pay the subK until the contractor pays the subKer.

    (SubKer can obtain a lien on the funds withheld by the owner)
  475. Accord and satisfaction
    Where a debt is subject ot a bona fide dispute, a debtor, in good faith, can sent partial payment to the creditor in satisfaction of the full accont balance where the payment is conspiuously marked PAYMENT IN FULL

    • DEFENSES:
    • - Paid in full checks have to go one place, debtor sent to another;
    • - Where clear the check was rubberstamped by a worker w/o knowledge of notation/effect of notation, will not satisfy where company notices and objects (90 days);
  476. Texas Family Code Remedies: Exclusive or not?
    Exclusive.

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