TEXAS WILLS AND ADMINISTRATION OF ESTATESs3.amazonaws.com/mythm-vids-prod/TX.Kramer.Wills.pdf · A....

TEXAS WILLS AND ADMINISTRATION OF ESTATESPROFESSOR ZACHARY KRAMER

ARIZONA STATE UNIVERSITY O’CONNOR COLLEGE OF LAW

CHAPTER 1: INTRODUCTION

A. Bar Exam

• Unlike law school exams, the bar exam is testing minimum competence• The goal is passing, not mastering every subject

B. Using the Materials

• Read the Outline• Watch the Lectures

o These lectures will cover the major areas that have been tested in the pasto Refer to the Outline for more details and the minor rules

CHAPTER 2: TERMINOLOGY; HEIRS AND INTESTATE SUCCESSION—SPOUSES

A. Key Terminology

• Decedent—Someone who has ________________________________• Will—Legal document used to dispose decedent’s property.

o Testate—Decedent dies __________________________________o Intestate—Decedent dies ________________________________________

• Codicil—A ____________________________that either amends or revokes a decedent’s will inwhole or in part.

• Probate—Judicial process for administering and settling a decedent’s estate.• Intestate Succession—A ________________________ estate plan, developed by the legislature,

for distributing property when the decedent dies intestate.• Heirs—Individuals entitled to receive property by intestate succession.

o (_____________________________________ do not have heirs)

• Spouse—Decedent’s __________________________________________________

o Surviving spouse—live longer than the decedent.

Note 1: Remember, when talking about estates, someone must have died.

• Issue/Descendants—Decedent’s ____________________________________, i.e. decedent’skids, their kids, and so on.

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• Ancestors—Decedent’s _________________________________, i.e. parents, grandparents, etc.• Collaterals—Decedent’s relatives through an ancestor, i.e. siblings, cousins, aunts, uncles• Community v. Separate Property—You must classify marital property

Note 2: Always be on the lookout for classification moments.

B. Intestacy

• When a decedent dies without a will, the decedent’s estate is distributed by intestatesuccession.

o A default estate plan developed by the legislature. The decedent’s actual intent is_____________________________________.

o Individuals entitled to take an intestate share are called the decedent’s ________________.o We are particularly interested in the decedent’s __________________ and _____________.o To take from a decedent, an individual must survive the decedent.

Special Case #1: Kid's kids—A child can stand in the parent's shoes for purposes ofintestate succession; this is called representation

Special Case #2: Simultaneous Death—Under common law, an heir's survival must beproved by a preponderance of the evidence

• Texas follows the Uniform Simultaneous Death Act (USDA)—If there is insufficientevidence to determine who survived whom, the property will pass as though eachhad predeceased the other.

• It must be proven by clear and convincing evidence that the heir has survived thedecedent by ________________________.

• In Texas, if a married couple dies less than 120 hours apart, they each take a 1/2interest in the community property as if they had each predeceased the other.

C. Spouse’s Share

1. Who qualifies as a spouse?

o A ___________________________________________________________________o This excludes: _____________________________________________________________o In Texas, if a marriage lasted less than ______________ an interested party can challenge

the marriage on the ground that the decedent lacked capacity to consent to the marriage.

If proven, the court can declare the marriage _______________

2. How do we calculate the surviving spouse’s share?

a. Distinguish between __________________________ and ____________________ property

1) Separate property:

• Property owned by either spouse _________________ the marriage,

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• Property acquired during the marriage by ____________, _________________________, or ______________________________________, or

• Property purchased with separate funds

2) Community property—all other property acquired during the marriage

Note 3: Spouses can always agree to recharacterize property

b. Calculating the share

1) Share of community estate

• Situation #1 [Spouse + 0]—if the decedent is survived by a spouse and no descendants, the surviving spouse takes ___________________________________ ______________________________________________.

• Situation #2 [Spouse + 1 unrelated]—if the decedent is survived by a spouse and at least one descendant that is unrelated to spouse, the surviving spouse takes ______________________________.

o The unrelated descendant takes the decedent’s community estate.

Editor's Note 1: Note that in this situation, the one-half community property interest retained by the surviving spouse upon the decedent's death is not part of the decedent's estate. Therefore, although the surviving spouse is entitled to no part of the decedent’s share of the community property in this situation, the surviving spouse is still entitled to his own half of the community property.

• Situation #3 [Spouse + 1 related]—if the decedent is survived by a spouse and descendants of the surviving spouse, the spouse takes _______________________ ___________________________________________________________.

2) Share of separate estate

• Situation #1 [Spouse + 0]—if the decedent is survived by a spouse and no descendants, the surviving spouse takes:

o ________ of the decedent's separate _____________________________ _________________________ and

o ___________________ of the decedent's _______________________________ o The remaining assets go to the decedent's ancestors or collaterals

• Situation #2 [Spouse + 1]—if the decedent is survived by a spouse and descendants, the surviving spouse takes:

o ________________ of the decedent's separate __________________________ _________________________ and

o _______________________________ in one-third of the decedent's separate _________________________________________________.

o The remaining assets go to the decedent's descendants


• Situation #3 [No Spouse]—if there is no surviving spouse, the entire separate estate goes to the descendants (if no descendants, it goes to the ancestors and collaterals).

Example 1: Decedent dies owning $500,000 in personal property and $600,000 in real property. $200,000 of the personal property is community; the remaining $300,000 is separate. All of the $600,00 in real property is owned as community property. Decedent is survived by Spouse and the couple's daughter. What is the Spouse's share?

Real Property: ____________________________________________________

Personal Property: _________________________________________________ _________________________________________________________________

Total: ____________________________________________________________

3. No Heirs—if the decedent dies leaving no heirs, the property __________________ to the state

Example 2: Decedent dies owning $100,000 in property. A miserable person, decedent has no family or friends except a cat that pities him and steals his food when he is not looking. Decedent's estate will escheat to the state.

CHAPTER 3: HEIRS AND INTESTATE SUCCESSION CONT’D—ISSUE

A. Who Qualifies as Issue?

• Decedent’s lineal line, i.e. children, grandchildren, great-grandchildren and so on • There has to be a ________________________________________________________________

for someone to be the “issue” of another. • Adoptive children can inherit from decedent just like biological children.

o The effect of the adoption is to sever the child's relationship with the natural parents o In Texas, _________________ parents and stepparents are recognized for purposes of

inheritance

• Special Case #1: Adoption by Estoppel (Adoption by Contract)—A parent makes a promise to a child, or acts in a way to give the impression that they have a parent-child relationship

Note 4: Courts have not applied this concept in the context of a will, only in intestate succession.

Note 5: Adoption by a stepparent creates a parent-child relationship between the child and the stepparent. However, the adoption does not prevent the adoptee from inheriting from the other genetic parent.

• Special Case #2: Posthumously Born Children—Arises where child is conceived before, but is born after, the death of the mother’s husband. Child will inherit from father/husband as if child was born before father died.


B. How do we Calculate the Issue’s Share?

• Texas: Per capita with representation—There are three steps to this analysis

1) Divide the property equally at first generation where a __________________________ _________________________ the decedent.

2) If there are deceased members at that first generation, their shares drop down to their surviving issue at the next generation.

3) If a deceased member of a generation is not survived by living issue, then that member does not take a share.

Example 3:

Step 1: Because A had three children who left surviving issue, we begin by dividing the estate into three parts. Even though B and D have predeceased, we must account for their shares. Thus we divide the estate into equal 1/3 shares. C will take a 1/3 share.

Step 2: We then drop B’s and D’s 1/3 shares to their issue. Since B is survived by G, G will stand in B’s shoes and take a 1/3 share. Since D is survived by three children, they will divide D’s share in equal parts, taking 1/9 each.

Step 3: Since each line is survived by living issue, each share is accounted for.

Summary of Distribution to A’s Issue

C = 1/3

G = 1/3

H, I, J = 1/9 each

A

C

E

B

F G

D

H I J


Example 4:

Step 1: The first level with surviving members is E’s generation (A’s grandchildren). Although there are only two surviving members at that generation (F and H), we must also account for E’s and G’s shares, as they are survived by living issue. Thus we divide the estate into four shares (I does not get a share because I is not survived by issue).

Step 2: E’s 1/4 drops down to J. F is alive and takes 1/4. G’s 1/4 drops down and is split equally between K and L, giving them 1/8 each. H is alive and takes 1/4.

Step 3: I does not take a share because I is not survived by issue.

Summary of Distribution to A’s Issue

J = 1/4

F = 1/4

K and L =1/8 each

H = 1/4

A

B

E

J

C

F

D

G

K L

H I


Example 5:

Step 1: The first level with surviving members is: _________________________. How many members are either alive or survived by issue? __________________

Step 2: Who takes and in what share? _________________________________ _________________________________________________________________ _________________________________________________________________

Step 3: Who does not take a share? ___________________________________

C. Illustration

Decedent dies intestate, leaving an estate worth $750,000 (all of which is personal property). $150,000 of it is community property. Decedent is survived by Spouse. Decedent and spouse have 2 children, A and B. B predeceases Decedent, leaving two surviving children, X and Z. Under Texas law, how is Decedent’s estate divided among his family members?

Community property: Spouse takes ____________________________________

Separate property: Spouse takes ______________________________________

A will take ________________________________________________________

B’s children will take by representation, getting __________________________

D. Disinheriting Children

• To disinherit children, must have a properly executed will • The child is treated as predeceasing the decedent

A

B

E

J

C

F

D

G

K L

H I


CHAPTER 4: EXECUTION OF WILLS

A. Formal Wills

Exam Tip 1: This is a highly tested area of Wills law!

Exam Tip 2: If a testator does not dispose of all his property by will, the remainder will pass by intestate succession.

Exam Tip 3: Wills are subject to change until the testator dies.

• For a will to be valid, it must meet three formal execution requirements:

1) _____________________________________________________________

2) _____________________________________________________________

3) _____________________________________________________________

1. Signed Writing

o The entire will must be written (or typed) and must be signed by the testator.

Note 6: Most states do not permit oral wills, but Texas does in limited situations.

a. Location of Signature

In some states, the signature must be at the _____________ of the document In Texas, the signature can be located ________________________________ of the will.

• It is important that the testator intended her name to be her signature.

Note 7: If the signature is not at the bottom, a court could refuse to give effect to the content after the signature.

b. Capacity

The testator must be at least ___________ years of age (or married or in the armed forces) and of sound mind.

c. Form of Signature

A formal signature is not required, so long as the testator intends to sign

Example 6: Terrence Taylor signs his will "T-Bone," his usual nickname. Does this satisfy the signature requirement? Yes.

2. Witnesses

o Texas requires that the will be signed in the presence of at least ____________ witnesses.

a. Signatures

The witnesses must also sign the document, though not necessarily at the same time.


b. Presence

Testator must sign or acknowledge the will in the presence of the witnesses The witnesses must sign in the presence of the testator Witnesses must sign within the lifetime of the testator (before the testator's death). Traditional rule—line of sight: the witness and testator must observe or have the

opportunity to observe the signing Texas rule—conscious presence test: the party observing the act must be aware that

the act is being performed

c. Interest

Interested witness: having a direct financial interest under the will

Example 7: T-Bone Taylor executes a will that is witnessed by Amy and Bethany. The will gives Amy $10,000 and nothing to Bethany. Amy is an interested witness. Can Amy both serve as a witness and take her share?

Common law rule: An interested witness was ___________________________________ to witness the will

• If the only witnesses were interested, the will is invalid

Most states, including Texas, modify the common law rule.

• If an attesting witness has a direct financial interest under the will, it will not affect the ____________________________ of the will.

• However, the specific bequest is _______________, UNLESS:

o A disinterested witness testifies in support of the will

Note 8: Even if a specific bequest is void, the intended beneficiary may still take an intestate share no greater than the intended gift.

Note 9: Texas courts rarely invoke this doctrine.

Example 8: T-Bone Taylor executes a will that is witnessed by Amy, Bethany, and Carmen. The will gives Amy $10,000, but leaves nothing to Bethany or Carmen. Can Amy take her share? Yes, because there are two disinterested witnesses.

d. Age and Competency

To serve as a witness, a person must be over the age of _____________ Competency is judged at the time of _________________________________

e. Self-proved will

Traditional 2-step method: executing a self-proving affidavit in addition to the will


New 1-step method: requires inclusion of certain language in the will and adherence to an execution ceremony

There is no initial need for witnesses to appear in court to testify concerning the will's execution for admission to probate

3. Present Testamentary Intent

o The testator must have the _______________________ intent to make a testamentary transfer.

Example 9: As he is signing his will, T-Bone Taylor says to his attorney that he would “like to have a week to go over the will to make sure I’m happy with it.” Is there present testamentary intent? A court may refuse to admit T-Bone’s will for lack of testamentary intent.

Example 10: Although the document says, "Last Will and Testament" at the top, T-Bone thinks he is signing a real estate contract. Is there present testamentary intent?

o A testator must be at least ________________ years old and of sound mind.

The sound mind requirement is measured at the time of __________________________

B. Compliance

1. Strict Compliance (Common law)

o If a formality is missing, the will is invalid

Example 11: T-Bone Taylor's will was typed in full, properly signed at the bottom, and signed by witness, Amy. Bethany, the second witness, forgot to sign her name. Under strict compliance, the will is invalid.

2. Substantial Compliance (Modern view)

Editor's Note 2: Texas has not adopted the modern view. Texas continues to require strict compliance with will formalities, except with regard to holographic wills (discussed below) and self-proved wills.

o The court will admit to probate a will that is missing a formality if there is clear and convincing evidence that the decedent intended the document to serve as a will

Example 12: Easily distracted, T-Bone neglected to sign his will. The will was otherwise witnessed by 2 witnesses, typed in full, and "T-Bone's last will and testament" typed at the top. T-Bone also revised the will several times with the help of a lawyer. Under substantial compliance, this might be sufficient to satisfy the will statute even though it was not signed.

C. Holographic Wills

• A holographic will is an informal, handwritten will.


o Holographic wills do not need to be witnessed.

Example 13: On a napkin, T-Bone Taylor writes “I leave everything to my wife, Charlene Taylor,” and signs it “Terrance Taylor.”

o To be valid, the holographic will must be _______________________.

• Amount of writing

o Some jurisdictions hold that any markings not in the testator's handwriting will invalidate the will

o In Texas (and most states), printed matter and any other markings not in the testator's handwriting do not affect the validity of the will; they will be disregarded

Except material provisions: these provisions must be in handwriting.

Exam Tip 4: If you see a handwritten attempt to devise property, discuss holographic wills.

• Intent for a holographic will

Example 14: On a piece of stationary, T-Bone writes how he wants his property to be divided upon his death. He uses words like "bequeath" and "inherit." These are evidence of testamentary intent.

D. Codicils

• A codicil __________________________________ a will; it does not replace the underlying will.

Example 15: T-Bone’s will gave everything to his wife, Charlene. Later, T-Bone executes a codicil to give half his estate to his best friend, Hank Marducas. Thus Charlene and Hank will each take half of T-Bone’s estate. The prior will is not REVOKED; it is just AMENDED or SUPPLEMENTED.

• Must be executed with the same formalities as a will • A formal will can be amended by holograph and a holographic will can be amended by a formal

codicil

E. Will Substitutes (Non-Probate Transfers)

• A decedent can avoid probate by transferring property via a will substitute, including:

o Joint Tenancy: Avoids probate because it has ______________________________________ ____________________________________________.

o Revocable Trust: Avoids probate because it is an ___________________________________ __________________________________.

o Pour-Over Will: Avoids probate because it distributes _______________________________ ________________________________________.

o POD Contract: Avoids probate because it distributes by an ___________________________ ________________________________.


Example 16: T-Bone Taylor takes out a life insurance policy, naming his wife Charlene as the beneficiary. On T-Bone’s death, the proceeds of the policy are not part of T-Bone’s probate estate, because they were payable on death (POD).

o Deed: Avoids probate because it is an ___________________________________________ _______________________________.

F. Joint and Reciprocal Wills

• Joint will—a ____________________________________________ executed by two people, serves as a will for each of them

• Reciprocal will—separate wills executed by different people, but contain provisions that _____________________ one another.

Exam Tip 5: These wills are often tested in the context of a contract not to revoke the will.

• Parties to a joint or reciprocal will can enter into a valid contract not to revoke them

o A party can revoke the will, but it opens the door for an interested party to bring a breach of contract claim against the estate

CHAPTER 5: REVOCATION OF A WILL

Exam Tip 6: Will revocation is a highly tested topic.

A. How Are Wills Revoked?

• Wills are ambulatory, which means they are capable of being altered or revoked, in whole or in part, at any time until ____________________________________________________________.

• There are three ways to revoke a will:

1) ________________________________________________________

2) ________________________________________________________

3) ________________________________________________________

1. Subsequent Instrument

o A testator can revoke a will by later will or codicil. Consider two situations:

a. Express Revocation

Later writing expressly revokes a prior will.

Example 17: T-Bone validly executes Will 1. Later, T-Bone executes Will 2, which includes the following clause: “Will 1 is hereby revoked.” Will 2 is now the operative document.


Example 18: T-Bone validly executes Will 1. A year later, T-Bone calls his lawyer and requests that the lawyer revoke the first will. Is that valid revocation? _________.

b. Inconsistency

Later writing is inconsistent with prior will(s). So long as it is validly executed, a __________________ document controls.

Example 19: In his will, T-Bone Taylor gives his estate to his wife Charlene. Later, T-Bone executes a will giving his wife Charlene $50,000, and the residue of his estate to his best friend Hank. Because the later writing has a residuary gift (the gift to Hank), it revokes the first will by inconsistency.

Exam Tip 7: You must be able to distinguish between a codicil and a new will. A helpful way to do this is to look for a residuary gift.

Look for a residuary gift:

• If the original will has a residuary gift and the later writing does not, then the later writing is probably a ________________________________.

• If the original will does not have a residuary gift and the later writing does have one, then the later writing is probably _____________________________________. (See the example above)

2. Physical Act

o A testator may also revoke a will in its entirety by engaging in a physical act of destruction, such as:

________________________, __________________________, and ________________________________ the document.

Exam Tip 8: In order to revoke a will, the testator must _____________________ for the physical act to revoke the will.

Example 20: Clumsy T-Bone Taylor accidentally set fire to his will as he was trying to light a cigar. This is not valid revocation because T-Bone did not intend to revoke.

o Lost Wills—If a will once known to exist cannot be found at the testator’s death, there is a ___________________________________________________________________ that the testator revoked the will by physical act.

The burden is on the proponent to show the will’s existence by ____________________ _____________________________________________________________.

Exam Tip 9: Duplicate originals __________________________________; ___________________ cannot.


Example 21: After executing his will at his lawyer’s office, T-Bone Taylor wanted to keep the original under his bed at home. The lawyer kept a photocopy on file. At T-Bone’s death, the will cannot be located. This creates a rebuttable presumption that T-Bone revoked the will by physical act. Although T-Bone’s estate can try to rebut the presumption, the photocopy may not be admitted to probate in place of the original will.

3. Operation of Law

o Under Texas law, ________________________________ revokes all will provisions in favor of the former spouse, unless there is evidence that the testator wanted the will to survive.

Example 22: A statement in the will suggesting that the testator still wanted the divorced spouse to take a share.

o Separation will not affect the rights of a surviving spouse

B. Revoking Codicils

• By revoking a will, the testator also revokes any ______________________ attached to the will.

Example 23: T-Bone Taylor executed a will giving his estate to his wife Charlene. Later, T-Bone executed a codicil that gave his best friend Hank Marducas half of his estate. If at some later point T-Bone revokes the original will, this will also revoke the gift to Hank Marducas.

• The same is not true for revoking a codicil. If a testator revokes a codicil, the underlying will is _________________________________.

Example 24: T-Bone Taylor executed a will giving his estate to his wife Charlene. Later, T-Bone executed a codicil that gave his best friend Hank Marducas half of his estate. If at some later point T-Bone revokes the codicil, the underlying will is revived and Charlene will take the entire estate upon T-Bone’s death.

C. Revival and Republication

• In Texas, there is no automatic revival of a revoked will

Example 25: T-Bone Taylor executes a will giving his estate to his wife Charlene. Later, T-Bone executes a new will, which not only splits his estate between Charlene and his best friend Hank, but also expressly revokes the first will. T-Bone and Hank have a falling out and T-Bone revokes the second will. Revocation of the second will does not automatically revive the first will. In order for the testamentary gift to Charlene to be admitted to probate, T-Bone will need to re-execute the first will.

If T-Bone doesn’t re-execute, he will die without a will, and his estate will be distributed through the rules of intestate succession.


1. Dependent Relative Revocation (DRR)

Note 10: Texas courts have never actually applied DRR, but it has been mentioned in dicta.

o DRR provides a safety valve for testators who ________________________________ revoke a will.

o The mistake can be a mistake ___________________ or ____________________________. o The court will use DRR to revive a revoked will (invalidate the mistaken revocation)

Example 26: T-Bone Taylor executes a will giving his entire estate to his best friend Hank Marducas. After T-Bone gets word that Hank has died, he executes a new will giving his entire estate to his wife Charlene. If it turns out that Hank is in fact alive and well, Hank can seek to have DRR applied to undo the revocation of the first will, on the theory that the revocation of the first will was conditioned on a mistake of fact (i.e. Hank’s death).

Example 27: T-Bone Taylor executes a will giving his entire estate to his best friend Hank Marducas. T-Bone attempts to create a second will and writes on the first will that “this will is revoked because I have made a new will.” If it turns out that the second will is not valid, Hank can seek to have DRR applied to undo the revocation of the first will, on the theory that the revocation of the first will was conditioned on a mistake of law (i.e. valid execution of the second will).

Exam Tip 10: If you see revocation based on a mistake, do a DRR analysis.

CHAPTER 6: CONSTRUCTION OF WILLS

A. Construction (Interpretation)

1. Plain Meaning Doctrine

o Courts tend to give the words in wills their ________________________________________.

Assume the testator meant the plain meaning of what he said, even if he meant something else.

o In general, extrinsic evidence is ______________________________ to determine meaning

2. Incorporation by Reference

o A will may incorporate an extrinsic document that is not testamentary in nature, provided:

The document is ______________________________________at the time of execution; The testator ___________________ the document to be incorporated into the will; and The document is ________________________ in the will with sufficient certainty as to

permit its identification.


Example 28: A clause in T-Bone Taylor’s will provides, “This will makes bequests in accordance with the list provided in my desk.”

3. Acts of Independent Significance

o A testator can dispose of property based on some act or event that is unrelated to the execution of the will.

Example 29: T-Bone’s will provides, “I devise my stamp collection to my daughter-in-law at the time of my death.” The law presumes that the son’s marriage has nothing to do with the will.

Exam Tip 11: The doctrine applies to acts that occur in the future (after the execution of the will).

4. Lapses and the Anti-Lapse Statute

o At common law, a testamentary gift would ____________________ (i.e. fail) if an intended beneficiary did not survive the testator.

Failed gifts would be dumped into the ________________________________________.

Example 30: T-Bone devises “my car to my best friend Hank Marducas.” Hank dies before T-Bone. Thus the gift to Hank lapsed at common law and would go to the residue.

o Texas has an anti-lapse statute, which provides ____________________________________ _______________________________ for lapsed gifts.

1) Family Relation

• Lapsed gift must have been intended for a descendant of the testator's parent

Example 31: Child, grandchild, etc.

2) Survived by issue

• The intended beneficiary must have left surviving issue

Example 32: T-Bone Taylor’s will provides, “$10,000 to my son, Alex.” Alex predeceases T-Bone and is survived by a son, Anton.

Step 1: The gift to Alex is a covered relationship (T’s son).

Step 2: Although Alex predeceased T-Bone, Alex is survived by issue, Anton.

The statute prevents the gift from lapsing. Thus Anton takes the gift.

Exam Tip 12: Look for who the gift is going to and whether that person died. IF the person predeceased, look for representation.


Special Problem Involving Class Gifts:

• A class gift is a gift to a group of people (“my grandchildren,” etc.). • At common law, class gifts were an exception to the lapsed gifts rule.

o If a member lapsed, the rest of the class shared that member’s gift. o Keep this in mind in case you get a question with a class gift and the lapsed

recipient is not protected by the Texas anti-lapse statute.

• If the class member is covered by the anti-lapse statute and leaves issue, the anti-lapse statute controls.

5. Classifying gifts

o Specific gift: a gift of _______________________________________________________ ___________________________________.

Example 33: T-Bone devises “my stamp collection to Hank Marducas.”

o General gift: a gift of _______________________________________________________ ______________________________________________________.

Example 34: T-Bone devises “$10,000 to my nephew Alex.”

o Demonstrative gift: ________________________________________________________ ___________________________________________________.

Example 35: T-Bone devises “$10,000 to my daughter Bonnie from my Bank USA account, but if the funds are insufficient, then from the estate’s general assets.”

o Residuary gift: ________________________________________.

Example 36: T-Bone devises “the rest of my property to X.”

6. Abatement

o If the estate does not have sufficient funds to pay debts or make gifts, the gifts will be abated, or reduced, in a specific order.

o Unless the will says otherwise, gifts will be abated in the following order:

1) Intestate property—least protected (first thing to be reduced)

2) Property in a residuary gift

3) General bequests

4) Specific bequests to others

5) Specific bequests to relatives—most protected (last thing to be reduced)


Note 11: If they can be satisfied, demonstrative legacies are treated as specific gifts. Otherwise, they are treated as general gifts.

7. Ademption

a. Ademption by Extinction

Applies in the situation where a will makes a specific devise of property, but the specific piece of property is ________________________________________________________ at the testator’s death.

• This could be because the testator transferred the property or because it was destroyed or was lost.

• The traditional rule was that the specific devise was “extinct” and the devisee takes nothing.

Texas follows this rule, but courts can try to avoid ademption by extinction

Example 37: T-Bone devises his cherished stamp collection to his son, Harvey. When he made the will, T-Bone owned the stamp collection. Later, however, T-Bone sold the stamps. With the money he made on the stamps, T-Bone bought a rare picture of Elvis playing racquetball, which he owned at his death. Under Texas law, Harvey does not receive the photo as replacement. However, the court could try to satisfy the gift, but it is not required to.

b. Ademption by Satisfaction

Applies when a testator tries to satisfy a _____________________________________ ________________________________________________, either in whole or in part, by an _________________________________________________________________.

The testator must intend for the gift to adeem before the legacy is rendered inoperative.

B. Ambiguities and Mistakes

1. Ambiguities

Example 38: T-Bone’s will devises “my stamp collection to my brother.” T-Bone has two brothers, Arnold and Bernie. This is a latent ambiguity because it is only ambiguous due to a fact beyond the will.

Example 39: T-Bone devises some real estate to his brother. At one point in the document, it lists the address as 1122 Boogie Boogie Avenue. While at another spot, it lists the address as 2211 Boogie Boogie Avenue. This is a patent ambiguity because it appears on the face of the document.

o Traditionally, courts required patent ambiguities to be resolved without extrinsic evidence, while extrinsic evidence was admissible to resolve latent ambiguities


o Most courts, including in Texas, have moved away from this distinction and allow extrinsic evidence to resolve either

2. Mistakes

Example 40: In drafting his will, T-Bone accidentally gave his stamp collection to Arnold instead of giving it to Bernie, an avid stamp collector. Even if Bernie can prove the mistake, Texas courts tend to leave the provision as executed.

o Courts are not likely to admit extrinsic evidence to correct mistakes

CHAPTER 7: POWER TO TRANSFER

• This section concerns limits on the testator’s power to transfer. • Specifically, we are interested in three situations:

1) The rights of the testator’s ____________________________

2) Gifts to the testator’s _________________________________

3) Bars to succession, in particular, “___________________________________________” and disclaimer

A. Rights of the Surviving Spouse

• A surviving spouse is entitled to a number of means of support under Texas law:

o Social security and pension plans o Personal property set asides o Family allowance o ____________________________________________ o Community or quasi-community property

1. Elective Share

o If a surviving spouse is unhappy with his share under the testator’s will or through intestacy, the spouse can elect to take a forced share.

Exam Tip 13: This is not likely to come up on the Texas exam; you are more likely to see a community property issue.

2. Community Property

o Spouses have an unrestricted ability to dispose of separate property o Each spouse may exercise testamentary disposition over his or her 1/2 interest in the

community estate


B. Gifts to Testator’s Children

1. Advancements

o Lifetime gift to a child that is treated as satisfying all or part of the child’s ________________________ share.

Note 12: Operates like ademption by satisfaction (testate), except advancements deal with intestacy.

a. When is a gift an advancement?

Common law: any lifetime gift is presumed to be an advancement; the child has the burden of showing it was an absolute gift

Texas: a gift is an advancement only if the decedent or the heir declares in a _____________________________________________________________ that the gift is an advancement

b. “Hotchpot” Analysis

1) Add the value of the advancements back into the intestate estate.

2) Divide the resulting estate by the number of children taking.

3) Deduct the child’s advancement from the child’s intestate share.

Example 41: The decedent dies intestate, leaving three children—A, B, and C—and an intestate estate worth $50,000. A received an advancement worth $8,000 and B received an advancement worth $2,000. C did not receive an advancement.

Editor's Note 3: The Professor misspoke in this example: B received an advancement worth $2,000.

Step 1: Add the advancements back into the estate ($50k + $10k = $60,000)

Step 2: Divide into equal shares ($60k / 3 = $20,000 ea.)

Step 3: Deduct the advancement from the child’s share

A—$20,000 - $8,000 = $12,000

B—$20,000 - $2,000 = $18,000

C—no deductions = $20,000 (Add ‘em up)

$50,000

2. Omitted Children

a. Intentional Disinheritance

If done so intentionally, a parent is free to disinherit her children.


Example 42: T-Bone’s will provides, “I have intentionally not made any gifts to my child, Bernard, for he is a rotten child and unworthy of my love or money.”

b. Unintentional Disinheritance

This is where the testator has a child after executing a will and dies without amending the will to account for the later-born child.

a) If Testator had no other children when the will was executed, then omitted child takes an ___________________________________________________________.

b) If Testator had at least one child at the execution of the will, and the will devised property to at least one of those children, then the omitted child takes ________________________________________________ from that portion of the property already devised to the other child.

C. Bars to Succession

1. The Slayer Rule

o A person cannot profit from murdering another. In the will context, a beneficiary who murders the decedent is barred from taking under the decedent’s will.

o A beneficiary who murders the testator is treated as if he ____________________________ the testator.

Note 13: Courts have not applied The Slayer Rule in involuntary manslaughter and self-defense cases. Thus, the rule requires _________________________.

o Anti-lapse: Texas _____________ allow the killer's issue to take under the anti-lapse statute

2. Disclaimer

o A person may disclaim a testamentary gift. The disclaimer must:

_____________________________________________; _______________________ the disclaimer; ___________________________ the interest or power being disclaimed; ____________________________ by the disclaimer; and ________________________________ to or filed with the personal representative.

CHAPTER 8: WILL CONTESTS

• Will contests—objections to the validity of a will, often concerning capacity • The contestant is challenging _________________________

A. General Considerations

• A contest must be made within _____________________________ of opening probate • A claimant must be an _____________________________________________ party:


o Someone who will stand to benefit financially under the will, o Someone who would take under intestate succession but not under the will, or o A person interested in the welfare of an incapacitated person, including a minor

• Forfeiture clause—designed to _____________ a beneficiary from challenging the will

o It states that a beneficiary will lose the beneficiary's share if he files a challenge o If the claim is baseless, then the clause is enforceable o The clause will not be enforced if the claimant has ________________________________

and brought the claim in good faith.

B. Testamentary Capacity

• Basic Rule: In order to execute a will, testator must be of age—at least __________ years old—and be of ______________________________________.

1. General Testamentary Capacity

o A person challenging the will (“the contestant”) bears the burden of proving that the testator lacked the requisite mental capacity ______________________________________ ________________________________________________. (“The ____________ Question”)

o The testator must have had the ability to know:

The nature of the act—“The ___________ Question”; The nature and character of her property—“The _______________ Question”; The natural objects of his bounty—“The _______________ Question”; and The plan of the attempted disposition—“The ____________________ Question.”

Exam Tip 14: The issue is not whether testator actually knew these things; it’s whether the testator had the ability to know them.

Example 43: T-Bone has a bit of a drinking problem, and occasionally suffers from memory lapses. This does not alone mean that T-Bone lacks capacity to make a will; it does not mean that he lacked capacity at the time he executed the will.

Example 44: T-Bone suffered from intermittent bouts of dementia. While he was meeting with his lawyer to execute his will, T-Bone became disorientated and couldn’t remember the names or faces of his two children, Bonnie and Clyde, who were the sole beneficiaries of his will. At that point in time, it is questionable whether T-Bone was able to know the natural objects of his bounty.

Example 45: Same facts as above, except T-Bone could recognize Bonnie and Clyde, but he could not remember where he was or who his lawyer was, and could not remember how much property he actually had. It is likely that T-Bone lacked general capacity.


2. Insane Delusion

o An insane delusion is a false belief to which the testator adheres in spite of all reason and evidence to the contrary.

o The testator may have general capacity, but has an insane delusion as to some belief.

Objective test: Measure testator’s insane delusion against that of a ______________________________________________________ in the testator’s position. Belief is an insane delusion if the rational person could not have reached the same conclusion.

Causation: It’s not enough that the testator clung to an insane delusion. The contestant must show that the insane delusion was a but-for cause of the testamentary disposition.

Example 46: T-Bone Taylor was convinced that his wife Charlene was cheating on him. So convinced of this fact, T-Bone would sit on the couple’s stoop and confront men who walked by, accusing them of having sex with his wife. He would not permit Charlene to be home alone because he was worried that her paramours would visit her while he was away from the house. Charlene vehemently denied the allegation. T-Bone’s will provides, “I leave nothing to my wife because of her rampant pattern of adultery.” In this case, Charlene would have a good case to challenge on insane delusion grounds.

C. Undue Influence

• Think of undue influence in terms of a ________________________________ __________________________________________.

1. Basic Idea

o Contestant alleges that a third party controlled the testator’s decision-making process

2. Required Proof

o The contestant bears the initial burden of showing:

The existence and exertion of ________________________________; That _____________________ the suspect disposition; The influence ______________________________ the mind and the will of the testator.

o Look for:

Susceptibility—the testator is vulnerable in some way Motive—the influencer has something to gain Opportunity—the influencer had an opportunity to influence Causation—the influencer actually caused the resulting disposition


3. Confidential relationship

o There is a presumption of undue influence when the influencer had a confidential relationship with the testator

o Usually professional in nature—doctor, lawyer, therapist, caregiver, etc.

4. Consequences

o If undue influence, the beneficiary is treated as if he ________________________________ the testator to the extent the gift is in excess of the beneficiary’s intestate share, if any.

Exam Tip 15: Causation is the key element.

5. Drafter rule

o Any provision making a gift to the drafter of the will or her family is ___________________, unless the drafter is related to the testator

D. Fraud

• Contestant bears the burden of showing that the beneficiary engaged in an unlawful _______________________________________________________ at the time of the execution.

1. Elements

o Contestant must show that the beneficiary made the misrepresentation with:

The ________________________to deceive the testator; and The ______________________________ of influencing the testamentary disposition.

2. Kinds of Fraud

a. Fraud in the Inducement

Misrepresentation that causes the testator to make a different will than the testator would have otherwise made.

Example 47: T-Bone’s sole heir, Bonnie, convinces T-Bone not to execute a will in favor of his best friend Hank by promising that she will convey the property to Hank after T-Bone is dead. At the time, Bonnie has no intention of conveying to Hank. This is fraud in the inducement.

b. Fraud in the Execution

Misrepresentation as to the _____________________________ or ______________________ of the will.

Example 48: Knowing that T-Bone has poor eyesight and can’t read his will, Bonnie promises T-Bone that his will transfers all his property to his best friend Hank Marducas. But the document actually transfers the property to Bonnie and her brother Clyde, in equal shares. T-Bone signs the will. This is fraud in the execution.


3. Remedy

o A ______________________________________________ is the most common remedy for fraud.

Exam Tip 16: Undue Influence and Fraud require an act by some third party, while Insane Delusion arises in the mind of the testator

CHAPTER 9: THE PROBATE PROCESS

A. Probate and Administration

• Probate is the process in which the decedent's final estate is determined • The primary purpose is the orderly administration of the decedent's estate.

o Protects and satisfies creditors o Quieting contested titles o Protecting testator's interests (against undue influence, fraud, etc.) o Efficiently handling will contests

1. Personal Representative

o Person or entity who administers the estate

Executor: representative who is _____________________________________________ Administrator: representative who is _________________________________________

_______________

a. Priority for choosing an administrator

1) Surviving spouse

2) A principal legatee under the will

3) Any other legatee under the will

4) Nearest living relative

5) Creditor of the decedent

6) Any other individual of good character

b. Can the Personal Representative be paid?

Under Texas law, the personal representative can be (but does not have to be) paid There is a cap on the total amount: 5% of amounts paid into or out of the estate

c. Temporary or Emergency Appointments

If necessary, the court may appoint a temporary representative

Example 49: Rachel died suddenly without a will. For religious reasons, her family needed to organize and hold her funeral quickly. There had not been a


personal representative appointed yet. Her close friend Hannah applied for emergency appointment in order to arrange a funeral on Rachel's behalf. The costs would come from Rachel's estate.

2. Jurisdiction

o In Texas, county and district courts have _____________________________ jurisdiction over probate matters

If it is uncontested, it goes to _________________________________ If it is contested, it goes to ___________________________________

o Rulings can be appealed to the appellate court

3. Venue

o Was the decedent a Texas resident? If so, venue is proper in the county of the ______________________________________________

o Was the decedent a nonresident of Texas? Most likely, venue is proper in the county in which she died or where her assets are located

4. Statute of Limitations

o A probate proceeding must commence within ____________________ after the decedent's death, unless _______________________________ is shown.

o Closing probate—two years after commencement

5. Procedures

a. Notice

60 days after admitting a will to probate, the representative must give notice to _______________________________________ of the intended gift.

b. Inventory

90 days after the appointment, the personal representative must file inventory, including:

• The decedent's ______________, and • Any claims owed to the estate

c. Homestead Exemption

The gist: provides two protections for the decedent's home

a) The right to occupancy by the decedent's spouse and children

b) A right that shields title against the claims of the decedent's creditors

The Homestead: property the decedent used as a home or as a home and business


• Urban homestead—capped at ______________________ located within a municipality that is served by police, fire, and at least 3 utilities

• Rural homestead—capped at _______________________ (100 if a single individual) • The homestead must be either urban or rural, not both

Occupancy—after the decedent's death, the surviving spouse and minor children can ____________________ the homestead

Title—after the decedent's death, the surviving spouse and minor children take title to the homestead property _____________________________________ by the claims of decedent's creditors

Exceptions—the following are claims that can always be asserted against the property:

• Purchase money liens; • ___________________; • Tax liens; • Second liens on the homestead under certain circumstances; • Owelty of partition—after partition the testator received less or more than was fair

in the partition

d. Family Allowance

_________________________________ amount fixed by the court to support the spouse, minor children, and adult incapacitated children of the decedent

Source—the amount is taken from the couple's community estate Lasts for one year from the decedent's death Standard—to maintain the standard of living that the family had

e. Muniment of Title

Procedure used when the administration of the estate is unnecessary or unavailable Enables devisees to receive ________________________ to

________________________________ Avoids costs from standard probate Decedent cannot have _____________________________________________ (there is

no need to satisfy creditors) The order admitting a will to probate as muniment of title establishes the devisees as

the new owners of real property

CHAPTER 10: FORMS OF ESTATE ADMINISTRATION; CREDITORS

A. Independent Administration

• The most commonly used form of estate administration in Texas


• An independent executor named by the testator, or chosen by the beneficiaries to settle the estate

• This method is estate administration _________________________ court supervision

1. Powers of the independent executor

o Settle creditors' claims o Exempt property set asides and allowances o Wrap up the decedent's financial affairs o Make distributions o Alienate property in certain situations

B. Creditors

1. Unsecured Creditors

o Generally, unsecured creditors can file a claim up until ______________________________ _______________________

o Exception: An unsecured creditor's claim for money must be presented within ___________________ of the creditor's receipt of the optional notice

Editor's Note 4: A personal representative is required to deliver notice to unsecured creditors by publication. However, the personal representative may additionally choose to deliver personal notice by certified or registered mail to known unsecured creditors holding a claim for money against the decedent. Therefore, note that “optional notice” here only refers to personal notice by certified or registered mail.

a. Form of Notice

The personal representative can notify creditors by publication in a _________________________ or by __________________________________________

b. Presentment of Claim

Independent Administration—no particular _______________________________ Dependent Administration—claims must be ____________________________________

(by affidavit) and filed with the court or personal representative

• The personal representative must respond within 30 days

2. Secured Creditors

a. Personal Notice

The personal representative has ____________________ after appointment to notify creditors then known

Notice by certified or registered mail, return receipt requested


b. Presentment as Preferred Debt and Lien

The creditor will look to collateral for payment on the debt Instead of taking the debt from the assets of the decedent's estate, the creditor takes

the collateral

c. Presentment as Matured Secured Claim

The creditor will take the proceeds from the sale of the encumbered property (Class 3) If the sale proceeds are insufficient, the creditor is entitled to a deficiency judgment

(Class 8)

3. Priority of Claims

1) Class 1—expenses of decedent's funeral, sickness, and family allowance;

2) Administrative expenses;

3) Class 3—secured claims;

4) Child support arrearages that have been reduced to judgment;

5) Class 5—Taxes, penalties, interest;

6) Class 6—costs of decedent's confinement in prison;

7) Cost of medical assistance claims by the State;

8) Class 8—all other claims

C. General Advice

• Study your own way—don’t worry about others • Pace yourself—the exam is a marathon not a spring • Don’t be overwhelmed—eat, rest, take a break!

GOOD LUCK ON THE EXAM!

[END OF HANDOUT]

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