a person who dies without a will, dies...
all of a person's descendants of all generations
texas has adopted the ____ method of distribution
per capita with representation
also referred to as "modern per strirpes"
estate is divided into equal shares att he first generational level
if a person dies without a will, or if will is totally invalid, intestacy is ...
if intestate is survived by issue, surviving spouse receives...
1/3 of personal estate and a life estate of 1/3 of real estate
if intestate is not survived by issue, the spouse receives...
all of the real and personal property, unless the intestate has a surviving parent, sibling, or descendant of a sibling
in that case, spouse gets all personal property and half real estate, and the other half goes to other heirs
right of publicity can transfer from intestate, to..
fully to spouse if no issue
one half to spouse and half to issue
all to issue if no spouse
all to parents, if no spouse or issue
community property passes to...
the share of issue or collateral heirs is that portion...
not distributed to a surviving spouse
under the scheme of per capital by representation, the estate is...
divided into as many equal shares as there are survivign heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survived the decedent
if there are no issue or surviving spouse...
the parents of the decedent will take in equal portions
if there are no issue, surviving spouse, or parents...
the entire estate passes to the decedent's sibling and their descendants, and if they arent alive, then it all goes split to paternal and maternal kindred (nearest lineal descendants, starting with grandparents)
what do unborn heirs receive from intestate>?
nothing, have to be "in being and capable to take"
what is the effect on adopted children for intestate distribution?
adoption severs natural parent relation, creates that relation with adopted parents
(even if adopted as an adult)
effect of intestate distribution on children born out of wedlock?
treated like any other child if legitimate through law, i.e., paternity has been acknowledged or proven
presumption of paternity can be rebutted only by genetic testing
if a decedent dies partially or completely intestate, former property he gave or transferred to heirs will be considered an advance against the heir's intestate share only if:
decedent declared in a WRITING or the heir acknolwedged in writing that it was an advance, or to be taken into account if there was an intestate estate
if a prior transfer is considered an advance, then...
it "goes into the hotchpot"
the value of the transfer is taken into account for intestate caclulation
BUT if it turns out that heir got more than he would have, he doesn't have to pay the difference, but he still gets the difference if theres enough left over
if an heir and an decedent die at the same time...
uniform simultaneous death act applies - heir is treated as dead at the same time unless he survives for 120 hours
EXCEPT in insurance proceeds, then insured is treated as surviving, unless he beneficiary caused the death
when joint owners die at the same time with rights of surviviorship or within 120 hours of eachother...
one half as if one survived and one half as if the other survived
Requirements for capacity to make will:
Age (18 years , lawful marriage, or armed forces)
Mental state: intention for document to be a will
Capacity: 1) understand it's a will 2)effect is to distribute property after death 3)nature and extent of property 4)natural objects of testator's bounty (children, spouse, etc.)`
burden of proof for proving soundness of mind to make will is on the...
will's proponent, who is aided by a presumption testator was of sound mind
capacity can be established by testimony of witnesses, interested, lay opinions, or expert opinions
an insane delusion invalidates a will only...
where the will is a product of delusion
otherwise, it just cuts out the part that is crazy
a person who is mentally incapaciated makes a will....
it only effects if it effects the disposition
insane delusion does not mean they arent competent to make will
if testator writes letter outlining will, but then dies...
still can't be used
fails required that testator intend for that letter to be the will
three challenges to testator's intent
undue influence (undue coercion), fraud, mistake
burden is on person attacking will
an attested will is one....
signed by the testator and at least two competent witnesses
does not have to be signed at the same time or in front of witnesses
signature may appear anywhere on face of the will
for witnessing a will, what are the requirements?
must sign it in front of the conscious presence of testator, both need to sign, but not with each other
do witnesses need to know they are witnessing a will?
no, texas does not have a publishing requirement
is anyone disqualified from being a witness to an attested will?
yes, if they have a pecuniary interest under the will
BUT this does not invalidate the will, as long as it's corroborated by a disinterested and credible person that testifies that the testimony is true and correct
an attested written will may be proven in court by:
sworn testimony or affidavit of witness
if no witness is alive or in armed forces, can attest to handwriting
if a will is self-proved...
no further proof of its execution is necessary
to self-prove a will...
1)the testator's acknowledgement of the will as free and voluntary act
2)witnessess's affidavit that testator was of age, sound mind, not coerced
3)these things must be done to an officer authorized to administer oaths
a will be admitted to probate without testifying witnesses if...
it has been self-proved
a will written entirely in the testator's handwriting and signed, but not witnesseed ...
is a holographic will, and it is valid in texas
a holographic will may be be self-proved, but if it is not...
it may be proved by two witnesses to his handwriting.
it may be signed informally, and need not be dated
if a holographic will is printed...
...it does not invalidate it..but the material provisions of the will MUST be in handwriting of testator
If the testator has a will given orally that was recorded...
it is NOT VALID in texas
if a will is not produced in court after it was last seen with testator..
it is presumed revoked
may be overcome by proof that the will was fraudulently destroyed - preponderance
contents may be proven by testimony of a credible witness who has read the will or can identify copy
An addition to, or an alteration of a will is called a...
An alteration or addition to a will is a codicil, and requires that it be...
executed with same formalities as will
will is considered re-executed then; both are viewed as one instrument to be interpreted according to law in effect at time of republication
what is the effect of an invalid will that is subject to a codicil?
it is made valid if the codicil is validly executed -->incorporates the terms by reference if it evidences testator's to incorporate
may a will be changed by a hand-written addition?
yes, this is allowed if it is in the handwriting of the testator, expressly intended to have testamentary effect, and is separately signed by the testator
a will may dispose of property by reference to acts or events, for instance...
a will could transfer the contents of a certain safe deposit box, even if the contents of the box change after the will requirements are fullfilled
does a devise of real property mean only the real property, or is personal property included?
personal property is not included, unless it is specifically referenced
includes chests and etc - a deviement of a chest is JUST THE CHEST, no contents unless specified
most courts, when faced with a conditional provision that is questionable will...
instead treat is as a statement of motive and not conditional
court may consider parol evidence, condition must be clear on face of fill (but parol evidence can't make a facially valid will conditional)
how can a will be revoked?
only by acts of testator, cannot be provided for in will
1)susbequent will or codicil
2)document's being destroyed with intent to revoke it
can lines in a will be stricken out?
not in texas, this is an "Act" and doesn't modify
compare with hand written changes, which ARE allowed to partially revoke
what happens to a will if the testator has a subsequent marriage?
ex-spouse is treated as having predeceased testator, unless stated otherwise
what is the mental capacity required to revoke a will?
same as it is to make a will :
can't have fraud, duress, undue influence, or insanity
_____ is the reinstatement of a will that has been validly revoked.
a will that has been revoked cannot be revived unless there is a reexecution of the will or its incorporated
a revocation by divorce can be revived only by remarriage of parties
if a will is revoked by a subsequent will, and then the subsequent will is destroyed .....
the original will cannot be automatically revived by destroying the subsequent will
if a testator revokes a subsequent will under the mistaken assumption that he was reviving a prior will by doing that, then...
the court will revive the second will, since the revocation was based on mistake of law or fact
this is the "Dependent Relative Revocation"
a contract to make a will or devise something, or not to revoke a will or devise, can be established only by:
1)provisions of a written agreement that is binding and enforceable
2)provisions of a will stating that a contract exists and material provisions of contract (meeting of minds, consideration, etc.)
if a testator breaks a contractual will...
specific performance or damages: court can impose trust on beneifciaires of second will for benefit of beneficiaries of contracted will
are reciprocal wills allowed?
yes, typically done by spouses - contains similar provisions regarding disposition of property to one another
aren't contractual until death of one of the parties
a devise of real property is assumed to be....
fee simple, unless stated otherwise
the cardinal rule of construction for a will is that....
effect must be given to the intent of testator; if a will is not ambiguous, the language is given ordinary meaning and consturction is unnecessary
may extrinsic evidence be used to show intent in context of ambiguity?
yes, patent or latent
a court cannot use conjecture, but it may supply words or clauses when required to effecutate intent
for instance, if a testator gives 3 different people 1/2, it can be assumed he meant 1/3
when property specifically bequeathed or devised is not in the testator's estate at the time of his death...
it is adeemed by extinction, i.e., it fails
if a piece of it still remains, the beneficiary gets whats left, or insurance proceeds,, etc
property given to a person by a testator during the testator's lifetime is considered....
a satisfaction and treated as an advancement if:
1)will provides for deduction or
2)testator declares in contemp. writing that the lifetime gift is to be deducted
3)devisee acknowledges that in writing
(don't consider legal obligations to pay though)
if specifically devised property is subject to a lien...
in texas, liens will not be removed absent a clear intention in the will
i..e, a house will come with the mortgage
a gift to a deceased devisee who was a descendant of the testator or testator's parents....
passes to the descendants of the devisee
in texas, if a beneficiary of life insurance is convicted as a principal or accomplice in causing the death of the insured...
title to property devised by the slayer's victim passes to the slayer, BUT there will be a constructive trust in favor of the heirs upon the property inherited by the slayer
may a beneficiary under a will turn down a gift?
can be total or partial
must give written notice for it to be effective, within 9 months
they may not direct who will receive the property instead - treated as if that person has died previously
if will doesn't state what assets should pay creditors, ....
then the order is (for both personal and real property):
1)property not in will
if a gift is an immediate gift to a class, then...
the class closes at testator's death
if it is postponed, it remains open till it's given
in texas, a disposition to "Children" excludes any child born out of wedlock and includes only marital children
a ____ is a challenge to the validity of a will
person interest int he distribution of the estate ibject to admission of the will; if that will is invalidated, go to prior will
the grounds for contest of a properly executed will are:
the elements of proving undue influence in a will contest are:
1)existence and exertion of influence
2)such that the testator's mind was subverted
3)a will was executed that the testator would not have otherwise made
remedies for a successful will contest for fraud and undue influence
an the court may invalidate the bad part only and admit the rest
can sue wrongdoer in tort for damages or can sue for constructive trust on proceeds wrongdoer received as a result of wrongfully preventing the execution of a will in favor of the plaintiff
a testator may include a no contest provisions requiring...
any beneficiary who contests the will to be forfeit the testamentary gift
will not be upheld in texas if probable cause existed and it was brought in good faith
to have standing to challenge a will, one must
have a financial interest
if a second will gives less to someone than the first will...
they can challenge the 2nd
but they couldnt for instance challenge a 3rd if they didnt appear in the 2nd
a valid gift requires 3 elements
1)present donative intent
2)actual or constructive delivery
gifts causa mortis elements
gift made in anticipation of IMMINENT death from specific cause being suffered - passes outside of probate estate
revocation is automatic if donor does not die
a savings trust...
is a inter vivos transfer
can be a substitute for a will - sign contract naming beneficiary, and can change at any time
only one beneficiary is allowed by statute
who handles the probate
entitle to compensation for services
brings causes of action on behalf of estate
individually liable for conduct during administration
a surviving spouse has a choice to take either...
by the will or by the statute
a forced share under statute can take 1/3 personal estate and life estate in 1/3 real estate if there are children, otherwise gets 1/2 personal and 1/2 real estate
where a spouse attempts to devise entire community property interest and not jsut his one-half share...
surviving spouse can make "widow's election"
can claim one-half of the community estate by renouncing testamentary gift
circumstances that forbid the "widow's election"
2)surviving spose voluntarily left and had adulterous relationship
3)willfully abandoned and refused to live with
4)obtained divorce somewhere else
5)knowingly had bigamous marriage
12 months from the date of death of a testator's with a family...
spouse and children get a payment paid by personal rep.
if it can't be paid in full because it's illiquid, then there will be a deficiency judgment
the birth of a child or adoption after a will has been executed does not revoke will, but...
child is entitled to succeed to a portion of estate if not mentioned in will
entitled to a share equal to share would have received had the death been intestate
must appear from the will that the failure to incldue child was accidental or oversight