A gift may be challenged if it was intended to defeat CP rights. Factors to determine if gift is valid: Whether donee is related to the spouse; The amount of the gift relative to the entire community estate Whether the spouse receives at least that much in other property; and Whether the gift was the donor's sole management property.

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Wills I-II, Estate Administration

Q: Doctrine of Republication by Codicil.

A will 'speaks' on the date of the last codicil to the will; it is deemed republished and reaffirmed except as modified by the codicil.

Q: Abatement of Property: 'Specific' Bequest/Devise

Gift of a particular asset. Note: If devise is '123 Main Street,' but that property is sold before T's death and cash is put in a bank account, the devise fails.

44 important questions on Wills I-II, Estate Administration

Proving a will that is not self-executed: Rules

Must establish that: (1) T was over 18, (2) 2 witnesses who were over 14, and (3) both witnesses signed in T's presence.

At probate, only need testimony of 1 of the 2 witnesses--if he resides outside the county, his testimony can be secured by deposition or sworn interrogatory.
If neither of the 2 Ws can be located, the will can be admitted to probate upon the testimony of 2 witnesses who can identify T's signature on the will (if you cannot get 2 to prove signature, only 1 is required).

Proving a will that is not self-executed:Presumption

Presumed that the will was validly executed and the burden of proving otherwise is on the will contestant.

Valid Disclaimer of Interest in Will/Inheritance

Requirements: Written + signed/acknowledged statement that party disclaiming is not in arrears on child support and filed within 9 months.
Effect: When a beneficiary disclaims his interest in the estate, his shares are distributed as though he predeceased the T.

Doctrine of Republication by Codicil.

A will "speaks" on the date of the last codicil to the will; it is deemed republished and reaffirmed except as modified by the codicil.

Distributing Assets in a Will: Life Insurance/Retirement Accounts

Governed by the K; names the beneficiary.
Will cannot change the beneficiary--even if beneficiary disclaimed in the will. (To change, would have had to have complied with terms of K).
Divorce revokes beneficiary.

Distributing Assets in a Will: Homestead

If purchased during marriage, presumed to be CP (would need facts to overcome the presumption): Surviving Spouse (SS) would retain her title to 1/2 of CP; the other (dead) spouse's interest in CP passes under the will. BUT, SS has right to occupy homestead rent-free for as long as she uses it as principal residence.
If SP, passes under the will but SS has a right to occupy the homestead.
If both spouses die, homestead passes to kids--children under 18 have exclusive right to occupy.

Distributing Assets in a Will: Right of Survivorship

RoS language must be stated or else doesn't pass by RoS.
If RoS, title passes to JT on death of another
If the right of survivorship is created in community property, both spouses need to have signed the agreement for it to pass by RoS. If they both signed, SS can seek reimbursement. IF one of them didn't sign, passes 1/2 to SS and 1/2 through will.

Distributing Assets in a Will: Checking Account with Language "joint tenants," but no RoS.

Extensive evidence is not admissible to challenge the validity of a RoS in a multi-party account if the account agreement created a valid ROS and was signed by the party who died.
If account established BEFORE September 11, 2011: Parties signing account agreement as "joint tenants" was sufficient to create a valid survivorship account.
If account established AFTER September 11, 2011: To establish ROS need language "joint tenants with right of survivorship" or similar language. If the account agreement doesn't contain such language, the account is owned in proportion to the parties contributions to the account.

Abatement of Property: Order of Priority

If the deceased's property is liable for debt/expenses of administration other than estate taxes, bequests abate in the following order to pay creditors:

Property not disposed of by will, but passing through intestacy;
Personal property of the residuary;
Real property of the residuary;
General bequests of personal property;
General devises of real property;
Specific bequests of personal property
Specific devises of real property;

Abatement of Property: "Specific" Bequest/Devise

Gift of a particular asset. Note: If devise is "123 Main Street," but that property is sold before T's death and cash is put in a bank account, the devise fails.

Abatement of Property: "Demonstrative" Devise/Bequest = "General" Bequest/Devise

Demonstrative = general, but payable from a specific source (e.g., $100K proceeds of sale form GM stock; devise is the $, not the stock). Same effect as a general devise/bequest. Texas does not recognize demonstrative devise.

Pretermitted Child Statute: Application

Applies when (1) child is born/adopted after the execution of the will; (2) who is not mentioned in the will, and (3) not provided for by an non-probate transfer. Idea: Protects kids from unintentional omissions. BUT: Pretermitted child's share does not apply to non-probate assets (exception: 401K).

Pretermitted Child Statute: If no other children are alive when will is executed

Child takes interstate share of all property not bequeathed to other parent of the child. But note, when the child's other parent is not the decedent's spouse, the pretermitted child may not reduce the amount passing to T's spouse by more than 1/2.

Pretermitted Child Statute: If there are other children when will executed AND such children are not provided for

Pretermitted child takes intestate share of all property not bequeathed to the other parent of the child. Child takes part of the estate he would have inherited had T dies intestate, unmarried, and owning only a portion of the estate not bequeathed to the child's other parent.

Pretermitted Child Statute: Does NOT apply where

Pretermitted child (A) is provided for/mentioned in the will OR (b) is provided for by a non-probate transfer that takes effect at T's death (e.g., life insurance policy).

Proof of Lost Wills: To probate a lost will, 3 things are needed

Proof of the will's "due execution;"
Cause of will's non-production, sufficient to show it cannot be produced after diligent search
Contents of will must be substantially proved by one who has the will, has heard or read it, or can identify a copy of the will (only need proof of material provisions; copy of the will is sufficient to show contents).

Proof of Lost Wills: Presumption

If the will was last seen in T's possession or under his control, then the reason that the will cannot be found is that the T revoked the will by physical act (revocation = intent + physical act).

Rules of Intestate Succession: Apply when

Decedent left no will (or will was not validly executed);
Will does not make a complete disposition of the estate (partial intestacy); or
An heir successfully contents the will, and the will is denied probate.

Rules of Intestate Succession: Survived by Spouse--Community Property

One marriage situation: 100% to spouse, 0% to children

Mixed-marriage situation (decedent has children who are not descendants of the surviving spouse): 50% to spouse, 50% to surviving descendants.

"Separate Property" v. "Community Property"

SP is property (1) owned by a spouse before marriage, (2) property acquired during marriage by gift/will/inheritance, and (3) a spouse's tort recovery for personal injury. . . All other property acquired during marriage is CP. In TX, income from separate property is CP. The presumption is that all property on hand on dissolution of the marriage (whether by divorce or death) is CP. This presumption can be overcome only be C+C Ev.

Rules of Intestate Succession: Survived by Spouse--Separate REAL Property

1/3 life estate to surviving spouse. 2/3 for descendants (Regardless if form marriage) + remainder following SS's 1/3 life estate.
If no descendants and only survived by spouse and parents/descendants of parents (brothers and sisters): 1/2 to spouse (in fee simple), 1/2 to parents/descendants of parents.
If no descendants, parents, or descendants of parents: 100% to surviving spouse

Rules of Intestate Succession: Not survived by spouse

When a decedent is not survived by a spouse but is survived by descendants, his entire estate passes to his children or their descendants. If there are no descendants but parents survive the decedent, 1/2 passes to each parent.

Note: If any question (whether dealing with a will or intestacy) involves a surviving spouse, you should mention (1) Homestead (if applicable), (2) Exempt personal property, and (3) Family Allowance

"(1) If the home qualifies as a homestead, spouse is entitled to exclusive occupancy of the homestead for so long as she occupies it. (2) Also, some of the personal property assets may qualify for an exempt personal property set-aside in the spouse's favor. (3) Finally, if spouse owns little or no separate property, she can petition for a family allowance in an amount needed for her support for 1 year. The exempt property set aside and family allowance come "off the top" of the estate before the intestate distribution is made."

Non-Marital Child can inherit if:

(A) Paternity is presumed under TX family code or (B) one of the tests set out in the family code is met.

BOP on the child to prove by C+C evidence that the decedent was his father. Could also assert there is "good cause" to order genetic testing if paternity is not proved.

4 Tests to Prove Paternity under Family code

Born during marriage or attempted marriage to child's mother
Father married mother after child's birth
Child resided with "father" during the first 2 years of his life
Father adjudicated to be the father in a. paternity suit or by a signed, sworn statement acknowledging paternity.

Intestate Distribution: Per Stripes among Descendants

Distribution among descendants is made per capita with representation. Estate is divided at the first generational level at which there are living descendants. Each living child inherits only share, and the descendants of a deceased child take by representation the share that the deceased child would have inherited had he survived to be an heir.

Intestate Distribution of Property: (1) Real Property Outside of Texas

Under situs rule, real property outside of TX is governed by that state's law, and cannot be probated in TX probate court. It will be necessary to take out an ancillary administration proceeding in the other state's probate court and the property distribution will be determined under that state's intestacy rules.

Intestate Distribution of Property: (2) Retirement Account

If decedent spouse's participation began BEFORE marriage, the portion of the account attributable to the spouse's premarital contributions would be his SP and the balance would be CP.
If the decedent spouse's participation began AFTER marriage, the entire account would be community property.
Characterization of the account does not matter if it is a 401(K) plan.

Intestate Distribution of Property: (3) Homestead

Urban homestead: Less than 10 contiguous acres, as it was used as the couple's principal residence.
Rural homestead: Up to 200 acres, doesn't have to be contiguous.
SS is entitled to exclusive occupancy of the homestead for as long as she continues to use it her principal residence. Her only obligation is to pay property taxes on the home. Her exclusive possession will terminate if she ceases to use the house as her principal residence.
Minor can claim homestead protection and live there until he reaches age of majority.

Intestate Distribution of Property: (4) Personal Property

Personal property can be exempt set-aside (to the extent that the combined value does not exceed $60L) until the administration of the decedent spouse's estate is closed. However, if the decedent spouse's estate is insolvent, then the SS can keep the exempt personal property forever.

Intestate Distribution of Property: (5) Funeral Expenses

Funeral + burial expenses are charged entirely against and paid from the decedent's estate--can be 1/2 interest in CP and his personal property.

Intestate Distribution of Property: (6) Life Insurance

If proceeds go to decedent's spouse's estate, then the process are treated as CP and divided equally among SS + descendants.

120 Hour Rule (Intestate Succession AND wills)

If a devisee/beneficiary dies within 120 hours of the decedent/testator, then the devisee is treated as if he predeceased the decedent.

Husband + Wife dies within 120 hours of each other: (1) 1/2 CP passes through H's estate as though he survived W and (2) 1/2 of cP passes through W's estate as though she survived H.
Applies to life insurance policies, joint/survivor bank accounts, and property held in joint tenancy.
Note: If will requires survival or covers simultaneous death in a common disaster, the 120 hour rule does not apply.

Challenging CP Gifts

A gift may be challenged if it was intended to defeat CP rights. Factors to determine if gift is valid:

Whether donee is related to the spouse;
The amount of the gift relative to the entire community estate
Whether the spouse receives at least that much in other property; and
Whether the gift was the donor's sole management property.

Attesting Witness = Beneficiary

Under TX Estates Code, the fact that a beneficiary is one of the attesting Ws never affects validity of the will. The only consequence is that the witness/beneficiary may lose his legacy if the will can't otherwise be established.

Remember: To probate a will, you only need testimony of 1 attesting W in open court.

Estate Administration: (1) Standing to Bring a Will for probate

Independent executor has a duty to offer will for probate and to defend the will (if he acts in good faith, entitled to costs + attorney's fees).
Devisees named in a will are interested persons who have standing to contest a later will.

Estate Administration: (2) Probate v Nonprobate Assets

Non-probate assets are subject to estate administration rules: Retirement accounts, checking accounts (if right of survivorship created), certificate of deposit.

Estate Administration: (3) Independent Administration (Will)

Available where independent administration (IA) is either (A) provided for in the will or (B) all beneficiaries agree.

If (B) all beneficiaries agree, there can be IA in cases of intestacy or where the will does not name an independent executor (unless judge finds IA not in the best interest of the estate.
However, if (A) independent executor is named in the will, the court cannot veto.

Estate Administration: (3) Independent Administration (Will): Powers of Independent Executor

Independent executor has power to do anything that a dependent administrator can do, but without court order:

Includes power to sell property if it's done to pay debts, administration expenses.
If the will does not give independent executor power of sale, court can still grant power of sale if the beneficiaries who will receive an interest in the property consent.

Estate Administration: (5) Dependent Administration (Will)

Involves substantial court supervision; most actions require court approval.

Estate Administration: (6) Muniment of Title (Will)

Same function as a deed
Order admitting will to probate as Muniment of Title Only cannot be entered unless there are no unpaid debts (other than mortgage on the homestead) (i.e., funeral expenses + other debts must be paid before the will can be admitted).
Convenient because it's only 1 trip to the courthouse; Can be used to collect bank account in decedent's name.

Estate Administration: (8) Statutory Heirship Proceeding (Intestacy)

Use this if there is real property other than a homestead; no debts. Can be used where there are no unpaid debts (other than a mortgage on a homestead), the estate is eligible for an affidavit that no necessity for administration exists, and estate's affairs can be wound up by using the affidavit.
Proceedings do not involve an appointment of a personal representative.
Lacks the formalities of a formal administration of the estate, which requires the court to have much oversight over the administration and can end up being costly.

Estate Administration: (8) Statutory Heirship Proceeding (Intestacy): Serves Same Function as Muniment of Title (Probate)

A statutory heirship proceeding establishes, by court order, that (1) the person is dead, (2) he left no will, and (3) he was survived by the named persons as heirs. It also fixes the amount of the their intestate shares.

BFPs . . . who deal with (a) the legatees under the will probated as muniment of title or (b) persons named as heirs in the statutory heirship proceedings . . . are completely protected.

Estate Administration: (8) Statutory Heirship Proceeding (Intestacy): The Unexpected Heir

An heir whose name was not included in the affidavit of heirship may bring suit against the other heirs

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(11) TX Wills and Estate Administration

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