Will must be intended to take effect at death. If part of the will is to take place during life (i.e. pay this bill until me
Signed by the testator
Does not matter where the signature occurs
Two attesting witnesses (over 14)
Witnesses do not need to know it is a will
Each witness must sign in the testator's presence.
Does not have to be placed prior to witnesses' signatures just need be in contemporaneous transaction
Does not need to be legible
Not necessary, but can provide prima facie evidence of the facts recited
Can be helpful if witness is 1) forgetful or 2) hostile
"In the testator's presence"
Texas only requires "conscious presence" test - T is conscious of the where they are and what the witnesses are doing and can see them by some slight physical exertion.
Venue for Probate
Have one of the attesting witnesses testify in open court or
If both witnesses are dead or cannot be located, have two witnesses testify to T's or either W's handwriting or
Safe Deposit Boxes
may be examined in the presence of a bank official by spouse, executor, child over 18.
Can be executed at any time (usually at time of will).
T and W's execute sworn affidavit before notary public. It contains and substitutes for what the W would testify (T was in sound mind, T is over 18, W signed in T's presence)
Self-proving affidavit signed but not will
1991 statute says the will is valid if it can be proved through some other manner (the signatures can only be used once).
Affects validity of a bequest to that witness unless:
Will can be proved w/o interested witness's testimony
Interested witness is corroborated by testimony of credible, disinterested person (lawyer, etc.)
Interested W would be heir (takes lesser share)
WHOLLY in T's hand - unless surplusage
Valid in TX even if made in state where they aren't valid.
Need to prove that it was done with testamentary intent (can use extrinsic evidence, formality, etc.)
Does not need to be dated, but good to mention
Holographic Wills: Proving
Prove using 2 W's testifying handwriting
When B predeceases T his gift lapses back into the estate unless the anti-lapse statute applies B:
Was a descendant of T's parent AND
Left descendants who survive T by 120 hours
Surviving Residuary Bs Rule
Where residuary estate is devised to 2 or more, and one gift lapses, the remaining residuary Bs take the residuary estate in proportion of their interests (unless anti-lapse statute applies)
Only class members who survive the T take unless the anti-lapse states applies.
Rule of convenience: class closes when any member of the class is entitled to a distribution
Bringing someone into a class may be impossible if against T's probable intent
If B is dead when will is executed the gift is void and the Surviving Residuary Bs Rule and Anti-lapse Statute Apply
EXCEPTION: anti-lapse does not apply to class member if dead at time will is executed
Intestate Succession: Spouse & CP
Only shared children: all CP to W.
Any children not shared: 1/2 to W and 1/2 split among children
Intestate Succession: Spouse & SP with descendants
W: 1/3 L.E.
Children (or descendants): all to children subject to 1/3 L.E.
Intestate Succession: Spouse & SP w/o descendants
W: 1/2 f.s.
P (or P's descendants): 1/2 f.s.
All to surviving spouse
HEF (part 1)
If the home in ... qualifies as a homestead, W is entitled to exclusive occupancy of the homestead for so long as she occupies it. Also, some of the "misc. personal property" assets may qualify for an exempt personal property set-aside in W's favor.
HEF (part 2)
Finally, if W owns little or no separate property, she can petition for a family allowance in an an amount needed for her support for a period of one year. The exempt personal property set-aside and family allowance come "off the top" of the estate before the intestate distribution is made.
Bad Daddy Rule
A parent cannot inherit from or through a child if there is C&C that P:
abandoned and failed to support C
knowingly abandoned and failed to support C's mother during pregnancy OR
criminally responsible for child's death or SBI.
In inheritances by collateral kin, half-bloods only get half the inheritance of the others.
Degree of Kinship required to take
There is no limit on degree of kinship required to take.
Child born out of marriage:
Can only inherit from father if:
Fam. Code presumption*
decedent signed sworn statement acknowledging paternity
paternity was established in a paternity suit or
Family Code Presumption of Fatherhood
C was born during marriage or 300
married after birth & voluntarily assert pat.
record filed with bureau of vital stats
consent to be named father on birth cert. or
promising in a record to support C
reside w/ C 1st 2 yrs and represented that C was his
Adoption by estoppel
Unperformed agreement to adopt allows child to adopt from that person, but they cannot inherit from their own kin.
Inheritance Rights of Adopted Children
Can inherit from both adopted parents and natural parents unless:
decree terminating P-C relationship expressly terminates inheritance rights - no inheritance from natural parents
adopted as an adult - no inheritance from natural parents
120 Hr rule - applies to both wills, intestacy, insurance, joint & survivor accounts, JT w/ RoS
Be careful: anti-lapse still applies to wills
Contrary will provision: "if he survives me" - this is read to only require some time after that
Disclaimer (will or intestacy)
Written, signed and acknowledged (notary public)
Filed w/i 9 mo. of decedent's death
Filed w/ probate court & w/ copy to personal rep (2 copies)
Treat disclaiming party as having predeceased decedent
Anti-lapse statute often applies
life insurance or death benefit - 9 mo.
B of irrevocable trust - 9 mo. of trust creation
Revocable trust - 9 mo. of trust becoming irrevocable
Child - 9 mo. of reaching 21
Charitable B - later of 1) 1 yr after notice or 2) 6 mo. after estate is filed
Lifetime gift to heir
Lifetime gift to descendant is not treated as an advancement unless:
declared as such in contemporaneous writing by the donoror
acknowledged as such in writing by the donee.
Unauthorized Commercial Use of Decedent's Name or Likeness
Half and half rule: if someone uses decedent's name, voice, or likeness then damages, profits, exemplary damages, and attorney's fees can be recovered by
1/2 to W and 1/2 to descendants
All to W
All to descendants
Change in marriage status after will
Marriage: no effect
Divorce: revokes gifts and fiduciary duties of ex-spouse and ex-spouse's relatives
Pretermitted child (no children at time of will)
Child takes intestate sare of all property not bequeathed to other parent of the child*
UNLESS C provided for by non-probate transfer taking effect at T's death
Pretermitted child (other children at time of will: not provided for)
Child takes intestate share of all property not bequeathed to other parent of the C
UNLESS C provided for by non-probate transfer taking effect at T's death
Pretermitted child (other children at time of will: provided for)
Child share is limited to the gifts of such other C.
UNLESS C provided for by non-probate transfer taking effect at T's death.
When pretermitted C statute does not apply
C is provided for or mentioned in the will
C is provided for by a non-probate transfer that takes effect on T's death
contingent gift is sufficient provision for a C (protecting against accidental omissions)
Pretermitted Spouse: Republication by Codicil
If you republish, you can then have the pretermitted spouse statute not apply
Revoking a will
Can be revoked by:
subsequent testamentary instrument
has to be clear that later instrument revokes the last will unless
wholly inconsistent then revoked by implication
Presumptions as to revocation
Where will is last seen in T's possession or control and not found after death - presumption that T intended to destroy by physical act.
If last seen in T's possession and later found torn - presumption that T destroyed it intentionally.
Proof of Lost Wills
due execution must be proved as in any other case
cause of will's non-production must be proved (overcome presumption)
content must be substantially proved by one who has read will, heard it read, or can identify copy of will.
Changes Made to Face of Will
Cannot just place words or changes on will to make effective.
Can write a holographic codicil on the will if there is meaning to the words outside the context of the will.
If will is entirely holographic, cross-outs and interlineations are valid.
Texas does not have will revival unless 1) re-executed with attesting Ws OR 2) republished by a duly executed codicil to the revoked will OR 3) Dependent Relative Revocation: mistake of law or fact as to the validity of a disposition.
Types of gifts
Specific devise or bequest
Demonstrative legacy (hybrid) - general amount from specific source
General legacy - $$$ to B
Intestate property -
Not enough assets to cover all the gifts
Residuary (personal --> real)
General legacies (personal --> real)
Specific bequests (personal --> real)
probably treat demonstrative gift as a specific bequest
specifically devised property not in estate - does not apply to demonstrative or general legacies
Identity test (TX) - ademption is applied in an objective test - if T leaves Buick to B then the car is wrecked in T's death - B only gets salvage value
I give my 100 shares ... - specific bequest: ademption applies
I give 100 shares of ... - general legacy: no ademption
(specific for this purpose) bequest of stock includes stock from stock split or dividend declared after will, but not cash dividends.
Specific gifts of encumbered property
Before 9/1/05 - absent will provision: residuary exonerates liens and
After or on 9/1/05 - absent will provision: exoneration of liens doctrine abolished and takes subject to liens
Incorporation by Reference
To incorporate a document by reference
writing must be in existence when will executed
Will must show an intent to incorporate the writing and
Document clearly identified in language of will
No: Attached document, typewritten addition to holographic will
Acts of independent significance (non-testamentary acts)
A lifetime act has to have a lifetime purpose - can give cedar chest and contents because there is lifetime purpose to protect contents.
EXCEPTION: cannot gift contents that are title documents - can only give contents that are tangible property or $$
Will Ambiguities and/or Mistakes
Absent suspicious circumstances, presumption that T intended contents. If not ambiguous on face, apply plain meaning rule.
Latent ambiguity - gift to unknown B - allow ex. evidence