Wills TX Bar Exam Questions with Complete Solutions

Surviving Spouses Share w/ Surviving Issue (Children) When an intestate is survived by spouse AND by issue (children) surviving spouse gets 1. One-third of the personal estate 2. LIFE ESTATE in One-third of the real estate Surviving Spouses Share - No Surviving Issue 1. If intestate not survived by parents or siblings (or decedent of sibling) Spouse receives all real and personal property. 2. If testator survived by parents or siblings, spouse spouse gets a) All of personal estate b) One-half real property c) The other one-half of real property goes to heirs by rules of decent Capacity to Make a Will Valid will requires INTENT and CAPACITY. Four elements to Capacity are 1. Understood the document signed was a will 2. Understood effect of document was to distribute property after death 3. Testator knew the nature and extent of the property 4. Testator knew the natural objects of testator's bounty Witness with Pecuniary Interest 1. Witness with pecuniary interest under the will is NOT a competent witness 2. Does not invalidate the will, just means that the will needs to be corroborated by disinterested and credible person. Exception: Beneficiary can be a witness to a holographic will. Revocation Permissible methods of revocation include 1. Subsequent will, codicil, or other written formality 2. document is destroyed, with INTENT to revoke it, by the testator or by another at his discretion or in his presence. Attested Will One that has been signed and witnesses. 1) Self-proving (e.g., with proper language) - The signature cannot be challenged. Lost Will There is a presumption a lost will has been revoked, when the will was 1. Last seen with possession of the testator (or a place he had access to) and 2. Cannot be located after death Ademption by Extinction When the property bequeathed is not in the testator's estate at the time of death (e.g., it was destroy, sold, etc), the devise is adeemed by extinction. In other words, it fails. Anti-Lapse Statute In Texas, a gift that would have failed under common because the heir predeceased the testator does not fail. It passes to the deceased heir's descendants. Renounciation a Gift Under a Will The beneficiary cannot be forced to take gift. 1. Gift can be renounced in whole or part. 2. Renunciation is IRREVOCABLE either way Class Gift A gift to a group of people that may increase or decrease. 1) If the gift is immediate (i.e., at testator's death) the class closes at testator's death (assuming members of the class are then in existence. 2. If the gift if postponed by a condition, the class remains open until the time set for distribution. Pretermitted Child A pretermitted child is entitled to a portion of the testator's estate as if the testator had died intestate, provided the child was not mentioned in the will, provided for in the will, or otherwise provided for by the testator. Classifications of Devises 1. Specific (specifically named item) 2. Demonstrative ($ to be taken from a specific account) 3. General (payable out of general assets of estate) 3. Residual (What's left over) Abatement When the testator's estate is insufficient to pay both the creditors and the distributees, the distributees assets ABATE (are used to satisfy the creditor) in this order; 1) Property not disposed of in the will 2) Residual devices 3) General devices 4) Specific devices Grounds for Will Contests Grounds for contesting a properly executed will include; 1. Lack of testamentary capacity 2. Undue influence 3. Fraud 4. Mistake a person who dies without a will, dies... intestate issue means... 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 ... complete 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