Dr. Gerry W. Beyer Governor Preston E. Smith Regents Professor of - - PowerPoint PPT Presentation

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Dr. Gerry W. Beyer Governor Preston E. Smith Regents Professor of - - PowerPoint PPT Presentation

Dr. Gerry W. Beyer Governor Preston E. Smith Regents Professor of Law Texas Tech University School of Law 1 In which state are funerals the cheapest? A. Texas B. Mississippi C. Nevada D. Arizona 2 In which state is probate the most


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  • Dr. Gerry W. Beyer

Governor Preston E. Smith Regents Professor of Law Texas Tech University School of Law

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 In which state are funerals the cheapest?

  • A. Texas
  • B. Mississippi
  • C. Nevada
  • D. Arizona
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 In which state is probate the most complex?

  • A. California
  • B. Texas
  • C. Oregon
  • D. Alaska
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 Which state has the longest life expectancy at over 81

years?

  • A. Kansas
  • B. Hawaii
  • C. Nevada
  • D. Florida
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 History of property distribution at death.  Overview of Texas law of intestate succession.  Summary of Texas law of wills.  Basic probate steps.

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 1. Physical Strength and/or Finding

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 2. Bury with Decedent

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 3. Intestate Succession

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 4. Wills

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 5. Will Substitutes

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 1. As to person – total intestacy  2. As to property – partial intestacy

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 Starting point = Was intestate married at time of death?

  • If yes, follow “community” and “separate” property schemes.
  • If no, follow “individual” property scheme.

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 Community property is property:

  • Property acquired during marriage through working.
  • Income from property owned before marriage.
  • Each spouse owns ½ of the community property.

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 1. No surviving descendants

  • Surviving spouse inherits all of deceased spouse’s community

property.

  • Thus, surviving spouse ends up owning all community property.

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 2. At least one surviving descendant

  • Only marital descendants = SS inherits all of DS’s community (SS

ends up owning all community property).

  • At least one non-marital descendant = DS’s descendants inherit

DS’s community (SS inherits none of the community; SS still has his/her ½).

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 Separate property consists of:

  • Property owned before marriage.
  • Property acquired during marriage by:

▪ Gift ▪ Under a will ▪ As an heir under intestacy

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 1. At least one surviving descendant

  • Personal Property =

▪ Surviving Spouse = 1/3 ▪ Descendants = 2/3

  • Real Property =

▪ Surviving Spouse = Life estate in 1/3 ▪ Descendants = 2/3 (outright) plus remainder of SS’s life estate.

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 2. No surviving descendants

  • Personal Property =

▪ Surviving Spouse = 100%

  • Real Property =

▪ Surviving Spouse = ½ ▪ Parents, siblings, and their descendants = ½ using the individual property scheme.

▪ Note: If no parents or their descendants, then all to SS.

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 Individual property is all property of a person who is not

married at the time of death.

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  • 1. Descendants
  • 2. Parents
  • 3. If one parent predeceased, ½ to surviving

parent and ½ to siblings and their

  • descendants. [If none, all to surviving

parent.]

  • 4. If both parents predeceased, all to siblings

and their descendants.

  • 5. Grandparents and their descendants, etc.

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 1. Legal Capacity  2. Testamentary Capacity  3. Testamentary Intent  4. Formalities

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 1. 18 years old or older.

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 2. Is or has been lawfully married.

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 3. Is a member of the armed forces at time of will

execution.

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 1. Understand what doing

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 2. Comprehend effect of what doing.

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 3. Know general nature and extent of property.

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 4. Know natural objects of bounty.

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 5. Achieve above four elements simultaneously.

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 Testator must intend the very instrument the testator

executes to be the will.

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 Attested (witnessed)  Holographic (handwritten)

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  • 1. Written
  • 2. Signed
  • 3. Witnessed

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 No requirement regarding what written on or with.

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 Any symbol executed or adopted by the testator with

present intent to authenticate the will.

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 Number = at least two

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 Legal Capacity

  • Above 14

+

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 Attestation Capacity

  • Credible; qualified to testify in court

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 4. Knowledge

  • Publication not required (witnesses do not need to know they are

witnessing a will)

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 1. Witnesses attest in presence of testator?

  • Required in Texas.

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 2. Witnesses attest in each other’s presence?

  • Not required in Texas.

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 3. Testator signs (or acknowledges a prior signature) in

presence of witnesses?

  • Not required in Texas.

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 1. Effect on will

  • None – will remains valid.

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 2. Effect on beneficiary’s gift

  • Void, unless an exception applies.

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 3. Exceptions

  • a. If beneficiary is also an heir, beneficiary receives smaller of will

and intestate share.

  • b. Will is otherwise established (e.g., another witness).
  • c. Corroboration by disinterested and credible person.

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 Substitutes for in-court testimony of witnesses when will

probated.

 Saves time, expense, and inconvenience when probating

will.

 Does not “strengthen” the will.

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 In about 50% of the states including Texas, removes the

attestation requirement.

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 1. Title Transfer

  • Alternatives to Full Probate

▪ Determination of heirship, if intestate. ▪ Probate will as muniment of title, if testate. ▪ Short forms (e.g., small estate affidavit)

 2. Creditor Payment

  • Death as the “final bankruptcy”

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 If the proceeding is contested, you may “get rid” of the

case by either:

  • Transferring to District Court, or
  • Requesting assignment of a Statutory Probate Court Judge.

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 Personal representative:

  • Executor = will
  • Administrator = intestate
  • Must be appointed by a court (that’s you!)

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 Legal Requirements

  • Not incapacitated
  • Not a convicted felon
  • Not a non-resident of Texas
  • Not a corporation not authorized to be a fiduciary in Texas
  • Not a person the court finds “unsuitable”

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 1. Determine if Decedent Left a Will

  • Home and office
  • Safe deposit box
  • Significant individuals
  • Clerk of the court

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 2. Proper Applicant

  • Prepares and files application
  • Pays filing fee

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 3. Proper Notice

  • Clerk of Court gives notice according to applicable law.
  • Most often, just posting on the court house door or a nearby

bulletin board.

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 4. Hearing

  • Court conducts hearing on application.

▪ Determines validity of will, or ▪ Determines that decedent died intestate.

  • Court appoints personal representative unless:

▪ Muniment of title. ▪ Determination of heirship only. ▪ Abbreviated [e.g., small estate affidavit]

  • Court determines type of administration

▪ Dependent ▪ Independent [most common]

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 5. Personal representative qualifies

  • Takes oath of oath.
  • Posts bond, unless testator waived it or PR is a corporation.
  • Obtains letters testamentary (if will) or letters of administration

(if intestate) from clerk.

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 6. Personal representative gives notices

  • To will beneficiaries.
  • To creditors.

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 7. Personal representative collects and preserves the

decedent’s probate property.

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 8. Personal representative prepares inventory,

appraisement, and list of claims.

  • Court reviews and approves (or not).

▪ If independent administration, rest of process is outside of court supervision unless someone complains.

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 9. Personal representative manages decedent’s property

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 10. Certain property is protected from creditors

  • Homestead
  • Exempt personal property
  • Family allowance

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 11. Personal representative pays claims

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 12. If property remains after paying creditors, personal

representative distributes to heirs or beneficiaries.

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