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What are advancements, how do you prove them, and what is their value?
An heir apparent receives a share of the estate before the intestacy's death
Two ways to prove: contemporaneous writing of advancer or written acknowledgment by the receiver at any time
The value of an advancement is determined on the date of advancement
What is a devise?
gift of real property
What are the requirements of a valid will?
Legal capacity
Testamentary capacity
Testamentary intent
Formalities
What are the requirements of a valid attested will?
in writing
signed by T
attested by at least 2 witnesses over 14
what is ademption, the general rule, and its exceptions?
the gift fails because it is no longer in the estate
general rule: beneficiary gets nothing
exceptions: voluntary partition among co-owners or a partial sale
Disclaimers and the four requirements
Disclaimers are where you do not want your inheritance
Requirements: in writing, describe the property being disclaimed, signed, and delivered to personal representative if the estate is open or filed in the county where decedent owned real property
What is a bequest?
gift of personal property
What is legal capacity
18+
Is or has been married
current member of the military
What are the two ways T can sign their will by proxy?
notary: must be in the presence of a witness and is only allowed if T is physically unable to sign (shrimp)
the beneficiary receives the gift while T was alive
before 09-01-03: you can use extrinsic evidence to prove satisfaction
after 09-01-03: you need (1) an express statement in the will, (2) T's contemporaneous writing, or (3) beneficiary's written acknowledgment at any time
What is an assignment?
Immediately upon death, an heir may assign their interest to anyone before the interest is actually distributed because of immediate vesting
What is a legacy?
Gift of money
What are the elements of testamentary capacity?
comprehend the effect of what you're doing
know the general nature and extent of your property
know the natural objects of your bounty
achieve all of it simultaneously
What is conscious presence?
T can see the witness from their actual position or at most, from a slightly altered position where T has the power to move without assistance
what is exoneration and when to we presume exoneration?
it is when a gift is subject to a debt or lien and exoneration happens when the debt is paid off and the beneficiary receives their gift debt-free
before 09-01-05: presume exoneration
after 09-01-05: presume equity
What is equitable conversion
Once a contract for real property is signed, equitable conversion occurs during escrow where the seller's interest is now in personal property (money) and the buyer's interest is now in real property
What is a beneficiary?
any recipient of any type of property
Requirements of a holographic will and the three ways to define "wholly"
in T's handwriting and signed by T
intent view: if T intends for any nonholographic material to be included, the will is void
surplusage: if the will means the same without the nonholographic material, it's valid (TX)
material provisions: if the material provisions are in T's handwriting, it's valid
What happens if a witness is also a beneficiary and what are the exceptions to the general rule?
general rule: the gift fails, but the will is still valid
exceptions: their gift is less than that of what they would receive through intestacy, they are a supernumerary witness, or their testimony is corroborated by a credible and disinterested person
what is abatement and what is the abatement order?
where T dies without enough property to pay the estate's debts and gifts
intestate property, if any
residuary gifts (personal, then real)
general gifts (personal, then real)
specific gifts (personal, then real)
TX savings statute: what wills are saved and what are the requirements?
Only foreign wills because TX does not allow harmless error or substantial compliance
A will is valid in TX if it meets the requirements in the jurisdiction in which (1) T executed the will, (2) T was domiciled, or (3) T had a residence
What is a codicil?
an amendment to an existing will
What are the different types of testamentary gifts?
Specific: ascertainable at the time of will execution
Specific of a general nature: not ascertainable until death
General: not sufficiently described to be specific
Demonstrative: gift of money from a specific account
Residuary: forgotten items or the main gift
What are the two methods for executing a self-proving affidavit?
2-step with double signatures: SPA is a separate document from the will and both are signed by T and witnesses
1-step with single signatures: SPA language is at the end of the will and before signature line
what is tax apportionment?
where each beneficiary pays the tax caused by their individual gift