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Trusts and Wills
South Texas College of Law Houston
Jenkins, Helen Bishop

Wills Outline—Jenkins
Fall 2003

I. INTRODUCTION.

A. 50 question MC exam, only covers TX law.

B. 2 Methods of transfer @ death.
1. By Will—Testate succession.
a) Person indicates how to distribute their possessions @ death (plan of distribution).
b) You can write your own w/out a law license.
2. By Statute (no will)—Intestate.
a) Person dies w/out a will, or the will is defective.
b) Probate code; declares how property is to be divided based on family relationships, etc.
3. Trust is the other way to transfer, covered later.

C. Requirements for the validity of a will.
1. Testamentary intent: the transfer takes place at death. “I leave all to Jack” has no testamentary intent b/c we don’t know when the transfer takes place. Need to add “upon my death” to make intent. Adding “Will” also gives proper intent.
2. Testamentary capacity: testator must know:
a) Kind & character of his property.
b) Natural objects of his bounty. Those we would naturally look to that would normally take his property.
(1) A girlfriend can be the natural object of his bounty b/c of a relationship.
(2) You don’t have to leave prop to your children.
c) Effect of this act of making a will.
3. Must have ability to form a plan for disposition of her estate.

D. Formal requirements for execution of a will.
1. Execution: actual signing of the will; makes it valid.
2. 2 witnesses if typewritten.
3. T/or’s signature: required in every juris.
4. Competence of witnesses: age, saw the signature applied, etc.
5. Witnesses sign in T’s presence.
6. No publication required.

E. Holographic will—wholly in the handwriting of the t/or; must also be signed by t/or.
1. Problem: what is wholly?
2. Doesn’t require witnesses; must prove handwriting/sig. in ct.

F. Codicil: amendment/addition to existing will.
1. Must be executed in the same way a will in the same format would’ve been executed.

G. Revocation: getting out of an executed will.
1. Requires intent to revoke.
2. Subsequent will revokes the previous.
3. Written revocation of the current will.

H. Probate: validation of the will by a ct.

I. Administration of estate: management of the estate after the will is probated.
1. Administrator (appointed by ct):
a) Gets property together;
b) Pays debts;
c) Distributes what’s left.
2. Executor (named in the will).
3. Independent executorship (TX): acts free of ct. control.
4. Dependent admin: acts under ct supervision; expensive b/c everything requires ct’s permission.

II. POWER TO TRANSMIT PROPERTY AT DEATH.

A. Passing of interests.
1. At death, property passes to the beneficiary, w/ a will or w/out.
2. The heirs exist, but haven’t been determined; the property vests by operation of law—no gaps in seisin.
3. The prop vests subject to the admin of the estate—pay debts, litigate/probate the will, collect prop, etc.
4. Prop is willed by a living person, does a dead person have any rights over it?
5. Dead hand—ability to control prop after death.

B. Right of control of prop.
1. Irving v. Day (p. 3): nothing in the const. prohibits a state to limit, condition or even abolish the power of testamentary disposition over prop w/in its juris.
2. Hodel v. Irving (p. 3): Indian land got fractionated after Congress allowed land allotments. Congress then made a law that allowed the land to escheat back to the tribe if the land earned its owner less than $100/yr; the owner couldn’t devise by will or intestacy. Issue: is this a const. taking, requiring just compensation; is the right to pass it on a prop right? RULE: the right to pass on prop goes into the bundle of sticks; a const. right.
a) Getting rid of any of the rights in the bundle of sticks is an unconst. taking.
b) Factors in determining a regulatory taking:
(1) Economic impact of the reg;
(2) Its interference w/ reas. investment-backed expectations;
(a) Diff. b/t bought land & inherited land = you worked to buy the land; probably no real difference.
(3) The character of the gov’t action.
(a) It should distribute the benefits/burdens broadly.
(b) It’s a taking b/c the statute totally abrogates the right to pass on prop.
3. Is there a const. right to receive prop at death? NO—not a right to receive just b/c you’re a testator’s child.
a) State legislatures are given the power to change the intestacy laws.

C. Taxes & Transmission of Wealth.
1. See syllabus for schedule of amts.
2. Some opinions are that gov’t needs to distribute wealt

assets, because you will bear the resultant economic burden; after your death, others must bear the burden associated with waste, and you are not in as good of a position to make such a decision.
f) Notes discussion other kinds of property that have been requested to be destroyed – Justice Black destroyed his notes in his lifetime; what about musicians and authors whose works have literary value? In some of those situations, instructions to destroy have been ignored.

E. Probate Process.
1. Probate means that the court validates a will; court issues and order admitting the will to probate.
2. The process has to do with administering the estate after the court has decided that the will is good.
3. TPC §72
a) Probate or administration of the estate of a living person is void.
b) Probate of one believed to be dead proved by circumstantial evidence is allowed.
(1) Ex: two pilots – one saw the other eject and the parachute did not open; this is sufficient circumstantial evidence to prove death.
c) 4 year statute of limitations (unless proof that party was not in default-muniment of title only).
d) Muniment of title – if the testator put the will in a mason jar and buried it, forgetting to tell someone where it was, after 5 years it is found – if the person can show that they were not in default (not at fault) for failing to present the will, the will can still be probated as a muniment of title (this can be done as many as 30 years later).
e) If everything is distributed and the will is found, a party must swear that there is no will and a diligent search has been made; even so, if it involves real property, the property can be subsequently divided according to the will (this would be unlikely if cash were involved because it is probably gone).
4. TPC § 81(b)—Probate of a Lost Will.