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

Professor Jenkins Fall 2001


1. Testate – to die with a valid will.
2. Intestate – to die w/o a valid will. Distribution governed by statutes of descent and distribution.
3. Will – testamentary instrument describing how testator intends to dispose of his/her property at their death. It’s revocable during the testator’s lifetime.
a. Holographic will – handwritten, no witnesses, signed by testator. May not sign but simply say: “I, Joe Blow, do hereby . . .” The mention of his name is enough.
b. Oral will – valid will for disposition of personal property only and valid only if made during t’s last illness, 3+ witnesses and probated w/in 6 months. Possibly longer if statement is committed to writing w/in 6 days.)
c. Attested will –
i. Signed by the t
ii. 2 witnesses over 14
iii. Witnesses must sign in t’s presence;
(1) Line of sight test – t must actually see the attestation
(2) Conscious presence (Texas) – t could have readily seen the attestation by some slight physical exertion. Eg w/in the same room but didn’t see personally. Out of room, no good, if t couldn’t see from where he was situated.
(3) No required order of signatures but must be signed contemporaneously.
4. Codicil – amendment to a will. Requires proper execution.
5. Probate – state probate courts have jurisdiction over all matters “appertaining to” or “incident to” an estate. Probate is the proceeding in which an instrument is judicially determined to be the duly executed last will of the decedent or, if no will, to determine statutory heirs.
a. Petition – request for certain action, the reason and condition/value of the estate
b. Notice to interested parties – legatees (personal property), devisees (real property) or heirs (intestate) and all unpaid creditors.
c. Hearing
d. Judicial confirmation
6. Non-probate property – transfer of property at death outside the will
a. Joint tenancy
b. Life insurance
c. Contracts w/ payable on death provisions
d. Interests in trusts – trustee holds property for the benefit of named beneficiaries per the terms of the trust instrument. Decedent may have testamentary power over the assets in the trust. Will may be admitted to probate but the trust assets aren’t. They’re distributed by trustee outside of court supervision.
7. Requirements for a valid will
a. Testamentary intent – showing that t intended the will to take effect on date of his/her death.
i. “I leave all to John. Al” – too indefinite
ii. “I leave all to John when I’m not here anymore. Al” – little better but still a matter of construction.
iii. Cannot go outside the 4 corners of the document to determine testamentary intent.
iv. Must be apparent intent to take effect @ death, eg use of words “will,” “testator”

h. Capacity – testator knows the nature and character of his/her property, knows who it should go to and nature and effect of the will. Not necessarily competence. Incompetence not conclusive showing or incapacity – only evidence of it.
i. Must be 18+, married, or in armed forces and of sound mind.
j. No undue influence

11. In terrorem clause (no contest clause) – “If anyone challenges this will, they’ll receive nothing.” In Texas, if the challenge is reasonable, court will give no effect to the clause.

l. Hypo: Uncle died and left $2 million to his shack-up honey who was 20 years younger. She encouraged him to change his will. Issues:
i Does nephew have standing to sue? Factors to look at:
1. Relationship to testator
2. Where’s the other will
3. Strength of the relationship between the uncle and nephew
4. Intestate succession statute
5. Are his parents alive?

viUsufruct – right to use and enjoy another’s property w/o damaging it or diminishing it.

2. County court and probate court are synonymous. County judge and probate judge are synonymous.
3. Distributee – beneficiary under a will or under intestate succession.
4. Estate – denotes the real and personal property of a decedent.
5. Heirs – those persons, including the surviving spouse, who are entitled under the statutes of descent and distribution to the estate of a decedent who dies intestate.
6. Incapacitated means

g. A minor
h. An adult who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter, or to manage their own financial affairs.
i. A person who must have a guardian appointed to receive funds due the person from any governmental source

10. Independent executor means the personal representative of an estate under independent administration. Includes independent administrator.
11. Interested persons means heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered; and anyone interested in the welfare of a minor or incapacitated ward.
12. Legacy includes any gift or devise by will, whether of personalty or realty. Legatee includes any person entitled to a legacy under a will.
13. Minors are persons under 18 who have never been married or who have not had disabilities of minority removed for general purposes.
14. Person – includes natural persons and corporations.
15. Personal property – includes interests in goods, money, choses in action, evidence of debts, and chattels real.
16. Personal representative includes executor, independent executor, administrator, independent or temporary, and their successors.
17. Property – includes both real and personal.
18. Will – includes a codicil
19. Next of kin – includes adopted children, their children and the adoptive parent of the adopted child.
20. Ward – a person for whom a guardian has been appointed

I. A Foundation for Estate Planning: Society’s Control of Inheritance

A Power to transmit property at death
1. Jeffersonian view – dead have no power to direct/control the ownership of property after death.
2. Ability to pass on property arose as property owners demanded the right to transmit to others w/in and w/o their family including friends and servants.
a Right to dispose by testament: written or oral instructions property witnessed and authenticated, according to the pleasure of the deceased. Became known as a will.
b Wills and testaments were creations of the law and so were the rights of inheritance and succession.
c Was the right to pass on property at death a fundamental, constitutional right?
i. Originally, the answer was no. The Supreme Court said that the power to transmit at death was a legislative creation. Therefore, Congress and state legislatures had the power to limit, condition or even abolish testamentary power.
ii. Constitutional turnaround: Hodel v. Irving
(a) Congress passed legislation limiting the ability of the Sioux nation to transmit property at death. The S

t other than a will.
2. Administration of estates
a. Appoint a personal representative (executor for will; administrator for intestate):
i. Inventory assets
ii. Manage assets during administration
iii. Receive and pay claims of creditors
iv. Distribute remaining assets
b. Purpose of probate
i. Evidence of transfer of property
ii. Protects creditors
iii. Distributes property
c. Primary jurisdiction – domicile of decedent
d. Ancillary jurisdiction – location of real property outside primary jurisdiction
e. Letters of testamentary/administration – court authorization in the personal representative to act on behalf of the estate.

C. An estate Planning Problem

4. Chapter V. Probate and Grant of Administration


§72. Proceedings before death.
a. Administration of an estate of a living person is void. Curt may issue letters upon the estate of a person believed to be dead. Wait 3 years to distribute property. Restore estate and/or proceeds if decedent is really found alive later.
b. Circumstantial proof. Postings and publications.

§73. Period for probate.

a. W/in 4 years of death unless party shows they weren’t at fault in failing to petition earlier. Letters testamentary will not be issued after the expiration of 4 years.
b. BFP after 4 years have good title.

§76. Persons who may make application.
a. An executor named in the will or any interested person make application to the court of a proper county:
i. For an order admitting the will, whether written or oral, in possession or lost, destroyed or out of state.
ii. For the appointment of an executor.
iii. For an appointment of an administrator.
iv. Interested persons – include heirs, devisees, spouses, creditors or others w/ property rights or claims against the estate plus anyone interested in the welfare of a minor or incapitated ward. Eg T hits Z. Both die. Persons in Z’s estate may apply to administer T’s estate to settle a claim.

§77. Order of persons qualified to serve.

a. To the person named as executor
b. To the surviving husband or wife
c. To the principal devisee or legatee of the testator.
d. To any devisee or legatee of the testator
e. To the next of kin of the deceased, the nearest in order of descent first, and so on and the next of kin includes a person and his descendants who legally adopted the deceased or who have been legally adopted by the deceased.
f. To a creditor
g. To any person of good character residing the county.
To any other non-disqualified person. When applications are equally entitled, letters shall be granted to the applicant who, in the judgment of the court is most likely to administer the est