Wills Trusts & Estates Jenkins Fall 2015
Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties…not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior…..Cardozo
Sections for question on the bar
WILLS
TRUSTS
ADMINISTRATION of ESTATES
GUARDIANSHIP
PROBATE CODE HAS CHANGED TO THE ESTATE CODE
WILLS IS not a form practice
Testate Distribution (by Will)
Intestate Distribution (by Statute) à by devise and descent
Testamentary Intent (Takes Effect at Death) “leave” by itself is insufficient
You have to say “When I die…” etc…
Testamentary Capacity:
TESTATOR à he who is making a will MUST KNOW:
· Kind and Character of Property
· Natural Objects of his Bounty
· Effect of this Act of Making a Will ability to form a plan
o Cohesiveness à a plan
Formal Execution Requirements
· Need two witnesses
o Above the age of 14
o Generally people who are not in the will
· The Testator will not sign
o A will without a signature à is not a will
o Electronic Signatures are not allowed
· Witnesses must sign in the testator’s presence
o Some will be deemed present—and some will not
Codicil à instrument that modifies a will
· Has to have the same requirements as a will
Revocation à How you got out of the will
Administration of the Estate à
He who is not in the will – will try to show a lack of testamentary capacity in order to get distribution intestate
PROBATE of a WILL à This is when a court validates the will
Then if someone challenges it – the court will eventually validate a will
Then the court will begin the administration of the estate
· Will Appoint a Representative
o Collects Assets
o Pays Debts
§ You don’t wipe out debt when you die
o Distributes the Remainder to the Beneficiaries
The EXECUTOR is NAMED in the Will
The court cannot appoint an executor unless it is named in the will
An ADMINSTRATOR à court appointed representative (person not in the will)
Texas has the independent executor à acts free from court control
· Provides a list to the court
o But then doesn’t have to go to the court for permission to do all this stuff
Dependent Administration à Dependent Administrator Acts Under Court Supervision
· In most wills you name an independent executor
· If you say he can act free from court control à that is an independent administrator
TEXTBOOK
The Power to Transfer Property at Death
We have freedom of disposition. We gain it through a number of cases that came to the conclusion that the right to transmit property at death IS à a property right
That is à it is in the bundle of sticks
Courts do not favor dead hand restraints that break up the family
“I will give you half my money if you divorce your husband”
· The person will get the gift absent of the restraint
· The restraint is removed because it goes against public policy (i.e. breaking up the family)
· Restraint on marriage that is unreasonable and against public policy
CONTRARY to PUBLIC POLICY
The rule against a will or trust provision that imposes an unreasonable restraint on marriage is a specific application of the more general rule against conditions that are contrary to public policy
A provision that encourages separation or divorce is invalid
A provision that provides for support in the event of divorce is valid
Conditions that require or encourage a crime or tortious act – invalid – violate public policy
The condition just goes away
Courts shall balance the testator’s freedom of disposition and public policy
IF the condition is excessively punitive or intrusive à then it is invalid
Destruction of Property at Death:
The Testator doesn’t want anyone to get something after they have died
Tear down my house when I die
Typically such instructions are upheld by a court
CASE: (p. 28) CONSTITUTIONAL RIGHT TO PASS PROPERTY AT DEATH (NATIVE AMERICAN FRACTIONALIZATION)
Hodel v. Irving
PROCEDURAL HISTORY:
FACTS: Even though there wasn’t a super specific Investment Based Expectations à but it truly goes to far à it took away their ability to
ISSUES:
HO
n is dead for probate
o 4 year statue of limitations (unless proof that party was not in default-muniment of title only – you can do it after four years if you can show that you were not at fault for bringing it within the 4 years)
§ Muniment of Title Procedure à clears up a title
· Available if not more than two debts owed by the estate. Applicant wants to get record title into the probate records
· No probate of estate
· There is no administrator or executor – you do have to have a will
§ As opposed to an Executor OR
§ Dependent Administration (under court supervision)
§ Example à finds a will buried in the yard 6 years later
· He can probate after 4 years because he wasn’t at fault
· Probate of Lost Will à we know we had a will we just can’t find it
o There is a presumption of REVOCATION
§ You can’t find it – it is presumed that the testator wanted (intent) You not to find it
§ You have to overcome
If you can prove up the contents à you can overcome this presumption
o Executor (good evidence)
o Date of Execution (good evidence)
o The best evidence of a lost will is a copy
The Proof that is required to PROBATE A WILL:
· Person is deceased
o By testimony is sufficient
· 4 years have not elapsed since date of death
· Court has jurisdiction and venue
· Person applying for “letters” is qualified (letters testamentary)
o “Letters” à a piece of paper that has been stamped with the court seal – it’s like a passport to every account, every piece of information every, business matter that the decedent was involved with
§ This is a lot of power
§ JENKINS says leave an envelope with all your passwords with your will because there is less of a paper trail for an executor to find
