4181160
Description
Flashcards by Roxie McCormick, updated more than 1 year ago
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Created by Roxie McCormick
over 8 years ago
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| Question | Answer |
| Intestate Succession | Passage of the property when the decedent dies without a valid will |
| Descent | Succession to real property |
| Distribution | Succession to personal property |
| Intestate | Dying without a valid will. "The intestate" refers to the person who dies without a valid will |
| Heirs and heirs apparent | A person entitled to take under intestate succession laws. You have no heirs while alive; heirs apparent are those that will be your heirs upon your death |
| Ancestor | A person related to the decedent in an ascending lineal line (parents, grandparents) |
| Descendant | Person related to the decedent in a descending lineal line (children, grandchildren) |
| Collateral Relative | Person related to decedent but not in a lineal line (siblings, nieces, nephews, aunt, uncles, cousins) |
| Consanguineous Relationship | Biological or blood relation |
| Affinity Relationship | Relationship by marriage (relatives usually referred to as in-laws) |
| Testate Succession | Passage of property under the decedent's will |
| Will | written document directing who will own decedent's property upon decedent's death. |
| 251.001 Who can make a will (and change a will)? aka Legal Capacity | 1. sound mind; and 2. 18 years or older; or 3. married or have been married; or 4. in the U.S. Armed Forces |
| Testamentary Capacity (sound mind) (question of fact) | 1. Understand the business in which he was engaged 2. Understand the effect of his act in making the will (Comprehend Action and Its Effect) 3. Understand the general nature and extent of his property 4. Know his next of kin and natural objects of his bounty and their claims upon him 5. Collect in his mind the elements of the business to be transacted, and to hold them long enough to perceive at least their obvious relation to each other and to be able to form a reasonable judgment as to them |
| Codicil | A type of will that amends an existing will |
| Testator; Testatrix | A person who dies with a valid will (testator can refer to any person regardless of gender) |
| Devise | A gift of real or personal property in a will, or both |
| Devisee | The person who receives the devise (gift of real or personal property) |
| Bequest | A gift of personal property in a will |
| Legacy | A gift or devise of real or personal property in a will |
| Legatee | Person who receives the legacy |
| Beneficiary (wills) | Generic term for a person who receives property under a will (can be real or personal) |
| Trust | A property conveyance where the owner divides the title to the property into legal and equitable interests and imposes fiduciary duties on the holder of the legal title to deal with the property for the benefit of the holder of the equitable title |
| Settlor (trusts) aka trustor/grantor/donor | The person who creates a trust by making a property tranfer which divides the title and imposes duties |
| Beneficiary (trusts) aka cetui que trust/donee/grantee | The person who receives the equitable title to trust property and the right to benefit from that property according to the settlor's instructions |
| Trustee | The person who holds the legal title to trust property and has the fiduciary duty to manage that property according to the settlor's instructions and the law |
| Principal (trusts) aka trust corpus/estate/res | The property held in trust form |
| Income (trusts) | The profits or other earnings made by property after if is conveyed in trust form (ex: interest on a CD or rent collected from real property) |
| Administration | The process of collecting and managing all of the decedent's property so that the decedent's creditors are paid to the fullest extent allowed by the law and remaining property, if any, is turned over to heirs or beneficiaries |
| Administrator | Person in charge of administering the estate of an intestate decedent |
| Executor | The person in charge of administering the estate of a testate decedent |
| Personal Representative | Generic term for the person in charge of administering the estate of a decedent |
| Probate | Broadly- the entire process of administering a decedent's estate. Narrowly- proving a document or oral declaration to be a decedent's valid will. |
| Probate Asset | An asset of a decedent that passes either under intestate succession or through a will |
| Nonprobate Asset | Asset of a decedent that passes via a manner other than intestate succession or a will. Examples are joint tenancies with rights of survivorship, benefits payable on death like life insurance policies, retirement plans, accounts with financial institutions |
| 2 types of marital property systems that governs parties and their property | Common law and community property. Texas is a community property state. |
| Inception of title rule | the ownership of earnings in a marriage is governed by the law of the spouse's domicile at the time the property was acquired. Marital title does not change as the couple moves from state to state. |
| Quasi-community property | Property acquired in a common law property state but would have been community property if acquired in a community property state. Texas does not recognize quasi-community property for purposes of succession, only for divorce |
| Inter Vivos Transfers | Nonprobate transfers |
| Intestate as to the person | the person did not leave any type of valid will |
| Intestate as to the property | the person's valid will fails to dispose of all of the person's probate estate |
| Per capita distribution | Distributed in equal shares |
| Per stirpes distribution | Distribution is determined by the roots (the younger generations divide the share that the older generation would have received)- Texas does not do this |
| Escheat | Common law doctrine which transfers the property of the decedent to the state if the decedent dies without heirs |
| half-blooded heirs, rule for Texas | Collateral relatives who share only one common ancestor. In Texas, half-blooded collaterals receive half shares for the whole shares full-blooded heirs receive |
| Parentelic System (Texas) | 1. Search on each side of the family until an ancestor or descendant of an ancestor is found. 2. Intestate's probate estate is divided into two halves called moieties. 3. 1/2 passes to intestate's maternal grandparents, 1/2 to paternal. If they are deceased, it passes to other collateral relatives on that side. If there is one side without heirs, the moieities are combined and the side with surviving heirs gets the whole |
| Adopted children, dual inheritance | 1. adopted children inherit through adoptive parents as though natural born 2. Dual inheritance- where a child inherits from and through adoptive parents and from and through natural parents. Texas allows dual inheritance with adopted minors but not adopted adults |
| Inheritance rights of adoptive parents | Adoptive parents and their kin will inherit from and through the adopted child as if the adopted child were their biological child |
| Inheritance by biological parents (when they gave child up for adoption) | Adoption cuts off the ability of the biological parents and their kin to inherit from or through the biological child |
| Adoption by estoppel or equitable adoption and elements, inheritance | Occurs when a "parent" acts as though the "parent" has adopted the child. It has two elements: 1. have actually undertaken a formal adoption process but it's legally defective; or 2. There was an agreement between the would-be parent and natural parents, or the woud-be parents and the child, to adopt but the agreement is not performed by the child's "parents". The child performed, but the parents did not. The child can inherit through the parents, but the would-be parents cannot inherit through the child. |
| Non-marital children (through mom) and inheritance | Child inherits as if child was born in wedlock |
| Non-marital children (through dad) and inheritance | The child can inherit in certain circumstances: 1. where paternity is statutorily presumed; or 2. where child is adjudicated by the court to be the child; or 3. adoption; or 4. where the father acknowledges in writing that he is the father. By clear and convincing evidence the probate court can find the child is the child of the father. |
| Unworthy heirs | Under certain circumstances, an heir might be barred from taking his/her share of the decedent's estate (usually occurs if the heir killed the decedent). The Texas Constitution bars forfeiture for committing a crime, prohibits corruption of blood, and prohibits suicide as being a means to take property. |
| What if beneficiary of a life insurance policy is convicted and sentenced for the willful death of the insured? | The policy will go according to the insurance code 1103.052 - a contingent beneficiary is entitled to receive the proceeds. If there is not contingent beneficiary, the nearest relative of the insured is entitled to receive the process. (forfeiture) |
| Slayer statutes | Statutes enacted to prevent a killer from profiting from his/her crime |
| Constructive trust | An equitable remedy imposed on property held by unworthy heirs to prevent unjust enrichment. Legal title of intestate's property passes to the unworthy heir, but the heir is deemed to be a constructive trustee because of the unconscionable means used to acquire the property, and thus cannot retain legal title. The constructive trust arises in favor of the intestate's heirs, exclusive of the murderer- the murderer gets the constructive trust and then is compelled to turn it over to the next heir. |
| What is the difference between constructive trust and forfeiture? | Not automatic, someone with standing has to ask for it. It is within the court's discretion. |
| 201.062 Estate Code- Treatment of Certain Parent-Child Relationships aka Disqualification of a bad parent | -Proved by clear and convincing evidence -Probate court can hold that a Parent cannot inherit from child under 18 1. voluntarily abandons and fails to support child for at least 3 years before child's death; or 2. voluntarily abandons mother while she is pregnant and failed to provide adequate support or medical care for the mother during the period of abandonment; and remained apart from and failed to support the child since birth; or 3. been convicted or placed on community supervision, including deferred adjudication, for being criminally responsible for the death or serious injury of a child under the penal code or adjudicated under Title 3, Family Code, for conduct that caused the death or serious injury of a child and that would constitute a violation under certain sections of the penal code (murder, indecency with a child, assault, sexual assault, etc.) |
| Disqualification of surviving spouse of a voidable marriage Estate Code 123.101-123.104 | A court may deem a decedent's current marriage void for lack of mental capacity, even after decedent has died. 2 types: 1. Proceeding pending at time of death 2. Proceeding not pending at time of death. Conditions for this: 1. Decedent entered into the marriage within 3 years of decedent's death. 2. An interested person files an application to void the marriage on the basis of lack of mental capacity within one year of the decedent's death. 3. Court finds that the decedent lacked the mental capacity to consent to the marriage and understand the nature of any marriage ceremony that might have occurred. 4. Court does not determine that after the date of the marriage, the decedent gained the mental capacity to recognize the marriage relationship and actually recognized the relationship. Example: Gold digging marriage |
| Result if marriage deemed void | The surviving partner of the void marriage is not considered as the decedent's surviving spouse for any purpose under Texas law |
| Survival Estate Code 121.052 (applies to intestacy) | An heir must survive the decedent by 120 hours, if not, the property passes as if the person had actually predeceased the decedent. |
| Failure to survive presumed under certain circumstances Estate Code 121.053 | A person who would have been an heir if they survived the decedent by 120 hours is considered not to have survived for the required period if: 1. the time of death of the decedent or of the person, or the times of death of both, cannot be determined; and 2. the person's survival for the required period after the decedent's death cannot be established. |
| Estate Code 201.002 Separate Estate of an Intestate | a. If a person dies with separate property and a surviving spouse b. If the person has kids or grandkids 1. the surviving spouse takes 1/3 of the personal property 2. 2/3rds of the personal property goes to the kids and grandkids 3. the surviving spouse is entitled to 1/3 life estate of the real property, with the remainder descending to the person's kids or grandkids c. Except as provided by (d), if the person has no kids or grandkids: 1. the surviving spouse is entitled to all of personal property 2. the surviving spouse takes 1/2 of the person's land without a remainder to any person; and 3. 1/2 of the person's land passes and is inherited according to the rules of descent and distribution d. If the person described by (c) does not leave a surviving parent or one or more surviving siblings , or their descendants, the survivors spouse is entitled to the entire estate. |
| Estate Code 102.002 Homestead Rights Not Affected by Character of the Homestead | The homestead rights and respective interests of the surviving spouse and children of a decedent are the same whether the homestead was the decedent's separate property or was community property between the surviving spouse |
| Community Property Presumption | The presumption is that all of the property on hand at the time of the dissolution of the marriage is community property unless proved otherwise by clear and convincing evidence. |
| Community Property | Property (real and personal) acquired after marriage, except property acquired by gift, will or inheritance. |
| Separate Property | Property owned by the spouse before the marriage; property acquired by gift, will, or inheritance after the marriage. |
| Testamentary Capacity-Adjudication of incompetency and lucid intervals | If the court adjudicates someone as incompetent, the presumption may be rebutted by evidence showing that the person was in a lucid interval at the time of the will execution. |
| Testamentary Capacity- Sane Individuals | A sane person may sometimes lack testamentary capacity, like if they're under the influence of intoxicating substances or disoriented from a medical procedure. |
| Requirements of a valid will | 1. Legal capacity 2. testamentary capacity 3. Testamentary Intent 4. Compliance with statutory formalities (Texas has no substantial compliance rule) |
| Types of wills | Attested Wills Holographic Wills (needs more added here) |
| Holographic Wills | Wills written in testator's own handwriting. Exempt from the attestation requirement. |
| Classifications of testamentary gifts | Specific gifts General gifts Demonstrative gifts Residuary gifts |
| Types of Beneficiaries | Private gift- to an individual Charitable gift- benefits society |
| Ademption | failure of a specific gift because the property is not in the testator's estate when T dies, so the gift adeems and the beneficiary receives nothing (need to check) |
| Pretermitted Heirs | need def |
| Death of beneficiary- lapse | need def |
| Anti-lapse statutes | need def |
| Will revocation | need def |
| Community Real Property Intestate Succession- Surviving Spouse and Children that are from that marriage | Everything to spouse |
| Community Personal Property- Intestate Succession, surviving spouse, kids from that marriage | everything to spouse |
| Community real and personal property, intestate succession, surviving spouse, at least one kid isn't surviving spouse's | The marriage is dissolved upon death, surviving spouse keeps his half of the real and personal property, and kids will split the decedent's half of the real and personal property[ |
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