Wills & Trusts Attack Sheet for the Texas Bar Exam

**Wills & Trusts Attack Sheet for the Texas Bar Exam**

**I. Wills**

A. **Intestacy**
1. Definition: occurs when a person dies without a valid will.
2. Heirs: determined by Texas Estates Code.
3. Shares: distributed per capita with representation.

B. **Execution of Wills**
1. Legal capacity: 18 years or older, or lawfully married, or a member of the armed forces.
2. Testamentary capacity: at the time of making the will, the testator must understand:
– Nature and extent of their property
– The natural objects of their bounty
– The disposition they are making
– The manner in which these elements relate to form a coherent plan
3. Formalities:
– Written and signed by the testator or another at their direction and in their presence.
– Attested by at least two credible witnesses over 14 years of age who sign the will in the presence of the testator.

C. **Holographic Wills**
1. Handwritten wills, entirely in the testator’s handwriting.
2. Must be signed by the testator.
3. No witnesses are required.

D. **Revocation**
1. By subsequent will or codicil.
2. By physical act (destruction with intent to revoke).
3. By operation of law (e.g., marriage, divorce, birth of a child).

E. **Challenges to Wills**
1. Lack of capacity.
2. Undue influence.
3. Fraud.
4. Duress.
5. Mistake.

F. **Dependent Relative Revocation (DRR)**
1. Applies when a revocation is premised on a mistake.
2. The court may disregard the revocation if it would not have occurred but for the mistaken belief.

G. **Probate Process**
1. Proving the will’s validity.
2. Collecting and inventorying the decedent’s assets.
3. Paying debts and taxes.
4. Distributing the remaining assets according to the will or intestacy laws.

H. **Spousal and Family Protections**
1. Elective share.
2. Homestead rights.
3. Exempt personal property.
4. Family allowance.

**II. Trusts**

A. **Creation of Trusts**
1. Requirements:
– Settlor with capacity.
– Intent to create a trust.
– Definite beneficiary (or charitable trust).
– Trustee with duties.
– Property (res).
2. Types: Testamentary and Inter Vivos (Living Trust).
3. Revocability: Trusts are presumed revocable unless stated otherwise.

B. **Fiduciary Duties**
1. Duty of Loyalty: Trustee must administer the trust solely in the interest of the beneficiaries.
2. Duty of Care: Trustee must manage the trust with the care, skill, and caution of a prudent person.
3. Duty to Inform: Trustee must keep beneficiaries reasonably informed about administration and provide accountings.

C. **Trust Administration**
1. Trustee powers: outlined in the trust instrument and under law.
2. Trustee cannot commingle trust assets with personal assets.
3. Modification or Termination:
– Consent of all beneficiaries and settlor if living.
– By court order if the material purpose of the trust is frustrated.

D. **Charitable Trusts**
1. Must have a charitable purpose.
2. Cy pres doctrine: if the charitable purpose is no longer possible, the court may modify the terms to a similar purpose.

E. **Trust Litigation**
1. Beneficiary’s right to sue for breach of fiduciary duty.
2. Contesting the validity of the trust.

**III. Trust and Estate Property**

A. **Pour-Over Wills**
1. A will that “pours” any remaining assets into a trust upon death.

B. **Simultaneous Death**
1. Uniform Simultaneous Death Act: if it cannot be established who died first, property is divided as if each predeceased the other.

C. **Non-Probate Assets**
1. Joint tenancy with right of survivorship.
2. Payable-on-death (POD) accounts.
3. Retirement accounts with designated beneficiaries.

**IV. Tax Considerations**

A. **Federal Estate Tax**
1. Applicable to estates exceeding the federal exemption amount.

B. **Gift Tax**
1. Annual exclusions and lifetime exemptions.

C. **Generation-Skipping Transfer Tax (GSTT)**
1. Tax on transfers to individuals two or more generations below the donor.

**V. Tips for the Texas Bar Exam**
1. Pay attention to distinctions between Texas law and the Uniform Probate Code.
2. Analyze fact patterns carefully for issues of capacity, formalities, and fiduciary duties.
3. Consider tax implications when discussing the disposition of an estate.
4. Practice writing concise, well-organized essays that clearly outline the applicable rules and analyze the facts provided.

This Wills & Trusts attack sheet is intended to provide a high-level overview of key concepts and should be supplemented with more detailed outlines and practice questions specific to the Texas Bar Exam.

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