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Contents

Contents

Editorial Advisors

Dedication Page

Table of Contents

Preface to the 2021-2022 Edition

Chapter 1 Introduction: Freedom of Disposition

Section A. Ethical Considerations

Attorney owes no duty to intended beneficiaries of deceased client’s estate plan

BARCELO v. ELLIOTT

Personal representative may, on behalf of decedent’s estate, sue drafting attorney for malpractice

BELT v. OPPENHEIMER, BLEND, HARRISON & TATE, INC.

Personal representative may sue decedent’s attorneys for malpractice relating to advice given to decedent as executor of his spouse’s estate

SMITH v. O’DONNELL

Section B. The Probate Process

Estates Code § 22.001. Applicability of Definitions

Estates Code § 22.008. Devise

Estates Code § 22.009. Devisee

Estates Code § 22.018. Interested Person; Person Interested

Estates Code § 22.031. Representative; Personal Representative

Estates Code § 22.034. Will

Estates Code § 55.001. Opposition in Probate Proceeding

Estates Code § 101.001. Passage of Estate on Decedent’s Death

Estates Code § 101.003. Possession of Estate by Personal Representative

Estates Code § 101.051. Liability of Estate for Debts in General

Estates Code § 202.002. Circumstances Under Which Proceeding to Declare Heirship Is Authorized

Estates Code § 202.009. Attorney ad Litem

Estates Code § 202.201. Required Statements in Judgment

Estates Code § 202.202. Finality and Appeal of Judgment

Estates Code § 202.205. Effect of Certain Judgments on Liability to Creditors

Estates Code § 205.001. Entitlement to Estate Without Appointment of Personal Representative

Estates Code § 205.002. Affidavit Requirements

Estates Code § 205.003. Examination and Approval of Affidavit

Estates Code § 205.004. Copy of Affidavit to Certain Persons

Estates Code § 205.006. Title to Homestead Transferred Under Affidavit

Estates Code § 205.007. Liability of Certain Persons

Estates Code § 205.009. Construction of Certain References

Estates Code § 252.201. Will Delivery

Estates Code § 252.2015. Notice and Delivery of Will to Executor or Devisees

Estates Code § 252.202. Personal Service on Custodian of Estate Papers

Estates Code § 252.203. Arrest; Confinement

Estates Code § 254.006. Designation of Administrator

Estates Code § 256.001. Will Not Effective Until Probated

Estates Code § 256.201. Admission of Will to Probate

Estates Code § 256.204. Period for Contest

Estates Code § 257.001. Probate of Will as Muniment of Title Authorized

Estates Code § 257.101. Declaratory Judgment Construing Will

Estates Code § 257.151. Appointment of Personal Representative and Opening of Administration After Will Admitted to Probate as a Muniment of Title

Estates Code § 301.151. General Proof Requirements

Estates Code § 304.001. Order of Persons Qualified to Serve as Personal Representative

Estates Code § 304.002. Renouncing Right to Serve as Personal Representative

Estates Code § 304.003. Persons Disqualified to Serve as Executor or Administrator

Estates Code § 308.002. Required Notice to Certain Beneficiaries After Probate of Will

Estates Code § 308.003. Contents of Notice

Estates Code § 308.051. Required Notice Regarding Presentment of Claims in General

Estates Code § 308.052. Proof of Publication

Estates Code § 308.053. Required Notice to Secured Creditor

Estates Code § 308.054. Permissive Notice to Unsecured Creditor

Estates Code § 351.106. Digital Assets

Estates Code § 355.001. Presentment of Claim to Personal Representative

Estates Code § 355.060. Unsecured Claims Barred Under Certain Circumstances

Estates Code § 355.061. Allowing Barred Claim Prohibited: Court Disapproval

Estates Code § 355.102. Claims Classification; Priority of Payment

Estates Code § 355.103. Priority of Certain Payments

Estates Code § 401.001. Expression of Testator’s Intent in Will

Estates Code § 401.002. Creation in Testate Estate by Agreement

Estates Code § 401.003. Creation in Intestate Estate by Agreement

Estates Code § 401.005. Bond; Waiver of Bond

Estates Code § 402.001. General Scope and Exercise of Powers

Estates Code § 402.002. Independent Executors May Act Without Court Approval

Estates Code § 403.001. Setting Aside Exempt Property and Allowances

Estates Code § 403.051. Duty of Independent Executor

Estates Code § 403.059. Enforcement of Claims by Suit

Estates Code § 404.001. Accounting

Estates Code § 404.003. Removal of Independent Executor Without Notice

Estates Code § 404.0035. Removal of Independent Executor With Notice

Estates Code § 404.0036. Removal Order

Estates Code § 404.0037. Costs and Expenses Related to Removal of Independent Executor

Chapter 2 Intestacy: An Estate Plan by Default

Section A. The Basic Scheme

Estates Code § 201.001. Estate of an Intestate Not Leaving Spouse

Estates Code § 201.002. Separate Estate of an Intestate

Estates Code § 201.102. No Distinction Based on Property’s Source

Estates Code § 201.103. Treatment of Intestate’s Estate

Estates Code § 201.057. Collateral Kindred of Whole and Half Blood

Estates Code § 201.058. Convicted Persons

Estates Code § 201.060. Alienage

Estates Code § 201.061. Estate of Person who Dies by Suicide

Estates Code § 201.101. Determination of Per Capita with Representation Distribution

Property Code § 71.001. Escheat

Property Code § 71.003. Presumption of Intestacy

Section B. Community Property

Texas Constitution art. XVI, § 15. Separate and community property of husband and wife

Texas Constitution art. XVI, § 52. Descent and distribution of homestead; restrictions on partition

Family Code § 3.001. Separate Property

Family Code § 3.002. Community Property

Family Code § 3.003. Presumption of Community Property

Family Code § 4.102. Partition or Exchange of Community Property

Family Code § 4.202. Agreement to Convert to Community Property

Family Code § 4.203. Formalities of Agreement

Estates Code § 201.003. Community Estate of an Intestate

Section C. Simultaneous Death

Estates Code § 121.052. Required Period of Survival for Intestate Succession and Certain Other Purposes

Estates Code § 121.053. Intestate Succession: Failure to Survive Presumed Under Certain Circumstances

Estates Code § 121.101. Required Period of Survival for Devisee

Estates Code § 121.102. Required Period of Survival for Contingent Beneficiary

Estates Code § 121.151. Distribution of Community Property

Estates Code § 121.152. Distribution of Property Owned by Joint Owners

Estates Code § 121.153. Distribution of Certain Insurance Proceeds

Section D. Negative Wills and Disinheritance

Estates Code § 251.002. Interests That May Pass by Will; Disinheritance

Section E. The Meaning of “Children”

Family Code § 161.206. Order Terminating Parental Rights

Family Code § 162.507. Effect of Adoption

Estates Code § 22.004. Child

Estates Code § 22.026. Next of Kin

Estates Code § 201.054. Adopted Child

Estates Code § 201.056. Persons Not in Being

Estates Code § 201.062. Treatment of Certain Parent-Child Relationships

Estates Code § 201.051. Maternal Inheritance

Estates Code § 201.052. Paternal Inheritance

Presumption that mother’s husband is child’s father may be rebutted

WILSON ex rel. C.M.W. v. Estate of WILLIAMS

Section F. Transfers to Children: Advancements

Estates Code § 201.151. Determination of Advancement; Date of Valuation

Estates Code § 201.152. Survival of Recipient Required

Section G. Disclaimer

Estates Code § 122.002. Who May Disclaim

Estates Code § 122.003. Effective Date; Creditors’ Claims.

Estates Code § 122.051. Form and Contents

Estates Code § 122.055. Filing Deadline

Estates Code § 122.056. Notice

Estates Code § 122.101. Effect

Estates Code § 122.102. Ineffective Disclaimer

Estates Code § 122.104. Disclaimer after Acceptance

Estates Code § 122.107. Attempted Disclaimers by Certain Child Support Obligors Ineffective

Chapter 3 Wills: Formalities and Forms

Section A. Attested Wills

Estates Code § 251.001. Who May Execute Will

Estates Code § 251.051. Written, Signed, and Attested

Estates Code § 251.053. Exception for Foreign and Certain Other Wills

Estates Code § 251.101. Self-Proved Will

Estates Code § 251.102. Probate and Treatment of Self-Proved Will

Estates Code § 251.103. Period for Making Attested Wills Self-Proved

Estates Code § 251.104. Requirements for Self-Proving Affidavit

Estates Code § 251.1045. Simultaneous Execution, Attestation, and Self-Proving

Estates Code § 251.105. Effect of Signature on Self-Proving Affidavit

Estates Code § 251.106. Contest, Revocation, or Amendment of Self-Proved Will

Estates Code § 254.002. Bequests to Certain Subscribing Witness

Estates Code § 256.153. Proof of Execution of Attested Will

Section B. Curative Doctrines

Texas does not apply doctrine of substantial compliance to improperly attested wills

Estate of IVERSEN

Section C. Notarized Wills

Notary may serve as a subscribing witness to a will

Estate of TEAL

Section D. Holographic Wills

Estates Code § 251.052. Exception for Holographic Wills

Estates Code § 251.107. Self-Proved Holographic Will

Estates Code § 256.154. Proof of Execution of Holographic Will

Contingent will is not effective if contingency fails to occur

In re Estate of PEREZ

Section E. Revocation of Wills: Writing or Physical Act

Estates Code § 253.002. Revocation of Will

Estates Code § 256.156. Proof of Will Not Produced in Court

Will proponents may rebut presumption of revocation for will last seen in testator’s possession but not found at death

In re Estate of TURNER

Section F. Revocation By Operation of Law

Estates Code § 123.001. Will Provisions Made Before Dissolution of Marriage

Estates Code § 123.002. Treatment of Decedent’s Former Spouse

Estates Code § 123.056. Certain Trusts with Divorced Individuals as Joint Settlors

Estates Code § 123.151. Designation of Former Spouse or Relative of Former Spouse on Certain Multiple-Party Accounts

Family Code § 9.301. Pre-Decree Designation of Ex-Spouse as Beneficiary of Life Insurance

Family Code § 9.302. Pre-Decree Designation of Ex-Spouse as Beneficiary in Retirement Benefits and Other Financial Plans

Property Code § 112.102. Revocation of Certain Nontestamentary Transfers; Treatment of Former Spouse as Beneficiary Under Certain Policies or Plans

Property Code § 112.103. Effect of Revocation

Section G. Components of a Will

Unattested handwritten memorandum cannot validate prior unattested typewritten instrument

HINSON v. HINSON

Estates Code § 255.001. Definitions

Estates Code § 255.002. Certain Personal Property Excluded from Devise of Real Property

Estates Code § 255.003. Contents Excluded from Legacy of Personal Property

Section H. Contracts Relating to Wills

Testator’s oral promise to name a person as sole devisee does not give rise to a promissory estoppel claim

Estate of GILBERT

Estates Code § 254.004. Contracts Concerning Wills or Devises; Joint or Reciprocal Wills

Chapter 4 Wills: Capacity and Contests

Section A. Mental Capacity

Estates Code § 55.002. Trial By Jury

Estates Code § 256.151. General Proof Requirements

Estates Code § 256.152. Additional Proof Required for Probate of Will

Will proponents may obtain summary judgment when contestants fail to prove elements of various challenges to capacity and volition of testator

Estate of GRAHAM

Decedent’s marriage may be annulled when he lacked the mental capacity to consent and did not understand the nature of the marriage ceremony

Estate of MATTHEWS

Perceived “lack of family love” not basis for insane delusion challenge

BAUER v. Estate of BAUER

Section B. Undue Influence

Estates Code § 254.003. Devises to Certain Attorneys and Other Persons

Estates Code § 254.005. Forfeiture Clause

Property Code § 112.038. Forfeiture Clause

Evidence of longstanding romantic relationship with testator does not prove undue influence

Estate of GROGAN

Bequest to drafting attorney’s in-office “independent contractor” is void

JONES v. KROWN

Section C. Tortious Interference with an Expectancy

No cause of action in Texas for intentional interference with inheritance

ARCHER v. ANDERSON

Chapter 5 Wills: Construction

Section A. Mistaken or Ambiguous Language in Wills

Estates Code § 255.451. Circumstances Under Which Will May Be Modified or Reformed

Estates Code § 255.452. Judicial Discretion

Estates Code § 255.453. Retroactive Effect

Estates Code § 255.454. Powers Cumulative

Estates Code § 255.455. Duties and Liability of Personal Representative under Subchapter

Section B. Death of Beneficiaries

Estates Code § 255.151. Applicability of Subchapter

Estates Code § 255.152. Failure of Devise; Effect on Residuary Estate

Estates Code § 255.153. Disposition of Property to Certain Devisees who Predecease Testator

Estates Code § 255.154. Devisee under Class Gift

Estates Code § 255.401. Posthumous Class Gift Membership

Devise to testator’s “living brothers and sisters” prevents application of antilapse statute

ALLEN v. TALLEY

Section C. Changes in Property: Ademption and Abatement

Estates Code § 255.101. Certain Lifetime Gifts Considered Satisfaction of Devise

Estates Code § 255.102. Valuation of Property

Estates Code § 255.251. Definitions

Estates Code § 255.252. Increase in Securities; Accessions

Estates Code § 255.253. Cash Distribution Not Included in Devise

Estates Code § 255.301. No Right to Exoneration of Debts

Estates Code § 255.302. Exception

Estates Code § 355.151. Option to Treat Claim as Matured Secured Claim or Preferred Debt and Lien

Estates Code § 355.152. Period for Specifying Treatment of Secured Claim

Estates Code § 355.153. Payment of Matured Secured Claim

Estates Code § 355.154. Preferred Debt and Lien

Estates Code § 355.109. Abatement of Bequests

Chapter 6 Trusts: Characteristics and Creation

Section A. General Principles and Intent

Use of incorrect or nontechnical language does not preclude creation of trust

THATCHER v. CONWAY

Property Code § 111.001. Short Title

Property Code § 111.0035. Default and Mandatory Rules; Conflict Between Terms and Statute

Property Code § 112.001. Methods of Creating Trust

Property Code § 112.002. Intention to Create Trust

Property Code § 112.003. Consideration

Property Code § 112.006. Additions to Trust Property

Property Code § 112.007. Capacity of Settlor

Property Code § 112.008. Capacity of Trustee

Property Code § 112.009. Acceptance by Trustee

Property Code § 112.011. Posthumous Class Gifts Membership

Property Code § 112.031. Trust Purposes

Property Code § 112.032. Active and Passive Trusts; Statute of Uses

Section B. Trust Property (The Res)

Property Code § 112.005. Trust Property

Section C. A Beneficiary

Property Code § 112.037. Trust for Care of Animal

Agreement to care for animals is a contract, not a trust, when intent to create a trust is absent

Sarah v. PRIMARILY PRIMATES, INC.

Section D. A Writing?

Oral trust cannot be created when property owner fails to relinquish dominion or control

AYERS v. MITCHELL

Property Code § 112.004. Statute of Frauds

Chapter 7 Nonprobate Transfers and Planning for Incapacity

Section A. Introduction to Will Substitutes

Estates Code § 111.051. Definitions

Estates Code § 111.052. Validity of Certain Nontestamentary Instruments and Provisions

Property Code § 112.008. Capacity of Trustee

Property Code § 112.033. Reservation of Interests and Powers by Settlor

Property Code § 112.034. Merger

Section B. Revocable Trusts as Will Substitutes

Reference to “forever” in special warranty deed does not make trust irrevocable

VELA v. GRC LAND HOLDINGS, LTD.

Section C. Brokerage and Bank Accounts

Estates Code § 113.151. Establishment of Right of Survivorship in Joint Account; Ownership on Death of Party

Estates Code § 113.152. Ownership of P.O.D. Account on Death of Party

Estates Code § 112.051. Agreement for Right of Survivorship in Community Property

Estates Code § 112.052. Form of Agreement

Estates Code § 112.054. Revocation of Agreement

Estates Code § 112.152. Nontestamentary Nature of Transfers Under Agreement

Issuance of securities certificates from account containing community property with right of survivorship does not revoke survivorship agreement

HOLMES v. BEATTY

Section D. Pour-Over Wills and Revocable Trusts in Estate Planning

Estates Code § 254.001. Devises to Trustees

Section E. Joint Tenancies in Realty

Estates Code § 101.002. Effect of Joint Ownership of Property

Estates Code § 111.001. Right of Survivorship Agreements Authorized

Section F. Planning for Incapacity

Estates Code § 751.0021. Requirements of Durable Power of Attorney

Estates Code § 751.031. Grants of Authority in General and Certain Limitations

Estates Code § 751.032. Gift Authority

Chapter 8 Limits on Freedom of Disposition: Protection of the Spouse and Children

Section A. Miscellaneous Rights to Support

Property Code § 42.001. Personal Property Exemption

Property Code § 42.002. Personal Property

Estates Code § 102.002. Homestead Rights Not Affected by Character of the Homestead

Estates Code § 102.003. Passage of Homestead

Estates Code § 102.004. Liability of Homestead for Debts

Estates Code § 102.005. Prohibitions on Partition of Homestead

Estates Code § 102.006. Circumstances Under Which Partition of Homestead is Authorized

Estates Code § 353.051. Exempt Property to be Set Aside

Estates Code § 353.052. Delivery of Exempt Property

Estates Code § 353.053. Allowance in Lieu of Exempt Property

Estates Code § 353.152. Distribution of Exempt Property of Solvent Estate

Estates Code § 353.153. Title to Property of Insolvent Estate

Estates Code § 353.101. Family Allowance

Estates Code § 353.102. Amount and Method of Payment of Family Allowance

Estates Code § 353.105. Payment of Family Allowance

Trial court must set aside exempt personal property on hand and also award allowance in lieu of exempt personal property not on hand

Estate of RHEA

Section B. Intentional Disinheritance of Children

Testator’s intentional disinheritance of child may not be set aside on public policy grounds

Merrick v. Helter

Section C. Pretermitted Children

Estates Code § 255.051. Definition

Estates Code § 255.052. Applicability and Construction

Estates Code § 255.053. Succession by Pretermitted Child if Testator Has Living Child at Will’s Execution

Estates Code § 255.054. Succession by Pretermitted Child if Testator Has No Living Child at Will’s Execution

Estates Code § 255.055. Ratable Recovery by Pretermitted Child from Portions Passing to Other Beneficiaries

Estates Code § 255.056. Limitation on Reduction of Estate Passing to Surviving Spouse

Property Code § 112.0335. Construction of Certain Trusts

Individual named in will and subsequently adopted as an adult cannot claim a share as a pretermitted child

Ozuna v. Wells Fargo Bank, N.A.

Chapter 9 Trusts: Fiduciary Administration

Section A. Dealings with Third Persons

Property Code § 114.081. Protection of Person Dealing With Trustee

Property Code § 114.082. Conveyance by Trustee

Property Code § 114.0821. Liability of Trust Property

Property Code § 114.083. Rights and Liabilities for Committing Torts

Property Code § 114.084. Contracts of Trustee

Property Code § 114.085. Partnerships

Property Code § 114.086. Certification of Trust

Section B. Trustee’s Powers

Property Code § 113.001. Limitation of Powers

Property Code § 113.002. General Powers

Property Code § 113.003. Options

Property Code § 113.004. Additions to Trust Assets

Property Code § 113.005. Acquisition of Undivided Interests

Property Code § 113.006. General Authority to Manage and Invest Trust Property

Property Code § 113.007. Temporary Deposits of Funds

Property Code § 113.008. Business Entities

Property Code § 113.009. Real Property Management

Property Code § 113.010. Sale of Property

Property Code § 113.011. Leases

Property Code § 113.012. Minerals

Property Code § 113.013. Insurance

Property Code § 113.014. Payment of Taxes

Property Code § 113.015. Authority to Borrow

Property Code § 113.016. Management of Securities

Property Code § 113.017. Corporate Stock or Other Securities Held in Name of Nominee

Property Code § 113.018. Employment and Appointment of Agents

Property Code § 113.019. Claims

Property Code § 113.020. Burdensome or Worthless Property

Property Code § 113.021. Distribution to Minor or Incapacitated Beneficiary

Property Code § 113.022. Power to Provide Residence and Pay Funeral Expenses

Property Code § 113.023. Ancillary Trustee

Property Code § 113.024. Implied Powers

Property Code § 113.025. Powers of Trustee Regarding Environmental Laws

Section C. Coexecutors and Cotrustees

Estates Code § 307.002. Joint Executors or Administrators

Property Code § 113.085. Exercise of Powers by Multiple Trustees

Property Code § 114.006. Liability of Cotrustees for Acts of Other Cotrustees

Inability of cotrustees to cooperate does not justify appointment of receiver over trust property

ELLIOTT v. WEATHERMAN

Section D. Directed Trusts and Trust Protectors

Property Code § 114.0031. Directed Trusts; Advisors

Section E. The Duty of Loyalty

Failure to provide beneficiary with disclosures and options not required by trust does not constitute bad faith, gross negligence, or fraud

TEXAS COMMERCE BANK, N.A. v. GRIZZLE

Property Code § 113.051. General Duty

Property Code § 113.052. Loan of Trust Funds to Trustee

Property Code § 113.053. Purchase or Sale of Trust Property by Trustee

Property Code § 113.054. Sales From One Trust to Another

Property Code § 113.055. Purchase of Trustee’s Securities

Section F. The Duty of Prudence

Arbitration clause in inter vivos trust is enforceable against trust beneficiaries

RACHAL v. REITZ

Property Code § 113.029. Discretionary Powers; Tax Savings

Property Code § 114.007. Exculpation of Trustee

Section G. The Duty to Inform and Account

Property Code § 113.151. Demand for Accounting

Property Code § 113.152. Contents of Accounting

Communications between the trustee and his attorney are protected from disclosure to beneficiaries

HUIE v. DeSHAZO

Chapter 10 Trusts: Alienation and Modification

Section A. Spendthrift Trusts

Property Code § 112.035. Spendthrift Trusts

Family Code § 154.005. Payments of Support Obligation by Trust

Beneficiary, upon termination of trust, may assign interest subject to spendthrift clause

FAULKNER v. BOST

Section B. Modification and Termination

Property Code § 112.051. Revocation, Modification, or Amendment by Settlor

Property Code § 112.052. Termination

Property Code § 112.054. Judicial Modification, Reformation, or Termination of Trusts

Property Code § 112.057. Division and Combination of Trusts

Property Code § 112.059. Termination of Uneconomic Trust

Settlor’s “confusion” does not constitute an unanticipated circumstance that would justify judicial termination of trust

In re WHITE INTERVIVOS TRUSTS

Section C. Trustee Removal

Property Code § 113.081. Resignation of Trustee

Property Code § 113.082. Removal of Trustee

Property Code § 113.083. Appointment of Successor Trustee

Mere hostility or ill will between trustee and beneficiaries does not qualify as cause for removal of trustee

Court must follow settlor’s direction in appointing successor trustee following removal

CONTE v. DITTA

Chapter 11 Trusts: Charitable Purposes, Cy Pres, and Supervision

Section A. Modification of Charitable Trusts

Property Code § 113.026. Authority to Designate New Charitable Beneficiary

Property Code § 123.001. Definitions

Trust to enrich the American public financially does not qualify as charitable

Marsh v. Frost National Bank

Section B. Supervision of Charitable Trusts

Property Code § 114.003. Powers to Direct; Charitable Trusts

Property Code § 123.002. Attorney General’s Participation

Property Code § 123.003. Notice

Property Code § 123.004. Voidable Judgment or Agreement

Members of charitable organization lack special interest standing

Nacol v. State

Chapter 12 Trusts: Powers of Appointment

Section A. Exercise of a Power of Appointment

Court approval is not a prerequisite to vesting of power of appointment

FOSTER v. FOSTER

Section B. Release of a Power of Appointment

Property Code § 181.051. Authority of Donee to Release Power

Property Code § 181.052. Requisites of Release

Chapter 13 Trusts: Construction and Future Interests

Section A. Classification of Future Interests

Right of reentry is not distinguishable from possibility of reverter for purposes of inverse condemnation claim

EL DORADO LAND CO. v. CITY OF MCKINNEY

Section B. Construction of Trust Instruments

Property Code § 5.042. Abolition of Common-Law Rules

Spendthrift provision does not preclude devise of vested remainder

In re TOWNLEY BYPASS UNIFIED CREDIT TRUST

Chapter 14 The Rule Against Perpetuities and Trust Duration

Section A. The Common Law Rule

Texas Constitution art. I, § 26. Perpetuities and monopolies; primogeniture or entailments

Section B. Perpetuities Reform

Property Code § 5.043. Reformation of Interests Violating Rule Against Perpetuities

Property Code § 112.036. Rule Against Perpetuities

Table of Statutes