**WILLS & TRUSTS CRIB SHEET FOR THE TEXAS BAR EXAM**
**INTRODUCTION:**
This guide is a concise tool for law students preparing for the Texas Bar Exam. Wills and Trusts are a fundamental component of Texas property law and can be complex. This crib sheet encapsulates the key concepts and rules to help you study effectively.
**TEXAS WILLS**
*Capacity and Intent*
– Testator must be 18+ years, or lawfully married, or a member of the armed forces.
– Must have “testamentary capacity” (sound mind).
– Must intend to create a will at the time of signing.
*Execution and Witness Requirements*
– Written and signed by the testator or another person under their direction.
– Attested by two credible witnesses over 14 years of age who sign in the testator’s presence.
– Holographic wills are valid if wholly in the testator’s handwriting and signed.
*Revocation and Alterations*
– By a subsequent will, codicil, or declaration made with the same formalities.
– By destruction or cancellation with the intent to revoke.
– Divorce revokes all provisions in favor of the former spouse unless the will expressly provides otherwise.
*Components of a Will*
– Exordium clause: identifies the document as a will.
– Revocation clause: revokes previous wills or codicils.
– Dispositive provisions: details how the estate is distributed.
– Residuary clause: disposes of property not otherwise mentioned.
– Nomination of executor and guardian, if applicable.
*Interpretation and Construction*
– Plain meaning rule: the court gives effect to the testator’s intent as expressed in the will’s language.
– Lapsed gifts: if a beneficiary predeceases the testator without a substitute provision, the gift lapses and falls into the residuary estate unless the anti-lapse statute applies.
– No-residue-of-a-residue rule: second residuary beneficiaries take nothing if the first residuary beneficiary predeceases the testator.
**TEXAS TRUSTS**
*Creation of Trusts*
– Creator (settlor) must have the intent to create a trust.
– Must have a trustee with duties to perform.
– Must identify definite beneficiaries.
– Trust property (res) must be specific and identifiable.
– Must be for a lawful purpose.
– Trusts can be created during a settlor’s lifetime or through a testamentary trust in a will.
*Types of Trusts:*
– Revocable: can be altered or terminated by the settlor.
– Irrevocable: cannot be altered or terminated without the beneficiary’s consent.
– Testamentary: established by a will and comes into existence upon the testator’s death.
*Fiduciary Duties of Trustees:*
– Duty of loyalty: act in the best interest of the beneficiaries.
– Duty of care: manage the trust property prudently.
– Duty to account: keep and render accurate accounts.
– Duty of impartiality: treat all beneficiaries fairly and equally.
*Trust Administration:*
– Trustee must follow the terms of the trust.
– Trustee can be removed for breach of fiduciary duty.
– Beneficiaries have the right to receive information about the trust.
– Trusts can terminate by terms, by agreement, by fulfillment of purpose, or by operation of law.
*Charitable Trusts:*
– Must have a charitable purpose.
– May have indefinite beneficiaries.
– Subject to the cy pres doctrine if the charitable purpose becomes impracticable or impossible.
**SPECIAL CONSIDERATIONS IN TEXAS**
*Community Property*
– Consider implications for community property when drafting wills for married individuals.
– Separate and community property distinctions affect distribution.
*Probate Process*
– Texas has independent and dependent administration; knowing the differences is crucial.
– Small estate affidavits and muniment of title can bypass traditional probate under certain circumstances.
*Estate and Gift Tax*
– Texas does not impose a state estate or gift tax, but federal tax implications must be understood.
**PRACTICE AND APPLICATION**
– Analyze fact patterns to identify issues related to will execution, validity, and interpretation.
– Draft will provisions and trusts to fulfill specific testamentary intentions.
– Solve problems involving trust administration and the exercise of trustee powers.
**CONCLUSION**
Utilize this crib sheet to grasp the essence of Wills & Trusts in Texas. Remember, understanding the underpinnings of testamentary intent, the formalities of wills and trusts, and the duties and powers of executors and trustees will equip you for both the Texas Bar Exam and practical legal application.