Quizzes

Texas Wills and Other Testamentary Documents

by Judon Fambrough

Although you probably have already made out a will, you may not be aware of the types of wills recognized in Texas, the requirements for execution of each and how your property would be divided if you died intestate (without a will). Take this quiz to test your knowledge of the subject, then review the correct answers. The report contains, as inserts, forms for the Statutory Durable Power of Attorney and the Directive to Physicians as promulgated in the statutes.

  1. Texas recognizes oral (nuncupative) wills as a valid way to transfer property at death.
    True Explanation »
    False Explanation »

    False. Texas recognized oral wills until Sept. 1, 2007. Any oral will made after that date is invalid.

  2. If you die intestate (without a will) with surviving children or their descendants, they receive your half of the community property.
    True Explanation »
    False Explanation »

    False. Prior to 1993, the surviving children or their descendants received the intestate parent's half of the community property. After that, children receive the parent's half only when the deceased parent had children by someone other than the surviving spouse.

  3. A self-proving will is a separate and distinct type of will recognized in Texas.
    True Explanation »
    False Explanation »

    False. A self-proving will is one that can be admitted into probate without the need of sworn testimony of a witness or an affidavit from a third party. It needs no additional proof as being the deceased's last will and testament.

  4. Holographic wills require no witnesses for validation, only the maker's signature. Hence, this type of will cannot be made self-proving.
    True Explanation »
    False Explanation »

    False. While it is true that holographic wills require no witnesses, Texas law allows this type of will to be made self-proving by (1) the maker swearing to and signing a promulgated affidavit before a notary, (2) having the notary sign and seal the document and (3) attaching the affidavit to the will.

  5. If a holographic will is not made self-proving, then before it can be admitted into probate as the deceased's last will and testament, a person who is familiar with the deceased's signature must appear in court and swear to this fact or sign an affidavit to this effect.
    True Explanation »
    False Explanation »

    False. To admit a holographic will into probate that is not self-proving, at least two people familiar with the deceased's handwriting (not signature) must follow the procedure outlined above.

  6. If an attested will (typewritten will) is not made self-proving, then before it can be admitted into probate as the deceased's last will and testament, two people who signed the will as a witness must either appear in court and swear to this fact or sign an affidavit to this effect.
    True Explanation »
    False Explanation »

    False. Although at least two witnesses are required to sign the will to make it valid, only one (not two) is required to testify or sign an affidavit before it can be admitted into probate.

  7. A holographic will must be made self-proving when it is signed and not at a later date.
    True Explanation »
    False Explanation »

    False. A holographic will may be self-proving at the time it is signed or anytime thereafter before the maker dies.

  8. If you die intestate (without a will) with a surviving spouse and children (or their descendants), your spouse will receive all your separate real property.
    True Explanation »
    False Explanation »

    False. If you die intestate with a surviving spouse and children, your surviving spouse receives a life estate in one-third of your separate real property. When the surviving spouse dies, the children or their descendants receive the rest of the real property that was held by the spouse in the life estate.

  9. If you die intestate, your surviving spouse will receive all your separate personal property if you have no children.
    True Explanation »
    False Explanation »

    True. This is how the Texas Probate Code specifies the distribution in this situation.

  10. To validate an attested will (better known as a type-written will), at least two witnesses must sign the will in the testator's presence. The testator need not sign in the presence of the witnesses, nor the witnesses in each other's presence.
    True Explanation »
    False Explanation »

    True. The procedure outlined is correct. However, to make the will self-proving prior to Sept. 1, 2011, the testator and two witnesses were required to sign a self-proving affidavit in each other's presence and in the presence of a notary who signed and sealed the affidavit. Thus, the maker and witnesses had to sign twice, the will once and then the self-proving affidavit.

  11. After Sept. 1, 2011, self-proving attested wills do not require the self-proving affidavit to be signed and affixed to the will.
    True Explanation »
    False Explanation »

    True. The 82nd Texas Legislature changed the process by allowing an attested will to be made self-proving without having to execute and affix a separate affidavit to the will as before. Now, the will can be made self-proving with the maker and the two witnesses signing the document (will) only once before a notary. However, the maker and the two witnesses must sign in each other's presence and in the presence of a notary.

  12. Texas does not recognize a valid will from another state or foreign country as being self-proving even though it is recognized as self-proving in the other state or foreign country.
    True Explanation »
    False Explanation »

    False. Until Sept. 1, 2011, the answer was True. However, the law effectively changed on this date. Presently, Texas recognizes these wills as self-proving.

  13. There is no difference between a testator and a testatrix. The terms refer to anyone signing a will.
    True Explanation »
    False Explanation »

    False. A testator is a man who makes (executes) a will. A testatrix is a woman who makes (executes) a will.

  14. In Texas, if you have not signed (executed) a Directive to Physicians to Withhold Life-Support Devices (better known as a Living Will), your spouse and/or next of kin can legally make that decision on your behalf.
    True Explanation »
    False Explanation »

    True. Texas law allows either the spouse or next of kin to make the decision to withhold life support when death is inevitable. However, the testator or testatrix should execute the directive to indicate his or her intent and prevent the spouse or next of kin from having to make this decision.

  15. The primary reason for executing a Statutory Durable Power of Attorney is to avoid having a guardian judicially appointed if you become mentally incompetent.
    True Explanation »
    False Explanation »

    True. The primary purpose of the durable power of attorney is to allow someone you choose to manage your business affairs after incompetency. Actually, two types of durable powers of attorney are recognized in Texas. One is for managing business affairs; the other is for making health-care decisions.

  16. The primary reason for spouses executing a Right-of-Survivorship Agreement is to avoid probate when the first spouse dies. The property automatically goes to the surviving spouse.
    True Explanation »
    False Explanation »

    True. Because there is no right of survivorship in community property, the law changed allowing the spouses the opportunity to make that choice.

  17. If a couple executes a Right-of-Survivorship Agreement, all community property must be subject to (included in) the agreement. The couple cannot pick and choose among the community assets.
    True Explanation »
    False Explanation »

    False. The Right-of-Survivorship Agreement may cover all or part of the community assets.

  18. The Right-of-Survivorship Agreement can include both jointly owned separate property and community assets.
    True Explanation »
    False Explanation »

    True. Two sections of the Probate Code address the creation of the right of survivorship in jointly held property. One deals with community property and the other with separate property. Taking the two sections together, the right of survivorship can be created in all or a part of jointly owned separate property as well as with the community assets.

  

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