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Texas Estate Planning
Copyright 2016, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

1-14 Texas Estate Planning 14.syn




Revisions by Jackson Walker L.L.P.

Chapter Summary


This chapter from Texas Estate Planning (Matthew Bender) examines the law governing devisees under a will. It includes discussions of the identification and qualification of devisees, devises to minors, pretermitted children, class gifts, simultaneous death considerations, the requirement of a beneficiary to elect against a will, disclaimer and assignment of devises, and no contest and disinheritance provisions.

This chapter first discusses the requirement that the devisees be designated with sufficient specificity that they can be reasonably identified. It advises that the testator's marital status be set forth in the will. There is also an explanation of the use of the term "children" in the will. The chapter then discusses the use of the terms "Issue," "Descendants," "Heirs," "Next of Kin," and "Cousin." Title vests in the devisees as of the testator's death.

The chapter next discusses various situations where devisees are disqualified from taking under the will. Among those disqualified (with certain exceptions) are an attesting witness whose testimony is required to prove the validity of the will, a former spouse of the testator, and the attorney who prepared the will.

The chapter then describes various methods of devise to minors. These manners of devise include, but are not limited to, outright devise, a devise in the care of a surviving spouse, a devise in trust, and a devise under the Texas Uniform Transfers to Minors Act.

A "pretermitted child" is a child born to or adopted by the testator after the testator's will has been executed. The term includes children born after the testator's death. If a pretermitted child is not mentioned or provided for in the testator's will or otherwise provided for by the testator, the child may nevertheless be entitled to share in the parent's estate.

In addition, the chapter describes the methods by which a testator may make a class gift. The requirements that there must be a single description of the class, uncertainty as the number of members of the class, and that the class gift must be an aggregate gift to the group are also discussed.

Further, the chapter describes situations where a beneficiary under a will may elect against the will in order to pursue a claim or right disposed of under the will. The doctrine of election is most frequently invoked in connection with wills that attempt to devise the property of the testator's spouse. The process of election against the will is discussed in detail.

Finally, the chapter covers the use, effectiveness, and validity of "no-contest" provisions and disinheritance provisions. The distinction between the two is explained in detail.

Texas Estate Planning (Matthew Bender) provides guidance in selecting the appropriate estate planning devices, and preparing wills, trusts, and durable powers of attorney. In particular, it covers such topics as devises, beneficiaries, executors, guardianships, trust planning, trust taxation, trust distributions, trustees, testamentary trusts, marital deduction trusts, inter vivos trusts, life insurance trusts, and powers of attorney for property management and health care. It also contains the most current federal and state statutory case law and hundreds of comprehensive forms.


Texas,Estate planning,Will,Devisee,Designation,Children,Adopted children,Children born outside marriage,Issue,Descendants,Heirs,Disqualification,Texas Uniform Transfers to Minors Act,Class gift,Simultaneous Death Statute,Disclaimer,No-contest provision,Disinheritance provision


For coverage of issues related to the drafting and execution of wills, see Ch. 10, Requirements for Valid Will, and Ch. 11, Organization of Wills.

The law governing devises is discussed in Ch. 12, Devises in General, and Ch. 13, Charitable Devises.


See Dorsaneo, Texas Litigation Guide--Estate Practice (Matthew Bender) for Texas estate practice information, covering initial procedures for probate, descent and distribution, probate process, personal representatives, will construction, managing the estate, creditors' claims, exemptions and allowances, guardianships, and mental commitments.

See TX Estate Practice LexisNexis Forms (Matthew Bender) for a comprehensive collection of Texas and national forms for estate practice in Texas derived from other Matthew Bender publications, covering such topics as conservators, guardians, estate administration, intestacy, nonprobate transfers, gifts, powers of attorney, probate, trusts, and wills

See Murphy's Will Clauses: Annotations and Forms with Tax Effects (Matthew Bender) for over 1,400 will and trust clauses with related documents, including annotations with laws of all states, estate planning advice, sample computations, discussion of estate and gift taxes, and living wills.

See Page on Wills (Matthew Bender) for comprehensive examination of topics such as the history of the law of wills and testaments, the elements of the will, alteration and spoliation, probate and contest, will construction, executors and trustees, and much more.
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