4. Understanding Wills Flashcards
Attested Wills
Must be in writing, must be signed by the person whose Will it is, and must be witnessed and signed by those witnesses (who will later have to prove via testimony).
Self-Proven Wills
An Attested Will PLUS notarized affidavits of the Testator and witnesses saying they signed in the presence of one another. Not a requirement in many states, but it is an excellent idea to sign one when executing a Will.
Holographic Wills
Entirely handwritten and signed by the Testator. Testimony of two witnesses who are not beneficiaries is necessary to prove up the Will so it will be admitted to probate.
Many states do not permit such Wills.
Soldiers’ and Sailor’s Wills
The Will of a person who was a member of the US armed forced when they died. It will be admitted to probate in every state (whether attested to or not), usually on the oath of 3 credible witnesses that the signature is that of the Testator.
Noncupative Wills
Must be declared by the Testator to be his or her Will before two witnesses simultaneously present. Such a Will can only dispose of only personal, not real, property.
Most states do not recognize the validity of such Wills because of the greater likelihood of fraud, but those that do impose certain requirements.
Pour-Over Will
A Will used in conjunction with a RLT to dispose of any property owned by the decedent at time of death which was not transferred to the Trust.
Revokes all prior Wills, but does not contain detailed dispositive provisions; rather it directs distribution to the Trust.
Must be admitted to probate to be effective.
Codicil
Amendments to an earlier Will. A separate page to be prepared, referring specifically to the Will and to be kept with the Will.
Should be used for simple amendments. If desired changes are numerous or complicated, better to just start from scratch and do another Will.
What happens when a beneficiary predeceases a Testator
The alternate gets it. If Will does not name an alternate or the alternate has died, it is a “lapsed” or “failed” gift and the property will go to either:
1) the residuary beneficiary named in the Will
2) the primary beneficiary’s descendants
3) the deceased’s heirs under State law, as if there were no Will
What happens when a Testator gives an inheritance away while alive
The law presumes that a lifetime gift is not meant to replace a Will provision, so unless there is clear evidence to the contrary, the intended distribution scheme could be altered. Who’s to know whether the lifetime gift was meant to take the place of a Will provision?
The difference between undue influence and fraud
Undue influence is pressure that takes away a person’s free will to make decisions. Questions typically arise when a Will deals unjustly with persons believed to be the natural objects of a Testator’s bounty.
Fraud occurs when someone has misrepresented essential facts to the Testator and persuaded him to make and sign a Will that will benefit the person who misrepresented the facts.
-Fraud in the Execution: when a person is deceived by another as to the character of the documents he is signing.
-Fraud in the Inducement: a person knowingly makes a Will but its terms are based on material misrepresentations of facts made to the Testator.
The affect of divorce and after-born children on a Will
In most states, a divorce does not nullify a Will but it does nullify that part of a Will favoring the former spouse, including power of appointment vested in the ex-spouse and the appointment of the former spouse as the Executor, unless the Will otherwise directs. The rest of the Will is still valid. Best course of action is a new Will.
The birth of a child, unborn when one’s Will is made, serves to revoke that Will in many states. In other states, an after-born child receives a share equal to what he or she would have received if the Testator had died without a Will. Best course of action is a new Will.
Will provision on charitable gifts
Charitable gifts are limited in certain ways. For example, the amount of the gift can be limited to a certain proportion of the estate, usually 50 percent.
Specific Bequest vs Specific Device
Specific Bequest: a gift of a particular identifiable item of personal property.
Specific Devise: an identifiable gift of real property.
Ademption
Items or assets that were to be distributed under a person’s Will may have changed, been sold, or no longer exist at the time of that person’s death.
-Ademption by Extinction: when specific devises or bequests are no longer in the estate, the gifts adeems and the beneficiary is not entitled to anything.
-Ademption by Satisfaction: when the Testator, during his or her lifetime, gave the intended beneficiary all or part of the gift intended to be given in the Will. It is presumed that this is in lieu of the testamentary gift.
Abatement
The process of determining the order in which property in the estate will be applied to the payment of debts, taxes, and expenses.
The intention of the Testator, if expressed in the Will, governs the order. Where the Will is silent, the following “reverse” order is usually applied:
-Residuary gifts
-General bequests
-Demonstrative bequests
-Specific bequests and devices
