Decedent's Estate

Question 1

Advancements at Common Law

Answer 1

A lifetime transfer to an heir was presumptively treated as a down payment on the heirs intestate share and thus is taken into account when computing the heirs intestate share.

Question 2

Advancements - Majority

Answer 2

a life time transfer is presumed to be a gift and is ignored when computing the heirs intestate share unless there is evidence to show that the testator intended the gift to be an advancement.

Question 3

Ademption by Satisfaction

Answer 3

a lifetime gift is not a prepayment unless (1) the will says so, (2) the testator declares in a contemporaneous writing that the gift is to be deducted from the will, or (3) the devisee acknowledges in writing that the gift is in satisfaction of the bequest.

Question 4

Will Requirements

Answer 4

a valid will requires the will be (1) in writing, (2) signed by the testator, and (2) witnesses by two witnesses.

Question 5

Holographic Wills

Answer 5

Holographic wills are unwitnessed will. Holographic wills are valid if they are signed and the material provisions are the will are in the testators handwriting.

Question 6

Dispensing Power

Answer 6

a court can validate a will so long as there is clear and convincing evidence that the decedent intended the document to be her will.

Question 7

Incorporation by Reference

Answer 7

Incorporation by reference allows a writing to be incorporated into a will if (1) the writing is in existence at the time the will is executed, (2) the language of the will manifests this intent, and (3) the language of the will describes the writing sufficiently to permit its identification.

Question 8

Revocation by Physical Act

Answer 8

a will can be revoked by an execution of a new will or physical act and the act is done with the intent to revoke the will.

Question 9

Revocation by Physical Act by a Proxy

Answer 9

There must be someone acting at the testators discretion and in the physical presence of the testator.

Question 10

Dependent Relative Revocation

Answer 10

under DRR, a first will isn’t revoked if a later will is found invalid. If a testor revokes will based on a mistaken assumption of law or fact that revocation of the will is ineffective if it appears that the testator wouldn’t have revoked the bequest had the testator had accurate information.

Question 11

Divorce

Answer 11

Divorce revokes gifts in favor of the spouse. There actually needs to be divorce or annulment not just the filing of a divorce.

Question 12

When the Beneficiary Predeceases the Testator

Answer 12

the gift will lapse and fall into the residuary.

Question 13

Anti Lapse Statutes

Answer 13

if a beneficiary dies before the testator and was both related by blood to the testator within a certain degree of relationship and had issue who survived the gift to the deceased beneficiary is saved and the beneficiary’s issue will take in lieu of beneficiary.

Question 14

Slayer Statute

Answer 14

an individual who feloniously and intentional kills the decedent or who is convicted of committing abuse, neglect or exploitation with respect to the decedent forfeits all benefits with respect to the decent’s estate (including an intestate share, an elective share, or an omitted spouse or child’s share.) Accidental killings does not bar a gift. Nor does the slayer rule apply if the slayer murdered someone other than the decedent.

Question 15

Ademption

Answer 15

if a specifically devised property is not in the testator’s estate when the testator dies, the bequest adeems ( fails). However, under many statutes if the testator replaced the property, or if there were insurance proceeds unpaid at death then the beneficiary would receive that in replace of the property.

Question 16

Disclaimers

Answer 16

Disclaimed property will pass as if the person disclaiming predeceased the testator. An anti lapse statute may apply, otherwise the gift will fall into residue.

Question 17

Abatement

Answer 17

when the assets of an estate are insufficient to satisfy all the gifts made by someone’s will, then the gifts to the beneficiaries will be reduced in the following order:

1. Intestate Property
2. Residuary Gifts
3. General Gifts
4. Specific Gifts

Question 18

Mental Capacity

Answer 18

a testator must have ht capacity to a execute the will. Th burden of proving lack of mental capacity rests on the contestant. The testator must know and understand (1) the nature and extent of its property, (2) the natural objects of its bounty, (3) the disposition its making, and (4) be able to relate all the elements together to make a disposition.

Question 19

Undue Influence

Answer 19

occurs when the wrongdoer exerts such influence over the testator that it overcomes the testbots free will and causes the testator to make a disposition it would have other not have made. The burden of proof is on the will contestant and it must establish:

(1) that the testator was susceptible to undue influence,
(2) the wrongdoer had the opportunity to exert undue influence,
(3) the wrongdoer had disposition to exert undue influence, and
(4) the will is the result of undue influence.