DECEDENT'S ESTATES

Question 1

INTESTATE SUCESSION

Intestate succession explains how property is divided if a person dies without a will (or if the will is invalidated in part or in whole or does not make a total disposition). It is frequently tested on the MEE.

Answer 1

If the decedent’s spouse and parents do not survive the testator, there are two available schemes to divide property among the decedent’s children: per capita at each generation (where all cousins will be treated alike) or per capita with representation (modern per stirpes) (where a child will simply take his parent’s share).

• Per capita at each generation: To decide who gets the shares of the estate, find the first generation where there are issues living. Give one share for each such living issue and one share for each person in that generation who predeceased the decedent but left issue surviving. Combine the shares belonging to the deceased persons and distribute them equally at the next generational level. (Cousins are treated alike.)
• Per capita with representation (modern per stirpes): this is the same as above except instead of combining all shares and dividing them equally, simply pass each deceased person’s share on to her issue(s). (Cousins are not treated alike.)

Question 2

INTESTATE SUCESSION IF DECEASED LEFT NO CHILDREN OR SPOUSE

Answer 2

The civil law consanguinity method and the parentelic method adopted by the UPC.

• Under the consanguinity method, heirship is determined by degree of relationship: all persons of the same degree of relationship to the decedent take equal shares (so an uncle and a niece are in the third degree of consanguinity and would be heirs entitled to equal shares).
• Under the parentelic method, descendants of the decedent’s parents take to the exclusion of descendants of the decedent’s grandparents (so a niece would be an heir but an uncle would not).

Question 3

CREATION OF WILL

Be aware of the requirements to execute a valid will under majority law. When there does not appear to be a valid will, note different state laws on holographic wills and the dispensing power.

Answer 3

Many state laws require that the will is in writing, signed by the testator, and witnessed by two witnesses. They also require that the testator is 18 or older and intend that the document is his will. Note: generally, any mark that is made with intent to adopt the will counts as a signature.

Question 4

HOLOGRAPHIC WILLS

Answer 4

Holographic wills are unwitnessed wills. Holographic wills are valid if signed and (according to the UPC and some states) if the material portions are in the testator’s handwriting. Holographic wills are recognized by about half the states. Mention this doctrine if you see an unwitnessed will on the MEE.

Question 5

INCORPORATION BY REFERENCE

Answer 5

A writing that is not valid as a will may be incorporated by reference into a will if the will manifests an intent to incorporate the writing and the writing is identified with reasonable certainty. This writing must exist at the time the will is executed. (The UPC and some states recognize the right of a testator to dispose of tangible personal property by a signed memorandum, whether it is prepared before or after the execution of the will, even if it does not comply with the formalities of a will.)

Question 6

REVCOATION OF OF A WILL

Answer 6

• Revocation by physical act (e.g., by execution of a new will or by some other physical act, such as cancellation or other writings on the will): This must be done with the intent to revoke the will. The testator or someone acting at the testator’s direction and in his “conscious presence” may revoke the will.
• Dependent relative revocation: Under this doctrine, a first will isn’t revoked if a later will is found invalid. Essentially, if a testator revokes a will or bequest based on a mistaken assumption of law or fact, the revocation of the will is ineffective if it appears that the testator wouldn’t have revoked the bequest had the testator had accurate information.
• Divorce: Divorce revokes gifts in favor of a spouse. Note: there actually needs to be a divorce (or annulment)—not just a filing of divorce.

Question 7

WHEN A GIFT FAILS BECAUSE THE BENEFICIARY IS NOT ALIVE

Answer 7

The general rule is that if a beneficiary does not survive the testator, the gift will lapse or fail and fall into the residuary. However, all states have antilapse statutes (which keep gifts in the family). Under a typical antilapse statute, 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 the beneficiary.

Question 8

SLAYER STATUTE

Answer 8

An individual who feloniously and intentionally 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 decedent’s estate (including an intestate share, an elective share, an omitted spouse’s or child’s share, etc.). Voluntary manslaughter is a form of a felonious and intentional killing.

• Note that if a beneficiary accidentally kills the decedent (even if it rises to involuntary manslaughter), the slayer rule does not bar a gift. Nor does it apply if the slayer murdered someone other than the decedent.
• Note: when this is tested on the MEE, generally this doctrine does not bar a gift to the slayer (usually because the killing is not felonious and intentional!).

Question 9

TESTATORS MENTAL CAPACITY

Answer 9

A testator must have capacity to execute a will. The burden of proving that the testator lacks mental capacity rests on the contestant. A testator meets this requirement if the testator knows (1) the nature and extent of his property, (2) the persons who are the natural objects of the testator’s bounty (i.e., family members), (3) the nature of the instrument that the testator is signing, and (4) the disposition that is being made in the will.