Decedent's Estates

Question 1

Holographic Will

Answer 1

A holographic will is one that is handwritten and unattested

Question 2

Validity of a Will - which law applies

Answer 2

Under the common law, the validity of a testator’s will is determined by the state where the testator was domiciled at the time of his death.

Under the Uniform Probate Code, a will is valid if it complies either with the law of the state in which it was executed or with the law of the place where the testator was domiciled when he signed his will or when he died.

Question 3

Conditional Will

Answer 3

A will may be conditional when it depends on the occurrence of an uncertain event before it becomes legally operative

Question 4

Pretermitted Child

Answer 4

Most states have pretermitted child statutes aimed at ensuring that chilren born after the execution of the will are not inadvertently disinhereted.

Where the child was born after teh execution of the will, the child would be entitled to take under the decedents estate as though the decedent had died intestate.

Question 4

Contingent Will

Answer 4

A will may be contingent when the instrument only takes effect if specific conditions occur

factors considered in determining whether a will is conditional or contingent: whether the condition or contingency was only a statement of motivation to prepare and execute the instrument

Additional Factors where the will was kept after the condition lapsed, whether there were other testamentary instruments, whether setting aside the will would result in intestacy, and whether the will would result in an inequitable distribution.

Question 4

Anti-Lapse Statute

Answer 4

Almost all states have anti-laspse statutes that operate to save the gift if the predeceased beneficiary was in a specified degree of relationship to the testator and left descendants who survived the testator. The beneficiary’s descendants take by substitution.

Typically these statutes only apply when the predeceasing beneficiary was a descendant of the testator.

Question 5

Ambiguous Will

Answer 5

Wills are construed as of the time of the testator’s death

When a will contains ambiguous language, courts may allow extrinsic evidence to resolve the ambiguity.

This includes considering the facts and circumstances surrounding the execution of the will.

Question 6

Lapse

Answer 6

If a will beneficiary dies during the testator’s lifetime, the gift to that beneficiary will lapse or fail.

Question 7

Post Mortem Distribution of Property

Answer 7

Post Mortem Distribution of property is dependent on whether the property in question is categorized as real property or personal property.

Question 8

Decedent’s Estate, Conflict of Laws

Answer 8

Disposition of decedent’s real property is governed by the jurisdiction of where the land is located, i.e. the situs

Disposition of decedent’s personal property is governed by the jurisdiction of the deceased’s domicile at the date of death.

Question 9

Intestate Distribution

Answer 9

Where a decedent’s will is invalid, the disposition of his assets are distributed according to the laws of intestate succession.

Question 10

Marital Children

Answer 10

The child born to a married husband and wife is presumed to be the biological, marital child of the relationship.

Marital children are entitled to an intestate share that a decedent passes to his surviving children

Question 11

Adopted Children

Answer 11

At common law, only blood relations could inherit through an intestate succession

Today all states grant adopted children inheritance rights.

While this may differ slightly from state to state, generally adopted children will be treated the same as marital children.

Question 12

Durable Healthcare Power of Attorney

Answer 12

All states have adopted statutes regarding durable healthcare power of attorney documents

A POA enables a principal or person to nominate an agent or decision maker wo can make healthcare decisions on the principals behalf.

Unless the document specifies otherwise, a designated agent is empowered to make any type of healthcare decisions whenever the principal lacks capacity or is unable to make decisions

A duly appointed agent can make these decisions without consulting other relatives of the principle

This agent must act in the principles best interest keeping the princiapls values in mind

A POA remains effectie unless revoked by the principal.

Question 13

Slayer’s Statute

Answer 13

The relevant state statute provides that no person shall sahre in the estate of a decedent when he or she intentionally caused the decedent’s death.

This appears to be a slayer’s statute which prevents those who have feloniously and intentionally causes a decedent’s death from subsequently taking a portion of the decedent’s estate.

Withholding treatment in accordance with executing a POA is not considered an intentional killing or a homicie nor is it considrred the cause of death

Public policy supports making good-faith decsiions regarding witholding care without risk of civil or criminal liability or forfeiting in heritance rights.

Question 13

Non Marital Children

Answer 13

Nonmarital children are born to an unmarried woman.

Where parternity has been adjudicated, nonmarital and marital children have the same right to inheritence.

Any statutory distinction or discrimination between marital and nonmarital children is unconstitutional

Question 14

Durable Health - Immunity

Answer 14

In most states, helathcare durable powers statutes provide that agents acting in good faith are immune from civil and criminal liability

A durable POA typically allows the agent to make any type of healthcare decision including to withdraw, withhold, or provide care.

Withholding treatment is typically not seen as bad faith by the agent.

Question 15

Stocks

Answer 15

Under the common law, a decisee of common stock was entitled to additional shares of that stock obtained by the testator through a stock split, but not to additional shares acquired as a stock divident

Under the uniform probate code and most jurisdictions, stock splits and dividends all pass to the specified devisee

Question 16

Ademption

Answer 16

the doctrine of ademption applies when specifically described property is not in the testator’s estate at death. this gift will adeem or fail.

Under the common law, the testator’s intent was irrelevant. All that mattered was what the testator owned and devised at death.

Some modern couts have modified this stance and allowed the devisee to take substitute or replacement property if the testators’s intent to do so can be shown

The UPC is most lenient of all and holds that property that was acquired as a replacement for the specifically devised pproeprty should pass to the stated devisee

Question 17

General Bequest

Answer 17

A genearl bequest is a gift of property from the estate that does not specify the exact piece of property that the beneficiary will receive

The generally described bequest is not subject to the rules of ademption

Question 19

Disclaimer

Answer 19

A legatee under a will may disclaim any interest that would pass from the decedent’s estate. That interest then passes as though the legatee predeceased the testator.