Decedents Estates Flashcards
Intestate Succession
Person dies without will, how property is divided (or if will is invalidated in part or in whole or not total dispoisition)
If Spouse or Parent do not surive T then two avaialble schemes
Per Capita at each generation
Per Capita with representation (Modern Per Stirpes)
Per Capita at each generation
all cousins will be treated alike
one share to living issue and one share for each person in that generation who predeceased decedent but left issue surviving
combine and distribute equially at next generational level
Per Capita with Representation (Modern Per Stirpes)
child will simply take his parent’s share
same as above but don’t combine and divide, just pass it down to issue
Is an adopted child considered a child?
YES, as well as children born out of wedlock, half-bloods
Are stepchildren considered a child?
NO
Advancemnets
Decedent dies without a will but gave child a gift during lifetime
Do you deduct gift from what child would inherit under intestate succession
Common Law: lifetime transfer treated as downpayment and IS taken into account when computing shares, only applied to a gift to a CHILD (broadened to include any heir)
Majority: lifetime transfer is a gift and is ignored in computing
Ademption by Satisfaction
when there is a will, lifetime gift is not prepayment unless
1. will says so
2. testator declares contemporanous writin that gift deducted from will OR
3. devisee acknlowegdes in writing
Requirements to Execute a Valid Will
(SWEPT)
S- SIGNED by an adult testator (or with someone’s help and at T’s direction)
W- in WRITING
E- Signed at the END of the will,
P- PUBLISHED that it is T’s will, and
T- TWO witnesses must sign in T’s presence
A will must be written and signed by an adult
Holographic Will
unwitnessed wills
signed and if the material portions of T’s handwriting then permissible
recognized by hald of the states
Dispensing Power
court can validate a will so long as there is CLEAR AND CONVICING EVIDENCE that decedent intended document to be her will
Incorporation by Refrence
if not valid will, can be incorporated by refrence if the will manifests an INTENT to incorporate the writing and the writing is IDENTIFIED with reasonably certainty
exist att time will is execited
(UPC allows T to dispose of tangible personal property even after will execution)
Revocation of Will
Physical Act (cancellation or writings on the will) with intent to revoke the will
Dependant Relative Revocation
first wil isn’t revoked if a later will is found invalid
Divorce
revokes any gifts in favor of spouse (needs to be ACTUAL divorce NOT annulment)
Gift Fails Bc Beneficiary is NOT alive
gift will LAPSE or faill and fall into the residuary
soem states have antilapse statute ( to keep gifts in the family) - if died before T and related by blood and had issue to survive, give to issue
Slayer Statute
generally doctrine does not bar gift on MEE (because usually killing is not FELONIOUS and INTENTIONAL)
Ademption
gift fails bc property no longer exists
bequest adeems (gift fails)
some statutes the replaced property or insurance procees are given B in place of property
Disclaimed Property (B says no thanks)
passes as if B died first (antilapse maybe or residuary)
Abatement
when assets are insufficent to satsify all the gifts, then gifts will be reduced via
intestate property
residuary gifts
general gifts
speicific gifts
If MEE brings up MENTAL CAPACITY or UNDUE INFLUENCE best answer is that…
testator DID have capacity and there was NOT undue influence present to invalidate the gift
(fact-specific)
Undue Influence (SODA)
- T was SUSPECTIBLE to undue influence
- alleged influencer had the OPPORTUNITY to exert undue infleunce
- DISPOSITION to exert undue indluence
- will APPEARS to be a product of undue influence
***only invalidate undue influenced portions (most courts)
