Decedents' Estates Flashcards

1
Q

UPA v. UPC

A

UPA = uniform parentage act

UPC = uniform probate code

Unless indicate otherwise, rules are from UPC

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2
Q

Intestate Succession

A
  • decedent dies without a will
  • decedent’s will fails to distribute entire estate
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3
Q

Modifications to Intestate Succession

A

decedent can use a will to expressly exclude an individual / class from taking intestate (that individual is treated as if they disclaimed their share)

heirs can override intestacy statute by agreeing among themselves how to divide estate

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4
Q

Intestate Order of Succession

A
  • surviving spouse / direct descendants
  • parents
  • siblings / descendants of siblings
  • grandparents, descendants of grandparents (aunts, uncles), and descendants of deceased aunts and uncles (second collateral line)
  • more distant heirs (apply either degree of relationship approach or parentilic approach)
  • state (once blood relatives exhausted)
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5
Q

Distribution of Shares: Surviving Spouse

A

If no surviving descendants or if decedent’s surviving descendants are also descendants of surviving spouse and no other descendant of surviving spouse survives decedent, sole heir.

If surviving descendants or decedent’s parents are living, surviving spouse may receive either a specified fraction of estate or a fixed amount plus a fraction of remainder
- if only spouse and parent survive, spouse receives 300k + 3/4s of any balance of estate
- if all decedent’s surviving descendants are also descendants of surviving spouse and surviving spouse has descendants who are not descendants of decedent, spouse receives 225k + 1/2 of balance of estate
- if decedent has other descendants that are not descendants of surviving spouse, surviving spouse receives 150k + 1/2 of balance of estate

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6
Q

Definition of Spouse

A

must be legally married at time of decedent’s death

in some states, (1) committed partners are spouses if formalized a civil union or are registered domestic partners and (2) a putative spouse is given rights in intestacy as surviving spouse

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7
Q

Distribution of Shares: Children

A

if no surviving spouse, decedent’s descendants take entire estate under rules of representation.

If child survives decedent, shares estate equally with other surviving children

if child predeceases decedent but leaves surviving descendant, predeceased child’s share goes to child’s descendant (representation)

If child predeceases decedent but has no descendant, that interest goes to other heirs as if the child never existed

If child is born alive within 280 days after father’s death, child is an heir (UPA extends to 300 days)

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8
Q

Remote Descendants

A

if decedent has multiple surviving descendants in multiple generations, court follows one of three rules:
-strict per stirpes
- modern per stirpes
- per capita at each generation

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9
Q

Remote Descendants: Strict Per Stirpes

A

equal divisions beginning at first generational level and move to next level when a predeceased descendant requires representation

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10
Q

Remote Descendants: Modern Per Stirpes

A

estate shares divided at generation nearest to decedent that contains surviving descendant. Court makes equal divisions at each generational level UNLESS every member of a level has predeceased decedent. In that case, court will go to next level

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11
Q

Remote Descendants: Per Capita at Each Generation

A

shares divided equally by number of surviving descendants in each generation

court makes equal divisions at each generational level and gives fractional share to every survivor at that level but reserves any fractional shares that would have gone to predeceased descendants at that generational level for distribution to survivors at next level

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12
Q

Distribution of Shares: Adopted Children

A

intestacy rights from adopting parents. forfeit intestacy rights from natural parents / relatives.

BUT if stepparent adopts child and either natural or adoptive parent dies intestate, child is heir to both parents and the relatives. Under UPC, adopted child remains heir of other natural parent despite adoption by stepparent.

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13
Q

Equitable Adoption

A

if stepchild or foster child and not formally adopted, can take as that person’s heir if:
- person promised child’s parent or guardian that person would adopt child
- relationship began when stepchild or foster child was a minor and continued throughout lifetimes and
- clear and convincing evidence that stepparent or foster parent would have adopted the child but for a legal barrier

[BUT does not allow child to inherit from relatives of would-be adopter]

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14
Q

Establishing Paternity

A

during father’s lifetime, preponderance of the evidence

after lifetime, clear and convincing evidence

Under UPA, presumed to be child’s parent if individual resided with child for first two years of child’s life and openly held out child as his

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15
Q

Degree-of-Relationship Approach

A

relatives within closest degree of decedent take estate (determined by number of generations)

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16
Q

Parentelic Approach

A

court looks to degree of relationship between decedent and nearest common ancestor

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17
Q

Intestate Succession: Bars to Inheritance

A
  • parental rights terminated and not judicially reestablished
  • child died before reaching 18 and clear and convincing evidence that, immediately before death, parental rights could have been legally terminated under state law for nonsupport, abandonment, abuse, neglect, or other actions or inactions of parent
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18
Q

Intestate Succession: Advancements

A

descendant’s share reduced by lifetime gift if:
- dependent states in a writing contemporaneous with gift that it is intended as an advance on heir’s inheritance OR
- heir acknowledges in writing that gift was so intended.

EXCEPTION: if child predeceases decedent, child’s advancement not accounted for in computing intestate shares. Child’s descendants take by representation without having advancement reduce shares

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19
Q

Simultaneous Death Rule

A

if heir apparent and decedent die in event and order of deaths cannot be determined, presumed heir apparent died first UNLESS rebut by preponderance of evidence

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20
Q

Nearly Simultaneous Death

A

unless CCE that heir apparent survived decedent by 120 hours, heir apparent deemed to predecease.

party whose claim is dependent on survivorship has burden of proof.

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21
Q

Death

A

irreversible cessation of circulatory and respiratory function OR irreversible cessation of functions of entire brain

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22
Q

Will Execution Requirements

A
  • must be in writing
  • testator must sign the will
  • must be signed by two witnesses who are present when testator (a) signs the will, (b) verbally acknowledges the prior signature, or (c) verbally acknowledges the will as his own
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23
Q

Additional Execution Requirements (Minority of States)

A

minority of states impose one or more of the extra requirements below:
- testator’s signature must appear at end of will
- testator must publish will (oral declaration that it is a will)
- witnesses must be simultaneously present when testator signs or when witnesses sign
- testator must date will

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24
Q

Execution Exceptions

A

minority of states may admit a will despite failure to comply with formalities if:
- document (a) represents the testator’s intent as shown by CCE and (b) substantially complies with formalities (substantial compliance doctrine)
- CCE must show that, even though document improperly formalized, intended to comprise will (harmless error rule)
- oral wills made by testators who are in peril of imminent death are admissible (emergency wills)

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25
Q

Interested Witnesses: Common Law

A

beneficiary cannot serve as witness to execution

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26
Q

Interested Witnesses: Modern Majority

A

beneficiary can serve as a witness but bequests that would go to the interested witness are purged automatically or to the extent it exceeds what interested witness would receive intestate

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27
Q

Interested Witnesses: Modern Minority / UPC

A

beneficiary can serve as witness without losing benefits under will

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28
Q

Interested Witnesses: Witness’s Spouse

A

in some states, a witness is considered interested if the witness’s spouse is a beneficiary

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29
Q

Interested Witnesses: Supernumerary Witness

A

if extra witness is a beneficiary, witness’s bequest is effective unless witness’s testimony becomes necessary to prove validity (in which case it is purged)

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30
Q

Will Validity Requirements

A
  • legal age (18; some states allow emancipated minors to make will)
  • requite mental capacity at time of execution
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31
Q

Capacity Requirements

A

will void if testator does not understand:
- nature and extent of testator’s property
- natural objects of testator’s bounty
- effect of making a will
- relation of these elements to one another

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32
Q

Insane Delusion

A

will void if
- testator suffered from irrational belief and
- irrational belief affected testator’s formulation of will in whole or in part

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33
Q

Transfers to Minors

A

minors incapable of holding legal title to property

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34
Q

Choice of Law

A

common law: law of testator’s domicile sets all rules concerning personal property; law of situs for real property

nearly every state has enacted a COL statute allowing a court to validate a will according to formalizing rules of another state

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35
Q

Foreign Wills

A

state statutes allow courts to validate wills properly formalized according to laws of foreign country

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36
Q

Holographic Will

A

testator can make a valid will by handwriting entire document and signing without witnesses

if printed / typed something on document, invalidates holographic will.

under modern statutes/UPC, only material portions of holographic will must be handwritten.

minority of states may require date or that it be discovered among testator’s important papers.

in some states, alterations do not require new signature

if language is ambiguous, extrinsic evidence admissible to clarify whether it is intended to comprise holographic will

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37
Q

Self-Proved Wills

A

testator has acknowledged the will and witnesses have executed affidavits that substantially comply with statutory form before an officer authorized to administer oaths

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38
Q

Conditional Wills

A

court must determine whether dependent intended the happening of an event to be a condition precedent to operation of will or if statement merely manifestation of intent to execute will.

if condition precedent, and condition does not occur, will does not take effect.

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39
Q

Conditional Wills: Factors to Determine Intent

A
  • any statements made by testator following document’s execution
  • where testator stored will after contingency lapsed
  • testator’s education level and knowledge of law
  • whether any testamentary documents exist
  • whether setting aside will results in intestacy
  • whether effectuating the will’s terms results in an inequitable distribution
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40
Q

New Will

A

if testator makes a new will, it supersedes old one.

if subsequent executed writing includes a residuary clause (like I leave rest of my estate to my wife), presumed to be a will

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41
Q

Codicils

A

can revise estate plan by executing a new document that amends only part of existing will

supersedes will to the extent that it is inconsistent with the will

Must be executed according to same formal will requirements. Can make holographic codicil to attested will or attested codicil to holographic will

if no residuary clause, presumed to be a codicil

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42
Q

Republication

A

when a testator executes a codicil to a will, will’s date of execution is re-dated to later date of codicil

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43
Q

Revocation

A
  • subsequent writing (can expressly or impliedly revoke)
  • physical act: by (a) physically canceling it, obliterating it, tearing it, burning it, or otherwise destroying document (b) with the intent of revoking it
  • partial revocation by codicil
  • changed circumstances
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44
Q

Revocation: Physical Act

A

3P can perform physical act for testator as long as does so in testator’s presence

most states require that the act touch the “words” of the will while minority and the UPC validate any act of cancellation

testator may partially revoke by physical act, but in minority, any attempt to revoke only part is ineffective

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45
Q

Lost Will v. Revocation

A

if will was last known to be out of testator’s possession or whereabouts unknown, presumed not revoked by physical act and can be probated as lost will.

if will was last known to be in testator’s possession and disappears, presumed to have been revoked by prior act

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46
Q

Revocation: Changed Circumstances

A

if fail to make a new will after marriage, birth of child, or divorce, estate plan dictated by the will changes by implication UNLESS intrinsic evidence overcomes this presumption

Divorce revokes by implication all bequests to former spouse under a pre-dissolution will. UPC also applies this to bequests to relatives of former spouse

If a couple divorces but then remarries, the relevant portions are revived by implication of remarriage

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47
Q

Revival

A

can allow a revoked will be to be revised

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48
Q

Revival: Common Law

A

if testator revokes second will and first is still intact, first automatically revived

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49
Q

Revival: Modern Rule

A

once will revoked by subsequent executed writing, cannot be revived unless testator re-executes it, republishes by codicil, or executes a new will that parrots its terms

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50
Q

Revival: Old UPC

A

rebuttable presumption that first will is not revived unless evidence demonstrates testator intended to revive it

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51
Q

Revival: Modern UPC

A

if second writing is a will, law makes a rebuttable presumption that testator does not intend to revive the first will.

if second writing is a codicil, rebuttable presumption in favor of revival

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52
Q

Revival: Third Will

A

if second will revoked by third executed writing, first will remains revoked except to extent that third writing shows intent to revive first will

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53
Q

Dependent Relative Revocation

A

when testator revokes a will by physical act or under a mistaken belief about what estate plan may follow, court may treat act as having been conditioned on the anticipated estate plan coming into effect. If it does not, may undo revocation (if better aligns with testator’s intent)

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54
Q

Integration

A

will composed of whatever sheets of paper are presented and intended to comprise will when formalized by testator and witnesses.

testator does not have to sign each sheet of paper that makes up will.

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55
Q

Incorporation by Reference

A

may incorporate distributive provisions found in other writings if:
- incorporated document is a writing
- will expressly refers to the writing and describes it sufficiently and
- writing predates the will (unless, in a UPC state, writing concerns distribution of tangible personal property and is signed by testator)

56
Q

Incorporation by Reference: Relation to Codicils

A

if will republished by codicil, court can give testamentary effect to a writing made after will’s execution date if CCE of intent to create a will

57
Q

Acts of Independent Significance

A

bequests expressly conditioned on testator’s acts are valid if those acts, viewed objectively, affect testator during testator’s lifetime

if bequest conditioned on acts that have no significance other than effect on estate plan, bequest is void

58
Q

Restraints on Marriage Provisions

A

if prohibit beneficiary from taking under a will if marries anyone at any time, void as a complete restraint.

partial restraint may be upheld

59
Q

Power of Appointment

A

holder can choose beneficiaries under a will and designate testator’s assets to anyone, including the holder

But special power of appointment limits who can be a beneficiary

60
Q

Probate

A

will take effects upon death. transfers that occurs at death flow through probate

61
Q

Eligible Beneficiaries

A

cannot inherit if
- dead before or at execution of will OR
- alive at execution of will but die before will operative

62
Q

Eligible Beneficiaries: Children

A

today, gifts to “children” include adopted and nonmarital children but not stepchildren.

traditionally, nonmarital children not included and adopted children included only if bequest included testator’s own children

63
Q

Simultaneous Death Rule: Wills

A

like intestacy.

if beneficiary or heir dies first, bequest lapses or rules of representation apply.

64
Q

Overlive Clause

A

testator may require beneficiaries to survive by a certain amount of time take their bequests

65
Q

Rule Against Perpetuities

A

beneficiary’s interest is created at testator’s death, not at will’s execution

under common law rule, interest must, if at all, within 21 years of some life in being at its creation. Whether bequest will satisfy the rule is determined only at time of testator’s death

66
Q

Slayers

A

beneficiaries cannot inherit under intestacy or the will if they intentionally slay their benefactor

statutes require proof of slaying by preponderance of the evidence

slayer is treated as having constructively predeceased the benefactor

67
Q

Lapse

A

if beneficiary predeceases the testator, and testator fails to amend to account for change of circumstance, bequest goes to residuary beneficiary (lapse).

if no residuary beneficiary, intestate

68
Q

Antilapse

A

bequest will not lapse if bequest was to a descendant who is a blood relative of the testator out to the second collateral line (child, grandchild, parent, sibling, grandparents, direct descendants)

either those descendants or their descendants via representation will take

69
Q

Antilapse: Spouse

A

in most states, antilapse statute does not apply to spouse of testator and spouse’s direct descendants

70
Q

Contingency Clause

A

testator can indicate who should take if beneficiary predeceases or state that antilapse should not apply

can also plan for possibility that a beneficiary will disclaim

71
Q

Antilapse: Intent

A

bequest will lapse if testator shows intent contrary to applying antilapse statute

72
Q

Generic Bequest

A

at time of death, generic gift (like “my stock”) will include all items that fall within that general description and that are in testator’s possession at time of death

73
Q

Types of Bequests

A
  • general
  • specific
  • demonstrative
  • residuary
74
Q

General Bequest

A

amount of something bequeathed to particular person that need not be satisfied from particular source or asset (like money)

75
Q

Specific Bequest

A

particular item of property identified in will bequeathed to that particular person

if use “my”, bequest is almost always construed as specific

76
Q

Demonstrative Bequest

A

general amount of something either from liquidation of a specific thing or out of a specific source

if specified item has been sold or is worth less than amount bequeathed, beneficiary receives difference as a general bequest

77
Q

Residuary Bequest

A

disposes of all property not disposed in the three other forms of bequests or payment or discharge of other obligations of estate

78
Q

Ademption by Satisfaction

A

applies to general and demonstrative bequests

under common law, if testator makes gift during lifetime to a beneficiary, court looks at testator’s intent to determine if that gift satisfied bequest or is in addition to bequest

presumption is that it was in addition UNLESS gift is to one of multiple children and is substantial and extraordinary (then presume satisfaction of bequest)

Modern majority rule: presumes gift is in addition but can overcome by
- testator’s written declaration made at time of gift
- beneficiary’s written acknowledgment made at any time
- provision in will

79
Q

Ademption by Extinction

A

applies to specific bequests - identity theory

beneficiary will receive specific bequest only if testator owns it at death. If not, adeems and beneficiary gets nothing.

Under UPC, court can override ademption by extinction if circumstantial evidence suggests ademption inconsistent with testator’s manifested plan of distribution

80
Q

Ademption by Extinction: Exceptions

A

does not apply if item:
- merely changes form
- has been liquidated but proceeds not yet paid to testator at time of death or
- under UPC, was replaced by real property or tangible personal property

81
Q

Accessions

A

if testator makes specific bequest of stocks or bond, CASH DIVIDENDS that accrue after testator’s death go the beneficiary BUT bequest does not include dividends that accrued during time between execution of will and testator’s death

Additional shares/stock received after will’s execution from a stock split or stock dividends will go to beneficiary

Under UPC, additional shares from stock reinvestment plan, merger, or acquisition also go to beneficiary

82
Q

Exoneration: Common Law

A

if testator devises real property encumbered by a mortgage, presumed testator intended to pay off mortgage or other liens unless exoneration would require liquidation of property that testator specifically bequeathed to other beneficiaries

cases have gone both ways if exoneration would not leave enough in estate to satisfy general bequests

83
Q

Exoneration: Modern Majority Rule

A

unless will says otherwise, beneficiaries receive specific bequests of property together with any liens attached to property

84
Q

Abatement

A

in absence of will provision, estate shares diminished in following order to pay off debts or if testator made larger bequests than amount available in estate

1) shares going to heir by partial intestacy
2) shares going to residuary beneficiaries
3) shares going to all general beneficiaries
4) shares going to specific beneficiaries

[demonstrative treated as specific to the extent the identified item satisfies the bequest and treated as general bequests to the extent of any shortfall]

85
Q

Class Gifts

A

if testator uses generic language, presumed created a class gift.

if name individual people, presumed bequest limited to those people UNLESS extrinsic or circumstantial evidence overcome presumption

86
Q

Class Gifts: Closure

A

if will does not state when class closes, rule of convenience

87
Q

Class Gifts: Lapse

A

if gift to a member lapses, predeceased class member’s share is divided among the other class members UNLESS antilapse statute applies (in which case goes to their descendants)

88
Q

Disclaimers

A

UPC allows heirs and beneficiaries to disclaim a bequest if they do so in a signed writing or electronic record at an time before the beneficiary accepts the property

once beneficiary accepts or disclaims bequest, cannot change mind.

can partially disclaim

UPC lets any fiduciary disclaim without need for court pre-approval; some states require court pre-approval

89
Q

Insolvent Disclaimers

A

disclaimant’s ordinary creditors cannot reach disclaimed property BUT small minority of states bar insolvent disclaimers as fraudulent transfers

90
Q

Powers and Duties of a Personal Representative

A
  • appoint attorney to represent estate before probate court, appear in propria persona if state allows, or act as attorney if representative is a member of the bar in the state
  • notify by mail all known heirs and beneficiaries and reasonably ascertainable creditors of the commencement of probate proceedings and publish notice of probate proceedings
  • marshal assets of estate, bring / defend suit
  • prepare inventory of estate and appraise value of assets
  • manage probate estate during probate (preservation > investment)
  • liquidate assets as necessary to satisfy claims and pay beneficiaries
  • file federal and state estate tax returns and pay those taxes (if required by state law)
  • satisfy all legitimate creditors’ claims
  • satisfy all beneficiaries
  • file a final or periodic accounting with the probate court
91
Q

Spouses - Elective Share System

A

surviving spouse can either:
- accept what the decedent spouse has bequeathed OR
- elect against the will by rejecting the bequest and instead receive the elective share, which is determined by state law

3P can make election on their behalf with court’s approval. Under UPC, funds go into custodial trust

BUT if spouse dies before deciding, their personal representatives cannot exercise right of election

92
Q

Spouses: Elective Share System - Deficiency

A

if surviving spouse elects against will, elective share is satisfied by taking pro rata amount from all beneficiaries
- under the will and
- of the decedent spouse’s nonprobate assets

93
Q

Spouses: Elective Share System - Amount

A

fixed fraction of decedent state, typically about 1/3

fraction same regardless of duration of marriage. minority of states / UPC have the fraction as a sliding scale that rises to 50% of the estate after 15 years of marriage

computed as fraction of net estate after creditors paid; if estate insolvent, elective share is zero

94
Q

Spouses: Elective Share System - Assets Subject to Elective Share

A

in most states, elective share covers both probate and nonprobate assets.

UPC: also covers
- joint tenancies with right of survivorship
- irrevocable transfers of property in which decedent spouse retained life estate
- outright gifts to 3P if made during marriage and within 2 years of death

95
Q

Spouses: Elective Share System - Illusory Transfer Doctrine

A

surviving spouse can reach assets transferred during marriage by deceased spouse into revocable trust if transfer economically illusory because deceased spouse could have recaptured assets placed in trust by simply revoking it

96
Q

Spouses: Elective Share System - Fraud Test

A

if state applies elective share to probate assets, transfers made intentionally to avoid elective share are not allowed

97
Q

Spouses: Elective Share System - Forfeiture

A

in minority of states, spouse forfeits elective share right if engaged in misconduct by abandoning decedent spouse

98
Q

Spouses: Elective Share System - Waiver

A

can waive right by entering into prenuptial or postnupial agreement. But one of the following protections may apply:
- disclosure-of-assets requirement
- requirement of opportunity to seek independent counsel
- rebuttable presumption of fraud / duress
- right of judicial avoidance on ground of unconscionability
- requirement that agreements be formalized in signed writing

99
Q

Spouses - Pretermitted Share

A

if testator executed will before getting married and then dies without altering will, surviving spouse can claim an elective share OR intestate share UNLESS:
- evidence shows omission intentional
- under the UPC, testator made transfers to spouse outside will and intended those transfers to substitute for a bequest under the will OR
- under the UPC, premarital will makes bequests to testator’s descendants who are not children of surviving spouse, in which case the intestate share provided by the statute cannot come out of the descendants’ shares

100
Q

Children - Pretermitted Share

A

in most states, children born or adopted after will are entitled to intestate share.

minority/upc: all children, regardless of whether born or adopted before or after will

amount of share: under UPC, if no children when executed, receives shares by following rules of abatement. If did have child, omitted children receive pro rata shares of whatever amount the testator bequeathed to children named in the will by diminishing the shares of the named children

101
Q

Children: Pretermitted Shares -Exceptions

A

does not apply if testator:
- had living children when will executed and bequeathed nothing to them
- (a) executed will bequeathing all/substantially all of estate to other parent of child born or adopted after will executed and (b) testator either had existing children and bequeathed nothing to them or no children
- included a provision that anticipated possibility of having children after will executed and made provisions for contingency
- made transfer outside will to a child born/after will and testator intended that to substitute as a bequest

102
Q

Children: Pretermitted Share - Mistaken Belief

A

if will fails to provide for child that exists when will was executed solely because mistakenly believed child was dead, child receives same share as child born or adopted after execution would receive

103
Q

Exempt Properties and Allowances

A

surviving spouse may be entitled to:
- homestead allowance
- exempt property allowance
- family allowance

these are exempt from and have priority over claims of decedent’s estates, including those of creditors and beneficiaries

can be waived

104
Q

Homestead Allowance

A

grants surviving spouse a set amount in property that the surviving spouse and decedent used as primary residence

105
Q

Exempt Property Allowance

A

permits surviving spouse to claim a certain value in decedent’s personal property

106
Q

Family Allowance

A

grants specified sum of money from estate for maintenance

107
Q

Will Contests: Standing

A

standing if person would benefit if will invalidated

108
Q

Will Contests: Grounds for Challenge

A
  • improper formalization
  • testamentary capacity
  • insane delusion
  • undue influence
  • duress
  • fraud
  • mistake
  • ambiguity
109
Q

Ambiguity

A

historically, could use extrinsic evidence to clarify latent ambiguities but not patent ambiguity but modern trend is to allow for both

110
Q

Latent Ambiguity

A

ambiguity in will language as applied to bequest / beneficiary

111
Q

Patent Ambiguity

A

ambiguity on its face

112
Q

Mistake

A

invalid if testator mistaken about discrete facts and considers that belief in crafting estate plan [mistake in inducement]

but if mistaken about terms of will [mistake in execution] court can remedy problems by striking additional terms that were included by accident. modern trends allows correction of omitted terms as well

UPC permits courts to correct all mistakes if CCE shows testator’s intent or testator’s intent but for mistake

113
Q

Fraud

A

invalid if wrongdoer knowingly misleads testator for wrongdoer’s own benefit

inducement: deceives testator as to material facts to induce a will that benefits wrongdoer

execution: deceives testator concerning terms of estate plan

forgery: entire will or just portions

114
Q

Duress

A

invalid if wrongdoer commits or threatens harm to coerce testator to execute, revoke, or not revoke a will.

does not need to be a criminal or tortious threat

115
Q

Undue Influence

A

court may strike portion that benefits wrongdoer (if severable).

Will invalid if:
- testator susceptible or vulnerable to undue influence
- wrongdoer had opportunity to exercise undue influence (relationship and physical proximity)
- wrongdoer was disposed to exercise undue influence
- wrongdoer exercised a dominating influence over the testator, distorting the estate plan

116
Q

No Contest Clauses

A

any beneficiary who contests will loses benefits under will.

beneficiary can either accept bequest and forego contest OR bring contest and receive either a larger intestate share (if contest succeeds) or nothing

valid per se under common law

under UPC/Modern Majority Rule, valid only if no probable cause for contest (otherwise void)

117
Q

Contract Wills

A

testator can enter agreement with another party to make a will, revoke a will, or to die intestate as long as meet requirements of contract law

enforced by equitable constructive trust, not binding if one party repudiates before performing fully, and can be formalized without a writing in most states

118
Q

Inter Vivos Gift

A

gifts of personal / real property made during lifetime.

not subject to probate

119
Q

Inter Vivos Gifts: Requirements

A

donor must
- deliver the gift to the donee (or donee’s agent) and
- intend to make a gift

120
Q

Inter Vivos Gifts: Revocability

A

irrevocable. if retain right to revoke, gift is void

121
Q

Gifts Causa Mortis

A

if donor
- manually delivers
- gift of personal property
- while in peril of imminent death

revocable gift is allowed. If donor survives peril, gift automatically revoked even if donor fails to demand return.

minority says revocable within reasonable time

122
Q

Joint Interests with Right of Survivorship

A

survivor(s) absorb accretive share of joint interest holders outside of probate when joint interest holder dies.

123
Q

Joint Bank Accounts for Convenience

A

individual can create account where joint account holder will not receive account’s contents when individual dies but can sign checks, pay bills, and check funds

if not designated as convenience account, presumed to be a joint tenancy with right of survivorship

124
Q

Totten Trusts

A

depositor can name a revocable death beneficiary for a bank account wholly owned by depositor

created via contract with bank

125
Q

Totten Trusts: Management

A

death beneficiary has no rights in bank account during owner’s lifetime and cannot withdraw anything until owner’s death

126
Q

Totten Trusts: Revocability

A

owner can close account or revoke or change designation of death beneficiary at any time

127
Q

Living Wills / Advance Directors

A

directions for end-of-life care when individual terminally ill or permanently unconscious

requirements:
- individual competent at time of creation
- individual has reached age of majority (some states allow emancipated minor to create)
- executed in a writing signed by individual in presence of two witnesses (or notary public in some states). some states allow a living will to be made without witnesses or through oral declaration

128
Q

Living Wills: Revocation

A

can be revoked in any manner communicating intent to revoke

takes effect only after revocation communicated to supervising health-care provider

129
Q

Living Will: Restrictions

A

cannot violate state criminal law governing assisted suicide or mercy killings

130
Q

Powers of Attorney

A

individuals can delegate responsibility of their health care (and some financial decisions) to a 3P

can be:
- nondurable (ends upon principal’s incapacity)
- durable (takes effect throughout principal’s life) or
- springing (comes into effect upon incapacity and ceases upon recovery)

health-care power of attorneys are presumed to be springing

131
Q

Power of Attorney: Eligibility to Serve As Agent

A

family consent laws allow designated individual / group of individuals to provide consent for health-care decisions when no agent named.

order of priority:
- spouse, unless legally separated
- adult children
- parents
- adult siblings

132
Q

Power of Attorney: Requirements

A

many states require a signed writing with witnesses or notarization to execute a power of attorney

some states do not require witnesses

133
Q

Power of Attorney: Revocation

A

in many states, writing or oral declaration either revoking power or changing agent suffices

minority of states allow behavior implicating intent to revoke

134
Q

Power of Attorney: Restrictions

A

principal may extend or restrict agent’s authority in power of attorney to make a wide variety of health-care decisions

under Uniform Health-Care Decisions Act, agent prohibited from admitting principal to mental health-care institution unless either power of attorney or living will expressly grants authority in writing

135
Q

Power of Attorney: Liability

A

most states provide that an agent is shielded from civil or criminal liability and from discipline for unprofessional conduct for health-care decisions made in good faith

136
Q

Power of Attorney: Termination

A

all powers of attorney terminate upon principal’s death as soon as agent has actual knowledge of that event

several states allow a power of attorney to grant agent authority over organ donations, autopsy, and disposition of remains