Decedents' Estates Flashcards
UPA v. UPC
UPA = uniform parentage act
UPC = uniform probate code
Unless indicate otherwise, rules are from UPC
Intestate Succession
- decedent dies without a will
- decedent’s will fails to distribute entire estate
Modifications to Intestate Succession
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
Intestate Order of Succession
- 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)
Distribution of Shares: Surviving Spouse
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
Definition of Spouse
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
Distribution of Shares: Children
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)
Remote Descendants
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
Remote Descendants: Strict Per Stirpes
equal divisions beginning at first generational level and move to next level when a predeceased descendant requires representation
Remote Descendants: Modern Per Stirpes
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
Remote Descendants: Per Capita at Each Generation
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
Distribution of Shares: Adopted Children
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.
Equitable Adoption
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]
Establishing Paternity
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
Degree-of-Relationship Approach
relatives within closest degree of decedent take estate (determined by number of generations)
Parentelic Approach
court looks to degree of relationship between decedent and nearest common ancestor
Intestate Succession: Bars to Inheritance
- 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
Intestate Succession: Advancements
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
Simultaneous Death Rule
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
Nearly Simultaneous Death
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.
Death
irreversible cessation of circulatory and respiratory function OR irreversible cessation of functions of entire brain
Will Execution Requirements
- 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
Additional Execution Requirements (Minority of States)
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
Execution Exceptions
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)
Interested Witnesses: Common Law
beneficiary cannot serve as witness to execution
Interested Witnesses: Modern Majority
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
Interested Witnesses: Modern Minority / UPC
beneficiary can serve as witness without losing benefits under will
Interested Witnesses: Witness’s Spouse
in some states, a witness is considered interested if the witness’s spouse is a beneficiary
Interested Witnesses: Supernumerary Witness
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)
Will Validity Requirements
- legal age (18; some states allow emancipated minors to make will)
- requite mental capacity at time of execution
Capacity Requirements
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
Insane Delusion
will void if
- testator suffered from irrational belief and
- irrational belief affected testator’s formulation of will in whole or in part
Transfers to Minors
minors incapable of holding legal title to property
Choice of Law
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
Foreign Wills
state statutes allow courts to validate wills properly formalized according to laws of foreign country
Holographic Will
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
Self-Proved Wills
testator has acknowledged the will and witnesses have executed affidavits that substantially comply with statutory form before an officer authorized to administer oaths
Conditional Wills
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.
Conditional Wills: Factors to Determine Intent
- 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
New Will
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
Codicils
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
Republication
when a testator executes a codicil to a will, will’s date of execution is re-dated to later date of codicil
Revocation
- 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
Revocation: Physical Act
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
Lost Will v. Revocation
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
Revocation: Changed Circumstances
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
Revival
can allow a revoked will be to be revised
Revival: Common Law
if testator revokes second will and first is still intact, first automatically revived
Revival: Modern Rule
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
Revival: Old UPC
rebuttable presumption that first will is not revived unless evidence demonstrates testator intended to revive it
Revival: Modern UPC
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
Revival: Third Will
if second will revoked by third executed writing, first will remains revoked except to extent that third writing shows intent to revive first will
Dependent Relative Revocation
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)
Integration
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.
