Decedents estates

Question 1

Distribution when there is no spouse and no children

Answer 1

1. parents
2. descendants of parents (siblings)
3. more remote ancestors

Question 1

share of children methods:

Answer 1

If testator is not survived by spouse and parents,
1. per capita at each generation (equally dear equally near).
2. per capita with representation - heirs receive what their parents would have gotten if they predeceased.

ex. A B C are siblings. A and B predecease testator, A leaves 1 kid, B leaves 2 kids. C still alive.

in 1, C gets 1/3, and the a/b kids split the total shares 3 ways (2/9 2/9 2/9)
in 2, A’s kid gets a third, B’s kid splits a third, and C gets a third

Question 2

Two types of advancements (died w/o a will but gave child gift during lifetime, do you deduct gift from inheritance?)

Answer 2

Common law: lifetime transfers presumed to be advancements
modern rule: lifetime transferes presumed to be a gift unless evidence suggests it was an advance.

Question 3

Rrequirements for will execution? 5

Answer 3

1. in writing
2. signed by testator
3. two witnesses
4. testator at least 18,
5. testator intends document to be his will

Question 4

Requirements for a holographic will?

Answer 4

A. signed
B. Material provisions in testator’s handwriting

Question 5

interested witnesses (witness who will receive property under will)

Answer 5

Common law: will is invalid if not two disinterested witnesses
Modern rule: will is valid but in some states disinterested witness cannot take

Question 6

What is a will codicil?

Answer 6

Supplement to a will that modifies, adds to it, explains it, or revokes it. same requirements as will. republishes and controls over will.

Question 7

Incorporation by reference for wills

Answer 7

A. will manifests an intent to incoporate the writing
B. the will is identified with reasonble certainty
C. The writing exists when teh will is executed

Question 8

Contractual/conditional wills

Answer 8

Contractual: two people agree to distribute property jointly. either may revoke will in their lifetime if notice is given to other. must be in writing under common law

conditional: will is operative only if testator fails to return or survive. this is a will intended to be valid only upon teh happening of a condition. must determine if its a condition or a will.

Question 9

3 ways to revoke will

Answer 9

A. execute a new will or some other physical act, with
B. intent to revoke.

Question 10

Revocation due to divorce

Answer 10

Generally, a former spouse cannot take under a will executed prior to divorce
exceptions: if spouse dies before divorce is final but divorce decree divides property, provision in the will for surviving spouse are revoked. if parties get remarried, then the spouse will take under teh will.

Question 11

Revival of will (1 will, second drafted that revokes, then second will revoked)

Answer 11

common law> revocation of second revives first,
majority. revocation of second does not revive first
UPC: does not revive first unless testator intended it to.

Question 12

When does a will speak?

Answer 12

At death. Eg. wife says husband gets automobile. at time she wrote will, it was white. when she died, she had a red car. husband gets red car.

Question 13

Lapse and antilapse statute

Answer 13

If beneficiary dies before will, gift to beneficiary will lapse or fail and fall into estate residuary.
Anti-lapse statute: gift goes to deceaseds beneficiary issue if beneficiary and testator were blood relatives, beneficiaries issue survived testator

Question 14

Ademption and exceptions

Answer 14

Ademption: gift fails bc property no longer exists, beneficiary may be entitled to:
A. replacement or substitute property the testator owned
B. unpaid inusranc eproceeds for destroyed/damaged property
C. pecuniary value of property, if sold by conservator

Question 15

Exoneration <estate></estate>

Answer 15

Common law: mortgage on bequeathed real property paid out of estate
majority: beneficiary takes subject to mortgage

Question 16

Slayer statute

Answer 16

A. individual who feloniously and intentionally kills or who is convicted of committing abuse, neglect, or exploitation with respect to the decedent forfeits all benefits with respect to estate.
Usually this is wrong answwer, some element is missing (eg killing was accidental)

Question 17

simultaneous death for decedents

Answer 17

an heir or beneficiary must be alive at time of testators death.
common law rule: any time survived counts.
UPC: one must show that a beneficiary survived testator by at least 120 hours.

Question 18

Abatement (5 in order)

Answer 18

gifts in will must be reduced because not enough assets. in order,
1. intestate property (property not disposed of in will)
2. residuary gifts (all the rest and residue of my estate goes to…”)
3. general gifts (i give $5000 dollars)
4. demonstrative gifts (a gift of fixed dollar amt. with specific instructions or from a specfic fund)
5. specific gifts (identifiable property, “my jewelry”)

Question 19

testaementary intent and mental capacity

Answer 19

testamentary intent: testator must have intended for document to be will.
mental capacity: a testator must know
1. nature and extent of their property,
2. persons who are the natural objects of her bounty,
3. nature of the instrument signed,
4. disposition made

Question 20

Decedent undue influence

Answer 20

a will is invalid if executed as result of undue influence.

wrongdoer exerts such influence over the testator that it overcomes their free will and make a gift that they wouldn’t make. elements:
1. testator susecptible to undue influence
2. influencer had opportunity to exert influence
3. influencer had disposition to exert influence,
4. will appears to be product of this influence.

Question 21

Decedent fraud and mistake

Answer 21

fraud: will or provision in will procured by fraud invalid.
Testator is deceived by misprep and is thereby led to execute a will they would not have otherwise executed.

mistake - clear mistake v unclear mistake. if there is an ambiguity, most states allow extrinsic evidence to clear it up. however, if will is clear, then no reformation allowed. minority say reformation allowed if
clear and convincing evidence of
1. a mistake of fact or law, or
2. the donors intention.

Question 22

Requirements for intervivos gift

Answer 22

1. present intent to give
2. delivery must be made, physical required (symbolic or constructive only if physical is impossible) , and
3. acceptance, which is presumed if gift is of value

Question 23

personal representative duties

Answer 23

1. priority to receive letters from teh court overseeing the estates admin. spouse has first priority if otherwise unnamed. PR is required to post bond.
   inventories property, publishes creditor notices, sells property (needs Court order to sell real property)

Question 24

spouses forced or elective share:

Answer 24

spouse hates will, elects to take against will, usually a third or half of estate.
calculation:
decedents estate + decedents nonprobate transfers to tohers + decedents nonprobate transfers to spouse, + surviving spouses property and nonprobate transfers

Question 25

pretermitted children

Answer 25

1. testator has no children when executing the will, child generally receives an intestate share
2. if hte testator has chidlren when executing the will, child shares in teh childrens gift

Question 26

living will versus durable power of healthcare

Answer 26

living will: describes adults desires regarding medical treatment when they cannot give informed consent
durable health care power: a principals appointment of an agent to make health care decisions for them