Decedents' Estates / Wills

Question 1

Intestate Succession - when no spouse & parents (has children)

Answer 1

When person dies without a will (or if will is invalidated in whole or in part or does not make a total disposition) and only person’s children survive, there are 2 available schemes to divide property. 1. Per Capita at Each Generation 2. Per Capita with Representation (modern per stirpes)

Question 2

Per Capita with Representation (modern per stirpes)

Answer 2

Majority - cousins not treated alike Divide shares equally at first generation with living takers E.g. Each living person takes a share and each share of a deceased person at that level passes to her descendants Ex. X dies intestate, has 3 children (A B C), Only A is alive. A takes 1/3, B’s children share 1/3, C’s children share 1/3.

Question 3

Per Capita at each generation

Answer 3

UPC - cousins treated alike Divided at first generation with living takers, but shares of deceased are combined and divided equally among takers at the next level. (i.e. not penalized for having bigger fam) ex. X dies intestate, has 3 children (A B C), Only A is alive. A takes 1/3, remaining 2/3 is dividing equally among B and Cs children.

Question 4

Intestate succession - no spouse and children

Answer 4

Civil Law Consanguinity Method: Heirship is determined by degree of relationship: all persons of the same degree of relationship to the decedent take equal shares (uncle niece entitled to equal shares) UPC: Parentelic Method - Descendants of the decedent’s parents take to the exclusion of descendant’s of the decedent’s grandparents (niece would be heir but not uncle)

Question 5

Intestate Succession - What is a child?

Answer 5

Child for purposes of intestate succession includes adopted children, children born out of wedlock, and half-bloods (but not step children!)

Question 6

Intestate Succession - Advancements

Answer 6

Issue when decdent dies without a will but gave a child a gift during her lifetime. Whether that gift should be deducted from what the child would inherit depends on: Common Law: taken into account Majority: ignored unless intent UPC - Ademption by Satisfaction: A lifetime gift is not prepayment unless 1) will says so, 2) testator declares in contemporaneous writing, or 3) devisee acknowledges in writing that gift is in satisfaction

Question 7

Execution of a Valid Will - WSW2

Answer 7

Majority Law: Requires that the will is 1) in writing, 2) signed by the testator (any mark), and 3) witnessed by 2 witnesses. Testator must be 18 and intend that the document is his will.

Question 8

Holographic Wills

Answer 8

Holographic Wills are unwitnessed wills. Valid if: 1) signed and 2) if the material portions are in the testator’s handwriting. Recognized by half the states & UPC

Question 9

Dispensing Power

Answer 9

UPC adopts the dispensing power under which a court can validate a will so long as there is clear and convincing evidence that the decedent intended the document to be her will.

Question 10

Incorporation by Reference

Answer 10

A writing that is not valid as a will may be incorporated by reference into a will if the will 1) manifests intent to incorporate the writing and 2) the writing is indentified with reasonable certainty. Writing must exist at the time the will is executed. UPC and some state recognize the right of a testator to dispose of tangible personal property by a signed memo, whether it is prepared before or after the execution of the will, even if it does not comply with the formalities of a will.

Question 11

Will Revocation by physical act

Answer 11

(e.g. by execution of a new will or by some other physical act, such as cancellation or other writings on the will. This must be done with the intent to revoke the will. The testator or someone acting at the testator’s direction and in his “conscious presence” may revoke the will.

Question 12

Dependent Relative Revocation of Will

Answer 12

Under this doctrine, a first will isn’t revoked if a later will is found invalid. Essentially, if a testator revokes a will or bequest based on a mistaken assumption of law or fact, the revocation is ineffective if it appears that the testator wouldn’t have revoked the bequest had the testator had accurate information.

Question 13

Revocation of Will by Divorce

Answer 13

Divorce revokes gifts in favor of a spouse. There actually needs to be a divorce (or annulment) - not just a filing of divorce.

Question 14

Beneficiary Predeceases Testator / Antilapse

Answer 14

If a beneficiary does not survive the testator, the gift will lapse or fail and fall into the residuary. All states have antilapse statutes where typically: if dead beneficiary is testator’s blood relative within a certain degree and had issue who survived, the gift is saved and the issue will take in beneficiary’s place.

Question 15

Slayer Statute

Answer 15

A person who feloniously and intentionally kills the decedent, (or who is convicted of committing abuse, neglect, or exploitation with respect to the decedent), forfeits all benefits of the estate (including intestate share, elective share, etc.) This includes voluntary manslaughter. If a beneficiary accidentally kills the decedent, the slayer rule will not bar a gift. Nor does it apply if the slayer murdered someone other than the decedent.

Question 16

When a gift fails because the property no longer exists - ademption

Answer 16

If specifically devised property is not in the testator’s estate when the testator dies, the bequest adeems - i.e. the gift fails. Under may statutes, if the testator replaced the property, or if there were insurance proceeds unpaid at death, the beneficiary would receive that in place of the property.

Question 17

Disclaimers

Answer 17

Disclaimed property (property that a beneficiary does not want) will pass as if the person disclaiming had failed to survive the testator. Antilapse statute may apply; otherwise, the gift will fall into the residuary.

Question 18

Abatement

Answer 18

When the assets of an estate are insufficient to satisfy all the gifts made by someone’s will, then the gifts to the beneficiaries will be reduced (abated) in the following order: intestate property, residuary gifts, general gifts, and specific gifts.

Question 19

Mental Capacity can Invalidate a gift (not likely) - NEPID

Answer 19

A testator must have capacity to execute a will. The burden of proving that the testator lacks mental capacity rests on the contestant.

Testator has capacity if testator knows:

1. the nature and extent of his property,
2. the persons who are the natural objects of the testator’s bounty (fam members),
3. the nature of the instrument he is signing, and
4. the disposition that is being made in the will.

Question 20

Undue Influence can invalidate a gift (not likely) - SODA

Answer 20

Undue influence is present when the wrongdoer exerts such influence over the testator that it overcomes the testator’s free will and causes the testator to make a gift he would otherwise not have made.

Burden is on the contestant who much show (SODA):

1. the testator was Susceptible to UI,
2. the alleged influencer had Opportunity to exert UI,
3. alleged influencer had a Disposition to exert UI, and
4. the will Appears to be a product of UI Courts will only invalidate the portions that are infected by UI

Question 21

Fraud can invalidate a gift in a wil:

Answer 21

To show fraud, the will contestant must show that:

1. there was a knowingly false representation of material fact
2. the representation was made to induce the testator to write a will in a particular way; and
3. the testator reasonably believed and relied on the statement in making the will.

Question 22

No-Contest Clause

Answer 22

Under the UPC and in most state, no-contest clauses are enforceable. The provision is only given effect if the beneificiary had no reasonable basis for contesting the will.

However if contest is made in good faith and on the basis of probable cause, a court will find that the beneficiary did not violate the no-contest clause.