Descedent Estaates

Question 1

Key principle #1: Intestate succession explains how property is divided if a person dies without a will (or if the
will is invalidated in part or in whole or does not make a total disposition). It is frequently tested on the MEE.

Answer 1

If the decedent’s spouse and parents do not survive the testator, there are two available schemes to
divide property among the decedent’s children:

per capita at each generation (where all cousins will be
treated alike) or

per capita with representation (modern per stirpes) (where a child will simply take his parent’s share).(cousins not treated a like)

Question 2

Children :

Answer 2

Children- A parent-child relationship must be established for an individual to be classified as issue of another. Under the UPC and the majority of jurisdictions, adoption establishes a parent-child relationship between the stepparent and child, including full inheritance rights in both directionsThe common-law rule was that if a child was born out of wedlock, he could not inherit from his natural father. Most jurisdictions provide that an out-of-wedlock child can inherit from his natural father if (i) the father subsequently married the natural mother, (ii) the father held the child out as his own and either received the child into his home or provided support, (iii) paternity was proven by clear and convincing evidence after the father’s death, or (iv) paternity was adjudicated during the lifetime of the father by a preponderance of the evidence. Further, the Supreme Court has held that a statute is unconstitutional if it denies inheritance rights to a nonmaterial child when paternity has been established during the father’s lifetime

Question 3

Advancements : What is advancements.

Answer 3

Advancements: This is an issue when the decedent dies without a will but gave a child a gift during her
lifetime. The question is: Should the gift be deducted from what the child would inherit under the laws of
intestate succession?

Question 4

How does Advancements work :

Answer 4

CL - treats gift given in lifetime as property to be deducted from intestate share.

Majority law - it is treated as a gift and is not deducted from intestate share.

Question 5

Valid will under majority law:

Different state laws on holographic wills and the dispensing power:

Answer 5

General rule: Many state laws require that the will is in “writing, signed by the testator, and witnessed by
two witnesses.” They also require that the “testator is 18 or older” and “intend that the document is his will.”

Question 6

Mark on the will :

Answer 6

Note: generally, any mark that is made with intent to adopt the will counts as a signature.

Question 7

Halographic wills :

Answer 7

Holographic wills are unwitnessed wills.

Holographic wills are valid if signed and
(according to the UPC and some states) if the material portions are in the testator’s handwriting.

Holographic wills are recognized by about half the states. Mention this doctrine if you see an
unwitnessed will on the MEE.

Wisconsin does not recognize holographic wills

Question 8

Halographic wills overview :

Answer 8

Unwitnessed wills, recognized but half states, valid if majority is in testators handwriting.Wisconsin doesn’t recognize holographic wills.

Question 9

Dispensing power of the court to validate the will:

Answer 9

the 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 manifests an intent to incorporate the writing and the writing is identified with reasonable
certainty.

This writing must exist at the time the will is executed. (The UPC and some states recognize the right of a testator to dispose of tangible personal property by a signed memorandum, 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

Incorporation by reference elements :

A will may incorporate by reference another writing not executed with testamentary formalities, provided the other writing meets three requirements:

Answer 11

(i) it EXISTED at the time the will was executed;

(ii) the testator INTENDED the writing to be incorporated; and

(iii) the writing is DESCRIBED in the will with “sufficient certainty” so as to permit its identification.

Question 12

Revocation elements :

A will may be revoked wholly or partially in three ways:

Answer 12

1) by subsequent writings, by physical destruction of the will, or by operation of law. Physical destruction may take the form of burning any portion of the will or canceling, tearing, obliterating, or destroying amaterial portion of the will with the intent to revoke it. Both the act and a simultaneous intent to revoke must be proven to yield a valid revocation.

Question 13

Other revocation :

Dependent relative revocation:

Divorce and revocation :

Answer 13

Dependent relative revocation: Under this doctrine, a first will is not 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 of the will is ineffective if it appears that the testator would not have revoked the bequest had the testator had accurate information.

• Divorce: Divorce revokes gifts in favor of a spouse. Note: there actually needs to be a divorce (or
  annulment)—not just a filing of divorce.

Question 14

beneficiary predeceases the testator:

Lapse and Anti Lapse :

Answer 14

General rule is that if a beneficiary does not survive the testator, the gift will lapse or fail and fall into the residuary.

However, all states have antilapse
statutes (which keep gifts in the family).

Elements :
1) related by blood (not spouses) to the testator
“within a certain degree of relationship” and had
“issue who survived”, the gift to the deceased beneficiary is saved and the beneficiary’s issue will take in
lieu of the beneficiary.

Question 15

Slayer stature :

Usually does not apply because killing was not “Felonious and Intentional”

Accidental, or murdered someone other than descendent not barred.

Answer 15

An individual 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 with respect
to the decedent’s estate (including an intestate share, an elective share, an omitted spouse’s or child’s
share, etc.).

Voluntary manslaughter is a form of a felonious and intentional killing.

Note that if a beneficiary accidentally kills the decedent (even if it rises to involuntary manslaughter), the slayer rule does not bar a gift. Nor does it apply if the slayer murdered someone other than the decedent. Note:
when this is tested on the MEE, generally this doctrine does not bar a gift to the slayer (usually because the
killing is not “felonious and intentional!).”

Question 16

Ademption :

Gift fails because it no longer exists, replacement or insurance proceeds not claim - that person takes :

Answer 16

If specifically devised property (i.e.,
property that is specifically described in the will) is not in the testator’s estate when the testator dies, the
bequest adeems—i.e., the gift fails.

Under many statutes, if the testator replaced the property, or if there
were insurance proceeds unpaid at death, then the beneficiary would receive that in place of the
property.

Question 17

Disclaimer :

Treated as predeceased the testator, anti-lapse statue may apply.

Answer 17

Disclaimed property (property that a beneficiary does not want) will pass as if the person disclaiming had failed to survive the testator.

An 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

Abatement order :

Answer 19

life insurance aren’t probate assets; specific devices are last to abate,

So intestesate, residuary, general specific, done so pro rata proportionally “equally”

Question 20

Key principle #5: Virtually every time that mental capacity or undue influence has been tested, the best answer is that the testator did have capacity and there was not undue influence present to invalidate the gift. However, remember that this is very fact-specific.

Answer 20

Mental capacity: A testator must have capacity to execute a will. The burden of proving that the testator
lacks mental capacity rests on the contestant. A testator meets this requirement if the testator knows (1)
the nature and extent of his property, (2) the persons who are the natural objects of the testator’s bounty
(i.e., family members), (3) the nature of the instrument that the testator is signing, and (4) the disposition
that is being made in the will.

Question 21

Undue influence :

Answer 21

Undue influence: This 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 that he would otherwise not have
made. The burden of establishing undue influence is generally on the will contestant who must show the
following (mnemonic=SODA): (1) the testator was susceptible to undue influence, (2) the alleged
influencer had the opportunity to exert undue influence, (3) the alleged influencer had a disposition to
exert undue influence, and (4) the will appears to be a product of undue influence. Most courts only
invalidate portions that are infected by undue influence.

Question 22

Codicils :

republishes the will as of the date of the will.

A valid codicil may validate an otherwise invalid will.

Answer 22

A codicil is a supplement to a will that alters, amends, or modifies it. A codicil must be executed with the same formalities as a will. A validly executed codicil republishes the will as of the date of the codicil.-

A validly executed codicil may validate an invalid will if the codicil refers to the will with sufficient certainty to identify and incorporate it, or if the codicil is on the same paper as the invalid will.

A will may incorporate by reference another writing provided the other writing existed at the time the will was executed, is intended to be incorporated, and is described in the will withsufficient certainty so as to permit its identif

Question 23

Stock Dividend :

Modern approach, stock dividend is treated differently from stock given

Answer 23

At common law, a stock dividend is a property interest distinct from stock given by a specific bequest.

A bequest of stock owned by a testator when the testator’s will is signed excludes subsequently acquired shares of the same stock. A bequest of a certain number of shares is deemed to include any additional shares of that security acquired by reason of a stock split, reinvestment, or merger initiated by the original security. However, the beneficiary is not entitled to any pre-death cash dividends or distributions.-

Under common law, a bequest of stock owned by a testator when the testator’s will was signed excluded subsequently acquired shares of the same stock. Many states held that a stock dividend is a property interest distinct from stock given by the specific bequest. Under the modern UPC approach, a stock dividend is treated like a stock split instead of a cash dividend.

Question 24

Life insurance policy :

Take under the contract, proceeds are not part of estate unless the are payable to the estate.

Answer 24

A beneficiary of a life insurance policy takes by virtue of the insurance contract.

The proceeds are not part of the decedent’s estate, unless they are payable to the estate as beneficiary. Life insurance policies typically provide that proceeds will only be paid to a beneficiary named on an appropriate form filed with the insurance company;

other possible methods of changing a beneficiary are thus viewed as being excluded by the insurance contract.

However, some courts have upheld a beneficiary change by will if the insurance company does not object.