Descendants Estates

Question 1

Intestate Succession

Answer 1

Intestate statutory distribution occurs when:

1. the D had no will;
2. the T’s will was denied probate
3. T’s will did not dispose of T’s entire estate (lacked residuary); or
4. The residuary bequest lapsed (I DROPS)

Question 2

Martial Rights–Who owns the property before death

Answer 2

Law of the domicile at the time of the property is acquired; rights to not change as the couple moves to different state

Question 3

Which state’s intestacy law applies to personal property

Answer 3

The law of intestate domicile at death

Question 4

Who does intestate distribution favor?

Answer 4

D’s surviving spouse and children. Children include marital, non-martial and adopted children.

Question 5

What is the residuary clause of a will or trust?

Answer 5

RC inserted in will or trust indicates T’s strong intent that T’s property NOT pass under intestacy.

• most states: where W’s residuary is left to two or more or where the W does not have a RC but names two or more legatees and one legatee predecease T, then legatee’s share does not fall into intestacy but passes to the other co-residuary.
• common law and some states: no residue or a residue is not recognized. So legatee 1 would get share, but predeceased L’s share passes intestacy.

Question 6

If the T is survived by Spouse and Children, no will, what how is estate distributed?

Answer 6

Spouse takes first $50K and one of what’s left.

Children take the other have of the residuary.

Question 7

What happens to estate when D is survived by children and descendants of predeceased children (NY)

Answer 7

Per capita at each generation (pooling) So estate is split equally at generation w/ surviving D, then drops and split equally.

Question 8

How would Probate distribute D’s estate per capita by representation?

Answer 8

1. Divide equally among members of first generation where there is a living descendant
2. the share for deceased D, passes to their issue and split equally amongst THEIR issue
3. No pooling

Question 9

Proper execution of a Will- SWEPT

Answer 9

Majority: require adherence to SWEPT. Non-probate assets, don’t require SWEPT.

S: Signed by an adult

W: In Writing

E: Signed at the END of the will (majority)

P: PUBLISHED that it is T’s will, and

T: TWO witnesses must sign in T’s presence.

Question 10

BLA2H

Answer 10

Will should also include:

B: A BURIAL authorization;

L: A LIVING Will, indicating T’s desires for medical treatment if T becomes incapacitated;

A: Durable Power of ATTORNEY appointing agent to act if principal is incapacitated. In ½ states, in order to be “durable”, the PoA must specifically declare: “this POA shall not be affected by the subsequent disability of the principal. Other ½ impliedly make PoAs automatically durable

A: Decedent’s Digital Accounts: in 44 states, an executor’s or trustee’s access to a decedents online accounts containing D’s sensitive electronic communications are governed by 3 step approach:

1. If user’s account expressly provides a “user tool” for access by 3rd party, this prevails over anything contrary.
2. If the only device was not utilized, then a provision in user’s will, etc. will govern if it gives explicit consent; or
3. If nothing provided-→ look to the general terms of server’s agreement.

H: a HEALTHCARE proxy appointing someone to make medical decisions for T if T incapacitated. Immune from civil suit actions

Question 11

Can someone else sign for T if T is incapacitated?

Answer 11

Majority: yes, but at T’s direction and in T’s line of vision. some states require signers signature on the will

UPC and Minority: Conscious presence of the signing witness (in line of sight not required if within T’s hearing)

Question 12

Holographic Wills

Answer 12

27 states recognize.

Majority of 27: written and signed in T’s handwriting

Minority: typewritten ok as long as material parts are in T’s handwriting

Question 13

Is an attestation clause required for a will to be valid?

Answer 13

No, but A C gives rise to rebuttal presumption of SWEPT compliance, allowing the proponent of the W to move for summary judgment, thus shifting the burden of production to caveator.

When A oversees a will’s execution a presumption of proper execution arises.

Question 14

What are self-proving wills?

Answer 14

Wills in which T and witnesses execute a notarized affidavit detailing SWEPT procedures followed.

UPC→ conclusive presumption that the signature requirements have been met, and rebuttal presumption that other SWEPT requirements were met.

Question 15

Does T need to sign in the presence of two witnesses?

Answer 15

No, but highly recommended. If not, T may show his signature and acknowledge his signature.

Witnesses MUST sign in presence of T.

UPC and minority: Witnesses must sign within a reasonable time, even after T’s death as long as they witnesses or heard T acknowledge signature

Question 16

Does UPC require witnesses signature?

Answer 16

Nope. Valid if signed by two witnesses or by a notary.

Question 17

What is publishing a will?

Answer 17

T must publish the will (declare that the document is T’s will). Satisfied if witnesses in fact know they are witnessing T sign his will.

Question 18

What if only one witness signs?

Answer 18

Majority: Will not valid

12 states and UPC: Harmless Error Rule

HER: Based on T’s intent. Thus if SWEPT not satisfied then under UPC the court may admit to probate and distribute if there is CLEAR and CONVINCING evidence that T intended the document as will.

Question 19

Interested Witness

Answer 19

If B named in T’s will is also a witness, the will is still valid but the witness forfeits bequest, unless he is intestate distribute and receives more if it passes intestate.

If at the time of execution there were at least two other disinterested witnesses, then interested witness does not lose bequest b/c her testimony is not necessary to establish will.

UPC DOES NOT RECOGNIZE IW. If in will, acted as a witness, and is B, all good!

Question 20

When is a interested witness (IW) not disqualified?

Answer 20

1. B was a witness to Will, but no bequest. Codicil republished the W and B is now interested W. OK so long as B did not sign codicil.
   
   1. acting as a trustee or executor since the commissions are deemed compensation for services and not a bequest.

Question 21

Incorporation by Reference

Answer 21

Majority: Allow an existing (even unsigned) document that was not present when the will was executed but was specifically referenced in a will, to become part of will

UPC and minority: allow a document executed even after the will to dispose of “tangible personal property”. Requires the subsequent doc to be signed by T, and cannot contradict a will provision.

IBR (properly executed) can incorporate a defectively executed will.

Question 22

Amending a will with SWEPT Codicil

Answer 22

Codicil edits or supps an existing will and republishes the will on the date codicil was SWEPT

W & C are considered a single instrument for determining INTENT

Question 23

When will a codicil revive an earlier will?

Answer 23

1. expressly or impliedly revoked by a subsequent will, OR
2. in those states that recognize the doctrine of IBR, defectively executed will.

C will not republish a prior will bequest if it would be inconsistent with T’s expressed intent.

Question 24

Revocation of a Will

Answer 24

A will can be revoked by:

1. in a subsequent will either expressly or impliedly by inconsistency
2. By the T destroying by “tearing up, burning, cutting, canceling or obliterating” the entire will

• 3rd Party make revoke if it is at T’s direction and in T’s presence
• When will was in T’s possession, but found to be revoked by physical act, there is a strong presumption T revoked it.

Question 25

May a will be partially revoked?

Answer 25

• Minority of states and UPC allow by allowing unsigned partial revocation of a sentence or paragraph.
• Some states: require partial revocation to be initialed or signed by t
• When will was known to be in T’s possession, there is a presumption T made the changes. Rebuttal by sufficient contrary evidence.
• Majority that allow PR, prohibit addition of words w/o re-executing
• Minority of states (including NY) prohibit partial revocation

Question 26

Revival of Will

Answer 26

If a subsequent will (#2) revoked will #1, revocation of will #2 WILL NOT revive will #1.

Only a few states recognize REVIVAL DOCTRINE

Question 27

Lost Wills

Answer 27

If T’s will was last known to be in T’s possession but cannot be found, a presumption arises that T destroyed it unless its absence can be explained by clear and convincing evidence.

To rebut presumption, must show:

1. It was duly SWEPT;
2. it probably was not destroyed (T’s house burned down); and
3. The content of the will usually by:
   
   1. the testimony of anyone who read the will OR
   2. an unexecuted copy of that will. Thus, no witness testimony required to probate

Question 28

Contesting a Will’s Validity

Answer 28

A will’s validity can be contested based on DIET:

1. Deceit (fraud)
2. Undue INFLUENCE
3. Improper EXECUTION
4. T’s lack of Testamentary Capacity

Question 29

Who has standing to contest Will?

Answer 29

Only an intestate distributed or a B under a prior will who is now adversely affected by the more recent will.

Question 30

Deceit (Fraud)

Answer 30

There are two types of fraud arising from T’s reliance on a material misrepresentation made with an intent to deceive T:

1. Fraud in the inducement, OR
2. Fraud in content

CT may either excise just the provision that was product of fraud or undue influence, or void entire will

Majority: the burden of proof for deceit, UI, or capacity is on the party asserting it. The proponent has the burden of proving SWEPT.

Question 31

Undue Influence

Answer 31

UI by a will B is unfair psychological persuasion exerted on T to be named as a B in T’s will. It involves the misuse of a position of trust and confidence that overcame the T’s free will, resulting in T making a bequest that T would not have made if left alone.

To prove UI, must show:

1. T was susceptible to UI (sick, old, weak);
2. the person exerting the influence had the opportunity to do so;
3. the person exerting had the disposition (motive and inclination); and
4. T’s will was executed favorably to the one accused of UI.

Question 32

Lack of Testamentary Capacity

Answer 32

• T must be 18 years old;
• of sound mind so that w/o prompting T understands the extent of T’s estate;
• T knows the natural objects of her bounty; and
• awareness she is executing W.

TC focuses on T’s mental condition at the time of execution, regardless of T’s state of mind prior or subsequent to the W’s execution

Question 33

What events, subsequent to the will’s execution, effect distribution?

Answer 33

DAMN CAR LAW

• DAMN: Divorce, After-Born Child, Marriage, No Contest Clause
• CAR: Charitable bequests, Advancement of a bequest, Renunciation
• LAW: Lapsed Legacies (remember anti-lapse), Ademption or Abatement, Wrongfully killing T

Question 34

How does Divorce affect T’s estate?

Answer 34

• Majority of states have default statutes that provide that if T is named in a judgment of divorce or annulment, the judgment automatically revokes bequests to T’s former spouse
• UPC: Above + it revokes a bequest to former spouse’s relative named in T’s will, but also named in any TRIP JAW (Totten Trust bank account, Revocable lifetime trust, Life Insurance, Pension plan, Jointly held real property, Power of Attorney, Spouse’s W) document on the theory that the D would want that result
• Judgment in divorce or annulment treats former spouse, and under UPC former relatives, as predeceasing the T

Question 35

After-Born Children

Answer 35

Children that are born after a will is executed, whether non-martial, marital or adopted, are not disinherited unless T expressly disinherits.

1. If T had no children when executed W, then absent contrary language in T’s will, then ABC is entitled to an intestate share of T’s estate as a pretermitted child, unless T otherwise provided for ABC with beneficial transfers outside the will
2. If T had children and provided for them in the will, then any ABC will share ratably with the ABC
3. s siblings’ total bequests, unless T otherwise provided for the ABC with beneficial transfer outside the will
4. If T had children when W executed and either expressly disinherits or simply made no bequest for them, then a child born thereafter, is not entitled to anything

Minority of states have adopted UPC rule that where T leaves all or substantially all of T’s estate to ABC’s parent, ABC’s right defeated.

Question 36

A non-marital child is entitled to inherit:

Answer 36

1. through intestacy;
2. through a testamentary class bequest naming “T’s children”
3. under the anti lapse statute
4. as an ABC if born after T executed will

Can inherit from (1) and (2):

1. birth mother and her heirs; or
2. biological father and heirs, but only if father
   
   1. acknowledged paternity
      
      1. paternity establish by clear and convincing evidence (DNA test, openly and notoriously acknowledged)
      2. Acknowledgements are binding under fed. law if not challenged within 60 days

Absent contrary language in instruct, N-M Children are treated equally to marital children.

Question 37

Marriage

Answer 37

T’s surviving spouse has the right to elect the great of $50K or a fraction (⅓ or ½ depending on state) of T’s “net probate estate,” which consists of T’s property located inside or outside T’s state of domicile.

Question 38

When can the right of election be excerised?

Answer 38

ROE may be exercised regardless of whether D left a will. Spouse may specifically waive her ROE (prenup or separation agreement)

Question 39

Minority position on right of election

Answer 39

9 states recognize community property law where each spouse gets a vested 50% of all marital property, but there is no right of election.

In 25 states and under the UPC: the right of election value is determined by whether the D’s net testate or intestate is augmented by the value of any non-probable assets: JAG TIP

Question 40

JAG TIP

Answer 40

J: Post marriage JOINTLY held bank accounts, brokerage accounts, personal property, or US savings bonds, but only to the extent the consideration was furnished by the D.

A: Stock brokerage ACCOUNTS payable on death (recognized by more than half states)

G: Gifts causa Mortis

T: TOTTEN TRUST bank accounts or revocable lifetime trusts which are owned 100% by the depositor but held in trust for a named B. Many of the 16 states that no do augment the net probate estate with T substitutes allow the SS to elect against such trusts under the illusory transfer doctrine.

I: INTER VIVOS GIFTS exceeding $15K if made within 1 year prior to death

P: Assets in trust over which D during her lifetime held a general POWER OF APPOINTMENT to appoint the trust property to anyone

Life insurance policies are not T subs, and are not added to net estate for determining right of election

Question 41

How to determine the elective share in majority?

Answer 41

Take the net probate estate and then add all the JAG TIP T subs.

Divide this total figure by ⅓ to get the elective share.

Subtract from that amount the value of any T Subs plus any testate or intestate property passing to the surviving spouse.

NOTE: SS must exercise the ROE by serving the estate and filing with the probate court usually within 9 months from D’s death

Question 42

Inter Vivos Advancement

Answer 42

A valid inter vivid advancement of a intestate share or a lifetime gift in satisfaction of a testamentary bequest must be:

(1) documented in writing,
(2) executed contemporaneously by the donor evidencing advancement intent (UPC does not require writing to be contemporaneous)

Majority: NO ORAL ADVANCEMENTS

A valid testate satisfaction or intestate advancement on an existing will is extinguished if a new will or codicil is executed after the ad. or satisfaction is executed. The terms of the new document control, and the Ad. no longer considered

Question 43

Renunciation

Answer 43

R allows a surviving spouse B of a JAG TOP or TRIP JAW testamentary substitute, life insurance policy, life estate, will bequest, or intestate share to decline all or part of it. A survivor of a real estate joint tenancy, joint bank account, etc. can renounce her survivorship interest regardless of survivor’s contribution to the jointly held property

Question 44

Conditions of a renunciation

Answer 44

1. R cannot be made once the renouncing party has accepted the property
2. a signed renunciation must be filed with the probate court and with the estate’s rep. within 9 months of D’s death
3. R party is treated as if she died immediately before the T.
   
   1. A R of a life estate immediately accelerates the remainder interest

Question 45

Lapsed Legacies

Answer 45

If a will B dies during the T’s lifetime, the gift to him lapses.

Nearly all states have anti-lapse statutes that operate to save the gift if the predeceasing B (1) was in a specified degree of relationship to the T and (2) left descendants who survived the T.

The B’s descendants take by substitution. In several states, the anti-lapse state applies only when the predeceasing B was a descendant of the T.

Some states and the UPC extend the application of the statute to any predeceasing B who is the T’s stepchild, grandparent or descendant of GP

Question 46

CL No Residue of Residue

Answer 46

At CL and in some states, the share devised to a predeceased B does not pass to the remaining Bs. Instead, the lapsed residuary gift falls out of the will and pass under the intestacy statutes to the T’s heirs.

Question 47

Majority Rule–Surviving Residuary Bs Take

Answer 47

Most states have replaced no residue of a residue rule with a statutory rule under which the residuary Bs who survive the T take the deceased B’s share of the residuary estate. If the residue is devised to two or more persons and the share of one of them fails for any reason, absent contrary will provision, his share passes to the other residuary Bs in proportion to their interests in residue.

Question 48

Lapsed Legagies Rule

Answer 48

If a will b or a B named in any TRIP JAW document predeceases the T, the bequest fails and lapses back into T’s estate, if the B uses I DROPS

Question 49

I DROPS

Answer 49

I: Interrorem Clause

D: A B was DIVORCED from the T or the marriage was annulled.

R: the B RENOUNCED that interest in TRIP JAW document within 9 months

O: The B survived ONE HUNDRED AND TWENTY HOURS after the D’s death

P:the B PREDECEASES the T

S:SLAYS, except if done in SIN: self-defense, insanity, negligent killing

Question 50

Ademption

Answer 50

Under the doctrine of ademption, when specifically bequeathed property is not in the testator’s estate at death (destroyed, sold, given away), the bequest is deemed. Ademption applies because the property that was to have satisfied the bequest was not owned by the T at her death.

Only applies to specific devises and bequests

Question 51

Specific legacy

Answer 51

Ademption only applies to specific devises and bequests. A specific legacy is a gift of property that is particularly designated and is to be satisfied only by the receipt of the particular property described.

Question 52

Majority and minority views on Ademption

Answer 52

Majority: apply the rigid common law “identity theory” of ademption, where a B receives nothing if the exact piece of property of the specific disposition is no longer in T’ estate.

Minority: adopt the UPC intent theory, whereby the devise fails unless clear evidence establishes that failure would be inconsistent w/ T’s intent. Thus under the UPC, any real or personal property owned at death that was acquired as replacement property for a specific bequest passes to the named B. If lost, stolen, etc. and insured by T and insurance proceeds had not been paid until after death, the specific legatee receives the insurance proceeds.

Question 53

Does ademption apply to general legacies or to demonstrative legacies?

Answer 53

No. Other property in the estate must be sold, if necessary, to satisfy the general legacy.

“My”: specific–ademption

Shares of Acme stock: General– no ademption

Question 54

Abatement

Answer 54

Abatement is the method applied when there are insufficient estate assets to pay all of T’s bequests, after T’s estate has paid off debts and administrative expenses. Abatement occurs when T makes too many general bequests, which when added together, exceed T’s net estate available for distribution. It usually involves the reduction and/or elimination of bequests in a will in order to pay estate’s debts.

Question 55

Abatement Order

Answer 55

1. property passing intestacy
2. the residuary estate
3. general legacies, which abate pro rata
4. specific devises and bequests