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Bar Prep > Essay 11. Wills & Estates > Flashcards

Essay 11. Wills & Estates Flashcards

1
Q

Issue Overview

Wills & Estates

MEE

A
  1. Personal Representative
  2. Intestacy
  3. Execution of Wills
  4. Revocation
  5. Construction
  6. Power to Transfer
  7. Will Contests
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2
Q

Personal Representative

Wills & Estates

MEE

A
  • Responsible for executing a will
  • Often named in the will, but if not, the court will “fill the gap”
  • By default, decedent’s suriviving spouse is first in line to be appointed
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3
Q

Intestacy

Wills & Estates

MEE

A

If a person dies without a valid will, the estate will be distributed following the intestacy rules

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4
Q

Intestacy

Uniform Probate Code (UPC) Approach

Wills & Estates

MEE

A
  1. Spouse + Shared Kids = 100% to Spouse
  2. Spouse + Parents = $300k + 75% to Spouse
  3. Spouse + Shared Kids + Spouse’s Kids = $225k + 50% to Spouse
  4. Spouse + Decedant’s Kids = $150k + 50% to Spouse
  5. Spouse = 100% to Spouse
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5
Q

Intestacy

Community Property Rules

Wills & Estates

MEE

A

DO NOT APPLY UNLESS EXAM SAYS COMMUNITY PROPERTY JURISDICTION

At death, the surviving spouse is entitled to:
* Their own 1/2 of the CP; AND
* The decedent’s 1/2 of the CP

Result = Spouse takes 100% of CP

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6
Q

Intestacy

Surviving Spouse

Wills & Estates

MEE

A

To be entitled to take under an intestacy statute, the surviving spouse generally must have been legally married to the decedent

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7
Q

Intestacy > Surviving Spouse

Putative Spouse

Wills & Estates

MEE

A

Even if a marriage is not valid, as long as one party believes in good faith in its validity, the spouses are termed putative and qualify as spouses for inheritance purposes

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8
Q

Intestacy > Surviving Spouse

UPC Approach

Wills & Estates

MEE

A

The surviving spouse must be legally married to the decedent at the time of death, and there must be clear and convincing evidence that he/she outlived the decedent by 120 hours to take by intestact

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9
Q

Intestacy

Issue

Wills & Estates

MEE

A

Issue refers to lineal descendants of the testator, including children, grandchildren, and great-grandchildren

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10
Q

Intestacy > Issue

Adoption

Wills & Estates

MEE

A
  • Adoption generally curtails all inheritance rights between the natural parents and the child
  • Adopted children take the same as a natural child
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11
Q

Intestacy > Issue

Non-Marital Children - Common Law Rule

Wills & Estates

MEE

A

If a child was born out of wedlock, then the child could not inherit from the father through intestacy

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12
Q

Intestacy > Issue

Non-Marital Children - Modern Trend

Wills & Estates

MEE

A

Out of wedlock child cannot inherit from their natural father UNLESS:
1. The father subsequently married the natural mother;
2. The father held the child out as his own and either received the child into his home or provided support;
3. Paternity was proven by clear and convincing evidence after the father’s death; OR
4. Paternity was adjudicated during the lifetime of the father by a preponderance of the evidence

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13
Q

Intestacy

Calculating Shares

Wills & Estates

MEE

A
  1. Per Capita at Each Generation (UPC)
  2. Per Capita with Representation
  3. Per Stirpes
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14
Q

Intestacy > Calculating Shares

Per Capital at Each Generation

Wills & Estates

MEE

A

Property is divided into as many equal shares as there are members of the nearest generation of issue who survive the decedent and deceased members of that generation with issue who survive the decedent

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15
Q

Intestacy > Calculating Shares

Per Capita with Representation

Wills & Estates

MEE

A
  • If the surviving issue are not of equal kinship, the property is divided at the first generation in which at least one member survives the decedent
  • The shares that would go to the member that predeceased the decedent would go to his/her issue
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16
Q

Intestacy > Calculating Shares

Per Stirpes

Wills & Estates

MEE

A
  • The surviving issue take in equal portions the share that their deceased ancestory would have taken, if living
  • The estate is first divided into the total number of children of the ancestor who survive or leave issue who survive
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17
Q

Intestacy > Calculating Shares

Ancestors and Remote Collaterals

Wills & Estates

MEE

A

If no surviving spouse or issue exist, then the property may be distributed to:
* Decedent’s ancestors; AND
* More remote collateral relatives

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18
Q

Intestacy > Calculating Shares

Ancestors and Remote Collaterals - UPC Approach

Wills & Estates

MEE

A
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19
Q

Execution of Wills

Wills & Estates

MEE

A
  1. Capacity
  2. Intent
  3. Attested Will
  4. Compliance
  5. Holographic Wills
  6. Codicils
  7. Will Substitute - Deed
  8. Conflict of Laws
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20
Q

Execution of Wills

Capacity

Wills & Estates

MEE

A
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21
Q

Execution of Wills > Capacity

Elements of Mental Capacity

Wills & Estates

MEE

A
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22
Q

Execution of Wills

Testamentary Intent

Wills & Estates

MEE

A
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23
Q

Execution of Wills

Attested (Witnessed) Wills

Wills & Estates

MEE

A
  1. Writing & Signature
  2. Witnesses
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24
Q

Execution of Wills > Attested (Witnessed) Wills

Writing & Signature

Wills & Estates

MEE

A
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25
# Execution of Wills > Attested (Witnessed) Wills Witnesses | Wills & Estates ## Footnote MEE
26
# Execution of Wills > Attested (Witnessed) Wills > Witnesses Interested Witness Problem | Wills & Estates ## Footnote MEE
27
# Execution of Wills Compliance | Wills & Estates ## Footnote MEE
28
# Execution of Wills Holographic Wills | Wills & Estates ## Footnote MEE
29
# Execution of Wills Codicils | Wills & Estates ## Footnote MEE
30
# Execution of Wills > Codicils Republication Date | Wills & Estates ## Footnote MEE
31
# Execution of Wills > Codicils Cure Invalid Will | Wills & Estates ## Footnote MEE
32
# Execution of Wills > Codicils Attested Will & Holographic Codicil | Wills & Estates ## Footnote MEE
33
# Execution of Wills Conditional Wills | Wills & Estates ## Footnote MEE
34
# Execution of Wills Will Substitutes | Wills & Estates ## Footnote MEE
1. Trusts 2. Pour-Over Wills 3. Deeds
35
# Execution of Wills > Will Substitutes Trusts | Wills & Estates ## Footnote MEE
36
# Execution of Wills > Will Substitutes Pour-Over Wills | Wills & Estates ## Footnote MEE
37
# Execution of Wills > Will Substitutes Deeds | Wills & Estates ## Footnote MEE
38
# Execution of Wills Conlict of Laws | Wills & Estates ## Footnote MEE
39
Revocation | Wills & Estates ## Footnote MEE
40
# Revocation Subsequent Instrument | Wills & Estates ## Footnote MEE
41
# Revocation Physical Destruction | Wills & Estates ## Footnote MEE
42
# Revocation Revocation by Operation of Law - Divorce | Wills & Estates ## Footnote MEE
43
# Revocation Alteration | Wills & Estates ## Footnote MEE
44
# Revocation Holographic Wills | Wills & Estates ## Footnote MEE
45
Revival | Wills & Estates ## Footnote MEE
1. Republication 2. Dependent Relative Revocation (DRR)
46
# Revival Republication | Wills & Estates ## Footnote MEE
47
# Revival Dependent Relative Revocation (DRR) | Wills & Estates ## Footnote MEE
48
Construction | Wills & Estates ## Footnote MEE
1. Integration 2. Incorporation by Reference 3. Acts of Independent Significant 4. Specific Devises 5. General Devises 6. Abatement 7. Ademption 8. Lapse & Anti-Lapse 9. Ambiguities 10. Mistakes 11. Reformation
49
# Construction Integration | Wills & Estates ## Footnote MEE
50
# Construction > Integration Intent | Wills & Estates ## Footnote MEE
51
# Construction Incorporation by Reference | Wills & Estates ## Footnote MEE
52
# Construction Acts of Independent Significance | Wills & Estates ## Footnote MEE
53
# Construction Types of Gifts | Wills & Estates ## Footnote MEE
1. Specific Gift 2. General Gift 3. Demonstrative Gift 4. Residuary
54
# Construction > Types of Gifts Specific Gift | Wills & Estates ## Footnote MEE
55
# Construction > Types of Gifts General Gift | Wills & Estates ## Footnote MEE
56
# Construction > Types of Gifts Demonstrative Gift | Wills & Estates ## Footnote MEE
57
# Construction > Types of Gifts Residuary | Wills & Estates ## Footnote MEE
58
# Construction Abatement | Wills & Estates ## Footnote MEE
59
# Construction > Abatement Default Order of Abatement | Wills & Estates ## Footnote MEE
60
# Construction Ademption by Extinction - Traditional | Wills & Estates ## Footnote MEE
61
# Construction Ademption by Extinction - UPC (Modern Rule) | Wills & Estates ## Footnote MEE
62
# Construction Stocks | Wills & Estates ## Footnote MEE
63
# Construction Life Insurance Contracts | Wills & Estates ## Footnote MEE
64
# Construction Lapse | Wills & Estates ## Footnote MEE
65
# Construction Anti-Lapse | Wills & Estates ## Footnote MEE
66
# Construction > Anti-Lapse Survivorship Clauses | Wills & Estates ## Footnote MEE
67
# Construction > Anti-Lapse Class Gifts | Wills & Estates ## Footnote MEE
68
# Construction Ambiguities in the Will | Wills & Estates ## Footnote MEE
69
# Construction Mistakes | Wills & Estates ## Footnote MEE
70
# Construction Reformation | Wills & Estates ## Footnote MEE
71
Power to Transfer | Wills & Estates ## Footnote MEE
1. Omitted Spouse 2. Omitted Children 3. Bars to Succession
72
# Power to Transfer Omitted Spouse | Wills & Estates ## Footnote MEE
73
# Power to Transfer > Omitted Spouse Bars to Intestate Share | Wills & Estates ## Footnote MEE
74
# Power to Transfer > Omitted Spouse Prenuptual Agreement | Wills & Estates ## Footnote MEE
75
# Power to Transfer Omitted Children | Wills & Estates ## Footnote MEE
76
# Power to Transfer > Omitted Children Bars to Inheritance | Wills & Estates ## Footnote MEE
77
# Power to Transfer > Omitted Children Calculation of Share | Wills & Estates ## Footnote MEE
78
# Power to Transfer Bars to Succession | Wills & Estates ## Footnote MEE
1. Homicide ("Slayer Statute") 2. Disclaimer
79
# Power to Transfer > Bars to Succession Homicide ("Slayer Statute") | Wills & Estates ## Footnote MEE
80
# Power to Transfer > Bars to Succession Disclaimer | Wills & Estates ## Footnote MEE
81
Will Contests | Wills & Estates ## Footnote MEE
82
# Will Contests Basis | Wills & Estates ## Footnote MEE
83
# Will Contests Capacity | Wills & Estates ## Footnote MEE
84
# Will Contests Insane Delusions | Wills & Estates ## Footnote MEE
85
# Will Contests Undue Influence | Wills & Estates ## Footnote MEE
86
# Will Contests > Undue Influence Presumption Arises | Wills & Estates ## Footnote MEE
87
# Will Contests > Undue Influence Beneficiary Burden | Wills & Estates ## Footnote MEE
88
# Will Contests > Undue Influence Majority View | Wills & Estates ## Footnote MEE
89
# Will Contests Fraud | Wills & Estates ## Footnote MEE
90
# Will Contests > Fraud Fraud in the Inducement | Wills & Estates ## Footnote MEE
91
# Will Contests > Fraud Fraud in the Execution | Wills & Estates ## Footnote MEE

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