Essay 11. Wills & Estates Flashcards
Issue Overview
Wills & Estates
MEE
- Personal Representative
- Intestacy
- Execution of Wills
- Revocation
- Construction
- Power to Transfer
- Will Contests
Personal Representative
Wills & Estates
MEE
- 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
Intestacy
Wills & Estates
MEE
If a person dies without a valid will, the estate will be distributed following the intestacy rules
Intestacy
Uniform Probate Code (UPC) Approach
Wills & Estates
MEE
- Spouse + Shared Kids = 100% to Spouse
- Spouse + Parents = $300k + 75% to Spouse
- Spouse + Shared Kids + Spouse’s Kids = $225k + 50% to Spouse
- Spouse + Decedant’s Kids = $150k + 50% to Spouse
- Spouse = 100% to Spouse
Intestacy
Community Property Rules
Wills & Estates
MEE
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
Intestacy
Surviving Spouse
Wills & Estates
MEE
To be entitled to take under an intestacy statute, the surviving spouse generally must have been legally married to the decedent
Intestacy > Surviving Spouse
Putative Spouse
Wills & Estates
MEE
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
Intestacy > Surviving Spouse
UPC Approach
Wills & Estates
MEE
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
Intestacy
Issue
Wills & Estates
MEE
Issue refers to lineal descendants of the testator, including children, grandchildren, and great-grandchildren
Intestacy > Issue
Adoption
Wills & Estates
MEE
- Adoption generally curtails all inheritance rights between the natural parents and the child
- Adopted children take the same as a natural child
Intestacy > Issue
Non-Marital Children - Common Law Rule
Wills & Estates
MEE
If a child was born out of wedlock, then the child could not inherit from the father through intestacy
Intestacy > Issue
Non-Marital Children - Modern Trend
Wills & Estates
MEE
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
Intestacy
Calculating Shares
Wills & Estates
MEE
- Per Capita at Each Generation (UPC)
- Per Capita with Representation
- Per Stirpes
Intestacy > Calculating Shares
Per Capital at Each Generation
Wills & Estates
MEE
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
Intestacy > Calculating Shares
Per Capita with Representation
Wills & Estates
MEE
- 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
Intestacy > Calculating Shares
Per Stirpes
Wills & Estates
MEE
- 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
Intestacy > Calculating Shares
Ancestors and Remote Collaterals
Wills & Estates
MEE
If no surviving spouse or issue exist, then the property may be distributed to:
* Decedent’s ancestors; AND
* More remote collateral relatives
Intestacy > Calculating Shares
Ancestors and Remote Collaterals - UPC Approach
Wills & Estates
MEE
Execution of Wills
Wills & Estates
MEE
- Capacity
- Intent
- Attested Will
- Compliance
- Holographic Wills
- Codicils
- Will Substitute - Deed
- Conflict of Laws
Execution of Wills
Capacity
Wills & Estates
MEE
Execution of Wills > Capacity
Elements of Mental Capacity
Wills & Estates
MEE
Execution of Wills
Testamentary Intent
Wills & Estates
MEE
Execution of Wills
Attested (Witnessed) Wills
Wills & Estates
MEE
- Writing & Signature
- Witnesses
Execution of Wills > Attested (Witnessed) Wills
Writing & Signature
Wills & Estates
MEE
Execution of Wills > Attested (Witnessed) Wills
Witnesses
Wills & Estates
MEE
Execution of Wills > Attested (Witnessed) Wills > Witnesses
Interested Witness Problem
Wills & Estates
MEE
Execution of Wills
Compliance
Wills & Estates
MEE
Execution of Wills
Holographic Wills
Wills & Estates
MEE
Execution of Wills
Codicils
Wills & Estates
MEE
Execution of Wills > Codicils
Republication Date
Wills & Estates
MEE
Execution of Wills > Codicils
Cure Invalid Will
Wills & Estates
MEE
Execution of Wills > Codicils
Attested Will & Holographic Codicil
Wills & Estates
MEE
Execution of Wills
Conditional Wills
Wills & Estates
MEE
Execution of Wills
Will Substitutes
Wills & Estates
MEE
- Trusts
- Pour-Over Wills
- Deeds
Execution of Wills > Will Substitutes
Trusts
Wills & Estates
MEE
Execution of Wills > Will Substitutes
Pour-Over Wills
Wills & Estates
MEE
