Exam Rules - Wills

Question 1

What is the name of the individual who manages a decedent’s estate

Answer 1

A personal representative

Question 2

If the will names the personal representative, what is their title

Answer 2

An executor

Question 3

If the will does not name the personal representative, or the personal representative is unable/unwilling to serve, what is their title

Answer 3

Administrator cum testamento annexo. The court or clerk must be satisfied that the administrator meets the qualifications for competency and suitability of office and may deviate from statutory guidelines if necessary to satisfy the best interests of the estate

Question 4

If a decedent passes intestate, who distributes their estate?

Answer 4

An heir, meaning all lineal descendants. The heir must be at least 18 years of age and be legally competent. If there are multiple heirs, they can all consent to the appointment of one as the administrator. If they cannot agree to an administrator, the court will point one from among the heirs.

Question 5

What must an inventory include

Answer 5

(1) the entirety of the personal estate under the personal representative’s supervision and control (2) the decedent’s interest in any multiple party account in any financial institution (3) all real estate over which the personal representative has the power of sale (4) any other real estate that is an asset of the decedent’s estate, whether or not situated in the commonwealth

Question 6

Why is a trust not included in a personal estate

Answer 6

Because property that passes according to the terms of an instrument other than the will are not included in a decedent’s personal estate.

Question 7

What is the rule for half-bloods

Answer 7

Half-blood children receive a one half share of similar full-blood kin

Question 8

Requirements for an attested will

Answer 8

(1) in writing (2) signed by the testator (3) signed or acknowledged in the presence of two competent witnesses at the same time (4) subscribed by two witnesses in the presence of the testator (but does not need to be in the presence of one another)

Question 9

What is the conscious presence test

Answer 9

Allows for a will to be subscribed by witnesses that the testator cannot see, so long as they are aware of the witness’s presence and what they are doing and could see them if they extended some effort

Question 10

Where is a will probated

Answer 10

In the circuit court where the decedent has a house or known place of residence. It is presumed that moving into a nursing home does not change the testator’s legal place of residence.

Question 11

How can property be transferred by gift

Answer 11

There must be (1) donative intent (2) acceptance and (3) delivery of a properly executed deed

Question 12

What is the laughing heir statute

Answer 12

The laughing heir statute allows relatives to inherit, no matter how remotely related

Question 13

What are advancements

Answer 13

Substantial gifts from the decedent to an heir during lifetime may be advancements that offset what the heir would have received in intestacy

Question 14

What is a codicil

Answer 14

an amendment to a prior will that must be executed with will formalities; deemed to re-execute a will, even a revoked will, at the time of the codicil

Question 15

What is incorporation by reference

Answer 15

Incorporation by reference allows documents not included in the will to be incorporated into it if the will (1) existed at the time of the will (2) the will indicates that the paper is in existence and (3) the will identifies and describes with the document with reasonable certainty in the will.

Question 16

What is a “gift list”

Answer 16

A written statement used to dispose of tangible personal property. It does not require the formalities of will. The requirements are that (1) the will must refer to the writing (2) the writing must describe both the items of personal property and identity of recipients (3) signed by the testator (4) property must not otherwise be devised in the will

Question 17

What is the harmless error doctrine

Answer 17

The harmless error doctrine allows the proponent of a will, that fails the statutory formalities, to establish that it is valid manifestation of the testator’s intent through clear and convincing evidence. It may NOT be used to excuse the signature requirement.

Question 18

How can a pour-over trust operate in a will

Answer 18

a testator may devise probate assets to a pour-over trust, without satisfying the rules for incorporation by reference, if: (i) the trust is sufficiently identified in the will, and (ii) the trust terms are set forth in a written instrument other than the will

Question 19

What are the elements of undue influence

Answer 19

(1) weakness of mind when the will was made (2) named a beneficiary in a relationship of confidence or dependence (3) previously expressed an intention to make a contrary disposition

Question 20

Define undue influence

Answer 20

measures taken that the testator could not resist, that controlled the testator’s volition, and that induced the testator to act as he would not otherwise act

Question 21

When is a will procured by fraud

Answer 21

(1)The wrongdoer misrepresented a material fact to the testator, and (2) The wrongdoer intended to deceive testator to influence the testator to make a disposition she would not otherwise have made

Question 21

Where is venue proper

Answer 21

(1) Where the decedent has a house or known place of residence, (2) Where the decedent owned real property to be devised, or
(3) Where the decedent died or has personal property

Question 22

How is disclaimed property distributed

Answer 22

As though the devisee pre-deceased the testator