Final Exam Flashcards
Will
unilateral written disposition of property to take effect on death
Testator
someone who executes the will
Probate (default)
process of proving and deciding the validity of a will before a court having competent J/d
includes all property owned by decedent NOT already determined will
functions of probate
performed by executor
collect all decedent’s assets and inventory them
maange all assets during time req to administer estate
pay all debts
distribute what remains according to will
Intestate
- died without a valid will
- will go through probate
- state law decides how assets will be distributed
- court appoints administrator
Bakanja Test
court will impose liability on attrny despite not having privity req with bb if:
- extend to which transaction was intended to affect P
- foreseeability of harm to P
- degree of certainty that P suffered injury
- closeness of connection b/w D’s conduct and injury
- policy of preventing future harm
note: can sue if attrny negligently prepared will, new testamentary is too speculative
Beneficiary Restriction Clause
-will not vilate pp and will be enforced under testamentary freedom
BUT
condition precedent = good
condition subsequent = not good
Statute of Wills
allows opting out of default rules by drafting a will
allows to specify family and non family
Intestacy Statutes
default rules foverning who is entitled to inherit when decedent dies without a will
-favors close family memeber to carry out testator’s intent
NOTE: intestacy w/o a will = decedent
Rules of Construction
Will and WS interpretation
favors close family members to carry out testator’s intent
UPC 201- Who is a child
excludes a person who is a stepchild, foster child, gchild, etc
limited to one step below the descendant
NOTE: must establish a parent-child relationship to inherit from a parent as a child
Parent-Child Inheritance
- must establish a P-C relationship before able to inherit as a child
1. genetic relationship (includes wedlock)
2. legal adoption
3. Parent consented to be parent conceived by tech w/o genetic connection
Adoption Inheritance Rules
- adoption severs the ties btw child and genetic parents
- adopted child inherits through adoptive parents (vice versa) and through adoptive grandparents
Adoption Inheritance: Stepparent Exception
Genetic Parent + Adoptive Spouse= child can inherit through both natural parent and their stepparent that adopted them
2nd Genetic Parent + Stepparent =
child can inherit through Gparent BUT these parents cannot inherit from child
Equitable Adoption
court can find this type of adoption rather than legal adoption
allows child to inherit from
supposed parent in the absence of completed/formal adoption papers
NOTE: adult adoption issue*
ART Child and Inheritance
p-c exists btw child and mother who gives birth to ART child
Surrogacy Inheritance
p-c exists btw child and woman intending to be the mother by entering into gestational agreement
Mother-Child Relationship
gave birth to child
adjudication of woman’s materinity
woman adtops the child
Inheritance: Father-Child Relationship
genetic
adoption
assisted reproduction
Inheritance: Assisted Reproduction
-depends on intent, marital status, and consent
RULES:
- H of birth mother = father
- birth cert ID’s someone other than the birth mother = parent
Inheritance: Unmarried Men/Same Sex
consent- signed records BUT w/o
- –functioned as parent of child within 2 years of birth
- –intended to function parent but-for a death etc
- –CC w/ child born after death of genetic P
Inheritance: Posthumous Conception via Frozen Embryos
policy: reproduction right, time to grieve
- child in womb at time of parent’s death = must survive 120 hours after birth
- child in womb within 36 months OR born no later than 45 months of death
NOTE: presumption is intended to be parent if person who used the sperm was married to, or functioned as parent BUT can be rebutted by CC ev
Inheritance: Establishing Father-Child Relationship (w/o genetic testing)
Marital Presumption:
—child born during the marriage OR child born w/i 300 days after termination of marriage
Other Presumptions:
- -after child birth (1) married in compliance (2) voluntarily assert paternity (3) assertion in record with state agency, or named on BC, or promised in a record
- –effective acknowledgement
- –adjudication
- –adoption
- –consent to ART
- –surrogacy (valid agreement)
Inheritance: Same Sex Couples
-adoption, consents, functions
If ART: signed a record consenting to ART, w/o record (1) functioned w/i 2 yrs of birth (2) intended to function but for death etc (3)CC ev that intended to be parent
Inheritance: Who is child?
Class Gift from NON Parent (grandparent/aunt)
Nonmarital Child: C only inherits if parent, spouse, relative functioned until C = 18
Adopted Child: must (1) be adopted before 18 OR (2) adoptive parent is stepparent or foster parent OR (3) adoptive parent functioned as parent before/until child = 18
Inheritance: Who is Child? Class Gift from PARENT/A.Parent
Adoptive Child OR NON marital Child =takes unless evidence says otherwise
When will parent NOT inherit?
failure to support child P. rights are terminated abandoned abuse neglect
Spouse Inheritance
- marriedd as of date of death
- CL marriage
- Putative Spouse
Inheritance: CL Spouse
living together
*holding themselves out in community as married
mutual intent to be married
Putative Spouse
this spouse acquires the rights of legal spouse and may be able to shares in the estate
- -look for a ceremony
- -considerations: which wife was married longer, good faith, marital property, kids, length of cohabitation
Intestacy laws
- devations from statutory plan are NOT allowed for ANY reason
- default rules for ppl w/o will
- APPLIES when: (1) w/o will (2) will invalid (3) will does not dispose of entire estate
ONLY applies to probate property that is solely in decedent’s name
ONLY applies to blood, SS, legal adoption NOT friends or charities–if none escheat
Survival Rule
intestacy or will–heir or BB must sruvive the decedent
120 hours is default that taker must survive decedent
Share for SS in NON UPC
- SS 1/3, descendants 2/3
- 0 kids = ss 1/2 and parent 1/2
- 0 descendants/parents = entire estate goes to spouse
Share for SS in UPC
- no des/no parents OR joint descendants =
- –SS = 100% - parents and spouse but no descendants =
- –spouse = 300k + 3/4 remaining excess
- –parents = 1/4 remaining in excess of 300k - SS + JD + Step kids =
- –spouse = 225k + 1/2 remianing excess
- –JD = 1/2 of remaining excess
- –Step = 0 - SS + decedant’s own kids =
- –spouse = 150k + 1/2 of remaining
- –D’s kids = 1/2 of remaining
Share: W/o SS
- distributed among lineal descendants
Representation (Inheritance Distribution)
only living descendants can take
require relationships by blood or adoption to take NOT marriage
Representation Steps
- ID children
- ID any children that predeceased and if any, did they leave a descendant who outlive the intestate
- ID which of the 3 models state adopted
Strict Per Stripes
- divide the shares in line where there are living people
- must surivive to recieve share
- if dead, must have descendants - those shares that belong to those that have died above, goes to their descendants
Modified Per Stirpes
- divide shares between living with descendants
2. next line, if upper is dead (got sh b/c descendants), next line with living descants gets the share divided btw them
Per Capita Method (Modern UPC)
- go to line with living and divide shares equally btw living and dead
- put dead ppl shares in a pot
- then divide the pot btw the living on the next line
Advancement
- does not apply if there is a will (it would satisfaction)
- only occurs if an HEIR was the recipient
Steps: Hotchpotch
1. add back advance to the pot
2. divide between heirs
3. subtract advance from person’s share who initially got the advance
BUT…
if advance person dies- hotpotch does not occur
Gift
absolute, unconditional transfer, does not need to be repaid
does not diminish share of inheritance from estate
not exactly a WS bc donor does not use/hold property throughout life nor is the property transfered as a result of the owner’s death
BUT it is like WS b/c bypass probate
Methods–trust or fee simple
Loan
must be repaid
if not repaid to decedant during life = asset of decedent’s estate
debtor must pay the heir entitled to collect on the loan
debt is not accounted for when determining shares
Lifetime Transfers: gifts or advances?
- CL = presumed advancements
- UPC = presumed gifts
Overcome gift presumption: so advancement IF:
- decedent delcared in contem. writing OR heir acknowledged in writing gift is advancement
- decedent’s contemp. writing or heir’s written acknowledgement states that inter vivo transfer is to be subtracted from share
Laws of Wills
requires near perfect compliance
signatures, witnesses, publication
Laws of WS
controled by K, Property, Trust laws
less formal
= nontestamentary
Benefits of WS
- more certainty
- easier, less costly to transfer out of state
- privacy
- creditor liability
Benefits of Probate
- creditor claims are resolved so pass w/ clear title
- controlled by judge
- personal rep of estate required to account and report of activities
- will can be revised and contested
- WS can never be amended
Trusts
transferor transfers title of property to the trustee who then holds and owns it in the trust for the benefit of present and future generations
—the trustee owns the property not the transferor
separates legal ownership
need to be funded at all times
irrevocable or revocable
JT with Right of Survivorship
on death, title passes to surviving joint tenant
most common, lease expensive (poor person will)
can be severed unilaterally by one of the JTs conveiny interest to a 3rd or by divorce = results in tenancts in common
Tenancy in Common
interest of co-tenant becomes probate b/c no survivor
Tenancies by Entirety
for married couples
property is owned by marriage
cannot be severed unilaterally
Gift Elements
inteniton by donor to transfer the property (all rights)
delivery by donor (give up dominion and control)
–come get it = NOT gift
acceptance of gift -usually presumed
IF NOT MADE = still owned by decedant and will go through probate
Beneficiaries
invidividual
custodian (minors)
designated an executor or admin.
trust
CL Rule of Lapse
If BB dies before decedent:
–all devises are auto and lby law conditioned on survivorship of testator
–if heir/devisee does not survive testator, right to inherit fails/lapses
May not apply to WS in 3 ways:
WS vs. Will control?
WS unless there is substantial compliance with that policy’s instrument for effecting a change of BB may apply –NOT SURE
Will Formalities provide:
- testator protection
- reliable proof of evidence
- environment that accentuaties finality of intent and execution
- assurange that doc will receive the anticipated legal recognition
- admin judicial efficiency
4 Reasons of Will Formalities
- evidentiary–reliable/permanence of intent
- channeling–intent expressed to understand, is able to be processed routinely
- ritual/cautionary–asures intent to dispose party is serious and testator understands
- protective–testator lack of capacity, undue influence etc, not forgery
4 Requirements of a Valid Will
- legal capacity
- testamentary capacity
- testamentary intent
- compliance with statutary formalities
Legal Requirements of Testator
18 or over
testamentary capacity - sound mind, knowing will, extent and character, know family and bb’s
testamentary intent to make a will
Formalities Required in Will
- in wiritng (not copy)
- signed by testator (proxy-conscious presence, under direction) on last page, intial each page
- 3 W’s sign within reasonable time after witness testator sign OR witness testator’s acknowledgment
- —W must be in testator’s presence when testator signs/acknowledges - OR instead of 3–can be signed with notary
Attestation Clause
clause at the end of will which recites the property execution processes were followed that the W’s certify thta the instrument has been executed
Self Proved Wills
If the W’s acknowledge via affidavits in front of the notarry that to the best of their knowledge the testator is 18, of sound mind, and not under undue influence, the W’s do not have to do so again before the court so the will proves itself
just means will can be admitted into probate
note: notarized wills can never be this b/c notaries are not W’s
Holographic Wills
wills that are hand written and singed by the testator and do not require W’s
CANNOT be TYPED
does not have to attetation reqs but all others are required
testamentary intent is presumed, no need for words of art
must be written. NOT recorded
Interpretation
process of determining testator’s actual intent from will’s language and extrinsic evidence
construction
an attempt to assign meaning to a will provision when testator’s actual intent cannot be ascertained (interpretation failed)
What Constitutes a Will
- Doctrine of Integration
- Incorporation by Reference
- Republication of Codicil
- Acts/Events of Significance
- Memo at Death
- Pour Over Wills
Doctrine of Integration
pieces together papers to establish will
if pages are fastened together- no need to sign every page b/c shows intent to be one doc
words/parag’s/phrases/sentences will NOT be given affect if added after exution of will UNLESS intended to be part of will and were executed with the req formalities
Incorporation by Reference
method of treating a doc as testamentary even tho doc is not physically part of will
RULE: writing is this IF
- in existence at time of will execution
- lang of will manifests intent to incorporate it
- will sufficiently describes the doc
can be any doc: codicil, memo, deed, note, list etc
Codicil
these are amendment docs that are completed under the same formalities as those for wills and have same effect as if they were executed as part of will
a validly executed codicil which references a will that is invalid CAN validate that will by incorporation by reference, even though the codicil intended only to update the will which was unknown to have been invalid
Republication by Codicil
treats an old will as if it were executed at a later date
a codicil incorporates all the provisions of the will it is updating
so the will is treated as having been executed on the date the codicil was finalized (moves the will date forward in time)
Acts/Events of Indep. Significance
permits the use of facts and circumstances outside the will to impact the property disposition the tstator made in the will
allows certain evidence and events and acts outside the will to be admitted to dtm who receives so long as the circumstances have significance apart from the effect upon the will
Memo at Death
3 Reqs: in writing, testator sign, specifically describe items, reference it in will
testator may draft a memo AFTER executing the will that leaves tangible, personal property, to certain ppl
CANNOT be $, real property or intangibles
some states won’t effectuate this
will takes precedence over external memo if conflicts
Pour Over Wills
testators include a provision in will transferring some (residue) into a trust
Plain Meaning Rule
if lang clear and unambiguous-intent is dtm by terms of will
if ambigous–extrinisic evidence
Modern Rule of Interpretation
not plain meaning rule
look to donor’s intent in both will and through evidence
Resolving Ambiguities in Will
Rule of Construction–interpret the will if possible in manner that prevents intestacy/ failure of transfer
Mistakes v. Ambiguities
Majority: no e. evidence allowed to change mistakes
UPC: reformation of mistakes shld be allowed with clear and convicing evidence to show intent
Specific Devices
gift of particular asset, specifically ID’d in will
if failed, distributed to residue
must contain “words of possesion” or “words of ID”
ex: my 100 shares of Wolter stock
ex: i leave stock cert #234 of Maple to A
General Devises
gift of money for value
if failes, distributed in residue
ex: i give 50 shares of Wolter stock to X
ex: i leave 25k to B
ex: i give a computer to x
Demonstrative Devise
gift of money/value paybale from specific source bit if that source is insufficient, then from other assets
ex: 1k from bank acct, or my happy stock
Residuary Devises
residue of everything else not distributed through general, demonstrative, or specific devises
distributed ratably to other residuary BB’s, if none then to intestacy
General Rule of Lapse
this is when BB dies before the testator
bequest goes to alternate if any
if none, ask if lapse rules apply
if don’t, then gift fails and passes through to residue
if no residue, then intestacy
Antilapse –Exception to General Rule of Lapse
this saves gift from failing by allowing the gift to pass to descendants of BB (per stripes/Modern/PC)
4 reqs:
- intended BB must die before testator
- intended BB must leave living descendants
- intended BB must be a family member (no spouses
- will must not provide for an alternate gift (taker in default) or state that antilapse rules do not apply
Class Gifts and Antilapse Rules
- if this and anti applies: descendants of deceased take the predeceased member’s share by rep
- if this and any DOES NOT appy: distributed equally to remaining class member
Devise
gift in real property
Bequest
gift of personal property
Ademption by Extinction
what happens when the devise (specific) no longer exists but the BB is alive?
2 Theories:
identity theory
Intent theory
Identity Theory
Ademption by Extinction
Majority
a specific devise adeems/fails if the propert is NOT owned by testator at death
no question to intent
allows for changes in form but not substance
Intent Theory
Ademption by Extinction
Minority
seeks to dtm what the testator would have wanted to happen
new form should be substituted for the old form
606(a)(3)–property was disposed of and balance is owed to testator–BB recieves right to collect equivalent to the specific devise (p not if sold house)
(4-5) when property replaced with other property b/c foreclosure or testator action–intent to adeem but UPC allows like kind subs –same character (car replaced with car)
(a)(6)(b) someone inadvertently changes testator plan—BB has right to pecuniary interest (cash proceeds)
Security Bequests
accesion applies when
(1) testator will devised specific securities
(2) at the time of will execution
(3) testator must own those securities that meet the will description
(4) additional securities owned by testator at death were acquired after the will executed
(5) additional securities owned by testator at death were acquired as a result of testator ownership
if meet those THEN:
BB is entitled to securities when:
(1) add securities of the same entity were issued bc of entity actions
(2) securities of other entities result from merger
(3) securities of same entity are acquired as a result of investment
Satisfaction
the failure of a testamentary gift b/c testator has already transferred the property to the BB btw the time of the will execution and time of death
does not include specifc gifts b/c ademption
this affects the share that devisee’s descendants take from testator’s estate IF descendants take as substitute devisees under the UPC’s antilapse provisions unless testator’s contemporaneous writing expressly provides that the gift is not to affect the descendant’s devise
Mortgages
CL: if devise did not instruct personal rep to pay off mortgage before distribution, silence = pay off mortgage first
Exoneration
= not burdened by the mortgage
only occurs of there is express language in the will requiring it
Abatement
the reduction or elimination of a testamentary gift to pay debts of the estate
Default:
- property not disposed of by will
- residuary devise
- general devises
- demonstrative devises
- specific devises
Apportionment
Old Default: silence= taxes paid from residuary “shall be paid w/o apportionment”
UPC: silent= taxes are burdened pro rata on each bequest
When death Occurs
- irreversable cessation of curculatory/respiratory functions
- -irreversable cessation of brain funcstions
- death certificate
- absent after 5 years
wehn Co-Owners die at the same time
if not clear one died at least 120 hrs before the other:
1/2 and 1/2 as if survived by 120 hrs
Disclaimers of Inheritance
if intended BB or heir disclsims all/part inheritance, interest passes as if they died before the intestate and passes to person who would have taken if disclaiming BB died before testator
Valid Disclaimer Requirements
in writing declare the disclaimer describe the interest or power disclaimed signed by person making disclaimer delivered and filed
BARRED: disclaimer accepts the interest sought to be disclaimed or voluntarily assigns, conveys, encumbers, pledges, or transfers the interest sought to be disclaimed or K’s to do so
Irrevocable and unconditional
Wills are effective upon death UNLESS
revoked or successfully changed (can be changed up until testator dies)
Revoking a Will
2 ways:
- Documentary : explicitly or implicitly
- physical act with requisite intent that act was done to revoke (conscious presence and at testator direction)
for both MUST MEET:
- capacity to revoke
- intent to revoke
- revoked in legally effective manner
Explicit Revocation
execute new will and include provision in the new will stating testator revokes any prior wills and codicils made by me and declare this the new will
Implicit Revocation
Execute new will
via inconsistency either
in whole
or
in part –supplements old will rather than completely replacing it
Cash Devises–Implied Revocations
CL: presumed cumulative
50k + 75k = 125
UPC: intent
Strike-Outs
distribute through residuary devise
Mutilated Wills
torn up, marks
if the will is found with revocatory marks, law creates a rebuttable presumption that testator intended to revoke the will
Lost wills
if will is missing and was las in possession if testator–CL creates rebuttable presumption that testator destroyed it with intent to revoke
Revocation by Marriage
UPC has default rules that revise the Will and WS based on new circums on assumption that testator did NOT anticipate these changes
Do not revoke on a later marriage but instead provides spouse with either (1) right to elect a share of marital property portion or (2) an amount equal to what would receive if testator died intestate
Revocation on Divorce
Wills: revoke bequests
WS: does not revoke bequests but some states do
Revocation due to Homicide
revokes bequests made to decedent’s killer if killing was felonious and intentional
treated as if disclaimed all bequests
Disinheritance
binding on will and on intestacy distribution
CL: will disinherited an heir but did not pass all property, heir can still inherit through intestate property but not property distributed through the will
3 Doctrines that Revive a Revoked Will
- Revival
- Dependent Relative Revoc/Conditional
- Harmless Error
5 Arguments for Contesting Will
- improper execution
- lack testamentary capacity
- lack testamentary intent
- undue influence
- fraud/duress
General Mental Capacity
lucid moment = valid
invalidates entire will
Cunningham Test: testator must
- understand the nature of her act
- know the extent of her property
- undrstand the propsed testamentary disposition
- know the persons whoa re the natural objects of her bounty
- the will represents her wishes
Insane Delusion
invalidates affected devise
Must show:
delusion has no basis in reality and
connection btw deulsion and the bequest contested
Undue influence
mess with mind
must prove: at the time will was executed
- existence and exertion of an influence
- effective operation of that inflence w/ goal to subvert/over power testator’s mind at execution
- would not have executed but for the influence
Duress
physical harm
Fraud/Duress
Fraud: wrongdoer knowingling/recklessly made a false rep to donor about material fact that was intended to and did lead to the transfer that would not have happened
Duress: someone threatens to or actually does something that coerces the testator into making the bequest
Tortious Interference
When D is liable for a 3rd party tort claim and that claim interferes with the now P’s inheritance
P must prove:
- existene of expectancy
- reasonable certainty that expectancy would have been realized but for D
- D intentionally interferred wit hthe expectancy
- D’s intentional interference was fraud or tortious
- damages
In Terrorem (No Contest) Clauses
usually not effective
will be effective IF:
- make the downside of losing too severe to risk challenging the will- won’t work if heir was already recieving a nominal gift
- specify what sort of condct falls under contesting the will
- specify who is to receive the devise
Pre-Mortem Probate
some states permit a will to be probated before death so it precludes will contests
K and Wills
A K to make a will or devise or to not revoke them or to die intestate will only be established by
- provisions in the will stating material provisions in the k
- express reference in the will to a K and e ev. prive the K terms or
- writing signed by the decedent evidencing the K
Reasons to Make a TRUST
- minors so don’t want to make an outright gift
- person lack mgt skils
- spendthrifts
- person susceptible to influence
- avoid having to appoint conservator later in life
Trust
A fiduciary relationship involving a settlor (trust creator), trustee( trust mgr) and BB
it splits up ownership among different ppl and splits them over time
trustee-legal title only
BB-beneficial title only
passes property in fee simple
Qualified Beneficiary
- a dsitrbutee or permissible distributee of the trust OR
- would be a distributee/permissible distributee if interests of the distrbutees in (1) terminated on that date without causing trust to terminate OR
- would be distrbutee/permissible distributee of trust income or pinciple if the trust terminated on that date
