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Final Review Deck Flashcards

1
Q

From whom may an adopted child inherit?

A

An adopted child may only inherit from their adopted parent and NOT their natural parent.

EXCEPTION: a stepchild adopted by a stepparent may inherit from both genetic parents and from the stepparent

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2
Q

Adult Adoption

A

Adoption of an adult for the purposes of bringing that person under the provisions of a preexisting testamentary instrument, when he was clearly not intended to be included, should not be permitted

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3
Q

De Facto Parentage

A

A relationship less than that of a legal guardian will not give a person the authority to adopt out a child

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4
Q

How can paternity be established for nonmarital children?

A
  1. Parents subsequently marry
  2. Father acknowledges the child
  3. Finding of paternity by the courts
  4. Clear and convincing evidence after the father’s death
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5
Q

Uniform Parentage Act

A

Establishes a rebuttable presumption that a child born to a woman during her spouse’s lifetime OR w/in 300 days of his death is the child of that spouse

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6
Q

Calculating Hotchpot

A
  1. Add the amount of the gift to the total of the estate
  2. Divide the amount of the estate by the # of heirs
  3. Subtract the value of the gift from the share of the person who received the advancement
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7
Q

Advancement: Modern Rules

A

Because it is difficult to tell the donor’s intent, a lifetime gift from the decedent will not be presumed an advancement UNLESS:

  1. Decedent declares in a contemporaneous writing that it is intended to be an advancement OR
  2. The heir acknowledges that it was an advancement at any time
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8
Q

When is testamentary intent presumed?

A

When the will complies with Wills Act Formalities

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9
Q

Requirements for Attested Will

A
  1. Must be in writing
  2. Must be signed by testator
  3. Attestation
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10
Q

What are the attestation requirements?

A

Will must be signed by at least two individuals, each of whom signed after a reasonable time after witnesses either the signing of the will or the testator’s acknowledgement of the will/signature

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11
Q

Interested Witnesses – Majority

A

Will will remain valid and interested witness will be “purged”

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12
Q

What is “purging”

A

Interested witness will be “purged” of his reward

Analyze what the witness would have received under both the will + intestacy –> interested witness receives the lesser

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13
Q

Elements of holographic will

A
  1. Handwritten
  2. Signature of testator
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14
Q

May the courts look beyond the four corners of a holographic will to establish testamentary intent?

A

No – No extrinsic evidence of testamentary intent permitted

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15
Q

What are “Material portions”

A

Provisions that dispose of property and identify the recipients

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16
Q

Preprinted Will Forms – First Generation

A

Will must be handwritten in it’s entirety

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17
Q

Preprinted Will Forms – Second Generation

A

“Material Provisions”

Must be able to eliminate the printed portions and the handwritten portions could evidence intent

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18
Q

Preprinted Will Forms – Third Generation

A

“Material Portions”

May allow extrinsic evidence of testamentary intent

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19
Q

What is the signature required in holographic wills? MAJORITY

A

Anywhere on the face of the document – however, signing too early may raise downs as to testamentary intent and whether the will was complete

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20
Q

Harmless Error Rule

A

Doctrine that holds that a will may be valid even if the formalities of execution were not met, if proponent can show by clear and convincing evidence that the decedent intended to adopt the document as his will

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21
Q

What can harmless error rule never fix?

A

Lack of writing or lack of signature

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22
Q

Integration

A

All papers that were present at the time of execution and are intended to be part of the will are treated as part of the will

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23
Q

What evidences intent for purposes of integration?

A

It must be readily apparent that the testator intended the sheets be read together – folding them together or placing them in same folder is not sufficient

Must be stapled, paperclipped, numbered, etc.

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24
Q

What is a codicil?

A

A testamentary document that meets Wills Act Formalities that amends or supplants a prior will

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25
Incorporation by Reference -- Elements
1. Will declares testator's intent to include document 2. Will describes document sufficiently to permit its identification with reasonable certainty 3. The will was already in existence at execution
26
What is a factor of independent significance
An external circumstance that may affect disposition of a will that has significance outside of the will
27
Lists of Tangible Property -- Elements
1. Must be in writing 2. Must dispose of personal property other than money 3. Writing must describe both item and devisee with reasonable certainty
28
Implied Revocation by Testamentary Act -- MAJORITY
A subsequent will that does not expressly revoke a prior will but makes a complete disposition of the testator's estate as presumptively revoking the will by inconsistency -- anything less than a complete disposition is considered a codicil
29
Presumption of Revocation & Missing Wills
1. Last in testator's possession 2. Cannot be found after her death Rebuttable presumption that the testator destroyed will as an act of revocation
30
Revocation upon Divorce
Any testamentary gifts to the spouse are presumptively revoked
31
Revocation upon birth of child
almost all states permit an intestate share of an accidentally omitted child
32
Revocation Upon Marriage
Will remains valid -- new spouse may take either elective share or intestate share
33
Partial Revocation by Physical Act -- MAJORITY
Permits partial revocation by physical act
34
What is Revival?
Permits the reinstatement of Will 1 if testator revoked Will 2 with no alternative disposition
35
Is Revival permitted -- MAJORITY
Upon revocation of Will 2, will 1 is *presumptively revived* if the testator intends
36
Dependent Relative Revocation (DRR)
If the court finds that a testator would not have revoked a prior will had she known that a subsequent will would be ineffective, the court will disregard the revocation and probate the first will
37
Situations where DRR may occur:
1. Testator provided an alternative second will which failed 2. Testator revoked the will under a false assumption of law or false belief about objective fact, and the mistake is shown by clear/convincing evidence
38
What is the rationale for DRR?
The testator would have preferred to probate the prior will instead of submit estate to intestacy
39
Plain Meaning Rule
The plain meaning of the words of a will cannot be disturbed by extrinsic evidence that the testator intended another meaning
40
No Reformation Rule
Courts may not reform a will to correct a mistaken term to reflect what the testator had intended to say
41
When may a court use extrinsic evidence in construing a will?
1. Establish whether requirements of valid will are satisfied (e.g., testamentary capacity) 2. Resole a patent/latent ambiguity 3. Determine whether an ambiguity exists
42
Clear Mistake Rule
Courts have sometimes corrected a clear mistake under the guise of using EE to construe a supposedly ambiguous term Very common with innocuous details such as addresses and middle initials
43
Patent Ambiguity
Uncertainty that is apparent on its face due to inconsistent or unclear language
44
What is a lapsed devise?
When an intended beneficiary predeceases a testator -- the gift to that person fails Does not pass to recipient's estate
45
What is an Anti-Lapse Statute?
When an intended beneficiary predeceases the testator, the gift will instead pass to a substitute taker instead of passing into the testator's residuary
46
What is theory behind Anti-Lapse Statute?
Testator would have preferred the gift go to the substitute recipient rather than it go to the residuary
47
Survivorship Requirement and Anti-Lapse Statute -- MAJORITY
A mere survivorship requirement may prevent the application of the ALS because it indicates intent
48
What is Ademption?
A specific devise of a specifically identified assets fails because the asset is not in the estate at the time of the testator's death
49
What types of devises does Ademption apply to?
Specific devises of personal property
50
What is the Traditional Theory of Ademption?
If the item is not in the testator's estate, the gift is extinguished
51
What is the New Theory of Ademption?
If devise is not in testator's estate, beneficiary may be entitled to replacement of cash value if beneficiary can show this is what T would have wanted
52
What changes to a devise trigger ademption?
A change in the essential nature or character of the devise will adeem (i.e., testator sells asset for cash) Minor changes in form/location will cause adeem
53
What is Abatement?
Estate is too small to satisfy both right claims (i.e., creditors) and devises
54
What is the order of abatement?
1. Residuary 2. General Devises 3. Specific Devises
55
Slayer Rule
If a beneficiary/heir feloniously and intentionally kills the testator, any gift or inheritance to the slayer under the will is revoked by operation of law
56
What is Disclaimer?
Devisee may reject or disclaim any gift/benefit under a will
57
Requirements for Effective Disclaimer
1. Voluntary 2. Express 3. Overt 4. Full knowledge of consequences / material facts
58
Simultaneous Death Act
Takers must survive testator by 120 hours by clear and convincing evidence
59
Four Part Test for Testamentary Capacity
Testator must know: 1. Nature and extent of his property 2. Natural objects of his bounty 3. Nature of testamentary act being performed 4. Disposition of property set forth in the will
60
Forms of Defects in Capacity
1. Insane Delusion 2. Undue Influence 3. Fraud 4. Duress
61
Duress
Wrongdoer threatens to perform a wrongful act that coerces testator into making a testamentary disposition they would not otherwise have made
62
Undue Influence
Testator is improperly influenced by another person such that the other person's intent is substituted for the testator's
63
Elements of Undue Influence
1. Unnatural disposition 2. By a person susceptible to undue influence 3. By someone with an opportunity to exert undue influence 4. Who was able to do so through improper means
64
Presumption of Undue Influence
1. Confidential relationship 2. Suspicious circumstances 3. Unnatural disposition
65
Examples of Suspicious Circumstances
1. Weakened mental/physical condition 2. Wrongdoer participated in procuring will 3. Will was prepared secretly/hastily 4. Reasonable person would regard will as unnatural
66
What is an insane delusion?
When the testator, against all rational evidence, adheres to a false belief that materially affects or influences a disposition in the will
67
What must be shown to invalidate a will based on insane delusion?
1. Testator labored under an insane delusion 2. Will was the product of the insane delusion
68
Fraud -- Elements
1. Wrongdoer recklessly / knowingly made a false representation to the donor 2. About a material fact 3. That led testator to make a transfer he would not otherwise have made
69
No - Contest Clause
A will provision that purports to rescind a gift to anyone who contests the will
70
Are no-contest clauses enforceable -- MAJORITY
Provision is enforceable unless person contesting the will has probable cause to do so
71
What is an Elective Share?
A portion of the deceased spouse's estate that a surviving spouse may choose to take INSTEAD of the amount specified in the will
72
How to calculate elective share
1. Determine value of estate 2. Determine marital-property portion (depends on length of marriage) 3. Multiple estate's value by marital property portion 4. Multiple resulting value by fractional share
73
Premarital / Post-nuptial waiver of elective share
All separate property states enforce a waiver of the right of elective share, as long as the waiver was not non-voluntary or unconscionable (i.e., no fair and reasonable disclosure of marital assets)
74
What is a trust?
A fiduciary relationship where a trustee holds legal property that a settlor placed in trust for the benefit of a beneficiary
75
Requirements of a trust
1. Intent to create trust 2. Ascertainable beneficiaries 3. Specific property (res) 4. A writing IF trust is testamentary OR to hold land
76
What is a "Living Trust" (Inter Vivos Trust)
Created during settlor's lifetime and may distribute property before the settlor's death
77
What is a Testamentary Trust
Trust that is created by valid will Irrevocable
78
What is a declaration of trust?
Settlor declares himself to be a trustee of certain property
79
What is a semi-secret trust?
A trust that is mentioned by a will, but whose terms are not actually set forth (Usually fails for want of an ascertainable beneficiary)
80
Under UTC, when it trust revocable?
Trust is revocable by default unless terms expressly make trust irrevocable
81
What is a "Pour Over Will"
A will that devises all/part of the probate estate into an already existing trust
82
Discretionary Trust
Protective trust in which the trustee has discretion to make distributions of the trust to the beneficiary
83
What is a protective trust?
Protects assets from potential creditors / beneficiary mismanagement -- restricts alienability of beneficiary's interest in trust
84
Beneficiary's Right to compel distribution from discretionary trust
Trustee must follow standards set forth in the trust itself; if there are no standards, trustee must not abuse her discretion Generally beneficiary's cannot compel distribution unless trustee abuses discretion / doesn't follow terms of trust
85
What is a Support Trust?
Directs trustee to distribute trust only insofar as is *necessary* for beneficiary's education and support
86
Type of Protective Trusts
1. Discretionary Trust 2. Support Trust 3. Spendthrift Trusts
87
What is a spendthrift trust?
Trust that is designed so that a beneficiary cannot sell or give away her equitable interest in trust property Retrains both voluntary and INVOLUNTARY transfer (i.e., creditors)
88
Spendthrift trusts are unenforceable against:
1. Child / spouse / former spouse with a judgment for support / maintenance 2. Judgment creditors who have provided services to protect the beneficiary's interest in the trust 3. State / federal government under statutory law (e.g., tax debt) 4. In some states, creditors who provide necessities
89
How may a revocable trust be revoked / amended?
In any manner that clearly manifest a settlor's intent to do so UNLESS the trust specifies an exclusive method for doing so
90
Modifying / Revoking an Irrevocable Trust
All beneficiaries and settlor must consent to modify/revoke trust AND it would not be inconsistent w/ the material purpose of the trust
91
What is the material purpose of the trust?
A significant objective that motivated the settlor to create the trust
92
Special Circumstances for revoking/amending irrevocable trust
May be revoked/amended due to unanticipated circumstances that the settlor did not anticipate and modificaton/revocation would advance the purpose of the trust
93
Resigning as Trustee
A person who has accepted appointment to serve as trustee may not later decline appointment
94
Trustee's Duty of Prudence
Requires a trustee to administer a trust as a prudent person would under the circumstances
95
Duty of Loyalty -- Four Prongs
1. Administer the trust solely in the beneficiary's interest 2. Avoid self-dealing and conflicts of interest 3. Deal fairly w/ beneficiaries and communicate with them 4. Segregate trust property (especially from their own)
96
What is self-dealing?
Any transaction between the trust and the trustee or her agent/close relative
97
No Further Inquiry Rule
Self-dealing and other conflict-interest transactions are voidable *regardless of whether transaction harms the trust* Mere fact that the transaction occurred is enough reason to void it, without further inquiry into effects of transfer or motivations of trustee

Wills & Estates (1 decks)

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