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Wills > Flash Cards for Bar Courses - Wills > Flashcards

Flash Cards for Bar Courses - Wills

1
Q

Non-Probate Assets

A
  • Do not pass throught probate (Not governed by the testator’s will or by intestacy)
  • These assets must be removed from the decedent’s estate b4 property under a will or via intestacy

Ex. Inter-vivos trusts, bank accts, deeds, K’s and inter-vivos gifts, future interests (passes to named beneficiary)

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2
Q

Co-Ownership of Property

A

Tenancy in Common - probate not avoided
Joint Tenancy - passes to surviving JT and not via will or intestacy

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3
Q

Life Insurance

A

Is a K, and the disposition of the policy’s proceeds is governed by the terms of the K

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4
Q

Totten Trusts

A

is a deporsition of money in a bank acct in trust for another person. Depositor retains control of the acct during their life and the transfere is complete only opon their death

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5
Q

Intestate Succession

A

Total Intestacy: decident dies w/o a valid will

Partial Intestacy: decedent’s will does not dispose of all the decedent’s property.

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6
Q

Which Law to use

A

For Personal Property : use decedent’s domicile at death

For Real Property: use the law of the situs of the property.

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7
Q

Intestate Share of Surviving Spouse

A

Decedent survived by Descendant:
-in most states, spouse takes 1/3 of 1/2 of the estate
-UPC: surviving spouse takes all if the decedent and surviving spouse have the same descendants and surviving spouse has no other descendants

Decedent NOT survived by Descendant
-Surviving spouse tales entire estate
-UPC: takes the entire estate if decedent not survived by descendants or parents

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8
Q

Intestate Share of Children and Other Descendants

A

i.e. kids and grandchildren

Portion of estate that does not pass to spouse or the entire estate if there is no surviving spouse

In most states brothers, sisters, aunts, and uncles never inherit

Equal shares of all children: and a descendant of a younger generation cannot take from an older generation.

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9
Q

Methods for Computing Shares

A

Classic Per Stirpes: One share is created for each child and one for each deceased child who has at least 1 surviving descendant

MAJORITY RULE (Per Capita w/ Representation): Property is divided into equal shares at the first generation level at which there are living takers and so on.

Modern Trend (Per Capita at Each Generational level) and UPC: make the intital devision of shares at hte first generational level at whcih there are living takers, nu the shares of the deceased persons at that level are combined and then divided equally among the takers at the next generational level.

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10
Q

Shares of other Heirs

A

If the decednedent is not survivied by a spouse or descendants, the estate is distributed to ancestors and collaterals. passes in the following order:
1. Parents or surviving parent
2. Brothers and sisters and their descendants (NOTE IF 1 Parent and at least 1 sibling, UPC give entire estate to parent)
3. 1/2 to paternal grandparents and 1/2 to maternal grandparents and their descendants
4. 1/2 to nearest kin on maternal side nad 1/2 to nearest kin on paternal side
5. escheat to the state

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11
Q

Adopted Children

A

Adopted children are treated the same as biological children through adopting parents.

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12
Q

Stepchildren and Foster Children

A

Generally have no inheritance rights, but adoption by estoppel permits a child to inherit form a stepparent or foster parent when legal custofy of child is gained under an agreemetn to adopt them.

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13
Q

Non Marital Children

A

A nonmarial child always inherits from the mother. Generally will inherit from the father if (1) father married the mother after child’s birth; (2) mand was adjudiccated to be the father in a paternity suit; (3) after the dad’s death and during probate, the man is proved by clear and convincing evidence to be the father.

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14
Q

Half-bloods and Whole Bloods

A

UPC: no distinctions betwen 1/2 and whole bloods.

Some jurisdictions give 1/2 bloods 1/2 shares or cut them out from interiting

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15
Q

Posthumous Children

A

A child that is bord after the death of their parent – if person is in gestation at the time of death, most states allow that person to be an heir. Some states allow inheritance who was not in gestation byt who is bord within a statutoritly states period of time.

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16
Q

Disinheritance clause

A

CL: genrally ineffective as to property passing by intestacy

UPC: testator may exclude the right to succeed to property passing by intestacy, their share passes as though they disclaimed it.

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17
Q

Advancement

A

Is a lifetime gift to an heir w/ intent that the gift be applied against any share the heir inherits from the donor’s estate.
MUST (1) Declare in a writing; and (2) acknowledged as such in a writing the heir

If there is an advancement: value of gift is added to the estate for purposes of calculatiing the esate value. If the advanced heir’s value is greater with the advancement, the heir does NOT need to return the gift.

Advancement is not binding on the heir’s successors if the heir predeceases the donor

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18
Q

Simultanwous death

A

A person cannot take as an heir or will beneficiary unless they survive the decedent.

USDA - if order of death cannot be determined, the propertu of each decedent is disposed as if they had surviced each other. If there is evidence that one survided the other, then the one that survived would take

Simulataneouse Death Act (120 hour rule) – UPC follows - req. a person to survive the decednet by 120 hours to take any distribution of the decedent’s property.

BOTH RULES DO NOT APPLY IF A WILLS STAES OTHERWISE

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19
Q

Disclaimers

A

Reasons:
-Burdensome
-Tax
-Avoid creditors

Req.
- must be written
- signed by disclaimant
- acknowledged by a notary
- filed w/ appropraite court w/in 9 months of death

Disclaimed property passes as if the disclaimed predeceases the decedent

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20
Q

Slayer Statute

A

a person who feloniously and intentionally brings abt the death of a decedetn forfiets any interest in the decendet’s estate.

Property passes as though killer preceased.

Ct must find that the killing was unlawful or intentional by a preponderance of the evidence

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21
Q

Savivings statute

A

a will admissible to probate in a jurisdiction if the will has been executed in accordance w/ the law of:(1) that jurisdiciton, (2) the state where the will was executed, (3) the testator’s domicile at the time of the will’s execution, or (4) the testor’s domicile at death.

22
Q

Will reqs.

A

Legal Capacity: Testator must be 18 y/o and of sound mind

Testamentary Capcity: testator mus habe capicity to understand (1) nature of their act, (2) nature and extend of their property, (3) persons who are the natural objects of their bounty, and (4) able to form an orderly scheme or disposition

Capacity is determined at will’s execution

23
Q

Will Executuon

A
  • Will or Codil must be in writing
  • signed by the testator (any mark is OK or by someone else at the testator’s discretion)
  • at leaset 2 attesting witnesses
  • testator sign the iwll in each of the witnesses’ presence
  • the witnesses sign in the testator’s presense

UPC: attested by 2 competnent witnesses or a notary

24
Q

Self-Proving Affidavit

A

Recites that all elements of the due execution were performed and sworn to by the testator and witnesses b4 a notirary public. used b/c it is often difficult to find wintesses as they dies or unable to remember the witnessesin the will/

Signatures on affidavit can be counted as signatures on the will

25
Q

Holographuc Wills

A

Entirely written in the testator’s handwriting and has no attesting witnesses. Most states recognisze a will that contains some typewritten text as long as the portion not in the testator’s handwriting is not material.

MUST CONTAIN THE TESTATOR”S SIGNATURE

26
Q

Oral Wills

A

For soldiers, and person during their last sickness or in contemplation of immediate death. 2 oer more witnesses to the spoke words are needed.

27
Q

Devise v. Bequest

A

Devise = real property
Bequest = personal property

Legacy is a gift of personal property in a will

28
Q

Specific gifts

A

Is a gift of a partivular item of property distinct from all other objects in the testator’s estate.

29
Q

Ademption

A

Failure of a gift b/c the proeprty is no lionger in the estate

30
Q

Increatese to property after execution of will

A

Increase b4 testator’s death: icnome goes into general estate
Increases after testator’s death: increase passes to specific beneficiary

Securities: spefic bequest includes additional shares produced by stock splits but at CL NO dividend shares, at UPC allow dividend shares/ DOES NOT TAKE newly purchasesd securities

31
Q

Distribution of Lapseed gifts

A
  • Express terms of the will
    -Rule of law
  • Residuary clause
  • Intestacy
32
Q

Basic Rules of Contructuon

A
  • when a testator left a will and it has a residuary clause = intent to not die intestate – avoids intestacy
  • 2 or more contradictory wills = last onw prevails
  • will is contrued as a whole
  • words are given their ordinary meaniing unless it is clear from the will that the testator intended otherwise
  • Techincal words are given the techical meaning unless it is clear otherwise
  • attempt to give effect to all words the testator included
33
Q

Ambiguity

A

Patent - extrinisc evidence admissible (cannot be used to fill in black spaces)
Latent - clear on its facre but cannot be carried out w/o further clarification - courts will consider extrinsic evidence
No apparetn ambiguity (mistake) - plain meaning rule: no extrinic evidence OR modern rule: permits the use of extrinisc evidence

34
Q

Incorporation by reference

A

A document may ne incorp/ by ref. into a will provided:
1) will manifests intent to incorp. the doc
2) doc is in existence at the time will is executed
3) doc is sufficiently described in the will

35
Q

Codicil

A

Same formalities as a will.

Date of the will be as of teh codicil for terms of determining whether a child was born or etc…

36
Q

Revocation by Operation of Law

A

Marriage -
- has no effect on the earlier will

Divorce:
- revokes all gifts and fiduciary appointments in favor of the former spouse. Will remains valid as if ex predeceased the testator.
- divorce must be final

Pretermitted Children:
- revokes a will for the unaccounted shild to take a share using statutroly provided formulas

37
Q

Revocation by a Physical Act

A

A will or codicil can re revoked by buring, tearing, cancelling, or obliterating a material portion of the will wi the intent to recoke

Intent MUST BE concurrent with the act. If will is accidently destroyed, or by mistake, no revocation

YOU CAN direct someone else to detrowy the will in the testator’s presense

38
Q

Revocation by Writing

A

Must be w/ same formalities

39
Q

Presimptions as to Revocation

A

Presumption of no recovation: if will is found in a normal location and there are no suspicious circumstnaces, ther is a presumption that testartor did not revoke it.

Presumption of revocation: will cannot be found or is found mutliated, a presumption that testator revoked

40
Q

Lost or Destroyed wills

A

May be admitted to probate if can be proven
1. valid exectuion
2. cause of non production
3. contents of the will

41
Q

Will Revival

A

UPC: if a will is revoked, it remains revoked unless it is evident from testator’s statements that testator intended to revive.

Auto revive approach: revival is auto that revoking will did not take effect b/c it was revoked prior to testator’s death

NO revival: once a will is revoked, it is not revived when the subsequent will is itself revoked.

42
Q

Doctrine relative revocation (DRR)

A

applies when a testator revokes their will under the mistaken belieg that another dispostion of their proeprty would be effective

43
Q

Will Contests

A

1) Timing & Notice
2) Standing (Only interested parties)
3) Burden of Proof

usual grounds for contest
- defective execution
- revocation
- lack of testamentary capacity
- lack of testamentary intent
- undue influence
- fraud
- mistake

44
Q

Insane Delsuins

A

Belief in facts that do not exist and that no rational person would belive existed.

Destroyes testamentary capacity only if there is a connection between the delusion and the property dispostiion

45
Q

Undue Influence

A

Must est:
- inlfuence was exerted
- effect of influence to overpower the mind and free will
- dispostion woild not have been executed but for the influence

Mere opportunity or susceptibility is not enouugh

46
Q

Fraud

A
  • False misrep to made to the testator
  • Knowledge of falsity
  • testator reaosnably believed in the statement
  • the statemetn caused the testator to execurte a will or make a disposotpn that the testator would not have made
47
Q

Nocontest clause

A

Valid unless the beneficiary had probable cause for brining contest

48
Q

Powers and duties of a personal rep

A
  1. give notice
  2. discover and collect probate assets and file inventory
  3. manage the assets of the estate during the administration
  4. pay expenses of administration
  5. disribite proeprty
49
Q

Order of Claims pauud

A
  1. administration expenses
  2. funeral expenses and expenses of last illness
  3. family allowance
  4. debts given preference under federal law
  5. secured claims
  6. judgemnts entered agaisnt decednet
  7. all other claims
50
Q

Integration of a will

A

process of embodying several sheets of paper or docs into a single, entire will, validated by a single aciton of execution.

Must show that
(1) all pages were present
(2) testator intended to be a part of the will

Wills (1 decks)

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