general

Question 1

intestacy rules

decedent dies leaving…
- only a spouse
- spouse and issue
- no spouse
- no spouse or issue

How are assets distributed in intestacy?

Answer 1

Only a spouse —> spouse takes all

Spouse and issue (kids, grandkids, etc)
* Most states —> spouse and issue receive certain %
* UPC —> spouse takes all if all issue are from that spouse

No spouse —> decedent’s issue

No spouse or issue
* Common law consanguinity —> all persons of same degree of relationship to decedent take equal shares (uncle and cousin take equally)
* UPC parentelic method (reeves and SMB) —> descendants of the decedent’s parents take to the exclusion of descendants of the decedent’s grandparents (niece takes, uncle fucks himself)
Reeves/SMB way - parents take, then parent’s descendants take

Assets —> majority follow per capital at each generation

Question 2

intestacy distribution of assets

Answer 2

majority rule per capita at each generation

Question 3

kids are kids unless

Answer 3

theyre step kids

Question 4

dividing assets 2 approaches

Answer 4

Majority & UPC —> Per Capita at Generation
 Divide evenly at the first generation, then pool the shares of the predeceased individuals and divide that amount evenly among all of the predeceased’s living issue

Minority —> Per Stirpes
 Divide among testator’s children (dead or alive), then pass the dead person’s estate down the line until it goes to their issue and divide among living immediate issues (this is the way that seems most logical to me)

Question 5

will requirements - capacity

Answer 5

Testamentary capacity
 Nature and extent of your property
 Natural objects of you r property
 Disposition you are making of the proeprty
 Ability to connect all the above elements together and make a coherent plan

o Testamentary intent

o Legal capcity – 18+

o Complying with state law

Question 6

will requirements + (UPC addons)

Answer 6

Writing

Signed by testator - usually any mark is fine (or someone in testator’s presence at their direction)
 Majority rule —> within testator’s line of sight
 Minority & UPC —> within range of testator’s physical senses (NOT cell phone)

Witnessed by 2+ people (or notarized)
 Common law —> no witnesses that have interest in the will or else all they get is intestate share
 UPC/majority —> fuck it

Question 7

UPC harmless error

Answer 7

o If you can prove by clear and convincing evidence that the will is what the testator wanted, youre fine

Question 8

codicil (written/holograph)

Answer 8

Written (same as will)
 writing
 Signed by testator
 2+ witnesses
Holographic (also same for will)
 Completely handwritten – NOT TYPED
 Signed by testator

Question 9

incorporation by reference

Answer 9

o Writing in existence at time will was created
 NOTE: if X wasn’t in existence at the time of will creation, but did exist at codicil creation, it can be incorporated

o Will language manifests intent for document to be incorporatied

o Will describes writing with particularity

Question 10

revocation

physical act
subsequent will/codicil
crossing things out
revocation bc mistake law/fact

Answer 10

Physical act
 Intent to revoke
 Will must be burnt, destroyed, torn, cancelled (or someone at his discretion and in his presence)

By subsequent will/codicil
 Default rule: new will/codicil will knock out only conflicting old terms of old will
 To revoke the whole thing, must state “im revoking all the old shit” explicitly

Crossing things out
 Approaches
* Common law —> words of cancellation must come in contact with words of the will to revoke
* UPC —> words of cancellation don’t have to make contact
 Basically if your crossout/defacment of will meets holograph requirements its good

Revocation due to mistake of law/fact
 Dependent relative revocation (DRR)
* Courts will look to what testator actually wanted —> “this is an intent-effectuating document”
* If court finds a sufficiently close identity between what you wanted and what you revoked bc of mistake, it will revise BUT the evidence has to be in the will document

Question 11

• Advancement

Answer 11

ONLY for intestate succession

o Common law —> gifts to heirs during life = advancement
o UPC —> presumes just a gift unless testator’s intent was shown that it would reduce the intestate share

Question 12

anti lapse

Answer 12

If predeceased beneficiary is a specified (by statute) blood relative of the testator, the gift goes to the beneficiary’s issue

No residue of residue rule
 Common law —> any residuary shares of a decedent’s estate found invalid pass thorugh intestacy
 Modern rule —> If antilapse doesn’t apply: invalid residuary shares go to the other residuary beneficiaries, not intestacy

Question 13

ademption

Answer 13

specific property only (ex. red corvette)
 If they didn’t have it at death —> ademption by extinction
 If they give it to you before they die —> ademption by satisfaction

Look at testator’s intent to see if they wanted the person to have a substitute item
 They court may give real property, tangible item, money, insurance
 NOTE: if they gave specific real property, UPC and Property Replacement Theory allows ANY replacement property they person purchased as a substitute or the original property

General property does NOT adeem

Question 14

Ademption by satisfaciton

Answer 14

There IS a will this time (different than advancement)

UPC: lifetime gifts are not satisfactions unless (at least one)
 The will says so
 Testator declares as much in a contemporaneous writing that the gift is deduced from will
 Devisee acknowlodges in writing

Question 15

• Abatement

Answer 15

not enough money in the estate to satisfy creditors

The gifts you gave must now be reduced in order:
 Property not disposed of in the will
 Residuary bequests (stuff going to people not specified in the will)
 General bequests
 Specific bequests

They abate pro rata – a portion of each gift will be taken off the whole before the category is depleated

Question 16

slayer rule

Answer 16

Intentional, felonious murder based on a preponderance

Question 17

• Disclaiming gifts

Answer 17

passes as if person predeceased

requirements
o Declare in writing
o Descripition of interest/power being disclaimed
o Signature
o Delivery/filing

Question 18

Pretermitted children

Answer 18

Will written —> then kid born/adopted

Pretermitted children (real or adopted) get an intestate share if they were unintentionally left out
o Adopted kids do NOT take from original parents

Question 19

challenging will

Answer 19

o Standing —> must be beneficiary, should have been beneficiary, or would have financially benefitted intestate
 NOTE: no-contest challenges are allowed

o Undue influence SODA
 Susceptibility + opportunity + disposition (to exert UI) + appearance of will shows fuckery
NOTE: most courts only invalidate UI infected portions of will

o Fraud —> in inducement or execution (analyze like normal)

Question 20

What state’s laws govern will validity?

Answer 20

o State of execution OR testators domicile at time of death OR testators domicile at signing

Question 21

• Automatic revival

Answer 21

Common law —> yes

UPC —> intent for revival must be shown

Modern View → Revival permitted only when:
a) Will is revoked by physical act and testator intended its revival; OR
b) Will is revoked by a subsequent instrument and that will is later republished by a subsequent will or codicil.

Goat says the UPC just says you have to show intent for revival

Question 22

• Mutual will Ks

Answer 22

allowed. Analyze under K law

Question 23

• Class gifts

Answer 23

have to be specific (NOT “my friends”)

Class generally closes when testator dies

Rule of convience —> class closes when any member is entitled to gift

Gifts to predeceased class members
 If individual members named —> apply lapse rules
 If named as a group —> divide among living members (unless will/statute says otherwise)

Question 24

Standard for a court to Reform/modify a wil

Answer 24

—> clear and convincing evidence of intent of testator showing mistake of fact or law

Question 25

Simultaneous death & determining whether someone predeceased the other for inheritance and anti-lapse reasons

Answer 25

o Common law —> presumption of dying at same time
o UPC/RUSDA —> must prove you outlived dead spouse by 120 hours (make the argument, circumstance specific analysis) by c&c evi or the property is distributed like you precedeased

Question 26

Living will / durable POA

Answer 26

o Advanced directive —> specifies patient’s preferences for treatment/non treatment in incapacity

o durable health care power of attorney —> allows you to appoint durable healthcare power of attonrey to an agent to make healthcare decisions

BOTH Must be witnessed/notarized and in writing

Good faith decisions are shielded from crim/civil liability in durable healthcare POA

Question 27

Is a child living at the time of will execution but still left out of the will entitled to a share?

Answer 27

NO unless…
T didnt know the child existed OR believed the child was dead