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Wills > Intestacy and Intestate Succession > Flashcards

Intestacy and Intestate Succession Flashcards

1
Q

Intestate Succession

A

Decedent dies without a will

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2
Q

Three steps when Decedent dies without a will

A
  1. Identify whether there is a surviving spouse
  2. Look for issue of Decedent
  3. If no issue, look for collateral heirs
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3
Q

What happens if there is a surviving spouse?

A

Carve out share for the surviving spouse

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4
Q

What are the requirements to be a surviving spouse?

A

Survived the decedent by 120 hours or 5 days

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5
Q

Is a surviving spouse still and SS if they are separated from the Decedent?

A

Yes

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6
Q

When is a surviving spouse no longer an SS?

A

After the final order of divorce

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7
Q

What is the share of an SS where there are no descendants or parents?

A

Entire estate

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8
Q

What is the share of an SS who has a parent or descendant?

A

$150K adjusted for inflation

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9
Q

What is the share of an SS who has no descendants BUT one parent?

A

75% of the remaining estate

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10
Q

What is the share of an SS left with descendants that are only SSs?

A

50% of the remaining estate

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11
Q

What is the share of an SS who has their own descendants?

A

50% of the remaining estate

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12
Q

What is the share of an SS where one descendant is NOT theirs?

A

50% of remaining estate

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13
Q

What is the share of an SS where all descendants are from decedent only?

A

$100K adjusted for inflation

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14
Q

Issue

A

Lineal descendants (children, grandchildren, etc.)

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15
Q

What does each child of a decedent receive?

A

Equal share of what remains in the estate

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16
Q

What happens where a child of decedent has died but leaves surviving issue?

A

First generation priority gives one share to each member who is alive at time of decedent’s death

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17
Q

What happens where a child of decedent has died but leaves no surviving issue?

A

No share at all

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18
Q

How do you distribute equal shares to predeceased with surviving issues?

A

Combine shares of predeceased members and drop down to be divided equally among surviving issue.

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19
Q

Collateral Heirs

A

Siblings, Cousins, etc.

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20
Q

Where there is no issue or SS, where do the shares go?

A

Collateral heirs

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21
Q

What is the procedure for distributing money to collateral heirs?

A

Up, over, and down approach:

  1. Up from decedent to first common ancestor who survives or leaves issue
  2. If ancestor has died, move over to branch of heirs
  3. Down to collateral heirs- nieces and nephews.
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22
Q

Slayer Rule

A

If person is responsible for death of decedent, person cannot be an heir

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23
Q

What is the standard of proof for the Slayer Rule?

A

Preponderance of the evidence

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24
Q

What happens to the Slayer Rule if the person is acquitted?

A

They can still be barred from receiving a share

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25
Q

Advancements

A

Gifts during lifetime that are deducted from share

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26
Q

How does Michigan recognize Advancements?

A

Gifts during lifetime are not advancements UNLESS:

  1. accompanied by writing
  2. signed by heir acknowledging advancement OR
  3. signed by donor indicating gift is an advancement
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27
Q

What are the 2 types of acceptable wills?

A

Attested will and a Holographic will

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28
Q

What 3 things must a Will have for sufficient execution?

A
  1. Capacity
  2. Intent
  3. Proper Execution
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29
Q

Harmless Error Doctrine

A

Last resort to a will after determining there isn’t an attested or holographic will and there is clear and convincing evidence that decedent intended the document be his will.

30
Q

What isn’t required in a holographic will?

A

Witnesses

31
Q

What are the 3 requirements of a holographic will?

A
  1. Handwritten;
  2. Material provisions in testator’s handwriting; and
  3. Document is dated
32
Q

What are the 3 requirements to satisfy an attested Will?

A
  1. In writing
  2. Signed by testator
  3. Signature of 2 witnesses within a reasonable time after witnessing testator sign or acknowledge the will
33
Q

Does the “intent” requirement in a will apply to the contents?

A

No, it is the intent to be a will

34
Q

What 3 things can invalidate a will?

A
  1. Undue influence
  2. Fraud/Duress
  3. Revocation
35
Q

What 4 ways can a will be revoked?

A
  1. By physical act
  2. In writing
  3. Divorce
  4. Revival
36
Q

What are examples of physical revocation of a will?

A

Burning, tearing, destroying, drawing a line through the will

37
Q

How do you impliedly/expressly revoke a will?

A

Execution of a subsequent will disposing terms in original will OR duplicate original wills

38
Q

Codicil

A

Testamentary instrument amending prior-executed will

39
Q

How is a codicil treated?

A

Changes part of a prior will but keeps the rest

40
Q

If a will is revoked, what happens to its codicil?

A

Codicil is revoked

41
Q

If a codicil is revoked, what happens to the will?

A

Will remains valid

42
Q

When can a testator reference another document to be incorporated into a will?

A
  1. Document existed on day will was executed; and

2. Document is described with sufficient detail to know which document is intended to be incorporated

43
Q

When can a testator reference personal property to be incorporated into a will?

A
  1. Document describes items and devisees in a way a court can understand; and
  2. Either signed by testator or in testator’s handwriting
44
Q

When is reference to an act or event prohibited in a will?

A

When the act or event has no independent legal significance

45
Q

What affect does an appointment of a will have?

A

Appointment defers to someone else the power to decide property distribution for a decedent

46
Q

What are the two types of appointments for a will?

A

Special and General

47
Q

What is a general appointment?

A

Permits the holder in power to exercise in favor of anyone (including himself)

48
Q

What is a Special appointment?

A

Limits the holder in power to exercise in favor of a limited class of people (NOT including himself)

49
Q

Attestation Clause

A

Evidence that will was properly executed and no witnesses need to be called to contest

50
Q

What is a will Contract?

A

Contract with the testator that entitles you to a portion of the testator’s estate

51
Q

What 3 requirements does a will Contract need to be valid?

A
  1. Separate signed writing setting forth terms of K;
  2. Will mentions the K w/ extrinsic evidence of terms; or
  3. Will mentions K and contains all terms of the will
52
Q

What happens when the beneficiary of a will dies?

A

Bequest will lapse and property goes to residue of estate

53
Q

What is Michigan’s Anti-Lapse Statute?

A

Bequest of a predeceased beneficiary goes to the grandparents, lineal descendants of grandparent, or stepchild.

54
Q

Does Michigan’s Anti-Lapse Statute apply to surviving spouses?

A

NO

55
Q

Ademption

A

Property devised in a will changes so the beneficiary takes nothing

56
Q

What is Michigan’s Non-Ademption Statute?

A

If testator didn’t intend for ademption, beneficiary may have a right to value of bequest

57
Q

What happens when property devised in a will changes but had an income stream?

A

The beneficiary is entitled to that income stream if no money has been received by the estate.

58
Q

Who are the 4 interested parties that can contest a will?

A
  1. Stands to take anything under a will;
  2. Stands to receive property under a will;
  3. Heirs; or
  4. Creditors
59
Q

What are the 6 primary challenges to contest a will?

A
  1. Lack of mental capacity;
  2. Lack of intent;
  3. Improper execution;
  4. Undue Influence
  5. Fraud/Duress; or
  6. Revocation
60
Q

What is the rule for contesting a will due to Undue Influence?

A

Subject to threats, misrepresentation, coercion sufficient to overpower the mind, destroy free agency, and impel grantor to act against inclination and free will

61
Q

Does Michigan permit “Mistake” as a reasoning for contesting a will?

A

No

62
Q

What two types of people are protected from disinheritance?

A

Surviving spouse and children

63
Q

In Michigan, what 2 things does a spouse have the legal right to?

A
  1. Accept what’s given under the will; or

2. Elect against the will and take elective share

64
Q

In Michigan, what is an elective share if the surviving spouse chooses to elect this option?

A

Half of what intestate share would’ve been minus half the value of property the spouse received by any non-probate means (life insurance)

65
Q

In Michigan, what date must a widow die before to receive widow’s rights?

A

4/6/2017

66
Q

Does a wife have a right to intestate share if she married testator after executing a will?

A

Yes

67
Q

What rights does a child who did not exist at the time of a will have?

A

Right to intestate share

68
Q

Probate

A

Judicial process whereby a will is proved and shares are dispersed

69
Q

What happens if a child was committed from a will but other children were included?

A

Omitted child receives share proportional to what other children receive

70
Q

When are statutory allowances applicable?

A

In probate before omitted spouse, omitted child, or elective share

71
Q

What are the three statutory allowances?

A
  1. Homestead: $15K to SS or children if no SS
  2. Family: Reasonable amount up to $18K for children to maintain family admin
  3. Personal Property: SS gets property items up to $10K
72
Q

What is the 7 levels of priority of payments in probate?

A
  1. Cost and expenses of admin (lawyers)
  2. Reasonable funeral expenses
  3. Statutory allowances
  4. Debts pursuant to fed law
  5. Medical expenses
  6. Debts pursuant to state law
  7. all other claims

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