Kaplan MEE Estates and Wills Flashcards
1
Q
What is the Law of Decedents’ Estates?
A
Inquiry into where a decedent’s property will go at death.
2
Q
What are the two types of succession in the context of decedents’ estates?
A
- Intestate Succession
- Testate Succession
3
Q
What is the difference between intestate and testate succession?
A
- Intestate: without a will
- Testate: with a validly executed will
4
Q
What is the decedent’s probate estate?
A
Real and personal property left at death.
5
Q
What are non-probate assets?
A
Property not passing through probate, such as will substitutes.
6
Q
What are examples of non-probate assets?
A
- Joint tenancy
- Tenancy by the entirety
- POD and TOD accounts
- Revocable trusts
- Life insurance policies
7
Q
What are the key elements that determine the validity of a will?
A
- Testamentary capacity
- Testamentary intent
- Appropriate formalities
8
Q
What is testamentary capacity?
A
The ability of the testator to understand the nature and extent of their property and the disposition being made.
9
Q
At what age can a person typically execute a valid will?
A
18 years of age or older.
10
Q
What does ‘sound mind’ mean in the context of executing a will?
A
The testator’s ability to understand the nature of their property and the disposition of it at the time of execution.
11
Q
What is ‘testamentary intent’?
A
The testator’s intention for a document to serve as their will.
12
Q
What are the three concepts that can prevent testamentary intent?
A
- Undue Influence
- Fraud
- Mistake
13
Q
What constitutes undue influence in relation to a will?
A
When a wrongdoer exerts influence that overcomes the testator’s free will.
14
Q
Under what circumstances does a presumption of undue influence arise?
A
- Wrongdoer in a confidential relationship
- Suspicious circumstances surrounding the will’s execution
15
Q
What are the two types of fraud that can affect a will?
A
- Fraud in the execution
- Fraud in the inducement
16
Q
What is the difference between fraud in the execution and fraud in the inducement?
A
- Execution: fraud as to the nature of the document
- Inducement: fraud as to intrinsic facts influencing the testator
17
Q
What are the two types of mistakes that can affect a will?
A
- Mistake in the execution
- Mistake in the inducement
18
Q
What are the formal requirements for a valid attested will?
A
- In writing
- Signed by the testator or in their presence
- Witnessed by at least two individuals or acknowledged before a notary
19
Q
What does ‘conscious presence’ mean in the context of a will’s execution?
A
The testator is aware of the signing occurring, which includes being within earshot.
20
Q
Is there a requirement for a testator’s signature to be their formal name?
A
No, it can be any mark indicating intent.
21
Q
What is the significance of the term ‘negative will’?
A
A will that expressly excludes or limits the rights of individuals to inherit under intestate succession.
22
Q
What is the role of a notary public in the execution of a will?
A
To acknowledge the will and validate it, either in lieu of or in addition to witness attestation.
23
Q
True or False: A will must be witnessed to be valid.
A
False, a will can be valid if acknowledged before a notary.
24
Q
What can happen if a will is found to be the product of fraud?
A
The provisions benefiting the fraudulent party may be voided.
25
What is required for the formal execution of a will?
The will must be signed by the testator and witnessed by at least two individuals.
26
True or False: A will is considered formally executed once the second witness signs it.
True.
27
What is the role of a notary public in the will execution process?
A notary can attest to the will in lieu of or in addition to witness attestation.
28
Under what circumstances can a will be validated despite defects?
Under the Harmless Error Rule, if clear and convincing evidence shows the testator intended the document to be their will.
29
What does the Integration Rule state regarding multiple-page wills?
Any pieces of paper present at execution intended to be part of the will are considered part of the will.
30
Who is considered an interested witness?
A witness who is also a beneficiary of the will.
31
True or False: The signing of a will by an interested witness invalidates the will.
False.
32
What happens to an interested witness's share in some states?
Their share may be purged by treating them as having predeceased the testator.
33
What is a self-proving will?
A will that proves itself without the need for testimony from attesting witnesses.
34
What is required for a will to be made self-proved after execution?
Acknowledgment of the testator and affidavits of the attesting witnesses before an officer authorized to administer oaths.
35
Define a holographic will.
A will written entirely in the testator's own handwriting.
36
What is the requirement for material portions of a holographic will under the UPC?
Only the material portions and signature must be in the testator’s handwriting.
37
True or False: A holographic will requires witnesses.
False.
38
What is a conditional will?
A will that is conditioned upon a specific event occurring.
39
What are the requirements for a contract to make a will to be valid under the UPC?
Material provisions in the will, express reference to the contract, or a signed writing evidencing the contract.
40
What is a codicil?
An instrument executed after a will that adds to, explains, or deletes from the original will.
41
How does a valid codicil affect the original will?
It republishes the original will, treating it as if executed on the date of the codicil.
42
What are the requirements for a will executed in a foreign jurisdiction to be valid?
Compliance with will formalities, law at time and place of execution, or law of the testator's domicile.
43
What are the methods of revocation under the UPC?
Physical act, executing a subsequent will, or divorce.
44
What constitutes a revocatory act on a will?
Burning, tearing, canceling, obliterating, or destroying the will.
45
What is the presumption regarding a later will that makes a complete disposition of the testator’s estate?
It is presumed to replace rather than supplement the previous will.
46
What happens to provisions in a will if the testator gets divorced?
All provisions favoring the ex-spouse become ineffective unless intended to survive the divorce.
47
Who bears the burden of proof to establish revocation of a will?
The party seeking to revoke the will.
48
What happens to a will if the testator is divorced after making it?
All provisions in favor of the ex-spouse become ineffective unless otherwise stated in the will
## Footnote
This rule ensures that a testator's intent is honored post-divorce.
49
Who bears the burden of proof to establish the revocation of a will?
The party seeking to revoke the will
## Footnote
This is critical in legal disputes regarding a testator's intentions.
50
In the hypothetical scenario, what will Cousin take from T's estate?
Cousin remains disinherited
## Footnote
The revocation of the later will was not valid, so Cousin does not inherit.
51
What constitutes a valid revocation of a will?
Intent to revoke plus a physical act such as burning, tearing, or obliterating the document
## Footnote
Revocation can also occur through a subsequent will.
52
What is Dependent Relative Revocation (DRR)?
Revocation based on a mistake of fact or law can be undone if that aligns with the testator's likely intent
## Footnote
DRR aims to honor what the testator would have preferred.
53
What is the general rule regarding the revival of revoked wills?
Once a will is validly revoked, it cannot be brought back to life
## Footnote
Exceptions exist for restatement, re-execution, or clear intent to revive.
54
How can a valid will be revived after it has been revoked?
Through a codicil or re-execution of the original will
## Footnote
A codicil serves to incorporate and revive the revoked will.
55
What is presumed when a will cannot be found after the testator's death?
It is presumed to have been destroyed with the intent to revoke
## Footnote
This presumption holds unless the will was known to be outside the testator's possession.
56
What is the effect of revoking an executed copy of a will?
Revocation of an executed copy effectively revokes the will
## Footnote
Unexecuted copies have no legal effect.
57
What is required for a person to contest a will?
They must have a beneficial interest in the estate if the contest is successful
## Footnote
Heirs have standing even if not named in prior wills.
58
What are the grounds for contesting a properly executed will?
* Lack of testamentary capacity
* Undue influence
* Mistake
* Fraud
* Ambiguity
## Footnote
Both patent and latent ambiguities can be grounds for contest.
59
What is an in terrorem clause?
A clause that attempts to disqualify anyone contesting the will from taking under it
## Footnote
Courts often construe these clauses narrowly.
60
What does the doctrine of incorporation by reference allow?
It permits the inclusion of unattested documents in a will if they were in existence at the time of execution
## Footnote
The will must manifest intent to incorporate and describe the writing sufficiently.
61
What is the significance of after-acquired property in relation to a will?
It is not covered by the will unless specifically mentioned
## Footnote
This can lead to partial intestacy if the will does not address new acquisitions.
62
What is a surviving spouse's right regarding the elective share?
They can decline to take under the will and choose an elective share, typically 50% of the marital property portion
## Footnote
This right persists even if they are omitted from the will.
63
What is the time frame for a surviving spouse to elect for an elective share?
Within nine months after the decedent's death or six months after the probate of the will
## Footnote
Timeliness is crucial for preserving this right.
64
What can a surviving spouse do in response to a will?
Challenge the will or take an elective share within specific time frames
## Footnote
The elective share must be claimed within 9 months of the decedent's death or 6 months of probate.
65
What is the elective share amount generally equal to?
50% of the value of the marital property portion of the augmented estate.
66
How is the augmented estate defined?
The sum of all property of the decedent, including:
* Net probate estate
* Non-probate transfers to others
* Non-probate transfers to the spouse
* Surviving spouse's net assets at decedent's death.
67
How does the length of marriage affect the marital property portion in the elective share?
Longer marriages yield a higher marital property portion, from 3% for short marriages to 100% for marriages of 15 years or more.
68
What happens if the elective share is not satisfied by transfers to the surviving spouse?
The decedent's probate and non-probate transfers to others are proportionately liable to satisfy the balance.
69
What is the supplemental elective share designed for?
To bring the surviving spouse's assets up to at least $75,000.
70
Can a surviving spouse claim an elective share from a revocable trust?
Yes, if the decedent could have revoked the trust, the property is considered to belong to the decedent until death.
71
How can a surviving spouse waive their right of election?
Through a written contract or agreement signed by the surviving spouse.
72
What are omitted heirs under the UPC?
Children living at the time of the will's execution who are not mentioned or provided for in the will.
73
What statutory protection exists for children born or adopted after the execution of a will?
They are entitled to a share unless the will indicates the failure to provide was intentional.
74
What is the effect of a valid codicil on an after-born child?
It republication the will as of the codicil's date, treating the after-born child as if they were in existence at the time of the original will's execution.
75
What rule regarding charitable dispositions has been abolished?
The rule that a charitable devise is invalid if it exceeds a certain proportion of the testator's estate.
76
What is the Slayer Act?
It disqualifies anyone who participates in the unlawful killing of the decedent from acquiring property or benefits from their death.
77
What happens to a slayer's interest in a joint tenancy after the killing?
The slayer's interest is converted to tenancy in common, with the remaining portion passing to the probate estate.
78
What is the survivorship rule under the UPC?
A person must survive the decedent by 120 hours to inherit; otherwise, they are deemed to have predeceased the decedent.
79
What are the requirements for a valid disclaimer of property interests?
Must be in writing, declare the disclaimer, describe the interest disclaimed, signed by the disclaiming party, and delivered or filed.
80
What is a specific bequest?
A gift by will of something identifiable and distinguishable from other things of the same kind.
81
What is a general legacy?
A legacy payable out of the general assets of the estate, rather than a specific item.
82
What is a specific bequest?
A specific bequest is a gift by will of something that can be identified and distinguished from all other things of the same kind and is satisfied only by delivery of the particular thing.
## Footnote
The use of the possessive word “my” usually indicates that a specific legacy was intended.
83
What is a general legacy?
A general legacy is one payable out of the general assets of the decedent’s estate and not separated or distinguished from other things of like kind.
84
What is a demonstrative bequest?
A demonstrative bequest is a bequest of a sum certain to be paid out of a particular fund.
85
What happens if the fund for a demonstrative bequest is not in existence at the testator’s death?
If the fund is not in existence at the testator’s death or if it is insufficient, the legatee will be entitled to satisfaction out of the general estate.
86
What is ademption?
Ademption is what happens when a gift under a will fails for whatever reason.
87
What is ademption by extinction?
Ademption by extinction occurs when property specifically bequeathed or devised is no longer in the testator’s estate at death.
88
Can a general gift adeem by extinction?
No, a general gift cannot adeem by extinction.
89
What is the status of a specific devisee if the specifically devised property is sold by a conservator?
The devisee has the right to a general devise equal to the sale price, the unpaid loan amount, or the recovery.
90
What is the non-ademption balance for a specific devisee?
A specific devisee has a right to all specifically devised property that remains in the testator’s estate at death, and to:
* any balance of the purchase price owed by a purchaser
* any amount due for condemnation
* any proceeds unpaid on fire or casualty insurance
* any replacement property acquired for the specifically devised property.
91
What is the no-exoneration rule?
The no-exoneration rule states that property subject to a lien will go to the designated beneficiary with that lien intact, unless the will specifies for the executor to pay the debt on the property.
92
What is abatement?
Abatement occurs if the assets of the testator’s estate are insufficient to satisfy all the bequests or devises to the beneficiaries after payment of all claims.
93
What is the order of abatement?
The order of abatement is:
* property that would pass intestacy
* residuary bequests
* general bequests
* demonstrative bequests
* specific bequests.
94
What constitutes a class gift?
A class gift exists when the testator makes a gift to a group of persons, and the size of the group may change; the share of each depends upon the ultimate number in the class.
95
When does a class gift typically close?
Class gifts generally close at the time the will is effective, which is at the testator’s death.
96
What is a lapse in a will?
A lapse occurs whenever a beneficiary predeceases the testator, causing the gift to that beneficiary to fail.
97
What is an anti-lapse statute?
An anti-lapse statute saves a gift if the predeceasing beneficiary was closely related to the testator and was survived by descendants who also survived the testator.
98
What are the requirements for a gift to be saved by an anti-lapse statute?
The predeceasing beneficiary must be closely related to the testator and survived by descendants who also survived the testator.
99
What happens to a lapsed gift in a class gift?
A lapse in a class gift falls to the other class members.
100
What is the effect of the express contrary intent in a will regarding anti-lapse?
An expressed contrary intent in a will can prevent the application of the anti-lapse statute.
101
What happens if a beneficiary in a class gift dies before the testator?
The remaining class members will share the lapsed gift proportionally.
102
What is ademption by satisfaction?
Ademption by satisfaction occurs when a testator makes an inter vivos gift to a beneficiary with the intent that it satisfies the provision of the will in whole or in part.
103
What are the conditions for property given during life to count as satisfaction of a devise?
The will must provide for deduction, the testator must declare in writing that the gift satisfies the devise, or the devisee must acknowledge in writing that the gift satisfies the devise.
104
If a testator gives a specific gift and then gives the same gift to the same beneficiary during their lifetime, what is the outcome?
The beneficiary receives both the specific gift given in the will and the inter vivos gift, as long as the conditions for ademption by satisfaction are not met.
105
What happens to the devise if the specific property is not in the estate at death?
The devise is subject to ademption by extinction, and the beneficiary cannot receive it.
106
What is the exception to ademption by extinction?
If the specifically devised property is replaced by other property of similar kind, the beneficiary may receive the replacement property.
107
What happens to Andy's house upon his death?
Mary would have received the house, but as a divorced spouse, she is treated as having predeceased Andy. Thus, Opie would inherit the house.
108
What does the anti-lapse statute provide in this context?
Opie would inherit the property under the anti-lapse statute or under the residuary clause.
109
What remains of the $10,000 bequest to the church?
$10,000 to church remains unchanged.
110
What is Helen entitled to from Andy's estate?
Helen is entitled to ½ of the marital property, including the boat and bank accounts.
111
What does the omitted child doctrine consider?
An omitted child may be a natural or adopted child born or adopted after the will's execution.
112
What is intestacy?
Intestacy is total when no valid will exists or when a valid will is revoked or successfully challenged.
113
What constitutes partial intestacy?
Partial intestacy occurs when a will does not cover all of the testator's property.
114
What is the general rule regarding a surviving spouse's share?
A surviving spouse will always take some portion of the decedent's estate.
115
How much does a surviving spouse take if there are no descendants or parents?
The surviving spouse takes the entire estate.
116
What does a surviving spouse receive if there are surviving descendants who are all descendants of both spouses?
The surviving spouse takes the entire estate.
117
What share does a surviving spouse receive if there are surviving parents?
The spouse takes the first $300,000 plus 3/4 of the balance of the intestate estate.
118
In a scenario with a surviving spouse and descendants who are not descendants of the surviving spouse, how is the estate divided?
The surviving spouse takes the first $150,000 plus 1/2 the balance of the intestate estate.
119
What is the definition of 'representation' in intestate succession?
Representation refers to how shares are distributed among descendants, differing by jurisdiction.
120
What is the result if a descendant predeceases the decedent and leaves no descendants?
The share fails and is treated as if that child had never been born.
121
What happens if the decedent is survived by neither spouse nor descendants?
The estate descends to the decedent's parents or their descendants by representation.
122
How does the Uniform Simultaneous Death Act apply?
Heirs must survive the decedent by 120 hours to inherit.
123
What inheritance rights do adopted children have under the UPC?
Adopted children are treated as natural-born children of their adoptive parents.
124
What happens to inheritance rights of a child adopted by a relative of a natural parent?
They may still inherit from the natural parent's estate.
125
Do stepchildren have inheritance rights?
Stepchildren have no inheritance rights unless legally adopted.
126
How are half-blood relatives treated in most jurisdictions?
Half-blood relatives take equally with whole-blood relatives.
127
What is the status of non-marital children for intestate inheritance?
They are considered children of their mother and can be recognized as children of their father if paternity is established.
128
What determines if posthumous children can inherit?
They must be conceived before the decedent's death and survive their own birth by 120 hours.
129
What is an advancement in intestate distribution?
An advancement is property given during life that reduces the intestate share of the heir.
130
What is required for a gift to be treated as an advancement?
It must be declared in writing by the decedent or acknowledged in writing by the heir.
131
What happens if a recipient of an advancement fails to survive the decedent?
The gift is not counted against the pre-deceasing relative’s descendants unless stated otherwise.
132
What amount did Dorothy give to Grandchild #1?
$60,000
## Footnote
This amount was given specifically because of Dorothy's love for Grandchild #1.
133
How much was Dorothy's total estate at her death?
$120,000
## Footnote
This is the total value of Dorothy's estate to be distributed.
134
To whom should Dorothy's estate be distributed?
To her 6 grandchildren
## Footnote
The estate is distributed to her grandchildren by representation.
135
How many grandchildren will share Dorothy's estate?
6 grandchildren
## Footnote
All are sharing equally as Dorothy's children predeceased her.
136
What does 'advancement' refer to in the context of Dorothy's estate?
Nothing written to indicate intent or acknowledgment
## Footnote
This means the $60,000 given to Grandchild #1 is not considered an advancement towards their share.
137
What was the value of Dan's estate?
$300,000
## Footnote
This is the total amount left by Dan after his death.
138
Who was Clara's sole beneficiary under her will?
Sam
## Footnote
Sam is Clara's spouse and the only beneficiary listed in her duly probated will.
139
What happens to Dan's daughter Clara in terms of inheritance?
Clara is considered to have predeceased Dan
## Footnote
Clara was not survived by Dan for 120 hours, thus she is treated as having predeceased him.
140
Who will share in Dan's estate?
Brother, half-sister, adopted sister
## Footnote
They will each split Dan's estate equally, as they are closer relatives than paternal grandparents.
141
True or False: Paternal grandparents are considered heirs to Dan's estate.
False
## Footnote
Siblings are considered closer heirs than paternal grandparents.
142
Fill in the blank: Dan's estate will be split equally among his _______.
natural, half, and stepsiblings
## Footnote
Each sibling type is mentioned to clarify the distribution.
