MEE Wills Flashcards
What do “will substitutes” [nonprobate property] include?
And, what do you do with will substitutes?
- life insurance
- joint tenancies or tenancies by entirety (marriage)
- inter vivos trusts
- bank account trusts
- deeds
- contracts
- inter vivos gifts, including gifts casa mortis
Will subs are removed FIRST from decedent’s estate before distributing property under a will or via intestacy
Difference between “total intestacy” and “partial intestacy”
Total: the decedent died without having made a will or their will is denied probate
Partial: decedent’s will doesn’t dispose of all their property - either b/c a gift failed or the will doesn’t contain a residuary clause
NOTE: partial is how examiners will test both “will” principles and the principles of intestacy
Distribution in classic per stirpes
Each surviving child gets 1 share; each deceased child who has at least one surviving descendant gets 1 share.
i.e., the shares divide at the “child” generation even if no children survives the intestate individual
*this is currently only a rule in a minority of states
Distribution under Per Capita with Representation
Property is divided into equal shares at the 1st generational level where there are living takers (child level, grandchild level, etc.)
e.g., if all children predecease individual, then property splits evenly among grandchildren because they are the first level with surviving takers
*majority rule
Distribution under the modern trend of Per Capita at Each Generational Level
(1) divide shares at the first generational level where there are living takers
(2) then, take the shares of the deceased persons at that level (where you previously divided), combine the shares, and divide them equally among the takers at this next generational level
Goal? Persons in the same degree of kinship to the decedent always take equal shares
*increasingly modern trend AND adopted by the UPC
If die intestate AND not survived by a spouse or descendants, how is the estate distributed?
- parents or surviving parent
- brother and sisters and their descendants (nieces & nephews)
- STATE SPLIT → if one parent and at least one sibling survive, (A) UPC + some states give entire estate to surviving parent; while (B) other states give ½ to surviving parent and ½ to sibling(s)
- ½ to paternal grandparents + descendants, ½ to maternal grandparents + descendants (with both halves to one side if no takers on the other)
- ½ to nearest kin on maternal side & ½ to nearest kin on paternal side (all to one side if no takers)
and while most states will continue looking for heirs until the estate is distributed, some states will–after this final level–escheat the remainder to the state
What does the Uniform Simultaneous Death Act (“USDA”) provide?
When property disposition depends on the order of death and this order cannot be established,
the property of each decedent is disposed of as if they had survived the other.
the USDA only applies if there is no sufficient evidence of survival.
What did the Revised USDA alter?
The Revised USDA incorporates the “120-hour rule”
This rule states that if an heir dies w/in 120 hours of the decedent, they are considered to have “predeceased” the decedent
Therefore, they do not take any distribution of the decedent’s property.
*The UPC also follows the 120-hour rule
What is required to disclaim an inheritance or gift under a will?
(1) disclaimer must be written;
(2) signed by the disclaimant;
(3) acknowledged before a notary; and
(4) filed with the appropriate court w/in 9 months of decedent’s death
*rule in most states BUT 9 month timeline will vary in some states
4 Legal Requirements to Properly Execute a Will
(1) legal capacity (normally, person must be 18 or older);
(2) testamentary capacity (determined at time will was executed/created);
(3) testamentary intent (present intent that this instrument operates as their will);
(4) formalities
5 Elements of Testamentary Capacity
(1) understand the nature of your act - i.e., that you are actually making a will;
(2) understand the effect of your action (dividing your property, etc.);
(3) understand the nature and extent of your property (what you have and don’t have);
(4) recognize the “natural objects of your bounty” (i.e., who your family members are); AND
(5) all above factors were done simultaneously
What do will formalities typically require?
will must…
(1) be in writing;
(2) be signed by the testator, OR by another at the testator’s direction AND in their presence;
(3) have two attesting witnesses;
(4) be signed by the testator in each of the witnesses’ presence (or, at least acknowledge their previous signature or acknowledge the will); AND
(5) have the witnesses sign in the testator’s presence
What is required re: formalities per the UPC?
a will is valid if either (1) it is attested by 2 competent witnesses, OR (2) is signed by a notary
“Conscious presence” test:
[re: what determines whether a persons is in another’s presence]
The presence requirement is satisfied if:
(1) each party was conscious of: (i) where the other parties were AND (ii) what they were doing; and
(2) the act of signing took place within the general awareness and cognizance of the other parties.
True or False: participation via telephone or computer is not “presence” for the purpose of fulfilling will execution requirements
TRUE: unless the state has specific electronic-will legislation
What is required to incorporate a document by reference (into a will)?
(1) the document must be in existence at the time the will was executed,
(2) the language of the will must sufficiently describe the writing to permit its identification, and
(3) the will must manifest an intention to incorporate the document
What is required of a will in order for it to be republished by a subsequent codicil? And what occurs if this does not happen?
The original will must have been validly executed to be eligible for republication.
If this doesn’t occur, the first will is void, and the second document is valid as a partial will rather than as a codicil.
What does a State’s “Slayer Statute” preclude?
It precludes any person who feloniously and intentionally brings about the death of the decedent from any interest in the decedent’s estate (whether through their will or via the laws of intestacy).
*NOTE: the statute ≠ bar this person from taking a share of an estate because they killed another person—even if that person is the source of the decedent’s property.
e.g., son kills husband; husband leaves wife his estate; wife dies 3 months later intestate; son would still inherit per intestacy that of mother’s estate even though son killed husband who gave wife the means within the estate
Doctrine of Ademption: [Maj. vs. min.; + UPC interpretation]
[Maj.] “Identity Theory of Ademption”: when specifically bequeathed property is not in the testator’s estate at death (they sold it, lost it, etc.), the bequest fails and the individual takes nothing. This theory uses an objective test where the testator’s intent is irrelevant. No longer own? Too bad. Person gets nothing.
[min.] substitution: some courts allow beneficiary to take a substitute property if they can show the testator intended the beneficiary to take that property.
UPC: a specific devisee (recipient of real property) has the right to real and tangible personal property that was acquired by the testator as a replacement for the devised property.
Definition: Holographic Will
a will that is entirely in the testator’s handwriting and has no attesting witnesses
AND
they must contain the following to be valid:
(1) all material portions of the will in the testator’s handwriting; AND
(2) be signed and dated
*NOTE: doesn’t require Ws nor that the testator signs the will at the end of the document, just sign it somewhere
