Trusts & Estates (Decedent's Estates)

Question 1

HIGH

INTESTATE SUCCESSION: DECEDENT IS SURVIVED BY ONLY A SPOUSE

Answer 1

In most states, if the decedent is survived by ONLY a spouse (no descendants), the surviving spouse will inherit the entire estate.

However, some states provide that a certain portion of the estate will be given to the decedent’s parents and the parents’ issues.

Question 2

HIGH

INTESTATE SUCCESSION: DECEDENT IS SURVIVED BY A SPOUSE AND DESCENDANTS

Answer 2

In most states, if the decedent is survived by a spouse AND descendants, the surviving spouse will inherit one-half or one-third of the decedent’s estate with the surviving descendants inheriting the rest. Under the

Uniform Probate Code (UPC), the surviving spouse will inherit the entire estate IF ALL of the descendants are descendants of the surviving spouse.

Question 3

HIGH

INTESTATE SUCCESSION: DECEDENT IS NOT SURVIVED BY A SPOUSE

Answer 3

In most states, if the decedent is NOT survived by a spouse, the decedent’s surviving descendants will inherit the entire estate equally.

Question 4

HIGH

INTESTATE SUCCESSION: DECEDENT IS NOT SURVIVED BY A SPOUSE OR DESCENDANTS

Answer 4

In most states, if the decedent is NOT survived by a spouse OR descendants, the decedent’s surviving parents will inherit the entire estate equally. If there are NO surviving parents, the descendants of the decedent’s parents will inherit the estate (i.e., the decedent’s brothers/sisters, nieces/nephews, and their descendants down the line).

Question 5

LOW

STRICT PER STIRPES

Answer 5

When a child predeceases a parent who later dies intestate:

Under the common law strict per stirpes approach, the estate is divided by the number of members in the first generation of children who are either alive or survived by descendants. Each member who is alive takes their share, and the shares of the deceased members drop to the next generation. This process is repeated for the next generations until every share is taken.

Question 6

LOW

MODERN PER STIRPES

Answer 6

When a child predeceases a parent who later dies intestate:

Under the modern per stirpes approach, the estate is divided equally among the living and deceased at the first generation that has a living taker. Each member who is alive takes their share, and the shares of the deceased members drop to the next generation. This process is repeated for the next generations until every share is taken.

Question 7

LOW

PER CAPITA AT EACH GENERATION

Answer 7

When a child predeceases a parent who later dies intestate:

Under the UPC per capita at each generation approach, the estate is divided at the closest generation to the decedent in which one or more of the descendants are alive. However, shares of the deceased descendants on each level are added together and divided equally among all representatives of the deceased descendants in the next generation level (shares are dropped by “pooling” method).

Question 8

MED

INHERITANCE RIGHTS OF ADOPTED CHILDREN

Answer 8

At common law, ONLY blood relatives inherited from an intestate decedent. Today, adopted children are entitled to receive the same share, under intestacy laws, as biological children.

Generally, adoption terminates the adopted child’s right to inherit from her biological parents. However, a child adopted by her stepparent may usually inherit from her biological parents as well.

Question 9

MED

EQUITABLE ADOPTION

Answer 9

In some states, a child may be informally adopted through adoption by estoppel when a person takes a child in and assumes parental responsibilities. If such a surviving child can establish an adoption by estoppel, equity holds that she can inherit from the decedent as if she were a legally adopted child.

Generally, adoption by estoppel terminates the adopted child’s right to inherit from her biological parents. However, a child adopted by her stepparent may usually inherit from her biological parents as well.

Question 10

MED

INHERITANCE RIGHTS OF NON- MARITAL CHILDREN

Answer 10

At common law, a child born out-of- wedlock was prohibited from inheriting from an intestate decedent. Today, non-marital children may inherit from either parent so long as the facts establish a legal parent- child relationship (non-marital children inheriting from a father must first establish paternity).

Question 11

MED

INHERITANCE RIGHTS OF HALF- BLOOD CHILDREN

Answer 11

At common law, ONLY full-blood children were entitled to inherit from an intestate decedent.

Today, in almost every state, half-blood children (i.e., two people who share one parent, but not the other) are treated equally as whole-blood children. In a minority of jurisdictions, they are treated less favorably and sometimes excluded if whole-blood kin exist.

Question 12

MED

ADVANCEMENTS

Answer 12

Today, gifts to heirs during a testator’s lifetime are NOT considered advancements on the heir’s intestate share of the estate UNLESS:

1. The decedent declared his intent to make the gift an advancement in a contemporaneous writing; OR
2. The heir acknowledged the gift to be an advancement in writing.

Question 13

lowest

SIMULTANEOUS DEATH

Answer 13

Under the initial version of the Uniform Simultaneous Death Act (USDA), where title to property depends upon priority of death - evidence of survivorship, no matter how brief in duration, is sufficient to establish a sequence of death.

Under the UPC and Revised Uniform Simultaneous Death Act (RUSDA), a beneficiary is only treated as having survived the testator if there is clear and convincing evidence that the beneficiary survived the testator by 120 hours (5 days).

Question 14

LOW

GOVERNING JURISDICTION OF THE WILL

Answer 14

Generally, the law in the jurisdiction of the decedent’s domicile at death governs the disposition of his personal property, while the law in the jurisdiction in which the decedent’s real property is located governs the disposition of his real property. However, a decedent may select which state law governs in the terms of his will.

Question 15

MED

HARMLESS ERROR RULE

Answer 15

Under the UPC, a will that is NOT properly executed will still be valid if the party seeking to have it validated proves by clear and convincing evidence that the decedent intended the writing to be his will.

Question 16

LOW

WILL EXECUTION REQUIREMENTS

Answer 16

A will is valid if the specific formalities provided by state law are met. Generally, these formalities require a valid will to be:

1. In writing;
2. Signed by the testator; AND
3. Signed by at least two witnesses.

Question 17

LOW

TWO WITNESS REQUIREMENT: LINE OF SIGHT vs. RANGE OF SENSES

Answer 17

The witnesses must sign the will in the testator’s presence within a reasonable amount of time after witnessing the signing of the will. Under the UPC, a valid notary can satisfy the dual-witness requirement.

Under the traditional view, a witness signs the will in the testator’s presence if she signs the will within the testator’s line of sight [e.g., cannot be in another room down the hall from the testator].

Under the modern view, a witness signs the will in the testator’s presence if she signs the will within the testator’s range of senses (e.g., may be in another room down the hall if the testator can still hear the witness).

Question 18

LOW

INTERESTED WITNESSES

Answer 18

Under the common law, the signing of the will MUST be witnessed by two disinterested witnesses (individuals who do NOT receive any benefits under the will).

However, virtually every state has abolished this common law rule and allow interested witnesses to validly witness the signing of a will. In a minority of states, the interested witness forfeits his inheritance UNLESS two additional disinterested witnesses serve as valid witnesses to the will. Still, some states only allow interested witnesses to inherit their intestate share of the estate.)

Question 19

MED

HOLOGRAPHIC WILLS

Answer 19

A holographic will is a handwritten will that is NOT witnessed. Most states do NOT recognize holographic wills. However in states that do recognize holographic wills, the holographic will is only valid if the testator signs it personally. No precise words are required to make a holographic will valid; however, the will must contain operative words legally sufficient to validly devise the property.

Question 20

lowest

INTEGRATION OF DOCUMENTS

Answer 20

Integration of documents usually arises when pages or portions of a will become separated. A document will be integrated into the will if:

1. The testator intended the document to be part of the will; AND
2. The document was physically present at the time of the will’s execution.

Question 21

HIGH

INCORPORATION BY REFERENCE

Answer 21

Incorporation by reference deals with the incorporation of extrinsic documents into the will (rather than pages or portions of the original will). In most states, a document or writing may be incorporated into a will by reference if:

1. The testator intended to incorporate the document into the will;
2. The document was in existence at the time the will was executed; AND
3. The document is sufficiently described in the will

Question 22

LOW

CODICILS

Answer 22

A codicil is a supplement or addition to a will that is made after a will is executed. A codicil can explain, modify, amend, or revoke provisions of an existing will. A codicil MUST satisfy the same formalities as a will in order to be valid.

At the time a person executes a codicil, the original will is treated as republished and is deemed to have been executed on the date the codicil is executed. Republication can cure defects in a will that might affect the validity of specific devises.

However, most courts hold that a codicil CANNOT republish an invalid will as a whole.

Question 23

HIGH

REVOCATION OF THE WILL BY A SUBSEQUENT WRITTEN INSTRUMENT

Answer 23

A will can be revoked by either:

1. A subsequent written instrument that is executed for the sole purpose of revoking the prior will; OR
2. A subsequent will/codicil containing a revocation clause or provisions that are inconsistent with those of the prior will (only revokes to the extent it conflicts with the prior will).

Question 24

HIGH

REVOCATION OF THE WILL BY CANCELLATION

Answer 24

A will is revoked if the testator, or another person in his presence and at his direction burns, tears, obliterates, or destroys the will WITH the intent to revoke the will.

Under the common law, words of cancellation are valid ONLY IF they come in physical contact with the words of the will [e.g., words of cancellation are written over the original terms of the will]. Under the UPC, words of cancellation need NOT touch any of the words of the will, but they must be somewhere on the will to validly revoke.

Question 25

HIGH

PARTIAL REVOCATION OF THE WILL

Answer 25

In most states, when marks of cancellation [e.g., putting a line through terms in the will] are found on a will known to last have been in the testator’s possession, a presumption arises that such marks were made by the testator with the intent to revoke. The burden to overcome this presumption is on the party claiming that the devise has not been revoked. However, some states do NOT permit partial revocations.

Question 26

lowest

REVOCATION OF THE WILL BY DIVORCE

Answer 26

Today, a divorce revokes provisions in a will that devise property to the testator’s former spouse (usually also includes relatives of the former spouse) by operation of law UNLESS the will or court expressly provides otherwise. However, the devise may be revived if the spouses remarry.

Question 27

MED

DEPENDENT RELATIVE REVOCATION [DRR] OF THE WILL

Answer 27

Under DRR, the valid revocation of a will may be ignored if the will was revoked under the testator’s mistaken belief of law or fact that the testator could revive an earlier will, or modify his disposition of property by codicil or new will.

DRR ONLY applies when the court can determine that the testator would have preferred the disposition in the revoked will over the disposition resulting from a finding that the testator died intestate.

Question 28

LOW

REVIVAL OF THE WILL AFTER REVOCATION

Answer 28

Under the common law, the revocation of a subsequent will automatically revives the prior will.

Under the modern view, most states permit revival of a revoked will if:

1. It is evident that the testator intended the revoked will to take effect as executed; OR
2. The testator republishes the revoked will with a subsequent will or codicil that complies with the statutory formalities for execution.

Question 29

MED

LAPSED LEGACIES

Answer 29

If a beneficiary named in a will predeceases the testator, absent an alternate disposition of the devise specified by the testator, the devise lapses into the estate’s residue UNLESS the jurisdiction’s anti-lapse statute preserves the devise for the beneficiary’s descendants.

Question 30

MED

ANTI-LAPSE STATUTES

Answer 30

Under an anti-lapse statute, devises will vest in the descendants of the predeceased beneficiary if the predeceased beneficiary:

1. Is a blood relative of the testator; AND
2. Has descendant(s) who survive the testator.

Question 31

MED

ADEMPTION

Answer 31

Under the doctrine of ademption, if the subject matter of a specific devise is NOT in the estate at the time of the testator’s death, the devise to the beneficiary adeems or fails.

At common law, the testator’s intentions were irrelevant. However, in most jurisdictions today, a specific devise will adeem ONLY IF the testator intended the devise to fail.

If the testator did not intend for a specific devise to fail, the beneficiary is entitled to:

1. Any property in the testator’s estate, which the testator acquired as a replacement for the specific devise; OR
2. A monetary devise equal to the value of the specific devise.

Question 32

MED

GENERIC DESCRIPTIONS OF PROPERTY IN THE WILL

Answer 32

Any property described in generic terms is interpreted under the circumstances existing at the time of the testator’s death, rather than when the will is executed (e.g., a devise of “my car” is interpreted as a devise of the testator’s car at the time of death, not the testator’s car at the time of will execution).

Question 33

LOW

SLAYER STATUTES

Answer 33

A person who feloniously and intentionally kills the decedent is barred from claiming a share of the decedent’s estate as either an heir or a beneficiary under the decedent’s will. Generally, the decedent’s estate is distributed as if the killer had predeceased the decedent

Question 34

MED

BENEFICIARY DISCLAIMERS

Answer 34

A beneficiary under a will can disclaim or renounce his interest under a testator’s will causing the disclaimed property to pass as if the disclaiming party predeceased the testator. A valid disclaimer must:

1. Be in writing and signed by the person making the disclaimer;
2. Describe the interest being disclaimed sufficiently; AND
3. Be delivered or filed.

Question 35

lowest

SPECIFIC DEVISES

Answer 35

A devise is specific if the subject matter of the devise is specific personal or real property (e.g., a devise of a specific diamond ring or parcel of land).

Question 36

lowest

GENERAL DEVISES

Answer 36

A devise is general if it can be satisfied with any of the estate’s assets (e.g., a devise of a specific dollar amount is general, because it can be funded with cash or other property of equal value).

Question 37

lowest

DEMONSTRATIVE DEVISES

Answer 37

A devise is demonstrative if the testator makes a general devise AND specifies a specific source that the general devise should come from (e.g., a devise of a specific dollar amount that is payable from a designated bank account).

Question 38

LOW

ABATEMENT

Answer 38

Beneficiaries under wills are entitled only to the net value of estate assets. The net value represents what remains of the decedent’s assets at death after the payments of debts, expenses, and taxes. If there are more claims against an estate from creditors than there are assets to cover all of the devises made under the will, the devises abate.

Question 39

lowest

EXONERATION

Answer 39

At common law, a specific devise of encumbered real property was entitled to have the mortgage on the property paid from the estate as a debt of the decedent.

Today, a beneficiary of real property assumes the mortgage, regardless of a general directive in the will to pay debts.

Question 40

LOW

STOCK SPLITS AND DIVIDENDS

Answer 40

Under the common law (still followed in some states), a stock dividend constitutes a property interest that is separate from shares of stock received through a specific devise. Under this rule, the beneficiary of the underlying shares of stock does NOT receive the additional shares that were obtained through stock dividends.

Under the majority view, beneficiaries are entitled to additional shares owned by the testator that were acquired as a result of stock splits or dividends.

Question 41

HIGH

DEVISES TO CLASSES

Answer 41

A testator may devise property to a class of individuals (e.g., “I leave $20,000 to be divided equally among all my children.”). A class may increase or decrease in number until the testator’s death. If a member of the class predeceases the testator, her share is split evenly among the remaining members of the class (i.e., it does NOT lapse into the residue).

Question 42

LOW

DISINHERITANCE OF A CHILD

Answer 42

A child that is intentionally omitted from a will is NOT entitled to a share of the decedent’s estate. In most states, a general disinheritance clause is NOT sufficient to show intent to omit a child from the will.

Question 43

LOW

PRETERMITTED CHILDREN

Answer 43

A pretermitted child is a child who is unintentionally omitted from a will.

Pretermitted children are entitled to the share that they would have received had the testator died intestate so long as the testator did NOT intend to omit the child from his will.

Question 44

LOW

CONTRACTUAL WILLS

Answer 44

Valid contracts to make wills are generally enforceable and may take numerous forms:

1. A contract to execute mutual or joint wills;
2. A contract to make a certain devise by will;
3. A contract not to revoke a will or a provision included in the will; OR
4. A contract to refrain from executing a will.

Question 45

LOW

WILL CONTEST FOR LACK OF CAPACITY

Answer 45

A will is invalid if the testator lacked mental capacity when the will was executed. To prevail in a will contest for lack of capacity, the contestant must prove that the testator did NOT know or understand:

1. The nature and extent of his property;
2. The persons who are the natural objects of his bounty; OR
3. The disposition he was making of his property.

Generally, there is a rebuttable presumption that the testator had mental capacity

Question 46

LOW

WILL CONTEST FOR UNDUE INFLUENCE

Answer 46

A will is invalid if the testator executed the will while under undue influence. Undue influence occurs when a person exerts such control and influence over the mind of the testator as to overcome the testator’s free will. To prevail in a will contest for undue influence, the contestant must prove that:

1. The testator was susceptible to undue influence;
2. The wrongdoer had the opportunity to exert undue influence over the testator;
3. The wrongdoer actively participated in drafting the will; AND
4. The will evidences a result that appears to be the effect of undue influence.

Question 47

lowest

WILL CONTEST FOR FRAUD

Answer 47

A will is invalid if the will reflects the testator’s belief in false information arising from another person’s fraudulent misrepresentation. To prevail in a will contest for fraud, the contestant must prove:

1. A misrepresentation of a material fact was made to the testator;
2. The misrepresentation was made to induce reliance by the testator; AND
3. The testator relied on the misrepresentation in disposing of his property by will.

b) Fraud may occur in the inducement or execution of a will:
(1) Fraud in the Inducement occurs when a person misrepresents a fact related to the instrument (usually regarding property or beneficiaries).
(2) Fraud in the execution occurs when a person misrepresents the contents or nature of the instrument executed by the testator.

Question 48

lowest

WILL CONTEST FOR MISTAKE

Answer 48

Most courts will permit modification of a will to conform to the testator’s intent if there is clear and convincing evidence of a mistake. If a will is ambiguous, courts allow extrinsic evidence to resolve the ambiguity (i.e., the facts and circumstances surrounding the execution of the will may be considered to resolve the ambiguous term).

Question 49

lowest

NO-CONTEST CLAUSES IN WILLS

Answer 49

The purpose of a no-contest clause is to discourage potential will contestants by forcing them to choose the gift bestowed to them in the will if no contest action is filed or nothing if their contest action fails.

A minority of jurisdictions wholly enforce no-contest clauses while others strictly prohibit no-contest clauses as a matter of public policy.

Question 50

lowest

STANDING TO CONTEST A WILL

Answer 50

Generally, only those who have a pecuniary interest in an estate have standing to contest it. This includes any person who:

1. Is a beneficiary of the will;
2. Should be a beneficiary of the will; OR
3. Would benefit if the decedent died without a will.

Question 51

lowest

LIVING WILLS

Answer 51

A living will is a document in which one specifies which life-prolonging measures one does, and does not, want to be taken if one becomes incapacitated.

Generally, a living will must be signed, in writing, and witnessed by at least two persons or notarized (similar to executing a will).

Question 52

lowest

DURABLE POWER OF ATTORNE

Answer 52

A durable health care power of attorney is a document that enables an individual to designate an agent to act on his behalf in the event that the individual becomes incapacitated. Generally, the agent is immunized from civil liability for health care decisions that are made in good faith.

Generally, a durable power of attorney must be signed, in writing, and witnessed by at least two persons or notarized (similar to executing a will).

Question 53

lowest

FAMILY CONSENT LAWS

Answer 53

Family consent laws permit close relatives, typically in the order listed by statute, to act as a surrogate decision maker for an incapacitated patient if there is no authorized agent acting under durable power of attorney.

Under typical family consent laws, the priority in which a close relative may act as a surrogate decision maker is as follows:

1. Spouse (unless legally separated)
2. Adult child
3. Parent
4. Adult brother/sister