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

LOW

GOVERNING JURISDICTION OF THE WILL

Answer 13

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 14

MED

*HARMLESS ERROR RULE

Answer 14

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 15

LOW

WILL EXECUTION REQUIREMENTS

Answer 15

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 16

LOW

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

Answer 16

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 17

LOW

INTERESTED WITNESSES

Answer 17

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 18

MED

*HOLOGRAPHIC WILLS

Answer 18

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 19

LOW

CODICILS

Answer 19

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 20

HIGH

**REVOCATION OF THE WILL BY A SUBSEQUENT WRITTEN INSTRUMENT

Answer 20

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 21

HIGH

**REVOCATION OF THE WILL BY CANCELLATION

Answer 21

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 22

HIGH

**PARTIAL REVOCATION OF THE WILL

Answer 22

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 23

MED

*DEPENDENT RELATIVE REVOCATION [DRR] OF THE WILL

Answer 23

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 24

LOW

REVIVAL OF THE WILL AFTER REVOCATION

Answer 24

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 25

MED

*LAPSED LEGACIES

Answer 25

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 26

MED

*ANTI-LAPSE STATUTES

Answer 26

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 27

MED

*ADEMPTION

Answer 27

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 28

MED

*GENERIC DESCRIPTIONS OF PROPERTY IN THE WILL

Answer 28

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 29

LOW

SLAYER STATUTES

Answer 29

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 30

MED

*BENEFICIARY DISCLAIMERS

Answer 30

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 31

LOW

ABATEMENT

Answer 31

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 32

LOW

STOCK SPLITS AND DIVIDENDS

Answer 32

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 33

HIGH

**DEVISES TO CLASSES

Answer 33

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 34

LOW

DISINHERITANCE OF A CHILD

Answer 34

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 35

LOW

PRETERMITTED CHILDREN

Answer 35

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 36

LOW

CONTRACTUAL WILLS (4)

Answer 36

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 37

LOW

WILL CONTEST FOR LACK OF CAPACITY (3)

Answer 37

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 38

LOW

WILL CONTEST FOR UNDUE INFLUENCE (4)

Answer 38

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.