Trusts & Estates (Decedent's Estates) Flashcards
HIGH
**INTESTATE SUCCESSION: DECEDENT IS SURVIVED BY ONLY A SPOUSE
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.
HIGH
**INTESTATE SUCCESSION: DECEDENT IS SURVIVED BY A SPOUSE AND DESCENDANTS
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.
HIGH
**INTESTATE SUCCESSION: DECEDENT IS NOT SURVIVED BY A SPOUSE
In most states, if the decedent is NOT survived by a spouse, the decedent’s surviving descendants will inherit the entire estate equally.
HIGH
**INTESTATE SUCCESSION: DECEDENT IS NOT SURVIVED BY A SPOUSE OR DESCENDANTS
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).
LOW
STRICT PER STIRPES
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.
LOW
MODERN PER STIRPES
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.
LOW
PER CAPITA AT EACH GENERATION
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).
MED
*INHERITANCE RIGHTS OF ADOPTED CHILDREN
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.
MED
*EQUITABLE ADOPTION
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.
MED
*INHERITANCE RIGHTS OF NON- MARITAL CHILDREN
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).
MED
*INHERITANCE RIGHTS OF HALF- BLOOD CHILDREN
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.
MED
*ADVANCEMENTS
Today, gifts to heirs during a testator’s lifetime are NOT considered advancements on the heir’s intestate share of the estate UNLESS:
- The decedent declared his intent to make the gift an advancement in a contemporaneous writing; OR
- The heir acknowledged the gift to be an advancement in writing.
LOW
GOVERNING JURISDICTION OF THE WILL
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.
MED
*HARMLESS ERROR RULE
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.
LOW
WILL EXECUTION REQUIREMENTS
A will is valid if the specific formalities provided by state law are met. Generally, these formalities require a valid will to be:
- In writing;
- Signed by the testator; AND
- Signed by at least two witnesses.
LOW
TWO WITNESS REQUIREMENT: LINE OF SIGHT vs. RANGE OF SENSES
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).
LOW
INTERESTED WITNESSES
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.)
MED
*HOLOGRAPHIC WILLS
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.
LOW
CODICILS
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.
HIGH
**REVOCATION OF THE WILL BY A SUBSEQUENT WRITTEN INSTRUMENT
A will can be revoked by either:
- A subsequent written instrument that is executed for the sole purpose of revoking the prior will; OR
- 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).
HIGH
**REVOCATION OF THE WILL BY CANCELLATION
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.
HIGH
**PARTIAL REVOCATION OF THE WILL
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.
MED
*DEPENDENT RELATIVE REVOCATION [DRR] OF THE WILL
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.
LOW
REVIVAL OF THE WILL AFTER REVOCATION
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:
- It is evident that the testator intended the revoked will to take effect as executed; OR
- The testator republishes the revoked will with a subsequent will or codicil that complies with the statutory formalities for execution.
