Types of Wills/Interpretation/Defaults

Question 1

Probate Estate

Answer 1

Real and personal property decedent leaves at death

Question 2

Non-Probate Assets

Answer 2

Also called “will substitutes”
Property not passing through the will, but through pre-death/right before death–pass outside of testate, intestate succession
Benefits of death time transfer (can change mind) w/out probate process
Ex.
-Joint tenancy, tenancy by the entirety
-POD (payable on death) and TOD (transferable on death) accts
-Revocable trusts
-Life insurance policies if paid to 3d party (vs. decedent’s estate)

Question 3

Probate Transfer

Answer 3

Any transfer taking place at death (includes probate and non-probate assets)

Question 4

Will

Answer 4

Document executed by a testator/testatrix that takes effect at testator’s death
Usually re: property, but not necessarily

Includes codicil or testamentary instrument that:
-Appoints an executor OR
- Nominates a guardian OR
-Revokes or revises prior will OR
Expressly excludes or limits the right of an individual or class to succeed in intestate succession (negative will)

Question 5

Negative Will

Answer 5

Will that expressly excludes or limits the right of an individual or class to succeed via intestate succession (ex. says wife not entitled to marital share if spouse dies)

Question 6

Types of Wills

Answer 6

1) Attested or formal–with witnesses, exists in every jx
2) Holographic–handwritten, no witnesses, exists in most jx
3) Nuncupative/Oral– exists in very limited way in a few jx

Question 7

Nuncupative Will

Answer 7

Oral will–exists in limited way in some jx

Question 8

Formal Will

Answer 8

Formal (non-holographic) =
1) In writing AND
2) Signed by the testator OR in testator’s name w/ proper procedure AND
3) Witnessed or Attested/Acknowledged

Question 9

Self-proving will

Answer 9

Formal will that “proves” itself–satisfies all will execution reqs w/out the need for testimony** of attesting witnesses in probate

Use self-proving affidavit (SPA) to make self-proving will

N/A if evidence of fraud, forgery

Question 10

Self-proving affidavit

Answer 10

SPA–way to create self-proving will–lessen/avoid probate, “proving”

Basically: “this is how it went, we signed our names as valid witnesses/testator, I swear to this before notary under seal”

Question 10

Holographic Will

Answer 10

Handwritten will–no witnesses req.

UPC: Valid if material portions + signature in T’s handwriting (traditionally–fully handwritten)

Material = distributing $$ + prop–“who gets what”

Still need intent + capacity

Question 11

Conditional Will

Answer 11

Will conditioned on x event–permitted, but ask if truly conditioned on x event

Question 12

Joint Will

Answer 12

One will, two testators (ex. spouses make one will together)

Majority + UPC: not valid as contract not to revoke–revocable at any time by either party
Minority– presumption contract not to revoke w/out mutual assent

Question 13

Mutual/Mirror Image Will

Answer 13

Two wills, but provisions mirror each other (“everything to Wife if survives, if not to Kids,” “everything to Husband if survives, if not to Kids”)

Majority + UPC: not valid as contract not to revoke–revocable at any time by either party
Minority– presumption contract not to revoke w/out mutual assent

Question 14

Contract to Make/Not Make/Not Revoke Will or Devise

Answer 14

1) Provisions of will state mat. conditions of contract OR
2) express reference in will to contract AND extrinsic evidence proving terms OR
3) Writing signed by decedent evidencing contract

Minority–jt will or mutual will = presume contract, can’t modify w/out mutual consent

Breach–>new will valid, but can sue on contract

Question 15

Codicil

Answer 15

Instrument executed subsequent to will that adds to, explains, or modifies it

Basically mini will–same reqs, attested or holographic
Can mix + match (holo will, attested codicil, etc.)

May explicitly refer–> original but not req.

Question 16

Ways to include unsigned/unintegrated docs in will

Answer 16

-Incorporation by Reference
-Facts of Independent Legal Significance
-UTATA (Trusts)
-Personal Property List

Question 17

Guiding Rule of Interpretation

Answer 17

Wills are to be construed in accordance with the discernible intent of the testator

Will speaks at death–interpret as of T’s death

Question 18

Incorporation by Reference

Answer 18

UPC, CL–Include unint., unattested docs IF:
1) Writing already existed at time will executed AND
2) Will manifested intent to incorp AND
3) Will described writing sufficiently to ID it

MUST be have existed when will executed–NOT after (“the letter I wrote last week” OK–“the letter I will write tomorrow” not)

Remember codicil updates date executed–write will, write letter, write codicil = OK

Question 19

Facts/Acts of Independent Legal Significance

Answer 19

CAN det. ben./composition of disposition by reference to a future unattested act after execution IF the act or fact occurs independent of attempt to change will

Clause given meaning by future conduct

Ex “all my furniture at death”–depends on what T buys/sells in future–people don’t buy furniture to change will, so OK
Residuary clauses–depends on what exists at death

Question 20

Personal Property List

Answer 20

UPC (NOT CL): Can make writing listing personal property decedent wants to transfer (even if not attested) IF 1) signed by T AND 2) clearly states ben, gifts w/ r. certainty

Can change even after will made (ex. in safe, update every yr–vs. IBR)

ONLY personal property (ex. furniture, jewelry)–NOT real prop, NOT money

Question 21

UTATA

Answer 21

Uniform Testamentary Additions to Trust Act

If T makes gift to trust in existence at the time of T’s death (NOT at time of execution)–valid, even if trust created or amended after will executed

Can transfer $$, r. prop through trust (not just personal prop.)

Question 22

Surviving Spouse’s Rights

Answer 22

Surviving spouse has right to choose between taking under will/intestacy OR taking elective share

Have right to elective share EVEN IF purposefully left out of will-
Married = qualify for share

Question 23

Elective Share

Answer 23

Usually–50% of the value of the marital-property portion of the augmented estate

Created by statute, so can vary

Question 24

Deadlines for Election to Take Elective Share (vs. take under will/intestacy)

Answer 24

Make be w/in the LATER of 1) **9 months** after **decedent's death** OR 2) **6 months** after **probate of will**

Question 25

Augmented Estate

Answer 25

**Sum of all decedent's prop** including -D's **net probate estate** -D's **non-probate transfers** to **other than surv. spouse** -D's **non-probate transfers** to **surv. spouse** -**Surv. spouses' net assets at D's death** PLUS **surv. spouses' transfers to others** DOES NOT include **transfers** for **adequate and full consideration** **Paying out** = **try to pay w/ assets already given to spouse first** (**prob + non prob.** transfers/gifts, **mar. portion** of spouse's assets) Aug. estate 10K, gave spouse 1K in life + 3K in will--> use re: e. share first

Question 26

Marital Property Portion

Answer 26

Spouse gets **50% of marital prop. portion** of aug. estate (Ex. if m. prop. portion 25% of aug. estate--get 50% of 25% of estate) UPC = Sliding scale: **yrs of marriage** **Few months** = **3%** (i.e. 50% of 3%) **15+ yrs** = **100%** (i.e. 50% of 100%--1/2) Not UPC = varies by statute

Question 27

Order of payment re: elective share

Answer 27

What already given to spouse (probate + non probate transfers, marital portion of assets) **-->** D's probate and non-probate transfer, *proportionately*

Question 28

Supplemental Elective Share

Answer 28

UPC-- if **small estate**, get supplemental elective share to **bring surviving spouse's assets up to 75K** or as close as possible

Question 29

Elective Share + Revocable Trust

Answer 29

Some states--can count revocable trusts in elective share, because still basically marital prop. Other states--only if evidence trying to hide assets from spouse

Question 30

Elective Share + Waiver

Answer 30

Can waive elective share (ex. pre-nup, post-nup)--but courts scrutinize, may declare N/A if equitable/bad disclosure Signed pre/post-nup ≠ *can't* validly get stuff in will--just won't have auto right to e. share/intestacy

Question 31

After-married spouse

Answer 31

Married after will executed --> spouse **entitled to get intestate share** (often greater than e. share) UNLESS 1) Will indicates spouse not intended to take OR 2)*Inter vivos* gifts to spouse satisfy spouse's share

Question 32

After-Born/Adopted Children

Answer 32

-Children born/adopted after execution of will -Unless evidence otherwise, presume would have included in will -What was T's status when will made? -No living kids--intestate share -Living kids, 1+ in will-- share as if got equal portion -Living kids, none in will--nothing

Question 33

After-born/adopted child, no children at time of will

Answer 33

Get **intestate share** of estate, UNLESS 1) **Will gave most/all of estate** to **other parent** (idea--parent will take care of) OR 2) Will on face reflects intent to omit

Question 34

Omitted Heirs

Answer 34

Heirs living at time will executed, but not included in will Presumed to be on purpose--get nothing Remember--codicil updates date of will

Question 35

After-born/adopted, 1+ child a) living at will execution and b) got devise under will

Answer 35

**Share** in what children received as if afterborn child had been given an = share of **that portion** **Add up what other children got, split equally among all** Exception--indicator in will that didn't want to go to child

Question 36

After-born/adopted, 1+ child living at will execution, no children received anything

Answer 36

Get nothing--"share" in nothing with other children

Question 37

Non-marital after-born child + mother's estate

Answer 37

Entitled to take almost always (pretty easy to prove if came from mother)

Question 38

Non-marital after-born child + father's estate

Answer 38

Can take IF 1) Father + mother marry OR 2) Father holds child out as his during lifetime OR 3) Judicial determination of paternity OR 4) Other clear and convincing evidence (ex. DNA test)

Question 39

Mortmain statute

Answer 39

No longer exist anymore, all abolished Stated charitable devise invalid if exceeded certain amt or estate or was made certain amt of time before death

Question 40

Specific bequest/devise vs. general legacy

Answer 40

**Specific** = **only satisfied** by **that thing**--look for **"my"** **General** = OK if **substitute/obtain equivalent** OR **transfer value** (what would be worth) "My 100 shares of stock" = can't go out and buy shares after death, give (vs. "100 shares"--can buy OR give value of stock) "A first edition LOTR" vs. "my first edition LOTR", "100 gold coins vs. my 100 gold coins"

Question 41

Specific Legacy

Answer 41

Gift by will of **personal prop (bequest)** OR **real prop. (devise)** that: 1) **Can be ID'd and distinguished** from **all other things** of same kind AND 2) **Is satisfied only by delivery**

Question 42

General Legacy

Answer 42

Gift **payable from gen. assets of T's estate** and **not separated/distinguished** from other things of same kind *Usually* **cash, stock, acreage**

Question 43

Types of bequests/devises

Answer 43

1) Specific 2) General 3) Demonstrative 4) Residuary

Question 44

Demonstrative Legacy

Answer 44

Hybrid between specific and general bequests/devises--**sum certain, but from certain source** Ex. "$500 from my savings account at TD Bank" "1K in gold coins"

Question 45

Ademption

Answer 45

What happens when a gift fails for any reason Gift "adeemed" = gift failed

Question 46

Types of Ademption

Answer 46

1) **Ademption by Extinction**--specific property devised no longer in estate 2) **Ademption by Satisfaction**--*inter vivos* gift made by decedent with intent to satisfy/reduce general gift

Question 47

Ademption by Extinction

Answer 47

Devise **adeemed by extinction** when **property specifically bequeathed/devised** is **no longer in T's estate at death** Reason for absence usually irrel. ONLY w/ **specific** gift (ex. "my" X) General = CANNOT adeem by extinction

Question 48

Incapacitation + Ademption By Extinction

Answer 48

**Specifically devised** property **sold/mortgaged** by **person w/ durable power of attorney** for **incapacitated principal** --> devisee has **right** to general devise worth **sale price OR unpaid loan amount, OR $$ of recovery**

Question 49

Result of Ademption by Extinction re: Specific Gift

Answer 49

Generally **out of luck**--**get nothing** Exceptions: 1) **Incapacitation** 2) **Unpaid balance** (3 types, same idea) 3) **T's Replacement Property**

Question 50

Result of Ademption by Extinction re: General Gift

Answer 50

Ademption by extinction w/ general gift is **not a thing**--**N/A** Gift not in estate (ex. "50 shares of Y stock") = estate can either 1) **Purchase replacement** OR 2) **Give value of item** (ex. value of shares at T's death)

Question 51

Unpaid Balance Exception (Ademption)

Answer 51

Exception to usual inability to recover if adeemed by extinction Theme: **did something to *s. prop.* that got funds, etc.** AND **not yet paid off** = get **balance due re: s. prop** Can get, if applicable: -**Balance** of purchase price, + any sec agreement **owed at T's death b/cause of sale of spec. prop.** -Amount due but unpaid at T's death for **condemnation** of spec. prop. -Proceeds unpaid on **insurance or other recovery for injury/loss** re: specific prop (ex. insured art)

Question 52

Replacement Property Exception (Ademption)

Answer 52

Exception to usual inability to recover if adeemed by extinction Spec devisee gets: real prop or tangible personal prop **owned by T at death** AND **acquired as a replacement** for s. property MUST BE 1) **v. similar kind, like character** AND 2)**intended to replace** prior item (Ex. "Redacre, my vacation prop. to X," sells Redacre + buys Blueacre, uses Blueacre as vacation prop.)

Question 53

Ademption by Satisfaction

Answer 53

T makes ***inter vivos* gift** of property to **non-specific beneficiary** with **intent to satisfy provision** of will **in whole/part** ONLY with **general** gift (ex. " *a* car," "$100") ONLY IF: 1) **Will provides for gen. gift** AND 2) ***testator* declares** in **contemp. writing** that **gift is in satisfaction/to be deducted** OR 3) ***Devisee*** states in **any writing** that **gift is in satisfaction/to be deducted** Doesn't meet reqs = not adeemed (ex. say "a car to X," give X car in life--w/out writing, X gets 2d car from will)

Question 54

Abatement

Answer 54

What happens if **assets of testator's estate insufficient after payment of debts** to meet everything given under will Also--**order by which estate "lessened" to pay off creditors** **Creditors *always* paid first**

Question 55

Order of Abatement

Answer 55

Order in which **dip into will bequests to pay off creditors** Prop. that would pass via intestacy-->residuary bequests-->gen bequests-->demonstrative bequests-->specific bequests (go last--sell off) Dipping into residuary/general-- **reduce gen ben. amt. proportionately**

Question 56

Order in which Estate Distributed after Creditors paid (another way to think of abatement)

Answer 56

First--specific bequests take in full Then--general bequests--if necessary, reduce *proportionately* (reduce each prop. so same scheme, but everyone gets less actual $$) Beneficiary is class--if abate, share proportionately to value of gifts

Question 57

Closing of Class Re: Class Gifts

Answer 57

Generally--class gifts close at T's death Also--**rule of convenience** (way to save v. RAP)--closes when 1st person becomes eligible w/out any condition precedent Exception: "condition" just termination of prior interest (not something like "survive until Y's death)

Question 58

Lapse

Answer 58

Occurs under CL if **beneficiary predeceases testator** CL = **lapse =gift fails** Total lapse of residuary-->intestacy Partial lapse of residuary-->other residuary takers Lapse in class gift-->other class members Today--v. every (maybe all) states have anti-lapse statutes

Question 59

Anti-Lapse Statute

Answer 59

V. all (maybe all) states have Gift **saved from lapse** IF 1) Predeceasing ben **closely enough related** to T (jx vary) AND 2) Predeceasing ben **survived by *descendants*** (NOT "relatives"--parents, siblings, etc.) who **also survived T** AND 3) Will does not express contrary intent Minority of jx--don't need to be related--all ben. qualify Majority--some rel. needed, how close varies

Question 60

Anti-Lapse Statutes + Degree of Relation

Answer 60

Jx vary: include -Any relative -Any relative but a spouse -Any relative who is descendant of T's grandparents -(Minority) No relationship--all qualify

Question 61

Things to Remember When Interpreting Wills

Answer 61

1) Marital Share 2) Afterborn Spouses/Children 3) General or Specific Gift? 4) Anti-lapse generally only applicable if have relation 5) UPC simultaneous death rule--5 days 6) Harmless Error?

Question 62

Anti-Lapse Statutes and Contrary Intent

Answer 62

Common examples of intent for anti-lapse to not apply: -Will states so explicitly -Will specifies survival as req. for taking/states death triggers lapse -Will names contingent ben. (implied that don't want anti-lapse) UPC--if *class gift*--must be *explicit* re: words of survivorship--"to my daughters" + nothing else = if one daughter dead, descendants share *per stirpes*

Question 63

Adopted Children

Answer 63

UPC = **Transplantation Theory** = *generally* **loses relationship with bio parents** and *generally* **treated as natural born child of adopted parents** Most/virtually all jx currently--a child can only have 2 parents

Question 64

Adopted Children + Bio Parents

Answer 64

Majority--adopted child can't inherit from natural parents Minority--can inherit if child adopted out to relative of natural parents

Question 65

Exceptions to Majority Adoption Rules

Answer 65

Adopted **child** can inherit from bio parents IF 1) **Natural parent dies** AND kid adopted w/in a) **decedent's family** OR b) **by surviving parent's new spouse** (can still inherit from dead natural parent) OR 2) **Natural parent remarries** AND **consents to adoption by new spouse** (even if due to divorce, not death--don't lose right to inherit from other nat. parent) General: 1) intra-family; 2) stepparent adoption; 3) adoption after death--if combo of these scenarios--more likely inheritance rights

Question 66

Inheritance + Stepchildren/Foster Children

Answer 66

Generally--**cannot inherit,** unless 1) adopted OR 2) adoption by estoppel (i.e. unperformed contract to adopt) General rule in most jx= child can only have 2 parents

Question 67

Half-Blood Relatives

Answer 67

Siblings of decedent by only one parent Majority = take equally with relatives of the whole blood--not treated differently Minority = only get 1/2 of what would have got if shared both parents

Question 68

Conceived before + born after parent's death

Answer 68

**Inherit** as if born in both bio parents' lifetime IF (in UPC jx) **survive own birth by 120 hrs/5 days**

Question 69

Conceived AND born after parent's death (reproduction technology)

Answer 69

**Inherit** IF 1) **conceived w/in 36 months** after** death (3 yrs) OR 2) **born no later than 45 months after** death (3 yrs, 9 months) UPC simultaneous death rule might apply--**survive own birth by 120 hrs** (5 days)

Question 70

Advancements

Answer 70

Basically--intestacy version of ademption by satisfaction If die intestate **property given to heir during life** is **treated as advancement/partial satisfaction** ONLY IF 1) **Specifically or gen. declared** in **contemp. writing by *decedent*** OR 2) Acknowledged in **any writing** by ***heir*** Advancement + heir dies before decedent--N/A re: what heir's descendant's get unless decedent's contemp. writing says otherwise