Types of Wills/Interpretation/Defaults Flashcards
Probate Estate
Real and personal property decedent leaves at death
Non-Probate Assets
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)
Probate Transfer
Any transfer taking place at death (includes probate and non-probate assets)
Will
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)
Negative Will
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)
Types of Wills
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
Nuncupative Will
Oral will–exists in limited way in some jx
Formal Will
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
Self-proving will
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
Self-proving affidavit
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”
Holographic Will
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
Conditional Will
Will conditioned on x event–permitted, but ask if truly conditioned on x event
Joint Will
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
Mutual/Mirror Image Will
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
Contract to Make/Not Make/Not Revoke Will or Devise
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
Codicil
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.
Ways to include unsigned/unintegrated docs in will
-Incorporation by Reference
-Facts of Independent Legal Significance
-UTATA (Trusts)
-Personal Property List
Guiding Rule of Interpretation
Wills are to be construed in accordance with the discernible intent of the testator
Will speaks at death–interpret as of T’s death
Incorporation by Reference
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
Facts/Acts of Independent Legal Significance
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
Personal Property List
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
UTATA
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.)
Surviving Spouse’s Rights
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
Elective Share
Usually–50% of the value of the marital-property portion of the augmented estate
Created by statute, so can vary
Deadlines for Election to Take Elective Share (vs. take under will/intestacy)
Make be w/in the LATER of
1) 9 months after decedent’s death OR
2) 6 months after probate of will
Augmented Estate
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
Marital Property Portion
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
Order of payment re: elective share
What already given to spouse (probate + non probate transfers, marital portion of assets) –> D’s probate and non-probate transfer, proportionately
Supplemental Elective Share
UPC– if small estate, get supplemental elective share to bring surviving spouse’s assets up to 75K or as close as possible
Elective Share + Revocable Trust
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
Elective Share + Waiver
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
After-married spouse
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
After-Born/Adopted Children
-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
After-born/adopted child, no children at time of will
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
Omitted Heirs
Heirs living at time will executed, but not included in will
Presumed to be on purpose–get nothing
Remember–codicil updates date of will
After-born/adopted, 1+ child a) living at will execution and b) got devise under will
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
After-born/adopted, 1+ child living at will execution, no children received anything
Get nothing–“share” in nothing with other children
Non-marital after-born child + mother’s estate
Entitled to take almost always (pretty easy to prove if came from mother)
Non-marital after-born child + father’s estate
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)
Mortmain statute
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
Specific bequest/devise vs. general legacy
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”
Specific Legacy
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
General Legacy
Gift payable from gen. assets of T’s estate and not separated/distinguished from other things of same kind
Usually cash, stock, acreage
Types of bequests/devises
1) Specific
2) General
3) Demonstrative
4) Residuary
Demonstrative Legacy
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”
Ademption
What happens when a gift fails for any reason
Gift “adeemed” = gift failed
Types of Ademption
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
Ademption by Extinction
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
Incapacitation + Ademption By Extinction
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
Result of Ademption by Extinction re: Specific Gift
Generally out of luck–get nothing
Exceptions:
1) Incapacitation
2) Unpaid balance (3 types, same idea)
3) T’s Replacement Property
Result of Ademption by Extinction re: General Gift
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)
Unpaid Balance Exception (Ademption)
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)
Replacement Property Exception (Ademption)
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.)
Ademption by Satisfaction
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)
Abatement
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
Order of Abatement
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
Order in which Estate Distributed after Creditors paid (another way to think of abatement)
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
Closing of Class Re: Class Gifts
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)
Lapse
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
Anti-Lapse Statute
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
Anti-Lapse Statutes + Degree of Relation
Jx vary: include
-Any relative
-Any relative but a spouse
-Any relative who is descendant of T’s grandparents
-(Minority) No relationship–all qualify
Things to Remember When Interpreting Wills
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?
Anti-Lapse Statutes and Contrary Intent
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
Adopted Children
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
Adopted Children + Bio Parents
Majority–adopted child can’t inherit from natural parents
Minority–can inherit if child adopted out to relative of natural parents
Exceptions to Majority Adoption Rules
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
Inheritance + Stepchildren/Foster Children
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
Half-Blood Relatives
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
Conceived before + born after parent’s death
Inherit as if born in both bio parents’ lifetime IF (in UPC jx) survive own birth by 120 hrs/5 days
Conceived AND born after parent’s death (reproduction technology)
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)
Advancements
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
