Vocab from Class Flashcards
Non-claim Statute
Requires creditors to file claims within a specified time period or lose the right to ever file te claim.
Self-executing Statute
Protection is provided from claims and debtors after the time period has run whether or no probate proceedings are ever commenced.
Half Bloods
UPC 2-107 states a half-blood is treated the same as a whole-blood. Florida and Texas have special statutes saying half-bloods only get half the share of whole-bloods.
Children Born Posthumously
If it is to the child’s advantage to be treated as if they had been born or alive at conception, that is how they will be treated.
See Uniform Parentage Act
Uniform Parentage Act
A child born to a woman within 300 days after the death of her husband is presumed to be the child of that husband.
Children Conceived Posthumously
A child that is both conceived and born after the death of one of the natural parents will be evaluated on a case by case basis in accordance with state statute.
Hotchpot
When a kid is given their inheritance while their parents are still alive.
O has 3 kids and an estate worth $50,000. He gave a $10,000 advancement to child A. To calculate inheritance, the $10,000 is added to the $50,000 to make $60,000 and divided among the three children. A gets an additional $10,000 while B and C each get $20,000.
Hotchpot cannot work against a person. If O had given A $40,000 the hotchpot would have had $90,000 and each child would be entitled to $30,000, meaning A would actually owe money.
Disclaimer
The person who disclaims is treated as dead for the purposes of inheritance, however a disclaimer cannot result in the heirs of the person disclaimed inheriting more than other heirs.
Functions of Will Formalities
Evidentiary Functions: Used so the court can be convinced that the statements of the transferor were deliberately intended to effectuate a transfer.
Ritual/Cautionary Function: Requires some sort of ceremonial performance for the purpose of impressing on the transferor the significance of their statements.
Channeling Function: Results in considerable uniformity and organization. Courts rarely need to wonder whether a document was meant to be a will. Also, gives the testator a template to follow to communicate his wishes. Also, lowers the costs of probate.
Protective Function: Safeguards the testator at the time of the execution of the will, against undue influence or coercion.
Attested Wills/Attestation Clause
A clause/statement attached to a will and signed by the witnesses that states what they witnessed in case they cannot be found when and if the will is ever contested later.
Types of Presence in Will Execution
Line of Sight: The testator does not actually have to see the witness but must be able to see them were the testator to actually look (i.e. a man in a wheelchair who couldn’t see where the bank teller was signing did not execute a valid will because he couldn’t have seen her sign even if he wanted too).
Conscious Presence: The testator through sight, hearing, or general consciousness of events, comprehends that the witness is signing.
Purging Statute
Allows a will attested to by interested parties to be admitted to probate but voids (purges) any bequest to the interested witnesses.
Supernumerary
If the will is witnessed by a sufficient number of disinterested witnesses, the interested witness is considered supernumerary and is entitled to take full devise.
Substantial Compliance
The court may deem a defectively executed will as being in accord with the statute formalities if there is clear and convincing evidence that the purposes of those formalities were served.
Harmless Error
The court may excuse noncompliance if there is clear and convincing evidence that the decedent intended the document to be his will.
Lost Will Statute
Allows someone to prove a will that cannot be found wasn’t destroyed but lost for a specific reason (i.e. flood or fire). It also places the burden on that person to show what was in the will (usually through a duplicate or earlier draft).
Dependent Relative Revocation
It makes a revocation of a former will ineffective if the testator made the revocation through execution of a new will, and that newly executed will is determined invalid. Said differently, the former will is revived when the new will in which the former will was revoked is found to be invalid. Without DRR, both wills would be invalid and the testator’s property would pass through intestacy. The theory behind dependent relevant revocation is that the testator revoked the first will only on the condition that the second will was valid.
Doctrine of Incorporation by Reference (UPC §2-510)
Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.
Disposition Lists (UPC §2-513)
A will may refer to a written list to dispose of items of tangible property. To be admissible, the indented disposition must be signed by the testator and must describe the items and the devisees with reasonable certainty. It can be created before or after the will is executed and may be altered at any time.
Contracts Relating to Wills
A person may enter into a contract to make a will or a contract not to revoke a will. Contract, not the law of will, applies.
Mental Capacity
Testator must be capable of knowing and understanding in a general way:
The nature and extent of his or her property
The natural objects of her or her bounty
The disposition he or she is making of that property
Relating these elements to one other and forming an orderly desire regarding the disposition of the property.
Insane Delusion
To prevail in an insane delusion case, the contestant must show the testator had an insane delusion and the will or some part thereof was the products of the insane delusion. Merely showing the person was delusional isn’t enough.
Undue Influence
A donative transfer is procured by undue influence if the influence exerted over the donor overcame the donor’s free will and caused the donor to make a donative transfer that the donor would not otherwise have made.
Susceptibility , Opportunity, Disposition (motive), Result
Once the presumption is triggered, the burden of proof shifts to the proponent to show the will was executed in good faith.
Confidential Relationships
Fiduciary Relationship: A confidential relationship arises from a settled category of fiduciary obligation
Reliant Relationship: A relationship based on special trust and confidence (doc/patient, accountant/client, etc.)
Dominant-Subservient Relationship: The donor was subservient to the alleged wrongdoer’s dominant influence
Suspicious Circumstances for Wills
Weakened Condition
Extent of the Participation of the Alleged Wrongdoer
Lack of Independent Advice
Haste in Preparation of Documents
Lack of Uniformity with Prior Wills
Donor’s Attitude Changes in Response to Relationship with Alleged Wrongdoer
If it appears unnatural, unjust, or unfair to a reasonable person.
Strategies if a Contest is Anticipated
Record building o Recorded video discussion o Professional Examination of Capacity o Attentive Witnesses o Inter Vivos Trust
Sooth Feelings
o Family Meeting
o Letter or Video Explanation
Element of Fraud
o False statements of material fact
o Known to be false by party making statements
o Made with intention of deceiving testator
o Which actually deceived the testator
o Which causes the testator to act in reliance or such
Fraud in the Execution
Lying about what the will says
Fraud in the Inducement
Telling lies to get the testator to execute or revoke a will, or refrain from executing or revoking a will, to include particular provisions in the wrongdoer’s favor.
Tortious Interference with Expectancy
The existence of expectancy
A reasonable expectancy would have been realized but for the interference of the defendant
The interference was intentional
The intentional interference was fraudulent or otherwise tortious
There were damages
Modern View of No Residue of a Residue Rule
If a testator leaves the residuary of their estate to two or more people and one of those people predeceases the testator, the modern view says their portion of the residuary should be redistributed among the other residuary recipients.
Traditional No Residue of a Residue Rule
If only a share of the residue lapses, such as when one of two devisees predeceases the testator, under the common law, the lapsed share passes by intestacy rather than the remaining residuary devisees.
Nevada’s Antilapse Statute
Only applies to descendants of the testator
Identity Theory (Old)
If a specific item bequeathed no longer exists or is present, the gift is extinguished and the giftee gets nothing.
Intent Theory (Modern
If the specifically devised item is no longer in the estate, the giftee is entitled to the cash value of the item if they can show that is what the testator intended.
Abatement
Occurs when an estate lacks sufficient assets to pay the decedents debts as well as all devises. Functions like bankruptcy.
How To Deal with It:
The first place the money comes from is the residuary.
General devises are reduced second.
Specific and demonstrative devises are the last to abate and are reduced pro rata.
Antilapse Statute
A statute that is enacted in most states that allows the heirs of a devisee or legatee who passes away prior to the testator to take possession of the testamentary gift that was originally intended for the devisee or legatee.
Disinheritance: Community Property vs. Separate Property
Community Property: No elective share because each spouse owns all the earnings during the marriage in equal undivided shares. The deal of one spouse activates right of survivorship.
Separate Property: Protection from disinheritance is provided by the elective share.
Augmented Estate
Includes items that don’t fall under the law of probate such as amounts in trust, POD’s, and even life insurance policies.
Intentional Omission of a Child
Generally, there is none in the US
Testamentary Trust
A trust created by will. Revocable up until death. Requires probate.
Inter vivos Trust
A trust created during the settlor’s life either by declaration or creation of a “deed of trust.” May be revocable or irrevocable depending on the intent of the settlor. Can be used as a will substitute to avoid probate.
Incentive Trusts
Focused on ensuring that a beneficiary does not adopt a slothful or frivolous lifestyle.
Fiduciary Duties
Loyalty
Prudence
Impartiality Between Beneficiaries
Duty not to Comingle Trust Funds with Trustee’s Personal Funds\Duty to Inform and Account to Beneficiaries
Fiduciary Functions
Custodial Function
Administrative Function
Investment Function
Distribution Function
Elements of an Expressly Established Trust
Intent
Capacity
Statute of Frauds Compliance
Must not Violate Rule Against Perpetuities
Cannot be for an illegal purpose or aginst public policy
Must name the property, beneficiary, and trustee
Impermissible Uses of Trusts
Concerning divorce
Encouraging commission of crimes or torts
Defraud Creditors
Will Substitutes
- Revocable Inter-vivos trust
- Life insurance
- Pay on Death Bank Accounts
- Transfer on Death Securities Accounts
- Pension Accounts
Revocable Inter-Vivos Trust
Created by a Deed of Trust or Declaration of Trust. The most well-liked of will substitutes. It Is not inherently asset specific. Amendable and revocable at any time and for any reason. Does not protect against creditors because of this.
Lifetime Consequences o Property Management by fiduciary o Planning for incapacity o Keeping title clear o No federal income, gift, or estate tax benefits
Probate Avoidance
o Avoid ancillary probate
o Continuity in property management
o Privacy and more difficult to contest than a will
o Not subject to ongoing court supervision
o More leeway that a will in choice of law
o Uncertainty about subsidiary law of wills
o Probate non-claim statute may not be applicable
Application of Subsidiary Law of Wills
Although a will substitute need not be executed in compliance with the formalities required for a will, such an arrangement is appropriate , subject to substantive restrictions on testation and rules of construction.
Life Insurance: Benefit Plan
The employer pays out a specific sum each month for the lifetime of the beneficiary. Nothing is left after the beneficiary dies.
Life Insurance: Contribution Plan
A plan in which a certain amount of money is set aside each year by the company. May require employee to vest.
Instructional Directives
States what the patient wants done if they become incompetent. (includes living wills)
Proxy Directive
Delegates the power to another person to make healthcare decisions on behalf of the patient.
Subject to the Substituted Judgment Standard:
What the patient would have done or what is in the best interests of the patient. Depends on the state.
Will Formalities Required by All States
Writing
Signed by Testator
Signed by 2 People
Notarized
Pros and Cons of Strict compliance
Provided predictability, emphasizes will formalities, sometimes testator’s intent gets lost bc of a stupid mistake.
What Will formality Rule does Nevada follow?
Substantial Compliance
Requirements for Holographic Wills
- Written by the testator
- Signed by the testator
- Nevada requires a date too
Issues with the Signature
In most states, they can sign anywhere on the document. But if not signed at the end, there may be doubt as to whether the decedent intended the name to be his signature.
Ineffective Revocation
A revocation is ineffective if the testator revoked it because of a false assumption of law, because of a false belief about an objective fact, etc.
Duress
A donative transfer is procured by duress if the wrongdoer threated to perform or did perform a wrongful act that coerced the donor into making a transfer they otherwise wouldn’t not have made. (i.e. caretaker refuses to give medication unless the decedent signs).
English/Classic/Strict Per Stirpes
Has vertical equality (which means each line of descent is treated equally)
When a child predeceases their parent, that child’s shares are split among their kids. Each kid gets the same amount but it might not be equal among the grandkids.
Modern Per Stirpes/Per Capita with Representation
This is what Nevada Uses
When all the children predecease their parent, the shares will be split equally among the grandkids.
If Sandra is alive and Renee and Rick are dead. Sandra gets 1/3, David gets 1/3, and Megan and Emily get 1/6 (pretend no Erica)
Per Capita at Each Generation (1990 UPC)
Has horizontal equality (each taker at each generation treated equally. “Equally Near, Equally Dear”).
Shares are split among first generation and given out to the living takers. Then the shares of the dead kids are added back together and redivided among the grandkids.
If Sandra is alive and Renee and Rick are dead. Sandra gets 1/3 (3/9), David gets 2/9, and Megan and Emily get 2/9 (pretend no Erica)
