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Question 1

A will is valid if it complies with the applicable State law.

Under the Uniform Probate Code (UPC), a written will is
valid if its execution complies with the law of the place:

Answer 1

(a)
where executed; OR (b) of testator’s domicile, abode, or
nationality at the time of (i) death or (ii) signing the will.

(LOW)

Question 2

Under the common law, a will is invalid if it does not meet
all the requirements of the state’s law.  Some states will find
a will valid if the decedent

Answer 2

substantially complied with the
state’s requirements

(medium)

Question 3

Under the Uniform Probate Code’s harmless error rule, an
improperly executed will still be valid if the party seeking
to have it validated proves

Answer 3

(1) by clear and convincing
evidence, (2) that the decedent intended the writing to be his
will.  Generally, the greater the departure from the necessary
execution formalities, the harder it is to prove the testator’s
intent.

(medium)

Question 4

Under the Doctrine of Integration, a document will be
integrated into a will if the testator: 

Answer 4

(1) intended it to be part
of the will;  AND (2) the document was physically present at
the will’s execution.  Thus, all pages of a will that are together
when the last page is signed and witnessed are deemed to
have been validly executed.  Integration may be proven by
extrinsic evidence or witness testimony.

(medium)

Question 5

A court may use an act of independent significance to fill in
any gaps of a will.  Acts of independent significance are those
with significance

Answer 5

outside of the will-making process.

(low)

Question 6

Under the common law, an earlier will was automatically
revived if a subsequent will was revoked.

Under the modern view, most states permit revival of revoked
wills only under certain circumstances: 

Answer 6

(a) a will revoked by
physical act will be revived if a testator shows intent for its
revival;  OR (b) a will revoked by subsequent instrument can
be revived if the testator republishes the will by a subsequent
will or codicil that complies with the will execution
formalities.

(medium)

Question 7

Under the Uniform Probate Code, if a will was only partially
revoked by a subsequent instrument, the revoked provisions
will

Answer 7

automatically be revived UNLESS the testator did not
intend their revival.

(medium)

Question 8

In most states, contracts to execute mutual wills are
enforceable.  To be enforceable, the agreement MUST
expressly state that the parties intend their wills to be a
binding contract between them.  There must be a specific
reference to the contract upon which the joint wills are based
and there must be specific, express intent that the parties
desire the contract.  If a party breaches a valid agreement
to execute mutual wills

Answer 8

a court will probate the new will
and then impose a constructive trust in favor of the original
intended beneficiaries under the contractual will.

(medium)

Question 9

The execution of a joint will or mutual wills DOES NOT
create a presumption of a contract not to revoke a will.  The
Uniform Probate Code does not address revocation of
contractual wills, but some states recognize revocation if there
is

Answer 9

sufficient notice before one of the parties dies.

(medium)

Question 10

The terms of a will determine how the testator’s assets are
distributed.  A will takes effect and is construed at the time of
testator’s death.  For distribution purposes, a will is treated as
if it was executed

Answer 10

immediately before the testator’s death, and
the estate is comprised of the property owned by the testator
at the time of death.

(medium)

Question 11

A beneficiary listed in a person’s will DOES NOT have any
interest in the estate property

Answer 11

prior to that person’s death.

(medium)

Question 12

When assets are distributed by Per Capita at Each Generation,
the estate is divided into as many equal shares as (1) surviving
descendants in the generation nearest to the decedent, and
(2) deceased descendants in that same generation who left
surviving descendants (if any).  Each surviving descendant in
the nearest generation is allocated one share.  The remaining
shares, if any, are

Answer 12

combined, and then divided in the same
manner among the surviving descendants of the deceased
descendants.  This method provides equal shares to those in
the same generation.

(low)

Question 13

Under Modern Per Stirpes (also known as per capita by
representation), the estate is divided into as many equal
shares as there are (1) surviving descendants in the generation
nearest to the decedent, and (2) deceased descendants in
that same generation who left surviving descendants (if
any).  Each surviving descendant in the nearest generation is
allocated one share.  The remaining shares, if any

Answer 13

drop down
and are divided in the same manner among the then living
issue of the deceased descendants.

(low)

Question 14

Per stirpes means that each branch of the family is to receive
an equal share of an estate.  Under a per stirpes distribution,
the assets should be divided at the first generation of which
there are living takers.  Each living and non-living person in
that generation is entitled to one share.  Those shares going to
non-living persons

Answer 14

drop down directly to their issue.

(medium)

Question 15

States use different methods to determine heirship.

Under the Civil-Law Consanguinity Method, all persons in
the same degree of relationship of the deceased individual
take equal shares.  For example, a deceased person’s uncle
and niece are in the same third-degree of relationship, and
both are entitled to equal shares of the estate.

Under the Parentelic Method, (adopted by the UPC), assets
are passed in the following order:

Answer 15

first to the spouse,
descendants, and parents of the decedent; then to siblings,
nieces and nephews of the decedent; to find further heirs,
this method then looks down the lines of descendants from
ancestors of the deceased.  For example, if a deceased person
is survived by both an uncle and niece, then the niece would
be the only heir

(medium)

Question 16

Generally, courts DO NOT allow extrinsic evidence in order
to correct a testator’s mistake of fact or law.

However, both the Uniform Probate Code and the
Restatement (Third) of Property: Wills & Donative Transfers
ALLOWS even an unambiguous will or donative document
to be reformed if it’s established by clear and convincing
evidence:

Answer 16

  (1) what the donor’s intention was;  AND (2) that
a mistake of fact or law affected the specific terms of the
document.

(low)

Question 17

The Revised Uniform Simultaneous Death Act (RUSDA)
provides that if there is no proof by clear and convincing
evidence that one person survived the other by 120 hours
(5 days), then the property is distributed as if that person
predeceased the other person.  Thus, it is presumed that

Answer 17

each person outlived the other when distributing their
estate.  If RUSDA applies and two deceased people owned
property as joint tenants, RUSDA creates a fiction that the
rights of survivorship are severed and the property passes as if
the two people held the property as tenants in common.

(medium)

Question 18

At common law, there was no residue of a residue rule.  Any
residuary shares of a decedent’s estate that were invalid,
passed to the testator’s heirs via intestate distribution.  Under
the modern view, if the residue is devised to two or more
persons, any residuary beneficiary’s share that fails will pass

Answer 18

to the other residuary beneficiaries.  This rule only applies if
the anti-lapse statute does not produce a substitute taker for a
beneficiary who fails to survive the testator.

(medium)

Question 19

A condition on a gift in a will/trust that prohibits a first
marriage or requires divorce are void as against public
policy, and will be treated as though the restriction had not
been imposed.  However, a restraint on marriage may be
upheld if: 

Answer 19

(a) it is a restraint on remarriage (i.e.  a condition
tied to the surviving spouse’s interest);  OR (b) the language
of the devise or bequest indicates that its intended purpose
is to take care of a person’s daily needs until they are able to
obtain such support through marriage.

(medium)

Question 20

When a testator/grantor includes a provision to govern his
property in the event he dies without issue, but fails to include
a provision regarding his death in the event he dies with issue,
some courts infer a gift to issue.  However, other courts hold

Answer 20

that the gift fails and passes to the testator/grantor’s estate.

(low)

Question 21

A person who was gifted securities (shares of stock) in a will
is entitled to

Answer 21

additional shares owned by the testator that
were acquired as the result of stock splits or stock dividends.

(medium)

Question 22

Under the common law, a specific devise of real property
DID NOT pass subject to any mortgage, and the mortgage
was paid from the estate.  Under the modern view, a specific
devisee of real property

Answer 22

assumes the mortgage (unless
explicitly stated otherwise), regardless of a general directive
in the will to pay debts

(low)

Question 23

A prenuptial agreement between spouses waiving rights
to each other’s assets upon divorce

Answer 23

DOES NOT apply to
voluntary gifts or bequests.

(low)

Question 24

A conditional or contingent will is one that takes effect only
upon the occurrence of some uncertain event.  If the condition
is not satisfied (or the contingency fails), the will is rendered
inoperative and void.

To determine if a will is conditional, the court will look at the
testator’s intent.  The testator’s intent to make a conditional
or contingent will must be clear from the language of the
will.  A mere statement of motive for making the will is NOT
enough.

Additional factors a court will consider are: 

Answer 24

(1)
the circumstances surrounding the execution of the
document; (2) any statements made by the decedent
following the execution of the document; (3) the
manner in which the document was kept after the
time for the purported contingency had lapsed; (4) the
decedent’s education and knowledge of the law; (5)
whether any subsequent testamentary documents were made; (6) whether the contingency bears a reasonable
relation to the disposition of the decedent’s property;
(7) whether a finding of a conditional will means that
the deceased died intestate; (8) whether effectuating
the terms of the will would be equitable under the
circumstances; and (9) such other relevant factors that
bear on the issue at hand.

Question 25

A specific gift is one that is specifically identified (i.e.  real
property or personal property).

A general gift is nonspecific and can be satisfied from any
of the funds remaining in a testator’s estate.  If it’s unclear
whether the gift is general or specific, the court must consider
the intent of the testator.

A demonstrative gift is a hybrid and occurs when the testator
makes a general gift, but also identifies a specific source
that the gift should come from.  Money from a specified bank
account is an example of a demonstrative gift.

A gift of stock shares may be general or specific, depending
on the language of the will and the

Answer 25

intent of the testator. A
gift of stock shares is a specific gift if the testator owns it
at the time of execution or if it is stock in a closely held
corporation.

(low)

Question 26

Generally, a child has NO rights to his or her parent’s estate
if the parent chooses to leave him or her out of the will.  The
only time a child will have rights when omitted from a will, is
if the child is a pretermitted child (which is a child born after
the will was made).

A child that is intentionally omitted from a will is NOT
entitled to a share of the decedent’s estate.  However, if a
portion of the will fails, then

Answer 26

a child will be entitled to his
intestate share UNLESS the will intentionally disinherits
the child.  In most states, a general disinheritance clause
(one disinheriting anyone not mentioned in the will) is NOT
sufficient to show that a child was intentionally omitted.

(medium)

Question 27

In some states, a child may be informally adopted through
a person’s words or conduct.  When a person takes in a child
and assumes parental responsibilities (some states also
require the decedent to have promised or agreed to adopt the
child), equity holds the person as having formally adopted the
child.  In such a situation

Answer 27

the child is entitled to an intestate
share of the decedent’s estate.

(medium)

Question 28

Many states have enacted statutes that give a surviving
spouse the right to take a statutory share of the deceased
spouse’s estate (instead of taking under that deceased spouse’s
will).  The amount of the elective share varies by state, and
is typically one-third of the net probate estate (which is the
gross-probate estate less creditor claims).  The elective share

Answer 28

is in addition to any statutory family exemptions (family
residence, exempt personal property, and a family allowance).

(medium)

Question 29

The elective share is calculated by first reducing the gross
estate by the exempt personal property set-asides.  Next,
expenses (but not taxes) are paid to arrive at the net probate
estate.  In some states, testamentary substitutes (i.e.  lifetime
transfers or certain non-probate assets) are brought back into
the estate to calculate the net estate.  Once the net estate is
calculated,

Answer 29

the surviving spouse is entitled to the statutory
percentage (usually one-third), reduced by the value of the assets that would pass absolutely to the spouse under
the decedent’s will.  The surviving spouse is NOT entitled to
the elective share if that amount is less than the amount the
spouse would take under the will.

(medium)

Question 30

Generally, when the spouse elects to take the elective share,
that share comes out of

Answer 30

the estate first (usually pro rata from
the other named beneficiaries).

(medium)

Question 31

Most states allow a surviving spouse to claim their elective
share against assets in a revocable trust.  Under the Illusory
Transfer Doctrine, if a settlor retains control over the trust
property so that he remains the practical owner of it during
his lifetime, the trust will be held ineffective as against a
claim by the surviving spouse.  The critical inquiry is whether
the settlor

Answer 31

intended to surrender complete dominion over
the property to the trustee and trust beneficiaries.  Under
the Fraudulent Transfer Doctrine, the surviving spouse can
reach assets in a trust if the transfer was fraudulent.  In
determining fraudulent intent, courts generally consider the
facts and circumstances surrounding the transfer.

(medium)

Question 32

A pretermitted child is one who was unintentionally left
out of a will.  If the child was born or adopted after the
execution of a will, the child is entitled to an intestate share
of the decedent’s estate UNLESS the child

Answer 32

was intentionally
omitted from the will.

Question 33

In some states the child is NOT entitled to a share of the estate
if the decedent provided for the child outside of the will or left
all (or substantially all) of estate to the child’s other parent.

If the child was living at the time of execution, the child is
NOT entitled to a share of the decedent’s estate UNLESS

Answer 33

the child was omitted from the will because the testator did
not know of the child’s existence or believed the child to be
dead.

Some states presume a child was unintentionally omitted if
there is no evidence otherwise.

(high)

Question 34

To have the capacity to execute a will, a testator must be
capable of knowing and understanding: 

Answer 34

(1) the nature and
extent of his property;  (2) the natural objects of his bounty
(i.e.  relatives and friends);  (3) the disposition that he is
making of that property;  AND (4) the ability to connect the
above elements together to form a coherent plan.  Mental
capacity is presumed, and the burden of proof is on the will
contestant to prove that the testator lacked mental capacity

Question 35

A will is invalid to the extent it was executed under undue
influence, and may be invalidated in full or in part.  Undue
influence occurs when a person exerts influence that
overcomes a testator’s free will and judgment.

A prima facie case of undue influence is established if:

Answer 35

(1)
the testator had a weakness (physical, mental, or financial)
that made him susceptible to influence;  (2) the wrongdoer
had access to the testator and an opportunity to exert
influence;  (3) the wrongdoer actively participated in drafting
the will;  AND (4) there is an unnatural (unexpected) result.

(high)

Question 36

A common law presumption of undue influence is established
if:

Answer 36

(1) a confidential relationship existed between the testator
and the wrongdoer;  (2) the wrongdoer actively participated
in the drafting of the will;  AND (3) an unnatural result
occurred.

(high)

Question 37

A will may be contested on the grounds of fraud when:

Answer 37

(1)
an individual knowingly makes a material misrepresentation
of fact;  (2) with the intent to induce reliance by the
testator;  AND (3) the misrepresentation actually induces
reliance to the testator’s detriment.

(low)

Question 38

Fraud may occur in the inducement or execution of a
will.  Under both, a will is invalid to the extent it was affected
by fraud, and may be invalidated in full or in part.

Answer 38

Fraud in the inducement occurs when a person
deceives a testator regarding facts related to the
instrument (i.e.  property or beneficiaries).

Fraud in the execution occurs when a person deceives
a testator regarding the nature of the document being
signed.

(low)

Question 39

A person has standing to challenge a will if the person: 

Answer 39

(a) is
a beneficiary of the will;  (b) should be a beneficiary of the
will;  OR (c) would be financially benefited if the decedent
died without a will.

(medium)

Question 40

In most states, a provision (known as a no-contest clause) in a
will purporting to penalize an interested person for contesting
the will or instituting other proceedings relating to the estate
is valid.

However, most courts will NOT enforce a no-contest clause
if probable cause exists for instituting proceedings to
challenge a will.

In addition, no-contest clauses generally

Answer 40

DO NOT apply
when:  (a) the contestant is alleging fraud or that the will
was revoked by another will, and there is a good basis
for the claim;  (b) the contest is on behalf of a minor or
incompetent;  (c) the contestant is alleging that the court does
not have jurisdiction;  OR (d) the contestant is merely asking
the court to interpret/construe the will’s terms.

(low)

Question 41

Most courts will permit modification of a will to conform to
the testator’s intent if there is clear and convincing evidence
of a mistake. Under the UPC (adopted by some states),
a court may

Answer 41

modify a will if there is clear and convincing
evidence even if it’s an unambiguous provision (however,
most courts will not admit extrinsic evidence to do so).

(low)

Question 42

Joint tenants of a bank account have the right of survivorship,
and will be entitled to the remaining funds upon the death of
the other joint tenant.  However, a contestant may overcome
the presumption of the right of survivorship by showing that
the account was set up merely for the

Answer 42

convenience of the
parties

(medium)

Question 43

If the joint tenant was unjustly enriched by securing the
funds in an account through misconduct such as fraud, undue
influence, or breach of a fiduciary duty, a

Answer 43

constructive trust
will be created in which the court will force the tenant to hold
the funds as trustee and return them to the decedent’s estate.

(medium)

Question 44

A Totten Trust is created when the depositor opens up a bank
account for himself as trustee for another.  If a beneficiary
to a Totten Trust survives the depositor, the trust shall
terminate and title to the funds vest in the beneficiary free
and clear of the trust.  Totten trusts are revocable both by
will and during the lifetime of the creator.  In order to
effectively revoke a totten trust during the creator’s lifetime,
the creator must either:

Answer 44

(a) withdraw all funds;  OR (b)
deliver a signed, written, and acknowledged revocation to
the bank which names the financial institution and the new
beneficiary.  A Totten Trust can be revoked, terminated, or
modified by a provision in the depositor’s will only by (1) an
express direction concerning such trust account, (2) which
must specifically name the beneficiary and the financial
institution

(low)

Question 45

A life insurance policyholder has the power to change
beneficiaries during his lifetime.  However, such a change
is generally

Answer 45

not permitted through a will, and must be
changed on the policy directly.  The change of an irrevocable
beneficiary requires the beneficiary’s consent, while the
change of a revocable beneficiary does not.

(medium)

Question 46

An inter vivos gift is one made during the donor’s
lifetime.  Transfers of property made during the donor’s
lifetime are NOT subject to intestacy rules or probate.  A valid
inter vivos gift occurs when

Answer 46

(1) a donor with intent to make a
gift, (2) delivers the gift, and (3) the donee accepts the gift.

Delivery of a gift may be constructive when the donor
transfers a means of controlling or taking ownership of the
property rather than the property itself (as through a letter or
a token that represents the gift).  Delivery of real property
requires delivery of the deed.

(low)

Question 47

If a decedent’s estate is inadequate to pay creditors, those
who receive non-probate transfers may be liable to pay the
decedent’s creditors up to the value of the transfer.  Two or
more transferees are severally liable.  Generally, a creditor is

Answer 47

NOT allowed to attach gifts given by a decedent prior to their
death (an inter vivos gift).

(low)

Question 48

Personal representatives (i.e.  an executor) must handle
all the matters associated with probate, including filing
necessary paperwork, gathering the decedent’s property, and
notifying creditors, heirs, or devisees.

If a decedent DOES NOT name a personal representative in
his will, typically the court will

Answer 48

appoint one in the following
order of priority:  (1) the surviving spouse of the decedent
who is a devisee of the decedent;  (2) other devisees of the
decedent;  (3) the surviving spouse of the decedent;  (4) other
heirs of the decedent;  (5) any creditor (if 45 days have passed
since the death of the decedent).

(low)

Question 49

All states have adopted statutes authorizing durable healthcare powers and advanced directives.

An advance directive (also known as a living will)
specifies the patient’s preferences for treatment or
non-treatment should he become incapacitated.

A durable health-care power of attorney gives
a designated agent the power to make healthcare decisions for the principal in the event of the
principal’s incapacity.  Unless otherwise provided, an
agent’s power is NOT limited to a particular event,
illness, or time-period.

The majority of states require that durable health-care powers
and advanced directives be in

Answer 49

(1) a signed writing, (2) that
is witnessed or notarized.  State laws vary on whether the
person designated as the agent can be a witness to the durable
health care power of attorney.  Under the Uniform Health Care Decisions Act, the designated agent is NOT prohibited
from being a witness.  However, in many states, the person
designated as the agent cannot be a witness to the power

(medium)

Question 50

A typical health care power of attorney insulates an individual
acting as agent or surrogate from civil or criminal liability
(or to discipline for unprofessional conduct) for healthcare decisions made in good faith.  In addition, agents who
are mistaken, but in good faith believe they have authority
to make a health-care decision for a patient, are likewise
protected from liability.

Health care decisions include:

Answer 50

(1) selection and discharge
of health care providers and institutions;  (2) approval
or disapproval of diagnostic tests, surgical procedures,
programs of medication, and orders not to resuscitate;  and
(3) directions to withhold or withdraw artificial nutrition and
hydration and all other forms of health care.

(medium)

Question 51

An adult may designate any individual to act as surrogate by
personally informing the supervising health care provider.

In the absence of a designation (or if the designee is not
readily available), any member of the following classes
of the patient’s family, in order of priority, who is readily
available may act as surrogate:

Answer 51

(1) spouse (unless legally
separated);  (2) adult child;  (3) parent;  (4) an adult brother
or sister;  OR (5) if none of the previous individuals are
available, an adult who (i) has exhibited special care and
concern for the patient, (ii) is familiar with the patient’s
personal values, and (iii) is readily available.  If there are
multiple members in the same class that have priority, a
majority of those members have to agree on the health-care
decision.

(medium)