Willis & Estates Reddit

Question 1

Intestate Succession

Answer 1

Intestacy is the default statutory distribution scheme. It applies when, as here, an individual dies without disposing of his property through a valid will. Intestacy statutes generally favor the decedent’s surviving spouse and issue, followed by the decedent’s other relations.

Question 2

Valid Will Requirements (Attested Will)

Answer 2

A valid will must be in writing and signed with present testamentary intent by the testator in the joint presence of two witnesses.

Question 3

Holographic Wills

Answer 3

A holographic will is in a testator’s handwriting, signed by the testator, and need not be witnessed. To be valid, a will must be acknowledged by the testator and signed in the presence of at least two attesting witnesses, who also sign the will within 30 days

Question 4

Elective Shares

Answer 4

An elective share gives the surviving spouse a fraction of the decedent’s estate if the surviving spouse decides to elect that share, rather than a gift in the will.

Question 5

Inter Vivos Transfers

Answer 5

In some jurisdictions, the surviving spouse can set aside inter vivos transfers made by the decedent during marriage, without spousal consent, if the decedent initiated the transfer within one year of her death, retained an interest in the property, or received less than adequate consideration.

Question 6

Life Insurance Policies

Answer 6

A beneficiary of a life insurance policy takes by virtue of the insurance contract. The proceeds are not part of the decedent’s estate, unless they are payable to the estate as beneficiary. Life insurance policies typically provide that proceeds will only be paid to a beneficiary named on an appropriate form filed with the insurance company; other possible methods of changing a beneficiary are thus viewed as being excluded by the insurance contract. However, some courts have upheld a beneficiary change by will if the insurance company does not object.

Question 7

Incorporation

Answer 7

A will may incorporate by reference another writing not executed with testamentary formalities, provided the other writing meets three requirements: (i) it existed at the time the will was executed; (ii) the testator intended the writing to be incorporated; and (iii) the writing is described in the will with sufficient certainty so as to permit its identification.

Question 8

Lapse & Anti-Lapse

Answer 8

Under common law, if a beneficiary died before the testator or before a point in time by which he was required to survive under the will, the gift failed and went to the residue unless the will provided for an alternate disposition. Today, almost all states have anti-lapse statutes that provide for the alternate disposition of lapsed gifts. Typically, an anti-lapse statute will save the gift if: (i) the gift was made to a beneficiary related to the Testator by blood within a certain degree of relationship, and (ii) that beneficiary is survived by issue.

Question 9

Abatement

Answer 9

Gifts by will are abated, i.e. reduced, when the assets of the estate are insufficient to pay all debts and legacies. If not otherwise specified in the will, gifts are abated in the following order: (i) intestate property; (ii) residuary bequests; (iii) general bequests; and then (iv) specific bequests. Abatement within each category is pro rata.

Question 10

Rule of Construction

Answer 10

Because of the rule of construction that a will “speaks” at the time of death, a bequest of generically described property applies to property that meets the generic description at the testator’s death. The doctrine of ademption applies only to specific bequests.

Question 11

Slayer Statute

Answer 11

A party cannot take property from a decedent when the party was responsible for the decedent’s death.

Question 12

Children

Answer 12

A parent-child relationship must be established for an individual to be classified as issue of another. Under the UPC and the majority of jurisdictions, adoption establishes a parent-child relationship between the stepparent and child, including full inheritance rights in both directions.

The common-law rule was that if a child was born out of wedlock, he could not inherit from his natural father. Most jurisdictions provide that an out-of-wedlock child can inherit from his natural father if (i) the father subsequently married the natural mother, (ii) the father held the child out as his own and either received the child into his home or provided support, (iii) paternity was proven by clear and convincing evidence after the father’s death, or (iv) paternity was adjudicated during the lifetime of the father by a preponderance of the evidence. Further, the Supreme Court has held that a statute is unconstitutional if it denies inheritance rights to a nonmaterial child when paternity has been established during the father’s lifetime.

Question 13

Revocation

Answer 13

A will may be revoked wholly or partially in three ways: by subsequent writings, by physical destruction of the will, or by operation of law. Physical destruction may take the form of burning any portion of the will or canceling, tearing, obliterating, or destroying a material portion of the will with the intent to revoke it. Both the act and a simultaneous intent to revoke must be proven to yield a valid revocation.

Question 14

Pretermitted Heir Statutes

Answer 14

Pretermitted heir statutes permit children of a testator under certain circumstances to claim a share of the estate even though they were omitted from the testator’s will. While the birth or adoption of a child after the execution of a will does not invalidate the will, such children are typically not provided for in the will. If the testator then dies without revising the will, a presumption is created that the omission of the child was accidental. An omitted child statute does not apply if: (i) it appears that the omission of the child was intentional; (ii) the testator had other children at the time the will was executed and left substantially all of his estate to the other parent of the pretermitted child; or (iii) the testator provided for the child outside of the will and intended this to be in lieu of a provision in the will.

Question 15

Codicils

Answer 15

A codicil is a supplement to a will that alters, amends, or modifies it. A codicil must be executed with the same formalities as a will. A validly executed codicil republishes the will as of the date of the codicil.

A validly executed codicil may validate an invalid will if the codicil refers to the will with sufficient certainty to identify and incorporate it, or if the codicil is on the same paper as the invalid will. A will may incorporate by reference another writing provided the other writing existed at the time the will was executed, is intended to be incorporated, and is described in the will with sufficient certainty so as to permit its identification.

Question 16

Stock Dividends

Answer 16

At common law, a stock dividend is a property interest distinct from stock given by a specific bequest. A bequest of stock owned by a testator when the testator’s will is signed excludes subsequently acquired shares of the same stock. A bequest of a certain number of shares is deemed to include any additional shares of that security acquired by reason of a stock split, reinvestment, or merger initiated by the original security. However, the beneficiary is not entitled to any pre-death cash dividends or distributions.

Under common law, a bequest of stock owned by a testator when the testator’s will was signed excluded subsequently acquired shares of the same stock. Many states held that a stock dividend is a property interest distinct from stock given by the specific bequest. Under the modern UPC approach, a stock dividend is treated like a stock split instead of a cash dividend.

Question 17

Replacement Gifts

Answer 17

Under common law, if the subject matter of a specific bequest is missing or destroyed, the beneficiary takes nothing, not even the equivalent in cash. If the specifically-bequeathed item is not a part of the estate at the testator’s death, it is adeemed. The Uniform Probate Code created a mild presumption against ademption. The UPC permits a beneficiary of a specific extinct gift to inherit the property acquired by the testator as replacement property or the outstanding balance

Question 18

Disclaimer

Answer 18

Under disclaimer statutes, a disclaiming party is treated as if she had predeceased the decedent. When a disclaiming party is deemed to have predeceased the testator, the bequest passes either to the disclaimant’s issue or to the residuary legatee. The typical anti-lapse statute provides for alternate disposition of lapsed bequests. Under the majority of state statutes, if the gift was made to a relation of the testator within a specific statutory degree, and the relation predeceased the testator but left issue, the issue succeeds to the gift, unless the will expressly states to the contrary.