Wills Flashcards
Intestate Succession - how much does surviving spouse get?
Spouse gets half of CP and half of QCP if decedent dies with will and devises other half of their CP/QSP + SP. If the decedent dies without a will, the spouse gets all of the CP, all of the QCP, and ALL of SP if decedent dies without issue, parents, or descendants of grandparent.
No will, spouse gets 1/2 SP if decedent dies with one child, descendants of one predeceased child, or NO surviving descendants but at least one parent or grandparent of descendant.
No will, spouse gets 1/3 SP if spouse is survived by more than one child, one child and the descendants of more predeceased children, or descendants of two or more predeceased children.
What is per capital rep?
The property is divided in equal shares at the first gen at which there are living takers. Each living person at that level passes to his issue.
What is the order of intestate succession for estate not passing to spouse?
issue parents descendants of parents grandparents or their issue issue of predeceased spouse or domestic partner (step-children) decedent's next of kin parents of predeceased spouse or domestic partner or their issue (in-laws) if not --> escheats to the state
Special Rules for Property Inherited from a predeceased spouse
If a surviving spouse dies without descendants the following property the surviving spouse received from the deceased spouse passes to the deceased spouse’s heirs rather than the surviving spouse’s heirs.
- Real property unless deceased spouse died at least fifteen tears prior.
- Personal property worth over $10K unless deceased spouse died at least five years prior.
rules for adoptive parents, biological parents, ste-children and foster children, and adoption by estoppel
a. adoptive parents
Adopted child inherits from and through the parents by adoption and their kin.
Parents by adoption take from and through adopted child.
b. Biological parents
Adoptive child does not inherit from the biological parents unless adoption is by a step-parent.
The biological parent does not inherit from the adopted out child unless the adoption is by a step-parent.
c. step-children and foster children
Step children and foster children will be treated as adopted children if:
(1) relationship began when child was a minor and continued through the parties’ joint lives; and
(2) clear and convincing evidence shows the step or foster parent was precluded from adopting because of a legal partner.
Conduct of “parent” makes it appear as if that person has adopted a “child” even though a formal adoption never occurred. Under certain circumstances, the court will treat this person as a legal adopted child.
rules for non-marital children
a. vis-à-vis mother
treated the same as marital child if proof mother gave birth to the child.
b. vis-à-vis father
to inherit form father, the child must show one of the following:
(1) man married to mother at time of birth or within 300 days after marriage ended
(2) man attempted to marry mother before the child’s birth and child is born during the attempted marriage or within 300 days thereafter.
(3) man attempts to marry mother after the child’s birth and is either named on the birth certificate or plays (or is ordered to pay) child support
(4) man takes child into his home and holds child out as his own.
(5) court judgment of paternity.
rules for posthumous children (conceived before and after decedent’s death)
a. Relative conceived before intestate’s death
If the posthumous relative is conceived before the intestate’s death and is born thereafter, the relative receives the share the relative would have inherited if born during the instestate’s lifetime.
b. child conceived after intestate’s death
a posthumous child who is conceived after the intestate parent’s death will inherit as if born during the intestate’s lifetime if the following conditions are met:
(1) written signed and dated authorization for posthumous conception including designation of a person to control the use of the genetic material
(2) person in control of genetic material gave notice within four months of the issuance of the decedent’s death certificate to the person who controls the decedent’s property (e.g. personal representative) that posthumous conception is possible, and
(3) child is in utero within two years of the issuance of the decedent’s death certificate.
types of bad heirs
a. heir killing intestate
if person feloniously and intentionally kills a decedent, the person is not entitled to any benefit under the will, any property under the intestate succession statute or the statutory provisions for protection of the decedent’s family, any property covered by statutory provisions, or any of the decedent’s quasi-community property. Treated as having predeceased.
b. “bad parent”
1. didn’t acknowledge child
2. parental rights terminated and not restored, or
3. intentionally abandoned the child during minority for at least seven consecutive years while the child was a minor and did not support or communicate with the child.
c. abuse or neglect of elder or dependent adults
An heir who physically or financially abuses or neglects an elder or dependent adult is precluding from inheriting from the decedent’s estate.
d. aliens
A non-citizen of the US is not disqualified from being an heir.
simultaneous death - how many hours must an heir outlive the decedent by?
120 - or else treated as having predeceased.
What is a disclaimer and what is the process to disclaim? What are the effects?
A beneficiary may want to disclaim any interest that otherwise would pass to the person from the decedent, and the interest passes as though the disclaiming party predeceased the decedent. Disclaimers are irrevocable. If interest is LE, remainder is accelerated. WSIDAF
- Written
- Signed by disclaimant
- Identify the decedent
- Describe the disclaimed property
- Acknowledged before a notary
- Filed within a reasonable time which is presumed if filed within 9 months of death
If you accept, too late to disclaim.
advancements - what is is, what’s needed, what happens with the advancement
a. definition
irrevocable gift intended by donor as prepayment of an inheritance
b. proof of advancement
a writing signed by donor or done is needed to prove the advancement
c. effect
if advance wants to share in the estate, advance must account for the advancement, go into hotchpot. – the amount it added back into the net value of the estate for purposes of computing shares. An heir who has received an advancement has his share reduced by the amount of the advancement.
rules re controlling law
conflict of laws - law of decedent’s domicil control succession to personal property; law of situs controls succession to real property.
four requirements for a valid will
- Legal capacity
- 18 yrs or older - Testamentary capacity – sound mind
- understands effect of making will is to dispose of property
- understands general nature and extent of property
- recognize actual objects of bounty - family situation, claims against him, who spouse/kids are - Testamentary intent
- must intend instrument to be a will - Formalities
Attested [witnessed]
Holographic [entirely in testator’s writing]
6 requirements for attested will? ramifications for using interested witness?
(1) in writing
(2) signed by t or someone directed by t in t’s presence or by conservator/someone directed by court order
(3) must sign or acknowledge in joint presence of two witnesses
(4) witnesses must sign within t’s lifetime
(5) witnesses must understand what they’re signing is a will
(6) attestation clause - prima facie evidence that will formalities satisfied
interested witness - will valid but gift to witness presumed to be procured through duress, fraud, or undue influence
- must rebut
- can receive up to intestate share if they rebut
- more than two disinterested witnesses - no need to rebut
4 formalities of holographic will
- sig is in will in t’s handwriting
- material provisions in t’s handwriting
- testamentary intent
- testamentary capacity
harmless error
A will that is not executed in compliance with formalities may be admitted to probate if the proponent of the will establishes by clear and convincing evidence that at the time the t signed the doc he intended it to constitute his will.
types of patent ambiguity
- Patent (obvious) ambiguity
Ambiguous on face – fails to convey a sensible meaning – court will consider extrinsic evidence to clarify - Latent (hidden) ambiguity
Sensible meaning on face but can’t be carried out without further clarification – court will consider extrinsic evidence to clarify
Using an ambiguity where there isn’t one – you can bring extrinsic evidence to show.
What is incorporation by reference, the effect, and elements?
Idea: Instead of writing something out in will, t may incorporate the extraneous doc into will by reference.
Effect: Treated as if the incorporated material were actually written out in full in the will. Doesn’t matter that it lacks formalities or written under influence.
Elements: (1) the doc was in existence at the time the will is executed, (2) it was sufficiently described in the will so that its identification is clear; and (3) there was satisfactory proof that the proffered doc is the doc described in the will.
