Wills

Question 1

Testate

Answer 1

Decedent dies with a will

Question 2

Intestate

Answer 2

Decedent dies without a will

Question 3

Codicil

Effect of Codicil

Answer 3

A supplement that either amends or revokes a decedent’s will in whole or in part. Generally, must be executed with the same formalities of a will (can be attested or holographic)

Republishes will at the date it was executed

A valid codicil executed after the original will may cure problems that existed at the execution of the will, such as an insufficient number of witnesses.

Question 4

probate

Answer 4

Judicial process for administrating and settling a decedent’s estate

Question 5

Intestate Sucession

Answer 5

A default estate plan, developed by the legislature, for distributing property when the decedent dies intestate.

Question 6

Spouse + Shared Descendants

Answer 6

Surviving spouse takes entire estate

Question 7

Spouse + Parent, No Descendants

Answer 7

SS takes $300,000 and 75% of the remainder of the estate

Question 8

Spouse + Shared Descendants + Surviving Spouse’s Kids

Answer 8

SS takes $225,000 and 1/2 of remaining property

Question 9

Spouse + Non-Spousal Kids (issue not related to SS)

Answer 9

SS takes $150,000 and 1/2 of remaining property

Question 10

Spouse, No Descendents or Parents

Answer 10

SS takes entire estates

Question 11

Without Heirs

Answer 11

Property escheats to the state

Question 12

How is community property handled intestacy? (only a thing in some jurisdiction, don’t talk about unless told to)

Answer 12

Community Property (all property acquired during the marriage is jointly owned by both spouses unless it is a gift, inheritance, or devisee given to only one spouse).

At death, the surviving spouse is entitled to 1/2 of the Community Property (CP). The surviving spouse of an intestate decedent is also entitled to the decedent’s 1/2 CP and quasi-CP. Therefore, the surviving spouse will take 100% of the CP.

Question 13

SS Survival Requirement under CL and USDA

Answer 13

SS must survive D to inherit (or take under a will)

Common-Law – must have survived D by any length of time

Uniform Simultaneous Death Act–Must have survived D by 120 hours

Question 14

Under USDA what happens if there is insufficient evidence of order or spouses’ death?

Answer 14

Insufficient evidence of other of death–the property of each individual passes as though the other individual predeceased him

Question 15

Issue

Answer 15

All lineal descendants, including children, grandchildren, great grandchildren etc

Question 16

Posthumously born children

Answer 16

Rebuttable presumption that the child is the child of the deceased husband if the child is born within 280 days of his death

Question 17

Children born out of wedlock. Modern trend vs. UPA Vs. Common Law

Answer 17

Common-Law: a child was born out of wedlock, then she could not inherit from her natural father.

Modern Trend: An out-of-wedlock child cannot
inherit from her natural father unless:
• The father subsequently married the natural mother; or
• The father held the child out as his own and either
received the child into his home or provided support; or
• Paternity was proven by clear and convincing
evidence after the father’s death; or
• Paternity was adjudicated during the lifetime of the
father by a preponderance of the evidence.

UPA: Requires Proof of Paternity for a child to inherit
• When a father holds a child out as his own presumption of paternity; the child can bring an action to establish paternity at any time
• Otherwise—no presumption of paternity; the child must bring an action within 3-years of reaching the age of majority

Question 18

Posthumously-conceived child

Answer 18

not recognized as a child of the deceased parent

Question 19

When is SS entitled to take intestacy

Answer 19

(1) The be entitled to take under an intestacy statute, the SS must have been legally married to the decedent.
(2) Putative Spouses–Even if a marriage is not valid, as long as long party believes in goof faith in its validity, the spouses are terms putative and qualify as spouses for inheritance purposes.
(3) UPC 120 hour rule

Question 20

Intestacy and Adoption

Answer 20

(1) Adoption curtails all inheritance rights between the natural parents and the child
(2) Adopted children take the same as a natural child.

Question 21

3 Approaches to Intestacy

Answer 21

(1) Per Stirpes
(2) Per Capita with Representation
(3) Per Capital at Each Generation (UPC)

Question 22

Per Stirpes

Answer 22

(1) The estate is first divided into the total number of children of the ancestor who survive or leave issue who survive
(2) Issue equally share the portion that the deceased ancestor would have taken if living

• Divided based on how many children D had (regardless of if they are alive) and pass down their lines to their issue. So if D had 3 dead children all with children, then estate divided into 1/3s and passed to D’s children’s issue
• Issue take in equal shares regardless of whether anyone in that generation survives

Question 23

Per capita with representation

Answer 23

(1) Property is divided equally among the first generation with at least one living member
(2) The share of a non-living member of that generation passes to the living issue of that member
(3) Non-living member with no living issue does not take a share

Question 24

Per capita at each generation

Answer 24

Property is divided into as many equal shares as there are living members of the nearest generation of issue and deceased members of that generation with living issue

(1) Divide property into equal shares at the 1st generation where there is a surviving member
(2) Each surviving heir of that generation gets a share.
(3) The remainder is then equally divided among the next-generation descendants of the deceased descendants in the same manner. aka Pools the remaining shares after each generation, instead of passing the deceased member’s share by representation.

Question 25

Intestacy when no SS or descendant (UPC and General)

Answer 25

(1) D’s parents equally if both survive or all to the surviving parent if only one survives
(2) Theen to descendants of D’s parents
(3) Then to D’s living maternal/paternal grandparents
(4) Then to descendants of D’s deceased grandparents
(5) Then to D’s nearly material/paternal relative
(6) Finally, D’s estate escheats to the state

If no surviving spouse or issue exists, then the property maybe distributed to the decedent’s ancestors (e.g., parents, grandparents, great-grandparents) and more remote collateral relatives (i.e., those related to the decedent through a common ancestor, such as siblings, cousins, aunts, and uncles).

Question 26

Valid Will Requirements

Answer 26

(1) Writing Signed by the Testor (or by some person in his presence and at his direction)
(2) Two or more Witnesses
(3) T has present testamentary intent

Question 27

Testator lacks requisite mental capacity when, at the time of execution…

Answer 27

Did not have the ability to know the

(1) Nature of the act;
(2) Nature and character of his property
(3) Natural Objects of his Bounty, and
(4) Plan of the Attempted Disposition

Question 28

Testamentary Intent

Answer 28

The testator must understand he is executing a will and intend for it to have testamentary effect, and must generally know and approve of the contents.

Need not understand all provisions.

Question 29

Witnesses (Majority and UPC)

Answer 29

Majority: The will must be signed in the joint presence of and attested to by two witnesses.

UPC:
• The witnesses do not have to be present at the same time.
• T does not have to sign in their presence, as long as he acknowledges his signature to them before they sign and they sign within a reasonable time.

Both: Each witness must be of sufficient mental capacity and maturity.

Question 30

Interested Witness Doctrine

Answer 30

CL: An interested W is not competent as a W. The will is not valid unless there are at least two disinterested Ws

Purge theory: A gift to W is denied to the extent of the amount in excess of W’s intestate rights

UPC: Interested W doctrine is abolished

Question 31

Compliance with statutory requirements

Answer 31

Common law—strict compliance

UPC—substantial compliance if there is clear and convincing evidence of T’s intent

Question 32

Holographic Will

Answer 32

(1) T must handwrite the material provisions of a holographic will.
(2) T must sign it
(3) No Witness Requirement but must be clear that T intended the document to be a will

Material Provisions = beneficiaries and items they will receive

Question 33

Will Substitutes

Answer 33

1. Revocable Trusts
2. Pour-Over Wills (a devise of T’s property to a trust created during T’s life)
3. Bank Account and Securities Registered in Beneficiary Form
4. Payable on death clause in the contract
5. Life Insurance (policy proceeds are not part of D’s estate unless payable to the estate as beneficiary)
6. Deeds (unconditionally delivered to the grantee during D’s lifetime or delivered to an escrow agent during D’s lifetime with instructions to turn over to grantee upon D’s death)
7. Totten Trust (a type of revocable trust set up with a bank)