Wills

Question 1

When may property pass intestate?

Answer 1

1) a decedent dies without having made a will
2) A decedent’t will is denied probate; or
3) A decedent’s will does not dispose of all his property, either because a gift has failed or because the will contains no residuary clause

Question 2

Intestate Share of surviving spouse

Answer 2

spouse normally takes 1/3 or 1/2 of estate

In states adopting Uniform Probate Code (UPC), the surviving spouse takes the entire estate if decedent is survived by descendants, all of whom are descendants of surviving spouse and surviving spouse has no other surviving descendant

What if no descendants survive? -> spouse takes entire estate in most states. In UPC states, spouse takes entire estate only if decedent is not survived by descendants or parents

Question 3

Intestate Succession Generally

Answer 3

[if NONE of preceding level, passes to next level]

1) spouse and/or descendants
2) Parents
3) Descendants of Parents
4) Grandparents or descendant
5) Nearest kin
6) The State

Question 4

Dividing up property for children of decedents descendant’s

Answer 4

majority rule is decedent’s descendants take their shares per capita with representation, which means property is divided into equal shares at the first generational level at which there are living takers.

Modern Trend - Per Capita at Each Generational Level: States in UPC make initial division of shares at the first generational level at which there are living takers, but the shares are combined and then divided equally among the takers at the next generational level. Person in same degree of kinship to decedent take equal shares.

Question 5

Special cases involving children for intestate

Answer 5

-Adopted Children
Treated the same as natural children of the adopting parent. There is no inheritance in either direction between adopted children and their natural parents, except where one of the natural parents marries an adopting parent, or the child is adopted by a close relative

-Stepchildren and Foster Children
generally no inheritance rights unless adopted by the stepparent or foster parent. The doctrine of adoption by estoppel, however, permits a child to inherit form or through a stepparent or foster parent when legal custody of a child is gained under an (unfulfilled) agreement to adopt him

-Posthumous Children
Generally, one cannot claim as an heir of another unless he was alive at that person’s death. An exception is mad for the posthumous descendants of the decedent (a child in gestation at the decedent’s death

-Non-marital Children
A non marital child always inherits from the mother. Child inherits from father if 1) the father married the mother after child’s birth; 2) the man was adjudicated to be the father in a paternity suit; or 3) after his death and during probate proceedings, the man is proved by clear and convincing evidence to be the father

-No distinction between half bloods and whole bloods
no difference in regards to children relationships. they inherit equally under UPC

Question 6

Simultaneous Death (Intestacy and wills)

Answer 6

Half of states follow USDA and half follow 120 hour rule

-USDA
When no evidence of who survived first, property of each decedent is disposed of as if he had survived the other. If there is any evidence (even by minutes) the USDA does not apply

-120 hour rule
UPC requires that a person survive the decedent by 120 hours in order to take any distribution of the decedent’s property

a written will overrides both of these rules if addressed in provision

Question 7

Disclaimers

Answer 7

A beneficiary can disclaim an interest which results in the interest passing as thought eh disclaiming party predeceased the decedent. (must be in writing to be effective for tax purposes)

Question 8

Decedent’s death caused by heir or beneficiary

Answer 8

one who intentionally brings about the death of a decedent forfeits any interest in decedent’s estate. The property passes as though killer predeceased the victim.

Normally applied through a “slayer statute”

proof: A conviction of murder in any degree is conclusive for purposes of this type of statute. In absence of conviction, court must find unlawful and intentional killing by preponderance of evidence

Question 9

Advancement of Intestate Share

Answer 9

Advancement is a lifetime gift to an heir with intent that the gift be applied against any share the heir inherit from donor’s estate

For UPC: finds advancement only if it is 1) declared as such in a contemporaneous writing by the donor, or 2) acknowledged as such in a writing by the heir

Question 10

What is a Will?

Answer 10

• An instrument executed with certain formalities that usually directs the disposition of a person’s property at death
• An instrument that merely appoints a personal representative or revokes an earlier will can be a will.
• A will is revocable during the testator’s lifetime and operative at death.
• A codicil is a supplement to a will that modifies it

Question 11

Testamentary Intent

Answer 11

Testator must have present intent that instrument operates as will. Promises to make a will in the future and ineffective deeds are not wills.

testamentary intent found if: 1) intended to dispose fo the property; 2) intended the disposition to occur only upon his death; and 3) intended that the instrument in question accomplish the disposition

Question 12

Testamentary Capacity

Answer 12

Must be 18 years old and of sound mind at time of making will

Question 13

Execution of Attested Will

Answer 13

1. The will or codicil is signed by the testator, or by another at the testator’s direction and in her presence
2. The be two attesting witnesses;
3. Teh testator sign the will (or acknowledge previous signature of acknowledge the will) in each of the witnesses’ presence; and
4. The witness sign in the testator’s presence
5. The testator must sign at the end of the will;
6. The testator must “publish” the will (declare to witnesses that document is her will)
7. The witnesses must sign in the presence of each other

Note: Under UPC a will is valid if either: 1) it is attested by two competent witnesses or 2) it is signed by a notary

UPC gives court the power to ignore harmless errors to execution if by clear and convincing evidence it is shown that the testator intended the document to be his will

Question 14

Holographic Wills

Answer 14

A will that is entirely in the testator’s handwriting and has not attesting witnesses. A holographic will must contain the testator’s signature but need not be at the end of the will. A nickname, first name, or even initials can constitute the testators signature.

Holographic wills and codicils are recognized by the UPC and majority of states.

Most states that recognize holographic wills give effect to handwritten changes made by the testator after the will is completed.

Contrast: interlineations, changes in beneficiaries, amounts, etc. made after the execution of an attested will are usually not given effect.

Question 15

Oral Wills

Answer 15

most states do not recognize.

Question 16

Conflict of Laws

Answer 16

Real Property -> where the property is located

Personal Property -> testator’s domicile at the time of death

Question 17

Codicil Basics

Answer 17

-Republication of Codicil:

Must be executed with the same formalities.**

A will is treated as having been executed on the date of the last codicil.

-Validation of Prior Invalid Will

Validly executed codicil is generally viewed as impliedly incorporating a defective will by reference, thus validating the will. Note, an invalid will technically cannot be republished.

Question 18

Incorporation By Reference

Answer 18

Documents may incorporated by reference into a will provided: 1) it is in existence at the time of execution; 2) it is sufficiently described in the will and 3) the will manifests an intent* to incorporate the document.

Question 19

Powers of Appointment

Answer 19

• An authority granted to a person, enabling that person (the donee of the power) to designate, within limits prescribed by the creator fo the power, the persons who shall take the porosity and the manner in which they shall take it

General v. Special Power of Appointment:

• General power is power exercisable in favor of the donee himself, his estate, his creditors, or creditors of his estate.
• Special power of appointment is a power exercisable in favor of a limited class of appointees, which class does not include the donee, his estate, his creditors, or the creditors of his estate.

Presently exercisable vs. Testamentary Power:
-Presently exercisable power of appointment = exercisable by donee during her lifetime; Testamentary power = exercisable only by the donee’s will

Question 20

Creditors Reach to Appointive Assets

Answer 20

Under theory that the donee does not own the appointive property, if donee does not exercise her general power (presently exercisable or testamentary), her creditors cannot reach the property. If, however, the donee exercises the power, eve if shea points to another person, her creditors can reach the appointive property as if she were the owner

Question 21

Revocation by Operation of Law

Answer 21

-Marriage following execution of Will
Most states there is no effect on an earlier will. In some UPC states, the new spouse takes an intestate share as “omitted spouse” unless 1) the will makes provision for the new spouse; 2) the omission was intentional, or 3) the will was made in contemplation of the marriage

• Divorce or annulment revokes provisions in favor of former spouse
• revokes all gifts and fiduciary appointments in favor of the former spouse
• under UPC, divorce also revokes bequests to relatives of former spouse

-Pretermitted Children
Most states have statutes for this. If testator fails to provide in his will for any child born or adopted after the execution of the will, the child takes an intestate share

Question 22

Revocation by Written Instrument

Answer 22

All or any part of will may be revoked or altered by a subsequent instrument executed with the same formalities as a will. If subsequent testamentary instrument does not EXPRESSLY revoke the earlier will, the two are read together with the later instrument revoking the earlier only to the extent of INCONSISTENT PROVISIONS

Question 23

Revocation by Physical Act

Answer 23

a will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion fo the will with the intent to revoke. The intent must be concurrent with the act.

Accidental destruction does not revoke.

Question 24

Lapsed gifts and anti-lapse statutes

Answer 24

A gift lapses if the beneficiary predeceases the testator. Nearly all states have anti-lapse statutes that operate to save the fit if the predeceasing beneficiary was in a specified degree of relationship to the testator and left descendants who survived the testator. These descendants take by substitution

Question 25

Classification of Testamentary Gifts

Answer 25

-Specific Devise or Legacy
A gift of a particular item of property distinct from all other objects in the testator’s estate

-General Legacy
A gift of a general economic benefit (often dollar amount) payable out of the general assets of the estate without requiring any particular source of payment

-Demonstrative Legacy
a gift of a general amount that is to be paid from a particular source or fund. Treated as a hybrid–it is treated as a specific legacy to the extend the source of payment is available and a general legacy to the extent of any shortfall of that source of payment

-Residuary Estate
consists of the balance of the testator’s property after paying 1) debts, expenses, and taxes; and 2) specific general demonstrative gifts

Question 26

Ademption

Answer 26

The failure of a gift because the property is no longer in the testator’s estate at the time of her death.

1. Gift fails
2. Applies only to specific devises and bequests
3. Bequest of securities is general bequest (no ademption) unless “my” is used
4. Ademption may be partial
5. Testator’s intent is irrelevant

EXCEPTIONS

a. Insurance proceeds and condemnation awards paid after death
b. Property subject to executory contract (testator’s rights pass)
c. Securities owned as a result of merger, consolidation, etc.
d. Property sold by guardian or conservator

Question 27

Increases to Property After Execution of the Will (Accretions)

Answer 27

1. Increases before testator’s death: income goes to general estate, but improvements to real property go to devisee
2. Increases after testator’s death pass to specific beneficiary
3. Specific bequests include stock splits and stock dividends

Question 28

Protection of the Surviving Spouse Elective Share Statute

Answer 28

1. Spouse may take a statutory share instead of share (if any) in will
2. Amount—in most states, one-third of net probate estate if surviving descendants and one-half without surviving descendants
3. Share paid in manner causing least disruption

Question 29

Protection of Family - Pretermitted Child Statutes

Answer 29

1. In most states, afterborn or after-adopted children take an intestate share
2. Exceptions:
   a. Omission appears intentional
   b. At execution, testator had other children and left nearly all of his estate to other parent of omitted child
   c. Testator provided for omitted child outside of the will
3. Under UPC, omitted child may be limited to same bequest as to other children

Question 30

Will Contests - Standing and Grounds

Answer 30

1. Contest may be brought by any person whose interest would be directly affected by the will’s admission to probate
2. Grounds:
   a. Defective execution
   b. Will offered has been revoked
   c. Testator lacked testamentary intent or capacity
   d. The will or gift is a product of undue influence
   e. The will or gift was procured by fraud
   f. The document was executed or gift made because of mistake

Question 31

Will Contests - Testamentary Capacity

Answer 31

1. Testator must be at least 18 years old at date of execution
2. Contestant must prove that testator could not understand:
   a. Nature of act
   b. Nature and extent of property
   c. People who are the natural objects of testator’s bounty
   d. Nature of disposition
3. Capacity determined at time of will execution
4. Insane delusion invalidates will only to extent delusion caused disposition

Question 32

Will Contests - Undue Influence

Answer 32

1. Requirements:
   a. Influence exerted on testator,
   b. Overpowered the mind and free will of testator, and
   c. Product was will that would not have been made but for the influence
2. Presumption of undue influence arises when:
   a. There is a confidential relationship between the testator and beneficiary, and
   b. The beneficiary participated in a significant activity related to execution of the will

Question 33

Will Contests - Fraud

Answer 33

1. Willful deceit as to character or content of will or as to a material fact
   a. Fraud in execution—contents of instrument misrepresented
   b. Fraud in the inducement
   c. Fraudulent prevention of execution—possible constructive trust remedy
2. Will or gift as result of fraud is invalid

Question 34

Will Contests - Mistake

Answer 34

1. Mistake as to instrument (did not know it was a will)—extrinsic evidence admissible
2. Mistake in inducement—no relief unless mistake appears on face of will
3. Mistake in contents
   a. No relief for mistaken omission
   b. Evidence not admitted to contradict plain meaning
   c. Latent ambiguity (ambiguous as applied)—evidence admissible
   d. Patent ambiguity (on face of will)—gift fails under traditional view, but modern view allows evidence of intent
4. Reformation—UPC and Restatement permit court to reform will terms (even if will unambiguous) to conform to testator’s intent if clear and convincing evidence that testator’s intent or will terms were affected by fraud or mistake

Question 35

Will Contests - No-Contest Clauses

Answer 35

Will be enforced unless contestant had probable cause to challenge will

Question 36

Estate Administration - Personal Representative

Answer 36

1. Order of preference—person named in will, surviving spouse (will beneficiary), any will beneficiary, surviving spouse, any heir, a creditor
2. Duties—give notice, collect assets, manage assets, pay expenses, distribute property

Question 37

Estate Administration - Creditor’s Claims

Answer 37

1. Must be filed within time specified in statute or are barred
2. Priority—administration expenses, funeral and last illness expenses, family allow- ance, tax claims, secured claims, judgments, all other claims

Question 38

Estate Administration - Abatement

Answer 38

1. When assets insufficient, gifts reduced in this order:
   a. Property passing by intestacy
   b. Residue
   c. General legacies (pro rata)
   d. Specific devises and bequests

Question 39

Estate Administration - Interpreting Ambiguous Will Provisions

Answer 39

1. Evidence of surrounding circumstances permitted
2. Testator’s declarations inadmissible
3. Rules of construction
   a. Favor intestate heirs
   b. Favor construction avoiding intestacy
   c. Favor construction consistent with perceived plan
   d. Every portion of will given effect if possible
   e. Between completely inconsistent provisions, one most recently added is favored

Question 40

Will Substitutes In General

Answer 40

Will substitutes include life insurance, joint tenancies or tenancies by entirety, inter vivos trusts, bank account trusts, deeds, contracts, and inter vivos gifts, including gifts causa mortis. Will substitutes may enable individuals to avoid taxes and eliminate the cost and inconvenience of probate

Exam tip: will substitutes are none-probate assets and are not affected by the testator’s will. The property passes to the beneficiary or survivor (e.g. join tenant with right of survivorship) despite any provisions in the will

Question 41

Advance Healthcare Directives: Living Wills and Durable Healthcare Powers

Answer 41

A living will states an individuals desires regarding 1) whether to administer, withheld, or withdraw life-sustaining procedures; 2) whether to provide, withheld, or withdraw artificial nutrition or hydration and 3) whether to provide treatment to alleviate pain. A durable healthcare power appoints an agent to make healthcare decisions on behalf of the principal and does not become effective until the principal becomes incapacitated

Creation and Execution:

1) in writing
2) signed by the testator or principal or another at his direction, and
3) witnessed by two adult witnesses

Question 42

revisit notes cards

Answer 42

revisit generational splits