Wills Flashcards
When may property pass intestate?
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
Intestate Share of surviving spouse
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
Intestate Succession Generally
[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
Dividing up property for children of decedents descendant’s
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.
Special cases involving children for intestate
-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
Simultaneous Death (Intestacy and wills)
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
Disclaimers
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)
Decedent’s death caused by heir or beneficiary
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
Advancement of Intestate Share
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
What is a Will?
- 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
Testamentary Intent
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
Testamentary Capacity
Must be 18 years old and of sound mind at time of making will
Execution of Attested Will
- The will or codicil is signed by the testator, or by another at the testator’s direction and in her presence
- The be two attesting witnesses;
- Teh testator sign the will (or acknowledge previous signature of acknowledge the will) in each of the witnesses’ presence; and
- The witness sign in the testator’s presence
- The testator must sign at the end of the will;
- The testator must “publish” the will (declare to witnesses that document is her will)
- 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
Holographic Wills
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.
Oral Wills
most states do not recognize.
Conflict of Laws
Real Property -> where the property is located
Personal Property -> testator’s domicile at the time of death
Codicil Basics
-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.
Incorporation By Reference
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.
Powers of Appointment
- 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
Creditors Reach to Appointive Assets
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
Revocation by Operation of Law
-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
Revocation by Written Instrument
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
Revocation by Physical Act
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.
Lapsed gifts and anti-lapse statutes
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