Wills

Question 1

Holographic will requirements

Answer 1

All or most of the will must be in the testator’s handwriting and signed by the testator

Question 2

Attested will requirements

Answer 2

The will must be signed by the testator and two witnesses, who must sign in the testator’s presence

Question 3

Codicil

Answer 3

A later testamentary instruments that amends, alters, or modifies a previously executed will. A will is treated as having been executed (republished) on the date of the last validly executed codicil. To be republished, the will must have been validly executed.

Question 4

Incorporation by reference

Answer 4

A document that is not present when a will is executed may be incorporated into the will by reference so that it is considered part of the will.

Question 5

Incorporation by reference requirements

Answer 5

(1) The document must be in existence at the time the will was executed; (2) the language of the will must sufficiently describe the writing to permit its identification; and (3) the will must manifest an intention to incorporate the document

Question 6

Slayer statute

Answer 6

One who feloniously and intentionally brings about the death of the decedent forfeits any interest in the decedent’s estate. The property passes as though the killer predeceased the decedent. These slayer statutes only apply when the heir kills the decedent whose estate is at issue. They do not apply to bar someone from taking a share of an estate because she killed another person–even if that person is the source of the decedent’s property.

Question 7

Intestacy

Answer 7

Under intestacy statutes, the portion of the estate not passing to the surviving spouse passes to the decedent’s children and descendants of deceased children. Parents and collateral kin never inherit if the decedent is survived by children or more remote descendants.

Question 8

Ademption by extinction

Answer 8

Under the doctrine of ademption, when specifically bequeathed property is not in the testator’s estate at death, the bequest fails. Most courts apply the identity theory of ademption, which uses an objective test; the testator’s intent is irrelevant. Under that view, if the testator no longer owns the property, the gift is adeemed.

Ademption does not apply to general or demonstrative legacies.

Question 9

Specific bequest of stock

Answer 9

CL: a specific bequest of stock includes any additional shares produced by a stock split but not those produced by a stock dividend

UPC and nearly all states: a specific bequest of stick includes stock dividends

Question 10

Classic per stirpes method of computing intestate shares

Answer 10

Divide at the first generation

Question 11

Per capita with representation method of calculating shares (majority rule)

Answer 11

Divide at first generation with survivors

Question 12

Per capita at each generational level method of calculating shares (modern trend)

Answer 12

Divide at first generation with survivors and pools shares of lower generation so each person in lower generation gets an equal share

Question 13

Intestacy of adopted children

Answer 13

Adopted children are treated the same as biological children of the adopting parents

Generally, there is no inheritance in wither direction between adopted children and their biological parents

Question 14

Intestacy of stepchildren and foster children

Answer 14

Generally, stepchildren and foster children have no inheritance rights unless adopted by the stepparent or foster parent.

Adoption by estoppel: permits a child to inherit from or though a stepparent or foster parent when legal custody of a child is gained under an (unfulfilled) agreement to adopt them.

Question 15

Intestacy of nonmarital children

Answer 15

A nonmarital child always inherits from the mother.

The child will inherit from their father if: (1) the father married the mother after the 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.

Question 16

Effect of simultaneous death on intestacy

Answer 16

USDA (Uniform Simultaneous Death Act): when disposition of property depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if they had survived the other. The USDA applies only if there is no sufficient evidence of survival.

120-hour rule: most states and the UPC require that a person survive the decedent by 120 hours to take any distribution of the decedent’s property

Question 17

Disclaimer

Answer 17

An heir, will beneficiary, life insurance beneficiary, surviving joint tenant, etc. can disclaim an interest.

Requirements: (1) in writing; (2) signed by the disclaimant; (3) acknowledged before a notary; and (4) filed with the appropriate court within nine months of death

An interest cannot be disclaimed if the heir or beneficiary has accepted the property or any of its benefits (estoppel)

The disclaimed property passes as if the disclaimant had predeceased the decedent.

Question 18

Law applicable to wills

Answer 18

Real property: determined by law of the state where the property is located

Personal property: determined by the law of the testator’s domicile at the time of death

Question 19

Will requirements

Answer 19

Legal capacity
Testamentary capacity
Intent
Valid formalities (execution of attested wills and holographic wills)

Question 20

Legal capacity requirement

Answer 20

The testator must normally be at least 18 years ofd and of sound mind at the time they make a will.

Question 21

Testamentary capacity

Answer 21

A testator must have the capacity to understand: (1) the nature of their act; (2) the nature and extent of their property; (3) the persons who are the natural objects of their bounty (family members); and (4) be able to formulate an orderly scheme of disposition

A mentally challenged person can make a will as long as they meet the above requirements. In addition, a sane person may lack capacity at times, for example, because they were under the influence of intoxicating substances or disoriented because of an accident or medical procedure.

An adjudication of insanity or an appointment of a guardian or conservator is evidence of a testator’s lack of capacity, but it is not conclusive.

Question 22

Intent

Answer 22

The testator must have present intent that the instrument operate as their will.

Question 23

Execution of attested wills

Answer 23

The will or codicil must be in writing, signed by the testator in the presence of two attesting witnesses, and the witnesses must sign in the testator’s presence.

Witnesses do not need to know the contents of the will.

Conscious presence test: each party was conscious of where the other parties were and what they were doing, and the act of signing took place within the general awareness and cognizance of the other parties.

Participating via telephone or computer is not “presence” for the purpose of fulfilling execution requriements.

Question 24

Ademption by satisfaction

Answer 24

A testamentary gift may be satisfied by an inter vivos transfer from the testator to the beneficiary after the extinction of the will if the testator intends the transfer to have that effect.

Most states require a writing or specific instructions in the will before the gift is adeemed a satisfaction.

Question 25

Abatement

Answer 25

The process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises

If the testator does not set out an order of abatement in the will, testamentary gifts will usually abate in the following order:
Property passing by intestacy
Residuary estate
General legacies
Demonstrative legacies
Specific bequests and devises

Question 26

Lapsed gifts and anti-lapse statutes

Answer 26

A gift lapses if the beneficiary predeceases the testator or if the beneficiary is treated as not surviving the testator.

Nearly all states have anti-lapse statutes that operate to save the gift 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.