Wills Flashcards
Holographic will requirements
All or most of the will must be in the testator’s handwriting and signed by the testator
Attested will requirements
The will must be signed by the testator and two witnesses, who must sign in the testator’s presence
Codicil
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.
Incorporation by reference
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.
Incorporation by reference requirements
(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
Slayer statute
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.
Intestacy
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.
Ademption by extinction
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.
Specific bequest of stock
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
Classic per stirpes method of computing intestate shares
Divide at the first generation
Per capita with representation method of calculating shares (majority rule)
Divide at first generation with survivors
Per capita at each generational level method of calculating shares (modern trend)
Divide at first generation with survivors and pools shares of lower generation so each person in lower generation gets an equal share
Intestacy of adopted children
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
Intestacy of stepchildren and foster children
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.
Intestacy of nonmarital children
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.
Effect of simultaneous death on intestacy
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
Disclaimer
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.
Law applicable to wills
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
Will requirements
Legal capacity
Testamentary capacity
Intent
Valid formalities (execution of attested wills and holographic wills)
Legal capacity requirement
The testator must normally be at least 18 years ofd and of sound mind at the time they make a will.
Testamentary capacity
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.
Intent
The testator must have present intent that the instrument operate as their will.
Execution of attested wills
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.
Ademption by satisfaction
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.
Abatement
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
Lapsed gifts and anti-lapse statutes
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.
