Wills Flashcards
What are some ways to avoid probate altogether?
Pass the property outside of the probate process such as by:
intervivos trust/gift,
future interests (e.g. remainder intersts, executory interests),
survivorship rights (e.g. joint tenants),
life insurance,
Totten Trusts (just deposit accounts funded for another’s benefit)
Joint or survivor bank accounts (usually)
Payable on death designations
Deeds conditional on death that have been delivered or placed in escrow
Contracts with death benefits (e.g. life insurance, retirement accounts, etc)
These items are distributed and removed from the estate before the will/intestacy is considered
What rules apply to joint or survivor bank accounts with respect to creditors?
A bank account in the name of two or more persons “with right of survivorship” usually gives the survivor the $ outside of the probate process
BUT there are nuances…
Under UPC, creditors can reach the $ in the account to the extent the decedent deposited $ into the account if other estate assets are insufficent to satisfy the debts.
Under common law, creditors can reach the joint account if it was set up merely for convience and no survivorship feature was intended.
When does property pass by intestacy?
When either:
- Total Intestacy: Person dies without a will
- Partial Intestacy: decedent’s will did not dispose of all the decedant’s property (probably because no residuary clause or because all residual designees predeceased)
Does a living person have any heirs?
No - only dead people have heirs
Living people have heirs apparent
Does decedent’s intent matter if the decedent dies intestate?
No, regardless if evidence shows that the decedent would have preferred a different distribution
What law applies to property owned by a married couple?
What are the two regimes adopted by different states?
The law of the couple’s domicile at the time the property was acquired.
Accordingly marital rights don’t change as the couple moves from one state to another
2 Regimes include:
Common law marital property system
Community property system
Which state’s intestacy law applies?
For personal property, the law of the decedent’s domicile at death applies
For real property, the law of the situs of the property applies
What is the old common law rule for how much a surviving spouse took intestate?
Spouses were not heirs, but they got certain perks…
Widows took “dower” (life estate in 1/3 of real property owned by the husband at any time during the marriage, regardless if it was owned by the husband at death)
Widowers took “curtesy” (life estate in all of wife’s real property provided a child was born to the marriage)
Eliminated now
What is a synonym of descendant?
Issue
Under modern law, how much does a surviving spouse take if there are surviving descendants? (3 Rules)
~ Majority rule says spouse takes 1/2 to 1/3
~ Some states give the spouse a fixed dollar amount plus 1/2 to 1/3
~ UPC says that spouse takes all if all surviving descendants are the surviving spouse’s descendants
Under modern law, how much does a surviving spouse take if there are NO surviving descendants?
Majority Rule: Surviving spouse takes all
UPC States: Suviving spouse takes all only If the decedent is not survived by descendants or parents
If there are no descendants, who is next in line?
0) The property passing outside of probate is distributed
1) Debts of the estate
2) Surviving spouse’s share
3) Descendants
~Ancestors and collaterals
4) to parents
5) if no parents, to descendants of parents (and their descendants)
6) if no descendants of parents, to grandparents or their descendants (split between maternal and paternal)
7) If no grandparent descendants, divide into maternal and paternal shares and pass to nearest kin
8) If no relative capable of taking, escheat to the state
What shares do the children take if all of a decedent’s children survive the decedent?
All children take equal shares
What shares do the children take if all of a decedent’s children either survive the decedent or predecease the decedent and leave no decendants of their own that survive the decedent?
All surviving children take equal shares
If at least one descendant predeceased the decedent and is survived by a descendant of their own, what is the distribution under a classic/strict per stirpes?
This is the minority common law rule
The property is divided at the first generational level regardless if there are living takers. One share is created for each surviving child and each dead child that has at least one surviving descendant.
Divides into shares at the child level even if no child survives the decedant
Younger generations cannot take if their parent is still alive
If at least one descendant predeceased the decedent and is survived by a descendant of their own, what is the distribution under per capita with representation?
This is the majority rule
The property is divided at the first generational level at which there are living takers. Each living person at that level takes their share and each deceased person who has suviving descendants is allocated a share which passes to their descendants by right of representation.
So if grandparent dies and all of the children are dead, the grandchildren take in equal portions,but if grandparent dies and not all children are dead, grandchildren can take in different shares.
If at least one descendant predeceased the decedent and is survived by a descendant of their own, what is the distribution under per capita at each generational level?
This is the modern trend + UPC
The property is divided at the first generational level at which there are living takers, but the shares of the deceased persons at that level are combined and divided equally among the takers at the next generational level.
That way persons of the same degree of kinship always take in equal shares. It is also possible for grandchildren to take even though their parents are still living.
How are adopted children treated by intestacy?
Adopted children are treated as the biological children of the adopting parents - age generally does not matter.
- This means that parents inherit from and through their children and children inherit from and through their parents
Adopted children do not inherit from/through their biological parents unless the child is adopted by a close relative
How are step and foster children treated by intestacy?
No inheritance rights unless adopted or the doctrine of “adoption by estoppel” applies.
Adoption by estoppel allows a child to inherit from/through a step/foster parent when legal custody of the child is gained under an unfulfilled agreement to adopt them. (But if the child dies, the step/foster parents cannot take from the child)
How are nonmarital children treated by intestacy?
Always inherit from/through their mother.
Inherit from father if:
(1) father married mother after child’s birth
(2) man adjudicated to be the father in a paternity suit
(3) after his death and during probate proceedings, man proved by clear and convincing evidence to be the father
How are half-bloods treated by intestacy?
Half bloods of an intestate are brothers/sisters who have only one parent in common with the intestate. This only matters if brothers/sisters of the intestate are inheriting from the intestate
Most states draw no distinction
What is a posthumous child?
How are posthumous children treated?
Posthumous children are children born after the death of their parent.
Most states allow posthumous children to be treated as heirs (ie treat as if born at time of decedant’s death)
What is a disinheritance clause?
What is the effect of a disinheritance clause in a will on property passed via intestacy?
A disinheritance clause is a will provision expressly disinheriting an heir
Most states say that disinheritance claues are ineffective as to any property passing by intestacy, but minority rule and UPC honor the clause and act as if the disinherited person disclaimed their share.
What is an advancement?
When is an advancement presumed? (Common law, modern law, UPC)
A lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor (future decedant)’s estate. This is an intestacy concept
At common law: an advancement IS presumed when a substantial intervivos gift is given to one of the decedant’s children
Modern law: An intervivios gift is presumed NOT to be an advancement unless it is shown that it was intended as an advancement
UPC: An advancement exists only if it is declared to be an advancement by the donor in a writing contemporaneous with the gift or acknowledged as an advacement by the heir in writing (does not have to be contemporaneous)
What is the procedure for adjusting shares when an advancement is found?
What if the person receiving the advancement has predeceased the intestate?
(1) PErson receiving the advancement gives the value they received to “hotchpot” (but can’t go below 0 or be forced to write a check)
(2) Value of the estate and hotchpot is distributed (partially coming back to them)
———
Majority rule: advancement is binding on those who succeed to the advancee’s estate
UPC: Advancement is not binding on those who succeed to the advancee’s estate unless the writing contemporaneous with the gift or acknowledgment says it is
What is the concept analogous to advancement in the context of wills?
Satisfaction
Why are there rules regarding simultaneous death?
One person can ony take as an heir or will beneficiary if they survive the decedant, and sometimes it is not clear who survived whom
What are the two approaches to simultaneous death?
Uniform Simultaneous Death Act: When disposition of property depends on sequence of death and the sequence cannot be established, the property is treated as if each decedant survived the other. Applies to all cases where order matters (e.g. joint tenants, wills, intestacy) but only applies when it is not clear who died first
120 Hour Rule (+ UPC): A person must survive decedant by 120 hours to take any distribution of the decedant’s property
^Neither of the above applies if the decedant’s will provides otherwise
What is disclaimer?
Disclaimer is when a will beneficiary or an heir disclaims an interest (ie refuses to accept it)
Why would an heir or beneficiary disclaim a gift?
1) Burdensome/negative value (e.g. environmental liability, back taxes)
2) Taxes (disclaimed property is not treated as a gift from the disclaimant to the ultimate recipient)
3) Escape creditors (disclaimed prperty often cannot be reached by the disclaimant’s creditors)
What are the requirements of disclaimer?
Must be written, signed by the disclaimant, acknowledged before a notory, and filed with the appropriate court within 9 months of death
How can a disclaimer be made on behalf of an infant, incompetent, or decedant
A disclaimer may be made by a guardian on behalf of an infant or incompetent or a personal representative of a decedant if the court finds it is in the best interests of the beneficiary/their estate
Can you accept some of the benefits of the property and then disclaim it?
No, if a beneficiary/heir has accepted any of the benefits, estoppel operates to prevent disclaimer
What is the effect of disclaimer?
The disclaimed property passes as if the disclaimant had predeceased the decedant (disclaimant cannot choose who the property goes to)
Disclaimer of a life estate causes the remainderman to take
What is the effect if the decedant’s death is caused by heir or beneficiary?
What is the burden of proof for a finding that decedant’s death was caused by an heir?
If intentionally and feloniously caused the death of decedant , that person forfeits any interest they had in the decedant’s estate (including insurance, right of survivorship, etc) and the property passes as though the killer predeceased the victim
Must find killing by preponderance of the evidence (so any criminal conviction is dispositive)
What is a codicil?
a supplement to a will that modifies it
How forgiving are courts of compliance with the requirements of a will?
Most states require exact compliance to create a vali will, but the UPC allows minor errors if there is “substantial compliance” (substantial compliance satisfied if there is clear and convincing evidence that testator meant the document to be their will
What is a beneficiary called before the testator dies?
The beneficiary is called an “expectancy”
What is a savings statute?
A savings statute allows a will to be admissible to probate if the will has been executed in compliance with…
- the law of that jurisdiction,
- the law of the jurisdiction where the will was executed,
- the law of the testator’s domicile when the will was made, or
- the law of the testator’s domicile at time of death
Savings statutes function only to get the will into probate - once a will is in, local rules (domicile at death for personal property, situs for real property) determine how it is construed/applied
What are the requirements of all wills?
Legal and testamentary capacity and intent and a signed writing
~ Testator is age 18 (legal capacity) and of sound mind (testamentary capacity)
~ Testamentary intent - presumed intent to make a will
~ Writing
~ Signature of the testator
What is required to have testamentary capacity?
The bar is no higher (probably lower) than for contract law purposes. Testator must have the capacity to understand:
- nature of the act of excuting a will
- nature/extent of their property
- the person who are the natural objects of their bounty (can recognize your family)
- be able to formulate an orderly scheme of disposition
When is testimentary capacity judged as of?
Judged as of the time when the will is executed
Which of the following indicate a lack of testamentary capacity:
- mental ailments (including failing memory)
- physical ailments
- drug addition
- appointment of a guardian
- adjudication of insanity
None - even if the person lacks capacity at certain times, they can have testimentary capacity at other times
Appointment of a guardian or adjudication of insanity is presumptive evidence but is not dispositive
What is testamentary intent? How can it be proven?
Testator must have present intent that the instrument operate as their will. 3 elements:
- intent to dispose of property
- intent that the dispoition is to occur only at death
- intent that the instrument accomplish the disposition
Parol evidence is admissible to show a lack of testamentary intent
What is required for the signature component of a will?
Can anyone else sign for you?
Any mark made by the testator with intent that it operate as their signature (including initials/symbols)
A proxy signature can be made by another person at the testator’s direction and in their presence - Can get a witness to make a proxy signature
Signatures must be in a single contemporaneous transaction
What are the requirements of formal attested wills?
All common requirements of a will…
(Legal and Testamentary capacity and intent and a signed writing)
~ Testator is age 18 and of sound mind (testamentary capacity)
~ Testamentary intent - presumed intent to make a will
~ Writing
~ Signature of the testator
PLUS [varies by state]
(nod or sign, pass two pens to two present)
- two competent attesting witnesses (or signed by a notary under UPC)
- testator must acknowledge will or sign in witness’s presence
- witnesses must sign in testator’s presence
- If witness is also a beneficiary, will is valid but gift to interested witness is purged unless
(A) witness is supernumerary (above the required #)
(B) witness would take without the will (or would take less)
(C) UPC minority rule applies
Do the witnesses to a formal attested will have to know the contents of the will?
No, but some states require that the testator “publish” the will by telling the witnesses that this is their wil
Are lawyes, creditors, or fiduciaries considered to be “interested” for purposes of witnessing a will?
No, so accordingly, they are not disqualifed from collecting debt or serving the estate
What is required for a witness to be “in the testator’s presence”?
Most courts use the “conscious presence test” where the witness and the testator must both know that the other is present and must know what the other is doing - the signing must be within the general awareness and cognizance of the other party.
[KEY POINT] Telephone or computer contact does not satisfy “presence”
What is the UPC rule for the consequences of a failed formal attested will?
Defectively executedwil can be given effect if clear and convincing evidence that testator intended it to be his will
What is the term for: language in a will that recites the elements of due execution and is prima facie evidence that those elements were satisfied (but is not required)
attestation clause
What is a self-proving affidavit? Why make one?
Recites that all the elements of due execution were performed and is sworn to by the testator and witnesses before a notary.
Functions like a deposition and eliminates the need to produce witnesses in court later (very common for convenience reasons)
Does a signature on a self-proving affidavit count as a signature on a will?
Most jurisdictions say yes
What are the requirements for holographic wills?
All common requirements of a will…
~ Testator is age 18 and of sound mind (testamentary capacity)
~ Testamentary intent - presumed intent to make a will
~ Writing
~ Signature of the testator
PLUS
- must be mostly/completely in testator’s handwriting (important parts should be in testator’s handwriting)
- witnesses not needed
Can a holographic will be amended by handwritten change after its creation?
Yes
Can a holographic codicil amend an attested will?
Yes, if the jurisdiction recognizes holographic wills
Can handwritten changes to an attested will after it is made be effective?
Yes, if the jurisdiction recognizes holographic wlls, the changes might be considered a holographic codicil and be effective
Are oral wills effective?
No, these are called “nuncupative wills” and are rarely recognized.
Some jurisdictions to recognize them but only for personal property and only if made by a soldier/sailor or a person contemplating imminent death
To whom is an attorney liable for negligence in drafting a will?
What are the potential COAs
Liable to the client and to the intended beneficiaries of the will.
Can sue the atty as a third party beneficiary of the atty-client contract. SoL begins to run on date of death, not on the date when the will was executed
Can also sue for malpractice (but many states still require privity to sue for malpractice, so intended beneficiaries would lack standing
What are the key terms for how property left to someone in a will?
A devise is a gift of real property and recipient is a devisee
A bequest is a gift of personal property and recipient is a beneficiary
A legacy is a (usually cash) gift of personal property in a will and the recipient is a legatee
(But these terms are often used imprecisely)
What are the classifications of gift for purposes of ademption, satisfaction, and abatement?
Specific devise/legacy (a gift of a particular item distinct from all other property in the estate)
General legacy - a gift of general economic benefit payable out of the general assets of the estate without requiring any particular source of payment (or gifts of particular property if the testator never owned them and intended the executor to go out and buy them)
Demonstrative legacy - gift of a general amount to be paid from a particular source or fund (treated as a specific legacy to the extent the fund source is available and a general legacy to the extent of any shortfall)
Residuary Estate - gift of the balance of property after paying debts, expenses, taxes and specific, general, and demonstrative gifts
What is ademption by extinction?
Failure of a gift because property is no longer in the testator’s estate at the time of their death (so it only applies to specific devises and bequests).
The would be recipient of the specific bequest/devise gets nothing and there is no inquiry into testator’s intent (beyond any provision in the will, which would control)
There can also be partial ademption (where the testator has gotten rid of part of the property subject to the specific devise/bequest). The devisee would get what ever is left
