Wills

Question 1

Can a first will be valid on a second will?

Answer 1

Yes.
A first will can be valid on a second will by republication or incorporation by reference.

Question 2

What does a will need to be valid?

Answer 2

For a will to be valid the testator must meet the formal requirements of due execution imposed by the statutes of the state.

Most states require that the will be signed by the testator and two witnesses, who must sign in the testator’s presence.

Question 3

What is a holographic will? And who accepts it?

Answer 3

The UPC and a majority of states recognize holographic wills, requiring that all or most of the will be in the testator’s handwriting and signed by the testator.

Question 4

What is a codicil?

Answer 4

A codicil is a later testamentary instrument that amends alters, or modifies a previously executed will.

Question 5

When is a will validly executed? (with the codicil)

Answer 5

A will is treated as having been executed (republished) on the date of the last validly executed codicil.

Question 6

How do you incorporate a document by reference into the will? (3) elements

Answer 6

In most states, 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. To incorporate a document by reference (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 7

Who inherits under intestacy laws?

Answer 7

Under intestacy statutes, the portion of the estate not passing to the surviving spouse passes to the descendant’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

What is a slayer statute? How does it work?

Answer 8

One who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate. The property passes as though the killer predeceased the decedent. These slayer statutes apply only 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 they killed another person- even if that person is the source of the decedent’s property.

Question 9

What is ademption?

Answer 9

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.

Question 10

What if there is replacement property?

Answer 10

Under the UPC a specific devisee has the right to real and tangible personal property that was acquired by the testator as a replacement for the devised property

Question 11

Are stock dividends part of the property that passes?

Answer 11

Under the common law rule, a specific bequest of stock includes any additional shares produced by a stock split but not those produced by a stock dividend. Under the UPC and the statutes of nearly all states, a specific bequest of stock includes stock dividends.

Question 12

What is the identity theory for ademption?

Answer 12

Under the identity theory applied in most states, the ademption doctrine is an objective test that does not take into account the testator’s probable intent. If the property is not in the estate at the testator’s death, it is adeemed and the reason it is not in the estate is immaterial.

Question 13

What is the exception to the ademption doctrine?

Answer 13

However, under a well-recognized exception to the ademption doctrine, if a guardian or conservator is appointed for the testator after the will is executed, and the bequeathed property is sold by the guardian, the beneficiary is entitled to the sale proceeds–at least to the extent they have not been expended for the testator’s care.

Question 14

What happens if the testator gets divorced after making a will?

Answer 14

If a testator is divorced after making a will, all gifts to the former spouse are revoked, and the will takes effect as though the former spouse predeceased the testator.

Question 15

What happens if there is no revocation?

Answer 15

Without a valid revocation, a bequest in a validly executed will remains in full force regardless of the subsequent relationship of the parties.

Question 16

What does a divorce do under the UPC?

Answer 16

Under the Uniform Probate Code, a divorce revokes bequests not only to the former spouse but also to the relatives of the former spouse.

Question 17

What happens if a decedent is not survived by a spouse or descendants?
How is the property divided?

Answer 17

In most states, if a decedent is not survived by a spouse or descendants, her intestate property passes to her parents and/or siblings (and children of deceased siblings).

The property is divided at the first generational level at which there are living takers.

Question 18

What is a per stirpes method of distribution?

Answer 18

A few states adhere to a strict per stirpes method of distribution. Under this method, the stirpital shares aer always determined at the first generational level (the child level) regardless of whether there are living takers.

Question 19

What happens to a will if there is undue influence in making it?

Answer 19

A will (or gift in a will) is invalid if it is obtained through the exercise of undue influence.

Question 20

How do you establish undue influence? (3 elements)

Answer 20

To establish UI, the contestants (who have the burden of proof), must establish that (1) influence was exerted on the testator (2) the effect of the influence was to overpower the mind and free will of the testator, and (3) the product of the influence was a will that would not have been executed but for the influence.

Question 21

When does a presumption of undue influence occur? (3 things)
If those things happen does the burden shift?

Answer 21

A presumption of UI arises when: (1) a confidential relationship existed between the testator and the beneficiary who was alleged to have exercised UI, (2) the beneficiary participated in procuring or drafting the will, and (3) the provisions of the will appear to be unnatural and favor the person who allegedly exercised UI.

Once these elements appear, the burden shifts to the proponent of the will to prove that it was not induced by her UI.

Question 22

What happens if the will was made by undue influence?

What happens if part of the will was made by undue influence?

Answer 22

A will is void if its execution is procured by UI.

If only part of the will is so procured, only that part is void, and the remainder of the will is given effect.

Question 23

What is intestate succession?

Answer 23

Intestate succession is the statutory method of distributing assets that were not disposed of by will. If the decedent’s will is denied probate (e.g. due to a successful will contest), his entire estate passes by intestacy.

Question 24

Intestate Succession: What if there is no surviving spouse?

Answer 24

If there is no surviving spouse, the entire estate passes to the decedent’s children and descendants of deceased children.

Question 25

What is per capita representation? (Intestate succession)

Answer 25

In most states, the issue take per capita representation; i.e., the property is divided into equal shares at the first generational level at which there are living takers, with the shares of each deceased person at that level passing to his issue by right of representation.

Question 26

What is per capita at each generational level? (Intestate succession)

Answer 26

Under the per capita at each generational level scheme, the initial division of shares is made at the first generational level at which there are living takers, but the shares of the deceased persons at that level are combined and then divided equally among the takers at the next generational level.

Question 27

What is the per stripes distribution?

Answer 27

Under the common law per stirpes distribution, one share passes to each child of the decedent, regardless of whether there are any living takers at that level. If the child is deceased the child’s share passes to his descendants by representation.

Question 28

What happens if a testator’s residuary estate is bequeathed to two or more beneficiaries and one or more of their shares lapse?

Answer 28

At common law and in some states, if a testator’s residuary estate (i.e. the portion of the estate that has not otherwise been particularly devised or bequeathed) is bequeathed to two or more beneficiaries and one of the beneficiaries’ shares lapses (i.e. fails), that share does not pass to the remaining beneficiaries, but instead “falls out of the will” and passes by intestacy.

However, most states have replaced this rule by statute, under which the lapsed share passes to the other residuary beneficiaries in proportion to their interests in the residue.

Question 29

What happens when the estate’s assets are not sufficient to pay all claims and satisfy all bequests and devises?

Answer 29

When an estate’s assets are not sufficient to pay all claims and satisfy all bequests and devises, gifts abate.

Abatement is the process of reducing gifts.

Question 30

What is the order in which gifts abate?

Answer 30

Unless the testator specifies an order of abatement, gifts abate like so: intestate property, the residuary estate, general legacies, and specific devises and bequests.

Question 31

What do anti-lapse statutes provide for?

Answer 31

Anti-lapse statutes provide for the descendants as substitute takers; the gift is not saved for the predeceasing B’s estate.

Question 32

Who do the anti-lapse statutes say can inherit?

Answer 32

• Most statutes require that the predeceasing B be related to the testator by blood.
• Some statutes apply only to testator’s Descendents some apply to descendants of a T’s parent and a few apply to all predeceasing B’s.
• The UPC applies to the PB’s who was the T’s stepchild, grandparent or descendant of a grandparent.
• The vast majority of anti-lapse statutes do not save a gift to a Predeceasing spouse even if he left descendants that survive the T.
• In a few states that do include the spouse, the gift can be saved for the spouse’s descendants.

Question 33

What is life insurance in terms of a will?

Answer 33

• Life insurance proceeds are a nonprobate asset and pass to the B outside of the estate.
• A life insurance policy is a K, and the disposition of proceeds is governed by the terms of the K.
• A will cannot change the B designation unless the terms of the K permit it.

Question 34

For incorporating a document into a will, does the document have to be in existence at the time the will was executed?

Answer 34

For incorporating a document into a will, many states and the UPC dispense with the requirement that that document be in existence at the time the will is executed if the writing is signed by testator and the items and devisees are described with reasonable certainty.