Wills Flashcards
** Abatement
Process of recuding testamentary gifts in cahses where the estate assets are not enough to pay all claims against the estate and satisfy all claims
Not enough money/property to pay everyone. Most states abate in order of -
- Partial intestacy
- Residual
- Demonstrative
- Specific gifts (strongest, most likely to take effect)
- Categories may favor real property gifts
** Will abate pro rata
Ademption
Generally, when specifically bequeathed property is not owned by the testator at death, the bequest is ademed (it fails).
- Identity theory: majority; ademption is objective and does not take into account testator’s probable intent. Does not matter why/why not in the estate.
EXCEPTION: if guardian or conservator appointed after will is executed and before sale, beneficiary is entitled to sale proceeds to the extent they have not been used for testator’s care.
** Ademption by Extinction
Item given is not in the estate.
Generally, under IDENTITY rule, gifts ademe (fail) and beneficiary gets NOTHING.
- In some states, beneficiary will get replacement property, receive balance of purchase price, receive condemnation/insurance proceeds, trace intro proceeds if sold by guardian
** Ademption by Satisfaction
Beneficiary receives the gifted property BEFORE the testator’s death (analogous to advancement). Does not arise with specific gifts…usually with money.
- Usually need a writing
- INTENT must be at the time of giving the inter vivos gift
- Changes in value of items are irrelevant
- Beneficiary usually takes the increased amount of shares if there was a stock split, etc. Won’t get newly purchased securities.
** Adopted Children as Heirs
- Will inherit from and through adopted parents, as if they were a natural born child.
- States vary as to biological parents / stepparent adoptions
- Adoptive parents can take from/through biological child, biological parents do not, even in states where child can inherit from bio parents
** Alterations on the face of the will
Any addition, alteration, interlineation or deletion made after the will has been signed is INEFFECTIVE to change the will, unless it is RE-EXECUTED with proper formalities (or it is recognized as a holographic will)
Anti-lapse statutes
Prevent lapse under certain circumstances by substituting descendants of predeceased beneficiary for the predeceased beneficiary.
- Trying to carry out intent of testator. If will provides otherwise…e.g., “if he survives me”
- Sometimes must be child, grandchild, etc. Very few apply to non-relative.
Bequest of stock
common law: a specific bequest of stocks includes any additional shares produced by a stock split, but not produced by a stock dividend.
UPC / majority: stock includes dividends
Codicil
Amendment to an existing will; republishes the will, except for the parts that are inconsistence. Treated as one document speaking from the date of the codicil.
- If you prove the codicil, can prove the will even if it was defective
Decedent’s death caused by heir/beneficiary
SLAYER STATUTE: precludes a murderer from inheriting/being a beneficiary
CONSTRUCTIVE TRUST: equitable remedy; prevents unjust enrichment
- Lesser degrees than Murder 1…courts must balance policies
** Disinterested parties
Creditors, fiduciaries, attorneys
Execution of Wills
Most states require exact compliance with will formalities. Some forgive harmless error.
Real property: law of the situs
Personal property: law of the domicile at death
1. Legal capacity (majority, at least 18 y.o.)
2. Testamentary capacity (sound mind)
3. Testamentary intent
4. Formalities (depend on the kind of will)
** Grants to a former spouse
REVOKED, even appointments as executor, guardian, or trustee
** Holographic will
Written in testator’s handwriting. Many states do not require witnesses.
- Most states require virtually everything be handwritten; others allow for just the material portions to be handwritten
Incorporation by Reference
Incorporate extraneous document by referencing it in the will. Treated as part of the will.
- Intent
- Writing must be IN EXISTENCE when will was executed
- Writing must be clearly identified
** Interlineations, changes to beneficiaries etc. after an attested will
Usually not given effect, may in fact be a revocation
** If the changes are made in a jxn that recognizes holographic wills….may be construed as a HOLOGRAPHIC CODICIL
Lapse in residuary gift
Commow law: part of residual allocated to decedent goes by intestacy
Modern: apply survivorship language so survivors split residual
Lapsed gift
Beneficiary predeceases the testator (physically or legally)
Generally
1. Terms of will
2. Rule of law (anti-lapse rules)
3. Residuary clause
4. Intestacy
** Non-marital children
Take from mother just like any other child. Many states impose additional requirements for child to inherit from father, e.g., paternity test, acknowledgement
Non-probate property transfers
Must be removed from estate; does not go through intestacy or will
- Inter vivos gifts
- Inter vivos living trust (passes under terms of trust)
- Remainder interests / executory interests in property
- Joint tenancy with right of survivorship (c.f. tenancies in common, go through probate)
- POD/TOD property to designated individuals
- Contract rights (e.g., life insurance, retirement plans, death beneficiary is paid)
Per Capita at Each Generation
Start by dividing into shares at the first generation with survivors, including to deceased with surviving children. Then POOL the shares of lower generation so they get EQUAL shares.
Per Capita with Representation
Majority. Divide at the first generation with surviving members, including to deceased with survivors.
- May skip the parent generation if they are all dead; divide equally amongst cousins
- If deceased, divide up amongst descendants.
Per stirpes
Minority. Divide into shares at the first generation below decedent. One share for each SURVIVING child, and one share for each predeceased child WITH DESCENDANTS, then divide those shares up between survivors.
- Keeps property in discrete segments for each branch of the family
- Grandchildren may end up with unequal shares than their cousins
** Phone call during the execution process
Participating via computer/phone is not “presence” for the purpose of fulfilling excution statute unless state has specific legislation in place
Pour over provision
Provision in will that leaves property to an inter vivos trust
- Modern: the trust does not need to be previously funded, pour-over can be initial integration
Presumption of Non-Revocation
If will is found in normal location and there are no suspicious circumstances
- Person trying to prove validity of will has BoP to show that will was not revoked
Presumption of Revocation
If you cannot find the will, presumed destroyed
- Possible the rebut with evidence
Presumption of Undue Influence
- A confidential relationship existed between the testator and beneficiary
- The beneficiary participated in procuring or drafting the will
- The provisions of the will appear to be unnatural and favor the person
- If these are met, burden shifts to proponent of the will
** Pretermitted / Omitted Child
Carry out testator's presumed intent; would have provided for children. Generally, children born / adopted after will execution - May be deprived of share if the entire estate is left to child's other parent (presumed other parent will care for child), proof that omission was intentional, child has been provided for outside of the will (e.g., beneficiary of account), class gift
Republication
Codicil: to republish a will, it must have been validly executed.
A codicil that attempts to republish an invalid will = partial will.
- Can impact pretermitted child! If they were born or not at the time of republication
** Requirements for Valid Written Will
Most states require
- Signed by testator
- 2 witnesses
Revocation
- Operation of Law
- Physical Act
- Subsequent Writing
Revocation by Operation of Law
- Marriage: omitted spouse can receive intestate share unless will provides for spouse, there is clear evidence that omission was intentional, or testator executed the will in contemplation of getting married
- Finalized divorce: majority, all provisions in favor of ex spouse are void. Some states also void gifts to other ex-relatives. If get remarried, not void. Property passes through terms of will as if ex-spouse had died first, e.g. lapse.
- Murder testator, cannot take (slayer statute / constructive trust)
Revocation by Physical Act
- Intent to revoke (c.f. destroyed by mistake)
- Mental capacity (sound mind, no fraud/duress)
- Physical act (burning, tearing, etc.)
Revocation by subsequent will/codicil
EXPRESS: In will, “I hereby revoke all prior wills and codicils.”
- “This is my last will,” does not
INCONSISTENCY: new prevails over old
** Stepchildren as Heirs
Not usually included in intestate distribution.
- Possible to demonstrate adoption by estoppel.
Survival for intestacy
Most states and UPC impose a 120 hour / 5 day period. If die before then, treated as if they predeceased testate.
** Undue Influence
** Free will of testator must have been DESTROYED
Grounds for contesting a will. Contestants have BoP. If so, will is VOID.
1. Prove INFLUENCE actually EXISTED and was EXERTED
2. OVERPOWERED the testator’s mind such that resistance was FUTILE and will reflects desires of influencer, not testator
3. CAUSATION
Proved by direct evidence, circumstantial evidence like
- Unnatural disposition
- Opportunity to influence** Not enough on its own!
- CONFIDENTIAL RELATIONSHIP between parties
- PRESUMPTION of undue influence if ATTORNEY-beneficiary drafted, unless closely related
- Ability of testator to resist
- Beneficiary involved in drafting the will
** Validation of a will by codicil
Codicil can validate a previously attested to will, better if the original document was INTENDED as a will
** What kind of interest does a beneficiary have in a will
Expectancy interest
** Words of survivorship
In MOST states, words of survivorship are considered a contrary will provision, and the anti-lapse statute will not apply
- Under the UPC, mere words of survivorship are not sufficient to negate application of the anti-lapse statute
Acts of Independent Significance
E.g., “I leave the automobile I own at my death,” “to all of my children.” Need to go outside of the will to find out who / what.
- Gets what is there at time of DEATH
Adoption by estoppel, equitable adoption
Someone treated like a child. If there is a sufficient relationship / unperformed agreement to adopt, can inherit as a child.
Advancement
Irrevocable gift intended by the donor as a pre-payment of an intestate share.
- Most states require written proof
- The advancee must account for the advancement by “going into hotchpot,” i.e., on paper, compute shares as if the advancement is still in the estate, and then distribute the property, taking into account the amount an heir has already received. E.g., $10k advancement, $20k estate, between two kids. One gets $15k. The other gets $5k.
- Similar to “satisfaction” in wills
Ambiguity in Will
- Patent (obvious): court looks to extrinsic evidence. Court cannot fill in a blank space.
- Latent (hidden): court can look at extrinsic evidence
- No apparent ambiguity (mistake): traditional, go with plain meaning. Modern, can bring in extrinsic evidence, alter the plain meaning, try to carry out the testator’s intent. Clear and convincing evidence.
Basic rules of construction
- the fact that you left a will means you didn’t want to die intestate
- conflicting provisions, use one at end of will (closer to death)
- construe the will as a whole
- give ordinary words ordinary meaning, give technical words technical meanings
- give effect to all language in will
Bequest
Gift of personal property
- SPECIFIC DEVISE: immediately distinguishable from rest of estate
- SPECIFIC BEQUEST: will not be ascertained until person dies
Combination wills
- Joint will
- Reciprocal/mutual will: parallel dispositive provisions
- Contractual will: executed pursuant to a contract
- Common law: could use extrinsic evidence to establish contractual nature of a will
- Modern: need a WRITING that says it’s a contract
- Revoked by agreement of the parties while alive; if one is dead and the survivor changes will, new will is a breach of contract and injured beneficiaries can impose a constructive trust
Conditional Revocation
- Express: “This will is revoked only if…”
- Implied / Dependent Relative Revocation (DRR): would the testator have preferred will 1 over intestacy? Depends on how similar the wills are…more similar, more likely to apply DRR…
- Revoke will 1, will 2 is invalid for whatever reason…will 1 remains because it’s revocation was condition on will 2 being valid. Is it appropriate to assume that testator would have preferred Will 1 to intestacy?
Conditional Will
Operates only if event occurs/does not occur
- Law presumes against; construed as being GENERAL
- “This will is effective if I die from this cancer”
Devise
Gift of real property; devisee
Disclaimer
An heir cannot be forced to accept an inheritance or gift under a will. Usually must be
- In writing
- Signed by disclaiming person
- Acknowledged in front of notary
- Timely filed
Once you accept property, cannot change mind and later disclaim
Treat the person who disclaimed as having predeceased testator
Duress
Like undue influence, but more violent conduct
Elective Share
Against will of the testator.
Common law / marital property states; spouse has a right to a certain portion of estate, REGARDLESS OF WHAT WILL SAYS (modern equivalent to dower/courtesy)
- Augmented Estate: amount of property subject to share is not just probate estate, but also includes a number of non-probate assets
- Surviving spouse must file within timely period
Community Property States: surviving spouse already owns one half of the community, regardless of who earned money. Marriage is a partnership. Therefore, elective share is not required.
- Spouse can only give away their own property, their half of community property
Ex-relatives
Majority, only revokes gifts as to ex-spouse, not ex-relatives, regardless of the subsequent relationship of the parties. Under the UPC, divorce does revoke to ex-relatives
Exempt Personal Property
Protected from creditors, set aside for spouse/children, like household furniture, books, food, pets, etc. for surviving spouse / minor child
Exoneration
If debt is owed on a gift…
- If the will is silent, depends on state law
Family Allowance
Provide support during probate administration to surviving spouse / minor child
- Claim against the estate, high priority
Formalities of attested/formal will
- In writing (broad)
- Signed by the testator / by a proxy if its in the testator’s presence, testator; signature is any mark made with present intent to authenticate the will.
- Attestation; need 2 witnesses who are credible. Do not need to know the contents of the will. Typically must occur in the testator’s conscious presence.
- Attestation clauses are not necessary, but may raise prima facie evidence of valid execution.
- Some states allow notarization
Fraud
- False representation made to the testator
- Knowledge of falsity by person making statement
- Testator reasonably believed statement
- Statement caused the testator to execute will / make disposition he would not have made
FRAUD IN THE FACTUM/EXECUTION: testator is deceived as to identity/contents of instrument. E.g., did not know was signing a will. Also shows lack of testamentary intent.
FRAUD IN THE INDUCEMENT: knows they executing a will/know what the will said, but contents were caused because of deception w/r/t extrinsic fact, and will was made based on that fact
Half-blooded collateral heir
E.g., half sibling. Modern: makes no difference. But many states have different rules, e.g., only half share, nothing
Harmless Error Rule for Revocation
Clear and convincing evidence of testator’s intent to revoke
Homestead
- The family residence may be protected from creditors
- Preserve surviving spouse / minor children to continue living there, even if they don’t own it. Similar to life estate.
If there are no spouses/children…which heirs take?
- Ancestors (parents/grandparents)
- Collaterals (siblings, nieces, aunts)
Insane Delusion
Grounds for contesting will. Testator persistent belief in a state of facts that is against all evidence, probability, and control.
- Delusion must be CONNECTED to the disposition of the property, impacted the scheme
Interested witness
Traditional: purging; that witness gives up the gift under the will
Modern: does not invalidate the gift to the beneficiary
Internal Integration
You must be able to show that all of the pages that were present at time of will execution are the same pages being presented to the court at probate
- Should take steps to attach the pages / make sure it’s cohesive
Intestate Share of Surviving Spouse
Common law: widow got life estate in 1/3 of husband’s property owned during marriage; widower got life estate in all of wife’s real property, assuming a child was born
Modern law: spouse is clearly an heir; depends on state law
Intestate Succession
Intestate succession is the statutory method of distributing assets that are not disposed of by will. After removing non-probate assets, paying debts, property passes to HEIRS
- Varies state by state
- Cannot rebut the intestacy scheme
- Majority: SPOUSE gets their share first. Amount of share varies among states
Legacy
Gift of personal property, not sufficiently described to be specific. E.g., money.
- General legacy: I leave $ to A
- Demonstrative legacy: I leave $ to A, paid out of X fund. If X fund doesn’t have enough money, will be paid out of other parts of estate.
Living wills/durable healthcare powers
Indicate ahead of time how they would like their healthcare decisions handled when they can no longer do so.
- In writing, usually
- Signed
- Witnessed/notarized (depends on the state)
- Freely revocable
Marital Rights
Depends on the state; common law v. community property.
- Inception of Title Rule: law of domicile of spouses at time of acquisition
Medical power of attorney
Name agent to make medical decisions for you when you cannot
- Must act in good faith, with your interest
Mistake
Error; no evil conduct that caused it.
MISTAKE IN THE FACTUM/EXECUTION: in error re: contents/identity of instrument…attack for lack of testamentary intent.
MISTAKE IN THE INDUCEMENT: mistaken as to extrinsic fact, makes will in reliance. Generally, no relief.
No contest clause
Aka in terrorum; Beneficiary loses property if they contest; most states will enforce unless the contest was in good faith and with probable cause.
Oral wills
Very uncommon; abolished in most states. Highly limited circumstances.
Order of payout for creditors
- administrative expenses
- funeral
- family allowance
- federal debts
- secured claims
- judgments against decedent in his lifetime
- all other claims
Partially valid will
The VALID part passes via the WILL
The INVALID part
- Common law: other half passes by intestacy
- Majority: invalid part is distributed via proportions laid out in the will (e.g., half and half, valid taker gets the other half)
Personal Representative
Intestate = administrator; appointed by court
Will = executor; first look to will
- Qualification: sworn in; may or may not have to post bond for faithful performance
- Most states give some compensation
1. Give notice to creditors
2. Collect probate assets, manage them. Pay out estate.
3. Leftovers distributed
Power of appointment
Owner of property transfers to the donee the power to appoint the new owner of the property
- If they don’t exercise, goes to default takers or reversion
- No DUTY to appoint, just a right
- Creditors of donee cannot usually reach property until power of appointment is exercised
- Residual clause may or may not exercise a power of appointment
1. GENERAL: can appoint to yourself, anyone
2. SPECIAL: cannot appoint for your benefit, only to specific class of people
Probate jxn
Person’s domicile at time of death, location of land
Proxy revocation
Testator may request that someone else destroy the will . Must be done -
- At the testator’s request
- In the testator’s presence
Residual gift
Remainder of the estate
Revival
Multiple approaches
- Look to testator’s intent
- Revival: If Will 2 never took effect because it was revoked…Will 1 was never revoked
- No Revival: Will 2 is both a revocation by subsequent writing that takes effect upon signing and a dispositive document that takes effect upon death.
Savings Statute
Most states will consider a will VALID not just if it complies with local law, but law of where it was executed / law of decedent’s domicile at death
Self-proving affidavit
Does not impact validity of will; testator/witnesses swear under oath to what they would swear to during probate. Substitutes for their in-court testimony.
Share of children / other descendants
- If all children survive, each child gets equal share (per capita). Younger generation cannot take if their parent is alive.
- If at least one descendant predeceased testator but is survived by a descendant…
1. Per stirpes
2. Per capita with representation - Majority approach
3. Per capita at each generation
Shares for parents as heirs
- If both survive, each get 1/2
- If one is deceased, some states give all to parents, some states give half to siblings
- If none survive, everything to goes to brothers, sister
Statutory Surrogate
If you don’t name an agent, certain people are allowed to make medical decisions for incompetent person
Which state law applies to intestate succession?
Person property: domicile at DEATH
Real property: situs of the land
Tangible Personal Property Document
Permits testator’s will to refer to a list to dispose of TANGIBLE personal property not otherwise disposed of by will, even if list was NOT in existence at time of will execution
Testamentary Capacity
Low standard. Mentally challenged person could make a valid will; lower than contractual capacity. Being adjudicated as incompetent raises a rebuttable presumption of incapacity. Highly intoxicated people lack capacity.
- Understand the action
- Understand the effect of the action
- Understand the nature and extent of property. Does not require exact knowledge.
- Recognize the natural objects of your bounty (your family)
- Do all elements simultaneously
Testamentary Intent
Intended the very instrument being executed to be your will
- Not instructions, future intent
Types of Intestacy
- Total/as to the person: person dies without a will at all
- Partial/as to property: had a will, but didn’t dispose of all property
When is property actually transferred?
Need court order saying will is valid / court order identifies heirs.
Who is next after spouse?
Descendants; e.g. children, grandchildren. Receive all property that doesn’t go to spouse.
