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