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Practice sets > Wills > Flashcards

Wills Flashcards

1
Q

Intestate Succession

A

how property is divided if person dies without will or will is invalidated

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2
Q

Heir

A

individual who takes share of decedent’s probate estate when dies intestate

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3
Q

Testamentary Beneficiary

A

takes bequest from will that wouldn’t inherit if died intestate

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4
Q

Share of Surviving Spouse

A

spouse gets everything if no children and no parents alive

if parents alive they get a share of estate spouse gets remaining

children from previous spouse- children will receive significant portion

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5
Q

Share of Children Schemes

A

per Capita at each generation

per capita with representation (per strpes)

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6
Q

Per capita at each generation

A

same generation always inherit same amount

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7
Q

Per Capita with representation

A

heirs receive representative shares of their parents- get what parents get q

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8
Q

Adopted Children

A

CL- only blood could inherit

Modern- inheritance rights but doesn’t receive from bio parents unless stepparent adopts

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9
Q

Adoption by Estoppel

A

finiding of express or implied promise to adopt child and child stood from an age in position to exactly = to formally adopted child

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10
Q

Child born out of wedlock

A

CL- nonmarital child couldn’t inherit from either parent

Modern- children have right to inherit from mothers and inherit from dads when paternity has been established

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11
Q

half bloods

A

same share as whole blood under UPC

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12
Q

Stepchildrent

A

not children for intestate succession

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13
Q

Intestacy distribution when no spouse and kids

A

parents
decedents of parents (siblings)
more remote ancestors

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14
Q

paretelic Method

A

majority/UPC

nearest common ancestor will take before more distant ancestor
niece>uncle b/c realtion b/c parents in common

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15
Q

Consagguninity method

A

minority blood realtion method

1st Degree- children/parents of decedent
2n Degree- children of decedent’s parents, grandchildren, and grandparents
3rd Degree- children of grandparents. nieces and nephews, great grandparents, grand children
4thh Degree- great nephews, great nieces, first cousins, great aunts and uncles

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16
Q

Advancements

A

intestate but gave child gift during life

CL- gift treated as part of their shire and taken into accounting when computing share- bordened to include all heirs ntot just children

Majority- treated as gift and ignored unless decdent meant it as advancement

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17
Q

UPC Approach to Ademption by Satisfaction

A

lifetime gift not prepayment unless
will says so, testator declares in writing that it is to be deducted
devisee ackonwledges in writing gift is in satisfaction

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18
Q

Executing a will

A 
comply w/ state law
in wriitng
signed by testator
witnessed by 2 witnesses
18+ 
intent that document is will
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19
Q

Signing a will

A

signature must be any mark made w/ intent to adopt the will

Proxy Signer- another person can sign in testator’s place

  1. UPC/Majority- proxy must be in concious presnece (see/hear) of testator and at his direction
  2. line of sight- testator must see proxy and witnesses sign will
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20
Q

Substantial Complaince Rule

A

some states say if will susbtantiallt complied w/ law valdi

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21
Q

Dispensing Power

A

UPC has rul,e that court can validate will so long as clear and convincing evidence that decedent intended document to be will

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22
Q

Holographic wills

A

unwitnessed wills
must be signed and material portions must be in decedent’s handwriting
1/2 states recongize

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23
Q

Interested witness

A

receives property

CL- must be signed by uninterested witness to be valid
Modern Law- will valid but person may not take bequest unless 3 witnesses and 2 disinterested, republished by codicil signed by uninterested party, heir only what exceeds intestate share
UPC- no ban

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24
Q

Multi Page Wills

A

valid even if last page is only executed so long as person trying to prove validity can show all pages physically present and together when testator signed, last page of wilol, each page inteded by testator to be part of his will

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25
Q

Codicil

A

supplement to will that modifies it
must be executed same manner as will
republishes will to be executed same day as codicil
Can’t republish an invalid will
revoking a will revokes codicil but revoking codicil doesn’t revoke will

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26
Q

Incorporation by reference

A

invlaid writing may be inorporated by reference into will if will manifests intent to incorpoate writing and writing identified w/ reasonable certainity and must exisit at time will is execute.d

memo of property but not $ b/c need formalitites

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27
Q

Contractual Wills

A

K to make will must be in writing

UPC- existence of joint will doesn’t establish K to dispose of property in certain way, established by provisions of will stating material portion of K, express reference in will to a K and extrinsic evidence proving terms of K, writing signed by dedecent evidence K

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28
Q

Effect of Contractual Wills

A

revoke during life if notice given to other of intent to revoke

UPC has no provision dealing w/ revocation

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29
Q

Conditional Will

A

will valid only if upon happening of event and testator fails to return or survivie

*where will kept, other odcuments, setting aside would result in intestacy, inequitable distribution

30
Q

Dependent relative Revocation

A

1st will not revoked if later will is invalid

31
Q

Revocation

A

physical act or execution of new will w/ intent to revoke

CL- words of cancellation had to touch the words of the will

UPC/Majority- words do not need touch so on back of will can write

32
Q

Who can revoke a will

A

testator or someone acting at their discretaion in concious presence

33
Q

Burden of revoking will

A

party seeking to establish will revoked

34
Q

Divorce

A

bars fromer spouse from taking gift udner will that was executed before divorce (divorce needs to actually occur not enough to file)
exception- divorce decree specfies property before divorce final and spouse dies or gets remarried

35
Q

Partial revocation

A

physical act by crossing out certain parts of will presumption that testator wanted to revoke but can be overcome

36
Q

Revival

A

Will 1 revoked by will 2 by then revokes will 2 dies

CL- Will 1 revived
Majority- doesn’t revive
UPC- doesn’t revive unless evident of intent

37
Q

Gift to dead person

A

cant’ give gift to dead person

falls into residuray estate

38
Q

Antilapse statute

A

gift saved from lapse and deceased’s issue will take gift
doesnt’ save spouse gift
UPC “if he survives me language” not enough to overcome antilapse

39
Q

Failure of Residurary Bequest

A

CL- invalid share passes to heirs

UPC- failed gift goes to residuary

40
Q

Ademption

A

specific property bequest fails b/c decedent didn’t own property @ death

Modern law- beneficiary entitled to subsitute property that was owned by testator at death
UPC- entitled to any property owned by decedent
proceeds from damage paid to beneficiary as subsitrute

41
Q

Accretions

A

increase in value due to stock splits

CL- not entitled to additional shares
Modern law- entitled to all shares

42
Q

exoneration

A

CL- mortgage paid from estate as debt of decedent

Majority- beneficiary of property takes subject to morgage

43
Q

Slayer statute

A

som1 who kills, abuse, neglects, or exploitation with respect to decedent forfeits all rights to estate

Accidental- slayer rule doesn’t bar gift

Turns JT to TIC, revokes power to serve as personal representative

preponderance of evidence

44
Q

Disclaimer

A

pass if personwhi disclaimed failed to survive

9 months of death- UPC doesn’t impose timeline

45
Q

simultaneous death

A

CL- 1 second sufficient

Uniform Simultaneous Death Act/UPC- 120 hours

46
Q

Abatement

A

assets of estate are insuffiecnt to give all gifts under will; gifts must be reduced

47
Q

Abatement order (IRGDS)

A 
intestate proeprty 
residuary gifts
general gifts
demonstaritve gifts
specfic giftts
48
Q

Class Gifts

A

CL- implied survivorship

UPC- gift not lapse if beneficiary is related to testator and leaves issue

49
Q

Gift to children include

A

bio
adopted
nonamrital if paternity established

50
Q

Testator competent if knows

A

nature extent property
person who are natural object of testators bounty (family)
nature of instrument that testator is signing
disposition in will

51
Q

Undue Influence

A

invalidates will all or portion

present when wrongdoer exerts influence over testator that it overcomes testator’s free will and cuases testator to make a gift that he wouldn’t have made

burden is on contestant (SODA

52
Q

Contestsnt must show this to show undue influence

A

testator suspectible to undue influence (age, personality, health)
alleged influence had opportunity to exert undue influence
alledge influencer had disposition to exert undue influrnce
will appears to be product of undue influence

53
Q

Fraud

A

invalidates will all or portion

tesator deceived by misrepsentation and is led to execute will he wouldn’t have

54
Q

Mistake

A

allows extrinsic evidence for ambuguity

but if will clear do not allow to correct mistake

minority- moved away from formal approach and can fix will if clear and convicting evidence of mistake and intent

55
Q

Contesting a will

A

challenge validity or admission to probate

Standing- better off financially if denied probate than they would be if will were admitted

56
Q

non contest clauses

A

contests will won’t take under will

UPC- enforcebale unless probale cause exists for challenging will

57
Q

non probate

A

intervivos gifts, causa mortis gifts, JT, totten trust bank accounts, joint bank accounts, insurance,

58
Q

Inter Vivos gift

A

requires donative intent, delivery, and acceptance (presumed when value)

delivery can be constructive or symbolic if item can’t be transferred at time of gift completion

59
Q

Gift Causa Mortis

A

intent delivery acceptance
immediate apprehension of death
revocable until death

60
Q

Totten Trust Bank Accounts

A

POD

transfer $ to beneficiary

sole owner

if beneficiary dies first then regular bank account

61
Q

Creditors and joint account

A

CL- can’t reach joint account unless opened for convenience and no survivorship feature added
UPC- creditors have higher priority then surviving

62
Q

Personal Representative

A

priority to recieve letters issued by court overseeing administration of estate, court will appoint if will silent
post bond unless bank, inventories property, publishes notice to creditors, sells peroprty w/ court permission

63
Q

Spousal Elective Share

A

elect against will get fraction of estate 1/3-1/2
UPC- bases amount of length of marriage, net estate, non probate assets to others & spouse

must be made within 6 months of death

64
Q

Waiver of elective share

A

can waive if prenuptial agreement exists and was informed of all assets
can waive homestead allowance, exempt property and family allowance

65
Q

pretermitted Spouse & child

A

will before marriage and spouse not included

spouse gets intestate share unless

purposefully omitted, express not withstanding later marriages, provided for outside of will
Doesn’t protect children born before and not included

66
Q

Living Will

A

written statement that describes adult’s desire regarding medical treatement when they can’t give consent

Pain control, artificial nutrition

67
Q

DPOA

A

appoints attorney in fact to make healthcare decisions that withhold or withdraw life sustaining treatment including food and hydration

must act in good faith and immunizes agent from ciivl oliability if decision i in good faith

68
Q

execution + revocation of healthcare docs

A

signed writing necessary & most states require 2 witnesses

Witness can’t be agent but under UHCDA it can be and no witnesses are even req

Revocation- manifestion of intent to revoke

69
Q

Personal proeperty

A

govrned by law of state decedent was domiciled

70
Q

real property

A

governed by law of situs where property is

71
Q

inter vivos trust

A

governed by chosen state or law that has most signficant relationship to trust

Practice sets (10 decks)

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