Wills Flashcards
What is the CL exoneration of liens?
Under the common-law exoneration-of-liens doctrine, the recipient of a specific devise of real property can use the remaining assets in the testator’s estate to pay off any encumbrances on that property.
What is a residuary clause in a will?
Devise of all property not disposed of by specific (my fur coat or my farm to A), general ($1000 to B, half my estate to my son), or demonstrative (evise primarily payable from designated source, but secondarily payable from general asset) devise. It can pass failed gifts from the will to another person.
What happens when a gift in a will fails and there is no designated residuary to catch all the random stuff in the will?
When there is no will or a will fails to address the disposition of the decedent’s real property, then the property will transfer to the decedent’s heir(s) by intestate succession or, if the decedent has no heirs, escheat to the state.
what the fuck is even a codicil
supplement that amends or revokes will in whole or in part
what is probate
Figuring out the estate-settling claims against estate, figuring out who gets what
what do you call a spouse in a will
MARITAL PARTNER
“issue” definition
decedant’s kids, their kids, etc.
collaterals re: a will
relatives through a common ancestor (sisters, cousins, aunts etc)
If a person dies intestate, what rule decides who gets his stuff?
ONLY the state legislature’s rules. The dead guy’s desires or intent, if no will, don’t matter.
The HEIRS are those entitled to take a share if no will: generally, spouse and kids. Have to survive dead guy
What is the controlling laws systems in Wills?
Majority common law rule OR
Uniform Probate Code or UPC
What if decedent and heir die at once? like car accident, no one knows who died first
Under UPC, heir must have survived by 120 hours, shown by C&C evidence
State have similar rules
What sort of sexy partner is an heir?
MARRIED partner. Not common law.
What amount can spouse take from estate, in various scenarios?
- Dead guy has surviving wife and kids, all from them both. Neither has other kids. Spouse takes ALL.
- Dead survived only by spouse and one parent . Spouse takes $300K and 75% of remaining estate. 25% to parent
- Dead guy survived by spouse, mutual kids, and spouse has previous kids. Spouse takes $225K and 50% remaining estate
- Dead guy survived by spouse and his previous kids. Spouse takes $150K and 50% remaining estate
- Dead guy does not have kids or parents, ONLY spouse. Spouse takes everything
Rule: always satisfy spouse first. Then kids.
When Dead dies intestate, what do his kids get?
[No distinction between bio and adoptive kids, but step-parent adoption does not prevent kid from inheriting from both dads]
DRAW THE FAMILY TREE
- pre stirpes inheritance. Shares equal according to lineal line–total # of surviving kids and issue. The divide by representation. If issue survives parent, stand in parents’ place.
3 kids: B, C, D. All dead, survived by kids. Cut estate into 3 shares. Each of those 3 then gets divided among its kids. - per capita with representation: make the first divide at a generation where one member survives. So if all 3 kids are dead, give each grandchild the same amount, even the dead ones (unless they have no issue surviving). VERY similar to pre stripes except for where you make the cut
- UPC approach: but unpopular. First step: divide property into = shares in a generation has a surviving member. Eliminate the line of anyone who dies with no issue. Divide equally among first generation. If dead and has kids, hold that aside. Once living member og Get 1 get theirs, take ALL the $ left and divide equally among living grandkids.
What happens with wife’s kid born after husband dies?
If born within 280 days of death, rebuttable presumption it is husband’s kid and kid inherits normally. That’s the general rule–UPC says 300 days.
describe per stirpes inheritance
pre stirpes inheritance. Shares equal according to lineal line–total # of surviving kids and issue. The divide by representation. If issue survives parent, stand in parents’ place.
3 kids: B, C, D. All dead, survived by kids. Cut estate into 3 shares. Each of those 3 then gets divided among its kids.
describe per capita with representation way of dividing intestate inheritance
per capita with representation: make the first divide at a generation where one member survives. So if all 3 kids are dead, give each grandchild the same amount, even the dead ones (unless they have no issue surviving). VERY similar to pre stripes except for where you make the cut
describe the unpopular UPC approach to intestate inheritance division
UPC approach: but unpopular. First step: divide property into = shares in a generation has a surviving member. Eliminate the line of anyone who dies with no issue. Divide equally among first generation. If dead and has kids, hold that aside. Once living member og Get 1 get theirs, take ALL the $ left and divide equally among living grandkids.
3 requirements for making a valid will
- a signed (by testator) writing
- witnesses
- testamentary intent (intent to create a will)
How to make a signed writing in a will
Entire will must be written (typed too), signed by the testator
UPC does not permit oral wills, including audio or video recordings
Location of signature within document: some states require at end of document. Entire will is invalid if signed in wrong place.
UPC, other states: signature can be located on any part of the will. Test is intent of signer. Any words after signature do not have effect. IF YOU SEE A STRANGE signature NOTE THE LOCATION. We’ll let the will stand, but we’re worried about fraud so stuff later didn’t work
Ex: person signs will on p. 3 of 10 pages. some states: signature is void
Capacity: sound mind, adult, etc.
Formal signature: NOT required. must indicate testator’s intent and desire to make will. Nicknames (Hank) are OK
requirements for witness to a will–attestation
In the PRESENCE of at least 2 witnesses. Bar exam love PRESENCE.
Historically, all had to be in room together. but NOT NOW
mostly JDXs say Testator must sign or acknowledge will in presence of witnesses. They must sign in presence of tester
UPC is easier: just say within a reasonable time after Testator signs. Do NOT have to be in presence.
Old rule: must be in line of suight
New rule: “conscious presence” –when will is signed by another on behalf of testator.
- *Common law**: witness cannot have $ interest the will. Will can still be valid, but will “purge” any gain in excess of what that person would take in intestate succession.
- *UPC** has jettisoned the interested witness doctrine. Purging was too hard. Have to use fraud etc. procedures if there is FUNNY BUSINESS
What is the trend with UPC’s philosophy re: will-making
Old laws were harsh. UPC wants wills to be accessible to most people
what is a present testamentary intent
person must intend to make a will and this is it. Example: man writes up will, says he wants to sit on it for a week to think. NOT a will. Or man is told to sign doc he thinks is K but tis’ a will No present testamentary intent.
competency
at least 18
sound mind
competency measured at the time of signing
How strict do you need to comply with formalities to have a valid will
Common law AND majority rule: strict compliance with all the things
Minority view: UPC also: lse trending: substantial compliance with the formalities to make a will. IF there is C&C evidence that D meant this doc to be a will.
“Holographic” wills: informal, handwritten will
- need not be witnessed.
- must be signed to be valid
- UC: materials provisions must be testator handwriting
- must use language showing testamentary intent
- UPC encourages extrinsisch evidence if it hooks with intent.
How to make a codicil
Codicil supplements the underlying will. Must be:
- codicil must have same formalities as a will
- holographic codicil–we can do that,
- holo will can be amended by attested and vice versa
Will substitutes -avoid probate
- joint tenancy
- inter vivos trust
- payable-on-death contract (like a life insurance policy–not part of estate)
- deed. Inter vivos transfer
Wills: old and new rules for “in the presence”
Old rule: will must be signed in presence of testator/witness
New rule: CONSCIOUS PRESENCE:
UPC adopts Conscious Presence rule ONLY where will is signed by another on behalf of a testator (like if they can’t move)
can someone be a witness if they have a direct financial interest in the will? CL vs UPC
common law: interested witness is not competent to witness will. Does not void will, BUT:
“purge” theory: if a witness had a direct financial interest in will, anything they got beyond what they would get in intestate succession would be removed from the will
UPC: abolished interested witness doctrine. Made messy cases. Many interested witnesses are innocent.
Look out for funny business: look to other doctrines in wills law, like undue influence and fraud
Will a modern court allow a will even if not all the formalities are complied with?
YES. under UPC, if will has substantial compliance with law and there is clear and convincing evidence of T’s intent, then will is OK. Example: everything is perfect but T forgot to sign. No evidence of problems.
what is a holographic will? What must it involve to be valid?
- MUST be signed
- ANYTHING not in T’s handwriting is invalid
EXCEPT under UPC: only material provisions must be handwritten (makes form wills OK)
Must show testamentary intent. Say stuff like “bequeath”
how old must a testator be for a valid will
18
UPC rewuizemens for witness to a will
- must be 2
- need not be disinterested (meaning they can benefit from will)
- must be able to see testator acknowledge either own signature or that this is her will
- need NOT sign at same time as testator
-
what is the purge theory for wills?
“purge” theory: if a witness had a direct financial interest in will, anything they got beyond what they would get in intestate succession would be removed from the will
Is NOT the law under the UPC–interested witnesses can sign will under UPC
what steps must T take to revoke a will?
-can be revoked until T’s death, in whole or part
3 ways:
- subsequent instrument.
- physical act
- operation of law
What does it mean that wills are ambulatory?
Ambulatory=Can be revoked at any time until T’s death. Later will generally overrules older will. Even if this is a last minute intense gift. Can be revoked in full or part
how to revoke a will by instrument–2 ways
- Express revocation: document says “I hereby revoke previous will” and must be signed!! oral berating will not do it
- By implication through later document that is inconsistent: later correctly made will automatically revokes old will
different between codicil and new will
easiest way: look for residuary gift. If has it, is likely a will. If not, is likely a codicil.
how to revoke will by phsycial act
T must revoke a will totally or in part by:
tearing will up
burning will
angrily crossing things out in the will
UPC: says destructive act is enough, though maybe not tearing a tiny corner off will
what happens with a will that existed w/ testator but is lost at time of death?
if will is lost: rebuttable presumption that T revoked it by physical act
to overcome, must show existence of will by C&C evidence
Duplicate original will work–signed at the time. Photocopy of the whole thing, no!!
third way to revoke will: operate of law. explain
!. divorce revokes will. unless evidence that T wanted ex-spouse to take even after divorce. This invalidates gifts to ex-spouse and her relatives. Not a separation! Just divorce.
subsequent marriage does not revoke a will just because previous spouse will inreigit stuff
3P revocation of will?
3P can revoke will on T’s behalf SO LONG AS
If you revoke and underlying will, also revokes codicil.
revival of a revoked will–how does it work?
UPC does not automatically recognize revival of revoked will.
Revokig a second will des NOT revive first w ill. Will be distributed through intestate succession.
DRR or Dependent Relative Revocation.
DRR invalidates mistaken revocation (I though my son was dead but he showed up!) and revoked will is revived.
safety valve for testators who revoke a will based on mistake:
If revocation was based on mistake, MUST talk about DRR on exam!
But for the mistake, T would not have revoked first will.
if you make a will, then revoke it expressly in Will 2, then what happens to W1 if you revoke Will 2?
UPC AND MAJORITY: NO automatic revival of Will 1. Would have to re-execute Will 1.
There is no will, person dies intestate
(picky rules here, may or may not appear on bar exam)
dominant doctrine to construct terms in a will
claim meaning doctrine: the plain meaning of the words in the text controls regardless of intent
UNLESS will says inside it that “X means Y” and it’s not the plain meaning
How to incorporate an extrinsic doc into a will by reference
If extrinsic doc is not a will but wants to incorporate it by reference, it can IF:
- doc exists
- intent to incorporate it into will
- doc is described
what happens if devisee Bob dies before testator?
Bob’s stuff in the will LAPSES and his stuff is dumped into residue–for residuary
Anti-lapse statute: some states have laws to prevent gifts to relatives from lapsing:
- protected familial relationship
- giftee dies before will-maker
- gift family member survived by issue
- then issue gets the gift
What is LAPSE in a will
gift fails and goes to residual, unless family member of part of a class getting a class gift
define abatement in a will
If an estate does not have enough funds to make the gifts, these are the most protected to lessdy yo be abated:
- specific gifts (my favorite teddy bear)
- general gifts ($10,000)
- demonstrative gift–general gift from particular source ($100 from my betting slip box)
- legacies treated as specific gifts if they can be satisfied, treated as general if not
- residuary gift–you get everything not given elsewhere
ademption: define.2 doctrines
ademption by extinction: if will makes devise of specific piece of property (horse Anna) but it is not there any more (was stolen)
traditional approach: gift is extinct, out of luck
UPC says: intent theory. Look @ T’s intent at the time she make gift in will. Did intend will
ademption by satisfaction: when T satisfies specific or demonstrative gift by Inter vivos transfer. T must intend that the gift deem the gift in the will and must write down!!!
ambiguities in a will: 2 types and how we can resolve them
latent ambiguities in a will. Language appears fine, but is a problem once you know context “I give $10 to my brother.” Problem: has 2 brothers.
patent ambiguities: obvious in the test itself: 2 different addresses listed as same gift
Old rule: latent can be resolved by extrinsic evidence, patent cannot use extrinsic evidence. (Adam needed $10 and Bob is rich)
New rule: can use extrinsic evidence for both
what are the limits on testator’s power to transfer property in a will? 3 categories
- spouses’ rights –entitled to means of support
- social security, pension
- homestead exemption–keep the house
- personal property set-asides
- family allowance: in probate process, make sure income is coming
- Elective share: (bad name) spouse can take 50% of augmented
- gifts to T’s children re:inrestate share. This is a lifetime gift of intestate property (as opposed to ademption by satisfaction, which is when kid gets something that is in the testament, not intestate)
- Old rule: any gift to kid is assumed to be an adavaceent on their intestate share unless they show otherwise
- UPC: gift is an advancement if T did in writing that gift was and advancement, OR kid anckonwldege it was advancement, OR T acknowledged in writing that it would be taken out of inheritance
- Unintentionally disinherited children. (ex: stuff given out in the will to older children, but didn’t )
- if testator did not have any child when will executed, omitted child takes her intestate share
- if testator gave $ to one living child and then had another, the second omitted child evenly splits $ with sibling who got it
- SLAYER RULE
- public policy: if you murder someone you can’t inherit their stuff.
- have not applied in voluntary manslaughter or similar Must be murder
- UPC says the murderer’s kids can still inherit
- public policy: if you murder someone you can’t inherit their stuff.
- Disclaimer: I don’t want it! (taxes)
- must be in signed writing filed to court OR
- declared to person distributing to estate, ID deddenat, describe interest being disclaimed and extent of discliamer
- MUST SO within 9m
- Elder abuse: can’t inherit convicted of financial abuse, neglect etc. of elder in her care.
how does an elective share in a will situation work?
- Elective share AKA forced share. protects spouse: gets to take big chunk off top of estate even if it messes w/ other gifts. This is in addition to getting the house, pension etc. This is in non-community-property JDXs.
- Waiver must be:
- IN WRITING,
- after fair disclosure of contents of share,
- spouse must be represented by independent legal counsel.
- What is the amount?
- UPC: 50% of augmented estate (property acquired before and during marriage. Broader than community property in divorce!)
How are gifts during life to a testator’s children calculated in their intestate inheritance?
Re: a lifetime gift of intestate property ADVANCEMENT
- Old rule: any gift to kid is assumed to be an adavaceent on their intestate share unless they show otherwise
- UPC: gift is an advancement IF
- T did in contemporaneous writing that gift was an advancement, OR
- kid anckonwldeged in writing it was advancement, OR
- T acknowledged in writing that it would taken into account when calculating decedent’s estate
HOW TO CALCULATE
- Calculate value of advancement
- Add it (or them) back in to the estate
- Divide by # of children inheriting
- Deduct each child’s advancement from their share
(as opposed to ademption by satisfaction, which is when kid gets something that is in the testament, not intestate)
how to disclaim (refuse with legal effect) a gift in a will or an inheritance
- Disclaimer
- must be in signed writing filed to court OR
- declared to person distributing to estate, ID deddenat, describe interest being disclaimed and extent of discliamer
- MUST DO within 9m
who has standing to contest a will?
Any interested party–has financial benefit in will
OR
someone who would take under intestate succession
how long to file a contest to a will
6 months after probate begins
contesting a will according to T’s capacity: elements
- capacity: age and sound mind
- contestant bears burden that testator lacked capacity at time of execution of will
- ability to know (not actual knowledge)
- nature of the act
- what: nature of her property
- who: the natural objects of bounty
- plan of attempted dispositionD
- Insane delusion
- measure against rational person in T’s position could not have reached same conclusion
- insane delusion was a but-for cause of the will being a certain way
- ability to know (not actual knowledge)
- contestant bears burden that testator lacked capacity at time of execution of will
3 grounds to contest a will
- testator’s capacity (mental ability to know the nature of what you’re doing, or insane delusion)
- undue influence
- Fraud in the execution or the inducement
contesting will due to undue influence: 4 elements and remedy
Contestatn must show first, initial burden:
- Grima got substantial benefit in will
- Confidential relationship (often professional or familial)
- T had weakened intellect at the time
- Causation: Griam’s behavior to his gift
Then, if proved the 3 above, burden shifts to Grima to show by preponderance of evidence that there was no undue influence
5. If they fail, Grima is treated as predeceasing testator to extent gift in excess of intestate share.
contesting will due to fraud/misrepresentation: elements
- made misrep with purpose to deceive testator and influence will
- fraud in the inducement: misrep causes T to make will differently (promises to share it with Eowyn, won’t)
- fraud in the execution: misrep re: character or contents of will, like if T doesn’t read it and Grima lies to him
REMEDY: constructive trust (most common remedial trust)
forfeiture clauses
forfeiture or inter arum clause–designed to stop beneficiary from suing over share. May not be enforceable:
clause is unenforceable if beneficiary had probable cause to challenge the will
forfeiture clause IS enforceable if had PC
way to spot undue influence/fraud problems with will vs insane delusion
undue influence and fraud require 3P, insane delusion does not
describe fraud in the inducement vs in the execution re: a will
inducement means you lie to T about something to get him to make the will differently than it would be otherwise
execution means you lie to T about what’s in the will to get him to sign it w/out reading
probate property vs nonpraobte property
probate: passes by will or intestate succession
non-probate: passes by other means, like deeds, trusts
what triggers property distribution by intestate succession rules?
if decedent does not have will, it’s invalid, or it does not cover all property
order of settling property:
- distribute the non-probate stuff first
- then probate: do stuff in the will
- then intestate succession (any property not specifically devised goes to intestate succession)
WHERE ARE CREDITORS??
what does probate court do?
watches out for undue influence, interest of T
handles contests
satisfies creditors
deals with title
how long to do probate?
UPC probate proceedings must be brought within 3y of death,
can ask informal, ex party, or formal proceedings
creditors can’t make claim on estate after certain time period or claim is barred, time based on statute
in probate–hierarchy of claims
- creditors first
- expenses
- medical and funeral
- kids and spouses support
- taxes
- secured claims
- judgments against decedent
- everything else
duties of representative of testator
- inventor property
- locate people with claims on estate
- satisfied debts
- pay taxes
DUTIES OWED from executor or personal rep:
fiduciary: owe royalty and care, cannot engage in self dealing
estate pays personal rep
who can be personal rep to probate will, if not named in will?
HIERARCHY:
surviving spouse devisee
other surviving devisee
if not devisee, surviving spouse
then other heir
45d after death, any creditor
Power of appointment–howo it works
GENERAL. Donee has general power to appoint owner of property–no restrictions. Herself, creditor, whoever
SPECIAL. Donee has special power to appoint owner of property–limited power. T gives power of appointment to Hank on condition that neither Hank or his family can take property. Or on condition to give out to his nieces and nephews.
what is power of attorney and what 3 kinds are relevant to wills
Power of attorney is ability to act on other’s behalf in legal or business matter
writing, signed, DATED
Kinds of power of attorney:
1. general. All affairs during incapacitation.
2. special: limited to subject matter
3. advanced health care directives.
Living will. Agent’s job is to ensure wishes are enforced.
Durable power of atty: make all decisions.
If a donee of a general power of appointment fails to exercise that power, what happens to the decedent’s property?
The property reverts back to the donor’s estate.
