Wills Flashcards
What are the two ways in which property may pass by intestate succession?
- Decedent dies without having made a will or their will is denied probate (total intestacy)
- A decedent’s will does not dispose of all of the decedent’s property, either because a gift has failed or because the will contains no residuary clause (partial intestacy)
What share of the intestate does a surviving spouse receive? If descendants do/do not survive?
Under Modern law, spouse is an heir.
If decedent leaves descendants as well as spouse, spouse takes 1/3 or 1/2 of estate. Under UPC, surviving spouse takes entire estate.
If no descendants, surviving spouse takes entire estate. In UPC states, spouse takes entire estate only in not survived by descendants or parents
How many shares does each child descendant get under the majority rule?
Per capita with representation
-Property is divided into equal shares at the first generational level at which there are living takers; each living person at that level takes a share, the share of each deceased person at that level passes to their issue by right of representation
How many shares does each child descendant get under the modern trend?
Per capita at each generational level
- Make initial division of shares at the first generational level at which there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level
What is an advancement of intestate share? What is the procedure if advancement found?
- Advancement is a lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate
- If found to be an advancement, the gift’s value when given is added back into the estate for purposes of calculating shares and then subtracted from the recipient’s share
What is a disclaimer? What are reasons to disclaim? What is required to make a disclaimer?
Heir/beneficiary foregoes inheritance/gift
Reasons: burdensome, tax, avoid creditors
Disclaimer must be written, signed by disclaimant, acknowledged before a notary, and filed with the appropriate court within 9 months
What happens if a decedent’s death is caused by heir or beneficiary?
Person who brings about death of a decedent forfeits any interest in the estate; property passes as though the killer predeceased the victim (Reached through Slayer Statute)
What constitutes a will?
An instrument executed with certain formalities that usual directs the disposition of a person’s property at death; revocable during testator’s lifetime and operative at their death; codicil = supplement to will that modifies it
What law applies to the real vs. personal property of a will?
Real prop = determined by law of the state where the property is located
Personal prop = determined by the law of the testator’s domicile at the time of death
What level of capacity must a testator have?
- Must be at least 18 yrs old
- Must have capacity to understand: [at time of will’s execution]
(1) nature of their act
(2) nature and extent of their property
(3) persons who are the natural objects of their bounty
(4) above factors and be able to formulate an orderly scheme of disposition
What is required to execute an attested will?
- Will/codicil must be in writing
- Signed by testator, or another at testator’s direction AND in their presence
- Two attesting witnesses
- Testator sign the will in each of the witnesses’ presence
- Witnesses sign in the testator’s presence
What is a holographic will?
- One that is entirely in the testator’s handwriting and has no attesting witness
- UPC recognize holographic wills accept a will that contains some typewritten text as long as the portion not in the testator’s handwriting is not material
- MUST contain testator’s signature
Define:
- Devise(e)
- Legacy
- Specific devise or legacy
- General legacy
- Demonstrative legacy
- Residuary estate
(1) Devise: gift or real property; devisee = recipient of a devise (compare to bequest, gift of personal property)
(2) Legacy: gift of personal property in a will, recipient = legatee
(3) Specific: gift of a particular item of prop distinct from other objects in testator’s estate
(4) General is gift of a general economic benefit payable out of the general assets of estate
(5) Demonstrative: gift of general amount that is to be from a particular source or fund
(6) residuary: balance of the testator’s property after paying debts, expenses, taxes, other gifts
What is ademption?
Refers to the failure of a gift because the property is no longer in the testator’s estate at the time of their death
Applies ONLY to specific devises and bequests
How is a specific bequest of stock deal with dividends?
- UPC and most states also include stock dividends in specific bequest of stock
- Beneficiary will take an increase in securities caused by the merger or corporation reorganization
- B does not take new securities that have been purchased or acquired by the reinvestment of dividends
What is the effect of increases to property after execution of will on: specific gifts
- Appreciation and depreciation of specifically gifted property is normally irrelevant
- Income on property goes into general estate, improvements on real property go to specific devisee
- Increase to specific gifts after T’s death pass to specific beneficiary because they are deemed to own the property from the time of the testator’s death
What is abatement?
Process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises; if not set out in will, usually abate in this order: property passing by intestacy, residuary estate, general legacies, demonstrative legacies, specific bequests/devises
Who raises will interpretation and construction issues?
- The personal representative who wants to do the right thing and avoid liability for improper administration
- Beneficiaries or heirs who would take under various will interpretations
What are some of the basic rules of construction when there is no evidence of the testator’s intent?
- The fact that testator left a will indicates an intent not to die intestate - favor the construction that avoids intestacy
- Among 2+ contradictory will provisions, the last one prevails
- Will is construed as a whole, not from isolated parts out of context
- Words are given their ordinary and grammatical meaning
- Technical words given their technical meaning
- Attempt to give effect to all words the testator included in the will
What is incorporation by reference? What effect? What is required to do so?
- Instead of writing something in the will, T may incorporate an extraneous document into the will by reference
- Effect is that incorporated material is treated as if it were actually written out in full in the will
- Incorporated if: will manifests an intent to incorporate the doc, doc is in existence at time the time is executed, doc is sufficiently described in the will
What is a codicil?
-Modifies a previously executed will and must itself be executed with the same formalities; treated as one instrument with the will from the date of the last codicil’s execution
What is a contractual will? What happens if the contract is breached?
- Will executed or not revoked as the consideration for a contract, governed by contract not Wills law
- NO remedy for breach during the testator’s lifetime; if testator dies in breach, usual remedy is for the court to grant a constructive trust for the benefit of the promisee
What is the power of appointment?
An authority granted to a person enabling that person to designate within the limits prescribed by the creator of the power, the person who shall take the property and the manner in which they take it
In what three ways can a will be revoked?
- Operation of law
- Subsequent instrument
- Physical act
