Wills Flashcards
Is there a constitutional right to exercise dead hand control (have a will)?
No
Does property in an inter vivos trust pass through the decedent’s estate?
No- it passes by the terms of the trust
Does a tenancy in common have survivorship rights?
No
Does a joint tenancy have survivorship rights?
Yes
When does property pass by intestate succession?
- A 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)
When do you have heirs?
When you’re dead
What law governs marital property when a decedent is married at the time of their death?
The law of the domicile at the time the property was acquired
What law do we apply for personal property?
The law of the decedent’s domicile at death
What law do we apply for real property?
The law of the situs of the property
Define descendants
Related to the decedent in a descending lineal line (children, grandchildren, etc)
If all of the decedent’s children survive, how are shares apportioned?
Each child takes an equal share
What are the methods of allocating shares available if at least one descendant predeceased the decedent and is survived by a descendant who survives the descedant?
- Classic per stirpes
- Per capita with representation (majority rule)
- Per capita at each generational level (modern trend)
Classic per stirpes distribution
One share is created for each child and one share for each deceased child who has at least one surviving descendant.
Divides into shares at the child generation, even if no child survives the intestate. Only count the children who are either alive or have descendants
Per capita with representation distribution
Majority rule
Divide the property into equal shares at the first generational level in which there are living takers
Per capita at each generational level distribution
Modern trend
Make the initial division of shares at the first generational level at which there are living takers, but the shares of deceased people at that level are combined and then divided equally among the takers at the next generational level
Who takes if the decedent is not survived by a spouse or descendant?
Ancestors and collaterals
Define ancestors
People related in an ascending lineal line
Define collaterals
People related but not in a lineal line
Ex: siblings, uncles, aunts, etc.
What is the order of priority if there is no spouse/descendant
Go down this list in order until you find someone
- Parent(s)
- Brothers, sisters, and their descendants
- Half to paternal grandparents and half to maternal grandparents and their descendants (both halves to one side if there are no takers on the other)
- One-half to nearest kin on maternal side and one-half to nearest kin on paternal side
Note- if one parent and at least one sibling survive, the UPC and some states give the entire estate to the surviving parent. Other states give one-half to the surviving parent an done-half to the sibling(s)
Can biological parents ever inherit from an adopted child?
No
Do step children or foster children have an inheritance right?
No UNLESS adoption by estoppel applies
Adoption by estoppel
Permits a child to inherit from or through a stepparent or foster parent when legal custody of a child is gained under an unfulfilled agreement to adopt them
When do nonmarital children inherit from their mother?
Always
When do nonmarital children inherit from their father?
- If the father married the mother after the child’s birth
- The man was adjudicated to be the father in a paternity suit
- After his death, and during probate proceedings, the man is proved by clear and convincing evidence to be the father
Define advancement
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
Is a lifetime gift presumptively an advancement?
No
What is the procedure for distributing property if there was 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
Aka the advancement goes into the hotchpot
Uniform Simultaneous Death Act
A person cannot take as an heir or will beneficiary unless they survive the decedent
Some states say must be simultaneous death (USDA rule), some provide a 120 hour period for “simultaneous” death (UPC rule)
Can you be forced to accept an inheritance or gift under a will?
No
What is it called if you refuse to accept an inheritance/gift under a will?
Disclaimer
How do you disclaim a gift?
A disclaimer must be
- Written
- Signed by the disclaimant
- Acknowledged before a notary
- Filed with the appropriate court within nine months of death
What is the effect of disclaimer?
The disclaimed property passes as if the disclaimant had predeceased the decedent
Slayer Statute
A person who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate
Define codicil
A supplement to a will that modifies it
What kind of interest does a beneficiary have in a will before the testator’s death?
An expectancy interest- not a property interest
What law governs real property in a will?
The law of the state where the property is located
What law governs personal property in a will?
The law of the testator’s domicile at the time of death
What legal capacity is required to make a will?
Testator must normally be at least 18 years old and of sound mind
(Can be younger if in military or married)
What must the testator have the capacity to understand in order to make a will?
Must simultaneously understand:
- The nature of their act (they are making a will)
- The nature and extent of their property
- The people who are their family members (“that’s my spouse”)
May a person adjudicated incompetent execute a will?
Yes, if during a lucid interval
What are the formal requirements for a will to be valid?
Will or codicil must be
- In writing (some permit e-wills)
- Signed by the testator
- Signed by the testator in the presence of 2 attesting witnesses
- Signed by the witnesses in the testator’s presence
When is a proxy signature permissible on a will?
When it is made at the testator’s direction and in their presence
Can a witness have an interest in the will?
At common law no
Modern law provides that the will is valid but the bequest to the interested witness may be void under a purging statute unless they would have taken a share as an heir if the will had not been probated
Define holographic will
A holographic will is one that is entirely in the testator’s handwriting and has no attesting witnesses
(Some typewritten text is permissible so long as it is not material)
What must a holographic will contain?
The testator’s signature
Define devise
A gift of real property
Recipient is a devisee
Define bequest
A gift of personal property
Define legacy
A gift of personal property in a will, usually of money
Recipient is a legatee
Specific devise/legacy
A gift of a particular item of property distinct from all other objects in the testator’s estate
General legacy
A gift of a general economic benefit (often a dollar amount) payable out of the general assets of the estate without requiring any particular source of payment
Demonstrative legacy
A gift of a general amount that is to be paid from a particular source or fund
Residuary estate
The balance of the testator’s property after paying (1) debts, expenses, and taxes; and (2) specific, general, and demonstrative gifts
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
When the gift adeems, the beneficiary takes nothing
Common statutory exceptions to the ademption doctrine
- Some states allow the beneficiary to receive replacement property if the testator replaced the gifted item with another similar item
- If the testator sold the gifted item and the purchaser still owes money to the testator, some states allow the beneficiary to receive the remaining money
- Some states allow the beneficiary to receive a condemnation award
- If the testator became incompetent and the specifically devised property was sold by a guardian, the beneficiary may be entitled to a general pecuniary legacy equal to the amount of proceeds
Satisfaction
Advancement but for wills rather than intestacy
What is required for ademption by satisfaction?
Most states require a writing or a specific instruction in the will before a gift is deemed a satisfaction
Are liens on specifically devised property paid off with the estate funds?
No unless the will specifically says they should be
Abatement
The 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
What is the order in which gifts abate?
From most to least likely
- Property passing by intestacy
- Residuary estate
- General legacies
- Demonstrative legacies
- Specific bequests and devises
When does a gift lapse?
If the beneficiary predeceases the testator or if the beneficiary is treated as not surviving the testator (they disclaimed or didn’t survive long enough)
Anti-Lapse Statute
Operate to save the gift if the predeceasing beneficiary was in a specified degree of relationship to the testator and left descendants who survived the testator. These descendants take by substitution
Do words of survivorship negate an anti-lapse statute?
In most states no
Under the UPC, yes
If a will makes a class gift, which class members take?
Only those who survive the testator unless the will provides otherwise or the anti-lapse statutory requirements are met
Who raises interpretation and construction issues for wills?
- The personal representative who wants to do the right thing
- Beneficiaries or heirs who would take under various interpretations
If the testator left a will, we should assume
The testator did not intend to die intestate and therefore we should favor the construction that avoids intestacy
Among two or more contradictory provisions in a will, which prevails?
The last one
Is the will construed as a whole or piece by piece?
As a whole
Patent ambiguity
The provision is ambiguous on its face/fails to convey a sensible meaning
(I leave my lskdjhf wlker to Bob)
Is extrinsic evidence permitted to correct a patent ambiguity?
Yes but it cannot be used to fill in a blank space or supply omitted gifts
Latent/Hidden Ambiguity
The language of the will is clear on its face but cannot be carried out without further clarification
Ex: To my sister Pat (but Pat is your brother and Mary is your sister)
Is extrinsic evidence permitted to correct a latent ambiguity?
Yes
What approaches are available if someone thinks there has been a mistake in a will?
Plain meaning rule- traditional approach says that extrinsic evidence cannot be sued to disturb the clear meaning
Modern rule- Extrinsic evidence permissible
What is required to incorporate by reference a document into a will?
- The will manifests an intent to incorporate the document
- The document is in existence at the time the will is executed
- The document is sufficiently described in the will
Can you have a separate writing to dispose of tangible personal property?
Yes and you can alter it after executing the will
If possible, will courts prioritize an interpretation of a will that makes it conditional or general?
General
What formalities are required for a codicil?
The same as for a will
What is a pour-over provision?
A provision in a will making a gift to an inter vivos trust
Joint will
A single instrument executed by two or more testators and intended to be the will of each
HIGHLY unadvisable
Reciprocal/mutual will
Separate wills executed by two or more testators that contain substantially similar provisions
Aka sweetheart wills
Is a contract to make, not make, or not to revoke a will valid?
Yes
Power of Appointment
An authority granted to a person that allows them to designate (within prescribed limits) the people who will take the property and the manner in which they will take it
Does marriage have an effect on a will that pre-dates it?
In most states, no
Does divorce change a prior will that included the former spouse?
Yes ones the divorce is final- in most states the divorce/annulment revokes all gifts and fiduciary appointments
When can a will be revoked by physical act?
A will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will with the intent to revoke
How does a revocation of a codicil impact a will? Of a will impact a codicil?
The revocation of a will revokes all codicils to it, but revocation of a codicil does not revoke the entire will
T executes valid Will 1, executes valid Will 2 which expressly revokes Will 1, and then validly revokes Will 2. What happens under the UPC approach?
Look at the testator’s intent- the previous will remains revoked unless it is evident that the testator intended to revive the previous will
T executes valid Will 1, executes valid Will 2 which expressly revokes Will 1, and then validly revokes Will 2. What happens under the automatic revival approach?
Revival is automatic under the theory that the revoking will did not take effect because it was revoked prior to the testator’s death.
T executes valid Will 1, executes valid Will 2 which expressly revokes Will 1, and then validly revokes Will 2. What happens under the no revival approach?
W1 is not revived
What happens if T executes valid Will 1, validly revokes Will 1, and the invalidly executes Will 2?
Ask whether the revocation of W1 was impliedly conditioned on the validity of W2 and whether T would have preferred W1 over intestacy.
The more similar the provisions of the wills, the more likely the court will apply Dependent Relative Revocation and allow W1 to stand
What is the standard by which you must establish something is a will if it does not meet the technical requirements?
Clear and convincing evidence
Pretermitted child statutes
Protect children from being accidentally omitted from their parents’ wills
Circumstances in which a state will withhold a pretermitted child’s forced share
- The testator had other children but still gave substantially all of their estate to the other parent of the omitted child
- It appears from the will that the omission was intentional
- The testator provided for the omitted child by a transfer outside of the will in lieu of a testamentary gift
Grounds for contesting a will
- Defective execution
- Revocation
- Lack of testamentary capacity
- Lack of testamentary intent
- Undue influence or duress
- Fraud
- Mistake
When does an insane delusion destroy testamentary capacity?
When there is a connection between the insane delusion and the property disposition
How to prove undue influence
- The influence existed and was exerted
- The effect of the influence was to overpower the mind and free will of the testator
- The resulting testamentary disposition would not have been executed but for the influence
When is there a presumption of undue influence?
- There was a confidential relationship between the testator and a beneficiary AND
- The beneficiary was active in procuring, drafting, or executing the will
Duress
A form of undue influence that connotes violent conduct such as the threat of physical harm
What does fraud require?
- False representation made to the testator
- Knowledge of the falsity by the person making the statement
- The testator reasonably believed the statement
- The statement caused the testator to execute a will or make a particular disposition that the testator would not have made but for the misrepresentation
Fraud in the Factum/Fraud in the Execution
The testator did not know the document was a will or what the will contained
Negates testamentary intent
Fraud in the Inducement
The testator knew they were executing a will and what the will contained, but the testator is deceived as to some extrinsic fact and makes the will or a gift based on that fact
Set aside the gifts related to this fraud
No-Contest Clause
A clause in a will which says that a beneficiary forfeits their interest in the estate if they contest the will and lose
Where is primary probate jurisdiction?
The decedent’s domicile at the time of death
Living Will
Covers whether to administer life-sustaining procedures, provide artificial hydration, and whether to provide treatment to alleviate pain
Durable healthcare power
Aka medical power of attorney
Appoints an agent to make healthcare decisions on behalf of the principal and does not become effective until the principal is incapacitated
What is required for a living will/durable healthcare power
- Writing
- Signed by the declarant or principal or another person at their direction
- Witnessed by two adult witnesses
How do you revoke a living will?
- Physical destruction
- Written revocation OR
- Oral expression of intent to revoke
