Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

MEE Subjects > Wills > Flashcards

Wills Flashcards

1
Q

Is there a constitutional right to exercise dead hand control (have a will)?

A

No

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Does property in an inter vivos trust pass through the decedent’s estate?

A

No- it passes by the terms of the trust

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Does a tenancy in common have survivorship rights?

A

No

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Does a joint tenancy have survivorship rights?

A

Yes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

When does property pass by intestate succession?

A
  • 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)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

When do you have heirs?

A

When you’re dead

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What law governs marital property when a decedent is married at the time of their death?

A

The law of the domicile at the time the property was acquired

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What law do we apply for personal property?

A

The law of the decedent’s domicile at death

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What law do we apply for real property?

A

The law of the situs of the property

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Define descendants

A

Related to the decedent in a descending lineal line (children, grandchildren, etc)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

If all of the decedent’s children survive, how are shares apportioned?

A

Each child takes an equal share

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

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?

A
  • Classic per stirpes
  • Per capita with representation (majority rule)
  • Per capita at each generational level (modern trend)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Classic per stirpes distribution

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Per capita with representation distribution

A

Majority rule

Divide the property into equal shares at the first generational level in which there are living takers

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Per capita at each generational level distribution

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Who takes if the decedent is not survived by a spouse or descendant?

A

Ancestors and collaterals

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Define ancestors

A

People related in an ascending lineal line

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Define collaterals

A

People related but not in a lineal line

Ex: siblings, uncles, aunts, etc.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What is the order of priority if there is no spouse/descendant

A

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)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Can biological parents ever inherit from an adopted child?

A

No

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Do step children or foster children have an inheritance right?

A

No UNLESS adoption by estoppel applies

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Adoption by estoppel

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

When do nonmarital children inherit from their mother?

A

Always

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

When do nonmarital children inherit from their father?

A
  • 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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Define advancement

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Is a lifetime gift presumptively an advancement?

A

No

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

What is the procedure for distributing property if there was an advancement?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Uniform Simultaneous Death Act

A

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)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Can you be forced to accept an inheritance or gift under a will?

A

No

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

What is it called if you refuse to accept an inheritance/gift under a will?

A

Disclaimer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

How do you disclaim a gift?

A

A disclaimer must be

  • Written
  • Signed by the disclaimant
  • Acknowledged before a notary
  • Filed with the appropriate court within nine months of death
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

What is the effect of disclaimer?

A

The disclaimed property passes as if the disclaimant had predeceased the decedent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Slayer Statute

A

A person who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Define codicil

A

A supplement to a will that modifies it

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

What kind of interest does a beneficiary have in a will before the testator’s death?

A

An expectancy interest- not a property interest

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

What law governs real property in a will?

A

The law of the state where the property is located

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

What law governs personal property in a will?

A

The law of the testator’s domicile at the time of death

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

What legal capacity is required to make a will?

A

Testator must normally be at least 18 years old and of sound mind

(Can be younger if in military or married)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

What must the testator have the capacity to understand in order to make a will?

A

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”)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

May a person adjudicated incompetent execute a will?

A

Yes, if during a lucid interval

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

What are the formal requirements for a will to be valid?

A

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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

When is a proxy signature permissible on a will?

A

When it is made at the testator’s direction and in their presence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

Can a witness have an interest in the will?

A

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

44
Q

Define holographic will

A

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)

45
Q

What must a holographic will contain?

A

The testator’s signature

46
Q

Define devise

A

A gift of real property

Recipient is a devisee

47
Q

Define bequest

A

A gift of personal property

48
Q

Define legacy

A

A gift of personal property in a will, usually of money

Recipient is a legatee

49
Q

Specific devise/legacy

A

A gift of a particular item of property distinct from all other objects in the testator’s estate

50
Q

General legacy

A

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

51
Q

Demonstrative legacy

A

A gift of a general amount that is to be paid from a particular source or fund

52
Q

Residuary estate

A

The balance of the testator’s property after paying (1) debts, expenses, and taxes; and (2) specific, general, and demonstrative gifts

53
Q

Ademption

A

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

54
Q

Common statutory exceptions to the ademption doctrine

A
  • 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
55
Q

Satisfaction

A

Advancement but for wills rather than intestacy

56
Q

What is required for ademption by satisfaction?

A

Most states require a writing or a specific instruction in the will before a gift is deemed a satisfaction

57
Q

Are liens on specifically devised property paid off with the estate funds?

A

No unless the will specifically says they should be

58
Q

Abatement

A

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

59
Q

What is the order in which gifts abate?

A

From most to least likely

  • Property passing by intestacy
  • Residuary estate
  • General legacies
  • Demonstrative legacies
  • Specific bequests and devises
60
Q

When does a gift lapse?

A

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)

61
Q

Anti-Lapse Statute

A

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

62
Q

Do words of survivorship negate an anti-lapse statute?

A

In most states no

Under the UPC, yes

63
Q

If a will makes a class gift, which class members take?

A

Only those who survive the testator unless the will provides otherwise or the anti-lapse statutory requirements are met

64
Q

Who raises interpretation and construction issues for wills?

A
  • The personal representative who wants to do the right thing
  • Beneficiaries or heirs who would take under various interpretations
65
Q

If the testator left a will, we should assume

A

The testator did not intend to die intestate and therefore we should favor the construction that avoids intestacy

66
Q

Among two or more contradictory provisions in a will, which prevails?

A

The last one

67
Q

Is the will construed as a whole or piece by piece?

A

As a whole

68
Q

Patent ambiguity

A

The provision is ambiguous on its face/fails to convey a sensible meaning

(I leave my lskdjhf wlker to Bob)

69
Q

Is extrinsic evidence permitted to correct a patent ambiguity?

A

Yes but it cannot be used to fill in a blank space or supply omitted gifts

70
Q

Latent/Hidden Ambiguity

A

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)

71
Q

Is extrinsic evidence permitted to correct a latent ambiguity?

A

Yes

72
Q

What approaches are available if someone thinks there has been a mistake in a will?

A

Plain meaning rule- traditional approach says that extrinsic evidence cannot be sued to disturb the clear meaning

Modern rule- Extrinsic evidence permissible

73
Q

What is required to incorporate by reference a document into a will?

A
  • 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
74
Q

Can you have a separate writing to dispose of tangible personal property?

A

Yes and you can alter it after executing the will

75
Q

If possible, will courts prioritize an interpretation of a will that makes it conditional or general?

A

General

76
Q

What formalities are required for a codicil?

A

The same as for a will

77
Q

What is a pour-over provision?

A

A provision in a will making a gift to an inter vivos trust

78
Q

Joint will

A

A single instrument executed by two or more testators and intended to be the will of each

HIGHLY unadvisable

79
Q

Reciprocal/mutual will

A

Separate wills executed by two or more testators that contain substantially similar provisions

Aka sweetheart wills

80
Q

Is a contract to make, not make, or not to revoke a will valid?

A

Yes

81
Q

Power of Appointment

A

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

82
Q

Does marriage have an effect on a will that pre-dates it?

A

In most states, no

83
Q

Does divorce change a prior will that included the former spouse?

A

Yes ones the divorce is final- in most states the divorce/annulment revokes all gifts and fiduciary appointments

84
Q

When can a will be revoked by physical act?

A

A will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will with the intent to revoke

85
Q

How does a revocation of a codicil impact a will? Of a will impact a codicil?

A

The revocation of a will revokes all codicils to it, but revocation of a codicil does not revoke the entire will

86
Q

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?

A

Look at the testator’s intent- the previous will remains revoked unless it is evident that the testator intended to revive the previous will

87
Q

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?

A

Revival is automatic under the theory that the revoking will did not take effect because it was revoked prior to the testator’s death.

88
Q

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?

A

W1 is not revived

89
Q

What happens if T executes valid Will 1, validly revokes Will 1, and the invalidly executes Will 2?

A

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

90
Q

What is the standard by which you must establish something is a will if it does not meet the technical requirements?

A

Clear and convincing evidence

91
Q

Pretermitted child statutes

A

Protect children from being accidentally omitted from their parents’ wills

92
Q

Circumstances in which a state will withhold a pretermitted child’s forced share

A
  • 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
93
Q

Grounds for contesting a will

A
  • Defective execution
  • Revocation
  • Lack of testamentary capacity
  • Lack of testamentary intent
  • Undue influence or duress
  • Fraud
  • Mistake
94
Q

When does an insane delusion destroy testamentary capacity?

A

When there is a connection between the insane delusion and the property disposition

95
Q

How to prove undue influence

A
  • 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
96
Q

When is there a presumption of undue influence?

A
  • There was a confidential relationship between the testator and a beneficiary AND
  • The beneficiary was active in procuring, drafting, or executing the will
97
Q

Duress

A

A form of undue influence that connotes violent conduct such as the threat of physical harm

98
Q

What does fraud require?

A
  • 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
99
Q

Fraud in the Factum/Fraud in the Execution

A

The testator did not know the document was a will or what the will contained

Negates testamentary intent

100
Q

Fraud in the Inducement

A

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

101
Q

No-Contest Clause

A

A clause in a will which says that a beneficiary forfeits their interest in the estate if they contest the will and lose

102
Q

Where is primary probate jurisdiction?

A

The decedent’s domicile at the time of death

103
Q

Living Will

A

Covers whether to administer life-sustaining procedures, provide artificial hydration, and whether to provide treatment to alleviate pain

104
Q

Durable healthcare power

A

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

105
Q

What is required for a living will/durable healthcare power

A
  • Writing
  • Signed by the declarant or principal or another person at their direction
  • Witnessed by two adult witnesses
106
Q

How do you revoke a living will?

A
  • Physical destruction
  • Written revocation OR
  • Oral expression of intent to revoke

MEE Subjects (8 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions