Wills

Question 1

Intestate Succession

Answer 1

• Any property not passing by a valid will or by operation of law is governed by a State’s applicable intestacy statute.
• Typical Intestate Succession Rules If Decedent:
  
  • Leaves only a surviving spouse→spouse will receive the entire estate.
  • Leaves a surviving spouse and issue:
    
    • Most States→spouse and issue will each receive certain %.
    • UPC→spouse receives the entire estate if ALL issue are from that spouse.
  • Does NOT leave a spouse→decedent’s issue.
  • Does NOT leave spouse or issue→surviving parents.
    
    • If no surviving parents→issue of parents (siblings & their issue).
• Distribution of Assets (Most States) → Assets pass by the Per Capita at Each Generation approach.

Question 2

Will Execution Formailities

Answer 2

• A will is valid if the specific State law formalities are followed.
• Most States: Requires that a will be: (1) in a writing, (2) signed by the testator, AND (3) witnessed by at least 2 individuals.
• UPC- Requires that a will be:
  
  1. In writing;
  2. Signed by testator (or by someone in testator’s presence and by testator’s direction)(some states: writing name in will = sign); AND
  3. Either: (a) signed by at least 2 witnesses in testator’s presence (within a reasonable time after witnessing testator sign the will); or (b) notarized.
• When Witnesses Sign “Within Testator’s Presence”:
  
  • Majority View & UPC→if within the range of the testator’s senses.
  • Minority View→if within the testator’s line of sight.

Question 3

Interested Witnesses

Answer 3

• Common Law → A will must be witnessed by 2 disinterested witnesses (not receiving a benefit under the will). (UPC abolished this)
• State Exceptions → A will is VALID even if witnessed by an interested witness when:
  
  1. an interested witness is an heir (but any gift to that witness is reduced to their intestate share); OR
  2. another disinterested witness was present so that there were still 2 disinterested witnesses.

Question 4

Codicil

Answer 4

• An instrument made after a will is executed that modifies, amends, or revokes a will.
• To be valid it MUST satisfy the same will execution formalities.
• If a codicil republishes a will, the will is deemed executed on the same date as the codicil.
• It CANNOT republish an invalid will (but it can cure an interested witness issue).

Question 5

Holographic Will

Answer 5

• Is a handwritten will (or alteration to a will) that is NOT WITNESSED.
• Only some states recognize holographic wills. Those states require the writing to be subscribed by the testator (signed at the end).
• In states that recognize holographic wills, a valid holographic codicil revokes an earlier will (to the extent it conflicts).

Question 6

Incorporation By Reference

Answer 6

• A bequest through an unattested memorandum is valid if it meets requirements of incorporation by reference.
• Most States - A document or writing will be incorporated by reference if:
  
  1. It was in existence at the time the will was executed;
  2. It was sufficiently described in the will; AND
  3. Testator intended to incorporate it into the will.
• UPC - A bequest of tangible personal property (other than money) will be incorporated if:
  
  1. signed by testator; AND
  2. the item & devisees are described with reasonable certainty.
  3. The document DOES NOT have to be in existence at the time of will execution.

The referenced document can be an invalid first will that is incorporated into a subsequent valid codicil. (first will was invalid but testator made a valid second will trying to republish th efirst will)

Question 7

Durable Healthcare Power of Attorney

Answer 7

• Gives a designated agent the power to make health care decisions in the event of the principal’s incapacity.
  
  • Must be→(1) in a signed writing; AND (2) witnessed or notarized.
  • An agent’s power is NOT limited unless stated otherwise.
• A person is insulated from civil & criminal liability for health–care decisions made in good faith under a Durable Health-Care Power of Attorney.

Question 8

Slayers Statutes

Answer 8

• If a beneficiary feloniously and intentionally kills the decedent→he/she forfeits all gifts, benefits, and entitlements under a will or intestacy.
  
  • A conviction after appeal is conclusive.
  • May be based on a preponderance of evidence proven during a probate or related court proceeding.
  • Durable Health Care Directive→Withholding medical treatment is NOT considered to be felonious and intentional.

Question 9

Revocation by Physical Act

Answer 9

• A will is revoked by physical act if:
  
  1. the testator intended to revoke the will (intent to change will is not = intent revoke); AND
  2. it is burned, torn, destroyed, or cancelled by the testator (or someone at his direction).
• Common Law→words of cancellation are valid ONLY IF they come in physical contact with the cancelled words of the will (i.e. written over).
  UPC→words of cancellation are valid written anywhere on the will (no physical contact is required).

Question 10

Pretermitted Children

Answer 10

• A child born or adopted AFTER the execution of a will is entitled to an intestate share of the estate UNLESS intentionally omitted from the will.
  
  • Some States→a child is NOT entitled to a share if decedent: (a) provided for the child outside of the will; OR (b) left all (or substantially all) of the estate to the child’s other parent.
• A child living at the time of execution is NOT entitled to a share UNLESS the child was omitted because decedent:
  
  1. did not know of the child’s existence; OR
  2. believed the child to be dead.

Question 11

Testamentary Provisions Revoked Upon Divorce

Answer 11

• In all States, a final divorce decree revokes bequests or appointments of property to a former spouse (pending divorce has no effect on will).
  
  • Some States→revoked if divorce proceedings are pending.
  • All revoked provisions are treated as if the former spouse predeceased the testator.
• Generally, bequests and fiduciary appointments in favor of a former spouse’s relatives remain intact.
  
  • Under the UPC→they are revoked upon divorce.
• Prenuptial Agreement – Waiving rights to each other’s assets upon divorce in a Prenuptial Agreement DOES NOT apply to voluntary gifts or bequests (i.e. in a will or trust).

Question 12

Legal Definition of Children

Answer 12

• Common Law: only biological, full-blooded children were entitled to inherit.
• Modern View: includes any child, including adopted children.

− Exception #1→non-marital children inheriting from a father must establish paternity. (state statute that does not provide any means to establish paternity and not allow inheritance = unconsitutional)

− Exception #2→adopted-out children (a child given up for adoption) are generally NOT entitled to inherit. (If adopted by a relative then can inherit from natural parent)

If testator is survived by descendants then probate estate goes to descendants not parents or collateral kin.

Question 13

Personal Representative

Answer 13

• A personal representative (i.e. executor) must handle all the matters associated with probate.
• If decedent DOES NOT name an executor, the court will appoint one in the following order of priority:
  
  1. Surviving spouse who is a devisee
  2. Another devisee
  3. Surviving spouse
  4. Other heirs
  5. Any creditor (if 45 days have passed since death)

Minors cannot become executors.

Question 14

Spouse’s Elective Share

Answer 14

• Many states have enacted statutes giving a surviving spouse the right to take a statutory share of the deceased spouse’s estate (instead of taking under will).
• Amount of Elective Share: varies by state, and is typically one-third (1/3) of the net probate estate.
• Net Probate Estate = Gross Probate Estate - Creditor Claims & Expenses (but not taxes).
  
  • Some states include certain non-probate assets and lifetime transfers in the gross probate estate.
  • Most states allow the spouse to claim their elective share against assets of a revocable trust.
• The elective share is in addition to any statutory family exemptions→family residence, exempt personal property, and family allowance.

Question 15

Revocation by Subsequent Will or Codicil

Answer 15

• Testator may revoke a will by executing a subsequent will or codicil.
  
  • BUT, the revocation is valid only to the extent that the previous will conflicts with the new will UNLESS the new will expressly revokes the previous will in its entirely.
• If first will was invalid then subsequent will/codicil will be a partial will, excluding all the terms in the first will that are not mentioned in subsequent will.

Question 16

Ademption

Answer 16

• When a gift fails by extinction.
• Common Law: A specific gift adeems if it cannot be identified or is not owned at the time of testator’s death (intent is irrelevant).
• Most States: A specific gift is adeemed ONLY IF the testator intended the gift to fail. If no intent, the beneficiary is entitled to:
  
  • any property acquired as a replacement for the specific gift; OR
  • a monetary devise equal to the value of the gift.

Question 17

Stock Split & Dividends

Answer 17

A beneficiary of securities (stock) is entitled to any additional shares acquired by testator as a result of a stock split or dividend.

Question 18

Dependent Relative Revocation Doctrine

Answer 18

• Cancels a previous revocation that was made under a mistaken belief of law or fact.
  
  • Applies when→Testator would NOT have revoked the original will or bequest but for the mistaken belief that another will he prepared would be valid.
  • Courts typically apply doctrine only when there’s a sufficiently close identity to the revoked bequest & the bequest in the invalid subsequent will.

Question 19

Advancements/Satisfaction

Answer 19

• Common Law→Gift to heirs during testator’s lifetime were considered advancements on that heir’s intestate share of the estate.
  
  • The amount of the gift would be deducted from the heir’s share of the estate.
• UPC → NOT deemed an advancement unless:
  a) the will provides for a deduction; OR
  b) a writing indicated that the property was in satisfaction of a devise or that its value will be deducted from the value of devise.

Question 20

Lapsed Gifts & Anti-Lapse Statute

Answer 20

• Common Law → All gifts in a will were conditioned on the beneficiary surviving the testator = lapse.
• Anti–Lapse Statute → A lapsed gift will vest in the issue of a predeceased beneficiary if:
  
  1. that beneficiary is a specified descendant of the testator (specified by statute); AND
  2. the beneficiary leaves issue who survive the testator.
• UPC → Anti-lapse rule applies to gifts to issue (i.e. children, grandchildren), stepchildren, grandparents, and grandparent’s issue (i.e. siblings).

Question 21

Abatement

Answer 21

• If the debts of the estate are greater than the assets to cover all gifts made, the gifts will abate (be reduced).
• Creditors of the estate ALWAYS have priority to estate assets over the beneficiaries.
• Order of Abatement:
  
  • Property passing by intestacy
  • Residuary gifts
  • General gifts
  • Specific gifts

*Each category must be fully abated before moving onto the next one. Abatement within each category is in proportion to the amount of property each beneficiary would receive.

Question 22

Disclaimer

Answer 22

• Renouncing a legal right to inheritance.
• An Effective Disclaimer MUST:
  
  1. be declared in writing;
  2. describe the interest or power disclaimed;
  3. be signed by the person making the disclaimer; AND
  4. be delivered or filed.
• Timing:
  
  • Common Law→must be made within a reasonable time.
  • Some States→must be made within 9 months.
  • UPC→may be made at any time (so long as disclaimer is not barred – barred if a person accepts or transfers interest).
• If disclaimed, the property:
  
  • Passes according to the applicable terms of a will/trust (if any); OR
  • As if the person predeceased the testator (the gift lapses unless an anti–lapse statute applies).

Question 23

Testamentary Capacity

Answer 23

• Testator must be capable of knowing and understanding the:
  
  • Nature and extent of his property;
  • Natural objects of his bounty (relatives/friends);
  • Disposition he is making; AND
  • Have the ability to connect above elements into a coherent plan.

*Mental capacity is presumed, unless proven otherwise. *Appointment of a conservator or guardian does not automatically establish a lack of testamentary capacity.

Question 24

Undue Influence

Answer 24

• When a person exerts influence that overcomes a testator’s free will and judgment.
  
  • A will is invalid to the extent executed under undue influence.
• Undue Influence is established when:
  
  1. Testator had a weakness that made him susceptible to influence (physical, mental, financial);
  2. Wrongdoer had access and opportunity to exert the influence;
  3. Wrongdoer actively participated in the drafting the will; AND
  4. An unnatural (unexpected) result occurred.
• Common Law Presumption→Undue Influence established if:
  
  1. A confidential relationship (between testator and wrongdoer);
  2. Wrongdoer actively participated in the drafting of the will; AND
  3. An unnatural result occurred.