Wills Flashcards
1
Q
Intestate Succession
A
- 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.
2
Q
Will Execution Formailities
A
- 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:
- In writing;
- Signed by testator (or by someone in testator’s presence and by testator’s direction)(some states: writing name in will = sign); AND
- 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.
3
Q
Interested Witnesses
A
- 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:
- an interested witness is an heir (but any gift to that witness is reduced to their intestate share); OR
- another disinterested witness was present so that there were still 2 disinterested witnesses.
4
Q
Codicil
A
- 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).
5
Q
Holographic Will
A
- 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).
6
Q
Incorporation By Reference
A
- 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:
- It was in existence at the time the will was executed;
- It was sufficiently described in the will; AND
- Testator intended to incorporate it into the will.
-
UPC - A bequest of tangible personal property (other than money) will be incorporated if:
- signed by testator; AND
- the item & devisees are described with reasonable certainty.
- 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)
7
Q
Durable Healthcare Power of Attorney
A
- 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.
8
Q
Slayers Statutes
A
- 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.
9
Q
Revocation by Physical Act
A
- A will is revoked by physical act if:
- the testator intended to revoke the will (intent to change will is not = intent revoke); AND
- 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).
10
Q
Pretermitted Children
A
- 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:
- did not know of the child’s existence; OR
- believed the child to be dead.
11
Q
Testamentary Provisions Revoked Upon Divorce
A
- 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).
12
Q
Legal Definition of Children
A
- 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.
13
Q
Personal Representative
A
- 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:
- Surviving spouse who is a devisee
- Another devisee
- Surviving spouse
- Other heirs
- Any creditor (if 45 days have passed since death)
Minors cannot become executors.
14
Q
Spouse’s Elective Share
A
- 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.
15
Q
Revocation by Subsequent Will or Codicil
A
- 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.
16
Q
Ademption
A
- 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.
17
Q
Stock Split & Dividends
A
A beneficiary of securities (stock) is entitled to any additional shares acquired by testator as a result of a stock split or dividend.
18
Q
Dependent Relative Revocation Doctrine
A
-
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.
19
Q
Advancements/Satisfaction
A
-
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.
20
Q
Lapsed Gifts & Anti-Lapse Statute
A
- 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:
- that beneficiary is a specified descendant of the testator (specified by statute); AND
- 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).
21
Q
Abatement
A
- 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.
22
Q
Disclaimer
A
- Renouncing a legal right to inheritance.
- An Effective Disclaimer MUST:
- be declared in writing;
- describe the interest or power disclaimed;
- be signed by the person making the disclaimer; AND
- 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).
23
Q
Testamentary Capacity
A
- 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.
24
Q
Undue Influence
A
- 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:
- Testator had a weakness that made him susceptible to influence (physical, mental, financial);
- Wrongdoer had access and opportunity to exert the influence;
- Wrongdoer actively participated in the drafting the will; AND
- An unnatural (unexpected) result occurred.
-
Common Law Presumption→Undue Influence established if:
- A confidential relationship (between testator and wrongdoer);
- Wrongdoer actively participated in the drafting of the will; AND
- An unnatural result occurred.
