Wills

Question 1

Advancement

Answer 1

An 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.

–At common law, a substantial lifetime gift to one of the decedent’s children was presumed an advancement.

–Today, a lifetime gift is presumptively NOT an advancement unless shown to be intended as such.

Question 2

Advancement under the UPC

Answer 2

UPC states, and some non-UPC states, find an advancement only if it is: (1) declared as such in a contemporaneous writing by the donor, or (2) acknowledged as such in a writing by the heir (which need not be contemporaneous).

Question 3

Hotchpotch

Answer 3

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.

–The heir need not return the amount of an advancement in excess of the value of their intestate share.

–Note that there is a similar concept for wills called satisfaction.

Question 4

Advancee Predeceases Intestate

Answer 4

Generally, an advancement is binding upon those who succeed to the estate of the advancee if the advancee predeceases the intestate.

In UPC states, however, an advancement is NOT binding on the advancee’s successors unless the required writing states that it is.

Question 5

Simultaneous Death

Answer 5

A person cannot take as an heir or will beneficiary unless they survive the decedent. Because it is sometimes difficult to determine whether one person survived another, nearly all states have adopted a version of the Uniform Simultaneous Death Act.

–About half the states have enacted the traditional USDA. and the other half have enacted the Revised Uniform Simultaneous Death Act [also known as the “120-hour rule”]

Question 6

USDA

Answer 6

The Uniform Simultaneous Death Act provides that when disposition of property (by will, intestacy, joint tenancy, etc.) depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if they had survived the other. [this effectively keeps each spouse’s property within their side of the family]

–Remember: The USDA applies only if there is no sufficient evidence of survival. Thus, if there is evidence that an heir or beneficiary survived the decedent by even minutes, the USDA does not apply.

Question 7

120-Hour Rule

Answer 7

To avoid the harsh result that may occur under the USDA, many states and the UPC require that a person survive the decedent by 120 hours to take any distribution of the decedent’s property.

Question 8

Per Capita at Each Generational Level

Answer 8

This is the modern trend - a growing number of states and the UPC make the 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.

Thus, persons in the same degree of kinship to the decedent always take equal shares.

• -Cut @ 1st generational level w/ surviving descendant(s)
• -Each person within a generational level receives an equal share

Question 9

Per Capita with Representation

Answer 9

Majority Rule - the 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, and the share of each deceased person at that level passes to their issue by right of representation.

–Divide at the 1st generational level w/ at least 1 surviving descendant

Question 10

Classic Per Stirpes

Answer 10

Minority view - one share is created for each child and one share for each deceased child who has at least one surviving descendant. Each child receives one share and one share passes to a deceased child’s descendants by representation.

This method divides into shares at the child generation even if no child survives the intestate.

–Cut right away at 1st generational level

Question 11

Adoption by Estoppel

Answer 11

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.

However, if the child dies, many states prohibit the stepparent or foster parent from inheriting.

Question 12

Disinheritance Clause

Answer 12

At common law and in most states, a will provision expressly disinheriting an heir is ineffective as to any property passing by intestacy; that is, the will must dispose of everything to effectively disinherit an heir.

–However, under the UPC and statutes in several non-UPC states, a testator may exclude the right of an individual to succeed to property passing by intestate succession (a “negative” will provision). If the person survives the decedent, their intestate share passes as though they had disclaimed it.

Question 13

Disclaimer

Answer 13

In most states, a disclaimer must be written, signed by the disclaimant, acknowledged before a notary, and filed with the appropriate court within 9 months of death.

To be effective for federal tax purposes, the disclaimer must be in writing, irrevocable, and filed within 9 months of the decedent’s death or the beneficiary’s 21st birthday.

–A disclaimer may be made by a guardian on behalf of an infant or incompetent if the court finds that it is in the best interests of those interested in the estate of the beneficiary and is not detrimental to the best interests of the beneficiary.

–An interest cannot be disclaimed if the heir or beneficiary has accepted the property or any of its benefits.

–The disclaimed property passes as if the disclaimant had predeceased the decedent. The disclaimant cannot choose the recipient of the property.

Question 14

Slayer Statute

Answer 14

In nearly all states, a person who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate. The property passes as though the killer predeceased the victim.

–The rule disqualifies the killer from taking any interest or benefit, including insurance proceeds, family allowance, etc. The killer also loses the benefit of the right of survivorship in any property so hold w/ decedent, although the killer does not forfeit their own share.

–A conviction of murder in any degree is conclusive; but courts are divided on how to handle lesser degrees of killing. In the absence of a murder conviction, the court must generally find that the killing was unlawful or intentional by a preponderance of the evidence before applying this forfeiture rule.

–This rule applies only to the decedent, not to their spouse.

Question 15

Codicil

Answer 15

A codicil modifies a previously executed will and must itself be executed with the same formalities. Under the doctrine of republication by codicil, the will and codicil are treated as one instrument speaking from the date of the last codicil’s execution.

–Note: Any addition, alteration, interlineation, or deletion made after the will has been signed and attested is ineffective to change the will unless the will is re-executed with proper formalities (or the changes qualify as a holographic codicil where they are recognized).

–Important: A validly executed codicil is generally viewed as impliedly incorporating a defective will by reference, thus validating the will. Note that an invalid will technically cannot be republished. So even if the word “republish” is used ina codicil, the defective will is instead impliedly incorporated by reference.

Question 16

Basic Requirements for a Valid Will

Answer 16

1) Legal Capacity - testator normally must be at least 18 years old and of sound mind at the time the testator makes a will.
2) Testamentary Capacity - testator must (i) have the capacity to understand that nature of their act, (ii) the nature and extent of their property, (iii) the persons who are the natural objects of their bounty, (iv) and be able to formulate an orderly scheme of disposition.
3) Testamentary Intent - testator must have present intent that the instrument operate as their will.
4) Formalities followed (in writing, signed by the testator, two attesting witnesses who sign in testator’s presence, publication, integration).

Question 17

Interested Witnesses

Answer 17

At common law, a witness who was also a beneficiary was not competent, and the will could not be probated unless there were two other competent witnesses.

All states now provide that the will is still valid, but the bequest to the interested witness may be void under a “purging statute” unless they are supernumerary or would have taken a share as an heir if the will had not been probated.

Note that under the UPC, however, gifts to interested witnesses are not purged.

–This doesn’t apply to creditors, fiduciaries under the will and attorneys. They are not interested, and not disqualified from collecting debts or serving the estate b/c they or their employees witnessed the will.

Question 18

“Presence” Requirement

Answer 18

Some states require the testator to sign the will in the witnesses’ presence, and the witnesses to sign in the testator’s presence. To determine when a person is in another’s presence, most courts use the “conscious presence” test.

Under this test, the presence requirement is satisfied is each party was conscious of where the other parties were and what they were doing, and the act of signing took place within the general awareness and cognizance of the other parties.

Question 19

Scope of Vision Test

Answer 19

Minority view - the presence requirement is satisfied only if the person was in such close proximity that they could have seen the signing had they looked.

Question 20

Attestation

Answer 20

An attestation clause recites the elements of due execution and is prima facie evidence of those elements. It’s useful if a witness forgets or misremembers the facts surrounding the execution.

Question 21

Self-Proving Affidavit

Answer 21

Recites that all the elements of due execution were performed and is sworn by the testator and witnesses before a notary public. It functions like a deposition and eliminates the need to produce the witnesses in court years later.

–Many states authorize the signatures on the affidavit to serve as the signatures needed on the will itself.

Question 22

Harmless Error Rule

Answer 22

Even though a will is not executed in accordance w/ all of the required statutory formalities, the UPC gives the court the authority to ignore harmless errors.

The defectively executed will can be given effect if the will proponent establishes by clear and convincing evidence that the testator intended the document to be their will.

Question 23

Holographic Wills

Answer 23

Is one that is entirely in the testator’s handwriting and has no attesting witnesses. Holographic wills and codicils are recognized by the UPC and a majority of the states. It must be signed by the testator, but doesn’t need to be at the end of the will.

–UPC and most states will accept a will that contains some typewritten text as long as the portion not in the testator’s handwriting is not material.

–Most states will give effect to handwritten changes made by the testator after the will is completed. (but note that changes made to an attested will are usually not given effect and may count as a revocation

Question 24

Devise

Answer 24

A gift of real property, and the recipient is a devisee.

Question 25

Bequest

Answer 25

A bequest is a gift of personal property.

Question 26

Legacy

Answer 26

A legacy is a gift of personal property in a will, usually of money, and the recipient is called a legatee.

Question 27

Specific Devise or Legacy

Answer 27

A specific devise or legacy is a gift of a particular item of property distinct from all other objects in the testator’s estate.

–E.g., “I leave my Sony Computer Model #12345 w/ a serial number 54672 to Walter Bishop”

Question 28

Specific devise of a general nature

Answer 28

A specific devise of a general nature is not distinguishable from the rest of the testator’s estate until the testator dies.

E.g., “I leave my computer to Walter Bishop.”

Question 29

General Legacy

Answer 29

A general legacy is a gift of a general economic benefit payable out of the general assets of the estate without requiring any particular source of payment.

• E.g., “I leave $10,000 to Walter Bishop.”
• Note that a gift of “100 shares of XYZ stock” or “100 acres of property in Smith County” can also be general legacies if the testator never owned those items and intended the executor to purchase them for the beneficiary.

Question 30

Demonstrative Legacy

Answer 30

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

–E.g., “I leave $10,000 to Walter Bishop from my account at Superior State Bank.”

Question 31

Residuary Estate

Answer 31

The residuary estate, and hence a gift of the residue, consists of the balance of the testator’s property after paying (1) debts, expenses, and taxes; and (2) specific, general, and demonstrative gifts.

Question 32

Ademption

Answer 32

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. It only applies to specific devises and bequests.

–Most states follow the “identity” approach so that if specifically bequeathed property is not in the testator’s estate at death, the bequest is adeemed and the beneficiary takes nothing. In most states, the court will not inquire into the testator’s intent or the reason the property is no longer in the estate.

–Can be partially adeemed, e.g., where testator devises a large tract of and land and then conveys a portion of the tract during their life. The beneficiary takes the remaining portion.

–Neither general nor demonstrative legacies are adeemed by an absence of cash or the specific asset in the estate; they will be satisfied by selling (or directly giving) other assets.

–Some states allow the beneficiary to receive replacement property if the testator replaced the gifted item with another another similar item. (some allow to receive the balance of purchase price from purchaser, or to receive a condemnation award or casualty insurance proceeds for the lost of the property is they’re paid after the testator’s death)

Question 33

Ademption by Satisfaction

Answer 33

Beneficiary receives the gifted property before the testator’s death.

Most states require a writing or specific instructions in the will before the gift is deemed a satisfaction. In UPC states, the doctrine does not apply unless the testator provides for satisfaction in the will or a contemporaneous writing, or the devisee acknowledges, in writing, the gift as one in satisfaction. However, a writing is not required if the testator gives specifically described property to the beneficiary; in this case, there is both a satisfaction of the legacy and an ademption.

Question 34

Securities Acquired After Will Execution

Answer 34

At common law, a specific bequest of stock includes any additional shares produced by a stock split but does not include shares produced by a stock dividend.

Today, the UPC and nearly all states also include stock dividends. The beneficiary will also take an increase in securities caused by a merger or corporate reorganization.

–However, the beneficiary does NOT take new securities that have been purchased or acquired by the reinvestment of dividends.

Question 35

Exoneration of Liens

Answer 35

While the common law and some states follow the contrary view, the UPC and a large number of states provide that liens on specifically devised property are NOT exonerated (paid off w/ estate funds) unless the will so directs. This means the beneficiary takes the property subject to the debt.

Question 36

Abatement

Answer 36

Abatement is 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.

If the testator does not set out an order of abatement in the will, testamentary gifts will usually abate in the following order:

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

Within a class, abatement is pro rata. (some states will favor real property over personal property)

Question 37

Anti-Lapse Statutes

Answer 37

Nearly all states have anti-lapse statutes that operate to save the gift if the predeceasing beneficiary was in a specified degree of relationship to the testator (e.g., descendant, parent, or grandparent) and left descendants who survived the testator. These descendants take by substitution. The statute applies unless a contrary provision appears in the will.

–Note: In most states, words of survivorship are considered a contrary will provision, and the anti-lapse statute will not be applied. Under the UPC, however, mere words of survivorship are not sufficient to negate application of the anti-lapse statute.

Question 38

Patent Ambiguity

Answer 38

A patent ambiguity exists if a provision is ambiguous on its face, that is, it fails to convey a sensible meaning. The modern view is that extrinsic evidence is admissible. However, extrinsic evidence cannot be used to fill in blank spaces or supply omitted gifts. (the court cannot write the will for the testator)

Question 39

Latent Ambiguity

Answer 39

A latent ambiguity exists when the language of the will is clear on its face but cannot be carried out w/o further clarification. The court will consider extrinsic evidence to resolve the ambiguity.

Question 40

Incorporation by Reference

Answer 40

Instead of writing something in the will, a testator may incorporate an extraneous document into the will by reference. The effect is that the incorporated material is treated as if it were actually written out in full in the will. To be incorporated by reference in a will:

• The will must manifest an intent to incorporate the document
• The document must be in existence at the time the will is executed; and
• The document must be sufficiently described in the will.

Exception: Many states and the UPC permit a testator to refer in their will to a list specifying the distribution of items of TANGIBLE PERSONAL PROPERTY and to write or alter that list AFTER executing the will.

Question 41

General Power of Appointment

Answer 41

A general power of appointment is a power exercisable in favor of anyone including the donee himself, their estate, their creditors, or the creditors of their estate.

Question 42

Power of Appointment

Answer 42

An authority granted to a person, enabling that person (the donee) to designate the person who shall take the property and the manner in which they shall take it.

–A surviving spouse’s elective share does NOT apply to property over which the deceased spouse held a power of appointment.

Question 43

Special Power of Appointment

Answer 43

Is a power exercisable in favor of a limited class of appointees, which class does NOT include the donee, their estate, their creditors, or the creditors of their estate.

Question 44

Presently Exercisable Power of Appointment

Answer 44

Is one exercisable by the donee during their lifetime.

Question 45

Testamentary Power of Appointment

Answer 45

Is one that is exercisable only by the donee’s will.

Question 46

Creditors and Appointive Assets

Answer 46

Under the theory that the donee does not own the appointive property, if the donee does not exercise their general power the donee’s creditors cannot reach the property.

If, however, the donee exercises the power, even if the donee appoints to another person, the donee’s creditors can reach the appointive property as if the donee were the owner.

–Also, if the donee of the general power is also the donor, the donee’s creditors can reach the appointive assets regardless of whether the donee exercises the power.

Question 47

Residuary Clause and Testamentary POA

Answer 47

In nearly every state, a residuary clause, by itself, does not exercise any POA held by the testator.

–In a minority of states, a will’s residuary clause exercises a general (but not special) POA unless: (1) the donor’s will called for its exercise by a specific reference to the power, or (2) the donor’s will provides for a gift in default of appointment.

Question 48

“Blanket” Exercise of POA

Answer 48

If a person holding a testamentary power executes a will that devises “all the rest and residue of my property, including any property over which I may have a POA” this blanket exercise of any POA will be given effect UNLESS the creator of the power called for the power’s exercise by an instrument that specifically referred to the power.

Question 49

POA Exercise by Implication

Answer 49

The courts will find that a POA (whether general or special) was exercised by implication when the donee purports to dispose of property subject to the power as though it were the donee’s own, meaning that the disposition can be given effect only if it is treated as an exercise of the power.

–An exercise of implication can be found UNLESS the donor called for the power’s exercise by a specific reference to the power.

Question 50

Marriage Following Execution of Will

Answer 50

In most states, marriage following the execution of a will has no effect on the earlier will.

In some states and under the UPC, however, the new spouse takes an intestate share as an “omitted spouse” unless:

• The will makes provision for the new spouse
• The omission was intentional, or
• The will was made in contemplation of marriage

Question 51

Divorce of Annulment: Effect on Will

Answer 51

In most states, divorce or annulment following the execution of a will revokes all gifts and fiduciary appointments in favor of the former spouse. The will remains valid and is read as if the ex-spouse predeceased the testator. (by operation of law) This does not revoke gifts to anyone else (including a gift to the ex-spouse’s child).

–The UPC and some states extend the application of the rule to provisions in favor of the former spouse’s relatives who are not relatives of the testator.

–Divorce must be final. If the parties remarry, the revocation does not occur.

Question 52

Pretermitted Children

Answer 52

Most states have pretermitted child statutes. The purpose is to provide a share for a left-out child on the assumption that the testator would have made a provision for the child had the testator thought about it.

Under these statutes, if the testator fails to provide in their will for any child born or adopted after the execution of the will, the child takes a share computed using statutorily provided formulas.

–In many states, if the entire estate is left to the pretermitted child’s other parent, the child will not receive a forced share.

Question 53

Revocation by Physical Act

Answer 53

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

–Note: The testator must have the intent to revoke, and the intent must be concurrent with the act.

Question 54

Proxy Revocation

Answer 54

The testator may direct someone else to destroy or cancel the will, but under the law of most states, the physical act must be done at the testator’s request and in the testator’s presence.

Question 55

Partial Revocation

Answer 55

Most statutes authorize partial revocation by physical act if there is sufficient evidence that the testator made the changes. Extrinsic evidence is admissible to determine whether a partial or total revocation was intended.

Question 56

Effect of Revocation on Other Testamentary Instruments

Answer 56

The revocation of a will revokes all codicils to it, BUT revocation of a codicil to a will does NOT revoke the entire will.

–When a will has been executed in duplicate, an act of revocation done to EITHER copy revokes the will unless there is evidence that the testator destroyed one copy to prevent confusion realizing that there can be only one “last” will. (however, destruction of an unexecuted copy w/ intent to revoke does not revoke the will)

Question 57

Revocation by Written Instrument

Answer 57

All or part of a will may be revoked or altered by a subsequent instrument that is executed w/ the same formalities as a will.

–The subsequent instrument can expressly revoke the earlier will, or, if the new instrument completely disposes of the testator’s property, the old will is completely revoked by inconsistency. (if it only partially disposes of the testator’s property, the old will is revoked only to the extent of the inconsistent provisions)

Question 58

Lost or Destroyed Wills

Answer 58

If a will is lost or destroyed (and the presumption that the testator revoked it is overcome), it may be admitted to probate if the following can be proven:

(1) valid execution;
(2) the cause of nonproduction (that is, proof that the will was not revoked); and
(3) the contents of the will.

The contents of the will are usually proved by the testimony of at least two witnesses, or by production of a carbon or photocopy of the will.

Question 59

Identity Theory

Answer 59

Under the identity theory applied in most states, the ademption doctrine is an objective test that does not take into account the testator’s probable intent. If the property is not in the estate at the testator’s death, it is adeemed, and the reason it is not in the estate is immaterial.

Question 60

Exception to the Ademption Doctrine

Answer 60

Under a well-recognized exception to the ademption doctrine, if a guardian or conservator is appointed for the testator after the will is executed and the bequeathed property is sold by the guardian, the beneficiary is entitled to the sale proceeds - at least to the extent they have not been expended for the testator’s care.