Wills

Question 1

Intestate Succession

Answer 1

Intestacy is the default statutory distribution scheme. It applies when, as here, an individual dies without disposing of his property through a valid will.

Question 2

In intestacy, what is the spouses share if the decedent is survived by: Just spouse

Answer 2

Spouse takes everything.

Question 3

In intestacy, what is the spouses share if the decedent is survived by: spouse and shared descendants?

Answer 3

UPC: Spouse takes entire estate

Most States: Spouse and Issue receive certain %.

Question 4

In intestacy, what is the spouses share if the decedent is survived by: Spouse + parents but no descendants

Answer 4

Spouse takes 300k and 75% of the remaining estate

Question 5

In intestacy, what is the spouses share if the decedent is survived by: Spouse + shared descendants + spouse’s nonshared kids

Answer 5

Spouse takes 225k and 50% of the remaining estate

Question 6

In intestacy, what is the spouses share if the decedent is survived by: Spouse + non-shared kids

Answer 6

Spouse takes 150k and 50%

Question 7

No Spouse?

No Spouse or Issue?

Answer 7

No spouse: goes to issue

No spouse or issue: surviving parents, and if no parents, surviving issue of parents.

Question 8

Per capita with representation is when (Modern Per Stirpes) (Majority):

Answer 8

the estate is divided at the first level with surviving members and the shares of those who are deceased in that generation drop down to the surviving issue at the next generation.

Question 9

Per capita at each generation is (UPC)

Answer 9

Estate divided at first level with surviving member then remaining is pooled and redivided to issue at next level.

Question 10

Issue:

Answer 10

Issue refers to lineal descendants of the decedent, including children, grandchildren, and great- grandchildren.

A parent-child relationship must be established for an individual to be classified as issue of another.

Question 11

Can you disinherit a child?

Answer 11

Yes in a properly executed will.

Question 12

Will Execution Formailities

Answer 12

A will is valid if there is Intent and Capacity (over 18) and 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 13

Interested Witnesses

Answer 13

• 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 14

Dispensing Power

Answer 14

For states that follow the Uniform Probate Code (UPC), courts may use their dispensing power to save an invalid will so long as there is clear and convincing evidence that the decedent intended the document to be their will.

Question 15

What happens if there is a failure to satisfy formalities of will execution?

Answer 15

at common law the will is invalid.

modern view allows substantial compliance, i.e. if there is clear and convincing evidence that the document was intended to be a will it will be admitted to probate.

UPC Harmless Error Rule An improperly executed will is valid if:

1) proven by clear and convincing evidence; AND
2) that decedent intended the writing to be his will.

Question 16

Codicil

Answer 16

• 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 17

Holographic Will

Answer 17

• 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 18

Incorporation By Reference

Answer 18

• 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 19

Revocation by Physical Act

Answer 19

• 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 20

Revocation by Subsequent Will or Codicil

Answer 20

• 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 21

What is Dependent Relative Revocation Doctrine?

Answer 21

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 but for the mistaken belief that another will he prepared would be valid.

− A court considers the testator’s intent when determining if the doctrine is applicable.

Question 22

Revival of an Earlier Will

Answer 22

Common Law: Automatically revived if a subsequent will was revoked.

Modern View: Revival permitted only when:

a) Will is revoked by physical act and testator intended its revival; OR
b) Will is revoked by a subsequent instrument and that will is later republished by a subsequent will or codicil.

UPC: Automatically revived BUT ONLY IF the will was partially revoked by a subsequent instrument (unless no testator intent to revive).

Question 23

Legal Definition of Children

Answer 23

• 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 24

Advancements/Satisfaction

Answer 24

• 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 25

Simultaneous Death

Answer 25

If no proof by clear and convincing evidence that one person survived the other by 120 hours (5 days), then the property is distributed as if that person predeceased the other person.

− It’s presumed that each person outlived the other when distributing assets.

− When property is held as joint tenants → rights of survivorship are severed, and the property passes as if held by tenancy in common.

*RUSDA = Revised Uniform Simultaneous Death Act

Question 26

Lapsed Gifts & Anti-Lapse Statute

Answer 26

• 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 27

Ademption

Answer 27

• 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 28

Stock Split & Dividends

Answer 28

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

Question 29

Abatement

Answer 29

• 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 30

Slayers Statutes

Answer 30

• 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 31

Disclaimer

Answer 31

• 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 32

Testamentary Provisions Revoked Upon Divorce

Answer 32

• 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 33

Class Gift

Answer 33

Is a gift to a group of persons described collectively.

− Class generally closes when testator/settlor dies.

− Rule of Convenience: class is closed when any member of the class is entitled to possession of the gift.

Gifts to Predeceased Class Members depends on the language used:

− If individual members are named (i.e. Tom, Mary, & Joe”), gift will lapse, unless an anti– lapse statute applies.

− If named as a group, gift is divided among the other members (unless the will states otherwise or an anti-lapse statute applies).

Question 34

Inheritance Rights of Children

Answer 34

Generally, a child has NO inheritance rights if a parent leaves the child out of the will (except pretermitted children).

A child intentionally omitted from a will is NOT entitled to a share of decedent’s estate.

− BUT, if a portion of the will fails, then the child may still be entitled to their intestate share (unless the will intentionally disinherits the child).

Question 35

Pretermitted Children

Answer 35

• 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 36

Spouse’s Elective Share

Answer 36

• 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 37

Testamentary Capacity

Answer 37

• 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 38

Undue Influence

Answer 38

• 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.

Question 39

Durable Healthcare Power of Attorney

Answer 39

• 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.