Wills

Question 1

What are the requirements for a valid will?

Answer 1

(1) in writing, (2) signed, (3) with present testamentary intent, (4) in the presence of two witnesses

Question 2

What is a holographic will?

Answer 2

(1) in testator’s handwriting, (2) signed by testator, (3) need not be witnessed. To be valid, it must be acknowledged by the testator and signed in the presence of two witnesses, who will also sign within 30 days.

Question 3

What is an elective share?

Answer 3

Surviving spouse can pick that share instead of a gift in the will

Question 4

What law determines the validity of a will?

Answer 4

CL: Where testator was domiciled at death

UPC: (1) where will was executed or (2) where testator is domiciled at death

Question 5

General rule of construction

Answer 5

A will “speaks” as of the time of death.

Courts are reluctant to disturb the plain meaning of a will regardless of mistake. However, if there is an ambiguity, courts allow extrinsic evidence to resolve it.

Question 6

Lapse: CL and statute

Answer 6

CL: if beneficiary dies before testator, gift fails and goes to the residual estate unless the will says otherwise

Statute: if beneficiary dies before testator but has kids, the kids will take unless the will says otherwise

Question 7

Pretermitted heir statutes

Answer 7

Allow testator’s kids to claim a share of the estate even if they were omitted from the will.

While the birth or adoption of a child after the execution of a will does not invalidate the will, such children are typically not provided for in the will. If the testator then dies without revising the will, a presumption is created that the omission of the child was accidental. An omitted child statute does not apply if: (i) it appears that the omission of the child was intentional; (ii) the testator had other children at the time the will was executed and left substantially all of his estate to the other parent of the pretermitted child; or (iii) the testator provided for the child outside of the will and intended this to be in lieu of a provision in the will.

Question 8

Life insurance

Answer 8

Beneficiaries take under the terms of the insurance K. Proceeds are not part of decedent’s estate, unless they are payable to the estate as a beneficiary.

Question 9

Life insurance beneficiary change

Answer 9

Life insurance policies typically provide that proceeds will only be paid to a beneficiary named on an appropriate form filed with the insurance company; other possible methods of changing a beneficiary are thus viewed as being excluded by the insurance contract. However, some courts have upheld a beneficiary change by will if the insurance company does not object.

Question 10

What are the requirements for a will to incorporate another writing by reference?

Answer 10

the other writing: (i) it existed at the time the will was executed; (ii) the testator intended the writing to be incorporated; and (iii) the writing is described in the will with sufficient certainty so as to permit its identification.

Question 11

Order of abatement

Answer 11

Happens when assets of the estate are insufficient to pay debts.

1. intestate property
2. residuary gifts
3. general gifts
4. specific gifts

Question 12

Kids out of wedlock (CL)

Answer 12

The common-law rule was that if a child was born out of wedlock, he could not inherit from his natural father.

Most jurisdictions provide that an out-of-wedlock child can inherit from his natural father if (i) the father subsequently married the natural mother, (ii) the father held the child out as his own and either received the child into his home or provided support, (iii) paternity was proven by clear and convincing evidence after the father’s death, or (iv) paternity was adjudicated during the lifetime of the father by a preponderance of the evidence. Further, the Supreme Court has held that a statute is unconstitutional if it denies inheritance rights to a nonmaterial child when paternity has been established during the father’s lifetime.

Question 13

How do you revoke a will?

Answer 13

(1) subsequent writings, (2) physical destruction, (3) operation of law. Need the act + the intent to revoke.

Question 14

When is a codicil valid?

Answer 14

A codicil must be executed with the same formalities as a will. A validly executed codicil republishes the will as of the date of the codicil.

Question 15

When can a codicil validate a will?`

Answer 15

A validly executed codicil may validate an invalid will if the codicil refers to the will with sufficient certainty to identify and incorporate it, or if the codicil is on the same paper as the invalid will.

A will may incorporate by reference another writing provided the other writing existed at the time the will was executed, is intended to be incorporated, and is described in the will with sufficient certainty so as to permit its identification.

Question 16

Stock dividends

Answer 16

A bequest of stock owned by a testator when the testator’s will is signed excludes subsequently acquired shares of the same stock. A bequest of a certain number of shares is deemed to include any additional shares of that security acquired by reason of a stock split, reinvestment, or merger initiated by the original security. However, the beneficiary is not entitled to any pre-death cash dividends or distributions.

Question 17

Missing or destroyed gifts

Answer 17

Under common law, if the subject matter of a specific bequest is missing or destroyed, the beneficiary takes nothing, not even the equivalent in cash. If the specifically-bequeathed item is not a part of the estate at the testator’s death, it is adeemed.

The Uniform Probate Code created a mild presumption against ademption. The UPC permits a beneficiary of a specific extinct gift to inherit the property acquired by the testator as replacement property or the outstanding balance.

Question 18

Per capita at each generation

Answer 18

1. first living gen with issue of dead person
2. give 1 share for each living issue and 1 share for each issue who died but had kids
3. divide shares from dead person among next generation

Question 19

Per capita with representation

Answer 19

AKA modern per stirpes

Pass each dead person’s share onto their kids

Question 20

Default asset distribution - UPC

Answer 20

Under the parentelic approach, detailed in the UPC, collateral lines are followed until a live taker is found, at which point the decedent’s property is distributed. A decedent’s estate would first pass to the decedent’s parents and their issue (the decedent’s siblings). If there are none, then to the decedent’s grandparents and their issue (uncles, cousins, etc.), and so on.

Under the degree-of-relationship approach, those with closer degrees of relationship to the decedent take to the exclusion of more remote relatives. The degree of relationship is calculated by counting the number of relatives between the living taker and the decedent using the closest common ancestor.

The parentelic approach is used as a tiebreaker in the event that the degree-of-relationship approach results in a tie between living takers, with those in the closer collateral line taking to the exclusion of those more remote.

Question 21

What happens if there is no validly executed will but a validly executed codicil?

Answer 21

The codicil will act as the will.

ADDITIONALLY: A validly executed codicil may validate an invalid will if the codicil refers to the will with sufficient certainty to identify and incorporate it, or if the codicil is on the same paper as the invalid will. A will may incorporate by reference another writing provided the other writing existed at the time the will was executed, is intended to be incorporated, and is described in the will with sufficient certainty so as to permit its identification.

“my will” is not enough

Question 22

Property xfer: if you die with a will? if you die without?

Answer 22

Questions regarding the transfer of personal property from someone who dies intestate or who has a will are governed by the law of the deceased’s domicile at the time of death. Questions regarding the transfer of real property from someone who dies intestate or who has a will are governed by the law of the situs.

Question 23

How do adopted children take under intestate succession?

Answer 23

A parent-child relationship must be established for an individual to be classified as issue of another. Under the UPC and the majority of jurisdictions, adoption establishes a parent-child relationship between the stepparent and child, including full inheritance rights in both directions.

Question 24

Kid out of wedlock

Answer 24

The common-law rule was that if a child was born out of wedlock, he could not inherit from his natural father.

Most jurisdictions provide that an out-of-wedlock child can inherit from his natural father if

(i) the father subsequently married the natural mother,
(ii) the father held the child out as his own and either received the child into his home or provided support,
(iii) paternity was proven by clear and convincing evidence after the father’s death, or
(iv) paternity was adjudicated during the lifetime of the father by a preponderance of the evidence.

It has been held unconstitutional to deny inheritance rights to a nonmarital child when paternity has been established during the father’s lifetime.