Wills

Question 1

Intestate succession

Answer 1

occurs when there is valid property from a decedent that is not distributed via an instrument and must be distributed via the state’s applicable laws.:
• If the decedent dies with only a spouse and no children, the the spouse will inherit 100% of the property
• If the decedent is survived by a spouse and descendants, the surviving spouse will inherit one-half or one-third of the decedent’s estate with the surviving descendants inheriting the rest.
• If the decedent is not survived by a spouse the decedent’s surviving descendants will inherit the entire estate equally.
• If there are no descendents or spouse able tto inherit from the decedent then the property will pass to the parents. If there are no parents to take then the property will go to the surviving siblings.

Question 2

Adopted children

Answer 2

adopted children are afforded the same rights that are afforded to natural born children. Meaning, that adopted children can inherit as do biological children.

Question 3

Non-Marital Children

Answer 3

Non marital children are able to inherit under intestacy laws as long as a parent child relationship can be established

Question 4

Half-blood children

Answer 4

Today in most state, half blood children are treated just as equally as whole blooded children.

Question 5

Advancements

Answer 5

Advancements are gifts made by a decedent to an heir during the lifetime of the decedent. These however are not automatic. In order for a gift to be considered an advancement, the decedent would have to acknowledge this fact in writing or the heir has to do the same.

Question 6

Will

Answer 6

A will is an instrument created during the life of a testator, made with certain formalities, that disposes of the testators property at death. It is merely made in anticipation of death and does not create any property interest while the testator is alive. In order for the will to be valid it must be in writing, signed by the testator and by two disinterested witnesses

Question 7

Holographic Will

Answer 7

a holographic will is a handwritten will that is signed by the testator but not properly witnessed. Most states do not recognize holographic wills but the states that do require them to be signed by the testator

Question 8

Incorporation by reference

Answer 8

A document may be incorporated into a will provided that: It is in existence at the time of execution, it is sufficiently described in the will, and the will manifests an intent to incorporate into the will.

Question 9

Integration of documents

Answer 9

Documents are allowed to be included into the will. In order for documents to be included into a will, there has to be an intent for the document to be included into the will and the document has to be physically present.

Question 10

Revocation by subsequent instrument

Answer 10

A will can be revoked by a subsequent written instrument that is executed for the sole purpose of revoking the prior will; or a subsequent will containing a revocation clause or provisions that are inconsistent with those of the prior will.

Question 11

Revocation by cancellation:

Answer 11

A will can be revoked if the testator tears, burns, destroys the will with the intent to revoke the will. If the testator plans to revoke the will by writing on itt, the common law says the revocation must touch the writing of the will, while the UPC states that it just must touch the document.

Question 12

Partial Revocation

Answer 12

In most states, marks of cancellation such as lines through certain provisions of a will, are presumptions that the testator did so with the intent to revoke.

Question 13

Dependent relative revocation

Answer 13

Under DRR the valid revocation of a will may be ignored if the will was revoked under the mistaken belief of law or fact. The testator can revive an earlier will or create a new will.

Question 14

Lapsed Legacies

Answer 14

If a beneficiary is named in a will predeceases the testator, the devise to the beneficiary lapses into the estates residue unless it is saved by the states anti lapse statute.

Question 15

Anti lapse statute:

Answer 15

Under anti laps statutes, diveses to a predeceased beneficiary will pass to the decedents of the beneficiary.

Question 16

Slayer Statutes

Answer 16

A person who feloniously and intentionally kills the decedent is barred from claiming a gift in the will. The decedent’s estate will be distributed as if the beneficiary predeceased the testator

Question 17

Disclaimers:

Answer 17

A beneficiary under a will can disclaim or renounce or renounce his interest under a testator’s will causing the gift tto pass as though they predeceased the testator. A valid disclaimer must be in writing signed by the disclaimer, describe the interest being sufficiently disclaimed and be delivered

Question 18

Ademption

Answer 18

Under the doctrine of ademption, if the subject matter of a specific devise is not in the estate at the time of the testator’s death, the devise to the beneficiary adeems or

fails. However, the beneficiary is entitled to:
1. Any property in the testator’s estate, which the testator acquired as a replacement for the specific devise; OR
2. A monetary devise equal to the value of the specific devise.

Question 19

Abatement

Answer 19

where a testator’s estate is not sufficient to pay all of the devises made by the testator, some of the gifts must then be extinguished or reduced. Priority order goes from Intestate property, residuary gifts, general gifts of money, and specific gifts of non monetary assests

Question 20

Stock splits:

Answer 20

: Under the common law, a stock dividend constitutes a property interest that is separate from shares of stock received through a specific devise. Under this rule the beneficiary would not receive additional shares that comes from dividends. However, under the majority view, beneficiaries are entitled to additional shares that were obtained by stock splits or dividends.

Question 21

Devisies to class

Answer 21

A testator may make a devise to a class of people. The class of persons my increase or decrease during the testators lifetime and if an individual within the class dies, their share of the gift will be shared among the class.

Question 22

Pretermitted children

Answer 22

Pretermitted children are children who have accidentally been omitted from the will. Pretermitted children are entitled to the share that they would get had the testator died intestate as long as the omission was not intentional

Question 23

Capacity

Answer 23

A will is invalid if the testator lacked mental capacity when the will was executed. To prevail in a will contest for lack of capacity, the contestant must prove that the testator did not know or understand the nature or the extent of the property; the persons who are the natural objects of his bounty and; the disposition he was making of his property.

Question 24

Undue Influence:

Answer 24

A will is invalid if the testator executed the will while under undue influence. Undue influence occurs when a person exerts such control and influence over the mind of the testator as to overcome their free will. They must prove that:

1. The testator was susceptible to undue influence;
2. The wrongdoer had the opportunity to exert undue influence;
3. The wrongdoer actively participated in drafting the will; and
4. The will evidences a result that appears to be the effect of undue influence.

Question 25

insane delusion rule

Answer 25

a party contesting the will must show that at the time the
will was executed, the testator was subject to an insane delusion, the testator
unreasonably believed the insane delusion, and that the insane delusion influenced the
will.

Question 26

standing to contest a will

Answer 26

A relative has standing to contest a will when they can show they would have been a beneficiary absent the will