Wills

Question 1

Will substitutes

Answer 1

Will substitutes include life insurance, joint tenancies or tenancies by entirety, inter vivos trusts, bank account trusts, deeds, contracts, and inter vivos gifts, including gifts causa mortis.

Question 2

Totten Trust

Answer 2

A Totten trust is a deposit of money in a bank account in “trust” for another person. The depositor retains complete control over the account during their lifetime, and the transfer
is complete only upon their death. Totten trusts are accounts; they are not true trusts.

Question 3

Joint Accounts

Answer 3

A bank account deposit in the name of two or more persons “with right of survivorship” is generally effective to give the survivor the absolute right to all of the money. However, under the UPC, creditors can reach the money in a joint account, to the extent that the decedent deposited money in the account, if the other estate assets are insufficient to satisfy their claims. Even at common law, creditors can reach the joint account if it was opened for the decedent’s convenience and no survivorship feature was intended.

Question 4

Intestate Succession

Answer 4

• A decedent dies without having made a will or their will is denied probate (“total intestacy”)
• A decedent’s will does not dispose of all of the decedent’s property, either because a gift has failed or because the will contains no residuary clause (“partial
intestacy”)

Question 5

Intestacy: choice of law

Answer 5

Personal property: law of decedent’s domicile at death

Real property: situs of property

Question 6

Intestacy: Descendants and survivorship

Answer 6

SPOUSE ALIVE, AND

Descendants survive: In states adopting the Uniform Probate Code (“UPC”), the surviving spouse takes the entire estate if the decedent is survived by descendants, all of whom are descendants of the surviving spouse, and the surviving spouse has no other surviving descendant.

No descendants survive:

• most states: spouse takes entire
• UPC: spouse only takes entire fi decedent not survived by decscendants or parents

SPOUSE DEAD,

Descendants: entire estate passes to the decedent’s children and descendants of deceased children.

No descendants:

Question 7

Classic per stirpes (small minority of states)

Answer 7

Under the classic (or strict) per stirpes distribution of the common law, 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.

Question 8

Per Capita with Representation (majority rule!)

Answer 8

In most states, a decedent’s descendants take their shares per capita with representation, which means 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.

If all children are deceased and all property is going to the grandchildren, each grandchild takes an equal share rather than the share (or part of the share) the parent would have taken had the parent survived.

Question 9

Per Capita at Each Generational Level

Answer 9

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. Persons in the same degree of kinship to the decedent always take equal shares.

Thus, if some children are alive and others dead, each child will take an equal share (as with per capita by representation), but the remaining property is pooled and each grandchild will receive an equal share.

Question 10

Intestacy: Different Types of Kids

Answer 10

Adopted Children: treated same as bio kids

Stepchildren + Foster children: no inheritance rights unless adopted by stepparent or foster parent (but see adoption by estoppel, legal custody gained under an unfulfilled agreement to adopt child)

Nonmarital Children: always inherits from mother, generally will inherit from father.

Half Bloods/Whole Bloods: generally treated the same under UPC and most states and whole bloods

Posthumous children: can be statutory (designated time period), or common law (usually inherits if in gestation at time of testator’s death)

Question 11

Disinheritance clause

Answer 11

ineffective as to any property passing through intestacy–must dispose of allll property in will to effectively disinherit her.

Question 12

Advancement of Intestate Share

Answer 12

Common law: was presumed to be advancement and then counted against what they would get

Modern majority: lifetime gift presumptively NOT an advancement unless shown to be intended as such.

Question 13

Simultaneous DEATH

Answer 13

USDA: The USDA 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. (only applies if no evidence at all if one survived the other!)

120-Hour rule: 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 14

Disclaimer of Property

Answer 14

In most states, a disclaimer must be:

(1) written,
(2) signed by the disclaimant,
(3) acknowledged before a notary, and
(4) filed with the appropriate court within nine months of death (although the time period may vary).

***A disclaimer may be made by a guardian on behalf of an infant or incompetent, or a personal representative on behalf of a decedent 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.

Question 15

Slayer Statute

Answer 15

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.

*absent conviction, proof of killing is preponderance

Question 16

Wills: Choice of Law

Answer 16

To determine whether admitted to probate:

Real property: The validity and effect of a will with respect to real property are determined by the law of the state where the property is located.

Personal property: With respect to personal property, the validity and effect of a will are determined by the law of the testator’s domicile at the time of death.

After admitted to probate:

local law governs construction and application

Question 17

Testamentary intent and capacity

Answer 17

Intent

• must be 18 and of sound mind (less than 18 if married/military)
• present intent that operates as will:
  
  • intended to dispose of the property
  • intended the disposition to occur only upon death
  • intended that instrument in question accomplish disposition

Capacity

• determined at time of will’s execution.
• just bc old, sick, drugs, doesn’t mean no capacity–just need to meet 4 below reqs:

1. nature of their act
2. nature and extent of their property
3. persons who are natural objects of their bounty
4. understand all of above and formulate and orderly scheme of disposition

Question 18

Execution of a will: formalities

Answer 18

1. in writing
2. signed by testator (or another in the testators direction and in their presence)
3. two attesting witnesses
4. The testator sign the will (or acknowledge their previous signature or acknowledge the will) in each of the witnesses’ presence; and
5. The witnesses sign in the testator’s presence

most states use conscious presence test: each party is aware of where others are, what doing, and signing took place within the general awareness and cognizance of other parties. Zooming or phone calling in not ok

Some states require:

• The testator must sign at the end of the will
• The testator must “publish” the will (that is, declare to the witnesses that the document is the testator’s will); and
• The witnesses must sign in the presence of each other

Note on witnesses:

• all states say that will is valid if interested witness signs, but their interest might be void under purging statute, unless would be heir w/o will.
• creditors, fiduciaries, and attorneys not “interested”
• UPC says gifts to interested witnesses not purged.

Question 19

Holographic Wills

Answer 19

1. all material portions in testator’s handwriting
2. signed by testator (need not be at end)

*most states recognize handwritten changes made after will completed

Question 20

Property classifications

Answer 20

Devise: real property

bequest: personal property

• specific: particular item in estate distinct form all others
• general: gift of gen economic benefit payable out of assets of estate

Legacy: gift of personal property, usually money

• demonstrative legacy: gift of general amount to be paid from specific fund. If can’t fulfill gift, will be paid from other assets

Residuary estate: whatever is left after debts, expenses, taxes, specific, general and demonstrative gifts paid out

Question 21

Ademption by Extinction

Answer 21

Ademption refers to the failure of a gift because the property is no longer in the testators’ estate at the time of their death.

Applies only to specific devises and bequests.

Identity approach: if specifically bequeathed property is not in the testator’s estate at death, the bequest is adeemed and the beneficiary takes nothing

Question 22

Partial Ademption

Answer 22

A gift may be partially adeemed, as where the testator devises a large tract of land and then conveys a portion of the tract during their life. The beneficiary takes the remaining portion.

Question 23

Exceptions to Ademption Doctrine

Answer 23

1. replacement property
2. balance of purchase price
3. proceeds of condemnation award or insurance
4. proceeds from sale by guardian or conservator

Question 24

Ademption by satisfaction

Answer 24

A testamentary gift may be satisfied in whole or in part by an inter vivos transfer from the testator to the beneficiary after the execution of the will, if the testator intends the transfer to have that effect.

**most states require writing or specific instructions before gift deemed satisfaction, but if specifically described property is given, then satisfaction of legacy and admeption.

Question 25

Stock splits and dividends

Newly purchased securities

Answer 25

a. Stock Splits and Stock Dividends

• 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.
• 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.

b. Newly Purchased Securities

The beneficiary does not take new securities that have been purchased or acquired by the reinvestment of dividends.

Question 26

Exoneration of Liens

Answer 26

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 with estate funds) unless the will so directs. This means the beneficiary takes the property subject to the debt.

Question 27

Order of Abatement

Answer 27

Definition: abatement is the process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all clams against the estate and satisfy all bequests and devises.

Order:

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

Question 28

Anti-Lapse Statutes

Answer 28

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 (for example, descendant of the testator, the testator’s parent, or the testator’s grandparent) and left descendants who survived the testator. These descendants take by substitution. The statute applies unless a contrary provision appears in the will.

• Majority: related to testator by blood=majority
• Smaller minority= descendants of testator’s parent, few apply to ALL predeceasing beneficiaries in will.
• UPC= predeceasing beneficiary who is testator’s stepchild, grandparent, or descendant of the testator’s grandparent.
• almost none: testator’s pre-deceased spouse, even if they left children.

Question 29

Class Gifts in a will

Answer 29

If a will makes a gift to a class, only hte class members who survive the testator take a share of hte gift, unless hte will provides otherwise or the anti-lapse statute’s requirements are met.

Question 30

Beneficiary Dead when will executed

Answer 30

If a will makes a gift to a beneficiary who was dead at the time the will was executed, the gift is void. In many states, the rules that apply to lapsed gifts also apply to void gifts.

Question 31

UPC Harmless Error Rule

Answer 31

• UPC gives the court the authority to ignore harmless errors.
  
  • defective executed wills
  • attempted revocation
  • attempted alternation
• The defectively executed, revoked, altered 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 32

Patent ambiguity (obvious)

Answer 32

Traditional view: Extrinsic evidence not admissible to correct a patent ambiguity

Modern view: extrinsic evidence IS ADMISSaBLE (can’t be used to fill in blanks or supply omitted gifts)

Question 33

Latent Ambiguity (hidden)

Answer 33

Extrinsic evidence will be considered

Question 34

No Apparent Ambiguity (Mistake)

Answer 34

When a provision is clear on its face and can be carried out but a beneficiary or other interested person thinks T made a mistake.

Plain meaning rule (traditional) : extrinsic evidence cannot be used to disturb clear meaning.

Modern rule: more liberal and allows extrinsic evidence to assist court to carry out testator’s intent

Question 35

Incorporation by reference

Answer 35

(1) will manifests an intent to incorporate the document
(2) document is in existence at the time the will is executed

**many states + UPC exception that allows to refer in their wi to a list identifying tangible personal property and write alter list after executing will.

(3) the document is sufficiently described in the will

BL: the language of the will must refer to the extrinsic document in such way that it may be reasonably identified, and the document must correspond to the description in the will.

Question 36

Republication by Codicil

Answer 36

Codicil modifies a previously executed will. Requirements:

1. must be executed with same formalities as will
2. the first will and codicil are treated as one instrument speaking form the date of the last codicil’s execution.

**a previously invalid will cannot be “republished” by codicil, but it can be incorporated by reference if (1) in existence when codicil executed, (2) sufficiently described writing, (3) manifests intent to incorporate.

Question 37

Pour over gift into inter vivid trust

Answer 37

• A pour-over provision is a provision in a will making a gift to an inter vivos trust.
• Most states have adopted the Uniform Testamentary Additions to Trusts Act, which permits a testator to make a gift to a trustee of an inter vivos trust notwithstanding the fact that the trust may be amended or revoked after execution of the will.
• The trust may be created before or after the testator executes the will.

Question 38

Pour over gift into inter vivos trust

Answer 38

• A pour-over provision is a provision in a will making a gift to an inter vivos trust.
• Most states have adopted the Uniform Testamentary Additions to Trusts Act, which permits a testator to make a gift to a trustee of an inter vivos trust notwithstanding the fact that the trust may be amended or revoked after execution of the will.
• The trust may be created before or after the testator executes the will.

Question 39

Contractual will

Answer 39

A contractual will is a will executed or not revoked as the consideration for a contract. A contract to make, not to make, or not to revoke a will is valid.

(1) contract law rules
(2) must be consideration
(3) modern law requires a writing, and many states enacted statutes requiring these contracts to be in writing or specifically mentioned in will.
(4) no presumption of contract: the execution of joint or mutual wills does NOT RAISE A presumption that the wills were executed pursuant to a promise by each party not to revoke.
(5) can revoke by agreement while both parties alive, but irrevocable upon first testator’s death
(6) constructive trust will be granted in favor of beneficiaries of contractual will only if survivor disposes of property in breach of agreement after first party dies in compliance with agreement.

Question 40

Marriage following execution of will

Answer 40

Most states: marriage following execution of will has NO EFFECT on earlier will.

UPC: spouse takes an intestate share as an “omitted spouse”

Question 41

Divorce/Annulment

Answer 41

• all provisions in favor of a former spouse are revoked, even appointments as executor, guardian, or trustee.
• UPC and some non-UPC states extend the application of the rule to provisions in favor of former spouses’s relatives.
• Divorce must be final

Question 42

Pretermitted Children

Answer 42

The purpose is to provide a share for a left out child on the assumption that the testator would have made 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.

Question 43

Revocation by physical act

Answer 43

(1) Act: can be done by burning, tearing, cancelling, obliterating a material portion of the will
(2) Intent:** must be intent to revoke that is **concurrent with the act.
(3) Testator can have someone else destroy or cancel the will, but under the law of most states, the physical act must be done (a) at testator’s request, or (b) in his presence.

Question 44

Partial revocation by physical act

Answer 44

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 45

More on revocation

Answer 45

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

Question 46

Revocation by written instrument

Answer 46

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

• Express revocation: subsequent instrument can expressly revoke
• Revocation by inconsistency: If the new instrument completely disposes of the testator’s property, the old will is completely revoked by inconsistency. If the new instrument partially disposes of the testator’s property, the old will is revoked only to the extent of the inconsistent provisions.

Question 47

Lost or Destroyed Wills

Answer 47

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

1. valid execution
2. cause of non-production
3. contents of the will

Question 48

Revival of Revoked Wills

Answer 48

• Testator executes valid Will 1.
• Testator executes valid Will 2 which expressly revokes Will 1.
• Testator then validly revokes Will 2.
• Is Will 1 revived?

Majority + UPC approach:

• Will 2 wholly revoked will 1: Will 1 remains revoked unless evidence from circumstances or testator’s statements that the testator intended to revive previous will.
• Will 2 partially revoked will 1: revoked provisions re revived unless evidence from circumstances or statements that testator did not intent to revive.

Question 49

Conditional Revocation

Answer 49

1. Express conditional revocation: may state in revoking instrument that a revocation is effective on happening of named event
2. Implied conditional revocation (dependent relative revocation):

• Testator executes valid Will 1.
• Testator validly revokes Will 1 (for example, by ripping it up).
• Testator executes Will 2, but Will 2 is invalid (for example, because it was not properly witnessed).

DDR applies when testator revokes will under the mistaken belief that another disposition of their property would be effective, and but for this mistaken belief, testator would not have revoked hte will. If the other disposition fails, the revocation also fails and the will remains in force.

Question 50

Family Protection

Answer 50

1. Spousal elective share
2. Pretermitted child statutes
3. Homestead
4. family allowance
5. exempt personal property

Question 51

Will contests (general requirements)

Answer 51

1. Make sure filed within SoL
2. Must give notice to all legatees and intestate heirs
3. only interested parties have standing (includes beneficiaries of prior wills)
4. contestants have burden of proof

Question 52

Insane delusion

Answer 52

An insane delusion is a belief in facts that do not exist and that no rational person would believe existed. Insane delusion destroys testamentary capacity only if there is a connection (nexus) between the insane delusion and the property disposition.

Question 53

Undue influence

Answer 53

Start with:

A. Will contestants have the burden of proof.

B. Must prove that:

1. influence existed and was exerted
2. effect of the influence was to overpower the mind and free will of the testator (so that the will reflects the desires of the person exerting influence instead of testator)
3. resulting disposition would not have been executed but for the influence

C. However, presumption of undue influence will arise if:

1. there was a confidential rel. between testator and beneficiary and
2. the beneficiary was active in procuring, drafting, or executing the will.

D. Once elements of presumption are shown, burden shifts to proponent of the will. If cannot create presumption, shifts back to contesters to show undue influence.

E. Evidence that courts will look at:

1. unnatural dispositions
2. opportunity or access to testator
3. confidential or FD rel. between parties
4. ability of testator to resist
5. beneficiary’s involvement in drafting or execution of will.

OTHER:

• circumstantial evidence that testator weak AF is not enough
• • duress is a form of undue influence but connotes violence

Question 54

Fraud

Answer 54

Two main categories of fraud re wills:

Either (1) a misrepresentation is made as to the nature or contents of the instrument (fraud in the factum), or (2) the testator is induced into making a will or gift by misrepresentations of fact that influence her motivation (fraudulent inducement).

Successful ground requires testator has been willfully deceived as to (1) character or content of the instrument, (2) extrinsic facts that would induce the will or a particular disposition, (3) facts material to a disposition.

Fraud elements;

1. false rep made to testator
2. knowledge of falsity by person making statement
3. testator reasonably believed the statement
4. statement caused testator to execute a will or make a particular disposition the testator would not have made but for misrepresentation.

Question 55

Mistake

Answer 55

Mistake in execution: didn’t know was signing a will. Lacks testamentary intent. Extrinsic evidence allowed.

Mistake in inducement: testator is mistaken as to some extrinsic fact and makes will based on that erroneous fact. No relief usually given unless fraud.

Question 56

No contest clause

Answer 56

Majority rule: no forfeiture if probable cause for contesting will. Under the UPC and in most states, a no-contest clause is valid and will be enforced unless the beneficiary had probable cause for bringing the contest.

Question 57

Primary Probate jurisdiction

Answer 57

Primary probate jurisdiction is in

the state of the decedent’s domicile at the time of death.

Ancillary jurisdiction may be wherever the decedent’s assets

are located.

Question 58

Creditor’s claims

Answer 58

Claims are generally paid in the following order:

(1) administration expenses,
(2) funeral expenses and expenses of the last illness,
(3) family allowance,
(4) debts given preference under federal law,
(5) secured claims,
(6) judgments entered against the decedent during his lifetime,
(7) all other claims.

Question 59

Duties of Personal Rep

Answer 59

The primary functions of the personal representative are to:

(1) give notice to devisees, heirs, and claimants against the estate;
(2) discover and collect the decedent’s probate assets and file an inventory;
(3) manage the assets of the estate during administration;
(4) pay expenses of administration, claims against the estate, and taxes; and
(5) distribute property.

They have fiduciary duties!!!!!

Question 60

Three ways to satisfy fourth amendment prohibition against unreasonable search and seizure:

Answer 60

1. Valid warrant + proper execution (probable cause, particularity, issued by unbiased magistrate)
2. Good faith or reasonable mistake by the officer (not present if there are serious issues with the affidavit [officer lied], search warrant, or magistrate [biased])
3. Exceptions exist (there’s ASPACE for ussssssss)

Question 61

Exceptions to warrant requirement (ASPACE)

Answer 61

1. Automobile exception: officers can search an auto if they probable cause to believe that evidence, instrumentalities, or fruits of a crime exist within it. If parked in D’s driveway, they can’t…need warrant. Probable cause necessary to justify warrantless search can occur after car is stopped!
2. Search incident to arrest: at time of a lawful arrest (or contemporaneous with it), an officer may conduct certain searches of the arrestee (person, clothing, wingspan, grazable space), without a warrant in order to keep officer safe and to preserve evidence. If arrest unlawful, so is search.

• if D in auto, can search passenger compartment only IF (a) arrestee unsecured and still may gain access to vehicle interior OR (b) the police reasonably believe that evidence of the offense for which person was arrested may be found in vehicle.
  3. Plain view: an officer who is lawfully present in the area that he is in if he (1) discovers evidence, fruits, or instrumentalities of crime or contraband, (2) such evidence is in plain view, and (3) officer has probable cause to believe (must be immediately apparent), that item i contraband or a fruit or instrumentality of crime.
  4. Administrative search: officers can search (1) arrestees and impounded vehicles, (2) public school officials can search upon reasonable suspicion, (3) random drug testing permitted for public school children involved in any extracurricular
  5. Consent: if one with actual of apparent authority to consent gives consent voluntarily, officers may search the areas to which they understand consent to extend.
  6. Emergency Circumstances: (1) officer in hot pursuit (must be probable cause to believe suspect has committed crime and is in particular place), (2) serious injury or threat of injury, or (3) evidence of a crime likely will disappear before a warrant can be obtained.

Terry Frisk: only reasonable suspicion needed.

Question 62

Lapsed residuary gifts

Answer 62

At common law and in one states, if a testator’s residuary estate is bequeathed to two or more beneficiaries and of the shares lapses, that share “falls out of the will” and passes by intestacy. (ex: Doris and Harriet. Harriet gift fails. ½ share passes through intestacy).

Most states have replaced rule by statute, under which the lapsed share passes to the other residuary beneficiaries in proportion to their interests in the residue. (Ex: Doris and Harriet. Harriet gift fails. All goes to Doris).

Question 63

Void wills

Answer 63

• A will is void in its execution if its producers by undue influence. If only part of the will was so procured, only that part is void, and the remainder of the will is in effect.