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Wills Flashcards

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1
Q

Intestate succession

A

Death without a will

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2
Q

Intestate Distribution

A
  1. Spouse
  2. Children/ Descendants
    If no spouse/ children
  3. Parent
  4. Siblings & their descendants (UPC: if 1 living parent & sibling, parent gets entire estate)
  5. ½ to paternal & material grandparents and descendants
  6. ½ to paternal & maternal “nearest kin”
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3
Q

Why does property pass by intestate succession?

A
  1. Dies without will
  2. Will denied probate
  3. Does not dispose of all property
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4
Q

What intestacy law applies?

A

Personal property: Decedent’s domicile at death

Real property: stitus of the property

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5
Q

Which law determines what marital right applies?

A

Law of domicile where property was acquired

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6
Q

Spouse - Common law

A

Widow: Dower – 1/3 of real property
Widower: curtesy – life estate in real property if child is born in marriage

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7
Q

Spouse - Modern Law

A

Descendants survive: 1/3 or ½ of property to spouse

No descendants survive: entire estate

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8
Q

Spouse - UPC

A

Decedents survive + all are descendants of surviving spouse: entire estate
Descendants do not survive: entire estate if not survived by parents either

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9
Q

Children - Intestate share of children

A
  • Per stirpes

- Per capita w/ representation

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10
Q

Classic per stirpes

A

1 share for each living child + share for each deceased child with at least one living heir

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11
Q

Per Capita w/ Representation

A

Majority
Equal shares at the first generational level with living takers (ie if all children dead, all grand children have qual shares)

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12
Q

Per capita at each generational level

A

UPC

Equal shares for each generational level (all living children/ all living grandchildren receive the same)

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13
Q

Adopted children – inheritance of biological parents

A

Only if adoptive parent marries bio parent or adopted by close relative
No distinction between adult/childhood adoption

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14
Q

Adoption by estoppel

A

Foster/step child may inherit when legal custody of child gained under unfulfilled agreement to adopt;
Step parent/ foster parent cannot inherit if child dies

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15
Q

Nonmarital children may inherit from

A
  • Always from mother
  • Father if:
    1. Father married to mother at birth
    2. Paternity suit
    3. After death, man proved by clear & convincing evidence to be father
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16
Q

Posthumous children

A

Split

  • Hier if in gestation at death
  • If borth within 2 years
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17
Q

Effect of disinheritance cluse on intestate distribution

A

CL: No effect on property passing through intestacy
Trend: will be effective

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18
Q

Advancement

A

A lifetime gift intended to be applied against share to be inherited
CL: Substantial gift presumed to be an advancement
UPC: Advancement only if:
1. Declared in contemporaneous writing OR
2. Acknowledged in writing by heir (not contemporaneous)

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19
Q

Transfer of advancement in excess of inheritance

A

No need to return

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20
Q

Effect of simultaneous death

A

Cannot take as an heir/ beneficiary unless they survive decedent.
If no sufficient proof of survival:
- USDA Rule: deem parties to survive each other
- party not deemed to predecease if they survive longer than 120 hours

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21
Q

Can you reject?

A

Heirs/beneficiaries/ etc. can reject inheritance/gift by disclaiming
Why? Burensom, x, avoid creditors

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22
Q

How to disclaim?

Tax vs. states

A

Tax

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23
Q

Can incompentents disclaim/

A

Yes by guardian if in bet interest ofthose interested & not detrimental to the beneficiary

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24
Q

When is it too late to disclaim?

A

After acceptance

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25
Q

Effect of disclaimer

A

As if they predeceased

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26
Q

Effect of bfy/heir killing decedent

A

Slayer statute – one who feloniously & intentionally brings about death of decedent forfeits interest in estate; treated as if predeceased// imposition of constructive trust// Forfeit’s other’s share if right of survivorship
- sometimes eliminates slayer’s decednats from taking either

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27
Q

Evidence of killing

A

Murder: as if predeceases
Lesser charges: divided
Preponderance of the evidence: predeceases

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28
Q

Types of Valid Will

A 
Holographic Will (all or most be in handwriting & signed)
Formal Will requirements
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29
Q

Revocable?

A

Revocable during lifetime/ operative at death

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30
Q

“Codicil”

A

Later testamentary instrument that amends, laters, modifies previously executed will

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31
Q

Republication by codicil

A

Will treated as being executed/ republished on date of last validily executed codicil
First will must have been validily executed even if not valid.

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32
Q

Compliance w/ Will creation requirement?

A

CL: Exact compliance
UPC: permits harmless errors

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33
Q

How to resolve defective execution? CL/UPC

A

CL: Republication/ incorporation by reference
UPC: Establish by clear & convincing evidence that testator intended document to be their will

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34
Q

Beneficiary’s right in will?

A

Mere expectancy – not property interest

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35
Q
  • real prop
A

Situs

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36
Q
  • personal prop
A

Decedent’s domicile at death

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37
Q
  • out of state/ foreign
A

Savings statute which permits will can be probated if conducted in accordance with law of:

  • that jurisdiction
  • state where will was executed
  • testator’s domicile at time of will’s execution
  • testator’s domicile at death
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38
Q

Requirement for will

A
  • Writing
  • Signed
  • Before 2 competent attesting witnesses (UPC: or signed by notary)
    By someone with
  • Legal capacity (18 + sound mind)
  • Testamentary intent (present intent instrument operates as a will)
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39
Q

Additional will requirements in some sates

A
  1. Testator sign at end f will
  2. Publish will (declare to witness it is a will)
  3. Witnesses sign in the presence of each other

UPC: will valid if either 1. Attested by 2 competent witnesses or 2. Signed by notary

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40
Q

Testamentary capacity

A

Determined at time of will execution.
- No capacity for insane delusion only if nexus between delusion and property disposition
Understand nature of:
1. act (executing will)
2. property
3. objects of their bounty (family members)
4. Able to formulate orderly scheme of disposition

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41
Q

Testamentary intent

A

Intent:

  1. dispose of property
  2. at death
  3. instrument accomplish disposition
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42
Q

Details on signatures

A
  1. Proxy may sign at direction & in presence of tesetator (may be witness too)
  2. Signing must be part of single contemporaneous transaction but order not important
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43
Q

Witnesses - Effect of interested witnesses

A

CL: if 1 witness is bfy – not probated
Most states: purging statute will eliminate interest (make gift void); and remainder of will will be void
Gifts to interested witnesses are not purged

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44
Q

Who is not “interested”

A

Creditors, fiduciaries, attorneys (not disqualified from collecting debts/ servigng the estate”

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45
Q

Details on “presence”

A

Majority: General awareness of what doing/ act and cognizance of other parties
Minority: scope of vision – could have seen signing
Phone calls do not count

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46
Q

Attestation clause

A

Certification of elements of due execution
Prima facie evidence of elements – not dispositive
UPC: allows notarization as substitute for attestation of witnesses

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47
Q

Self-proving affidavit

A
  1. States elements of due execution were performed
  2. Sworn by testator & witnesses
  3. Before notary
  4. Functions as deposition // no need to produce witnesses
    Most courts allow affidavit on will; most courts allow signature on affidavit to serve as signatures of witnesses
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48
Q

Holographic will

A

Unatteted will entirely or partially in T’s handwriting

  1. Written in testator’s handwriting
  2. Testator’s signature/marking/etc.
  3. no attesting witnesses
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49
Q

Effect of hand Written revisions

A

If jurisdiction recognizes holographic wills – revisions are valid holographic codicils
If does not - Revisions to attested will not usually given effect – may be revocation.

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50
Q

Oral will

A

Majority & UPC do not recognize oral wills
Minority:
- disposition of personal property for soldiers or last sickness/in contemplation of immediate death
- requires 2 witnesses

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51
Q

Attorney Liability for Negligence

A

Duty to client & intended beneficiaries
SOL runs on date of death
Some: require privity between attorney & malpractice plaintiff (intended bfy cannot sue)

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52
Q

Devise

A

Gift of real property

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53
Q

Bequest

A

Gift of personal property

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54
Q

General Legacy

A

Gift of general economic benefit payable out of general asset (ie shares of stock/ acres of property)

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55
Q

Demonstrative legacy

A

Gift of general amount to be paid from particular source (ie money from specific bank out)

  • Funds available: Treated as specific legacy
  • Funds unavailable: Treated as general legacy (paid from other assets)
56
Q

Residuary estate

A

Balance of property after paying

  • Debts, expenses, taxes
  • Specific, general and demonstrative gifts
57
Q

Ademption

A

If specifically bequeathed property is not in estate at death, gift fails.

58
Q

Ademption - Partial ademption

A

If portion of gift is disposed of during life, beneficiary takes remaining portion

59
Q

Ademption

- Exception to ademption - UPC

A

Replacement property: may replace gift if testator replaced gift with similar item
Balance of outstanding purchase price: bfy may receive any money still owed to testator after sale of gift
Proceeds of condemnation award/ insurance
Sale by conservator: receive general pecuniary legacy equal to proceed of sale if guardian sells gift when testator is incompetent

60
Q

Ademption

- Exception to ademption - Modern

A

Can take substitute property if grantee shows testator intended bfy to take

61
Q

Ademption

- Ademption by Satisfaction

A

Gift may be satisfied by inter vivos transfer

Inter vivos transfer should be in writing

62
Q

Ademption

- Value from property goes to

A

Income on property goes to estate

Improvement to property goes to specific devisee

63
Q

Distribution of stocks

A

Stock split: goes to gift recipient
Stock dividends/new purchases:
- CL: not to gift recipient
- UPC/Modern: specific bequest of stock includes stock dividends

64
Q

Exoneration of liens

A

UPC/Majority: No; liens not exonerated (paid off) unless otherwise directed
Minority/ CL: Yes; liens exonerated

65
Q

Abatement

A

Process of reducing testamentary gifts if estate is insufficient

66
Q

Order of abatement

A 
Property passing by intestacy
Residuary estate (remaining property after gifts)
General legacies (paid out of general estate)
Demonstrative legacies (something specific paid out of general estate)
Specific bequests/devises (gift of something specific)
Within classes, abatement is pro rata
67
Q

Distribution of Lapsed gift

A

If bfy predeceases the testator, lapsed gift controlled by:

  1. Term of will
  2. Rule of law (ie anti lapse statute)
  3. Residuary clause
  4. Intestacy
68
Q

Anti-lapse statute

A

Saves the predeceasing bfy’s gift and provides to surviving testator.
Most states: Words of survivorship will negate Anti-lapse
UPC: words of survivorship will not negate anti-lapse

69
Q

Lapse in Residuary Gift

A

Residuary estate devised to 2+ bfy and 1 bfy dies
CL: Surviving Bfy; survivors of deceased bfy do not receive residuary
UPC: Split b/w Bfies estates; survivors of deceased bfy do receive

70
Q

Which members get Class Gifts

A

Members who survive testator unless otherwise stated

71
Q

BFY dead when executed effect on gift

A

Gift is void

72
Q

Rules of construction

A

Intent of testator
Avoid intestacy (presence of will indicates intent to not die intestate)
Last will prevails
Will construed as a whole
Words given ordinary meaning/ technical word given technical meaning
Give effect to all words

73
Q

Patent ambiguity

A

Traditional: no extrinsic evidence
Modern: extrinsic is admissible to correct patent (obvious) – not blank/omitted gifts

74
Q

Latent ambiguity

A

Language is clear on its face but cannot be carried out without further clarification
Extrinsic evidence – OK

75
Q

No apparent ambiguity/mistake

A

Can be carried out but bfy/interested person this there is a mistake
Traditional: no extrinsic evidence to disturb clear meaning of will
Modern: extrinsic evidence ok

76
Q

Incorporation by reference

A

Incorporate extraneous document by referencing it and treated as if written in will

  • Does not need to be signed, witnessed, written by someone with capacity
    1. Intent to incorporate
    2. Document in existence when will executed
    3. Reasonably identified in will
77
Q

Exception to incorporation by reference

A

List of tangible personal property need not be in existence when will executed

78
Q

Acts of independent significance

A 
Act/fact outside will that has purpose other than disposing of property at death
Ie general gifts, class gift designations, gift to “my spouse”, gifts of contents”
79
Q

Conditional wills

A

Will that is operative if certain events occur
Courts will construe as general if possible/ will interpret a “condition” as a motive if possible
Parol evidence is not admissible to show will is absolute on its face

80
Q

Codicil

A

Executed with same formalities as will
Codicil/will treated as the same instrument
Validates a previously invalid will

81
Q

Changes to a will after execution

A

Reexecute: Will must be reexecuted with proper formalities OR
Holographic Will: Changes qualify as holographic codicil if recognized

82
Q

Pour-over gift

A

Provision in will making gift to inter vivos trust

83
Q

Integration

A

Pages present at execution must be present at probate

Physical attachment/internal references/ page numbers etc.

84
Q

Joint wills

A

Highly unadvisable

85
Q

Reciprocal/Mutual wills

A

Separate wills executed by 2 testators that contain substantively similar provisions

86
Q

Contractual will

A

Executed or not revoked in consideration for contract
Contract law applies
Extrinsic evidence is admissible
Revocable during life/ irrevocable upon first testator’s death
If testator dies in breach – create constructive trust

87
Q

How to revoke

A

Testamentary capacity may revoke will at any time prior to death
Operation of law
Subsequent instrument
Physical Act

88
Q

Effect of new spouse

A

New spouse takes intestate share as “omitted spouse” unless

  • Will makes provision for new spouse
  • Omission was intentional
  • Will made in contemplation of marriage
89
Q

Effect of Divorce

A

Revokes gifts & fiduciary appointments for former spouse (sometimes spouses’ relatives)

90
Q

Pretermitted Children

A

Failure to provide for child born after execution of the will statutory provisions apply.
Usually gift from residuary (unless pretermitted child’s parent receives remainder)

91
Q

Revocation by physical act

A

Properly revokes
- Buring, tearing, cancelling
- Need Intent concurrent with act // done by proxy

Partial revocation permitted – extrinsic evidence permitted to determine partial/total revocation intended

92
Q

Effect of revocation of will on other instruments

A

Revokes all codicils
Destruction of duplicate executed will – revokes both unless evidence of destruction of one was to avoid confusion
Destruction of unexcuted copy – does not revoke

93
Q

Revocation by instrument

A

Same formalities as will

Express - revokes earlier will
Inconsistency – New instrument can completely or partially dispose of inconsistent provisions

94
Q

Presumptions about revocation

A

Will in normal location + no suspicious circumstances = presumption of no revocation
Will in testators’ possession + not found after death = presumption of revocation

95
Q

Lost or destroyed will may be admitted if:

A

Valid execution
Cause of nonproduction shows will not revoked
Contents of will - proved by 2 witnesses or production of duplicate

96
Q

Revival of revoked will – UPC

A

Revoked will does not revive older will unless intended to revive.
If original will was only partly revoked, revoked provision are revived unless evident no intent

97
Q

Revival of revoked will – Alt. Approach

A

Option 1: Revival is automatic

Option 2: not revived

98
Q

Implied conditional revocation (Dependant Relative Revocation0

A

W1 revived after revocation of W2 if:

  • Revocation of W1 impliedly conditioned on validity of W2
  • W2 was improper and not valid
  • Testator would have preferred W1 over intestacy
99
Q

Uniform Proboate Code – Harmless Error Statute

A

Establish by clear & convincing evidence that decedent intended document that doesn’t meet technical requirements may still be valid

100
Q

Requirements: Contract to make gift by will need to be in writing?

A

Most: No writing – unless land (minority: writing)

Contract law rules

101
Q

Contract in consideration of wil. Requirements – UPC

A
  1. Provisions in will stating material provsiison of contract
  2. Express reference in will to contract / extrinsic evidence proving terms of contract
  3. Writing signed by decedent evidencing contract
102
Q

If cannot recover on quantum meirut

A

Reasonable expectation would be compensated

103
Q

Elective Share Requirement

A

A fixed portion of the estate is given to the spouse

Notice filed within 6 mo from admission of will to probate

104
Q

Elective Share amount

A

Varies:

  • Common Law Marital Property States: Varies
  • Survived by issue: usually 1/3 of net probate estate
  • No issue: ½
  • Or length of marriage
105
Q

Net Probate Estate

A

probate estate – expenses & creditor’s claims

106
Q

Augmented Estate

A

probate estate + lifetime transfers/ bank accounts

107
Q

How is élective share paid out l?

A

Paid first from assets that would have passed to survive spouse, then through abatement rules

108
Q

Pretermitted Child Statutes

A

Protects only accidentally omitted children by providing a forced share
Forced share for child born after will executed (few states allow b/f), believed to be dead

109
Q

Pretermitted Child amount

A

Varies:

  • Traditional: Intestate share of decedent’s estate
  • UPC: same as provisions for other children – only other children’s bequests reduced
110
Q

Homestead

A

Family entitled to occupy homestead for as long as they want despite the disportion of residence in will

111
Q

Family Allowance

A

Provide support during probate administration.
Precedence over other claims
Varies between dollar amount or amount to maintain family for “reasonable time”

112
Q

Exempt personal property

A

Spouse may petition for personal property to be exempt except for perfected security interests

113
Q

Who may bring will contest

A

Interested party (heirs/bfy of prior wills)

114
Q

Burden of proof

A

Contestant shows will is invalid

115
Q

Grounds for contest

A 
Defective execution
Revocation
Lack of testamentary capacity
Lack of testamentary intent
Undue influence/ Durres
Fraud
Mistake
116
Q

Severability of will

A

Will may fail partially or entirely

117
Q

Undue Influence

A

Exerted: Influence existed/ was exerted
Overpowered: Influence overpowered the mind and free will
But for: Disposition would not have been executed but for

118
Q

Undue influence – evidence

A 
None are conclusive; 
Unnatural dispositions
Opportunity/ access to testator
Confidentiality or fiduciary relationship
Ability of restator to resist
Bfy’s involvement with drafting
119
Q

Presupmtion of undue influence for:

A

Confidential relationship
Bfy was active in procuring/ draftin/ executing will
Some courts add: provision appears unnatural to favor person
Not spouses, gifts to attorneys are void in many states

120
Q

Fraud

A

Fraud in execution (did not know they were executed document); Fraud in the inducement (deceived as to extrinsic fact)
Willfully deceived testator as to:
Character/ content of the instrument
Extrinsic facts that would induce the will/particular disposition OR
Facts material to a disposition

Elements:
False representation
Knowledge of falsity
Testator reasonably believed
Statutement caused testator t oexecute will/ make disposition would not have otherwise done

121
Q

Mistake

A

Error caused by no evil conduct
Mistake in the inducmenet – mistaken as to extrinsic fact

Mistake in execution – identity/ contents
lacks testamentary intent
extrinsic evidence admissible

122
Q

Reformation for mistake under UPC

A

Court may reform will – even if unambiguous – if proven by clear & convincing evidence of testator’s intent

123
Q

No-Contest Clauses

A

In terrorem clause – bfy forfeits interest if the ycontest will and loose
Majority: no forfeiture if probable cause for contesting will
Minority: give full effect regardless of probable clause

124
Q

Probate

A

Instrument is judicially determined to be will of decedent

125
Q

Participants

A

Personal rep: carry out estate administration – named in will = Executor; if not = administrator

126
Q

Jurisdiction

A

State of decedent’s domicile at the time of death

127
Q

Who can be personal rep

A

Capacity to contract

128
Q

What must personal rep do

A

Acts as fiduciary
File bond unless testator provided that no bond required
Give notice to devisees, heirs, claimants
Discover & collect decedent’s probate asset & file an inventory
Manage assets of the estate during admin
Pay expenses & administration, claims, taxes
Distribute property

129
Q

When does personal rep need court approval

A

Borrow money
Oerpate business
Sell property

130
Q

Compensation

A

Rates of compensation set by the state / in will

131
Q

How creditor’s claims are initiated

A

Creditor file claims within period of time

132
Q

Claims paid in this order

A

Administration expenses
Funeral expenses/ expenses of last illness
Family allowance
Debts
Secured claims
Judgments entered against decedents during lifetime
All other claims

133
Q

Living will’s purpose

A

Life sustaining procedures
Artificial nutrition/hydration
Alleviate pain
Appoints agent to make healthcare decisions once incapacitated (cannot be admin of hospital)

134
Q

Living will creation

A

Writing
Signed by declarant
2 witnesses
Capacity presumed
States breadth of authority for agent (otherwise standard is best interest)

If no witnesses, agent may still act under “family consent” statute

135
Q

Revocation of living will

A

Destroying
Written revocation
Oral revocation

136
Q

Revocation of durable healthcare power

A

Oral or written request

137
Q

Can agent be punished?

A

No civil, crim or unprofessional conduct issues if agent acted in good faith

Bar Prep (14 decks)

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