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Wills Flashcards

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1
Q

Nonprobate will substitutes

A

[remove before distribution under intestacy or will]

  • inter vivos gifts
  • inter vivos living trusts
  • future interests
  • co-ownership of property (probate is avoided for JT, but not TIC)
  • life insurance, other contracts for death benefits
  • bank arrangements
  • deeds
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2
Q

When intestate succession applies

A
  • decedent dies without will (total intestacy)

- will does not dispose of all property (partial intestacy)

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3
Q

Marital rights

A

-use the law of the domicile at the time the property was acquired (either common law or community property system)

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4
Q

What state’s intestacy statute applies

A

Personal property: law of the decedent’s domicile at death

Real property: law of the situs of the property

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5
Q

Intestate share of surviving spouse

A
  • remove this part from the estate FIRST

- spouse is an heir under modern law

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6
Q

After the spouse, _______ take under intestate succession

A

descendants (kids, grandkids)

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7
Q

Methods of computing descendent shares

A
  1. classic per stirpes
  2. per capita with representation
  3. per capita at each generational level
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8
Q

Classic per stirpes

A

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. This method divides into shares at the child generation even if no child survives the intestate. This method is used in a small minority of states.
Always divide at the first generation/level

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9
Q

Per capita with representation

A

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.
Always divide at first generation with surviving members

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10
Q

per capita at each generational level

A

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.
(each person on the same level gets an equal share)

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11
Q

Intestate succession general order

A
  • spouse
  • descendants
  • ancestors
  • collaterals
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12
Q

Adopted individuals and intestate succession

A
  • generally treated liked bio children inheriting from and through adoptive parents
  • generally no inheritance from bio parents (state variation)
  • bio parents do not inherit from adopted child
  • adoption by estoppel/equitable adoption (treated like a child, inherit like a child (ex stepchildren))
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13
Q

Inheritance of stepchildren and foster children

A

-generally no inheritance rights, unless adoption by estoppel

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14
Q

Nonmarital children and intestate succession

A
  • always inherits from the mother
  • Generally, the child will inherit from their father if: (1) the father married the mother after the child’s birth; (2) the man was adjudicated to be the father in a paternity suit; or (3) after his death and during probate proceedings, the man is proved by clear and convincing evidence to be the father
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15
Q

Half bloods/whole bloods and intestate succession

A

Half bloods are brothers and sisters who have only one common parent. The UPC and most states make no distinction between half bloods and whole bloods; they inherit equally. However, some jurisdictions give half bloods half shares or cut them out from inheriting entirely if whole-blood siblings exist.

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16
Q

Posthumous children and intestate succession

A
  • most states say heir if in gestation at time of death

- sometimes must be born in a statutory time frame

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17
Q

Advancement

A

An irrevocable lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate
-has to be intended as such, most states require in writing

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18
Q

Procedure for advancements

A

If found to be an advancement, the gift’s value when given is added back into the estate for purposes of calculating shares, and then subtracted from the recipient’s share. (The advancement goes into the “hotchpot.”) The heir need not return the amount of an advancement in excess of the value of their intestate share.
Add it back in, and divide the hotchpot among all heirs

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19
Q

120-hour rule

A

If the heir does not outlive the intestate by 120 hours, that heir is treated as if they predeceased the intestate

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20
Q

Do heirs have to accept the gift?

A

No, they can disclaim
Typically must be in writing, signed by disclaimer, notarized, timely filed
Can typically disclaim at any time prior to acceptance

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21
Q

Effect of a disclaimer

A

Treated as if they predeceased the decedent

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22
Q

Slayer statute

A

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
For non felony murder, a court must generally find that the killing was unlawful or intentional by a preponderance of the evidence before applying this rule

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23
Q

Savings statute

A

Most states and the UPC have a “savings statute,” that is, a will is admissible to probate in a jurisdiction if the will has been executed in accordance with the law of: (1) that juris- diction, (2) the state where the will was executed, (3) the testator’s domicile at the time of the will’s execution, or (4) the testator’s domicile at death.

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24
Q

Valid will requirements

A
  1. legal capacity
  2. testamentary capacity
  3. testamentary intent
  4. formalities
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25
Q

Legal capacity

A
  • in most states, at least 18 years old

- some states have exceptions if married or in military

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26
Q

Testamentary capacity

A

Sound mind requirement (standard is lower than contractual capacity)
elements
1. understand the action
2. understand the effect
3. understand the nature and extent of property
4. recognize the natural objects of their bounty (family members)
5. do 1-4 simultaneously

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27
Q

Effect of testator adjudicated incompetent

A

Rebuttable presumption that they lack testamentary capacity

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28
Q

Testamentary intent

A

Intended the very instrument executed to be your will

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29
Q

attestation

A

-in writing
-must be signed by the testator or a proxy in presence and at direction of testator (any mark made with present intent to authenticate the will)
-two witnesses
An attestation clause is prima facie evidence that the requirements are met

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30
Q

Self-proving affidavit

A

recites that all the elements of due execution were performed and is sworn to by the testator and witnesses before a notary public. It functions like a deposition and eliminates the need to produce the witnesses in court years later; thus, probate is faster and cheaper. It is common practice to use a self-proving affidavit with all wills because it is often difficult to find witnesses as they die, are unavailable, or do not remember witnessing the will.

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31
Q

Holographic wills

A

Written entirely in the testator’s handwriting and has no attesting witnesses

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32
Q

Oral will

A

Most states and the UPC do not recognize oral (or “nuncupative”) wills
he small number of states that allow oral wills do so only for the disposition of personal property and only if made by: (1) soldiers or sailors (with some states requiring an armed conflict in progress); or (2) any person during their last sickness or in contemplation of immediate death. Two or more witnesses to the spoken words are often needed.

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33
Q

Devise

A

Gift a real property in a will

Recipient = devisee

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34
Q

Bequest

A

Gift of personal property in a will

Specific bequest – particular item

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35
Q

Legacy

A

Gift of personal property in a will, usually money

Recipient = legatee

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36
Q

General legacy

A

a gift of a general economic benefit (often a dollar amount) payable out of the general assets of the estate without requiring any particular source of payment

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37
Q

Demonstrative legacy

A

a gift of a general amount that
is to be paid from a particular source or fund. A demonstrative legacy is a hybrid—it is treated as a specific legacy to the extent the source of payment is available and a general legacy to the extent of any shortfall of that source of payment

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38
Q

residuary estate

A

The residuary estate, and hence a gift of the residue, consists of the balance of the testator’s property after paying (1) debts, expenses, and taxes; and (2) specific, general, and demonstrative gifts. Some testators use the residuary for the “forgotten” items that were not dealt with earlier in the will. On the other hand, some testators use the residuary gift as the main disposition of their property.

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39
Q

Ademption

A

The failure of a gift because the property is not in the estate
Beneficiary does not get anything (the gift “adeems”)
If the gift is partially gone, beneficiary gets the portion remaining

40
Q

Neither general nor demonstrative legacies are adeemed by an absence of cash or the specific asset in the estate; they will be satisfied by ….

A

selling (or directly giving) other assets.

41
Q

Ademption by satisfaction

A

Analogous to advancement – testamentary gift is satisfied in whole or in part by inter vivos transfer
Usually need a writing
Must have intent for the gift to be a satisfaction at the time it is made

42
Q

Exoneration of liens

A

Liens are not paid off unless the will so directs, so they get the gift subject to the debt
Depends on the state

43
Q

Abatement

A

the process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises
most states abate in this order:
-property passing by intestacy
-residuary estate
-general legacies
-demonstrative legacies
-specific bequests and devises (most likely to take effect)

44
Q

Lapsed gifts

A

A gift lapses if the beneficiary predeceases the testator
or if the beneficiary is treated as not surviving the testator because, for example, the beneficiary disclaimed or did not survive long enough

45
Q

distribution of lapsed gifts

A

controlled by

  • express terms of will
  • rule of law (anti-lapse statute)
  • residuary estate
  • intestacy
46
Q

Class gifts

A

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

47
Q

Basic rules of will construction

A
  • The fact that the testator left a will, especially if it has a residuary clause, indicates an intent not to die intestate. Therefore, favor the construction that avoids intestacy
  • Among two or more contradictory provisions in a will, the last one prevails
  • The will is construed as a whole, not from isolated parts out of context
  • Words are given their ordinary and grammatical meaning unless it is clear from the will that the testator intended otherwise
  • Technical words are given their technical meaning unless it is clear from the will that the testator intended otherwise
  • Attempt to give effect to all words the testator included in the will
48
Q

Ambiguity in wills

A

Patent: obvious, fails to convey a sensible meaning
-extrinsic evidence admissible
Latent: clear on its face, but cannot be carried out without further clarification
-extrinsic evidence admissible
Mistake: someone else thinks there is a mistake
-plain meaning rule: no extrinsic evidence
-modern rule: extrinsic evidence permitted

49
Q

Incorporation by reference

A

Instead of writing something in the will, a testator may incorporate an extraneous document into the will by reference
Requires:
-intent
-must be in existence when will is executed
-incorporated writing must be clearly identified

50
Q

Facts of independent significance

A

An act or fact of independent significance is something outside of a will which has a purpose other than disposing of property at death
Examples:
-specific gifts of a general nature (my car at death)
-class gifts (to my children)
-gifts to “my spouse”
-gifts of container contents

51
Q

Conditional will

A

Will that is to operate only if a certain event occurs or does not occur
Wills construed as general, not conditional, if at all possible

52
Q

Codicil

A

A codicil modifies a previously executed will and must itself be executed with the same formalities. Under the doctrine of republication by codicil, the will and codicil are treated as one instrument speaking from the date of the last codicil’s execution.
Codicil incorporates the will by reference- proof of the codicil acts as proof of the will

53
Q

Pour-over provision

A

Leaves property to an inter vivos trust

Pour-over property can be the initial funding for the trust

54
Q

Integration

A

The person probating the will must be able to show that the pages present at the time of execution are those present at the time of probate

55
Q

Joint will

A

A single instrument executed by two or more testators and intended to be the will of each
Highly unadvisable, usually used for married couples

56
Q

Reciprocal or mutual will (“sweetheart will”)

A

Separate wills executed by two or more testators that contain substantially similar provisions

57
Q

Contractual wills

A

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
Governed by contract law, modern law requires a writing
A contractual will can be revoked by agreement between the parties while they are both alive. The contract becomes irrevocable upon the first testator’s death.
Breach – constructive trust

58
Q

The mere execution of joint wills or mutual wills _____ raise a presumption that the wills were executed pursuant to a promise by each party not to revoke.

A

DOES NOT

59
Q

Power of appointment

A

A power of appointment is an authority granted to a person, enabling that person (the donee of the power) to designate, within the limits prescribed by the creator of the power, the persons who shall take the property and the manner in which they shall take it.
Not a duty

60
Q

General power of appointment

A

A general power of appointment is a power exercisable in favor of anyone including the donee themself, their estate, their creditors, or the creditors of their estate.

61
Q

Special power of appointment

A

A special power of appointment is a power exercisable in favor of a limited class of appointees, which class does not include the donee, their estate, their creditors, or the creditors of their estate.

62
Q

Revocation by operation of law

A 
New marriage
-in some states and UPC, new spouse can receive intestate share as omitted spouse UNLESS the will makes provision for the new spouse, the omission was intentional, or the will was made in contemplation of the marriage
Final divorce (not just pending)
-majority rule is that all provisions in favor of ex-spouse are void
-minority also voids gifts to other ex-relatives
-property passes as if ex-spouse predeceased testator
63
Q

Revocation by physical act

A

Under a typical statute, a will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will with the INTENT to revoke.
-also need mental capacity
-can have proxy revocation at testator’s request, but most states also require testator to be present
Partial revocation
-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. Some states give no effect to the changes and probate the will as originally written.

64
Q

Revocation by subsequent writing (will or codicil)

A

-may expressly revoke the earlier will
-“this is my last will” does not revoke
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.

65
Q

Presumption of no revocation

A

If a will is found in a “normal location” and there are no suspicious circumstances, there is a presumption that the testator did not revoke it.
Burden is on the person trying to prove revocation

66
Q

Presumption of revocation

A

If a will last seen in the testator’s possession or under their control cannot be found after their death or is found in a mutilated condition, a rebuttable presumption arises that the testator revoked it

67
Q

Lost or destroyed wills

A

If a will is lost or destroyed (and the presumption that the testator revoked it is overcome), it may be admitted to probate if the following can be proven: (1) valid execution; (2) the cause of nonproduction (that is, proof that the will was not revoked); and (3) the contents of the will. The contents are usually proved by the testimony of at least two witnesses, or by production of a carbon or photocopy of the will.

68
Q

Revivial of revoked wills

A 
Fact pattern:
-t executes will 1
-t executes will 2, expressly revokes will 1
-t validly revokes will 2
-is will 1 revived?
3 diff approaches
69
Q

revival: UPC approach (intent approach)

A

-if a will that wholly revoked a previous will is thereafter revoked, the previous will remains revoked unless it is evident from the circumstances or the testator’s statements that the testator intended to revive (that is, restore to effectiveness) the previous will. If the original will was only partly revoked, the revoked provisions are revived unless it is evident from the circumstances or the testator’s statements that the testator did not intend to revive the provisions.

70
Q

automatic revival approach

A

In other states, revival is automatic under the theory that the revoking will did not take effect because it was revoked prior to the testator’s death.

71
Q

no revival approach

A

In some other states, a will, once revoked, is not revived when the subsequent will is itself revoked. The revocation clause is effective when executed just like a revocation by physical act. The earlier will can be revived only if it is re-executed (that is, re-signed and witnessed) or republished by a validly executed codicil.

72
Q

Express conditional revocation

A

The testator may state in the revoking instrument that a revocation is effective upon the happening (or non-happening) of a named event.

73
Q

Implied conditional revocation (aka dependent relative revocation)

A

Fact pattern:
-t executes will 1
-t validly revokes will 1
-t executes will 2, but will 2 is invalid
The doctrine of dependent relative revocation applies when a testator revokes their will under the mistaken belief that another disposition of their property would be effective, and but for this mistaken belief, the testator would not have revoked the will. If the other disposition fails, the revocation also fails and the will remains in force.
Will 1 destruction impliedly conditioned on validity of will 2
-look at intent of T
-the more similar, the more likely doctrine will be applied

74
Q

Spousal elective share

A

Common law marital property states have elective share statutes that give the spouse an election to take a statutory share of the decedent’s estate in lieu of taking under the decedent’s will.
-usu have to file notice within 6 months of taking elective share

75
Q

Augmented estate

A

Size of elective share also based on non-probate assets

76
Q

Pretermitted child statutes

A

A testator may disinherit their children; pretermitted child statutes protect children from being accidentally omitted.

  • typically those born/adopted after execution of the will
  • share varies among states
  • does not apply if omission is intentional
  • does not apply if substantial part of estate goes to child’s parent
77
Q

Homestead exemption

A

Most states have statutes that protect the family residence or farm from creditors’ claims by exempting a certain amount of land. These statutes often provide that the decedent’s spouse or dependent children are entitled to occupy the homestead for as long as they choose despite the disposition of the residence in the decedent’s will.

78
Q

Family allowance

A

The purpose of the family allowance is to provide support during probate administration, and usually takes precedence over all claims other than funeral and administration expenses. It is in addition to the amount passing by will, intestacy, or elective share. Some states limit the allowance to a specific dollar amount (for example, $15,000), while others authorize payment of an amount needed to maintain the spouse and children for one year or a “reasonable amount.”

79
Q

Exempt personal property

A

A surviving spouse (or if none, minor children) is usually entitled to petition to set aside certain items of tangible personal property (for example, household furnishings, personal effects, farm equipment, and, sometimes, automobiles) as exempt from claims against the estate except for perfected security interests on the items themselves. These items are in addition to the amounts passing by will, intestacy, or elective share.

80
Q

Grounds for will contest

A

(1) defective execution,
(2) revocation,
(3) lack of testamentary capacity,
(4) lack of testamentary intent,
(5) undue influence or duress,
(6) fraud, and
(7) mistake.

81
Q

Insane delusion

A

Persistent belief in facts that do not exist and that no rational person would believe existed
-need nexus between delusion and property to be disposed

82
Q

Undue influence

A
  • influence existed and was exerted
  • effect was to overpower the mind and free will of t
  • resulting testamentary disposition would not have been executed but for the influence (causation)
  • NOT undue influence: pleading, begging, nagging, cajoling, threatening
83
Q

Evidence to prove undue influence

A

-direct evidence is rare, circumstantial evidence is not enough
Factors:
-unnatural dispositions
-opportunity or access to t
-confidential or fiduciary relationship
-ability of t to resist
-beneficiary’s involvement with the drafting/execution of the will

84
Q

Duress

A

Form of undue influence that connotes violent conduct

85
Q

Fraud elements

A
  • false representation made to t
  • knowledge of falsity by person making statement
  • t reasonable believed the statement
  • statement caused t to execute a will or make a particular disposition that t would not have made but for the representation
86
Q

A successful contest on grounds of fraud requires that the testator have been willfully deceived as to:

A

(1) the character or content of the instrument, (2) extrinsic facts that would induce the will or a particular disposition, or (3) facts material to a disposition.
If a testator is fraudulently prevented from making a will, some courts will impose a constructive trust against the intestate beneficiaries in favor of those who would have taken had the will been made.

87
Q

Fraud in the factum

A

T is deceived as to identity or contents of the instrument

88
Q

Fraud in the inducement

A

T is deceived by some fact extrinsic to the will

89
Q

Mistake

A

An error that was not caused by evil conduct

90
Q

Mistake in the factum

A

T is in error re contents/identity of the instrument

-attack for lack of testamentary intent

91
Q

Mistake in inducement

A

In the case of mistake in inducement, the testator is mistaken as to some extrinsic fact and makes their will based on that erroneous fact. If the mistake involves the reasons a testator made their will a particular way and the mistake was not fraudulently induced, the court will not normally grant relief. Relief might be granted, however, if the mistaken inducement appears on the face of the will. The UPC and several states also provide relief if a child was omitted because the testator mistakenly believed the child was dead.

92
Q

No contest clauses (aka in terrorem clause)

A

a clause in a will providing that a beneficiary forfeits their interest in the estate if they contest the will and lose
most states will enforce, unless contest was in good faith with probable cause

93
Q

jx for probate

A

domicile at time of death, may also need proceedings in another state if land in another state

94
Q

personal representative

A

appointed to carry out the estate administration
statutory order to determine order of appointment
no will = administrator
will = executor (determined by the will)
some jx require rep to post bond (in some states, testator can waive or require in will)

95
Q

creditor claims

A

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, and (7) all other claims

96
Q

Advance healthcare directives

A

A living will states an individual’s desires regarding: (1) whether to administer, withhold, or withdraw life-sustaining procedures; (2) whether to provide, withhold, or withdraw artificial nutrition or hydration; and (3) whether to provide treatment to alleviate pain.
A durable healthcare power (also called a medical power of attorney) appoints an agent to make healthcare decisions on behalf of the principal and does not become effective until the principal becomes incapacitated.

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