Wills Flashcards
Incorporation by reference (3 sentences)
The first issue to consider is whether any part of the first will is valid, either by republication or incorporation by reference. Most states require that the will be signed by the testator and two witnesses, who must sign in the testator’s presence. The UPC and a majority of states also recognize holographic wills, requiring that all or most of the will be in the testator’s handwriting and signed by the testator.
Republication of an invalid will by codicil
A will is treated as having been executed (republished) on the date of the last validly executed codicil. However, to be republished, the will must have been validly executed.
If a first will is not executed, it may not be republished. The second document will be valid as a partial will rather than a codicil.
How does one incorporate a document by reference?
A document that is not present when a will is executed may be incorporated into the will by reference so that it is considered part of the will. To incorporate a document by reference: (i) the document must be in existence at the time the will was executed, (ii) the language of the will must sufficiently describe the writing to permit its identification, and (iii) the will must manifest an intention to incorporate the document.
Under intestacy statutes, the portion of the estate not passing to the surviving spouse passes to whom?
Under intestacy statutes, the portion of the estate not passing to the surviving spouse passes to the decedent’s children and descendants of deceased children.
Parents and collateral kin never inherit if the decedent is survived by ______ or more _____ descendants.
Parents and collateral kin never inherit if the decedent is survived by children or more remote descendants.
Slayer statutes, what do they mean and when do they apply?
One who feloniously and intentionally brings about the death of the decedent forfeits any interest in the decedent’s estate; the property passes as though the killer predeceased the decedent. Slayer statutes apply only when the heir kills the decedent whose estate is at issue; they do not apply to bar someone from taking a share of an estate because she killed another person—even if that person is the source of the decedent’s property
Does a specific bequest fail if it ceases to exist?
Generally, when specifically bequeathed property is not in the testator’s estate at death, the bequest is adeemed. Under the identity theory applied in most states, the ademption doctrine is an objective test that does not take into account the testator’s probable intent.
What is the more lenient test for ademption?
Some courts have adopted a more lenient intent test, under which the beneficiary is entitled to substitute property owned by the testator if the beneficiary can prove that the testator intended the beneficiary to take the substitute property
Under the UPC, a specific devisee has the right to any real property owned by the testator at death that was acquired as a ________ for the _____ _____ property
Under the UPC, a specific devisee has the right to any real property owned by the testator at death that was acquired as a replacement for the specifically devised property
Under the common law rule, a specific bequest of stock includes _________ but not ____________.Under the UPC and the statutes of many states, a specific bequest of stock includes ________.
Under the common law rule, a specific bequest of stock includes any additional shares produced by a stock split but not those produced by a stock dividend. Under the UPC and the statutes of many states, a specific bequest of stock includes stock dividends
What happens if the conservator causes ademption of a gift?
Under a well-recognized exception to the ademption doctrine, if conservator is appointed for the testator after the will is executed and the property is sold by the guardian, the beneficiary is entitled to the sale proceeds—at least to the extent they have not been expended for the testator’s care
Effect of divorce on gifts to former spouse
If a testator is divorced after making a will, all gifts to the former spouse are revoked, and the will takes effect as though the former spouse predeceased the testator.
Absent a ________, a bequest in a validly executed will remains in full force regardless of the subsequent relationship of the parties
Absent a revocation, a bequest in a validly executed will remains in full force regardless of the subsequent relationship of the parties
Gifts to relatives of former spouses under UPS
Under the Uniform Probate Code, a divorce revokes bequests not only to the former spouse but also to the relatives of the former spouse; thus, under this view, the gift to Child would be revoked and pass by the laws of intestacy (bonus)
What are the three options of intestate distribution?
In most states, if a decedent is not survived by a spouse or descendants, her intestate property passes to her parents and/or siblings (and children of deceased siblings). In most states, the intestate property is distributed per capita with representation, meaning the property is divided at the first generational level at which there are living takers, with the share of each deceased person at that level passing to his issue by representation.
Some states follow a per capita at each generational level type of distribution that divides at each level. A few states use a strict per stirpes distribution, under which the stirpital shares are always determined at the first generational level regardless of whether there are living takers.
