Wills Flashcards
choice of law for joint property when married in intestate
look at the law of the couple where they were domiciled at the time the property was acquired
married descedents share
if kids: 1/3 or 1/2 (varies by state)
if no kids: the entire estate
per capita with representation (intestate distribution method)
first generation recieves a share, next generation splits that share amongst common decedents
per capita at each generational level
pool shares of lower generation, then split into even shares
order of decedndency
parents
siblings and their decedents
half/half to maternal/praternal gparents
half/half to next of kin on maternal/paternal
adopted kids and nonmarital kids
adopted: treated as biological kids
nonmarital: always from mother, father if mariied after birth, declared father in court, if proved to be father by clear convinincg evidence
disinheritance clause
upc: good
common law: no, must dispose of all property in will to exclude an intestate recipient
what is an advacnement
when a beneficicary receives a gift intended by will during life of testator
procedures for measuring shares
the gifts value is added back in to the estate for purppse of calculating shares, and then subtracted from the recipients share
uniform simulaneous death act
so A and B, A’s prperty goes to B’s heirs and B’s proeprty at issue goes to A’s heirs
disclaiming an inheritance
signed writing
notarized
filed in appropriate court
9 months of death of testator
estopped if disclaimer recieved the benefit
is a will revocable?
revocable during life and operative (self executing) at death
choice of law for wills
real property: where the property situs
personal: domicile of testator at time of death
testamentary capcity
must understand: nature of the act nautre of their property beneficiaries/intestates use this info to form an orderly scheme of dispostion
when is capacity determined
at time of will execution (when will is deemed the effective will)
does being too old mean you lack capacity
no, neither beign drunk or on drugs, as long as they meet the four steps
for intent on making will
testator must have present intent; no future wills
- intent to dispose of property
- intent of disposal upon death
- intended that will to accomplish disposal
formalities of will execution
vary by state, but generally:
- writing (some states allow electronic)
- signed by testator (or another in presence of testator)
- 2 witnesses
- signed in 2 wintesses presecnes (or single notray for UPC)
Some state may add:
sign at the end of the will
publish the will
witnesses sign in presecnce of each other
testators signature
any mark works with intent
holographic will
entirely in the testators handwriting and no witnesses
testator signed
-most states recognize
-most states recognize handwritten changes after will is completed
devise
gift of rear property
bequest
gift of personal property
legacy
gift of personal proeprty in a will, usually money
legatee
general legacy
general gift of personal property
demonstartive legacy
general gift to be paid from a specific source
pay X from the W trust fund
ademption
failure of a gift bc the property no longer belongs to the testator
applies only to specifc devise and bequests
partial ademption
when a beneficiary takes only part of a devise or bequest bc other part is no longer property of testator
ademption by satisfaction
transfering an entire gift to beneficiary inter vivos
req writing or specific instruction in most states
accessions
increase in property
before testator death
-income of proeprty: goes to general estate
-improvements to real propety: specifc devisee
after death
-specific devisee
exoneration of existing liens on property
states vary, but UPC says liens not provided for by estate unless the will says so (exonerated)
abatment
reducing gifts to accoont for all debts/gifts of estate. order of abatment if not already determingd
intestate residue general legacy demonstrative legacy specific bequests/devise
what happens when a gift lapses
beneficiary predeceases the testator
anit lapse sattute
close intestate recipeints protected from gift lapsing; will go to thier heirs
do wills mean the testator wants to avoid intestacy
yes
what if will contradicts
last one prevails
extrinsic evidence for will ambiguuity
modern rule: yes for patent ambiguity AND latent ambiguity AND mistake
traditional rule: NO for patent ambiguity and mistake YES for latent
incorporation by reference
good so long as
- will maifests intent to
- doc exists at time will executed
- doc is sufficeintly described in will
codicil
moidifcaiton to a will
-must follow same steps for execution: wirting signed two witenss there (or notary) must be in presence of two witness
can a coidcil incorporate a defective or ineffective will?
yes, can incorporate by refernce
must the person probating the will prove integration?
yes, evidence includes
- physical attachment
- internal cohencsion of docs
- orderly plan
powers of appointment
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.
donee of an appontment power
someone who is given the power of appointment
can power of appointment pass through will
if it specifically does: yes
in a residual clause: varies by jurisdcition, some yes, some no
can a person revoke their will
yes, anytime during life
marriage follwoing will execution
new rule: new wirfe take intestate interest share as ommitted spouse unless:
- will makes provision for new spouse
- omission was intnetional OR
- will was mad ein contemplation of marriage
revocation by phsyical act
burning, tearing, cancelling, obliterating will WITH intent to revoke
-intent must be concurrent with act
-usually has to be testator
-
can someone partially revoke will by physcial act
yes, can use exxtrinsic evidcence to decide
does revocation of will revoke all codicils
yes BUT revoke of codicil doesnt revoke will
revocation by written instrument
- req the same formalities as will execution
- can revoke
- -expressly
- -by inconsistency (complete or partial)
if will can’t be found or is found in mutilated state AFTER will was last seen in testators control
assumed to be revoked
normal assupmtion of revocation of a will?
assumed not revoked unless evidence otherwise or will last in testro possession and sub found destroyed or not found
revivial of a revoked will
Under the UPC and in many states, 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
8.7.2 Automatic Revival Approach
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.
8.7.3 No Revival Approach
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.
conditional revocation
express or implied
implied revocation and doctrine of dependent relattive revocation
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.
To determine whether DRR applies, we ask the following
questions:
• Was the revocation of Will 1 impliedly conditioned on the
validity of Will 2?
• Would Testator have preferred Will 1 over intestacy?
the more similar the provisions are, more likely to revive the will, and vice versa
can spouse elect to take statutory share of estate instead of devised estate by will
yes, if authroized by statute
from net estate (after expesnes)
with notice
homestead, family allowance, exempt personal proerpty
all three usually protected from creditors
contesting a will
only interested party has standing
time to file varies
burden of proof on contestor
grounds for contest: defective execution, revocation, lack of capccity, lack of intent, undue influence, fraud, mistake
undue influence
The influence existed and was exerted
• The 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 the influence instead of the
testator); and
• The resulting testamentary disposition would not have
been executed but for the influence (causation)
duress
same as undue infleunce but with violence
fraud
False representation made to the testator
• Knowledge of falsity by person making the statement
• The testator reasonably believed the statement
• The statement caused the testator to execute a will or
make a particular disposition that the testator would not
have made but for the misrepresentation
mistake in execution of will (works)
In the case of mistake in the execution, the testator is in error
regarding the identity or contents of the instrument and thus
lacks testamentary intent.
mistake in inducement of will (doesn’t work)
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.
executor
personal rep to carry out the will
notice to devisees discover/collect the assets manage the assets pay expenses of admin distribute property
