Wills Flashcards
intervivos gift
out right gifts
living trust = pass under terms of trust
future interest pass to named beneficiary
totten accounts
bank account in trust for anothe rperson, other person gets it at decedent’s death
intestate succession occurs when
Person died w/o a will (total intestacy)
Will did not dispose of all prop ( partial intestatcy)
heirs
no living person has heirs
Person named in will: devisee, legatee, or beneficiary, not an heir
Heir apparent 🡪 person who would inherit the property of a living person
have an expectancy that is both contingent on their surviving A and defeasible by A’s contrary disposition by will, will substitute, or lifetime gift
hierarchy of takers
Surviving Spouse
Descendants (issue)
Ascendants (parents, grandparents)
Collaterals (siblings, nieces nephew cousins)
No SS, issue, or parents spilt ½ and ½ on each side of family tree
applicable law
Marital rights: law of domicile when prop acquired ( inception of title rule)
Common law marital
Community prop marital system
Succession right
Personal prop: law of domicile at death
Real prop: law of situs ( location of land)
surviving spouse share
varies among states
CL: received dower= LE in 1/3 of real prop
widow (man) receieved curtesy = LE in all wife’s real prop provided child was born to marriage
descendants
Person related to decedent in descending lineal line such as children and grandchildren
If children survive they receive equal shares
Strict (classic) per stirpes
Make cut at first generation below decedent
Share for each surviving child and each predeceased child
Distribute piece by trickle down to living Descendants
Share to surviving child
Share created for predeceased child to child’s descendants
Per Capita with representation
1st generation below D with a living taker
Each living person at that level takes share
Share of each deceased person at that level passes to their issue by right of representation
Distribute pieces by trickle down
Per capita at each generation
1st generation below D with a living taker , living person or dead person with living issue
Recombine and redistribute
Equally near equally dear approach= same degree of kinship= same equal amount
adopted children
an adopted individual is the child of his adopting parent(s) & NOT of his natural parent, but adoption of a child by the spouse of either natural parent has no effect on:
Relationship between child and natural parent OR
Right of child/descendant of child to inherit from or through the natural parent
Does not cause total assimilation (total assimilation = revoking the right to recover under birth parent estate and adoptive parent’s estate)
Inherits from adoptive parents
Varies in state if can inherit from biological parent
Adoptive parents can inherit from adopted child
Biological parents can’t inherit from adopted child
Stepchildren have no inheritance
Age of adoption = states differ ( when adopted as adult sometimes can’t inherit through)
equitable adoption 6 prong test
Implied agreement to adopt
Reliance
Performance by biological parents
Performance by the child
Partial performance by foster parents
Partial performance based on the fact that they did not legally adopt
Intestacy of foster parents
adoption by estoppel
permits child to inherit from or through a stepparnt or foster parent when legal custody of child is gained under an unfulfilled agreement to adopt them
stepparent or foster parent can’y inherit from
nonmarital children
Always inherit from mother
Inherit from father if state requirements met ( determination of paternity, after death clear and convincing evidence is dad , father married mother after child birth)
half bloods
siblings with one common parent
Most states do not distinguish b/n half and whole bloods
Some states say only get half
Other states say nothing
posthumous child
child born after death of a parent
State law depedent: if in gestation at time of the intestate’s death, most states will allow that person to be an heir , born within a tatutorily stated period
disinheritance clause
CL and most states , will provision expressly disinheriting an heir is ineffective as to any prop passing by intestacy
will must dispose of everything to effectively disinherit an heir
other states it passes as though person had disclaimed it
advancements
Common law rule: every inter vivos transfer that was made during life was presumed to be an advancement of the estate
Common Law Rule -Lifetime gifts presumed advancements + charged against a predeceased advance
Modern law rule: reversed the presumption. It’s now said that any lifetime transfer is presumed not to be a gift, unless it was accompanied with a contemporaneous writing with the transfer.
hotchpot
Value of the decedent’s estate at death + Value of advancements during life
Only include advancements of ppl still alive ( if no charge) , include advancemnet of anyone who can be held responsible ( if charge)
Add advancements to estate
Portion out SS share if appropriate
Allocate balance to descendants= divide and redistribute
Figure out fractional portion
Subtract individual advancements from fractional portions
simultaneous deaths
Some states: heir can survive for any amount of time
UPC: heir must survive by 120 hours
No survival= heir treated as predeceased
disclaimer
Requirements
In writing
Signed by person disclaiming
Acknowledged in front of notary
Timely filed
Modern view: can disclaim at any time as long as no acceptance or use of benefits from gift
Reasons to disclaim
burrdensom
Tax
Avoid creditors
Effect of disclaimer is to treat person who disclaimed as dying first
can disclaim on behalf of infant, incompetent or decedent if would be in their best interest
person killed decedent
Slayer statute precludes killer from inheriting or being beneficiary
Court can impose constructive trust
Person treated as if predeceased the estate
Conviction of any degree of murder is conclusive for proof of killing
Ct for lesser degrees of killing must find killing unlawful or intention by a perponderance of the evidence before applying forfeiture rule
applicable law for execution of wills
Real prop= law of situs
Personal prop= law of domicile at death
Saving state= will valid if it complies with local law, law where it was executed, or law of decedent’s domicile at death or at will exceution
requirements of valid will
Legal capacity
Testamentary capacity
Testamentary intent
Formalities
legal capacity
18 years old and of sound mind
exception: under 18 if married or in military
testamentary capacity ( requirements, common issues
requirement
Understand what testaor is doing
Understand effect of what testator is doing
Understand nature and extent of prop
Recognize natural objects of testator’s bounty (family members)
Ability to do the above at the same time and formulate an orerly scheme of disposition
Determined at time of execution of will
Comon issues
Testaor with mental or physical ailments or drug addiction
Have moment when have capcity= above requirements satisfied
Adjudication of incompetence= rebuttable presumption
Lucid intervals
Sane person
Lack at times bc intoxicated substances, disoriented bc accident or medical procedure
testamentary intent
present intent that the instrument operates as their will
parole evidence admissible to show that instrument not meant to have any effect
unsure, testamentary intent found if shown testator
- intended to dispose of prop
- intended the disposition to occur only upon his death and
- intended that the instrument in question accomplish the dispositon
formalities of attested will
In writing
Signed by testator or proxy = mark made by testator with intent that it operates as their signature
Most states dont mandate location
Most says see signed
Two witnesses
States vary in whether witness has to know witnessing signing of will = publish the will
States vary whether have to be disnterested= purging statute
Whether witness losses gift= most states dont require this
Usually must witness in testator’s conscious presence
States vary whether witness have to sign in presence of each other
UPC= will valid if either
Attested by two competent witnesses or
Signed by a notary
attestation clause
ecites elements of execution and is prima facie evidence of proper execution
holographic wills
Entirely in testator’s handwriting and has no attesting witnesses
How much in handwriting varies
Majority rule : virtually everything
Minority rule: only material provisions
nuncupative or oral wills
Abolished in most states
Only dispostion of personal prop and only if made by soilder, sailors, or any person during their last sickness / immediate death
Two or more witnesses often need
classification of testamentary gifts
Devise: gift of real prop
Bequest: gift of personal prop
Specific bequest: prop distinguishable from rest of testator’s estate
Specific bequest of general nature is not distinguishable from rest of estate
L
egacy: gift of personal prop not sufficiently described to be specific (usually money)
Demonstrative legacy: gift of specific sum of money payable out of designated fund
Residual gift: gift of remainder of estate after all debts and other gifts are paid
ademption by extinction
Gift fails bc prop is no longer in testator’s estate
Beneficiary doesn’t get anything if it is not there
applies only to specidic devises and bequests
Exceptions in few states
Replacement property
Balance of purchase price
Condensation or insurance proceeds
Proceeds from sale by guardian
ademption by satisfaction
Beneficiary receives gifted property before testator’s death
Most states require a writing
Comes up with legacys
Intent for a gift to be in satisfaction has to be at time inter vivos gift made
Appreciation and depreciation normally irrelevant
Still receive irrespective of change in value
Securities acquired after wil execution
Beneficiary receives increased # of shares from stock splits or stock dividends
Benefifciary does not take new securities that have been purchased or acquired by the reinvestment of dividends
exoneration liens
Some states: liens exonerated ( paid off with estate funds)
UPC and other states: no exoneration unless will provides for it = beneficiary takes prop subject to debt
abatement
Process of reducing gifts when estate prop is inadequate to satisfy gifts and debts
Order
Property passing by intestacy
Residual gifts
General gifts
Demonstrative gifts
Specific gifts
Beneficiary can disclaim gift from will
within a classs, abatement is pro rata
lapse
Gift fails bc beneficiary fails to survive testator or is legally treated as not surviving testator
How distribute
Will’s terms
Anti-lapse statute
Residuary clause
Intestatcy
Anti-lapse statutes
Prevent lapse by substituting descendants of predeceased beneficiary for predeceased beneficiary
Relationship needed b/n testator and predeceased beneficiary varies by state
Lapse in residuary gift
Common law rule: deceased beneficiary’s share passes by intestacy
Modern rule: surviving residuary beneficiaries divided the deceased beneficiary’s share
if will makes gift too beneficiary who was dead at the time the will was executed, the gift is void
basic rules of construction
Will = intent not to die intestate
Conflicting provisions = use one closer to testator’s death
Construe as a whole
Give ordinary words their ordinary meaning
Give technical words their technical meaning
Give effect to all language in will
ambiguity
Patent ambiguity: ambiguity is obvious
Ct looks at extrinsic evidence
Extrinsic evidence cannot be used to evidence is admissible
Latent ambiguity : language is clear on its face but cannot be carried out w/o further clarification
Ct will look at extrinsic evidence
No apparent ambiguity: language is clear on its face and can be carried out, but someone thinks testator made a mistake
traditional/ plain meaning rule: cannot disturb plain meaning of will
Modern rule: extrinsic evidence permitted
incorporation by reference
Requirements
Intent to incorporate writing
Writing must be in existence when will is executed
Writing must be clearly identified in will
Effect
Incorporated material is treated as if it were actually written out in full in the will
Tangible personal property
Testor’s will may refer to written list to dispose of tangible personal prop, even if list was not in existence at time of will execution
facts of independent significance
Something that has a legal reason for existing other than the disposition of property at death
Specific gifts of a general nature
Class gift designations
Gifts to “my spouse”
Gifts of content: in box , contents can change over time
conditional will
Will that is to operate if certain event occurs or does not occur
Courts construe will as general, not conditional, if possible
example: “ this will is to be effective if I die from this cancer” , will not be conditional will if diagnosis was mere inducement to write will
codicil
Amendment to existing will
Republication by codicil
Will and codicil treated as one document speaking from date of codicil
Proof of codicil= proof of will even if original will was defective for some reason
Codicil can incorporate defective will by reference
pour over provision
Provision in will that leaves prop to inter vivos trust
Trust can be created before or after testator executes will
Trust does not have to be previously funded
integration
Must be able to show that all pages present at time of will execution are the same as pages present at time of probate
physical attachment, internall coherence of pages, or an orderly dispositional plan raise a presumption that the pages were present and intended to be part of the will when it was executed
combination wills
CL: extrinsic evidence can est contractual nature of will
Modern law: writing required
Make a will in a certain way and not revoke it
mere execution of joint wills or mutual wills does not raise a presumption that the wills were executed pursuant to a promise by each party not to revoke
Can be revoked by agreement of parties while both alive
Revoked by one person while both alive = other person can change will
Revoked by one person after other dies = injured beneficiaries may sue to impose constructive trus on property they should have received
Breach of K
Grant constructive trust
No remedy for breach of K not to revoke unless the 1st party dies in reliance on K
power of appointment
Owner of property (donor) transfers to the donee the power to appointment the new owner of the property
General power of appt: power exercisable in favor of donner, their estate, their creditors, or creditors of estate
Special power of appt: power exercisable in favor of limited class of appointees, not including donee, their estate, their creditors, or creditors of estate
Presently exercisable power = exercisable by donee during lifetime
Testamentary power = exxercisable only by donee’s will
Exercise of powers of appointment
Residual clause by itself does not exercise any power of appt held by the testator , some states says yes pass
revocation of will by operation of law
Marriage after will execution
In most states, marriage has no effect on prior will
Some states and UPC: SPouse receives intestate share unless
Will provides for pouse
Omission was intentional or
Testator executed will in contemplation of marriage
Divorce after will
All provisions in favor of ex-spouse are void
Some states void to all exrelationships
Voiding occurs upon final divorce
Prop that would have gone to ex spouse passes under terms of will as if ex spouse had died first
revocation by physical act
Intent
Mental capacity
Physical act: burning , tearing, ripping, writing void across will
Proxy revocation permitted if done at testator’s request and in testor’s presence
Partial revocation : need sufficient evidence that the testator made the changes
States vary
when will executed in duplicate, an act done to either copy revokess the will unless there is evidence that the stator destroyed one copy to prevent connfusion relizing that there can be only one last will
destruction of ann unexecuted copy with intent to revoke does not revoke the will
revocation by subsequent will or codicil
Will or codicil must meet formal requirements
Revocation can be express
New will completely disposes of testaor’s prop= old will completely revoked
New will partially disposes of testator’s property= old will revoked only as to inconsistent parts
revocation of a will revokes all codicils to it
revocation of a codicil to a will does not revoke the entire will
presumptions as to revocation
Presumption of no revocation if will is found in normal location and there are no suspicious circumstances
Will was in testator’s possession or control but cant be produced after testator’s death= presumption that testor revoked will
revival of revoked will
Fact pattern
Testor executes valid will 1
Testator executes valid will 2 which expressly revokes will 1
Testaor then validly revoke will 2
Will 1 revived “
upc/ intent approach
Look at testator’s intent
Automatic revival approach
Revoking will never took effect bc it was revoked
No revival approach: revocation by subsequent writing takes effect immediately when signed
conditional revocation
Express = okay
Implied / de[emdent relative revocation
Fact pattern
Testator executes will 1
Testator validly revokes will 1
Testator executes will 2, but will 2 is invalid
Does will 1 remain?
DRR apply ?
DRR= will 1’s revocation was impliedly conditioned on validity of will 2 if will 2 is invalid, will 1 remains
More similar will provisions = more likely ct will apply DRR
harmless error rule for revocation
clear and convincing evidence
spouse’s elective share
Surviving spouse has right to portion of estate regardless of what will says
Amount may be percentage or vary with # of children or length or marriage
Some states give spouse share of augmented estate, which includes nonprobate assets
community prop states
No elective share bc spouse is protected by owning half of community prop
Deceased spouse can give away only separate prop and their half of community prop
pretermitted child statutes
Purpose is to carry out testator’s presumed intent to provide for children
Typically applies to children born or adopted after will execution
Situations when pretermitted child does not receive forced share
Entire estate left to pretermitted child’s other parent
Omission was intentional
Testator provided for pretermitted child
other protections for minor children and surviving spouse
Homestead ( family residence)
Family allowance = amount suppose to gt to survive after spouse has died , keep lifestyle
In addition to amount passing by will, intestay, or elective share
Exempt personal property
lost or destroyed wills
may be admitted to probate if
- valid execution
- cause of nonproduction ( proof will not revoked)
-contents of will ( proved by at least 2 witnesses or production of photocopy of will)
grounds for will contest
Does not meet requirements of valid will (defective execution)
Lack of legal capacity
Lack of testamentary capacity
Lack of testamentary intent
will contest standing
interested parties, heirs, beneficiaries of prior wills
creditors, executors, and testamentary trustees are not interested parties
insane delusion
Persistent belief in facts that are against all evidence
Must have a connection b/n insane delusion and prop disposition to be grounds for will contest
undue influence
Influence existed and was exerted
Influence overpowered testator’s mind and free will
Influence cause testator to execute with different terms than would have (but for causation)
Evidence of undue influence
Unnatural disposition
Opportunity to exert undue influence
Confidential or fiduciary relationship
Ability of testator to resist
Beneficiary’s involvement in drafting will
Attorney as drafter and beneficiary
No automatic presumption b/n spouses
presumption of undue influence arises when
-there was a confidential relationship b/n the testator and beneficiary
-that beneficiary was active in procuring, drafting, or executing the will
- some states also require the will appear unnatural
durress
form of undue influence but connotes violent conduct such as the threat of physical harm
fraud
False rep made to testator
Knowledge of falsity by persn making statement
Testator reasonably believed statement
Statement caused testator to execute will testator otherwise would not have executed
Types
Fraud in the execution/factum: testator deceived as to identity or contents of instrument
Fraud in the inducement: testator knows identity and contents of will but is deceived as to extrinsic fact and makes gift based on that fact
mistake
Mistake in execution/ factum : testaor is in error regarding contents or identity of instrument
Mistake in the inducement: testator mistaken as to some extrinsic fact and makes will based on that fact
Cts generally will not grant relief
no contest clause
Beneficiary forfeits interest in estate if they contest the will and lose
Most states enforce clause unless contest was in good faith and with probable cause
Some states give clause full effect even if contest was in good faith
probate terminology
personal rep= appt to carry out the estate administration
exector= personal rep named in will
administrator= personal rep not named in will
personal rep
Person appt to carry out estate administration
Called administrator if person died intestate
Called executor if named in will
Bond if required
Take oath
Duties
Give notice to heirs and beneficiaries
Give notice to creditors
Collect and manage all probate assets
Pay estate expenses and creditors
Distribute prop to heirs or beneficiaries
priority of creditors claims
Administration expenses
Funeral expenses and expenses of last illness
Family allowance
Federal claims
Secured claims
Unsecured claims
Heirs and beneficiaries collect
creation and execution of advance healthcare directives
In writing
Signed by declarant/ principal
Witnessed by two adult witnesses
medical power of attorney/ durable healthcare power
Principal names agent to make medical decisions when principal incapacity
revoked by notifying either the agent or the principal’s healthcare provider, and the revocation can be either oral or written
living willl
States individual’s desires regarding lif-sustaining procedures ( withdrawn or not used )
Use of antibiotice
Artificial nutrition or hydration
Living will can be revoked at any time by : physical act, written revocation of will, oral expression of intent to revoke the will
