Wills

Question 1

What is a holographic will?

Priority: High

Answer 1

A holographic will is in a testator’s handwriting, signed by the testator, and need not be witnessed.

Question 2

Can a life insurance policyholder change their beneficiary?

Priority: Medium

Answer 2

A life insurance policyholder has the power to change beneficiaries during their lifetime. However, such a change is generally not permitted through a will, and must be changed on the policy directly.

Question 3

How can a document be incorporated into a will by reference?

Priority: High

Answer 3

In most states, a document or writing may be incorporated into a will by reference if: (1) it EXISTED AT THE TIME THE WILL WAS EXECUTED; (2) it is SUFFICIENTLY DESCRIBED in the will; and (3) the testator INTENDED to incorporate it into the will.

Question 4

Under common law, what happened if a beneficiary died before the testator?

Priority: High

Answer 4

Under common law, all gifts in a will were conditioned on the beneficiary surviving the testator. Any gifts to beneficiaries who did not survive the testator FAILED and passed to the residuary estate or under intestacy.

Question 5

With an anti-lapse statute, what happens to a gift where the beneficiary predeceased the testator in a jurisdiction with an anti-lapse statute?

Priority: High

Answer 5

Under the majority of anti-lapse statutes, if the gift was made to a relation of the testator within a specific statutory degree, and the relation predeceased the testator but left issue, then the issue succeeds to the gift, unless the will expressly states the contrary.

Question 6

What happens when the assets of an estate are insufficient to pay all gifts and creditors?

Priority: High

Answer 6

Gifts by will are abated, or reduced, when the assets of the estate are insufficient to pay all debts and legacies.

Creditors of the estate always have priority to assets of the estate over beneficiaries.

Question 7

How are gifts abated absent a provision in the will?

Priority: High

Answer 7

Absent provisions in the will, gifts are abated in the following order: (1) property passing by intestacy; (2) residuary gifts; (3) general gifts; (4) specific gifts.

Each category must be fully abated before moving onto the next category

Abatement within each category is in proportion to the amounts of property each of the beneficiaries would have received

Question 8

Who has standing to challenge a will?

Priority: Low

Answer 8

Only an interested party with a financial interest may challenge a will, which is a person that is adversely affected by the will being admitted to probate.

Question 9

What is the mental capacity requirement?

Priority: Medium

Answer 9

In order to validly execute a will, a testator must have mental capacity.

Mental capacity is presumed.

Question 10

When does a testator have the mental capacity to execute a will?

Priority: Medium

Answer 10

A testator has mental capacity if they know (1) the nature and extent of their property, (2) the natural objects of their bounty (people with the highest interest to the property), (3) the disposition they are attempting to make, and (4) the ability to connect these elements to form a coherent plan.

Question 11

Under common law what is required for a will to be valid?

Priority: Medium

Answer 11

At common law, strict compliance with the formal requirements of a state’s law is required.

Question 12

When will courts probate a non-compliant will under the UPC approach?

Priority: Medium

Answer 12

A minority of jurisdictions and the UPC have granted courts the power to probate a non-compliant will in situations when there is clear and convincing evidence that the decedent intended for the document to serve as their will and has substantially complied with the statutory formalities.

Question 13

How is the validity of a will determined?

Priority: Low

Answer 13

At common law, the validity of a will is determined under the law of the state where the testator was domiciled at the time of his death.

Under the UPC, validity is determined under the law of the place where (1) the will was executed, or (2) the testator is domiciled, has a place of abode, or is a national at the time of death.

Question 14

How is the validity of a will determined?

Priority: Low

Answer 14

At common law, the validity of a will is determined under the law of the state where the testator was domiciled at the time of his death.

Under the UPC, validity is determined under the law of the place where (1) the will was executed, or (2) the testator is domiciled, has a place of abode, or is a national at the time of death.

Question 15

How is the validity of a will determined?

Priority: Low

Answer 15

At common law, the validity of a will is determined under the law of the state where the testator was domiciled at the time of his death.

Under the UPC, validity is determined under the law of the place where (1) the will was executed, or (2) the testator is domiciled, has a place of abode, or is a national at the time of death.

Question 16

Can a will be conditional?

Priority: Medium

Answer 16

The validity of a will can be conditioned on a particular event or circumstance.

However, whenever possible, the court will construe excess language as a mere explanation or instruciton, rather than a barrier to admitting the will to probate as a valid instrument.

Question 17

What does a court consider to determine whether a will was conditional?

Priority: Medium

Answer 17

The court will consider whether the event is referred to expressly as a condition or only a statement of the motive for executing the will.

The court considers factors such as where the will was stored after the purported “condition” lapsed, whether setting the will aside would result in intestacy, and whether effectuating the will would result in an inequitable distribution.

Question 18

When, and how, is a will construed/interpreted?

Priority: Medium

Answer 18

Under the general rule of construction, a will “speaks” as of the time of death.

Courts are reluctant to disturb the plain meaning of a will regardless of mistake.

Question 19

How will courts resolve ambiguities in a will?

Priority: Medium

Answer 19

If there is an ambiguity, courts allow extrinsic evidence to resolve it.

Traditionally, courts distinguished between patent and latent ambiguities; however, many states no longer make this distinction

Question 20

What would happen to a gift if the beneficiary predeceased the testator under common law?

Priority: Medium

Answer 20

Under common law, if a beneficiary died before the testator, the gift failed and went to the residue unless the will provided for an alternate disposition.

Question 21

What would happen to a gift if the beneficiary predeceased the testator under common law?

Priority: Medium

Answer 21

Under common law, if a beneficiary died before the testator, the gift failed and went to the residue unless the will provided for an alternate disposition.

Question 22

What are pretermitted heir statutes?

Priority: High

Answer 22

Pretermitted heir statutes allow children of a testator to claim a share of the estate even though they were omitted from the testator’s will.

Question 23

What happens when a child is born after the execution of a will?

Priority: High

Answer 23

While the birth or adoption of a child after the execution of a will does not invalidate the will, such children are omitted from the will.

If the testator then dies without revising the will, a presumption is created that the omission of the child was accidental.

Question 24

What rights does a child have if they are left out of a will?

Priority: Medium

Answer 24

Generally, a child has no rights to their parent’s estate if the parent chooses to leave him or her out of the will.

The only time a child will have rights when omitted from a will, is if the child is a pretermitted child.

Question 25

What is a general power of attorney?

Priority: Medium

Answer 25

A power of attorney (POA) is an authorization to act on someone else’s behalf in a legal or business matter. The person authorizing the other to act is the principal, and the one authorized to act is the agent.

Question 26

What is a healthcare power of attorney and when does it become effective?

Priority: Medium

Answer 26

A healthcare POA appoints an agent to make healthcare decisions on behalf of the principal if she becomes unconscious, mentally incompetent, or otherwise unable to make decisions.

Unlike other powers of attorney, a healthcare power of attorney becomes effective upon incapacitation of the principal.

Question 27

How must an agent make healthcare decisions?

Priority: Medium

Answer 27

An agent must make a healthcare decision in accord with the principal’s instructions or other known wishes. If such instructions do not exist, then the agent must make decisions in accordance with the agent’s determination of the principal’s best interest.

Question 28

Is an agent liable for healthcare decisions?

Priority: Medium

Answer 28

The typical durable healthcare POA statute shields the agent from civil liability for healthcare decisions that are made in good faith.

Agents act within the scope of the statute when they act pursuant to a properly executed durable power of attorney.

In general, an agent is held responsible only for intentional misconduct, not for unknowingly doing something wrong.

Question 29

Is a person barred from receiving property from a decedent if they are responsible for the decedent’s death?

Priority: High

Answer 29

In general, a party cannot take property from a decedant when the party was responsible for the decedent’s death. The killing must have been intentional and felonious to bar the killer from taking.

Modern precedent holds that a healthcare agent acting in good faith under their authority is not barred from taking under a decedents will.

Question 30

How does divorce effect a will, and what about separation?

Priority: High

Answer 30

In most jurisdictions, divorce revokes all will provisions in favor of the former spouse, unless it can be shown that the testator intended for the will to survive.

Spouses who are separated or are in the process of obtaining a divorce, remain spouses until the issuance of a final decree of dissolution of the marriage, unless a complete property settlement is in place.

Question 31

Can a spouse waive the right to receive property in intestate succession or through a will?

Priority: Medium

Answer 31

A spouse may waive in whole or in part, before or during the marriage, the right to receive property that would pass by intestate succession or by testamentary disposition in a will that was executed before the waiver.

Question 32

How does a prenuptial agreement waiving right to property effect a will?

Priority: Low

Answer 32

A valid prenuptial agreement will serve to waive a spouses right to property. However, it does not apply to subsequent gifts or bequests made voluntarily such as through a will.

Question 33

How does adoption effect the inheritance rights of a biological child to their biological parents estate?

Priority: High

Answer 33

In a majority of states, adoption curtails all statutory inheritance rights between the natural parents and the child.

However, a natural parent can still choose to include the child in their will.

Question 34

How may non-marital children inherit from their father?

Priority: High

Answer 34

Non-marital children inheriting from a father must first establish paternity.

This can be shown by a parent holding themselves out as the father, providing support for, or having a relationship with the child.

Question 35

What is a personal representative and how does someone become one?

Priority: Medium

Answer 35

A personal representative is either named in the will (executor) or appointed by the court (administrator) to oversee the winding up of a decedent’s affairs.

When a will is silent regarding the appointment of a personal representative, a court will generally appoint an administrator.

Question 36

Who can serve as a personal representative?

Priority: Medium

Answer 36

Any person with the capacity to contract may serve as a personal representative?

Priority: Medium

Question 37

How does the court determine who to appoint as a personal representative?

Priority: Medium

Answer 37

Under the UPC, a person named in the will has priority for appointment, followed by the surviving spouse who is a devisee of the decedent, then other devisees, and finally a surviving sposue who is not a devisee of the decedent.

Question 38

How can a will be revoked?

Priority: High

Answer 38

A will may be revoked wholly or partially in three ways: by subsequent writings, by physical destruction of the will, or by operation of law.

Question 39

What is necessary to revoke a will bt physical act?

Priority: High

Answer 39

Physical destruction may take the form of burning any portion of the will or canceling, tearing, obliterating, or destroying a material portion of the will with the intent to revoke it.

Both the act and a simultaneous intent to revoke must be proven to yield a valid revocation.

Question 40

When does an omitted child statute not apply?

Priority: High

Answer 40

An omitted child statute does not apply if: (1) it appears that the omission of the child was intentional; (2) the testator had other children at the time the will was executed and left substantially all of his estate to the other parent of the pretermitted child; or (3) the testator provided for the child outside of the will and intended this to be in lieu of a provision in the will.

Question 41

What is an elective share?

Priority: Medium

Answer 41

An elective share gives the surviving spouse a fraction of the decedent’s estate if the surviving spouse decides to elect that share, rather than a gift in the will.

Question 42

What is included in a probate estate?

Priority: High

Answer 42

The probate estate includes all assets that pass by will or intestacy upon a decedent’s death.