Wills Flashcards
Survivng Spouce Shares (Spouse Shared Decedant)
Children outlive decedent = spouse complete recovery
Survivng Spouce Shares (Spouse + Parent)
parent outlives decedent + spouse survives = substaintial interest for spouse
Survivng Spouce Shares (Spouse + Shared decedant + spouses kids)
decendants survive decedent and spouse + spouse has other issues = smaller interest for spouse
Survivng Spouce Shares (Spouse + non-spousal issue)
Decedent survided by issue not realted to the survving spouse
Survivng Spouce Shares (just spouse)
Advancements
At common law gifts to airs during a test daters lifetime reconsidered advancements on their heirs intestate share or the estate and were automatically deducted from their air share of the estate.
Today gifts to errors during a testators lifetime are not considered advancements on their errors and testate share or the estate unless
1. the decedent declared his intent to make the gift in advancement in a contemporaneous writing or
2. the air acknowledged the gift to be an advancement in writing
a. children might not want an advancement because it deducts there share of the estate when the testator dies.
Calculation:
* Add the value of the advancements back into the intestate estate.
* Divide the resulting estate by the number of children taking.
* Deduct the child’s advancement from the child’s intestate share.
Example 45: The decedent dies intestate, leaving three children—A, B, and C— and an intestate estate worth $50,000. A received an advancement worth $8,000 and B received an advancement worth $2,000. C did not receive an advancement.
Step 1: Add the advancements back into the estate ($50,000 + $8,000 + $2,000 = $60,000)
Step 2: Divide into equal shares ($60,000 ÷ 3 = $20,000 each) Step 3: Deduct the advancement from the child’s share
A: $20,000 – $8,000
B: $20,000 – $2,000
C: $20,000 – $0 = Total
Child Predeases Intestate Parent
Strict Per Stripes
- strict per stirpes: under the common law strict per stirpes approach the estate is divided by the number of members in the first generation of children who are either alive or survived by descendants. Each member who is alive takes their share and the shares of the deceased members dropped to the next generation. This process is repeated for the next generations until each share is taken.
Child Predeases Intestate Parent
Modern Per Stripes Approach (per capita)
- Modern Per stripes: the modern per stripe is approach works exactly like the strict per stripe use approach except that the estate is divided equally among the living and deceased at the first generation that has a living taker.
Child Predeases Intestate Parent
Per capita at each generation Approach
- Per capita at each generation: under the UPC per capita at each generation approach the estate is divided at the closest generation to the decedent in which one or more of the descendants are alive. However shares of the deceased descendants on each level are added together and divided equally among all representatives of the deceased descendants in the next generation level. (pooling)
Inheritence Rights of Children
Adoptive Children
Adopted Children:
* A common law only blood relatives inherit from an intestate decedent.
* Today adopted children are entitled to receive the same share under intestacy laws as biological children.
1. In some states a child may be informally adopted through adoption by estoppel when a person takes a child in and assumes parental responsibilities. If such a surviving child can establish an adoption by a estoppel equity holds that she can inherit from the decedent as if she were legally an adopted child.
Courts consider several factors when determining whether a relationship constitutes an adoption by estoppel:
a. the parent bestowal of love and affection on
b. the child the parents performance or parental duties toward the child
c. the child’s obedience and companionship toward
d. the parent the child’s reliance on their relationship
e. the parents holding out the child as their own
- generally adoption in fact are by estoppel terminates the adopted child’s right to inherit from her biological parents. However a child adopted by her step parent may usually inherit from her biological parents as well.
Inheritence Rights of Children
Children Born of out Wedlock
Children Born out of Wedlock.
* At common law a child born out of wedlock was prohibited from inheriting from an intestate decedent.
* Today non marital children may inherit from either parent so long as the facts established a legal parent child relationship.
Inheritence Rights of Children
Half Boold Children
Half Blood Children.
* At common law only full blood children were entitled to inherit from an intestate decedent.
* Today in almost every state half blood children are treated equally as whole blood children. In a minority of jurisdictions they are treated less favorably and sometimes excluded if whole blood can exist..
Integration of Wills
Incorporation by Reference
Incorporation by reference deals with the incorporation of extrinsic documents into the will. In most states a document or writing may be incorporated into a well by reference if;
a. the testator intended to incorporate the document into the will;
b. the document was in existence at the time the will was executed;
c. and the document is sufficiently described in the will.
Revocation of Wills
Three physical acts can revoke a will;
a. subsequent written instrument. A will can be revoked by either;
a. a subsequent written instrument that is executed for the sole purpose of revoking the prior will or
b. a subsequent well or caught a soul containing A revocation clause or provisions that are inconsistent with those of the prior will.
b. A well is revoked if the testator or another person in his presence and not his direction burns tears or obliterates or destroys the will with the intent to revoke the will. Under the common law words of cancellation are valid only if they come into physical contact with the words of the will. Under the UPC words of cancellation need not touch any of the words of the will but they must be somewhere on the will to validly revoke.
Intestacy UPC Rule
Any property not distributed by will upon a secedents death will be distributed according to the states applicable intestacy statute. In most states, when a.. whichever 5 scenarious apply.
- If the d’s outlive the D (decendent) and are related to S (spouce), then S recieves 100% of estate.
- if d’s do not outlive D, then surviving parent will recieve 300k and 75% or remaining estate.
- If d outlive D and S has other issues, the S recieves 225k and 50% remaining estate interest.
- if D has other issues not related to S, then S recieves 150k and 50% of remaing estate interest.
- If no descendents, then S recieves 100% of estate
