Wills Flashcards
When does property pass by instate succession?
a decedent dies without having made a will or their will is denied probate (total Intestacy)
decedents will does not dispose of all of the decedents property, either because a gift has failed or because the will contains no residuary clause (partial intestacy)
Can the intestacy distribution scheme be altered to fit the decedents intent?
No, regardless of evidence of decedents intent
Classic Per Stirpes
Minority rule
one share is created for each child and one share for each deceased child who has at least one surviving descendant. Each child receives one share and one share passes to a deceased Childs descendants by representation.
Per capita with representation
Majority Rule
property is divided into equal shares at the first generational level at which there are living takers
Divide at first level with member who outlived intestate
Per capita at each generational level
Modern trend and UPC
initial division at first level of living takers. shares at the next level are combined and divided equally among the takers at the subsequent level. Persons in the same degree of kinship to the decedent always take equal shares
Advancement: Common law vs UPC
Common law:
substantial lifetime gift to one of the decedents children was presumed an advancement
UPC: advancement only if:
(1) declared as such in contemporaneous writing by donor; or
(2) acknowledge as such in a writing by the heir (need not be contemporaneous)
When does USDA apply?
When disposition of property (by will, intestacy or joint tenancy) depends on the order of death, and the order cannot be established, the property of each decedent is disposed of as if they had survived the other.
If it can be shown one survived even by minutes it will not apply.
Requirements for disclaimer
in writing
signed by disclaiming party
before a notary
filed with appropriate court within 9 months of death
Requirements of testamentary capacity
testator must have capacity to understand:
The nature of their act–they are executing a will
the nature and extent of their property
the person who are the natural object of their bounty (family members)
be able to formulate an orderly scheme of disposition
**the above is determined at the time of will execution
Factors to find testamentary intent
1) testator intended to dispose of the property;
2) intended the disposition to occur only upon death; and
3) intended the instrument inquisition accomplish disposition
Requirements for a valid will
1) the will or codicil must be in writing
2) must be signed by the testator, or by another at the testators direction and in there presence
3) two attesting witnesses
4) testator signs will, or acknowledges signature or will in presences of each witness; and
5) witnesses sign in testators presence
conscious presence test
satisfied if each party was aware of where the parties were and what they were doing and the act of signing took place within the general awareness and cognizance of the other parties.
majority rule
scope of vision test
satisfied if person was in such close proximity they could have seen the signing had they looked
Minority rule
scope of vision test
satisfied if person was in such close proximity they could have seen the signing had they looked
Minority rule
Holographic will
Entirely in the testators handwriting and has no attesting witnesses.
Must contain a signature from the testator.
UPC and most states allow partial handwriting if the material terms are in testators handwriting.
Can you make changes to beneficiaries or amounts in an attested will after execution?
Generally no, unless the JDX where the changes are made recognizes holographic wills
What is a devise?
A gift of real property.
Recipient is the devisee
What is a bequest?
A gift of personal property
