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Wills Flashcards

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1
Q

Non-Probate Property - Will Substitutes

A
  • Life insurance
  • Joint Tenancies or Tenancy by entirety
  • Inter vivos trusts
  • Bank account trusts
  • Deeds
    -Contracts
  • Inter Vivos gifts
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2
Q

Will Substitutes (Non-Probate property)

A

Will substitutes may enable individuals to avoid taxes and eliminate the cost and
inconvenience of probate.

Property governed by a probate, avoidance technique does not pass through probate and is not covered by the testators will or by intestacy

These assets must be removed from the estate before distributing property under a will or via intestacy

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3
Q

Total Intestacy

A

A Person dies withouthaving made a willtheir will denied probate.

1/2 ways property may pass by intestate

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4
Q

Partial Intestacy

A

A person’s will does not dispose of all of their property either because :
1. A gift has failed OR
2. The will contains no residuary clause

Bar Examiner Fave: Tests wills and Intestacy at same time.

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5
Q

Intestate Succession

A

Basic idea: After debts and taxes paid and nonprobate are removed, the property remainingpasses to the intestates heirs.

Distribution Scheme Theory: gives property to who society views as proper and the distribution scheme cannot be altered to fit the decedents intent regardless of any evidence. > Gov supplies w/o a will you are SoL

**Heirs: **are any person who take by Intestacy does not have to be children. Heirs apparentif person is still alive.

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6
Q

Applicable Law

A

Marital Rights : if decedent was married at the time of death, the law of the domicile at the time property was acquired applies.

Succession Rights
- Personal Property: law of decedents domicile at death
- Real Property: law of the situs of the property (location of the land)

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7
Q

Methods of Computing Shares

A
  1. Classic Per Stirpes
  2. Per Capita w/ representation - Majority
  3. Per Capita at each generational level - Modern Trend
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8
Q

Classic Per Stirpes

A

One share for each living child and each dead child with a living descendant.
If passed to next generation they get shares of their parents.

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9
Q

Per Capita with Representation

A

Equal shares at first generation with living people and if all of first generation are dead it passes to the next and then they divide equally not by the share their parent would have received.

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10
Q

Per Capita at Each Generational Level

A

Divided by generation. First generation divided equally the deceased shares are all pooled at the next generation then they split equally.

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11
Q

Adopted/ Step Children

A

Adopted children are treated as biological children.

No inheritance either way between adopted children and bio parents.

Stepchildren and foster children have no rights.

Adoption by estoppel legal custody is gained under an unfulfilled agreement to adopt them

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12
Q

Non Marital Children

A

Always inherit from mother.

Will inherit from father if :

  1. Father married motherafter child’s birth
  2. Man was adjudicated to be a father in a paternity suit
  3. After death and during probateproceedings the man is proved by clear and convincing evidence to be the father.
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13
Q

Advancement of Intestate Share

A

An advancement is a lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate.

CL: Presumed an advancement.
Most Courts: Now apply the doctrine to any heir, but reverse the presumption.
UPC: An advancement only if it is:
1. Declared as such in a contemporaneous writing by the donor, or
2. Acknowledgedas such in a writing by the heir.

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14
Q

Procedure of Advancement

A

If an advancement:
- the gift’s value when given is added back into the estate for purposes of calculating shares; AND
- then subtracted from the recipient’s share

The heir need not return the amount of an advancement in excess of the value of their intestate share.

With wills it’s called satisfaction.

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15
Q

Advance Predeceases Intestate

A

An advancement is binding upon those who succeed to the estate of the advanceee, if the advance predeceases the intestate.

UPC: an advancement is **not binding ** on the advancee’s successors unless the required writing states that it is.

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16
Q

Simultaneous Death

A

A person cannot take as an heir or will beneficiary unless they survive the decedent.

It is difficult sometimes to determine whether one person survived another. Nearly all states have adopted a version of the Uniform Simultaneous Death Act and about 1/2 uses the traditional version and the other half uses Revised Simultaneous death act, also known as the 120 hour rule the UPC uses the 120 hour rule .

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17
Q

Uniform Simultaneous Death Act (USDA)

A

When disposition of property 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.

  • Applies only if there is evidence of survival.
  • If there is evidence that an heir or beneficiary survived the decedent by even minutes, the USDA.
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18
Q

120- Hour Rule

A

Many states and UPC, require that a person survive the decedent by 120 hours to take any distribution of the decedent’s property.

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19
Q

Disclaimers

A

A beneficiary cannot be forced to accept an inheritance or gift under a will. The heir can disclaim an interest.

Reasons to disclaim:
- Property is Burdensome
- Tax (is not treated as a gift from disclaimant to the eventual recipient.
- Avoid Creditors ( disclaimed property cannot be reached by the disclaimants creditors.

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20
Q

Requirements of Disclaimer

A

Most States:
- must be written
- signed by disclaimant
- acknowledged before notary
- filed with appropriate court within 9 months of death

Tax Purposes:
- must be in writing
- irrevocable
- filed within 9 months
-a surviving joint tenant may disclaim their interest only within 9 months from the other joint tenants death or for the holder of the future interest from the date the interest was created.

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21
Q

Slayer Statute

A

A person who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate.

Property proceeds as if the killer died before the testator.

This can also be created by imposition of a constructive trust.

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22
Q

Testamentary Capacity

A

A testator simply must have the capacity to understand:
- The nature of their act (they know they are executing a will)
- Nature and extent of their property
- The people who are the natural objects of their bounty (family members)
- Be able to formulate an orderly scheme of disposition

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23
Q

Will Elements

A

To be valid and admissible to probate most states require:
1. Will or Codicil be in writing
2. Signed by the testator or another at their direction or in their presence
3. Two attesting witnesses
4. T sign’s the will in each witnesses presence
5. Witness signs in T’s presence

UPC: (1) attested by* two competent witnesses* or (2) signed by a notary

Some states:
- sign at the end
- publish the will (declare it to witnesses)
- In the presence of each other

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24
Q

Presence Requirement

A

Some states require the testator to sign the will in the witnesses presence and vice versa. Most courts use the Conscious Presence Test and a substantial minority uses the Scope of Vision test.

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25
Q

Conscious Presence Test

A

The presence requirement is is satisfied if each party was conscious of where the other parties were and that they were doing and the act of signing took place within the general awareness and cognizance of the other parties.

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26
Q

Holographic Wills

A

A will that is entirely in the testator’s handwriting and has no attesting witnesses. States vary with regard to how much material may be typewritten before the will no longer qualifies as holographic but UPC and most states will accept a will that contains some typewritten text as long as the portion not in the testator’s handwriting is not material.

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27
Q

Classification of Gifts

A
  • Devise: Gift of real property
  • Bequest: Gift of personal property
  • Legacy: Gift of personal property not sufficiently described to be specific
  • Demonstrative Legacy: Gift of specific sum of money payable out of designated fun
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28
Q

Specific Devise(Bequest) or Legacy

A

A specific devise or legacy is a gift of a particular item of property distinct from all other objects in the testator’s estate

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29
Q

General Legacy

A

A gift of general economic benefit (often a $ amount) payable out of general assets of the estate without requiring any particular source of payment.

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30
Q

Demonstrative Legacy

A

A gift of a general amount that is to be paid from a particular source of fund.

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31
Q

Residuary Estate

A

A gift of residue consists of the balance of the testator’s property after paying (1) debts, expenses, and taxes; and (2) specific, general, and demonstrative gifts.

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32
Q

Ademption by Extinction

A

The failure of a gift because the property is no longer in the testator’s estate at the time of their death.
- ONLY applies to specific devises and bequests
- ** Identity Approach: Specifically bequeathed property is not in the testator’s estate at death, the bequest is adeemed and the beneficiary takes nothing.**

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33
Q

Partial Ademption

A

Gift partially adeemed where T devises a large tract of land and then conveys a portion of the tract during their lie. Beneficiary takes the remaining portion

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34
Q

Statutory Exceptions to the Ademption

A

Common but not all:

  • Replacement Property: replaced gift with another similar item
  • Balance of Purchase Price: T sold item and Purchaser still owes money, they get remaining payment
  • Proceeds of Condemnation Award or Insurance: if paid after T’s death go to beneficiary
  • Proceeds from Sale by Guardian or Conservator: T became incompetent and specifically devised prop was sold by guardian, beneficiary may be entitled to pecuniary legacy equal to amount of proceeds.
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35
Q

Increases to Property After Execution of Will (Accessions)

A
  • Specific Gifts: Appreciation and depreciation are normally irrelevant.
  • Increases Before: income goes to general estate and improvements go to specific devisee
    -Increase After: goes to the specific beneficiary , they own it
  • Securities Acquired After will Execution: Common Law; includes shares produced by stock splits but not by a stock dividend. UPC: also includes stock dividends.
    -
36
Q

Exoneration of Liens

A

Some states: Liens exonerated (paid off with estate funds)
UPC & Other States: No exoneration of liens unless will provides for it. Beneficiary takes the property subject to the debt

37
Q

Abatement

A

The process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises. If T does not set out an order of abatement , it abates in following order:
- Prop passing by intestacy
- Residuary Estate
- General Legacies
- Demonstrative Legacies
- Specific bequests and devises

Within a class abatement is pro rata.

38
Q

Lapsed Gifts

A

A gift lapses if the beneficiary predeceases the testator or if the beneficiary is treated as not surviving the testator or disclaimed.
Distribution is as followed:
- The express terms of will
- Rule of Law
- Residuary Clause
Intestacy

39
Q

Anti-Lapse Statute

A
  • Prevent lapse by substituting descendants of predeceased beneficiary for predeceased beneficiary.
  • Relationship needed between testator and predeceased beneficiary varies by state.
40
Q

Lapse in a Residuary Gift

A

MOST STATES: the surviving residuary beneficiaries to divide the share in proportion to their interests in the residue.

If a will devises the residuary estate to two or more beneficiaries and one of them predeceases the testator some states do not allow the surviving residuary beneficiaries to divide the deceased beneficiary’s share among them.

41
Q

Class Gifts

A

If a will makes a gift to a class only the class members who survive the testator take a share of the gift, unless the will provides otherwise or the anti-lapse statute’s requirements are met

42
Q

Basic Rules of Construction

A
  • T left a Will→ Intent not to die intestate
  • If conflicting provisions → Use one closer to testator’s death
  • Will is construed as a whole
  • Give ordinary and technical words their ordinary and technical meaning
  • Give effect to all language in the will
43
Q

Patent Ambiguity (Obvious)

A

A patent ambiguity exists if a provision is ambiguous on its face that is it fails to convey a sensible meaning.

  • Traditional View: Extrinsic Evidence is not admissible to correct
  • MV: Extrinsic Evidence is admissible , but cannot be used to fill in the blanks or supply omitted gifts.
44
Q

Latent Ambiguity (Hidden)

A

A latent ambiguity exists when the language of the will is clear on its face but cannot be carried out without further clarification.

The court will consider extrinsic evidence to resolve ambiguity.

45
Q

No Apparent Ambiguity

A

Language is clear on its face and can be carried out but someone thinks Testator made a mistake
- Plain Meaning Rule (Traditional): extrinsic evidence cannot be used to disturb the clear meaning of a will.
- Modern Rule: Extrinsic Evidence permitted - clear and convincing evidence

46
Q

Incorporation by Reference

A

A testator may incorporate an extraneous document into the will by reference and it is treated as if it were actually written out in full in the will.

47
Q

Requirements for Inc. by Ref.

A

A document may be incorporated by reference into a will, provided;
- Will manifests an intent to incorporate the writing
- Document must be in existence at the time the will is executed
- Document must be clearly identifiedin will.
EXCEPTION:
T may refer in their will to a list specifying the distribution of items of tangible personal property and to write and alter that list after the execution of the will.

48
Q

Independent Significance

A

Something that has a legal reason for existing other than the disposition of property at death.

49
Q

Conditional Wills

A

Provides that it is to be operative only if a certain event occurs or does not occur.
Cts. might interpret what appears to be a condition as merely expressing the motive for making the will and might give the will effect even if the condition does not occur.

Parol evidence is not admissible to show that a will absolute on its face was intended to be conditional.

50
Q

Codicil

A

Amendment to existing will and must itself be executed with the same formalities.

51
Q

Republication by Codicil

A
  • Republication by Codicil: will and codicil are treated as one instrument speaking from the of the last codicil’s execution
  • A validly executed codicil is generally viewed as impliedly incorporating a defective will by reference, thus validating the will.
  • Proof of Codicil = Proof of will
52
Q

Pour-Over Gift

A

A provision in a will making a git to an inter vivos trust.
- Most states have adopted the Uniform Testamentary Additions to Trusts Act (UTAT) → allows the gift to a trust and can be created before or after the execution of the will.

53
Q

Integration

A

Person probating the will must be able to show that the pages present at the time of execution are those present at the time of probate.

Proof of integration can also be provided by testimony or other extrinsic evidence.

54
Q

Combination Wills

A

Joint Wills→ Single testamentary document containing the wills of 2 or more persons

Reciprocal Wills → Separate wills with parallel dispositive provisions

Contractual Will → Will executed pursuant to a contract.

55
Q

Contractual Wills

A
  • 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 trust on property they should have received
56
Q

Power of Appointment

A

Owner of property (donor) transfers to the donee the power to appoint the new owner of the property.

General → a power exercisable in favor of anyone including the donee, etc.

Special→ in favor of a limited class of appointees which class does not include the donee or any of their stuff.

57
Q

Exercisable v. Testamentary

A

Exercisable → power of appointment is one exercisable by the donee during their lifetime
Testamentary Power→ Exercisable only by donee’s will

58
Q

Marriage After Will Execution

A

In most states , marriage has no effect on prior will

Some states and UPC: Spouse receives intestate share unless:
- Will provides for spouse
-Omission was intentional OR
-Testator executed will in contemplation of marriage

59
Q

Divorce or Annulment

A

Most states → divorce or annulment following execution of a will revokes all gifts and fiduciary appointments in favor of the former spouse.

  • Will remains valid; read as if spouse died first
    -Divorce must be final
60
Q

Revocation by Physical Act

A

-Intent to Revoke
- Mental Capacity
- Physical Act: Burning, tearing, ripping, writing “void” across will,etc.

Intent must be concurrent with the act
Physical act must be done at the request of and in the presence of the Testator

61
Q

Revocation by Written Instrument

A
  • Will or codicil must meet formal requirements
  • Revocation can be express
  • New will completely disposes of testator’s property → Old will completely revoked
  • New will partially disposes of testator’s property → Old will revoked only as to inconsistent parts
62
Q

Revival of Revoked Wills

A
  • UPC/Intent Approach: Look at testator’s intent
  • Automatic Revival Approach: Revoking will never took effect because it was revoked
  • No Revival Approach: Revocation by subsequent writing takes effect immediately when signed
63
Q

Revival of Revoked Wills (Fact Pattern)

A
  • Testator executes valid Will 1.
  • Testator executes valid Will 2, which expressly revokes Will 1.
  • Testator then validly revokes Will 2.
  • Is Will 1 revived?
64
Q

Express Conditional Revocation

A

The testator may state in the revoking instrument that a revocation is effective upon the happening (or non-happening) of a named event.

65
Q

Dependent Relative Revocation (DRR)

A

Implied Conditional 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.

The more similar the provisions of the two wills, the more likely the court will apply DRR. The more different the wills, the more likely the testator would have preferred intestacy to will 1.

66
Q

DRR Fact Pattern

A
  • Testator executes Will 1
  • Testator validly revokes Will 1
  • Testator executes Will 2, but Will 2 is invalid
  • Does will 1 remain?
    DRR: Will 1’s revocation was impliedly conditioned on validity of Will 2, If Will 2 is invalid, Will 1 remains
67
Q

Harmless Error- UPC

A

Applies to the execution of wills also applies to the attempted revocation or alteration of a will.

Proponent must establish by clear and convincing evidence that the decedent intended the document that does not meet the requirements.

68
Q

Spouse’s Elective Share

A
  • Surviving spouse has right to portion of estate regardless of what will says
  • Amount may be percentage or vary with number of children or length of marriage
  • Some states give spouse share of augmented estate, which includes nonprobate assets
69
Q

Community Property States

A
  • No elective share because spouse is protected by owning half of community property
  • Deceased spouse can give away only separate property and their half of community property
70
Q

Permitted Child Statutes

A
  • 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 permitted child does not receive forced share:
    1. Entire estate left to pretermitted child’s other parent
    2. Omission was intentional
    3. Testator provided for petermitted child
71
Q

Grounds for Will Contest

A
  • Does not meet requirements of valid will
  • Lack of Legal capacity
  • Lack of testamentary capacity
  • Lack of testamentary intent
72
Q

Insane Delusion

A

An insane delusion is a belief in facts that do not exist and that no rational person would believe existed.
Destroystestamentary capacity **only if there is a connection(nexus) **between the insane delusion and the property disposition.

73
Q

Undue Influence

A

To establish undue influence the contestants must establish that:
* The influence existed and was exerted
* The effect of the influence was to overpower the mind and the will of the testator; and
* The resulting testamentary dispositon would not have been executed but for the influence causation)

74
Q

Evidence to prove Undue Influence

A
  • Unnatural disposition
  • Opportunity to exert undue influence
  • Confidential or Fiduciary relationship
  • Ability of testator to resist
  • Beneficiary’s involvement in drafting will

Circumstantial evidence is not enough to establish Undue Influence

75
Q

Presumption of Undue Influence

Confidential Relationships

A

A presumption of undue influence arises when:
1. there was a confidential relationship between the testator and a beneficiary; **and **
2. beneficiary was active in procuring, drafting, or executing the will.
3. No Automatic presumption between spouses
4. Attorney as Drafter and beneficiary(many states void the gift unless they are closely related)

76
Q

Duress

A

A form of undue influence but connotes **violent conduct **such as the threat of physical harm.

77
Q

Fraud

A

A successful contest on grounds of fraus requires that the testator have been willfully deceived as to:
1. the character or content of the instrument
2. extrinsic facts that would induce the will or a particular disposition; or
3. facts material to a disposition

If a testator is fraudently prevented from making a will, some courts will impose a constructivetrust against beneficiaries.

78
Q

Elements of Fraud

A
  • 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
79
Q

Fraud in the Inducement

A

Testator knows they are executing a will and what it contains but the testator is deceived as to some** extrinsic fact** and makes the will or a gift based on fact.

80
Q

Fraud in the Execution

A

In the case of fraud in the execution, there is a** misrepresentaion as to the identity or contents of the instrument - that is the testator did not know the document was a will or what it contained. There was a lack of testamentary intent.**

81
Q

Mistake

A
82
Q
A

Either (1) the testator is mistaken as to te nature of the instrument, or in some cases, (2) the testator’s mistake in iducement appears on the face of the will.

thought it was power of attorney

83
Q

No-Contest Clause

A

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.

84
Q

Duties of Personal Representative

A
  • Give notice to heirs and beneficiaries
  • Give notice to creditors
  • Collect and manage all probabte assets
  • Pay estate expenses and creditors
  • Distribute property to heirs or beneficiaries
85
Q

Creditor’s Claim

PRIORITY

A
  • Administration Expenses
  • Funeral expenses and expenses of last illness
  • Family allowance
  • Federal Claims
  • Secured Claims
    Creditors must then file their claims within a specified period of time or the claims may be barred.
    The personal representative must give notice of administration to creditors of the estate.

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