Wills Flashcards
When do the rules of intestacy apply?
no will
will fails
will does not dispose of all probatable property
will specifies intestate distribution
what is the surviving spousal share
-all states, surviving spouse takes the entire intestate estate if no descendants survive and, in most states, one-half or one-third of the estate if descendants survive
examples of nonprobatable assets
life insurance
joint tenancies or tenancies by the entirety
pay upon death designations
inter vivos trusts
bank account trusts
deeds
contracts
gifts causa mortis
Spousal Share under common law
Dower = 1/3 of a life estate in all property her husband owned during the marriage
curtesy = life estate in all of wife’s real property if a child was born to the marriage
spousal share under modern law
state law specific
- spouse + descendants = spouse gets 1/3 or 1/2 of estate (sometimes also includes a specified dollar amount)
- UPC spouse + descendants all of whom are children of the marriage = spouse gets all
if all the children survive, the children take in _____ shares
equal
classic per stirpes
- divides into shares
at the child generation even if no child survives the intestate. - if a child has died, that child’s portion is split evenly between the Child’s children
per capata with representation
the property is divided into equal
shares at the first generational level at which there are living takers.
Each living person at that level takes a share, and the share of each
deceased person at that level passes to their issue by right of representation.
If all children are deceased and all property is going to the grand-
children, each grandchild takes an equal share rather than the share
(or part of the share) the parent would have taken had the parent
survived.
Per Capita at Each Generational Level
make the initial division of
shares at the first generational level at which there are living takers,
but the shares of deceased persons at that level are combined and
then divided equally among the takers at the next generational level.
Persons in the same degree of kinship to the decedent always take
equal shares.
order of intestate succession
- spouse/descendants
- parents
- descendants of parents (siblings or their descendants)
- Grandparents (or descendants)
- nearest kin
- the state
how are adopted children treated?
the same as biological children
do step children and foster children have inheritance rights?
no (unless adopted)
when do nonmarital children inherit from their mother?
always
when do nonmarital children inherit from their father?
1) the father married the mother after the child;s birth
2) the man was adjudicated to be the father in a paternity suit
3) after his death and during probate proceedings, the man in proved by clear and convincing evidence to be the father.
does the law discriminate between whole and half siblings?
no
when can a posthumous child inherit?
most states allow a posthumous child to inherit when the child is in gestation at the time of death.
some states allow any child born during a specified time period after death to inherit
effect of a disinheritance clause at common law
provision expressly disinheriting an heir is ineffective as to any property passing by intestacy (the will must properly dispose of everything inorder to disinherit)
effect of disinheritance under the UPC and some other states
testator may exclude an individual from inheriting with a negative will provision. share will pass as though the disinherited individual has disclaimed
Under UPC a life time gift is considered not to be an advancement unless:
- declared as such in a contemporaneous writing by the donor OR
- acknowledged as such in a writing by the heir
Hotchpot
add the advancement back into the estate for purposes of calculating shares and then subtract the advancement form the reciepient’s share
Under the simultaneous death act, how long must an individual survive to inherit?
120 hours (an individual in a joint accident must survive the other individual by 120 hours in order to take
what is the Uniform Simultaneous Death Act?
when disposition of property (by will, intestacy, joint tenancy, etc.) 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.
when does the USDA not apply?
if there is evidence that one person outlived another, even just by a sort period of time
How to disclaim
- writing
- signed by the dis-claimant
- acknowledged before a notary
- filed with the appropriate court
- within 9 months of death
can an individual disclaim after the acceptance of any property or benefits?
no
slayer statute
most states have laws preventing a person who feloniously and intentionally brings about the death of a decedent from inheriting by will or intestacy
property passes as if killer had predeceased the victim
standard of proof that killing was unlawful or intentional is by a preponderance of the evidence
codicil
supplement document that modifies a will
what is the applicable law for the distribution of real property?
where the property is located
what is the applicable law for personal property?
the testator’s domicile at the time of death
applicable law for out of state/foregin wills
a will is admissible to probate in a jurisdiction if the will has been executed in accordance with the law of: (1) that jurisdiction, (2) the state where the will was executed, (3) the testator’s domicile at the time of the will’s execution, or (4) the testator’s domicile at death.
legal capacity
testator must be 18 and f sound mind to execute a will (exceptions for marriage and military)
testamentary capacity
testator must have capacity to understand:
- the nature of the act
-the nature and extent of their property
-the persons who are the natural objects of their bounty
-be able to fomulate an orderly scheme of disposition
when is capacity determined
at the time of the will’s execution
is an adjudication of insanity or an appointment of a guardian or conservator mean a person is incompetent to execute a will?
No, an adjudication is not conclusive. a person adjudicated incompetent may be able to
execute a will during a “lucid interval.”
when is parol evidence admissible
to show that an instrument was not meant to have any effect (for example, that it was a sham will).
When it is not clear whether an instrument was intended to be testamentary, testamentary intent will be found only if it is shown that the testator
(1) intended to dispose of the property;
(2) intended the disposition to occur only upon his death; and
(3)intended that the instrument in question accomplish the disposition.
Typical Formalities required for the execution of a will
- in writing
- signed by testator
- two attesting witnesses
-testator sign in each of the witnesses’ presence - witnesses must sign with testator present
possible additional formalities that some states require for the execution of a will
- signed at the end of the will
- publish the will (declare to witnesses that this is the testator’s will)
- witnesses must sign in each others presence
under the UPC who may sign instead of two witnesses?
one notary
what counts as a testators signature?
Initials, nicknames, illegible signatures, rubber stamps, “X,” and
Prince’s symbol could be valid signatures.
when is a proxy signature okay?
The testator’s signature may be made by another person at the testator’s direction and in their presence
can a proxy signer also be an attesting witness?
yes, If the proxy signer signs their
own name as well, they may be counted as an attesting witness.
must a witness know the contents of the will?
no
interested witnesses under common law
a witness who was also a beneficiary was not competent, and the will could not be probated unless there were two other competent witnesses.
modern approach to interested witnesses
All states now provide that the will
is still valid, but the bequest to the interested witness may be void
under a “purging statute” unless they are supernumerary or would
have taken a share as an heir if the will had not been probated.
Is participating via
telephone or computer “presence” for the purpose of fulfilling execution requirements
NO
unless the state has specific e-will
legislation.
attestation clause
recites the elements of due execution and is prima facie evidence of those elements. It is not required, but it is useful if a witness forgets or misremembers the facts surrounding the execution.
what is a self proving affidavit?
self-proving affidavit recites that all the elements of due execution were performed and is sworn to by the testator and witnesses before a notary public
what is the effect of a self proving affidavit?
functions like a deposition and eliminates the need to produce the witnesses in court years later; thus, probate is faster and cheaper.
common practice to use a self-proving affidavit with all wills because it is often difficult to find witnesses as they die, are unavailable, or do not remember witnessing the will.
If not all formalities are satisfied, what happens under the UPC
- the UPC gives the court the authority to ignore harmless errors.
- The defectively executed will can be given effect if the will proponent establishes by clear and convincing evidence that the testator intended the document to be their will.
Requirements of a holographic will
Will is entirely in the testator’s handwriting, signed by testator and has no attesting witnesses
Will the UPC and most states recognize a holographic will that has some typed text?
yes as long as all the material portions of the will are in the testators handwriting
in the small number of states that allow oral wills, these wills are limited to
- the dissipation of personal property only
- soldiers and sailors
- any person during their last sickness or in contemplation of immediate death
do oral wills require witnesses?
Two or more witnesses to the spoken words are
often needed.
devise
gift of real property
bequest
gift of personal property
legacy
gift of personal property in a will (usually money)
specific devise or legacy
a gift of a particular item of property
distinct from all other objects in the testator’s estate.
(ex. I leave my Sony computer Model VGN-FZ250E with a serial number of 458779027578 to Walter Bishop.)
specific bequest of general nature
not distinguishable from the
rest of the testator’s estate until the testator dies.
(ex. I leave my computer to Walter Bishop.)
general legacy
a gift of a general economic benefit (often a dollar amount) payable out of the general assets of the estate without requiring any particular source of payment.
(I leave $10,000 to Walter Bishop.)
Demonstrative Legacy
gift of a general amount that is to be paid from a particular source or fund. If the designated fund is insufficient, the balance
will usually be paid from other assets of the estate.
(ex. I leave $10,000 to Walter Bishop from my account at Superior State
Bank.)
Residuary Estate
balance of the testator’s property after paying (1) debts, expenses,
and taxes; and (2) specific, general, and demonstrative gifts.
ademption by extinction
- failure of a gift because the property is no longer in the testator’s estate at the time of their death.
- applies only to specific devises and bequests.
identity approach to ademption
- if specifically bequeathed
property is not in the testator’s estate at death, the bequest is
adeemed and the beneficiary takes nothing. - beneficiary does not take a substitute gift nor the value of the gift
- beneficiary cannot trace into the proceeds of the sale of the gift even if they are identifiable.
partial ademption
where the testator devises a large
tract of land and then conveys a portion of the tract during their life.
The beneficiary takes the remaining portion.
common statutory exceptions to ademption
- beneficiary to receive replacement property if testator replaced the gifted item with another similar item
- beneficiary to receive money remaining from sale of a gifted item
- if property was sold by guardian, beneficiary entitled to general pecuniary legacy equal to amount of the proceeds from the sale
