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
ademption by satisfaction
testamentary gift satisfied in whole or in part by an inter-vivos transfer from the testator to the beneficiary after the execution of the will, if the testator intends the transfer to have that effect
Increases Occurring After Testator’s Death
Any increase to specific gifts occurring after the testator’s death
passes to the specific beneficiary because the beneficiary is deemed
to own the property from the time of the testator’s death.
Increases Occurring Before Testator’s Death
Income on property goes into the general estate, but improvements
to real property go to the specific devisee.
Appreciation and depreciation of specifically gifted property between
will execution and death is normally_________
irrelevant
stock splits and stock dividends at common law
a specific bequest of stock includes any additional shares produced by a stock split but does not include shares produced by a stock dividend.
stock splits and stock dividends under the UPC
a specific bequest of stock includes any additional shares produced by a stock split and shares produced by a stock dividend.
Exoneration of liens under the common law
liens will be exonerated before bequests are made so the beneficiary will inherit lien free
exoneration of liens under the UPC
liens on specifically devised property are not exonerated (paid off with estate funds) unless the will so directs. Beneficiary inherits subject to the debt
Order of abatement of gifts
- Property passing by intestacy
- Residuary estate
- General legacies
- Demonstrative legacies
- Specific bequests and devises
when does a gift lapes
- beneficiary predeceases the testator
- beneficiary disclaimed
- beneficiary did not survive long enough
Who receives a lapsed gift is controlled by:
- The express terms of the will
- Rule of law (such as an anti-lapse statute)
- Residuary clause
- Intestacy
anti-lapse statute
operate to save the gift
if the predeceasing beneficiary was in a specified degree of relation-
ship to the testator and left descendants who survived the testator. These descendants take by substitution.
if the will uses provisions requiring “survivorship” will the anti-lapse statute apply
NO
what happens to a lapse of a residuary gift?
common law: the deceased beneficiary’s share passes by intestacy
Modern Approach: allowing the surviving residuary beneficiaries to divide the share in proportion to their interests in the residue.
If a will makes a gift to a class, only the class members who___________ take a share of the gift
survive the testator
If a will makes a gift to a beneficiary who was dead at the time the will
was executed the gift is
void
who can raise interpretation and construction issues?
- personal representative
- beneficiaries
basic rules of construction
- favor language that avoids intestacy
- if there are contradictory provisions, the last one prevails
- the will is construed as a whole
- words given ordinary grammatical meaning
- technical words given technical meaning
- attempt to give effect to all words
patent ambiguity
a provision is ambiguous on its face, it fails to convey a sensible meaning.
is extrinsic evidence allowed for patent ambiguities
CL: no
Modern: yes
Latent (Hidden) Ambiguity
A latent ambiguity exists when the language of the will is clear on its
face but cannot be carried out without further clarification.
(ex. “To my sister, Pat,” but the testator has a sister named Chris and a brother named Pat.)
is extrinsic evidence allowed for latent ambiguities?
yes
plain meaning rule (for no ambiguity, but suspected mistake)
traditional approach
extrinsic evidence cannot be used to
disturb the clear meaning of a will.
modern rule (for no ambiguity, but suspected mistake)
permits the use of
extrinsic evidence
incorporation by reference requirements
A document may be incorporated by reference into a will, provided:
* The will manifests an intent to incorporate the document
* The document is in existence at the time the will is executed; and
* The document is sufficiently described in the will
Under the UPC, Separate writing disposing of tangible personal property
- document does not have to exist at Will’s execution.
- permit a testator to refer in their will to a list specifying the distribu-
tion of items of tangible personal property and to write or alter that
list after executing the will
act of independent significance
An act or fact of independent significance is something outside of a will which has a purpose other than disposing of property at death.
example (Testatrix’s will provides, “I leave the contents of my safe deposit box Number 657 at New York State Bank to Tony Stark.” Even though Testatrix may change the contents of the box at any time after will execution, Tony will receive the contents of the box even if Testatrix
does not execute a new will after changing the contents because
the safe deposit box is a fact of independent significance.)
conditional will
- operative only if a certain event occurs or does not occur.
ex. “This will is to be effective if I die from cancer”
republication by codicil
the will and codicil are treated as one instrument speaking from the date of the last codicil’s execution.
alterations on the face of the will
any addition, alteration, interlineation, or deletion made after the will has been signed and
attested is ineffective to change the will, unless the will is reexecuted with proper formalities (or the changes qualify as a holographic
codicil where such codicils are recognized).
can a a properly executed codicil validate a defectively executed will
yes
integration
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.
ways to show integration
- Pages fastened together
- Sentences flow page-to-page
- Ex toto pagination, such as “page x of y”
- Avoidance of blank spaces
- Testator and witnesses initialing of each page
joint wills
a single instrument executed by two or more testators and intended to be the will of each.
reciprocal or mutual wills
separate wills executed by two or more testators that contain substantially similar provisions.
contractual will
a will executed or not revoked as the consideration for a contract.
Testator agrees to leave entire estate to Mary if Mary takes care of
Testator in Testator’s old age.
power of appointment
authority granted to a person, enabling that person (the donee of the power) to designate, within the limits prescribed by the creator of the power, the persons who shall take the property and the manner in which they shall take it.
general power of appointment
power exercisable in favor of
anyone including the donee themself, their estate, their creditors, or the creditors of their estate.
special power of appointment
power exercisable in favor of a limited class of appointees, which
class does not include the donee, their estate, their creditors, or the
creditors of their estate.
testamentary power of appointment
exercisable only by the donee’s will.
presently exercisable power of appointment
may be exercised during donee’s lifetime
can creditors reach appointive assets?
generally no
- if the donee does not exercise their general power the donee’s creditors cannot reach the property.
- If the donee exercises the power, even if the donee appoints to another person, the donee’s creditors can reach the property
- if the donee of a general power is also the donor, the donee’s creditors
can reach the appointive assets regardless of whether the donee
exercises the power.
the residuary clause exercise what kind of power of appintment
general
effect of marriage on a will under the UPC
new spouse takes an intestate share as an omitted spouse unless
- will makes provision for the new spouse
- omission was intentional
- will was made in contemplation for marriage
effect of divorce or annulment
revokes provisions in favor of former spouse. will reads as if ex-spouse predeceased the testator
*includes provisions providing ex spouse as executor, guardian, or trustee
permitted children
if the testator fails to provide in their
will for any child born or adopted after the execution of the will, the
child takes a share computed using statutorily provided formulas.
In many states, if the entire estate is left to the pretermitted child’s other
parent, the child will not receive a forced share.
revocation by physical act
will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will with the intent to revoke.
intent to revoke must be ____ with the act
concurrent
proxy revocation
testator may direct someone else to destroy or cancel the will,
but under the law of most states, the physical act must be done at the
testator’s request and in the testator’s presence.
Partial Revocation
Most statutes authorize partial revocation by physical act if there
is sufficient evidence that the testator made the changes.
Extrinsic evidence is admissible to determine whether a partial or total revocation was intended.
Some states give no effect to the changes and probate the will as originally written.
effect of revocation upon codicils
The revocation of a will revokes all codicils to it, but revocation of
a codicil to a will does not revoke the entire will.
revocation when there are multiple copies
act of revocation done to either copy revokes the will unless there is evidence that the testator destroyed
one copy to prevent confusion realizing that there can be only one
“last” will.
Express Revocation
The subsequent instrument may expressly revoke the earlier will.
Revocation by Inconsistency
If the new instrument completely disposes of the testator’s property,
the old will is completely revoked by inconsistency.
If the new instrument partially disposes of the testator’s property, the old will is revoked only to the extent of the inconsistent provisions.
when is there a presumption of revocation
will last seen in the testator’s possession or under their control
cannot be found after their death or is found in a mutilated condition,
a rebuttable presumption arises that the testator revoked it.
when is there a presumption of no revocation
a will is found in a “normal location” and there are no suspicious circumstances, there is a presumption that the testator did not revoke it.
f the will was last seen in the possession of a third person or if a person adversely affected by its contents had access to the will– is there a presumption of revocation?
no
what happens if a will is lost or destroyed?
it may be admitted to probate if the
following can be proven:
(1) valid execution;
(2) the cause of nonproduction (that is, proof that the will was not revoked); and
(3) the contents of the will. (contents provided by testimony of at least two witnesses or the production of a photocopy of the will)
Revival under the UPC
if a will that wholly revoked a
previous will is thereafter revoked, the previous will remains revoked
unless it is evident from the circumstances or the testator’s statements that the testator intended to revive the previous will.
If the original will was only partly revoked, the revoked provisions are revived unless it is evident from the circumstances or the testator’s statements that the testator did not intend to revive the provisions.
Automatic Revival Approach
revival is automatic under the theory that the revoking will did not take effect because it was revoked prior to the testator’s
death.
No revival approach
a will, once revoked, is not revived when the subsequent will is itself revoked.
The earlier will can be revived only if it is re-executed or republished by a validly executed codicil.
Express Conditional Revocation
The testator may state in the revoking instrument that a revocation is effective upon the happening (or non-happening) of a named event.
Dependent Relative 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
- Testator executes valid Will 1.
- Testator validly revokes Will 1
- Testator executes Will 2, but Will 2 is invalid
- Was the revocation of Will 1 impliedly conditioned on the validity
of Will 2? - Would Testator have preferred Will 1 over intestacy?
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, so the court will not apply DRR.
Proponent of a wills revocation must establish (burden of proof) by (standard of proof)
that the decedent intended the document to be a partial or complete revocation or alteration of the will.
clear and convincing evidence
how long does a surviving spouse have to file notice that they want the spousal elective share
6 months
what is the spousal share calculated from
probate estate minus expenses and creditors’ claims)
where does the spousal share come from?
elective share is paid first from the assets that, but for the election, would have passed to the surviving spouse. Beyond that, the abatement rules apply.
forced share for children
Most states provide a forced share for a child who was born or
adopted after the will was executed. Only a few states provide a
forced share for a child born or adopted before the will execution.
Failure to Provide for Child Believed to Be Dead
if a testator fails to provide in their
will for a living child solely because the testator mistakenly believed
the child to be dead, the child shares in the estate as though they
were an omitted afterborn or after-adopted child.
determination of child’s forced share
- intestate share of the decedent’s estate or
- share equal to included children (included children’s share may be reduced to provide for the omitted child)
- if omission is intentional child receives nothing
homestead allowence
decedent’s spouse or dependent
children are entitled to occupy the homestead for as long as they
choose despite the disposition of the residence in the decedent’s will.
family allowence
- provides financial support during probate
- takes priority over all claims except funeral and administration expenses
- in addition to the amount passing by will, intestacy, or elective share
- some states have specific dollar amount others authorize a “reasonable amount”
exempt personal property
A surviving spouse is usually entitled to petition to set aside certain items of tangible personal property as exempt from claims against the estate
Grounds to challenge a will
1) defective execution,
(2)revocation,
(3) lack of testamentary capacity,
(4) lack of testamentary
intent,
(5) undue influence or duress,
(6) fraud, and
(7) mistake.
insane delusion
- belief in facts that do not exist and that no rational person would believe existed.
- destroys testamentary capacity only if there is a connection (nexus) between the insane delusion and the property disposition.
undue influence
- The influence existed and was exerted
- The effect of the influence was to overpower the mind and free
will of the testator - The resulting testamentary disposition would not have been executed but for the influence
evidence of undue influence
- Unnatural dispositions, such as cutting out close family
- Opportunity or access to testator
- Confidential or fiduciary relationship between parties
- The ability of the testator to resist
- The beneficiary’s involvement with the drafting or execution of the
will
When is there a presumption of undue influence
- confidential relationship between testator and beneficiary
- beneficiary was active in procuring drafting or executing the will
attorney as drafter and beneficiary
- gift is void unless attorney and testator are closely related
duress
undue influence that connotes violent conduct (threats of physical harm)
a fraud claim Requires that the testator have been willfully deceived as to:
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.
remedy for fraudulently preventing someone from making a will
constructive trust against the intestate beneficiaries in favor of those who would have taken had the will been made.
elements of fraud
- 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
fraud in the execution
testator did not know the document was a will or what it contained. There was a lack of testamentary intent.
fraud in the inducement
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 that fact.
mistake
error that was not caused by evil conduct
Mistake in Execution (Mistake in the Factum)
testator did not know that the instrument they were signing was a
will (but were not being forced to sign because of fraud or undue influence)
mistake in the inducement
the testator is mistaken as to
some extrinsic fact and makes their will based on that erroneous fact.
court will not normally grant relief at common law
under UPC court may reform will to conform to testators intent if intent is proven by clear and convincing evidence
no contest clauses (minority rule)
give a no-contest clause full effect, regardless of whether there was probable cause for challenging the will.
no content clause (majority rule)
Under the UPC and in most states, a no-contest clause is valid and will be enforced unless the beneficiary had probable cause for bringing the contest.
no contest clause basic idea
a beneficiary forfeits their interest in the estate if they contest the will and lose.
personal representative
appointed to carry out the estate administration
named in will (executor)
appointed by court (administrator)
duties of personal representitive
(1) give notice to devisees, heirs, and claimants against the estate;
(2) discover and collect the decedent’s probate assets and file an inventory;
(3) manage the assets of the estate during administration;
(4) pay expenses of administration, claims against the estate, and taxes;
and
(5) distribute property
Is a personal representative entitled to compensation
yes
- governed by statute
- discretion of the court
- in the will
In what order are claims paid?
1) administration expenses,
(2) funeral expenses and expenses of the last illness,
(3) family allowance,
(4) debts given preference under federal law,
(5) secured claims,
(6) judgments entered against the decedent during his lifetime, and
(7) all other claims.
how to create and execute a durable healthcare power
(1) in writing,
(2) signed by the declarant or principal or another
at the person’s direction, and
(3) witnessed by two adult witnesses.
what kind of things decisions durable power of attorney make?
(1) whether to
administer, withhold, or withdraw life-sustaining procedures;
(2) whether to provide, withhold, or withdraw artificial nutrition or hydration; and
(3) whether to provide treatment to alleviate pain.
what is a “family consent” or “statutory surrogate” law
- Even when a durable healthcare power is not properly witnessed,
the designated agent may nonetheless have authority to act
-
how to revoke a power of attorney
notifying either the agent or the
principal’s healthcare provider, and the revocation can be either oral
or written
