Wills Flashcards
Any part of decedent’s estate not effectively disposed of by will passes by _____________ to decedent’s heirs.
Intestate succession
Whose statutes govern intestate succession?
State
Under the laws of all states, _______ take to the exclusion of their own descendants.
An intestate’s children
In states that recognize community property, what does an intestate decedent’s surviving spouse take?
100% of decedent’s 1/2 share of community property
In other words, they have 100% of total community property
In states that recognize separate property, the spouse will receive 100% of property if:
- No descendants or parents survive OR
- All surviving descendants also descendants of surviving spouse
In states that recognize separate property, what does the spouse receive if there is no descendant but a parent survives?
$300K + 3/4 of remaining estate
In states that recognize separate property, what does the spouse receive if the surviving spouse has other descendants who are not descendants of the decedent?
$225K + 1/2 of remaining estate
In states that recognize separate property, what does the spouse receive if the decedent has other descendants who are not descendants of the surviving spouse?
$150K + 1/2 of remaining estate
Any part of the intestate estate not passing to a decedent’s surviving spouse passes in the following order to individuals who survive the decedent:
- Descendants by representation
- Parents
- Siblings (and their descendants)
- Grandparents (and their descendants)
- Descendants of predeceased partner
- State
Under the UPC, distribution “by representation” means ________
The estate is divided into as many equal shares as there are:
1. Surviving descendants in the generation nearest to the decedent which contains living heirs AND
2. Deceased descendants who left surviving issue
The result of per capita at each generational level is that ________.
Every person in the same generational level will always take an equal share
“By representation” is also known as _____________
Per capita at each generation
When parents receive the decedent’s property, how is the property split up?
Each parent gets half. If only one survives, that parent gets 100%
When going through the order of recipients of an intestate share, if there is even one person in a category, then _________.
We stop there and give everything to that person
When it comes to distribution schemes, most states are split between ______ and ______.
Per stirpes
Per capita with representation
Under the UCC, the default distribution scheme is _______.
per capita at each generation
If all takers are equally closely related to decedent, all distribution schemes see what scheme applied?
Per capita
What is “per capita at each generation”?
Every person in the same generational level will always take an equal share
Modern per stirpes is also known as _________.
Per capita with right of representation
Describe the modern per stirpes distribution scheme
All heirs in the first level where there is a living heir receive one share; if an heir is deceased, their share passes down with the same rules.
What is traditional per stirpes?
Distribution allocates at first level of heirs even if everyone at this level is dead, so long as at least one of them has living heirs
State laws generally provide that the word “children” in a will should be interpreted consistently with the definition of “children” used in _____
Determining rights to intestate succession
State laws generally provide that the word “children” in a will should be interpreted consistently with the definition of “children” used in _____
Determining rights to intestate succession
For purposes of intestate succession, how are adopted children treated at modern law?
The same as natural children
For purposes of intestate succession, how are adopted children treated at common law?
Only blood relatives take
Which parent does an adopted child inherit from, adoptive or natural parent?
Adoptive parent
What is the idea of severance when it comes to adoption?
Adoption severs the inheritance relationship between child and natural relatives
What is the exception to severance of an adopted child?
Step-parent adoption
Can children born out of wedlock inherit from their fathers?
As long as one statutorily defined method of establishing paternity is satisfied:
1. Father married mother after child’s birth
2. Adjudicated to be the father in paternity suit
3. After death and during probate; proven to be father by clear/convincing evidence
Statutes that allow a child of unmarried parents to inherit from their mothers but not their fathers violate _____________.
The Equal Protection clause of the 14th Amendment
Stepchildren and foster children have no inheritance rights unless ______ applies.
Doctrine of equitable adoption
What is the doctrine of equitable adoption?
Children who weren’t technically adopted are equitably adopted based on certain factors:
1. The adopting parent’s bestowal of love/affection on the child
2. The adopting performance of parental duties toward the child
3. The child’s obedience to and companionship toward the adopting parent
4. The child’s reliance on an adoptive relationship
5. The adoptive parent’s holding out the child as his child
Under most states, how are half-bloods treated?
Treated the same as if they were of whole blood
Can posthumous heirs inherit?
Only if they:
1. Are in gestation at decedent’s death AND
2. Live for 120 hours after birth
What is the burden of proof for showing that an individual in gestation at the decedent’s death lived 120 hours after birth?
Clear & convincing evidence
The survival rule for posthumous heirs is not applicable if _______.
Application of the survival rule would result in the escheat of property to the state
A child of assisted reproduction concieved after the individual’s death is treated as if gestated at individual’s death if:
- In utero no later than 36 months after individual’s death OR
- Born not later than 45 months after individual’s death
Inter vivos gifts made by an intestate are deducted from the recipient’s intestate share if __________.
So intended by donor.
Under a typical advancement statute, lifetime gifts are not an advancement absent evidence that ___________.
The transferor intended them as such
Under common law, ______ is presumed to be an advancement.
Property the decedent gave during the decedent’s lifetime to an heir
Under the UPC, if an individual dies intestate, property the decedent gave during the decedent’s lifetime to an heir is treated as an advancement only if:
- Inter vivos gift AND
- Intent of advancement express in writing
What is a proper writing showing intent for something to be an advancement under the UPC?
- Contemporaneous writing by intestate OR
- Written acknowledgment by the heir
How is property valuated for the purposes of advancements?
Valued as of the time:
1. The heir came into possession/enjoyment of the property OR
2. Of decedent’s death
…whichever occurs first
How is property valuated for the purposes of advancements?
Valued as of the time:
1. The heir came into possession/enjoyment of the property OR
2. Of decedent’s death
…whichever occurs first
Under common law, an advancement is generally binding on __________.
Successors of the deceased advancee
Under common law, an advancement is generally binding on __________.
Successors of the deceased advancee
Under modern law, an advancement is charged only against _____.
Intestate share of the actual recipient
Under modern law, an advancement is charged only against _____.
Intestate share of the actual recipient
What is the “hotchpot” concept for advancements?
Any advancements recieved by actual heirs are added to the value of the intestate’s estate; then shares are calculated.
The advancements are then deducted from the heir’s intestate share down to 0.
What happens if there is a simultaneous death?
The simultaneous decedent does not take as an heir
When is a death simultaneous?
Does not survive decedent by 120 hours
What is a “death” for purposes of simultaneous death issues?
- Irreversible cessation of circulatory & respiratory functions OR
- Irreversible cessation of all brain functions
The rule of simultaneous death won’t apply if ___________.
Application of the 120-hour survival requirement would result in the escheat of property to the state.
What is a “death” for purposes of simultaneous death issues?
- Irreversible cessation of circulatory & respiratory functions OR
- Irreversible cessation of all brain functions
What happens if there is a simultaneous death?
The simultaneous decedent does not take as an heir
When is a death simultaneous?
Does not survive decedent by 120 hours
A valid will requires:
- Testator with capacity
- Present testamentary intent AND
- Valid compliance with the applicable formalities
When does an individual have capacity to make a will?
- At least 18 AND
- Of sound mind
When does an individual have capacity to make a will?
- At least 18 AND
- Of sound mind
When does someone have sound mind?
- Knows nature/situation of property
- Understands her relations to those whose interests are affected by the will AND
- Understands nature of testamentary act
What are the primary challenges relating to capacity?
- Insane delusion
- Fraud
- Undue influence
If a testary lacks capacity, then _________.
Any part of the will affected by their lack of capacity is invalid
If a later will is stricken for lack of capacity, a _________ can be probated.
Prior valid will
A testator must have present testamentary intent that __________________.
The instrument operate as her will at the time the will is executed
What is the test for present testamentary intent?
Did the testator intend to make a disposition of property that would be:
1. Governed by the instrument in question AND
2. Become effective on the testator’s death
What happens if there is a simultaneous death?
The simultaneous decedent does not take as an heir
Whether the testator had present testamentary intent is a question of _____.
Fact
When is a death simultaneous?
Does not survive decedent by 120 hours
Whether a testator had present testamentary intent is a question of fact to be determined by:
Examining:
1. The will
2. The circumstances surrounding the will
Formal wills are also known as ______ wills.
Attested
What are the will formalities under the UPC?
The will must be:
1. In writing
2. Signed by the testator (or in the testator’s presence by her direction) AND
3. Either attested to by 2+ witnesses or acknowledged by a notary
What is the strict-compliance doctrine?
If the execution of a will didn’t strictly adhere to formalities, the will is invalid
Which is the common law approach, strict-compliance doctrine or substantial doctrine?
Strict-compliance doctrine
What is the substantial compliance approach?
The will is valid as long as it substantially complies with most will formalities
Which will formality must almost always be met, even under substantial compliance?
The will must be in writing
What counts as a signature when it comes to will formalities?
Anything intended to be dipositive
Where must a testator sign a will in order for the signature to be valid?
In most states, anywhere; rarely, at the end.
A testator need not see the actual signing by a designated individual but must only __________.
Be conscious of the individual’s presence and the act of signing
What is the “line-of-sight” test?
The testator should be capable fo seeing the witnesses and the person who is signing the will on the testator’s behalf actually sign the will
Under the UPC, a testator may sign the will outside the presence of the witnesses if _________.
She later acknowledges to the witnesses that:
1. The signature is hers OR
2. The document is her will
When must witnesses sign a will in order to meet will formalities?
Within a reasonable time after witnessing the testator sign the will or acknowledge her signature
An individual is competent as a witness to a will if __________.
An individual is generally competent to be a witness
Can the “reasonable time” requirement be satisfied if the testator dies?
Yes
Under the UPC, there is no requirement that the witnesses sign in the presence of _____ or ______.
The testator
Each other
Under non-UPC, must be acknowledged in testator’s presence
At common law or UPC law, signing of a will by an interested witness will make it invalid.
Which one?
Common law
Under modern law, a will is valid even if there is an interested witness, but __________.
Any gift in excess of the interesteed will’s intestate share:
1. Is purged AND
2. Will pass through the residuary clause (or intestate succession if there is no such clause)
What is an attestation clause?
Recites the elements of due execution
An attestation clause is prima facie evidence of ______.
Due execution
Although no state requires that a will contain an attestation clause, the use of one is desirable because _________.
It raises a rebuttable presumption of the truth of the recitals
A harmless error in executing a will may be excused if ______.
The proponent establishes by clear and convincing evidence that the decedent adopted the document as her will
A court may validate a will not executed in accordance with the statute of wills if ___________.
Evidence is clear and convincing that the testator intended the document to be a will
Under the “harmless error” doctrine of the UPC, a document not executed in compliance with the due execution requirements of the UPC will nevertheless be treated as a valid, formal will if the proponent of the document establishes by clear and convincing evidence that the decedent intended the document to constitute:
- Decedent’s will
- Partial/complete revocation of the will
- Addition/alteration of the will OR
- Partial/complete revival of her formerly revoked will/portion of the will
Holographic-will statutes allow the testator to dispense with _____ entirely.
Attestation
Under holographic will statutes, an unwitnessed will is validly executed if:
- Written in testator’s handwriting AND
- Signed by the testator
Under the UPC, how much of a holographic will must be in testator’s handwriting to be valid?
Material portion of the document only
In addition to being in the testator’s handwriting and signed by the testator, holographic wills must sometimes include ______.
Date in testator’s handwriting
After a testator signs a holographic will, the testator may validly __________ without re-signing the document.
make a handwritten alteration
What is a holographic codicil?
In jurisdictions that permit holographic will, the testator may also validly make and sign a handwritten alteration
What is integration?
Doctrine that permits separate papers to become a single will
Under the UPC, what documents may be integrated?
- Actually present at time of execution AND
- Intended to be part of the will
Intent of the testator to integrate a document as part of the will imay be inferred from:
- Physical connection (e.g. staples) OR
- Logical connection (e.g. internal coherence)
What is a codicil?
A testamentary instrument that:
1. Modifies
2. Amends
3. Revokes
…a pre-existing will
Codicils must be executed in compliance with _______.
Will formalities
A will is treated as if it were executed when its most recent codicil was executed unless ______
The effect of so treating it would be inconsistent with the testator’s intent
A document that is not _____ cannot be republished by codicil.
A valid will
What is republication via codicil’s curative effect?
Can cure defects that might otherwise affect the validity of bequests made under a will
If a testator executes a will, then a codicil, and then there is a revocation. of the codicil, there is a rebuttable presumption that ________.
Only codicil is revoked
If a testator executes a will, then a codicil, and then there is a revocation. of the will, there is a rebuttable presumption that ________.
Both will and all codicils are revoked
A holographic codicil is valid when:
- All material provisions are in the testator’s handwriting AND
- Testator signs it
A writing that is not valid as a will but exists when a will is executed may be incorporated by reference into the will if:
- The will manifests an intent to incorporate the writing AND
- The writing to be incorporated is identified with reasonable certainty
A document or other writing does not have to be _____ to be incorporated by reference
Valid
In order to be included by reference, a writing must be identifiable with ________.
Reasonable certainty
In some states, intent of the testator to incorporate a document by reference is presumed if ________.
Other requirements (1. clearly identifiable document AND 2. in existence at the time of will execution) are satisfied
A will may dispose of property by reference to acts/events that ___________-
Have significance apart from their effect upon the dispositions made by the will
What is the principle behind the doctrine of “facts of independent significance”?
The possibility of undue influence or fraud is reduced when the change in beneficiary has significance apart from the change in testator’s will
An external fact has independent significance if ____________.
It is one that would naturally occur or be done for some reason other than the effect it would have on the testamentary disposition
When must facts of independent legal significance occur to be considered as part of the will?
May be past or future
Who must act in order for their act to be significant?
May be anyone
What is the test for whether an act of independent significance will be relevant to a will?
Does the fact have independent significance apart form the will?
If yes, it will be upheld, since the parol evidence is trustworthy
What is a pour-over will?
Provision in settlor’s will that devises part/all of her estate to the trustee of an inter vivo trust created during settlor’s lifetime
An inter vivos trust and pour-over will are validly incorporated by reference if:
- Trust instrument is in writing
- Trust instrument in existence when will created
- Trust instrument identified with reasonable certainty AND
- Will must manifest intent to incorporate the trust
What validates a pour-over will?
- Incorporation by reference
- Facts of independent significance OR
- Uniform testamentary additions to trusts act
What is the requirement for validation of a pour-over will and inter vivos trust via the doctrine of “facts of independent significance”?
Inter vivos trust must be more than nominally funded
How does the Uniform Testamentary Additions to Trust Act apply to pour-over wills?
If there is a valid trust in existence:
1. Before the will was executed OR
2. At the time of execution
…the pour-over provision is valid by statute
Conditional wills only go into effect when ________.
A certain act/condition happens
A will may be made conditional by clear language indicating that ________.
The will is to take effect only if some particular event happens
A court will probate a conditional will only if _______ has been satisfied.
the doncition
Should a conditional will be a formal or holographic will?
Can be either
To invalidate a will for lack of testamentary capacity, the contestant must show that the testator lacked at least one of the following:
- Ability to know nature/extent of the property
- Ability to know relation to natural objects heirs and whose interests are affected by the terms of the instrument
- Ability to understand the nature of the testamentary act
What is the age requirement of capacity to create a will?
At least 18 years old
What are the elements of insane delusion?
- Testator suffers from a mental disorder
- Causing delusion/hallucination resulting in false belief
- Resistant to contrary evidence AND
- Delusion must have affected will
What is the effect of successfully showing that insane delusion existed?
Only the part of the will affected by testator’s insane delusion will be invalidated
A donative transfer is procured by undue influence if _______.
The wrongdoer exerted such influence that it:
1. Overcame the donor’s free will AND
2. Caused the donor to make a donative transfer that she would not have otherwise made
What are the elements of a prima facie case of undue influence?
- Susceptible testator
- Opportunity to influence
- Disposition or motive to exert influence AND
- Unnatural result
Who is a susceptible testator?
Susceptible due to:
1. Psychological
2. Financial
3. Physical OR
4. Any other weakness
There is a presumption of undue influence where there is _________ and ________.
Confidential relationship
Suspicious circumstances
A confidential relationship exists, causing a presumption of undue influence, in what cases?
- Attorney/client
- Doctor/patient
- Guardian/ward
- Penitent/clergy
- Trustee/beneficiary
A confidential relationship does NOT exist to cause a presumption of undue influence in what case?
Husband/wife (or other domestic partners)
Suspicious circumstances exist, causing a presumption of undue influence, in what situation?
- Active participation in procuring a will AND
- Unnatural result
What is the effect of undue influence?
Only part of the will affected by undue influence is held invalid
What are the court’s options where undue influence has been found to exist?
- Residuary clause
- If no residuary clause, then intestate succession OR
- Constructive trust
What happens if fraud is found?
Any provision resulting from fraud will be invalidated
What are the elements of fraud?
- Misrepresentation of material fact
- Known to be false by the wrongdoer
- For the purpose of inducing action/omission AND
- Actually induces the desired action/omission
What is fraud in execution?
- Forging testator’s signature on a will OR
- Testator signs document under the belief that it is non-testamentary in nature
What is the effect of fraud in execution?
Entire will is invalid; goes to intestate or prior valid will
What is fraud in inducement?
Wrongdoer’s misrepresentations of material fact affect contents of the will
What is the affect of fraud in inducement?
Only part affected is invalid
What options does the court have for dealing with a part of a will that is invalidated by fraud in the inducement?
- Residuary clause
- If no residuary clause, intestate succession OR
- Constructive trust
What is fraud in prevention of revocation?
Wrongdoer’s misrepresentations of material fact prevent the testator from revoking the will
What is the effect of fraud in prevention of revocation?
No probate; creates constructive trust
What happens if there is fraud in prevention of will executing?
Courts in some states will impose a constructive trust against the intestate beneficiaries in favor of beneficiaries who would have taken if the will had been executed
A donative transfer is procured by duress if ______
The wrongdoer threatened to perform/did perform a wrongful act that coerced the donor into making a donative transfer she wouldn’t have otherwise made
A mistake in execution occurs when __________.
The testator signs the wrong document
A mistake arises in one of two situations:
- Testator signs under mistaken belief that instrument is non-testamentary
- Reciprocal wills or mutual wills and parties mistakenly sign each other’s wills?
What result if testator signs under mistaken belief that instrument in non-testamentary?
Will is invalid
What are reciprocal/mutual wills?
Two testators, each with their own will that leave everything to the other person
A mistake of inducement occurs when __________.
The testator makes a particular device based on a mistaken belief
What is the effect of mistake of inducement?
No relief is granted
If there is mistake in the inducement, a court may grant relief when:
- Mistake appears on face AND
- Disposition but for mistake appears on face
A mistake in content occurs when:
- The wrong person is named as beneficiary OR
- The wrong gift is devised
If a will is unambigious, _________ evidence may not be accepted to determine the intent of the testator.
Extrinsic
What is the plain meaning rule?
If the language of a will is clear and unambiguous, the testator’s intent must be determined from the language of the will itself
Evidence of mistake is not admissible to attack ________ in a will.
Clear and unambiguous language
What remedy exists for omissions?
None
Mistake in the description is also known as _______.
Ambiguity
What are the types of mistake in description?
- Non-identification
- Equivocation
What is non-identification as a mistake in description?
Description does not exactly match any person/thing
What is equivocation as a mistake in description?
Description applies equally well to 2+ people/things
A bequest of generally described property applies to ________.
The property meeting that description at the time of testator’s death
What is a latent ambiguity?
Appears clear from the face of the instrument, but outside evidence makes it capable of more than one meaning
____ evidence is admissible to establish latent ambiguity.
Extrinsic
What is patent ambiguity?
Ambiguity apparent on the face of the will
Is extrinsic evidence admissible to show patent ambiguity?
Only under the modern and minority view
Who is a pretermitted child?
Born/adopted after all testamentary instruments executed and not provided for
What happens if there is a pretermitted child?
Generally, unless there is an unequivocal expression to the contrary, the child is entitled to receive the share she would have received had her parent died intestate
What happens if a child is born before testamentary instruments are executed but is not mentioned in those instruments?
Disinherited
When a child is born before testamentary instruments are executed but is not mentioned in those instruments, she is disinherited unless ______-
Testator mistakenly believed child is dead/non-existent
What is mistake in validity of subsequent instrument?
Testator purports to revoke her will on mistaken assumption of law or fact and wouldn’t have revoked if she knew the truth
If a mistake in validity of subsequent instrument exists, what occurs?
Revocation is presumed ineffective.
Mistake in validity of subsequent instrument is also known as:
- Ineffective revocation
- Dependent relative revocation (DRR)
What is the test for a mistake in validity of subsequent instrument?
- Revocation in whole/part
- Upon mistaken belief in validity of subsequent will AND
- Prior will is:
a. Substantially identical AND
b. Consistent with testator’s intent
What does DRR stand for?
Dependent relevant revocation
DRR is also known as mistake of _______
Validity of subsequent instrument
What is the effect of DRR?
Reinstate and probate the old will
Most states authorize probate of a lost/destroyed will (as long as it wasn’t revoked) if:
- The lost/destroyed will was validly executed
- Reason for the will’s nonproductive is given
AND - Contents of the lost/destroyed will are proven by testimony:
a. at least 2 witnesses OR
b. with a carbon copy/photocopy
What is a no contest clause?
Provision in a donative document purporting to rescind a donative transfer to (or fiduciary appointment of) any person who institutes a proceeding challenging the validity of the donative document
No contest clauses are valid & enforceable, but _________
Penalty clause unenforceable if probable cause exists for proceedings
Who has standing to contest a will?
Interested parties (whose interests would be adversely affected by the will)
When must a will contestn be filed?
Within 6 months of the will being admitted to probate
What groups will NOT be considered interested parties?
- Creditors
- Executors
- Testamentary trustees
What is the general rule for revocation?
Any testator with capacity may revoke her will in whole or in part by subsequent act or revocatory act at any time prior to her death
A change of circumstances will only revoke a will if:
- Slayer statutes apply
- Subsequent divorce
To revoke a will by physical act, what elements must be found?
- Revocatory (physical) act
- By testator or another in testator’s conscious presence AND
- Simultaneous intent to revoke
What kinds of physical acts constitute revocatory acts?
- Destroying
- Burning
- Tearing
- Obliterating OR
- Cancellation & interlineation
Is partial revocation by physical act allowed?
Only if statutes specifically authorize it
What happens when a testator revokes one of two identical wills?
Revoking one of the copies revokes all of them
In order to revoke duplicate wills, the copy cannot be:
- Another document OR
- An unexecuted copy of the will
What is cancellation?
Crossing out or lining through the portion of the will that the testator intends to revoke.
Under the UPC, do cancellation words have to touch will words in order to be effective?
No; they just need to be written on the will
Word written on _______ cannot be revocation by cancellation.
Another document
A testator cannot _________ via cancellation.
Increase gift of co-beneficiary
What is interlineation?
Writing above/between the lines that occurs with a cancelation
Increasing a gift cannot be done via interlineation unless:
- Meets holographic will OR
- DRR applies
It is presumed that a prior signature on _____________ is adopted at the time of interlineation.
a holographic will
Interlineation cannot cause a decrease in a gift unless _______.
Holographic will requirements apply
There is a rebuttable presumption that a will last in the possession of testator that cannot be found at the time of testator’s death was _________.
Destroyed by the testator with the intent to revoke
If a will is found in _______ condition at testator’s death and was ____________, there is a rebuttable presumption that the testator intended to revoke.
Mutilated
last in testator’s possession
When does revival of a previously revoked occur?
- Re-executed the will
- Executed a codicil indicating an intent to revive previously revoked will OR
- Performed an act on the will that clearly & convincingly demonstrates an intent to reverse the revocation
When is there express revocation via subsequently executed instrument?
When a new will/codicil expressly revokes it
When is there implicit revocation via subsequently executed instrument?
When the testator validly executes a subsequent instrument that is inconsistent with the original will/provision
A first will is revoked in its entirety if the second will _______.
Disposes of the testator’s entire estate
If there are multiple wills, to the extent there are any partial inconsistencies, provisions in a _______ instrument are controlling
Later
Testator executes will #1, then subsequently executes will #2, revoking #1. The testator then revokes #2.
A will that was revoked by a later will i revived if the testator:
- Re-exected previously revoked will
- Executed a codicil indicating an intent to revive previously revoked will
- Revoked the revoking will by act intending to revive previously revoked will OR
- Revoked the revoking will by another, later will whose terms indicate an intent to revive previously revoked will
An omitted after-born child recieves her intestate share unless:
- Omission intentional & appears on face of instrument
- Pretermitted child provided for outside of instrument OR
- Parent of omitted child
A spouse who married the decedent after all testamentary instruments were executed receives her intestate share unless:
- Will made in contemplation of marriage
- Omission intentional and appears on face of the instrument OR
- Omitted spouse provided for spouse of instrument
At common law, what effect did divorce have on a bequest to a former spouse?
None
In most states and under the UPC, what effect does dissolution have on a bequest to a former spouse?
Revokes as an operation of law
Although dissolution of marriage is sufficient for revocation, ________ is not.
legal separation
A will was revoked by operation of law because of dissolution of a marriage.. Then, the spouses re-married or the dissolution was nullified.
What effect?
Will is revived if:
1. The testator remarried the former spouse OR
2. The dissolution of the marriage is nullified
Ademption by extinction occurs when ______________.
The testator has devised a specifically described item of real/personal property, but the item is no longer owned by the testator at her death
What is the common law/majority view of redemption by extinction?
If the item is no longer in the estate, the gift is extinguished.
What is the modern law/minority view of redemption by extinction?
If item is no longer in estate, devisee may be entitled to either cash value or substitute property if she can show that the testator did not intend the gift to fail
_________ property is not subject to the rules of ademption.
Generic
Under the UPC, a specific devisee has a right to specifically devised property to the testator’s estate at the testator’s death and to:
- Investment securities changing form
- Proceeds from sale of property
- Condemnation award for taking of property
- Proceeds from fire/casualty insurance
- Property acquired as a result of foreclosure
- Replacement property for specifically devised property
Under the UPC, ademption by satisfaction occurs when _________.
The testator makes an inter vivos gift to the beneficiary with the intention that this gift replace or decrease the devise under the testamentary instrument
What are the requirements for ademption by satisfaction?
- Inter vivos gift AND
- Intent of satisfaction by testator
How can intent of satisfaction by testator be shown for redemption by satisfaction?
- Will expressly provides for deduction
- Intent expressed in contemporaneous writing by testator
OR - Written acknowledgement by the beneficiary at any time
Under the UPC, ______ devises are not excluded from ademption by satisfaction.
Specific devises
For purposes of partial satisfaction, property given during lifetime is valued as of:
- The time the devise came into possession
- Enjoyment of the property OR
- Testator’s death
…whichever occurs first
Where the beneficiary receives an inter vivos gift that was intended by the testator to be a satisfaction and the beneficiary predeceases the testator, the gift is treated as _____________.
A full or partial satisfaction of the devise unless the testator’s contemporaneous writing provides otherwise
What jurisdiction’s law controls the passing of intestate personal property?
Law of decedent’s domicile
What jurisdiction’s law controls the passing of intestate real property?
Law where property is located
Most states have statutes requiring that, when the situs state has a statute recognized the validity of a will properly executed in the state where the testator was domiciled, that _______.
It may determine the validity of a landowner’s will under the law in her state of domicile
The validity and effect of a will on real property will be determined by the law of the state where _______.
The property is located
The validity and effect of a will on personal property will be determined by the law of the state where _______.
Decedent was domiciled at time of death
In many states, a written will is valid and will be admitted to probate in a jurisdiction if executed in compliance with the laws of:
- That jurisdiction
- State where will was executed
- Testator’s domicile at the time of will’s execution OR
- Testator’s domicile at the time of death
Contracts surrounding wills that are valid include:
Contract to
1. Make a will/devise
2. Not revoke a will/devise
3. Die intestate
Contracts cannot prevent wills. Such invalid contracts include:
- Contract to make/not to revoke. awill
What type of law governs a contract regarding wills?
Contract law
Under the UPC, contracts to make a will, not to revoke a will, or die intestate may be established only by:
- Provisions of a will stating material provisions of the contract
- Express reference in will to contract & extrinsic evidence proving the terms of the contract
- Writing signed by the decedent evidencing the contract
Cause of action to enforce a contract to create a will, not revoke a will, or die intestate arises upon:
- Decedent’s death
- Fraud on promisee
What remedies exist for breach of a contract to create a will, not revoke a will, or die intestate?
- Damages from decedent’s estate
- Specific performance from executor
- Constructive trust remedy
What is a constructive trust remedy for breach of a contract to create a will, not revoke a will, or die intestate?
Court probates the will as is, giving the property to the devisee who then serves as the constructive trustee, who must transfer the property to the contract promisee
The execution of a joint will, mutual will, or joint and mutual will does not create a presumption - but may serve as evidence - of _________.
a contract to make or not to revoke a will
What is a joint will?
Wills of 2+ people executed on the same piece of paper
Provisions of joint wills do not have to be ________
Reciprocal
Mutual wills are also known as _____ wills.
Reciprocal
What are mutual wills?
Separate wills of 2+ people that contain provisions for reciprocal benefits
What are joint and mutual wills?
Wills of 2+ people executed on the same piece of paper that contain provisions for reciprocal benefits
What is a will substitute?
Nontestamentary provision for a non-probate transfer on death
To make an inter vivos gift of property as a will substitute, the donor must _____________.
Transfer an ownership interest to the donee:
1. Without consideration AND
2. With donative intent
______________ by the donee is required for an inter vivos gift to be complete.
Acceptance
The transfer of personal property, necessary to perfect an inter vivos gift as a will substitute, may be made:
- By delivering the property to. the donee OR
- By inter vivos donative document
The transfer of land, necessary to perfect an inter vivos gift as a will substitute, must be _______.
Evidenced in a writing that is executed in compliance with the formalities required by the applicable SoF
Deferral of transfer of an inter vivos gift until the future might suggest:
- The absence of an intent ot make an immediate gift OR
- An intent to make an imediate gift of a “future interest” in the property because the donor wants to retain possession of the item for life
When can an inter vivos gift as a will substitute be evidenced by a constructive/symbolic delivery?
If the subject matter of the gift is a future interest in an item rather than the item itself
Joint tenancy with the right of survivorship is a form of _______ that is often used as a will substitute.
Undivided ownership
What happens upon the death of a joint tenant?
Property passes outside of probate to surviving joint tenant
Some courts will set aside joint tenancy for a joint bank account if _________.
Evidence shows that the depositor only created the joint tenancy for depositor’s convenience as a form of POA
A totten trust is also known as a _______.
Tentative bank account trust
A totten trust is ___________-
Revocable trust composed of a savings account; essentially a payable-on-death bank account
For a totten trust, a named beneficiary recieves ________.
The remainder of an account at the time of the trustee’s death
Who is the trustee of a totten trust?
The bank account depositor
A totten trust is revocable via:
- WIthdrawal of funds
- Act manifesting intent to revoke OR
- Contradictory will
Life insurance will be governed by _______.
The terms of the life insurance contract
The majority view is that life insurance contracts never permit _________.
Change of beneficiary by will
Courts have sometimes found that a beneficiary change that doesn’t comply with the terms of a life insurance contract is still valid if __________.
The policyholder has “substantially complied” with the contract by taking all reasonable steps within her power to make the change in accordance with the contract terms
A will substitute is any arrangement respecting property or contract rights that is established during the donor’s life under which:
- The right to possession or enjoyment of the property or to a contractual payment shifts outside of probate to the donee at the donor’s death AND
- Substantial lifetime rights of dominion, control, possession, or enjoyment are retained by the donor
A living will is ______.
A written statement that expresses a principal’s desires with regard to health care treatment if the principal were to become mentally and/or physically incapable of expressing those desires
Living wills state a principal’s desires regarding whether to:
- Administer, withhold, or withdraw life-sustaining procedures
- Provide, withhold, or withdraw artificial nutrition or hydration OR
- Provide treatment to alleviate pain
What are the creation and execution requirements of a living will?
- Sound mind & 18 years old
- SIgned by declarant or another at the declarant’s direction AND
- Witnessed by two individuals
When is a declaration of a living will operative?
- Declaration communicated to attending physician AND
- Declarant determined to be in terminal condition & no longer able to make decisions regarding administration of life-sustaining treatment
How may a declaration of living will be revoked?
At any time & in any manner by declarant
A health care proxy is also known as __________.
Durable health care powers
What is a health care proxy?
Legal document that allows a person to designate another person to make health care decisions for the principal if the principal cannot make them on their own
A health care proxy does not become effective until _________.
The principal becomes incapacitated
What are the execution requirements of a health care proxy?
- In writing AND
- Signed by the principal
An agent of a health care proxy may not be an owner, operator, or employee of a healthcare facility at which principal is receiving care unless ___________.
Related to the principal by blood, marriage, or adoption
The power of health care proxy remains in effect notwithstanding _______.
Principal’s later incapacity
What is the scope of agent’s authority under a health care proxy?
Agent makes any/all health care decisions on the principal’s behalf (subject to any express limitations in the health care )
What is the decision-making standard for an agent under a health care proxy?
After consultation with a health care professional, agent must make all health care decisions:
1. In accordance with the principal’s wishes OR
2. If the principal’s wishes are not reasonably known and can’t be ascertained with reasonable diligence, in accordance with the principal’s best interest
An agent under a health care proxy will not be subject to civil liability for their decisions if _____________.
She acted in good faith
An individual may revoke the designation of a health care proxy agent via:
- Signed writing OR
- Personally informing the supervising health-care provider
Whether the power of appointment is effectively exercised depends ______
On the donee’s intent and any formalities mandated by the donor
Under the majority approach, a ________ in a donee’s will that makes no reference to power of appointment is not an effective exercise of a general power of appointment.
Residuary clause
If the portion of the will about the power of appointment is invalid due to ______, it would be excised from the will.
Fraud
In most states, a general _____________ clause does not exercise powers of appointment
Residuary
A general residuary clause in a will DOES exercise powers of appointment if __________.
The general residuary clause is coupled with a blanket exercise clause
Each spouse is completely free to dispose of her own ______ property.
Separate
How much community property may a spouse dispose of?
Her respective 1/2 share
How much quasi-community property may a spouse dispose of?
Acquiring spouse may dispose of her 1/2 share
Non-acquiring spouse has no testamentary power to dispose of acquiring spouse’s _____ property during the acquiring spouse’s lifetime
Domestic
What is the probate definition of quasi-community property?
- All personal property, wherever it is AND
- All real property located in the state that would have ee community property had decedent been domiciled there
Upon divorce, quasi-community property is __________.
All personal and real property, wherever located.
Surviving spouse’s elective share is also known as _______.
Forced share
The purpose of a surviving spouse’s elective share is to _______________.
Grant decedent’s surviving spouse appropriate protection against being disinherited
There is no need for a surviving spouse’s elective share in ___________ states.
Community property
In states that have not adopted the UPC, what spousal elective share is a spouse entitled to?
If decedent is survived by issue, 1/3 of net estate
If decedent NOT survived by issue, 1/2 of net estate
In states that have adopted the UPC, what spousal elective share is a spouse entitled to?
Percentage increases with the length of marriage until it reaches a maximum of 50 percent
In states that have not adopted the UPC, what property falls under a spousal elective share?
Net estate
For purposes of determining a spousal elective share, what is a net estate?
Probate estate minus expenses & creditor’s claims
In states that have adopted the UPC, what property falls under a spousal elective share?
Value of…
1. Decedent’s net probate estate
2. Decedent’s nonprobate transfers to persons other than surviving spouse
3. Decedent’s nonprobate transfers to the surviving spouse AND
4. Surviving spouse’s net assets at decedent’s death
Under the UPC, a petition for the elective share must be made within ________ after the probate of decedent’s will or _________ after the date of decedent’s death, whichever limitation expires later.
Six months
Nine months
In satisfying the elective-share amount, we first look to the assets that _________________.
Have passed to the surviving spouse but-for the spouse’s election
When is there a lapse?
If beneficiary dies before the testator dies, then the gift to the predeceased beneficiary lapses
What gifts are treated as lapsed gifts?
Gifts to beneficiaries who die before the will is executed are also treated as lapsed gifts
What is the effect of lapse?
- Alternative disposition in will takes effect
- If there is no alternative, residuary clause or intestate gifts
- For class gifts, share of predeceased class member passes to class members alive at testator’s death
If an anti-lapse statute that is applicable, then:
- The gift will not lapse AND
- Lineal descendants of the beneficiary take the gift
What are the requirements for anti-lapse?
- Predeceased beneficiary is kindred of testator OR testator’s surviving, deceased, or former spouse/domestic partner of testator
- Predeceased beneficiary leaves issue AND
- Instrument doesn’t express intent to the contrary
Who is kindred?
Blood relative
How does an anti-lapse statute apply to class gifts?
Issue of predeceased class member taking her share of the class gift
How does distribution occur via anti-lapse statute?
- If there is equal degree, then per capita
- If there is unequal degree, then per capita with right of representation
There is a lapse in residuary gift when _____________.
The will devises the residuary to 2+ beneficiaries, one of whom predeceases the testator, and anti-lapse does not apply.
At common law, what occurs when there is a lapse in residuary gift?
Deceased beneficiary’s share passes by intestacy
At modern law, what occurs when there is a lapse in residuary gift?
Surviving residue beneficiaries divide share in proportion to their interests in residue
What is the effect of a slayer statute?
A slayer is denied any right to benefit from her wrong and is barred from inheriting from testator
Who is a slayer for purposes of the slayer statute?
A slayer is a person who feloniously and intentionally kills another
Slayer statutes apply only when _________.
The heir has murdered the decedent whose estate is at issue
The typical slayer statute excludes accidental killings even if ________.
They amount to manslaughter
What kind of evidence of homicide will be conclusive in order to invoke a slayer statute?
Conviction of felonious and intentional killing
If someone is not convicted of intentional felonious killing, the slayer statute will still apply if ________.
Individual would be found criminally accountable under the preponderance of the evidence
If a slayer statute applies, the slayer forfeits _______.
Any interest and statutory benefits of decedent’s estate
What powers is a slayer denied under a slayer statute?
- Any revocable disposition/appointment of property
- Any general or non-general power of appointment
- Any nomination to serve in any fiduciary/representative capacity made by the victim to the slayer in a donative document
The slayer statute severs interest in property held as _______.
Joint tenants with right of survivorship
If the slayer statute applies, can a slayer’s descendants still take?
No
To disclaim is to ______
refuse to accept
The typical disclaimer statute provides that a disclaimer must be made within ______ of the testator’s death.
nine months
The nine-month period for disclaimer is typical because __________.
State disclaimer statutes are designed to comport with the federal disclaimer rules
What are the requirements for effective disclaimer?
- In writing
- Declare the disclaimer
- Describe the interest disclaimed
- Signed by the person making the disclaimer AND
- Delivered to personal representative of decedent’s estate
What is the effect of disclaimer?
Disclaiming party treated as predeceased
Disclaimer of interest in property is barred if:
- Estoppel (disclaimant already accepted the interest) OR
- Used to defeat federal tax lien
When will simultaneous death prevent an heir from taking as a beneficiary?
Heir cannot be shown by clear and convincing evidence to have survived decedent as 120 hrs
What is the burden of proof for showing simultaneous death?
Clear and convincing evidence
Under the doctrine of simultaneous death, death is:
- Irreversible cessation of circulatory & respiratory functions OR
- Irreversible cessation of all brain functions
What is the exception to the simultaneous death doctrine?
The 120-hour survival requirement would result in the escheat of property to the state
What is a class gift?
Disposition to beneficiaries who take as members of a group
To create a class gift, the transferor must intend that __________.
The beneficiaries take as members of a group
What is the rebuttable presumption tied to a class gift?
Terms of gift identify beneficiaries only by a term of relationship or other group label
There is a rebuttable presumption tied to a class gift that the terms of gift identify beneficiaries only by a term of relationship or another group label. This presumption is rebutted if __________
The language/circumstances establish that the transferor intended the identities/shares of the beneficiaries to be fixed
What is the rule of convenience as it relates to class action suits?
A class is closed when distribution to the class must be made
What effect does an outright gift by will have on a class action gift?
Class closes at testator’s death
How is a child in utero treated for class action gifts?
A child in utero at a particular time is treated as living at that time if the child lives 120 hrs after birth
How is a child of assisted reproduction treated for class action gifts?
If conceived posthumously, child is treated as living on the distribution date if:
1. The child lives 120 hrs after birth AND
a. was in utero not later than 36 months after the deceased parent’s death OR
b. born not later than 45 months after the deceased parent’s death
How is a child in process of being adopted when class closes treated for class action gifts?
Treated as adopted when the class closes IF the adoption is subsequently granted
If a class gift in favor of “descendants” doesn’t specify the manner in which the property should be distributed among the class members, then ____________.
The property is distributed among class members living when the interest is to take effect via intestate succession
How is a single-generation class gift distributed?
Divided equally among eligible class members
How is a multi-generational class gift distributed?
By representation
What is a special devise?
The devise of a specially described item of real or personal property.
In order to have a specific devise, the testator must have had the intent that _______.
The beneficiary take this specific item of property and nothing else
What is a general devise?
A gift payable from the general assets of the estate.
Most general devises are _____.
Pecuniary
What does it mean for a devise to be pecuniary?
Gifts of a sum of $
Since there is nothing unique or special about a gift via general devise, the executor of the estate can either give ____ or _____.
The gift
The fair market value of the gift at the time of the testator’s death
What is a demonstrative device?
General devise payable from a specific source that the excutor must first satisfy from the identified source
What is a residuary devise?
Gift of all property not otherwise disposed of by testamentary instrument
How much of testator’s property can a will disperse?
- All property testator owns at death
- All property acquired by the estate after testator’s death
A devise of a specified number of securities carries with it any additional securities that _____.
Testator acquires after executing the will, to the extent that acquisitions resulted from testator’s ownership of securities
Can stock splits be assigned via will?
If:
1. Testator owned the shares being bequeathed at the time of execution AND
2. Stock was still owned by the testator upon her death
Can stock dividends be assigned via will?
If:
1. Testator woned the shares being bequeathed at time of execution AND
2. Stock was still owned by the testator upon her death
Under the UPC, shares acquired by reason of a spin-off or merger accrue to the beneficiary of the stock if:
- The testator owned the shares being bequeathed at the time of execution AND
- Stock was still owned by the testator upon her death
Can a beneficiary of a specific devise own property that increases after testator’s death?
Beneficiary recieves all income earned from the specific devise after the death of testator
At common law, can a beneficiary of a general devise own property that increases after testator’s death?
General devisee’s right to interest begins one year from the death of the testator
Under the UPC, can a beneficiary of a general devise own property that increases after testator’s death?
General devises bear interest at the legal rate beginning one year after administration begins until payment, unless a contrary intent is indicated by the will.
For purposes of determining whether someone takes increase of property under the UPC, when does administration begin?
First appointment of a personal representative
May a beneficiary collect additional income from a residuary gift?
No; no interest may be collected
What is abatement?
The reduction of testamentary legacies because estate assets are insufficient to pay debts and other legacies
For abatement, a testator may determine ______.
The order in which the assets of her estate are applied to the payment of her debts
Abatement within each classification is in proportion to ________.
The amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will
Under the common law, testamentary bequests abate in the following order pro rata:
- Property not disposed of by the will
- Residuary devises
- General devises
- Specific devises
What is exoneration?
Freeing a specific gift from encumberances
Under common law, what is the rule for exoneration?
When a testator made a specific devise of mortgaged property, it was presumed that the testator wanted the debt paid out of the estate’s residuary
Under the UPC, what is the rule for exoneration?
A specific devise passes subject to any mortgage interest existing at the date of testator’s death, without right of exoneration, regardless of a general directive in the will to pay debts
Courts have held that __________ is insufficient to evidence an intent to exonerate the devisee of specifically devised property
a general directive to pay debts
Claims against an estate are paid in the following order:
- Administration expenses
- Funeral expenses
- Family allowance
- Preferred claims
- Secured claims
- Judgments entered against the decedent during her lifetime
- All other claims
Under termination of her appointment, a personal representative has the same power over the title to property of the estate that ___________ would have, but ______
An absolute owner
in trust, for the benefit of creditors and others interested in the estate
Personal representative powers may be exercised without:
- Notice
- Hearing
- Order of the court
Who appoints a personal representative?
The court; however, the testator’s intent will govern
If there is no named personal representative, the court will appoint _______ as a personal representative.
Surviving spouse or nearest kin
If there is no named personal representative, surviving spouse or nearest kin, the court may appoint ___________ as personal representative.
a professional personal representative
_______ is an essential requirement to the appointment of one as an administrator.
Consent
What are the duties of a personal representative?
- Give information to heirs & devisees
- Inventory & appraisement of property owned by decedent at death
- Manage the assets during administration
- Pay expenses of administration, claims against estate & taxes AND
- Distribute property
What information should a personal representative give to heirs & devisees?
- Name and address of the personal representative
- Indicate who receives information
- Indicate whether a bond has been filed
- Describe the court where the papers relating to the estate are on file
The personal representative has a continuing duty to provide supplemental inventory if:
- Personal rep learns of any property not included in the original inventory OR
- Personal rep learns that the value/description indicated in the original inventory for any item is erroneous/misleading
A personal representative is entitled to compensation for _______
Her services
How much of testator’s property can a will disperse?
- All property testator owns at death
- All property acquired by the estate after testator’s death
