Wills Flashcards
Attested Will: Requirements for Validity
1) Legal Capacity (most states, person must be at least 18)
2) Testamentary Capacity (sound mind requirement)
3) Testamentary Intent (testator intended instrument to be will, must have present intent that the instrument operate as their will)
4) Formalities: 1) in writing, 2) signed by testator, 3) attestation → 2 witnesses who are credible
Holographic Will
Holographic will is an unattested (has not been witnessed or nortarize) will entirely in the testator’s handwriting.
UPC & majority of states recognize holographic wills, requiring that all or most of the will be in the testator’s handwriting and signed by the testator.
Codicil
Later testamentary instrument that amends, alters, or modifies a previously executed will
Republication by Codicil
A will is treated as having been executed (republished) on the date of the last validly executed codicil.
Codicil acts to republish the will except for the parts that are inconsistent.
Incorporation by Reference
In most states, a document that is not present when a will is executed may be incorporated into the will by reference and considered part of the will if:
1) the document eas in existence at the time the will was executed
2) the will sufficiently describes the document, and
3) the will manifests an intent to incorporate the document
For the disposition of items of personal property, many states and the UPC dispense with the requirement that the document be in existence at the time the will is executed if the writing is signed by the testator and the items and devisees are described with reasonable certainty.
Intestate Succession - Survived by Spouse & Descendants
Under intestacy statutes, the portion of the estate not passing to the surviving spouse passes to the decedent’s children and descendants of deceased children.
Parents & collateral kin never inherit if the decedent is survived by children or more remote descendants
Slayer Statutes
Slayer statutes prevents one who feloniously and intentionally brought about the death of the decedent from inheriting or being a beneficiary in decedent’s estate. ONLY apply when the heir kills the decedent whose estate is at issue.
The effect is that the property passes as though the killer predeceased the decedent.
Ademption
Under the doctrine of ademption, when specifically bequeathed property is not in the testator’s estate at death, the bequest fails.
Most courts apply the identity theory of ademption, which uses an objective test that does not take into account the testator’s probable intent. Under that view, if the property is not in the estate at the testator’s death, it is adeemed, and the reason it is not in the estate is immaterial.
Some courts allow the beneficiary to take substitute property if he can show the testator intended the beneficiary to take that property.
Under the UPC, a specific devisee has the right to real and tangible personal property that was acquired by the testator as a replacement for the devise property.
Stocks After Will Execution
Under the common law rule, a specific bequest of stock includes any additional shares produced by a stock split but not those produced by a stock dividend.
Under UPC and statutes of nearly all states, a specific bequest of stock includes both any additional shares produced by a stock split and those produced by stock dividends.
Exception to Ademption Doctrine
If a guardian or conservator is appointed for the testator after the will is executed and the bequeathed property is sold by the guardian, the beneficiary is entitled to the sale proceeds (at least to the extent they have not been expended for the testator’s care)
Divorce After Making Will
If a testator is divorced after making a will, all gifts to the former spouse are revoked and the will takes effect as though the former spouse predeceased the testator
-In most states, testator’s divorce from spouse, only revokes gifts to spouse, not gifts to anyone else. Without a valid revocation, a bequest in a validly executed will remains in full force regardless of the subsequent relationship of the parties.
*****Under the UPC, a divorce revokes bequests not only to the former spouse but also to the relatives of the former spouse.
Intestate Succession - NOT Survived by Spouse or Descendants
In most states, if a decedent is not survived by a spouse or descendants, their intestate property passes to her parents and/or siblings (and children of deceased siblings)
Per Capita with Representation Distribution
In most states (majority rule), the issue take per capita with representation.
Property is divided into equal shares at the first generational level at which there are living takers, with the shares of each deceased person at that level passing to his issue by right of representation.
Per Capita at Each Generation Level Distribution
The modern trend is Per capita at each generational level. Under this scheme, the initial division of shares is made at the first generational level at which there are living takers, but the share of deceased persons at that level are combined and then divided equally among the takers at the next generational level.
-bottom line: anyone who is equally related gets an equal share!!
Per Stirpes Distribution
Under the common law strict per stirpes distribution, one share passes to each child of the decedent, regardless of whether there are any takers at that level. If the child is deceased, the child’s share passes to his descendants by representation.
-Always divide at first generation!
