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MEE > Wills > Flashcards

Wills Flashcards

1
Q

Nonprobate Property

A

Property that does not pass through probate and is not governed by will or intestacy.

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2
Q

Co-Ownership of Property

A

In a tenancy in common the decedents share passes through estate

In a joint tenancy the decendants share passes to surviving joint tenant

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3
Q

When Intestacy Occurs

A

• Person died without a will (total intestacy)
• Will did not dispose of all property (partial intestacy)

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4
Q

Heirs

A

Persons who take by intestacy (not just children).

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5
Q

Applicable Law for Intestacy

A

_Marital Rights:_Law of domicile when property acquired

Succession Rights:
• Personal property: Law of domicile at death
• Real property: Law of situs (location of land)

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6
Q

Spouse’s Intestate Share

A

Varies by state
• May be percentage like one-third or one-half of estate
• Share may vary depending on number of children or length of marriage

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7
Q

Descendants

A

Persons related to decedent in descending lineal line such as children and grandchildren

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8
Q

Per Stirpes Distribution

A

• Divide estate into shares at first generation below decedent
• Create one share for each surviving child and one share for each predeceased child who left living descendants
• Give each surviving child one share
• Give share created for predeceased child to child’s descendants

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9
Q

Per Capita With Representation Distribution

A

• Divide estate at first generation with surviving members
• Each living person at that level takes a share
• Share of deceased person at that level passes to issue

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10
Q

Per Capita at Each Generational Level Distribution

A

• Divide estate into shares at first generation with survivors
• Pool shares of lower generation, so each person recieves equal share

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11
Q

Ancestors

A

Persons related in ascending lineal line such as parents and grandparents

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12
Q

Collaterals

A

Persons related but not in a lineal line such as siblings, aunts, and uncles

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13
Q

Estate Passes in Following Order:

A
  1. Parents
  2. Siblings
    • If one parent and at least one sibling survive, some states give entire estate to parent
    • Other states give one-half to parent and one-half to siblings
  3. Grandparents and their descendants
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14
Q

Adoption

A

• Adopted child inherits from adoptive parents
• Whether adopted child inherits from biological parents varies by state
• Adoptive parents inherit from adopted child
• Biological parents do not inherit from adopted child
• Adoption by estoppel may permit child to inherit
• Generally stepchildren have no inheritance rights
• In most states, age when person was adopted does not matter

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15
Q

Nonmarital Children

A

• Always inherit from mother
• Inherit from father if state requirements met (such as determination of paternity)

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16
Q

Half Blood Siblings

A

Siblings with one common parent.
Most states do not distinguish between half bloods and whole bloods

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17
Q

Posthumous Child

A

Child born after death of a parent

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18
Q

Advancement

A

Irrevocable lifetime gift intended by donor as prepayment of intestate share

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19
Q

Survival

A

How long must an heir outlive the intestate.
• Some states: Heir can survive for any amount of time
• UPC: Heir must survive by 120 hours (5 days)
• No survival —> Heir treated as predeceased

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20
Q

Requirements of Disclaimer

A

• In writing
• Signed by person disclaiming
• Acknowledge in front of notary
• Timely filed
• Modern view: can disclaim at any time as long as no acceptance or use of benefits from gift

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21
Q

Effect of Disclaimer

A

Effect of disclaimer is to treat person who disclaimed as dying first.

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22
Q

What Happens if Heir/Beneficiary Kille Decedent

A

• Slayer statute precludes killer from inheriting or being beneficiary
• Court can impose constructive trust (in states without slayer statutes). Which is an equitable remedy to prevent unjust enrichment

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23
Q

Applicable Law

A

• Real property: law of situs
• Personal property: law of domicile at death
• Savings statute: will valid if it complies with local law, law where it was executed, or law of decedent’s domicile at death or will execution

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24
Q

Requirements of Will Validity

A

• Legal capacity
• Testamentary capacity
• Testamentary intent
• Formalities

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25
Q

Legal Capacity

A

In most states, person must be at least 18 years old

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26
Q

Testamentary Capacity

A

o Understand what testator is doing
o Understand effect of what testator is doing
o Understand nature and extent of property
o Recognize natural objects of testator’s bounty
o Ability to do the above at the same time

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27
Q

Adjudication of Incompetence

A

Rebuttable presumption of lack of capacity

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28
Q

Testamentary Intent

A

Testator intended instrument to be will

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29
Q

Formalities of Attested Will

A

o In writing
o Signed by testator or proxy
§ Signature = any mark made with present intent to authenticate the will
§ Proxy = in testators’ presence and by testator’s direction
§ Most states don’t mandate location of the signature
o Two witnesses
§ Credible (can testify in court)
§ States vary whether interested witness loses gift
§ Usually must witness in testator’s conscious presence

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30
Q

Attestation Clause

A

Recites elements of execution and is prima facie evidence of proper execution

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31
Q

Self-Proving Affidavit

A

o Testator and witnesses swear in affidavit to things they would swear to during probate proceeding
o Can substitute for in-court testimony of witnesses

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32
Q

Holographic Wills

A

o Written in testator’s handwriting
o No need for witnesses in some states
o How much must be in testator’s handwriting varies by state
§ Majority rule: virtually everything
§ Minority rule: Only material provisions
o To be valid:
§ Material portions must be in T’s handwriting AND
§ Must be signed and dated

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33
Q

Nuncupative or Oral Wills

A

o Abolished in most states

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34
Q

Classification of Gifts

A

o Devise: Gift of real property
o Bequest: Gift of personal property
§ Specific bequest: Property distinguishable from rest of testator’s estate
§ Specific bequest of general nature is not distinguishable from rest of estate
o Legacy: Gift of personal property not sufficiently described to be specific (usually money)
o Demonstrative Legacy: Gift of specific sum of money payable out of designated funds

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35
Q

Residuary Gift

A

Gift of remainder of estate after all debts and other gifts are paid

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36
Q

Ademption

A

Gift fails because property is no longer in testator’s estate

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37
Q

Common Exceptions to Ademption

A

o Replacement property
o Balance of purchase price
o Condemnation or insurance proceeds
o Proceeds from sale by guardian

38
Q

Ademption by Satisfaction

A

o Beneficiary receives gifted property before testator’s death
o Most states require a writing

39
Q

Exoneration of liens

A

o Some states: Liens exonerated (paid off with estate funds)
o UPC and other states: No exoneration unless will provides for it

40
Q

Abatement

A

Process of reducing gifts when estate property is inadequate to satisfy gifts and debts

41
Q

Abatement Order

A

o Property passing by intestacy
o Residual Gifts
o General gifts
o Demonstrative gifts
o Specific gifts

42
Q

Lapse

A

Gift fails because beneficiary fails to survive testator or is legally treated as not surviving testator

43
Q

How to Distribute Lapsed Property

A

o Will’s terms
o Anti-lapse statute may apply
o Residuary clause
o Intestacy

44
Q

Anti-Lapse Statutes

A

o Prevent lapse by substituting descendants of predeceased beneficiary for predeceased beneficiary
o Relationship needed between testator and predeceased beneficiary varies by state

45
Q

Lapse in Residuary Gift

A

o Common law rule: Deceased beneficiary’s share passes by intestacy
o Modern Rule: Surviving residuary beneficiaries divide the deceased beneficiary’s share

46
Q

Basic Rules of Construction

A

o Will  Intent not to die intestate
o Conflicting provisions  use one closer to testator’s death
o Construe will as a whole
o Give ordinary words their ordinary meaning
o Give technical words their technical meaning
o Give effect to all language in will

47
Q

Patent Ambiguity

A

Ambiguity is obvious
o Court looks at extrinsic evidence

48
Q

Latent Ambiguity

A

Language is clear on its face but cannot be carried out without further clarification
o Court looks at extrinsic evidence

49
Q

No Apparent Ambiguity

A

Language is clear on its face and can be carried out, but someone thinks testator made a mistake
o Traditional/plain meaning rule: Cannot disturb plain meaning of will
o Modern rule: Extrinsic evidence permitted

50
Q

Requirements for incorporation by reference

A

o Intent to incorporate writing
o Writing must be in existence when will is executed
o Writing must be clearly identified in will

51
Q

Fact of Independent Significance

A

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

52
Q

Conditional Will

A

Will that is to operate if certain event occurs or does not occur
o Courts construe will as general, not conditional, if possible (law presumes against conditional wills)

53
Q

Codicil

A

Amendment to Existing Will

54
Q

Republication by Codicil

A

o Will and codicil treated as one document speaking from date of codicil
o Proof of codicil = proof of will
o Codicil can incorporate defective will by reference

55
Q

Pour-Over Provision

A

Provision in will that leaves property to inter vivos trust
o Trust can be created before or after testator executes will
o Trust does not have to be previously funded

56
Q

Integration

A

Must be able to show that all pages present at time of will execution are the same as pages present at time of probate

57
Q

Joint Will

A

Single testamentary document containing the wills of 2 or more persons

58
Q

Reciprocal Wills

A

Separate wills with parallel dispositive provisions

59
Q

Contractual Will: Will executed pursuant to a contract
§ Common law: extrinsic evidence can establish contractual nature of will
§ Modern law: writing required
§ Can be revoked by agreement of parties while both alive
§ Revoked by one person while both alive  other person can change will
§ Revoked by one person after other dies  Injured beneficiaries may sue to impose constructive trust on property they should have received

A

Will executed pursuant to a contract
§ Common law: extrinsic evidence can establish contractual nature of will
§ Modern law: writing required
§ Can be revoked by agreement of parties while both alive
§ Revoked by one person while both alive  other person can change will
§ Revoked by one person after other dies  Injured beneficiaries may sue to impose constructive trust on property they should have received

60
Q

Power of Appointment

A

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

61
Q

General Power of Appointment

A

Power exercisable in favor of done, their estate, their creditors, or creditors of estate

62
Q

Special Power of Appointment

A

Power exercisable in favor of limited class of appointees, not including donee, their estate, their creditors, or creditors of estate

63
Q

Presently Exercisable Power

A

Exercisable by done during lifetime

64
Q

Testamentary Power

A

Exercisable only by donee’s will

65
Q

Marriage after Will Execution

A

§ In most states, marriage has no effect on prior will
§ Some states and UPC: Spouse receives intestate share unless
· Will provides for spouse
· Omission was intentional OR
· Testator executed will in contemplation of marriage

66
Q

Divorce After Will Execution

A

§ All provisions in favor of ex-spouse are void
§ Voiding occurs automatically upon final divorce (not pending)
§ Property that would have gone to ex-spouse passes under terms of will as if ex-spouse had died first

67
Q

Requirements for Revocation by Physical Act

A

§ Intent
§ Mental capacity
§ Physical act: burning, tearing, ripping, writing “void” across will, etc.

68
Q

Proxy Revocation

A

Permitted if done at testator’s request and in testator’s presence

69
Q

Revocation by Subsequent Will or Codicil

A

§ Will or codicil must meet formal requirements
§ Revocation can be express
§ If new will completely disposes of testator’s property  old will completely revoked.
§ New will partially disposes of testator’s property  old will revoked only as to inconsistent parts

70
Q

Presumption of no Revocation

A

If will is found in normal location and there are no suspicious circumstances

71
Q

Will was in testator’s possession or control but can’t be produced after testator’s death

A

Presumption that testator revoked will

72
Q

Revival of Revoked Wills

A

o UPC/Intent approach: look at testators intent
o Automatic Revival Approach: Revoking will never took effect because it was revoked
o No Revival Approach: Revocation by subsequent writing takes effect immediately when signed

73
Q

Dependent Relative Revocation (DRR)

A

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

74
Q

Spouse’s Elective Share

A

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

75
Q

Community Property States

A

o No elective share because spouse is protected by owning half of community property
o Deceased spouse can give away only separate property and their half of community property.

76
Q

Pretermitted Child Statutes

A

o Purpose is to carry out testator’s presumed intent to provide for children
o Typically applies to children born or adopted after will execution
o Situations where pretermitted Child does not receive forced share:
§ Entire estate left to pretermitted child’s other parent
§ Proof that omission was intentional
§ Testator provided for pretermitted child

77
Q

Other protections for minor children and surviving spouse

A

o Homestead (family residence)
o Family allowance
o Exempt personal property

78
Q

Grounds for Will Contest

A

o Does not meet requirements of valid will (defective execution)
o Lack of legal capacity
o Lack of testamentary capacity
o Lack of testamentary intent

79
Q

Insane Delusion

A

o Persistent belief in facts that are against all evidence
o Must have a connection between insane delusion and property disposition to be grounds for will contest

80
Q

Undue influence

A

o Influence existed and was exerted
o Influence overpowered testator’s mind and free will
o Influence caused testator to execute will with different terms

81
Q

Evidence of Undue Influence

A

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

82
Q

Elements of Fraud

A

o False representation made to testator
o Knowledge of falsity by person making statement
o Testator reasonably believed statement
o Statement caused testator to execute will testator otherwise would not have executed

83
Q

Fraud in the Execution/ Factum

A

Testator deceived as to identity or contents of instrument

84
Q

Fraud in the inducement

A

Testator knows identity and contents of will but is deceived as to extrinsic fact and makes gift based on that fact

85
Q

Mistake in the Execution/Factum

A

Testator is in error regarding contents or identity of instrument

86
Q

Mistake in the Inducement

A

Testator mistaken as to some extrinsic fact and makes will based on that fact
o Courts generally will not grant relief

87
Q

No Contest Clause

A

Beneficiary forfeits interest in estate if they contest the will and lose
o Most states enforce clause unless contest was in good faith and with probable cause

88
Q

Personal Representative

A

Person appointed to carry out estate administration
§ Called administrator if person died intestate
§ Called executor if named in will
§ Duties of Personal Representative
· Give notice to heirs and beneficiaries
· Give notice to creditors
· Collect and manage all probate assets
· Pay estate expenses and creditors
· Distribute property to heirs or beneficiaries

89
Q

Priority of Creditors’ Claims

A

§ Administration expenses
§ Funeral expenses and expenses of last illness
§ Family allowance
§ Federal Claims
§ Secured claims
§ Unsecured Claims
§ (then finally the heirs and beneficiaries get to collect)

90
Q

Advance Healthcare Directives

A

o Medical Power of Attorney/Durable Healthcare Power
§ Principal names agent to make medical decisions when principal cannot
o Living Will
§ State’s individual’s desires regarding life-sustaining procedures

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