wills Flashcards
generally
Under the Uniform Probate Code in order for a will to be valid it generally needs to have
1) intent to create a will, 2) a testator with capacity (sound mind test), 3) a writing, 4)
signed by two disinterested witnesses and 5) signed by the testator.
For a will to be valid under the Uniform Probate Code we need to follow the formal
requirements of a valid will, that is there must be 1) intent, 2) the testator must have
capacity and be of sound mind, 3) there must be a writing, 4) there must be two
disinterested witnesses, and 5) the testator must sign in the presence of the witnesses.
Incorporation By Reference Blurb
Under the UPC the probate court will incorporate by reference a document to be
considered in probating the decedent’s will but only if:
1) The testator intended to incorporate the document,
2) The document is clearly identified and
3) The document is in existence at the time the will is executed.
Note: It is usually a letter or trust.
USDA Blub
1) Because the order of death cannot be determined the court will apply the Uniform
Simultaneous Death Act (USDA). 2) As to jointly held property with right of survivorship,
under the Act there is no right of survivorship, and the property will be held tenants in
common and split equally between the two estates. 3) As to all property bequeathed to
their spouse the Act assumes the Decedent has NOT predeceased their spouse, hence,
as to any bequest contingent upon survival, it is deemed their spouse has not survived
them. 4) As to Life Insurance, normally this asset is a non-probated asset, however if the
only beneficiary is the spouse the court will apply the USDA, hence the spouse will be
deemed to predecease the decedent and the proceeds will fall into the decedent’s
estate.
Omitted Heir Bulb
An Omitted heir may file a claim under the Omitted Heir section of the Uniform Probate
Code. They must file this claim within the statutory period and prove that the omission
was by mistake or unintentional, and they were not provided for within the testator’s
lifetime. The amount they will take is what they would have taken if their parent died
intestate under the UMPC.
Spouse’s Elective Share Statute Blurb
___ may file a claim under the Spouse’s Elective Share Statute. They must file the claim
within the statutory period, and they are formally waiving the provisions of the will. The
pre nup, ex souse, adopted biologic kids, appointment or representative
The issue is whether a pre up to give up property entitled to when divorce is valid.
Generally a pre nup is when spouses waive their rights to a share of each other’s assets that they are entitled to upon death or divorce. However, A pre- nup does not bar either party from making voluntary subsequent gifts or bequests to the other spouse in a will.
