Wills

Question 1

What are the rules for intestacy?

Answer 1

Property passes by intestacy if a decedent dies without having made a will or their will is denied (total intestacy) or a decedent’s will does not pose all of the decedent’s property because of a failed gift or the will does not contain a residuary clause (partial intestacy).

In most states, if the decedent leaves descendants as well as a surviving spouse, the spouse takes one-third or one-half of the estate. In states adopting the Uniform Probate Code, the surviving spouse takes the entire estate if the decedent is survived by descendants, all of whom are descendants of the surviving spouse, and the surviving spouse has no other surviving descendant.

In most states, if the decedent is survived by a spouse but no descendants, the surviving spouse takes the entire estate. In UPC states, however, the spouse takes the entire estate only if the decedent is not survived by descendants or parents.

Question 2

What are the types of nonprobate property?

Answer 2

Will substitutes (nonprobate property) include life insurance, joint tenancies or tenancies by entirety, inter vivos trusts, bank account trusts, deeds, contracts, and inter vivos gifts, including gifts causa mortis.

Question 3

What are the methods for computing shares by intestacy?

Answer 3

Per Stirpes (minority rule): The division of shares occurs at the first generation. One share is created for each child and one share for each deceased child who has at least one surviving descendant. Each child receives one share and one share passes to a deceased child’s descendants by representation.

Per Capita With Representation (majority rule): 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 the children are dead, the grandchildren take in equal share.

Per Capita at Each Generational Level (modern trend): Shares are divided at the first generational level at which there are 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.

Question 4

How do shares flow by intestacy?

Answer 4

Shares flow in the following order if there is no spouse and descendants: (1) parents or surviving parent, (2) brothers and sisters and their descendants, (3) grandparents and their descendants (1/2 to maternal and paternal sides), and (4) nearest of kin (1/2 to maternal and paternal side). Some states give the entire state to the parent if the decedent is survived by parents and siblings while other states split the share between the surviving parents and the siblings.

Adopted children take shares the same as biological children.

Stepchildren and foster children have no inhertance rights unless adopted by the stepparent or foster parent. Adoption by estoppel permits a child to inherit from or through a stepparent or foster parent when legal custody of a child is gained under an unfulfilled agreement to adopt them.

Nonmarital Children - A nonmarital child will always inherit from the mother. A nonmarital child will only inherit from the father if (1) the father marries the mother after the child’s birth, (2) the man was adjudicated to be the father in a paternity suit, or (3) the man is proved to be the father by clear and convincing evident during probate proceedings.

Question 5

What are the rules for advancements?

Answer 5

An advancement is a lifetime gift to a heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate. Most courts presume a lifetime gift is not an advancement unless it is shown to be intended as such. Under the UPC, an advancement only exists if (1) it is declared as such in a contemporaneous writing by the donor or (2) acknowledged as such in a writing by the heir.

Example: Parent has two children, A and B. Parent makes a $10,000 advancement to A and then dies with a $20,000 estate. A receives $5,000 and B receives $15,000.

Question 6

What are the rules for simultaneous death?

Answer 6

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. This rule does not apply if there is evidence one person outlived the other.

120-Hour Rule: A heir or beneficiary takes if he survives the decedant by at least 120 hours.

Question 7

What are the requirements for disclaimer?

Answer 7

In most states, a disclaimer must be written, signed by the disclaimant, acknowledged before a notary, and filed with the appropriate court within nine months of death (although the time period may vary).

Question 8

What happens if the decedent’s death is caused by a heir or beneficiary?

Answer 8

In nearly all states, a person who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate. The property passes as though the killer predeceased the victim.

Question 9

What are the rules for forming a valid will?

Answer 9

A will is an instrument executed with certain formalities that usually directs the disposition of a person’s property at death. A codicil is a supplement to a will that modifies it.

For a will to be valid, the will must comply with formalities and the testator must have legal capacity, testamentary capacity, and testamentary intent.

Legal Capacity: The testator normally must be at least 18 years old and of sound mind at the time the testator makes a will.

Testamentary Capacity: The testator has the capacity to understand: (1) the nature of their act (i.e., that he is executing a will), (2) the nature and extent of their property, (3) the persons who are the natural objects of their bounty (family members), and (4) the above factors and be able to formulate an orderly scheme of disposition.

Testamentary Intent: The testator has the present intent that the instrument operate as a 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.

Formalities: Most states require that (1) the will or codicil be in writing, (2) the will or codicil be signed by the testator or by another at the testator’s direction and in their presence, (3) two attesting witnesses, (4) the testator sign the will (or acknowledge their previous signature or acknowledge the will) in each of the witness’s presence, and (5) the witness sign in the testator’s presence. Some states have additional requirements: (1) the testator sign at the end of the will, (2) the testator publish the will, and (3) the witnesses sign in the presence of each other. Under the UPC, a will is valid if it is attested by two competent witness or it is signed by a notary. At common law, a witness who was also a beneficiary was not competent and the will would be invalid. Today, most states provide that the will is valid, but the bequest to the interested witness is valid in states that follow the UPC and void in some non-UPC states under a purging statute.

Note About Presence: To determine when a person is in another’s presence, most courts use the “conscious presence” test. Under this test, the presence requirement is satisfied if each party was conscious of where the other parties were and what they were doing, and the act of signing took place within the general awareness and cognizance of the other parties. A substantial minority of courts use the “scope of vision” test, under which the requirement is satisfied only if the person was in such close proximity that they could have seen the signing had they looked. In most states, the witnesses do not need to attest in each other’s presence.

Question 10

What are the rules for a holographic will?

Answer 10

A holographic will is one that is entirely in the testator’s handwriting and has no attesting witnesses. Most states and the UPC allow non-material parts of the will to be typewritten text. This type of will must contain the testator’s signature, but it need not be at the end of the will. Most states that recognize holographic wills give effect to handwritten changes made by the testator after the will is completed.

Question 11

What is the rule for an oral will?

Answer 11

Oral wills are abolished in most states.

Question 12

What are the types of legacy gifts?

Answer 12

Specific Legacy: A specific devise or legacy is a gift of a particular item of property distinct from all other objects in the testator’s estate.

General Legacy: A general legacy is 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.

Demonstrative Legacy: A demonstrative legacy is a gift of a general amount that is to be paid from a particular source or fund.

Question 13

What are the rules for ademption?

Answer 13

Ademption refers to the failure of a gift because the property is no longer in the testator’s estate at the time of their death.

Ademption by Extinction: Most states follow the identity approach. If specifically bequeathed property is not in the testator’s estate at death, the bequest is adeemed and the beneficiary takes nothing. Neither general nor demonstrative legacies are adeemed by an absence of cash or the specific asset in the estate; they will be satisfied by selling (or directly giving) other assets. Exceptions to the ademption doctrine include replacement property, a balance of the purchase price, proceeds of condemnation award or insurance, and proceeds from sale by guardian or conservator.

Ademption by Satisfaction: A testamentary gift may be 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. Most states require a writing or specific instructions in the will before the gift is deemed a satisfaction. In UPC states, the doctrine does not apply unless the testator provides for satisfaction in the will or a contemporaneous writing, or the devisee acknowledges, in writing, the gift as one in satisfaction.

Question 14

What are the rules for accessions?

Answer 14

Accessions are increases in the value of gifted property between the time the will is executed and the time of the testator’s death.

Before Testator’s Death: Income on property goes into the general estate, but improvements to real property go to the specific devisee.

Stocks: 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. Today, the UPC and nearly all states also include stock dividends. The beneficiary will also take an increase in securities caused by a merger or corporate reorganization.

Question 15

What is the rule for exoneration?

Answer 15

While the common law and some states follow the contrary view, the UPC and a large number of states provide that liens on specifically devised property are not exonerated (paid off with estate funds) unless the will so directs. This means the beneficiary takes the property subject to the debt.

Question 16

What is the abatement process?

Answer 16

Abatement is the process of reducing testamentary gift in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and services. If the testator does not set out an order of abatement in the will, testamentary gifts will usually abate in the following order: (1) property passing by intestacy, (2) residuary estate, (3) general legacies, (4) demonstrative legacies, and (5) specific bequests and devises.

Question 17

What are the rules for lapsed gifts?

Answer 17

A gift lapses if the beneficiary predeceases the testator or if the beneficiary is treated as not surviving the testator. However, nearly all states have anti-lapse statutes that operate to save the gift if the predeceasing beneficiary was in a specified degree of relationship to the testator (for example, descendant of the testator, the testator’s parent, or the testator’s grandparent) and left descendants who survived the testator.

If a will devises the residuary estate to two or more beneficiaries and one of them predeceases the testator (and the anti-lapse statute does not apply), some states follow the common law rule and only allow the deceased beneficiary’s share to pass by intestacy. Most states, however, allow the surviving beneficiaries to divide the share in proportion to their interests in the residue.

Question 18

What are the basic rules for will construction?

Answer 18

Courts follow these rules of construction: (1) a will indicates an intent not to die intestate, (2) among two or more contradictory provisions in a will, the last one prevails, (3) a will is construed as a whole, (4) words in a will are given their ordinary and grammatical meaning unless the testator indicated otherwise, (5) technical words are given their technical meaning unless the testator indicated otherwise, and (6) the court must try to give effect to all words in the testator’s will.

Question 19

What are the rules for ambiguity?

Answer 19

Patent Ambiguity: A patent ambiguity exists if a provision is ambiguous on its face, that is, it fails to convey a sensible meaning. Extrinsic evidence is not admissible to correct a patent ambiguity, but the modern view is that extrinsic evidence is admissible.

Latent Ambiguity: A latent ambiguity exists when the language of the will is clear on its face but cannot be carried out without further clarification. Courts will consider extrinsic evidence to resolve the ambiguity.

No Ambiguity (Mistake): Sometimes there is not patent or latent ambiguity, but a beneficiary nevertheless thinks there is a mistake. Under the traditional rule, extrinsic evidence cannot be used to disturb the clear meaning of a will. Under the modern rule, courts may consider extrinsic evidence.

Question 20

What are the rules for incorporation by reference?

Answer 20

Instead of writing something in the will, a testator may incorporate an extraneous document into the will by reference. A document by be incorporated by reference into a will provided: (1) the will manifests an intent to incorporate the document, (2) the document is in existence at the time the will is executed, and (3) the document is sufficiently described in the will.

Question 21

What are the rules for codicil?

Answer 21

A codicil modifies a previously executed will and must itself be executed with the same formalities. Under the doctrine of republication by codicil, the will and codicil are treated as one instrument speaking from the date of the last codicil’s execution.

Question 22

What are the rules for contractual wills?

Answer 22

A contractual will is a will executed or not revoked as the consideration for a contract. A contract to make, not to make, or not to revoke a will is valid.

A contractual will can be revoked by agreement between the parties while they are both alive. The contract becomes irrevocable upon the first testator’s death.

Generally, there is no remedy during the testator’s lifetime because the testator can comply up until death. If the testator repudiates the contract after substantial performance by the promisee, however, the promisee may seek damages, quantum meruit, or equitable relief. If the testator dies in breach, the usual remedy is for the court to grant a constructive trust for the benefit of the promisee.

Question 23

What are the rules for powers of appointment?

Answer 23

A power of appointment is an 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.

A general power of appointment is a power exercisable in favor of anyone including the donee themself, their estate, their creditors, or the creditors of their estate. A special power of appointment is a 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.

A presently exercisable power of appointment is one exercisable by the donee during their lifetime. A testamentary power is one that is exercisable only by the donee’s will.

Question 24

What are the rules for revocation by operation of law (marriage/divorce)?

Answer 24

Marriage Following Execution of Will: In most states, marriage following execution of a will has no effect on the earlier will. In some states and under the UPC, however, the new spouse takes an intestate share as an “omitted spouse” unless: the will makes provision for the new spouse, the omission was intentional, or the will was made in contemplation of the marriage.

Divorce or Annulment: In most states, divorce or annulment following execution of a will revokes all gifts and fiduciary appointments in favor of the former spouse. The UPC and some non-UPC states extend the application of the rule to provisions in favor of the former spouse’s relatives who are not relatives of the testator.

Question 25

What are the requirements for revocation by physical act?

Answer 25

A will can be revoked by physical act if the following requirements are met: (1) the testator had an intent to revoke the will, (2) the testator was mentally competent at the time of the revocation, and (3) the testator engaged in a physical act. At common law, the act must have had an actual effect on the will or its language. Under the UPC, words of cancellation that are on the will itself are sufficient to revoke the will.

By Proxy: The 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.

Question 26

What are the rules for revocation by written instrument?

Answer 26

Express Revocation: A subsequent instrument may expressly revoke the earlier will. There must be a present intent to revoke, and the instrument must be executed with the same formalities as required for the execution of the 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.

Question 27

What are the rules for reviving revoked wills?

Answer 27

UPC Approach: Under the UPC and in many states, 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 (that is, restore to effectiveness) 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: Under this approach, the earlier will is automatically revived.

No Revival Approach: Under this approach, a will, once revoked, is not revived when the subsequent will is itself revoked.

Question 28

What is the Doctrine of Dependent Relative Revocation?

Answer 28

The doctrine of dependent relative revocation applies when a testator revokes their will under the mistaken belief that another disposition of their property (e.g., a will) would be effective, and but for this mistaken belief, the testator would not have revoked the will. If the other disposition fails, the revocation also fails and the will remains in force. DRR applies if the two wills contain similar provisions.

Question 29

What are the grounds for contesting a will?

Answer 29

Grounds for challenge are: (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: An insane delusion is a belief in facts that do not exist and that no rational person would believe existed. Insane delusion destroys testamentary capacity only if there is a connection (nexus) between the insane delusion and the property disposition.

Undue Influence: To establish undue influence, the contestants must establish that: (1) the influence existed and was exerted, (2) the effect of the influence was to overpower the mind and free the will of the testator, and (3) the resulting testamentary disposition would not have been executed but for the influence.

Conclusive evidence of undue influence includes unnatural dispositions, an opportunity or access to testator, confidential or fiduciary relationships between parties, the ability of the testator to resist, and the beneficary’s involvement with the drafting or execution of the will.

A presumption of undue influence arises when: (1) there was a confidential relationship between the testator and a beneficiary (that is, the testator placed an unusual amount of confidence in the beneficiary, and relied on the beneficiary); and (2) that beneficiary was active in procuring, drafting, or executing the will.

Fraud: A successful contest on grounds of fraud 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. Fraud involves (1) a false representation made to the testator, (2) knowledge of the falsity made by the person making the statement, (3) the testator’s reasonable belief of the statement, and (4) 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.

Mistake In Execution: In the case of mistake in the execution, the testator is in error regarding the identity or contents of the instrument and thus lacks testamentary intent. Extrinsic evidence is admissible to show that a testator did not know that the instrument they were signing was a will. This type of mistake is actionable.

Mistake in Inducement: In the case of mistake in inducement, the testator is mistaken as to some extrinsic fact and makes their will based on that erroneous fact. This type of mistake is generally not actionable.

Question 30

What are the rules for pretermitted children?

Answer 30

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. In many states and under the UPC, 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.

In many states, the pretermitted child takes an intestate share of the decedent’s estate. Under the UPC and by statute in several non-UPC states, if the testator had other children at the time the will was executed and the will makes a provision for one or more of the children, the portion of the estate to which the pretermitted child is entitled is limited to the provisions made to the other children. The bequests to the other children are reduced, but no other beneficiary’s bequest is reduced.

A pretermitted child is not entitled to a forced share if the testator had other children at the time the will was executed and devised substantially all of their estate to the other parent of the omitted child or it appears from the will that the omission was intentional.

Question 31

What are the rules for a no-contest clause?

Answer 31

A no-contest clause (sometimes called an in terrorem clause) is a clause in a will providing that a beneficiary forfeits their interest in the estate if they contest the will and lose. 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. Some states give a no-contest clause full effect, regardless of whether there was probable cause for challenging the will.

Question 32

What are the rules for a medical power of attorney?

Answer 32

A durable healthcare power (also called a medical power of attorney) appoints an agent to make healthcare decisions on behalf of the principal and does not become effective until the principal becomes incapacitated.

Most states require that living wills and durable healthcare powers be: (1) in writing, (2) signed by the declarant or principal or another at the person’s direction, and (3) witnessed by two adult witnesses. Most (but not all) of these states provide that the person designated as the agent cannot serve as a necessary witness. In contrast, the Uniform Health Care Decisions Act does not require any witnesses for a durable healthcare power.

Generally, a durable healthcare power can be revoked by notifying either the agent or the principal’s healthcare provider, and the revocation can be either oral or written. Some states also allow revocation of a durable healthcare power in the same manner as that for living wills.

Question 33

What are the rules for elective shares?

Answer 33

Common law marital property states have elective share statutes that give the spouse an election to take a statutory share of the decedent’s estate in lieu of taking under the decedent’s will. The surviving spouse must file a notice of election within a specified period (usually six months from admission of the will to probate).