Wills Flashcards
What is Non-Probate property?
Property that does not pass through probate and is not governed by Will or intestacy.
What is Total Intestacy?
A person dies without a will, so all of their property is passed via intestacy.
What is Partial Intestacy?
A person dies with a will, but not all of their property is disposed of in the will.
Who are heirs?
The persons who take by intestacy.
What law applies to property for purposes of marital rights?
The law of the domicile when the property was acquired.
What state’s laws are applied to personal property?
The law of the person’s domicile at death.
What state’s laws are applied to real property?
The law of the situs (the location of the land).
Who are Descendants?
Persons related to the decedent in descending lineal line (such as children and grandchildren).
What are the methods of computing shares to descendants?
3 Methods:
- Per Stirpes
- Per Capita with Representation
- Per Capita at Each Generational Level
How does Per Stirpes distribution work?
Under the classic (or strict) per stirpes distribution of the common law, 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. This method divides into shares at the child generation even if no child survives the intestate. This method is used in a small minority of states.
How does Per Capita with Representation distribution work?
In most states, a decedent’s descendants take their shares per capita with representation, which means 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 children are deceased and all property is going to the grandchildren, each grandchild takes an equal share rather than the share (or part of the share) the parent would have taken had the parent survived.
How does Per Capita at Each Generational Level distribution work?
A growing number of states and the UPC make the initial division of shares at the first generational level at which 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. Persons in the same degree of kinship to the decedent always take equal shares.
Thus, if some children are alive and others dead, each child will take an equal share (as with per capita by representation), but the remaining property is pooled and each grandchild will receive an equal share.
Who are Ancestors?
People related in an ascending lineal line such as parents and grandparents.
Who are Collaterals?
Persons related but not in a lineal line such as siblings, aunts, and uncles.
How does an intestate estate pass if the decedent has no descendants?
(1) Parents; (2) Siblings (multiple methods dividing among surviving parent and siblings); (3) Grandparents and their descendants.
How do adopted children inherit?
Adopted children inherit from adopted parents.
Do adopted children inherit from their biological parents? What about biological parents from the now-adopted children?
Whether the children inherit varies state to state.
The bio parents never inherit.
What is adoption by estoppel?
A child can inherit from or through a stepparent or foster parent when legal custody of a child is gained under an (unfulfilled) agreement to adopt them.
When can children inherit from their non-marital parents?
- Can always inherit from the mother.
- Can inherit from the father if the state requirements are met (such as the determination of paternity).
What are Half Blood Siblings (Half Blood Collateral Heirs)? What are their inheritance rights as to each other?
Siblings with only one common parent.
Most states do not distinguish between half bloods and whole bloods.
What are Posthumous Children?
Children born after the death of a parent.
What is an Advancement?
A Lifetime gift intended by the donor as a prepayment of an intestate share.
What is the procedure when an Advancement applies to an intestacy distribution?
If found to be an advancement, the gift’s value when given is added back into the estate for purposes of calculating shares, and then subtracted from the recipient’s share.
- The advancement goes into the “hotchpot.”
What is Satisfaction?
A testamentary gift is given ahead of time to a Will beneficiary.
How long must an heir outlive a decedent to inherit?
- Some states: heir can survive for any amount of time.
- UPC: Heir must survive by 120 hours.
NOTE: If the survival requirements are not met, the would-be heir is treated as if they predeceased.
What is a Disclaimer? What are its requirements?
A person can disclaim/renounce an interest in property that a decedent seeks to grant to that person.
Generally, a Disclaimer must be (1) in writing, (2) signed by a person disclaiming, (3) acknowledged in front of a notary, and (4) timely filed (moder view is that you can disclaim at any time as long as you have not accepted or used the benefits of the gift).
What is the effect of a disclaimer?
The person is disclaimed is treated as having died first.
What effect when an heir or beneficiary kills the decedent?
2 Ways:
- Slayer Statute: The murder is precluded from inheriting or being a beneficiary.
- Equitable Trust: Murder will hold the property for the benefit of others.
What is a savings statute?
If adopted, a Will is to be considered valid if it complied with the local law, law where it was executed, or the law of the decedent’s domicile at death or will execution.
- NOTE: This is only for validity. All other issues are dealt with under the state’s law.
What are the general requirements for a will?
(1) Legal capacity, (2) Testamentary capacity, (3) Testamentary intent, and (4) Formalities.
What is Legal Capacity?
Being old enough. In most states, a person must be at least 18 years old.
What is Testamentary capacity?
In order to execute a valid Will, a testator must be able to:
(1) Understand the action (making a will);
(2) Understand the effect of what you’re doing (disposing of property at death);
(3) Understand the nature and extent of their property (generally);
(4) Recognize the natural objects of their bounty; and
(5) Ability to do the previous 4 simultaneously.
What effect for testamentary capacity when someone has been adjudicated incompetent?
This forms a rebuttable presumption that the person lacks capacity (not absolutely determinative).
What is Testamentary Intent?
A person has testamentary intent when they intended the instrument to be a Will.
What are the Will formalities?
A valid Will must be:
(1) In Writing;
(2) Signed by the testator (or by a proxy);
(3) Attested by two witnesses (usually must witness in the testator’s conscious presence).
What is the value of an Attestation Clause?
In many states, this provides prima facie evidence of proper execution.
What is a Self-Proving Affidavit?
The testator and witnesses swear in an affidavit (under oath) to the things that they would swear to during a probate proceeding.
- Can substitute for in-court testimony of witnesses (saves time and money).
What is a Holographic Will? How much of the will needs to be in the testator’s handwriting?
A Will that is written in the testator’s handwriting.
- No need for witnesses in some states.
- Majority Rule: Virtually everything needs to be in the testator’s handwriting.
- Minority Rule: Only that material provisions need to be in the testator’s handwriting.
What is a Nuncupative/Oral Will?
Wills stated in an oral format. These are abolished in most states.
What is a Devise in the Wills context?
A gift of real property.
