Wills Flashcards
Intestate Succession
Society then developed a fixed set of rules which dictate where a deceased’s property goes upon death based on degree of relationship, sex, age, etc.
Wills
Society allowed a person during life to determine where property was to pass upon death. There is no constitutional right to exercise dead hand control.
Probate Avoidance Techniques/Will Substitutes
Some property will pass outside of the probate process, for example, because of an inter vivos trust, survivorship rights, or other contractual rights. When you distribute a decedent’s estate, you must first distribute these items according to their terms before distributing the rest under intestacy or under a will.
–> always look for this first when deciding how to divide estate
Will substitutes 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.
Will substitutes may enable individuals to
____
avoid taxes and eliminate the cost and inconvenience of probate.
Property governed by a probate avoidance technique does not pass through probate and thus is not governed by the testator’s will or by intestacy. These assets must be _____
removed from the decedent’s estate before distributing property under a will
or via intestacy.
INTER VIVOS OUTRIGHT GIFTS
If the decedent has already given the property away, it obviously will not pass under the decedent’s will or by intestacy.
INTER VIVOS “LIVING” TRUSTS
Property the decedent has already transferred into an inter vivos trust will not pass through the decedent’s estate. Instead, it passes under the terms of the trust.
Future interests, such as a remainder or executory interest, pass to ____
the named beneficiary (out of probate)
TIC: The decedent’s share passes via _____
JT: The decedent’s share passes ____
decedent’s will or under intestacy. There are no survivorship rights; thus probate is not avoided.
to the surviving joint tenant and not via intestacy or under the decedent’s will.
Life insurance is the most widely used will substitute. It is a contract, and the disposition of the policy’s proceeds is governed by ____
the terms of the contract.
A Totten trust is a _____. The ____ retains complete control over the account during their lifetime, and the transfer is complete only upon their death. Totten trusts are ____; they are not true trusts.
deposit of money in a bank account in “trust” for another person
depositor; accounts
A bank account deposit in the name of two or more persons “with right of survivorship” is generally effective to ____
give the survivor the absolute right to all of the money.
Under the UPC, creditors can reach the money in a joint account, to the extent that ______, if the other estate assets
are insufficient to satisfy their claims.
Even at common law, creditors can reach the joint account if _____.
the decedent deposited money in the account
it was opened for the decedent’s convenience and no survivorship feature was intended
-> In many states, evidence is admissible to show that the joint account was set up merely as a convenience for paying the depositor’s bills, and no gift to the survivor was intended.
Bank accounts and corporate securities may be held in ____ form, so the property passes to the designated person upon the owner’s death.
“payable on death”
A deed deposited in ____, with delivery conditioned upon the grantor’s death, may be a valid nontestamentary transfer.
Similarly, if a deed, which by its terms is _____, a court may sustain the
transfer as nontestamentary by construing the deed as a present transfer of a future interest, subject to a life estate in the grantor.
escrow
effective only upon the grantor’s death,
has actually been delivered to the grantee
Property may pass by intestate succession when:
- A decedent dies without having made a will or their will is denied probate (“total intestacy”)
- A decedent’s will does not dispose of all of the decedent’s property, either because a gift has failed or because the will contains no residuary clause (“partial intestacy”)
Under intestate succession (also called descent and distribution), property remaining after ____ passes to the intestate’s heirs (also called distributees).
the intestate’s debts and taxes are paid
The intestate distribution scheme cannot be altered to fit ____ regardless of evidence that shows the decedent would not have wanted their property to pass the way intestacy provides.
the decedent’s intent
Who owns the property if the decedent was married at the time of death?
We use the law of the domicile (the common law marital property system or the community property marital property system) at the time the property was acquired. The marital rights do not change as the couple moves from one state to another.
Which state’s intestacy law applies?
For personal property = we use the law of the decedent’s domicile at death.
For real property = we use the law of the situs of the property.
INTESTATE SHARE OF SURVIVING SPOUSE - Common Law (OLD RULE)
At common law, the surviving spouse was not an heir. A widow received dower, which is a life estate in one-third of the real property her husband owned during marriage, regardless of whether the property was still owned by her husband at the time of his death. A widower received curtesy, which was a life estate in all of his wife’s real property provided a child was born to the marriage
INTESTATE SHARE OF SURVIVING SPOUSE - General MODERN LAW
Under modern law, the spouse is an heir. Dower and curtesy have been eliminated or greatly altered. The share of the surviving spouse depends on factors such as the number of children and whether the surviving spouse is the other parent of the deceased spouse’s children.
INTESTATE SHARE OF SURVIVING SPOUSE - Modern (non-UPC) law where descendants also Survive
- 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.
- Some states give the surviving spouse a specific dollar amount plus one-third or one-half of the estate
INTESTATE SHARE OF SURVIVING SPOUSE - UPC law where descendants also Survive
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 (sweet heart rule)
INTESTATE SHARE OF SURVIVING SPOUSE - Modern (non-UPC) law where NO descendants also Survive
In most states, if the decedent is survived by a spouse but no descendants, the surviving spouse takes the entire estate.
INTESTATE SHARE OF SURVIVING SPOUSE - Modern UPC law where NO descendants also Survive
The spouse takes the entire estate only if the decedent is not survived by descendants or parents.
Descendants are related to the decedent in a ____, such as children and grandchildren.
descending lineal line
The portion of the estate that does not pass to the surviving spouse, or the entire estate if there is no surviving spouse, passes to ____
the decedent’s children and descendants of deceased children.
In most states parents and collateral kin (brothers, sisters, aunts, uncles) never inherit if _____
the intestate is survived by children or more remote descendants.
If all of the decedent’s children survive the decedent (or all of the decedent’s predeceased children have no descendants who survive the decedent), each child receives ____.
A descendant from a younger generation (such as a grandchild) cannot take if ____
an equal share
the older generation (the grandchild’s parent) is still alive.
Methods of Computing Shares if at least one descendant predeceased the decedent and is survived by a descendant who survives the decedent:
- Classic per stirpes
- Per Capita with Representation (majority rule)
- Per Capita at Each Generational Level (modern trend)
Classic Per Stirpes
- 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.
Classic per stirpes divides into shares
at the child generation even if _____
no child survives the intestate.
Per Capita with Representation
- 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.
Per Capita with 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.
What method does the UPC use for calculating shares if at least one descendant predeceased the decedent and is survived by a descendant who survives the decedent:
Per Capita at Each Generational Level
Per Capita at Each Generational Level
- 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.
Under Per Capita at Each Generational Level if some children are alive and others dead, each child will take ____, but the remaining property is pooled and each grandchild will receive ____
an equal share (as with per capita by representation); an equal share.
INTESTATE SUCCESSION UNDER TYPICAL STATUTE (descending order if none are found at a certain levle)
- Spouse and/or descendants
- Parents or surviving parent
- Descendant’s of parents (siblings or their descendants) (+some variance in rules)
- Half and half to maternal and or paternal grandparents or descendants (both halves to one side if there are no takers on the other side)
- Half and half to Nearest maternal/paternal kind (all to one side if there are no kin on the other side)
- Failing all of the above, the estate escheats to the state.
If the decedent is not survived by a spouse or descendants, the estate is distributed to ancestors (persons related in _____) and collaterals (persons related but ____ such as siblings, uncles, aunts, etc.).
an ascending lineal line such as parents; not in a lineal line
If one parent and at least one sibling survive, the UPC and some states give _____. Other states give _____.
the entire estate to the surviving parent
one-half to the surviving parent and one-half to the sibling or siblings
For purposes of intestate succession, adopted children are treated ____.
the same as the biological children of the adopting parent
An adopted child inherits from and through ____, and the adopting parents _____.
the adopting parents and their kin; take from and through the
adopted child
Most states make no distinction based on the ____ at the time xof the adoption.
age of the child
Although jurisdictions vary, generally there is no inheritance in either direction between adopted children and their _____, except where one of the biological parents ____
biological parents; marries an adopting parent, or the child is adopted by a close relative.
Generally, ____ children have no inheritance rights unless adopted by the stepparent or foster parent.
stepchildren and foster
The doctrine of _____, 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. However,
if ____, many states prohibit the stepparent or foster parent from inheriting.
adoption by estoppel; the child dies
A non-marital child always inherits from the ____. Generally, the child will inherit from their ____ if:
mother; father
(1) the father married the mother after the child’s birth;
(2) the man was adjudicated to be the father in a paternity suit; or
(3) after his death and during probate proceedings, the man is proved by clear and convincing evidence to be the father.
The UPC and most states make no distinction between ____ and whole bloods; they inherit equally. However, some jurisdictions give half bloods ____
half bloods
half shares or cut them out from inheriting entirely if whole-blood siblings exist.
If a person is in gestation at the time of the intestate’s death, most states will ____. Some states will allow a child of the intestate who was not in gestation but who is ____ to inherit under specified circumstances.
allow that person to be an heir; born within a statutorily stated period of time (for example, two years)
At common law and in most states, a will provision expressly disinheriting an heir is _____.
ineffective as to any property passing by intestacy (that is, the will must dispose of everything to effectively disinherit an heir)
Under the UPC and statutes in several non-UPC states, a testator may _____. If the person survives the decedent, their intestate share passes as though they had disclaimed it.
exclude the right of an individual to succeed to property passing by intestate succession (a “negative” will provision)
An advancement is ____
a lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate
At common law, a substantial lifetime gift to one of the decedent’s children was presumed an advancement. Most courts now apply the doctrine to any heir, but _____.
reverse the presumption (A lifetime gift is presumptively not an advancement unless shown to be intended as such)
UPC states, as well as many non-UPC states, go further, finding an advancement only if it is:
(1) declared as such in a contemporaneous writing by the donor, or
(2) acknowledged as such in a writing by the heir (which need not be contemporaneous).
If found to be an advancement, the gift’s value when given is _____. (The advancement goes into the “hotchpot.”) The heir need not return the amount of an advancement in ____
added back into the estate for purposes of calculating shares, and then subtracted from the recipient’s share
excess of the value of their intestate share.
Generally, an advancement is binding upon those who succeed to the estate of the advancee if _____.
In UPC states, however, an advancement is not binding on the advancee’s successors unless ____.
the advancee predeceases the intestate
the required writing states that it is
A person cannot take as an heir or will beneficiary unless they survive the decedent. Because it is sometimes difficult to determine whether one person survived another (for example, in a situation where both persons are fatally injured in the same accident), nearly all states have adopted a version of the _____
Uniform Simultaneous Death Act (“USDA”).
About one-half of the states have enacted the ____, and the other half have enacted the ____, also known as the “120-hour rule.”
traditional USDA; Revised Uniform Simultaneous Death Act
For determining survival the UPC follows the ____
120-hour rule.
The USDA provides that 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.
The USDA applies only if ____.
there is no sufficient evidence of survival
-> Thus, if there is evidence that an heir or beneficiary survived the decedent by even minutes, the USDA does not apply.
Many states and the UPC require that a person survive the decedent by ___ hours to take any distribution of the decedent’s property.
120
Neither the USDA or the Revised Uniform Simultaneous Death Act applies if ____
the decedent’s will or other instrument makes a different provision regarding survival.
Disclaimers
An heir, will beneficiary, life insurance beneficiary, surviving joint tenant, etc., cannot be forced to accept an inheritance or gift under a will. The heir or beneficiary can disclaim an interest.
Why would an heir or beneficiary forego free property?
- Burdensome: for example, the fear of liability if property contains a toxic waste dump
- Tax: Disclaimed property is not treated as a gift from the disclaimant to the eventual recipient
- Avoid creditors: In many states, disclaimed property cannot be reached by the disclaimant’s creditors (however, a disclaimer cannot be used to defeat a federal tax lien)
Requirements of Disclaimer
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).
To be effective for federal tax purposes, the disclaimer must be ____. Note that for federal tax purposes, a surviving joint tenant may disclaim their interest only within nine months from the _____, and the holder of a future interest may disclaim only within nine months after ____.
in writing, irrevocable, and filed within nine months of the decedent’s death or the beneficiary’s 21st birthday
other joint tenant’s death; the interest was created
A disclaimer may be made by a guardian on behalf of an infant or incompetent, or a personal representative on behalf of a decedent if ____
the court finds that it is in the best interests of those interested in the estate of the beneficiary and is not detrimental to the best interests of the beneficiary.
An interest cannot be disclaimed if the heir or beneficiary has ____
accepted the property or any of its benefits.
The disclaimed property passes as if the disclaimant had ____. The disclaimant cannot ____
predeceased the decedent; choose the recipient of the property.
Because the interest passes as though the disclaimant predeceased the decedent, the disclaimer of a life estate accelerates the ____.
remainder
DECEDENT’S DEATH CAUSED BY HEIR OR BENEFICIARY
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. This result is usually reached by the operation of a specific statute (called a “slayer statute”) or by imposition of a constructive trust.
Transfers effected by slater statutes
All types = This rule disqualifies the killer from taking any interest or benefit, including insurance proceeds, family allowance, etc. The killer also loses the benefit of the right of survivorship in any property so held with the decedent, although the killer does not forfeit their own share.
Proof of Killing—Evidentiary Standard
- A conviction of murder in any degree is conclusive for purposes of this type of statute.
- Courts are divided on how to handle lesser degrees of killing:
–> In the absence of a murder conviction, the court must generally find that the killing was unlawful or intentional by a preponderance of the evidence before applying this forfeiture rule.
A will is revocable during ____ and operative at ____.
the testator’s lifetime; their death
A codicil is ____
a supplement to a will that modifies it
A will is an instrument executed with certain formalities that ____, although an instrument that merely appoints a personal representative or revokes an earlier will can be a will.
usually directs the disposition of a person’s property at
death
Most states require ____, with all requirements for a valid will.
However, the UPC permits the court to excuse _____ test.
exact compliance, rather than substantial compliance
minor errors using a substantial compliance
Because a will is not operative until the testator’s death, a beneficiary has merely an ____ until that time.
expectancy (not a property interest)
The validity and effect of a will with respect to real property are determined by the law of ____
the state where the property is located.
With respect to personal property, the validity and effect of a will are determined by the law of _____
the testator’s domicile at the time of death.
Out-of-State and Foreign Wills = Most states and the UPC have a “savings statute,” that is, a will is admissible to probate in a jurisdiction if the will has been executed in accordance with the law of:
(1) that jurisdiction,
(2) the state where the will was executed, (3) the testator’s domicile at the time of the will’s execution, or
(4) the testator’s domicile at death.
The savings statute for out of state and foreign wills apply only to determine whether the will is ____. Once the will is admitted to probate, local law governs the construction and application of the will’s provisions.
admissible to probate
The testator normally must be at least ____ at the time the testator makes a will. Some states allow testators under 18 to execute a will if, for example, they are ____
18 years old and of sound mind; married or in the military.
Testator Capacity
- The nature of their act—that is, that the testator is executing a will
- The nature and extent of their property
- The persons who are the natural objects of their bounty (family members)
- The above factors and be able to formulate an orderly scheme of disposition
The testator must have had capacity when _____; thus, all circumstances existing at that time are admissible, as well as evidence of the testator’s state of mind shortly before and shortly
after the will’s execution.
the will was executed
The fact that the testator was old, ill, possessed a failing memory, or was an alcoholic or drug addict ____ they lacked testamentary capacity.
does not mean (A mentally challenged individual can make a will as long as they meet the requirements above.)
An adjudication of insanity or an appointment of a guardian or conservator is ____. A person adjudicated incompetent may be able to execute a will during a ____.
evidence of a testator’s lack of capacity, but is not conclusive
“lucid interval.”
Testator Intent - Generally
The testator must have present intent that the instrument operate as their will. Promises to make a will in the future and ineffective deeds are not given effect as wills. Parol evidence is admissible to show that an instrument was not meant to have any effect (for example, that it was a sham 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.
To be valid and admissible to probate, a will must meet the ____ imposed by the statutes of the appropriate state.
formal requirements of due execution
The formalities required vary from state to state, but most states require that:
- The will or codicil must be in writing (at least 10 states permit wills to be in electronic form (“e-wills”) without any physical document)
- The will or codicil be signed by the testator, or by another at the testator’s direction and in their presence
- There be two attesting witnesses
- The testator sign the will (or acknowledge their previous signature or acknowledge the will) in each of the witnesses’ presence; and
- The witnesses sign in the testator’s presence
Some states impose one or more of the following additional requirements for execution of a will:
- The testator must sign at the end of the will
- The testator must “publish” the will (that is, declare to the witnesses that the document is the testator’s will); and
- The witnesses must sign in the presence of each other
Under the UPC a will is valid if either:
(1) it is attested by two competent witnesses, or
(2) it is signed by a notary.
Testator’s Signature requirement
Any mark made by the testator with the intent that it operate as their signature satisfies the signature requirement.
Proxy Signatures
- The testator’s signature may be made by another person at the testator’s direction and in their presence.
- If the proxy signer signs their own name as well, they may be counted as an attesting witness
Order of signatures
The order of signing is not critical as long as the signing is done as part of a single contemporaneous transaction.
Location of signatures
- In most states and under the UPC, a will is valid if signed anywhere on the instrument, not just at the end.
- Where the signature is required to be “at the end” and the testator signs elsewhere, some states hold the will is
void, while others uphold the will as valid but disregard everything following the signature.
Most states require that the will be attested by ____ competent witnesses.
two
Competency means that, at the time the will is executed, the witness is ____. Some states impose a ____.
mature enough and of sufficient mental capacity that they could testify in court on these matters
minimum age
States vary regarding whether the testator must ____ the will by informing the witnesses that the document is the testator’s will and regarding whether the witnesses must know they are witnessing a will. No state requires the witnesses to ____
“publish”; know the contents of the will.
At common law, a witness who was also a beneficiary was not competent, and the will could not be probated unless there were two other competent witnesses.
All states now provide that the will
is still valid, but the bequest to the interested witness may ____
be void under a “purging statute” unless they are supernumerary or would have taken a share as an heir if the will had not been probated.
Under the UPC gifts to interested witnesses are ____.
not purged
Creditors, fiduciaries under the will (for
example, trustees), and attorneys are not interested, and are not disqualified from ____
collecting debts or serving the
estate because they or their employees witnessed the will.
Some states require the testator to sign the will in the witnesses’ presence, and the witnesses to sign in the testator’s presence. To determine when a person is in another’s presence, most courts use
the ____ test.
Under this test, the presence requirement is satisfied if ____, and the act of signing took place within the ____ of the other parties.
“conscious presence”
each party was conscious of where the other parties were and what they were doing; general awareness and cognizance
For the presence requirement a substantial minority of courts use the ____ test, under which the requirement is satisfied only if the person was ____
“scope of vision”
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
Participating via ____ is not “presence” for the purpose of fulfilling execution requirements unless the state has specific e-will legislation.
telephone or computer
Attestation Clause
- An attestation clause recites the elements of due execution and is prima facie evidence of those elements.
- It is not required, but it is useful if a witness forgets or misremembers the facts surrounding the execution.
Self-Proving Affidavit
- A self-proving affidavit recites that all the elements of due execution were performed and is sworn to by the testator and witnesses before a notary public.
- It functions like a deposition and eliminates the need to produce the witnesses in court years later; thus, probate is faster and cheaper.
It is common practice to use a self-proving affidavit with all wills because it is often difficult to ____
find witnesses as they die, are unavailable, or do not remember witnessing the will.
Jurisdictions vary as to whether the self-proving affidavit is a separate document executed after the will (meaning two sets of signatures are needed) or whether it can be incorporated into the will itself (meaning one set of signatures is needed).
- Many states authorize both methods.
- The majority view is that ____
the signatures on the affidavit can serve as the signatures needed on the will itself.
Some states and the UPC allow ____ to substitute for the attestation of witnesses.
notarization
Even though a will is not executed in accordance with all of the required statutory formalities (for example, there is only one witness), the UPC gives the court the authority to ignore _____. The defectively executed will can be given effect if the will proponent establishes ____
harmless errors
by clear and convincing evidence that the testator intended the document to be their will.
A holographic will is one that is _____
entirely in the testator’s handwriting and has no attesting witnesses.
States vary with regard to how much material may be typewritten before the will no longer qualifies as holographic, but the UPC and most states that recognize holographic wills accept a will that contains some typewritten text as long as ____
the portion not in the testator’s handwriting is not material.
A holographic will must contain the ____
testator’s signature, but it need not be at the end of the will.
Holographic wills and codicils are recognized by the ____. Most states that recognize holographic wills give effect to ____ after the will is completed.
UPC and a majority of the states
handwritten changes made by the testator
In contrast to holographic wills interlineations, changes in beneficiaries, amounts, etc., made after the execution of an attested will are usually ____. Watch for a fact pattern, however, where
these changes are made to an attested will in a jurisdiction that recognizes holographic wills. If the requirements are met, often these changes are construed as ____
not given effect, and in fact may work a revocation.
a valid holographic codicil.
Most states and the UPC do not recognize ____ wills.
oral (or “nuncupative”)
The small number of states that allow oral wills do so only for the disposition of ____ and only if made by:
personal property
(1) soldiers or sailors (with some states requiring an armed conflict in progress);
or (2) any person during their last sickness or in contemplation of immediate death.
+ immediate death.
ATTORNEY LIABILITY FOR NEGLIGENCE (majority/minority rules)
1 - In most states, an attorney’s duty runs not only to the client but also to the intended beneficiaries of the attorney’s services, and they can sue the attorney for negligence or as a third-party beneficiary of the attorney-client contract.
–> In such an action, the statute of limitations begins to run on the date
of the decedent’s death and not on the date the will was executed.
2 - A significant number of states still require privity between the attorney and a malpractice plaintiff (the intended beneficiaries would lack standing to sue the attorney for malpractice)
CHANGES IN BENEFICIARIES AND PROPERTY AFTER WILL EXECUTION: Classification Based on Type of Property
- A devise is a gift of real property, and the recipient of a devise is a devisee.
- A bequest is a gift of personal property. - A legacy is a gift of personal property in a will, usually of money, and the recipient is called a legatee.
A _____ is a gift of a particular item of property distinct from all other objects in the testator’s estate.
specific devise or legacy
Ex: “I leave my Sony computer Model VGN-FZ250E with a serial number of 458779027578 to Walter Bishop.”
A ____ is not distinguishable from the
rest of the testator’s estate until the testator dies.
specific bequest of a general nature
Ex: “I leave my computer to Walter Bishop.”
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.
A demonstrative legacy is ____
a gift of a general amount that is to be paid from a particular source or fund.
Ex: “I leave $10,000 to Walter Bishop from my account at Superior State
Bank.”
