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Bar Exam > Wills > Flashcards

Wills Flashcards

1
Q

Non-probate property

A

Needs to be taken out of estate first

  • life insurance
  • joint tenancies with survivorship
  • intervivos trust
  • bank account trusts
  • deeds
  • contracts
  • intervivos gifts
  • future interest - remainder or executory interest
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2
Q

Intestate succession

A

die without a will

will denied probate

will does not dispose of all of the property - gift failed or no residual clause

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3
Q

intestate - applicable law

A

Marital rights - law of the domicile at the time property was acquired

Personal property - law of decedent’s domicile at death

real property - law of the situs of the property

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4
Q

Intestate - surviving spouse

A

CL - not an heir; Woman received dower- 1/3 real property life estate in property husband owned during marriage
Man received curtesy - life estate in all wife’s real property if they had a child together

Modern - spouse is an heir
- if no descendants or no descendants or parents (upc) - entire estate

  • if descendants - spouse gets 1/3 or 1/2, or specific $ plus 1/3 or 1/2, or (upc) all if the descendants are all kids of their marriage
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5
Q

Intestate - Descendants

A

if all children alive - equal shares

Classic per stirpes - divide equally at top level then distribute down

per capita with representation - equal shares at first surviving level, then distribute down

Per capital at each generational level - each generation gets and equal share

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6
Q

Intestate share of other heirs

A
  1. Spouse and/or descendants
  2. parents or surviving parent
  3. siblings and their descendants
  4. paternal and maternal grandparents and their descendants
  5. nearest kin on paternal and nearest kin on maternal
  6. escheat to the state
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7
Q

Adopted child intestacy

A

Treated the same as biological children

generally not inheritance between adopted child and biological parent

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8
Q

Step children and foster children

A

No inheritance unless adopted

adoption by estoppel - child can inherit if unfulfilled agreement to adopt them

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9
Q

Nonmarital children - intestacy

A

Always inherits from mom

from father if
- father married the mother after birth
- man was adjudicated to be the father in a paternity suit
- after death and during probate proceedings, proved to by the father by c&c evidence

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10
Q

Halfbloods

A

Usually get full share

some give half share or cut them out

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11
Q

Posthumous children - intestacy

A

if in gestation at time of death, allow them to be an heir

some state allow if born within statutory period

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12
Q

Disinheritance clause

A

will contains clause - effect on intestacy

Most states and CL - ineffective
UPC and statutes - effective and treats intestacy share as disclaimed

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13
Q

Advancement

A

lifetime gift to heir with intent that it be applied against any inherited share

cl - presumed to be an advancement

modern - presumed no an advancement unless shown to be intended

UPC - advancement only if it is declared in a contemporaneous writing by donor OR acknowledged in writing by heir even if not contemporaneous; not binding on advancee’s successor unless writing states so

generally binding on successor if advancee predeceases - except upc

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14
Q

Simultaneous death

A

must survive to take

USDA - property of each decedent disposed of as if they had survived the other - does not apply if there is evidence that outlived the other even just for minutes

120 hour rule UPC - must survive by 120 house otherwise treated as predeceased

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15
Q

Disclaimer

A

Do not have to take the interest
- burdensome
- tax
- avoid creditors

written, signed, acknowledged before notary, filed within 9 months of death

cannot be disclaimed if any part has been accepted

property passed as if predeceased

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16
Q

Slayer statute

A

if feloniously or intentionally brings about death - forfeit interest and treated as predeceased

conviction of murder in any degree
or find that the killing was unlawful or intentional by a preponderance of evidence

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17
Q

Will and codicil

A

document executed to dispose of property after death

codicil is a supplement to a will that modifies it

upc - substantial compliance
other states - exact compliance

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18
Q

Will applicable law - validity and effect of will

A

Real property - whether the property is located

personal property - domicile at time of death

out of state and foreign wills to be admissible to probate- saving statute - if in accordance with law of
- that jurisdiction
- the state where the will was executed
- T’s domicile at the time fo execution
- t domicile at death

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19
Q

Will requirements

A

Legal capacity
- 18 and sound mind, married, or military

testamentary capacity
- nature of their act - executing a will
- nature and extent of their property
- the person who are the natural objects of their bounty
- disposing of property

Testamentary intent
- present intent that the document act as the will

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20
Q

Execution of attested wills

A
  • In writing
  • signed by T or by proxy - someone under T’s direction and in T’s presence
  • two signing competent witnesses (or notary for UPC)
  • witnesses signed will in T’s presence

Some states require
- T sign at end
- T publish will - tell witnesses it is a will
- Witnesses sign in presence of each other

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21
Q

Interested witnesses

A

Common law - not competent

now - valid but purge gift unless more than 2 witnesses or taking as an heir then reduce amount

No purging under UPC

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22
Q

Attestation clause

A

Prima facie evidence of the elements of an attested will are met

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23
Q

Self proving affidavit

A

Recites all the elements of execution were performed and is sworn to by t and witnesses before a notary

witnesses do not need to tesify at court to prove will

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24
Q

Holographic will

A

Entirely in T’s handwriting or material portion in handwriting

signed

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25
Q

Oral wills

A

only special circumstances

personal property
- soldiers and sailors
- on deaths doorstep

need 2 or more witnesses

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26
Q

Devise

A

real property

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27
Q

Bequest

A

personal property

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28
Q

Legacy

A

personal property in a will usually money

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29
Q

Specific v general

A

Specific - particular item and distinct

specific of general nature - specific item but not distinguishable

General - general economic benefit payable out of the general estate

demonstrative - gift of general amount that is to be paid for particular source of fund - specific to extent of source, general for any shortfalls

30
Q

Ademption

A

Failed gift - no longer in estate
take nothing

only specific gifts

31
Q

Statutory exceptions to ademption

A

Replacement property

balance of purchase price if still owed

proceeds of condemnation award or insurance paid after death

proceeds from sale by guardian or conservator

32
Q

Ademption by satisfaction

A

intervivos transfer

may require
- writing or specific instructions in will

UPC
- in will
or contemp writing or devisee written acknowledgment at any time

no writing needed if specific

33
Q

Stock splits and dividends

A

Specific bequest of stock

CL - include split but not dividend

now - split and divident

includes inc caused by merger or corp reorganization

34
Q

Newly purchased securities

A

Does not take new securities that have been purchased or acquired by the reinvestment of dividends

35
Q

Liens

A

usually not exonerated - take subject to lien

36
Q

Abatement

A

reducing first where assets not sufficient to pay all claims and satisfy all gifts

  1. property by intestacy
  2. residual
  3. general pp
  4. demonstrative pp
  5. specific pp and rp

pro rata
pp used before rp

37
Q

Lapse

A

Taker predeceases or treated as predeceased

  1. express terms in will
  2. antilapse statute if applicable
  3. residuary
  4. intestate

antilapse - doesnt lapse if have sufficiently close relationship - relative

upc - words of survivorship not enough to negate antilapse

in other state it is enough

if dead when executed - gift is void, but antilapse may apply

38
Q

Who can bring a will claim

A

personal rep of a beneficiary or heir that would have taken

39
Q

Basic rules of construction

A

Avoid intestacy
conflicting provisions- last one prevails
construe as a whol
ordinary words given ordinary meaning
technical words given technical meaning
all words given effect

40
Q

Patent ambiguity

A

Obvious - on its face

trad view - extrinsic not admissible
modern - admissible but not for blank spaces or omitted gifts

41
Q

Latent ambiguity

A

hidden
clear on face but cannot be carried out without further clarification

look at extrinsic evidence

42
Q

Mistake - no apparent ambiguity

A

clear on face and can be carried out as written

plain meaning rule - extrinsic not admissible

modern - admissible to carry out T’s intent

43
Q

Incorporation by reference

A

treated as written into the will even if do not meed will requirements

requirements
- intent to incorp
- doc in existence at the time will executed
- doc is sufficiently described in will

exception to in existence
- reference list of disposing of tangible personal property made after will execution

44
Q

Acts or facts of independent signficance

A

can reference in disposition if they have significant apart from their effect on dispositions made by will - leaving contents of will box even though contents may change

45
Q

Conditional will

A

Not preferred, will likely interpret as a motive if not clear

46
Q

Codicil

A

must be executed with same formalities

treated as one instrument republished on the date of the codicil

invalid will, valid codicil - incorp by reference

47
Q

Integration

A

Show that the pages present at the time of execution are those present at the time of probate

48
Q

Combination will

A

Joint will
Reciprocal or mutual will
contractual will whether the execution or not revoking is the consideration

contract because irrevocable upon death - constructive trust

49
Q

Power of appontment

A

authority granted to a person enabling that person to designate the persons who shall take the property and the manner in which they shall take

General - power exercisable in favor of anyone including the donee of the power, their estate, and their creditors

Special - in favor of limited class, not including donee or their estate or creditors

50
Q

Will Revocation

A

Operation of law

Subsequent instrument

Physical act

51
Q

Revocation by operation of law

A

Marriage
- some say no effect on earlier will
- most say new spouse takes intestate share as an omitted spouse unless - will makes provisions for new spouse, omission was intentional, or will made in contemplation of marriage

Divorce
- most states - revokes all gifts, treated as predeceased
- some revoke relatives of former spouse too
- divorce must be final, remarrying each other does not revoke

pretermitted children
- give a share using statutory formula
- if other parent got share, do not give child a share
- forced share - intestate share of estate, may be limited based on what the other children got
- get nothing if omission intentional or provided for outside of the will
- republication by codicil can effect pretermitted status

51
Q

Revocation by physical act

A

burning, tearing, canceling, obliterating

  • intent to revoke at the time of act
  • proxy - at the request of T and in T’s presence

Partial revocation - some states allow, and extrinsic evidence is admissible, some states give no effect to changes

Revocation of will revokes codicils, revocation of codicils do not revoke will

Destroying a duplicate revokes the will unless no intent to revoke.

destruction of unexecuted copy with intent to revoke does not revoke

52
Q

Revocation by written instrument

A

same formalities of will

expressly revoke
- this is my last will does not revoke

impliedly revoke by inconsistency
- new will completely disposes of property - old will completely revoked
- new will partially disposes, old will revoked to extent of inconsistent provisions

53
Q

Revocation presumptions

A

Presumption of no revocation
- found in normal location and no suspicious circumstances

rebuttable presumption of revocation
- last seen in T’s possession or control and cannot be found or found in mutilated condition
- no presumption if last seen in possession of 3rd person or person adversely effected by its contents had access

54
Q

Lost or destroyed will

A

if presumption that T revoked is overcome - admitted into probate if prove

  1. valid execution
  2. cause of non production and that it was not revoked
  3. the contents of the will
55
Q

Revival

A

3 approaches

  1. UPC - T’s intent
    - previous will remains revoked unless it is evident that T intended to revive the previous will
    - if original will is only partly revoked, the revoked provisions are revived unless evidence that T did not intend to revive
  2. Automatic revival
  3. No revival
    - only revived if reexecuted
56
Q

Conditional revocation

A

Express conditional

Implied conditional revocation- DRR
- Dependent relative revocation
- revoke will 1 thinking will 2 is valid - but for mistaken belief, would not ahve revoked
- will 1 remains in force

  • was will 1 impliedly conditioned of validity of will 2
  • would T prefer will 1 over intestacy - look at similarity of provisions
57
Q

Surviving spouse elective shares

A

Cl marital property states- allow spouse to elect to take a statutory share of estate instead of under will
- 1/2 if no descendants, 1/3 if descendants
- UPC - based on duration of marraige

58
Q

Homestead

A

spouse or dependents are entitled to occupy for as long as they choose despite the disposition of the residence in the will

59
Q

Family allowance

A

provide support during probate administration - in addition to amount passed by will, intestacy, or elective shares
- some limit to dollar amount
- others allow a reasonable amount

60
Q

Will contest procedures

A

Necessary parties - all legatees under will and all intestate heirs - need notice

Standing - interest parties
- whose interest would be adversly effected by admission of the will
- heirs
- beneficiaries of prior wills

61
Q

Grounds for will contest

A

Defective execution
revocation
lack of testamentary capacity
lack of testamentary intent
undue influence or duress
fraud
mistake

62
Q

Insane delusion

A

belief in facts that do not exist and that no rational person would believe existed

destroys testamentary capacity if connection between delusion and property disposition

63
Q

Undue influence

A

influence existed and exerted
overpower the mind and free will
would not have executed the disposition but for the influence

Hounding and badgering is not enough, needs to be undue - free will must be destroyed

presumption of undue influence - confidential relationships
- confidential relationship between T and beneficiary
- and beneficiary was active in procuring, drafting, or executing the will
- some state require that the provision appears unnatural and favor the person exercising the influence

not presumed between spouses
if attorney - void unless close relative

64
Q

Duress

A

Undue influence with violent conduct or threat of physical harm

65
Q

Fraud

A

T willfully deceived as to
- character or content of the instrument
- extrinsic facts that would induce the will or particular disposition
- facts material to disposition

Fraudulently prevented from making will - constructive trust

elements
- false misrep to t
- Knowledge of falsity
- T reasonably relied
- statement caused T to execute the will or make a disposition they otherwise would not have

66
Q

Fraud in the execution and in the inducement

A

Fraud in the factum - execution - misrep as to identity or contents of the instrument
- not test. intent

Fraud in the inducement- T knows they are executing a will, and of the contents, but T is deceived as to some extrinsic fact and makes the will or gift based on that fact
- gift must be set aside

67
Q

Mistake

A

Mistake in execution (in the factum)
- T is in error regarding the identity or contents of the instrument - extrinsic evidence to show no test. intent

mistake in inducement - no relief
- mistaken as to some extrinsic fact and makes their will based on erroneous fact
- may grant relief if mistake appears on face of will or if believe child is dead

UPC
-ma reform will even if unambiguous, to conform to T’s intent if proven by c&c evidence that intent and terms affected by mistake

68
Q

No contest clause

A

beneficiary forfeits interest if they contest and lose

majority- no forfeiture if probable cause for contest

minority- clause given full effect

69
Q

Personal representative

A

Executor if named in will
administrator if not named in will

Bar Exam (12 decks)

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