Wills

Question 1

Non-probate property

Answer 1

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

Question 2

Intestate succession

Answer 2

die without a will

will denied probate

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

Question 3

intestate - applicable law

Answer 3

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

Question 4

Intestate - surviving spouse

Answer 4

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

Question 5

Intestate - Descendants

Answer 5

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

Question 6

Intestate share of other heirs

Answer 6

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

Question 7

Adopted child intestacy

Answer 7

Treated the same as biological children

generally not inheritance between adopted child and biological parent

Question 8

Step children and foster children

Answer 8

No inheritance unless adopted

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

Question 9

Nonmarital children - intestacy

Answer 9

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

Question 10

Halfbloods

Answer 10

Usually get full share

some give half share or cut them out

Question 11

Posthumous children - intestacy

Answer 11

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

some state allow if born within statutory period

Question 12

Disinheritance clause

Answer 12

will contains clause - effect on intestacy

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

Question 13

Advancement

Answer 13

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

Question 14

Simultaneous death

Answer 14

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

Question 15

Disclaimer

Answer 15

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

Question 16

Slayer statute

Answer 16

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

Question 17

Will and codicil

Answer 17

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

Question 18

Will applicable law - validity and effect of will

Answer 18

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

Question 19

Will requirements

Answer 19

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

Question 20

Execution of attested wills

Answer 20

• 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

Question 21

Interested witnesses

Answer 21

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

Question 22

Attestation clause

Answer 22

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

Question 23

Self proving affidavit

Answer 23

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

Question 24

Holographic will

Answer 24

Entirely in T’s handwriting or material portion in handwriting

signed

Question 25

Oral wills

Answer 25

only special circumstances personal property - soldiers and sailors - on deaths doorstep need 2 or more witnesses

Question 26

Devise

Answer 26

real property

Question 27

Bequest

Answer 27

personal property

Question 28

Legacy

Answer 28

personal property in a will usually money

Question 29

Specific v general

Answer 29

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

Question 30

Ademption

Answer 30

Failed gift - no longer in estate take nothing only specific gifts

Question 31

Statutory exceptions to ademption

Answer 31

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

Question 32

Ademption by satisfaction

Answer 32

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

Question 33

Stock splits and dividends

Answer 33

Specific bequest of stock CL - include split but not dividend now - split and divident includes inc caused by merger or corp reorganization

Question 34

Newly purchased securities

Answer 34

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

Question 35

Liens

Answer 35

usually not exonerated - take subject to lien

Question 36

Abatement

Answer 36

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

Question 37

Lapse

Answer 37

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

Question 38

Who can bring a will claim

Answer 38

personal rep of a beneficiary or heir that would have taken

Question 39

Basic rules of construction

Answer 39

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

Question 40

Patent ambiguity

Answer 40

Obvious - on its face trad view - extrinsic not admissible modern - admissible but not for blank spaces or omitted gifts

Question 41

Latent ambiguity

Answer 41

hidden clear on face but cannot be carried out without further clarification look at extrinsic evidence

Question 42

Mistake - no apparent ambiguity

Answer 42

clear on face and can be carried out as written plain meaning rule - extrinsic not admissible modern - admissible to carry out T's intent

Question 43

Incorporation by reference

Answer 43

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

Question 44

Acts or facts of independent signficance

Answer 44

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

Question 45

Conditional will

Answer 45

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

Question 46

Codicil

Answer 46

must be executed with same formalities treated as one instrument republished on the date of the codicil invalid will, valid codicil - incorp by reference

Question 47

Integration

Answer 47

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

Question 48

Combination will

Answer 48

Joint will Reciprocal or mutual will contractual will whether the execution or not revoking is the consideration contract because irrevocable upon death - constructive trust

Question 49

Power of appontment

Answer 49

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

Question 50

Will Revocation

Answer 50

Operation of law Subsequent instrument Physical act

Question 51

Revocation by operation of law

Answer 51

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

Question 51

Revocation by physical act

Answer 51

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

Question 52

Revocation by written instrument

Answer 52

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

Question 53

Revocation presumptions

Answer 53

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

Question 54

Lost or destroyed will

Answer 54

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

Question 55

Revival

Answer 55

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

Question 56

Conditional revocation

Answer 56

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

Question 57

Surviving spouse elective shares

Answer 57

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

Question 58

Homestead

Answer 58

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

Question 59

Family allowance

Answer 59

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

Question 60

Will contest procedures

Answer 60

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

Question 61

Grounds for will contest

Answer 61

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

Question 62

Insane delusion

Answer 62

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

Question 63

Undue influence

Answer 63

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

Question 64

Duress

Answer 64

Undue influence with violent conduct or threat of physical harm

Question 65

Fraud

Answer 65

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

Question 66

Fraud in the execution and in the inducement

Answer 66

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

Question 67

Mistake

Answer 67

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

Question 68

No contest clause

Answer 68

beneficiary forfeits interest if they contest and lose majority- no forfeiture if probable cause for contest minority- clause given full effect

Question 69

Personal representative

Answer 69

Executor if named in will administrator if not named in will