Wills Flashcards
Non-probate property
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
Intestate succession
die without a will
will denied probate
will does not dispose of all of the property - gift failed or no residual clause
intestate - applicable law
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
Intestate - surviving spouse
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
Intestate - Descendants
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
Intestate share of other heirs
- Spouse and/or descendants
- parents or surviving parent
- siblings and their descendants
- paternal and maternal grandparents and their descendants
- nearest kin on paternal and nearest kin on maternal
- escheat to the state
Adopted child intestacy
Treated the same as biological children
generally not inheritance between adopted child and biological parent
Step children and foster children
No inheritance unless adopted
adoption by estoppel - child can inherit if unfulfilled agreement to adopt them
Nonmarital children - intestacy
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
Halfbloods
Usually get full share
some give half share or cut them out
Posthumous children - intestacy
if in gestation at time of death, allow them to be an heir
some state allow if born within statutory period
Disinheritance clause
will contains clause - effect on intestacy
Most states and CL - ineffective
UPC and statutes - effective and treats intestacy share as disclaimed
Advancement
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
Simultaneous death
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
Disclaimer
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
Slayer statute
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
Will and codicil
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
Will applicable law - validity and effect of will
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
Will requirements
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
Execution of attested wills
- 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
Interested witnesses
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
Attestation clause
Prima facie evidence of the elements of an attested will are met
Self proving affidavit
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
Holographic will
Entirely in T’s handwriting or material portion in handwriting
signed
Oral wills
only special circumstances
personal property
- soldiers and sailors
- on deaths doorstep
need 2 or more witnesses
Devise
real property
Bequest
personal property
Legacy
personal property in a will usually money