Wills Flashcards
Surviving Spouse Intestate Share
Spouse and Shared Descendants - ENTIRE ESTATE
Spouse and Parent (no descendants) - 300K and 75%
Spouse, Shared Descendants, and Spouse’s Kids - 225K and 50%
Spouse and Non-spouse kids - 150K and 50%
Just Spouse - ENTIRE ESTATE
Adoption by step parent
Adoption typically severs natural parent-child relationship.
If it is a step parent, natural parent-child relationship remains intact as to both natural parents.
Priority of claims against estate
administrative expenses,
last medical expenses and funeral expenses,
family allowance,
tax claims,
secured claims,
judgments against D,
all other claims
Holographic Will
Completely Handwritten and signed by testator
Some states require entire document to be handwritten, UPC only requires material portions to be handwritten
Omitted child - born after T executed will
(1) rebuttable presumption that it was a mistake, unless
——–intentional omission
———gave to child’s parent (if there were other children)
———provided for the child in lieu of the will
(2) Omitted child will get either
——–if only child - intestate share
——–if other children - share equally in property devised to other children
Dependent Relative Revocation
Disregard testator’s revocation that was made based on a mistake of fact or a mistake of law.
Revocation would not have been made BUT FOR the mistake
Codicil
changes or additions to will
must follow will formalities
republishes the will as of the date of codicil (can even validate an invalid will)
Three ways to revoke a will
(1) Subsequent Writing
(2) Physical Destruction - Majority: destroy language and signature of will, UPC - destroy any part of the will
(3) Operation of Law
Order of Abatement
- Intestate
- Residuary
- General
- Specific
Formal Will Acts
Capacity and Intent, then:
1 - Writing signed by testator
2 - two or more witnesses
3 - T has present testamentary intent
Strict compliance vs substantial compliance
Testamentary Capacity
18 years old plus
1 - nature and extent of property
2 - natural objects of bounty
3 - disposition T is trying to make
4 - Testamentary plan
Witness requirements
Signed by T in joint presence of Ws - in UPC, the T can also acknowledge their signature to Ws, not need to be present
UPC allows Ws to sign within reasonable time after T signs
Presence requirement
-line of sight - Ts and Ws must be in each others direct presence when signing
-Conscious presence - must be aware through any sense (OK over phone)
Revocation of will vs. codicil
Revoking will revokes all codicils
BUT
Revoking codicil does not revoke underlying will, but revives it
Incorporation by reference
1 - other document must be in existence at time of execution
2 - intent to be incorporated
3 - described in will with sufficient certainty
Simultaneous Death
Simultaneous Death Act provides that if there is not sufficient evidence of order of death (does not survive by 120 hours),
each property passes as if the other predeceased
Ademption by extinction
Specifically devised property no longer in T’s estate.
Traditional identity theory - beneficiary gets nothing - extinguished
UPC - intent theory, can receive substitute devise if that was T’s intent
Acts of independent legal significance
Allows T to reference some future act or occurrence to determine devise. This is valid as long as it is independently significant from the will
Anti-lapse
if gift lapses because the beneficiary is deceased, the issue of the deceased beneficiary will receive if
close relationship
EXCEPTION: survivorship clause (“if he/she survives”) - majority says this means anti-lapse doesn’t apply. UPC says it will still apply.
if no close relationship, then it goes to residuary estate
Class gifts and anti-lapse
If class beneficiary dies, then typically their share goes to remainder of class.
UNLESS, class beneficiary protected by antilapse (minority rule).
Anti-lapse first, class gift second
Devise of mortgaged property
Beneficiary takes subject to mortgage, even with a just debts clause
Elective share
Only applicable in Separate Property states
Surviving Spouse can elect to take forced share of augmented estate (all T’s property) instead of taking under the will.
In Community property states, spouse can elect to take 50% of community and quasi community property
Ademption by satisfaction
Testamentary gift can be satisfied by intervivos gifts if that was T’s intent
UPC - must be intent in contemporaneous writing
Advancement
CL - lifetime gift to child presumed to be advancement
UPC - it will only be advancement if confirmed in a contemporaneous writing by T or beneficiary
Disclaimer
Must be affirmatively done (in writing and signed), disclaimer is treated as predeceased.
Done within 9 months for federal tax purposes
Time limit to probate will under UPC
3 years
Omitted Spouse
Spouse who marries after T’s will
(1) rebuttable presumption that it was a mistake (rebutted if will shows intent to omit, spouse receives outside will, or valid prenup)
(2) spouse gets intestate share
Slayer Rule
Killer of D cannot take under will or intestacy
UNLESS involuntary manslaughter or self defense
Intestate Shares Modes
Per Stirpes - divide shares equally at first generation
Per Capita with Rep - divide shares equally at first generation where a member survives
Per Capita at each Generation - divide shares equally at first generation where member survives, pool together, pass down to next generation
Interested Witness
CL - invalid will (unless three witnesses)
Purge - not invalid, but interested witness is purged (receives the lesser of intestate share or what he gets under will)
UPC - abolish interested witness
Lost will
If will is lost and it was last in possession of T, then there is a rebuttable presumption that T destroyed it.
Proponent can try to prove by clear and convincing evidence that T intended will.
Must provide duplicate original, not photo copy
Substantial Compliance
Under UPC, if the invalid will reflects T’s intent and it substantially complied with will formalities then it can be admitted to probate
Cancellation of words
Permitted if it decreases gift, but not if it increases gift
Republication of will
Three wills
Third will revokes second.
First will only revived if third will makes intent clear.
If, instead, the third thing is an act revoking second will, then first will revived if extrinsic evidence proves this.
Evidence of mistake in execution of will
mistake in execution - admissible
mistake in reason for devise - inadmissible
undue influence in will
Presumption:
-confidential relationship
-participated in execution of will
-unnatural devise
Otherwise:
-susceptible
-motive
-opportunity
-result
Priority of appointment of PR
person in will
surviving spouse that is also a devisee
other devisees
surviving spouse
other heirs
creditors if no one else after 45 days
Revocation by Physical Destruction
Cancelling, Tearing, burning, obliterating, or destroying
Majority - must affect writing of will
Minority UPC - only some part of the will needs to be affected
