Wills

Question 1

Surviving Spouse Intestate Share

Answer 1

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

Question 2

Adoption by step parent

Answer 2

Adoption typically severs natural parent-child relationship.

If it is a step parent, natural parent-child relationship remains intact as to both natural parents.

Question 3

Priority of claims against estate

Answer 3

administrative expenses,
last medical expenses and funeral expenses,
family allowance,
tax claims,
secured claims,
judgments against D,
all other claims

Question 4

Holographic Will

Answer 4

Completely Handwritten and signed by testator

Some states require entire document to be handwritten, UPC only requires material portions to be handwritten

Question 5

Omitted child - born after T executed will

Answer 5

(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

Question 6

Dependent Relative Revocation

Answer 6

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

Question 7

Codicil

Answer 7

changes or additions to will

must follow will formalities

republishes the will as of the date of codicil (can even validate an invalid will)

Question 8

Three ways to revoke a will

Answer 8

(1) Subsequent Writing

(2) Physical Destruction - Majority: destroy language and signature of will, UPC - destroy any part of the will

(3) Operation of Law

Question 9

Order of Abatement

Answer 9

1. Intestate
2. Residuary
3. General
4. Specific

Question 10

Formal Will Acts

Answer 10

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

Question 11

Testamentary Capacity

Answer 11

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

Question 12

Witness requirements

Answer 12

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)

Question 13

Revocation of will vs. codicil

Answer 13

Revoking will revokes all codicils

BUT

Revoking codicil does not revoke underlying will, but revives it

Question 14

Incorporation by reference

Answer 14

1 - other document must be in existence at time of execution

2 - intent to be incorporated

3 - described in will with sufficient certainty

Question 14

Simultaneous Death

Answer 14

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

Question 15

Ademption by extinction

Answer 15

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

Question 16

Acts of independent legal significance

Answer 16

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

Question 17

Anti-lapse

Answer 17

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

Question 18

Class gifts and anti-lapse

Answer 18

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

Question 19

Devise of mortgaged property

Answer 19

Beneficiary takes subject to mortgage, even with a just debts clause

Question 20

Elective share

Answer 20

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

Question 21

Ademption by satisfaction

Answer 21

Testamentary gift can be satisfied by intervivos gifts if that was T’s intent

UPC - must be intent in contemporaneous writing

Question 22

Advancement

Answer 22

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

Question 23

Disclaimer

Answer 23

Must be affirmatively done (in writing and signed), disclaimer is treated as predeceased.

Done within 9 months for federal tax purposes

Question 24

Time limit to probate will under UPC

Answer 24

3 years

Question 25

Omitted Spouse

Answer 25

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

Question 26

Slayer Rule

Answer 26

Killer of D cannot take under will or intestacy

UNLESS involuntary manslaughter or self defense

Question 27

Intestate Shares Modes

Answer 27

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

Question 28

Interested Witness

Answer 28

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

Question 29

Lost will

Answer 29

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

Question 30

Substantial Compliance

Answer 30

Under UPC, if the invalid will reflects T’s intent and it substantially complied with will formalities then it can be admitted to probate

Question 31

Cancellation of words

Answer 31

Permitted if it decreases gift, but not if it increases gift

Question 32

Republication of will

Answer 32

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.

Question 33

Evidence of mistake in execution of will

Answer 33

mistake in execution - admissible

mistake in reason for devise - inadmissible

Question 34

undue influence in will

Answer 34

Presumption:
-confidential relationship
-participated in execution of will
-unnatural devise

Otherwise:
-susceptible
-motive
-opportunity
-result

Question 35

Priority of appointment of PR

Answer 35

person in will
surviving spouse that is also a devisee
other devisees
surviving spouse
other heirs
creditors if no one else after 45 days

Question 36

Revocation by Physical Destruction

Answer 36

Cancelling, Tearing, burning, obliterating, or destroying

Majority - must affect writing of will
Minority UPC - only some part of the will needs to be affected