Wills Flashcards
1
Q
Seven will substitutes:
A
(1) Life insurance, (2) joint tenancies, (3) inter vivos gifts and (4) trusts, (5) bank account trusts, (6) contracts, and (7) deeds
2
Q
Property may pass by intestate succession when the decedent:
A
(1) dies without will or their will is denied or (2) will does not dispose of all property because a gift fails or no residuary clause
3
Q
To determine whether marital or community property system applies look to the law of:
A
The state where decedent was domiciled when property acquired
4
Q
Which state’s intestacy laws apply to disposition of personal property?
A
Law of decedent’s domicile at death
5
Q
Which state’s intestacy laws apply to disposition of real property?
A
Law of state where property is located
6
Q
What is the intestate share of a surviving wife at common law?
A
Life estate in 1/3 of real property owned by husband during marriage
7
Q
What is the intestate share of a surviving husband at common law?
A
Life estate in all wife’s real property if child was born to marriage
8
Q
What is the intestate share of a surviving spouse when the decedent leaves descendants under modern law?
A
1/3 or 1/2 of the estate
9
Q
In most states, what is surviving spouse’s intestate share if decedent is not survived by descendants?
A
Entire estate
9
Q
What is the intestate share of a surviving spouse when the decedent leaves descendants (all of whom are descendants of surviving spouse) under UPC?
A
Entire estate
10
Q
Under UPC, what is surviving spouse’s intestate share if decedent is not survived by descendants?
A
Entire estate IF decedent not survived by parents
11
Q
What is intestate share of children when all children survive decedent?
A
Equal shares
12
Q
Classic per stirpes
A
One share for each child and one share of each predeceased child with issue
13
Q
Per Capita w Representation
A
Property divided into equal shares at first generation with living takers
14
Q
Per Capita at Each Level
A
Divide shares at first generation with living takers then divide equally among takers at next generation
15
Q
What order does the estate pass when decedent is not survived by spouse or children?
A
- Parent[s]
- Brothers and sisters and their descendants
- 50/50 paternal and maternal grandparents and descendants
- 50/50 nearest kin on maternal and paternal side
- Escheat to state
16
Q
How are adopted children treated for purposes of intestate succession?
A
Adopted kids inherit from and through adopted parents and adopted parents take from and through the adopted child
17
Q
Do adopted parents inherit from biological parents through intestate succession?
A
Generally no.
18
Q
Do step children or foster children inherit through intestate succession?
A
No unless doctrine of adoption by estoppel
19
Q
What is the doctrine of adoption by estoppel
A
Stepchildren and foster children may inherit when legal custody of child is gained through unfulfilled agreement to adopt them
20
Q
Does a non marital child inherit from mom through intestate succession?
A
Yes
21
Q
When does non marital child inherit from father through intestate succession?
A
(1) father married mother after child born (2) man adjudicated father in paternity suit, and (3) after death man is proved to be father
22
Q
Does a child whose parent dies before they are born (posthumous) inherit through intestate succession?
A
Most states allow
23
Q
Effect of will provision that disinherits an heir on property passing through intestate succession?
A
Not effective in most states but UPC allows decedent to preclude heir from inheriting through intestate succession in their will
24
What is an advancement?
Lifetime gift to an heir w intent the gift be applied against intestate share from donor's estate
25
When is a lifetime gift an advancement at common law?
Presumption of advancement if gift substantial
25
When is lifetime gift an advancement in most states?
Presumption of no advancement unless shown to be intended as such
26
When is lifetime gift advancement under the UPC?
(1) declared as such in contemporaneous writing by donor or (2) acknowledged as such in writing by heir
27
What does the Revised Simultaneous Death Act require for beneficiary or heir to inherit?
survive decedent by 120 hours (UPC follows)
28
What is a disclaimer regarding inheritance or gift under a will?
heir or beneficiary disclaims their interest to take
29
What is the effect of death caused by decedent's heir or beneficiary?
Not allowed to take and property passes as if the killer predeceased decedent
30
Requirements of disclaimer:
(1) written (2) signed by disclaimant, (3) acknowledged before notary
31
What is the only way to avoid intestacy?
Leave a valid will disposing of all probate property
32
What is a will?
instrument directing disposition of person's property
33
What is a codicil?
A supplement to a will that modifies it
34
What law determines validity and effect of will regarding real property?
where property located
35
What law determines validity and effect of will regarding personal property?
testator's domicile at death
36
A will is admissible to probate in a jurisdiction if it applies with the law of:
(1) the jurisdiction, (2) the state where will was executed, (3) testator's domicile at time of will execution, or (4) testator's domicile at death
37
Legal capacity required to make a will
18 years old of sound mind
38
Elements of a will
(1) legal capacity, (2) testamentary capacity (3) testamentary intent, and (4) formalities
39
To have testamentary capacity testator must have capacity to understand
(1) nature of act (they are making will), (2) nature of property, (3) who is natural objects of their bounty (who their family is)
40
To have testamentary intent the testator must have present intent to
(1) dispose of property, (2) only upon their death, and (3) for instrument to accomplish the disposition
41
Formality requirements for Attested Wills
(1) Writing, (2) signed by testator (or proxy in testator presence) (3) two attesting witnesses or notary under UPC (4) testator signs in witnesses presence, and (5) witnesses sign in testator presence or
42
Effect of interested witness at common law
not competent and will not probated
43
Effect of interested witness under modern approach
will valid but bequest to interested witness void
44
What is the presence requirement for will formalities
States vary between (1) conscious presence, or (2) scope of vision test
44
Effect of attestation clause in will
prima facie evidence of elements of execution
45
What is a holographic will?
one entirely in the testator's handwriting and has no witnesses
46
Effect of self-proving affidavit in will
functions as testimony of due execution excusing need to produce witnesses later
47
Requirements of holographic will
material provisions in testator's handwriting and signed by testator
48
Oral will
most states do not recognize
49
What is a specific devise or legacy?
Gift of particular item distinct from all other objects in estate (Sony Computer Model VGN-15934)
50
What is a specific bequest of a general nature?
Gift that is not distinguishable until testator's death (ex: my computer to Gabby)
51
What is the residuary estate?
Testator's remaining property after paying (1) debts expenses and taxes, and (2) specific, general and demonstrative gifts
52
What is a general legacy?
gift of general economic benefit payable out of general assets of estate without requiring source of payment ($10,000 to GK)
53
What is a demonstrative legacy?
Gift of general amount paid from particular source of fund ($10 to GK from my SECU account)
54
What is Ademption By Extinction
Failure of gift because property is no longer in testator's estate at death
55
What gifts does Ademption by Extinction apply to?
Only to specific devises and bequests
56
What is Partial Ademption by Extinction
Testator gives away portion of property and beneficiary takes remaining portion
57
Exceptions to Ademption
(1) replacement property, (2) balance of purchase price when purchaser still owes testator $, (3) proceeds of condemnation or insurance, (4) proceeds from sale by guardian or conservator
58
What is Ademption by Satisfaction?
Satisfaction of testamentary gift in whole or in part by inter vivos transfer from testator to beneficiary after execution of the will
59
Common Law Approach to Exoneration of Liens
estate funds pay off liens
60
UPC approach to Exoneration of Liens
Estate funds do not pay off liens and beneficiary takes subject to debt
61
What is the process of Abatement?
Reducing testamentary gifts in cases where estate assets are not sufficient to pay all claims against estate
62
In what order do testamentary gifts abate?
1.Intestacy
2. Residuary estate
3. General legacies
4. Demonstrative legacies
5. Specific bequests and devises
63
When does a gift lapse?
Beneficiary predeceases the testator or is treated as having done so
64
What controls who receives a lapsed gift (in order)?
(1) terms of will, (2) rule of law (3) residuary clause, (4) intestacy
65
What is an anti-lapse statute?
A statute that saves the gift and because of close relationship between testator and beneficiary and substitutes descendant of predeceased beneficiary
66
Effect of lapse of residuary gifts in most states
allow residuary beneficiaries to equally divide predeceased beneficiaries share
67
Effect of Lapse of Residuary gift under common law
deceased beneficiary's share passes through intestacy rather than allowing surviving residuary beneficiaries to divide
68
Who may raise will interpretation issues?
personal reps and beneficiaries
69
What are the basic rules of will construction?
(1) favor avoiding intestacy, (2) construe will as whole, (3) give words ordinary meaning, (4) give tech words tech meaning, and (5) give effect to all words
69
What is a patent ambiguity?
provision that is ambiguous on its face
70
Is extrinsic evidence admissible to correct patent ambiguity?
Traditional --> No
Modern --> Yes
71
What is a latent ambiguity?
Language of will clear on face but cannot be carried out without further clarification so court will consider extrinsic evidence
72
What is incorporation by reference?
instead of writing in will testator can incorporate outside doc by reference
73
Effect of inc by reference?
incorporated material treated as if it were actually written in will
74
Requirements for inc by reference:
(1) will manifests intent to inc doc (2) doc exists at time will executed, and
(3) doc is sufficiently described in will
75
Effect of republication by codicil?
will and codicil treated as one instrument speaking from late of last codicil's execution
75
What is an act or fact of independent signifigance?
Something outside will that has significance apart from disposing of property at death
76
What is integration?
Requirement that pages present at time of execution are those present at time of probate
77
Effect of valid codicil on defective will
validates the defective will if codicil executed with requisite formalities
78
What is a general power of appointment?
power exercisable in favor of anyone including the donee himself
78
What is a power of appointment?
an authority granted to a person enabling them to designate the persons who shall take property
79
What is a special power of appointment?
power exercisable in favor of limited class of appointees which does not include donee, their creditors, their estate, or creditors of their estate
80
What is a presently exercisable power of appointment?
can be exercised by donee during their lifetime
81
What is a testamentary power of appointment?
exercisable only by donee's will
82
Can a surviving spouse use their elective share to reach property other spouse has power of appointment over?
No
83
When can creditors reach property debtor has power of appointment over?
If power is exercised or if donee of general power is also donor
84
Effect of marriage following execution of will in most states?
No effect
85
Effect of marriage following execution of will in UPC
new spouse takes intestate share unless (1) will provides for new spouse (2) omission intentional, or (3) will made in contemplation of marriage
86
Effect of divorce or annulment following execution of will
gifts and appointments in favor of ex spouse revoked
87
How to revoke will by physical act?
(1) Cancelling, tearing, burning, obliterating material portion of will and (2) intent to revoke
88
What is a will revoked by inconsistency?
New instrument completely disposes of testator's property or if partial revoked only extent of inconsistent provisions
88
Effect of revocation of will
revokes will and all codicils
89
How to revoke a will via written instrument
expressly or by inconsistency
89
Effect of revocation of codicil
Revokes codicil but not prior will
90
When can a will that was lost or destroyed be admitted into probate?
prove (1) valid execution, (2) cause of non-production, and (3) contents of will
90
When does the presumption of no revocation arise?
Will found in (1) normal location, (2) no supscious circumstances
91
When does presumption of revocation arise?
Will cannot be found or is found in mutilated condition UNLESS will was last seen in possession of 3P or person adversely affected by its contents
92
UPC approach to revival of revoked will
previous will remains revoked unless circumstances or testator's statements indicated intent to revive
93
Automatic revival approach to revival of revoked will
revival is automatic
94
Fact pattern for revival of revoked will
Will 1 executed
Will 2 revokes Will 1
Will 2 revoked
95
No revival approach to revival of revoked will
not revived
96
Fact pattern for implied conditional revocation
Will 1 Executed
Will 1 Revoked
Will 2 executed but Will 2 invalid
97
What is the doctrine of dependent relative revocation?
Testator would not have revoked first will if they knew second will would be invalid
98
UPC harmless error statute for revocation of wills
if there is clear and convincing evidence that decedent intended will that does not meet technical requirements to be partial or complete revocation it will be
99
When does doctrine of dependent relative revocation apply?
(1) was revocation of will 1 impliedly conditioned on validity of will 2? (2) would Testator have preffered Will 1 over intestacy?
100
What property is subject to spouse's elective share?
decedent's net estate minus expenses and creditor claims
100
Amount of spouse's elective share?
1/3 if decedent survived by issue or 1/2 if not
101
What is share of pretermitted child?
Intestate share in most states
102
Circumstances where pretermitted child has no protection:
(1) testator had other children when will executed and still gave mostly all property to parent of kid , (2) omission intentional, and (3) kid provided for outside will
103
Homestead statutes
Protects family residence from creditors for as long as they are alive
104
Family Allowance
Gives support to family
104
Who has standing to challenge will?
Interested parties (those adversely effected by admission of will)
105
Personal Property Exempt from Estate
surviving spouse can petition to exempt certain property from claims against the estate
106
Burden of proof to challenge will
the will is invalid
107
Grounds for contesting a will
(1) defective execution (2) revocation (3) lack of testamentary capacity, (4) lack of testamentary intent (5) undue influence or duress (6) fraud and (7) mistake
108
What is the insane delusion challenge to testamentary capacity
A belief in facts that do not exist and no reasonable person would believe that is connected to the disposition of the property
109
Undue Influence Elements:
(1) influence existed and was exerted (2) influence overpower mind and frree will of testator and (3) resulting disposition would not have been made but for influence
110
Elements of fraud
(1) false representation to testator
(2) knowledge of falsity by person making statement
(3) testator reasonably believed statement and
(4) statement caused testator to execute a will or make particular disposition
111
What is a mistake for purposes of will contest?
error not caused by evil conduct
112
What is a mistake in execution?
Testator in error regarding contents or identity of isntrument and thus lacks testamentary intent
113
relief for mistake in execution
court grants relief is mistake is obvious
114
What is a mistake in inducement
testator mistaken as to some fact and makes their will based on this fact
115
relief for mistake in inducment
None
116
What is a no contest clause
beneficiary forfeits their interest if they contest the will and lose
117
Majority rule for no contest clauses:
Valid and enforceable unless challenger had probable cause for contesting
118
Minority rule for no contest clauses
full effect regardless of whether contester had probable cause
