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Wills Flashcards

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1
Q

Marital Rights

A

use the law of domicile at the time the property was acquired [i.e., marital rights in property don’t change as the couple moves from one state to another]

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2
Q

Per Stirpes Distribution

A

one share is created for each child and one share for each deceased child who has at least one surviving descendant [divide shares at the child generation even if no child survives]; small minority of states use this method

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3
Q

Per Capita with Representation Distribution

A

property is divided into equal shares at the first generational level at which there are living takers; each living person at that level takes a share, and the share of each deceased person at that level passes to their issue by right of representation; used in most states

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4
Q

Per Capita at Each Generational Level

A

make the initial division of shares at the first generational level at which there are living takers, but shares of deceased persons at that level are pooled then divided equally among the takers at the next generational level [i.e., persons in the same degree of kinship to the decedent always take equal shares]

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5
Q

If no surviving spouse or descendants, estate passes in this order:

A

parents/surviving parent, brothers/sisters and their descendants, 1/2 to paternal grandparents and 1/2 to maternal grandparents and their descendants [both halves to one side if no takers on the other side], 1/2 to nearest kin on maternal side and 1/2 to nearest kin on paternal side [all to one side if there are no kin on other side], escheat to state

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6
Q

An adopted child inherits

A

from and through the adopting parents and their kin, and the adopting parents take from and through the adopted child; generally no inheritance in either direction between adopted children and their biological parents

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7
Q

Stepchildren and foster children generally

A

have no inheritance rights unless adopted by the stepparent/foster parent

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8
Q

Nonmarital child

A

always inherits from the mother; will generally inherit from father if: (1) the father married the mother after the child’s birth; (2) the man was adjudicated to be the father in a paternity suit; or (3) after his death and during probate proceedings, the man is proved by clear and convincing evidence to be the father

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8
Q

Adoption by Estoppel

A

permits a child to inherit from or through a stepparent or foster parent when legal custody of a child is gained under an unfulfilled agreement to adopt them; if child dies many states prohibit step/foster parent from inheriting

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8
Q

Posthumous child

A

if a person is in gestation at the time of the intestate’s death, most states will allow that person to be an heir; some states allow a child not in gestation but who is born within a statutorily stated period of time to inherit under specified circumstances

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9
Q

Disinheritance [UPC]

A

a testator may exclude the right of an individual to succeed to property passing by intestate succession; if person survives, intestate share passes at though they had disclaimed it

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10
Q

Advancement

A

a lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate; lifetime gift in most states is presumptively not an advancement unless shown to be intended as such

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11
Q

Advancement [UPC]

A

will only find a gift an advancement if it is (1) declared as such in a contemporaneous writing by the donor, or (2) acknowledged as such in a writing by the heir [which need not be contemporaneous]

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12
Q

Hotchpot

A

if an advancement is found, the gift’s value when given is added back into the estate for purposes of calculating shares and then subtracted from the recipient’s share; heir need not return the amount of an advancement in excess of the value of their intestate share

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13
Q

Advancee Predeceases Intestate [generally]

A

an advancement is binding upon those who succeed to the estate of the advancee if the advancee predeceases the intestate

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14
Q

Advance Predeceases Intestate [UPC]

A

an advancement is not binding on the advancee’s successors unless the required writing states that it is

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15
Q

Traditional Uniform Simultaneous Death Act

A

when disposition of property depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if they had survived the other; only applies if there is no sufficient evidence of survival

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16
Q

Revised Uniform Simultaneous Death Act [120-Hour Rule]

A

[UPC and many states use this rule] requires that a person survive the decedent by 120 hours to take any distribution of the decedent’s property

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17
Q

Disclaimer [in most states]

A

must be written, signed by the disclaimant, acknowledged before a notary, and filed with the appropriate court within nine months of death

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18
Q

Disclaimer [federal tax purposes]

A

must be in writing, irrevocable, and filed within nine months of the decedent’s death or the beneficiary’s 21st birthday

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19
Q

Savings Statute [UPC and most states]

A

a will is admissible to probate in a jurisdiction if the will has been executed in accordance with the law of (1) that jurisdiction, (2) the state where the will was executed, (3) the testator’s domicile at the time of the will’s execution, or (4) the testator’s domicile at death

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20
Q

A valid will needs

A

legal capacity, testamentary capacity, testamentary intent, and all formal requirements

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21
Q

Testamentary Capacity

A

testator must have capacity to understand (i) the nature of their act [that the testator is making a will], (ii) the nature and extent of their property [mistake is ok], (iii) the persons who are the natural objects of their bounty, and (iv) the above factors and be able to formulate an orderly scheme of disposition

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22
Q

Testamentary Intent

A

testator must have present intent that the instrument operate as their will; parol evidence is admissible to show that an instrument was not meant to have any effect

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23
Q

When it is not clear whether an instrument was intended to be testamentary, testamentary intent will be found only if it is shown that the testator

A

(1) intended to dispose of the property; (2) intended the disposition to occur only upon his death; and (3) intended that the instrument in question accomplish the disposition

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24
Q

Formal Will Requirements [most states]

A

(i) the will/codicil must be in writing [10 states allow e-wills]; (ii) must be signed by the testator or by another at the testator’s direction + in their presence; (iii) there must be 2 attesting witnesses; (iv) the testator must sign or acknowledge a previous signature in the will in each of the witnesses’ presence; and (v) the witnesses must sign the will in the testator’s presence

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25
Q

UPC Witnesses

A

will is valid if it is either (1) attested to by 2 competent witnesses or (2) signed by a notary

26
Q

CL Interested Witness

A

a witness who was also a beneficiary was not competent

27
Q

Interested Witness [modern]

A

will attested to by an interested witness is still valid, but the bequest to the witness may be void under a “purging statute” unless they are supernumerary or would have taken a share as an heir if the will had not been probated

28
Q

Interested Witness [UPC]

A

will is valid + gifts to witness are not purged

29
Q

Conscious Presence Test

A

presence requirement is satisfied if each party was conscious of where the parties were and what they were doing, and the act of signing took place within the general awareness and cognizance of the other parties; participating via telephone or computer is not “presence” for execution requirements unless state has specific e-will legislation

30
Q

Harmless Error

A

UPC standard that gives court authority to give effect to a defectively executed will if proponent establishes by clear and convincing evidence that the testator intended the document to be their will

31
Q

Holographic Will

A

will that is entirely in the testator’s handwriting and has no attesting witnesses

32
Q

Attorney Liability [most states]

A

duty runs not only to the client but also the intended beneficiaries of the attorney’s services; SoL begins to run on the date of the decedent’s death

33
Q

Devise

A

gift of real property; recipient = devisee

34
Q

Bequest

A

gift of personal property

35
Q

Legacy

A

gift of personal property in a will, usually of money; recipient = legatee

36
Q

Demonstrative Legacy

A

gift of a general amount that is to be paid from a particular source or fund

37
Q

Ademption

A

the failure of a gift because the property is no longer in the testator’s estate at the time of their death

38
Q

Increases in Property before Testator’s Death

A

income on property goes into the general estate, but improvements to real property go to the specific devisee

39
Q

Abatement

A

the process of reducing testamentary gifts in cases where the assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises

40
Q

Abatement Order

A

if not specified in the will, testamentary gifts will usually abate in the following order: (i) property passing by intestacy, (ii) residuary estate, (iii) general legacies, (iv) demonstrative legacies, (v) specific bequests and devises

41
Q

Patent Ambiguity

A

exists if a provision is ambiguous on its face [fails to convey a sensible meaning]; modern view = extrinsic evidence is permissible to correct it

42
Q

Latent Ambiguity

A

exists when the language of the will is clear on its face but cannot be carried out without further clarification; courts will consider extrinsic evidence to resolve the ambiguity

43
Q

Incorporation by Reference Requirements

A

(i) the will manifests an intent to incorporate the document, (ii) the document is in existence at the time the will is executed, and (iii) the document is sufficiently described in the will

44
Q

Contractual Will

A

a will executed or not revoked as the consideration for a contract; a contract to make, not to make, or not to revoke a will is valid

45
Q

Revocation by Physical Act

A

under a typical statute, a will/codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will with the intent to revoke; must have intent to revoke that is concurrent with the act of revocation

46
Q

Presumption of No Revocation

A

if a will is found in a “normal location” and there are no suspicious circumstances, there is a presumption that the testator did not revoke it

47
Q

Presumption of Revocation

A

if a will last seen in the testator’s possession or under their control cannot be found after their death or is found in a mutilated condition, a rebuttable presumption arises that the testator revoked it

48
Q

Lost or Destroyed Wills

A

may be admitted to probate if the following can be proven: (1) valid execution; (2) the cause of nonproduction; and (3) the contents of the will

49
Q

Revival [UPC]

A

if a will that wholly revoked a previous will is thereafter revoked, the previous will remains revoked unless it is evident from the circumstances or the testator’s statements that the testator intended to revive the previous will

50
Q

Revival [Automatic]

A

some states say revival is automative on revocation of a subsequent will on the theory that the revoking will did not take effect because it was revoked prior to the testator’s death

51
Q

No Revival

A

earlier will can be revived only if it is re-executed or republished by a validly executed codicil

52
Q

Dependent Relative Revocation

A

applies when a testator revokes their will under the mistaken belief that another disposition of their property would be effective, and but for this mistaken belief, the testator would not have revoked the will; if the other disposition fails, the revocation also fails and the will remains in force

53
Q

To determine whether DRR applies ask

A

(i) was the revocation of Will 1 impliedly conditioned on the validity of Will 2? (ii) would testator have preferred Will 1 over intestacy? [the more similar the provisions of the two wills, the more likely the court will apply DRR]

54
Q

Grounds for Will Contest in General

A

(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

55
Q

Insane Delusion

A

a belief in facts that do not exist and that no rational person would believe existed

56
Q

Insane delusions destroy testamentary capacity only if

A

there is a connection between the insane delusion and the property delusion

57
Q

Undue Influence

A

contestant must establish: (i) influence existed and was exerted, (ii) the effect of the influence was to overpower the mind and free will of the testator, and (iii) the resulting testamentary disposition would not have been executed but for the influence [causation]

58
Q

Undue Influence Factors

A

(i) unnatural disposition, (ii) opportunity/access to testator, (iii) confidential or fiduciary relationship between parties, (iv) ability of testator to resist, (v) beneficiary’s involvement with the drafting/execution of the will

59
Q

Fraud requires testator to have been willfully deceived as to

A

(1) the character or content of the instrument, (2) extrinsic facts that would induce the will or a particular disposition, or (3) facts material to a disposition

60
Q

Fraud Elements

A

(1) false representation made to the testator, (2) knowledge of falsity by person making the statement, (3) testator reasonably believed the statement, (4) statement caused the testator to execute a will or make a particular disposition that the testator would not have made but for the misrepresentation

61
Q

Reformation [UPC]

A

a court may reform a will, even if it is unambiguous, to conform to the testator’s intent if it is proven by clear and convincing evidence that the testator’s intent and the terms of the will were affected by a mistake of fact or law

62
Q

Powers and Duties of Personal Representative

A

(1) give notice to devisees, heirs, and claimants against the estate; (2) discover and collect the decedent’s probate assets and file an inventory; (3) manage the assets of the estate during administration; (4) pay expenses of administration, claims against the estate, and taxes; and (5) distribute property [PR = fiduciary]

63
Q

Claim Order

A

(1) admin expenses, (2) funeral expenses and expenses of last illness, (3) family allowance, (4) debts given preference under federal law, (5) secured claims, (6) judgments entered against the decedent during his lifetime, and (7) all other claims

64
Q

Creation + Execution of a Living Will

A

must be (1) in writing, (2) signed by the declarant/principal/another at the person’s direction, and (3) witnessed by two adult witnesses; person designated as agent generally can’t serve as necessary witness

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