Wills

Question 1

What is a codicil?

Answer 1

A supplement to the will that can amend or revoke the whole or part of the will

Question 2

In an intestacy situation, if the decedent is survived by a spouse and children, who are descendants of the spouse and decedent, who takes what?

Answer 2

Spouse gets everything. If the surviving kids are the spouse’s and decedent’s, the spouse gets everything intestate

Question 3

In an intestacy situation, if the decedent is survived by their spouse and one of the decedent’s parents, how is the property divided?

Answer 3

Spouse gets $300k and 75% of the remaining estate

Question 4

In an intestacy situation, if decedent is survived by a spouse, a shared kid with the spouse, and a spouse’s child that isn’t the decedent’s (ex. surviving spouses’ child from previous marriage), how is the property divided?

Answer 4

Spouse gets $225k and 50% of the remaining estate

Question 5

In an intestacy situation, if the decedent is survived by a spouse and a child who isn’t the child of the spouse, how is the property divided?

Answer 5

Spouse gets $150k and 50% of the remaining estate?

Question 6

What happens if someone dies intestate without any heirs, spouses, or parents?

Answer 6

The property escheats (goes to) the govt

Question 7

How does simultaneous death and the Uniform Simultaneous Death Act (USDA) affect intestate succession?

Answer 7

To take/inherit a decedent’s property, an heir must survive them. If there is insufficient evidence of the order of death of two individuals, the property of each passes as though the other individual predeceased him.

The USDA states that an heir must be proven by clear and convincing evidence to have outlived/survived the decedent by at least 120 hours

Question 8

What are the 3 different systems for calculating an issue’s (decedent’s child) shares?

Answer 8

1) per stirpes
2) per capita with representation
3) per capita at each generation

Question 9

what is the per stirpes system for calculating issue shares?

Answer 9

divides the decedent’s estate equally amongst the decedent’s lineal line (aka, total number of children that survived the decedent parent)

If one of the decedent’s children predecease, that child’s children will have the share divided amongst them equally, provided they survived the decedent

Question 10

what is the per capita with representation system used to calculate issue shares?

Answer 10

Decedent’s property is divided equally at the first generation where at least one generation member survives the decedent

If there are deceased members at that first generation, their shares drop down to their
surviving issue at the next generation.

If the issue predeceases the decedent and doesn’t have any kids, they get nothing, so the property is divided between the surviving generation members.

Basically, it’s per stirpes but you only make the first cut/division at the first generation that has a surviving member.

Question 11

what is the per capita at each generation system used to calculate issue shares?

Answer 11

Decedent’s property is divided into equal shares at the first generation there’s a surviving member.

Instead of passing a deceased member’s share by representation, however, the remaining shares are pooled and divided amongst the next generation.

Question 12

If a child is born after their parent has died, can they still inherit?

Answer 12

Yes, provided they’re borne within 280 days of their parent’s death.

Under the UPA, that time limit is extended to 300 days

Question 13

Must there be a parent-child relationship for a child to inherit?

Answer 13

yes.

Question 14

Can a stepchild inherit from their stepparent?

Answer 14

Yes, if there is a parent-child relationship and the stepparent adopts the stepchild

Question 15

what is required for a will to be executed?

Answer 15

1) attestation (witnesses)
2) signed by testator
3) present testamentary intent

Question 16

is a formal signature required to execute a valid will?

Answer 16

No, so long as the signature indicates the testator’s intent, that is enough (ex. testator signing his nickname)

Question 17

what do you need for valid attestation of a will?

Answer 17

will must be signed in the presence of at least 2 witnesses

Question 18

Does attestation require that the witnesses sign the will at the same time as the testator?

Answer 18

Not in most jurisdictions. It’s typically enough that the witnesses sign onto the will within a reasonable amount of time after the testator has signed it.

Question 19

For attestation, do the witnesses need to actually witness the testator sign the will?

Answer 19

Traditionally, yes. However, the modern approach only requires that the witnesses be aware that the signing act is being performed (ex. being in the next room)

Question 20

Can a witness who’s financially benefitting from the will be a valid witness to it?

Answer 20

The common law says no. Many states have adopted purge statutes, which allow an interested person to witness the will, and therefore keep the will valid, but any benefits the witness get out of the will are purged/destroyed.

Question 21

If a will doesn’t satisfy all the 3 requirements, does that invalidate the will?

Answer 21

In the majority of jurisdictions, yes. There must be strict compliance with the will requirements.

With the UPC and a minority of states, substantial compliance is enough.

Question 22

What is required for a codicil to validly supplement a will?

Answer 22

A codicil must follow the same formal requirements of a will (written and signed by testator, witnesses, present testamentary intent)

A holographic codicil (only signed and written by testator) can also modify a will

Question 23

what is a holographic will?

Answer 23

An informal, handwritten will that only needs to be signed by the testator to be valid

Question 24

what is a pay upon death (POD) contract, and is it subject to probate proceedings?

Answer 24

A contract formed inter vivos that pays someone upon the death of the testator (ex. life insurance)

These are not subject to probate because they’re inter vivos transfers.

Question 25

Can someone under 18 and/or mentally impaired form a valid will?

Answer 25

No. A testator must be at least 18 and mentally competent

Question 26

when can a will be revoked?

Answer 26

By the testator at any time prior to their death

Question 27

What are the 3 ways to revoke a will?

Answer 27

1) Creating a new will
2) Physically act (ex. throwing the will in a fire)
3) operation of law (ex. divorce)

Question 28

When does a new will revoke an older will?

Answer 28

If it expressly states that the old will is revoked, or through implication due to the new will’s terms being inconsistent with the old will

Question 29

How do you tell the difference between a codicil and a new will?

Answer 29

A new will, in a new way, divides the property that’s already been addressed in the old will (ex. old will gave entire estate to decedent’s wife. New will gave entire estate other than decedent’s car to the wife. This is a new will because it divides up the property from the old will in a new way)

A codicil will add in a new piece of property that wasn’t addressed in the original will

Question 30

What happens if people know that a will exists, but the will cannot be found at the testator’s death?

Answer 30

There’s a rebuttable presumption that the will was destroyed and therefore revoked

Burden is on the proponent to show by clear and convincing evidence that the will still exists

Question 31

Are copies of a will admittable at probate in the absence of the original?

Answer 31

No. However, duplicate originals (another version of the original) that have the 3 requirements are admittable.

Question 32

Can a third party revoke a will on behalf of a testator?

Answer 32

Yes, so long as they revoke it 1) at the testator’s direction and 2) in the testator’s conscious presence

Question 33

If someone revokes a will, does that revive a prior will?

Answer 33

Under the UPC majority rule, no. The old will stays dead. If testator wants the old will back, they’ll need to re-execute it.

Under the dependent relative revocation (DRR) approach, if the new will is accidentally/mistakenly revoked, the mistaken revocation is invalidated, and the will survives.

Question 34

Can a will be orally revoked?

Answer 34

No. It can only be revoked by the 3 methods: physical act, operation of law, or subsequent instrument

Question 35

Can a will incorporate an outside document into itself?

Answer 35

Yes, so long as:
1) the document existed at the time the will was executed/made
2) the testator intends the document to be incorporated in their will
3) the will describes the document with enough certainty that it can be identified

Question 36

What happens if the beneficiary of a will predeceases the testator?

Answer 36

Typically, their gift will lapse into the residuary of the estate, unless the beneficiary belongs to a group protected by an anti-lapse statute (ex. children or spouses)

Question 37

what is abatement in the context of wills?

Answer 37

If the estate does not have sufficient funds to pay debts or make gifts, the gifts will be
abated, or reduced, in a specific order

Question 38

what is the order by which will gifts are abated (reduced) when the estate has insufficient funds?

Answer 38

1) First to go is intestate property: property not devised/addressed by the will

2) Residuary gifts: stuff left over after all the specific gifts of the will have been devised out

3) general gifts: a gift of property satisfied from the general assets of the estate (ex. I give my son $10k)

4) specific gifts: a particular piece of property (ex. I give my son my Ruger SP-100 pistol)

Question 39

what is ademption in the context of wills?

Answer 39

When a will devises a specific piece of property, but at the time the testator dies, that property is no longer part of the estate

Question 40

what is ademption by extinction?

Answer 40

When the devised property is no longer in the estate at the time the testator dies.

Traditionally, this destroys the devise, and the devisee gets nothing.

Under the modern UPC approach, the court analyzes the testator’s intent at time she disposed of the property. If there’s evidence to suggest the testator intended the ademption to happen, then the devisee gets replacement property so they still benefit

Question 41

what is ademption by satisfaction?

Answer 41

when a testator satisfies a specific or demonstrative gift, either in whole or in part, by an inter vivos transfer

ex. a father’s will states that his child will receive $100,000 and, while he is still alive, the father pays the child $25,000, then the child will only receive $75,000 through the will because the first $25,000 was presumably already satisfied.

Question 42

What are the 2 requirements for ademption by satisfaction?

Answer 42

1) testator must intend for the gift to adeem
2) intent must be supported by a writing

Question 43

what are the 2 types of ambiguities in wills?

Answer 43

latent ambiguity: an ambiguity that isn’t facially obvious

Patent ambiguity: ambiguity is obvious on the face of the document (ex. will gives conflicting addresses for the testator’s home address)

Question 44

What is the traditional rule for solving ambiguities in wills?

Answer 44

patent ambiguities had to be resolved without looking to
extrinsic evidence

Latent ambiguities could be resolved with extrinsic evidence

Modern approach allows courts to look at extrinsic evidence no matter the type of ambiguity

Question 45

what is the modern UPC approach to resolving ambiguities in wills?

Answer 45

both ambiguities to be resolved with extrinsic evidence

Question 46

what property/things does a surviving spouse have rights to?

Answer 46

1) social security benefits
2) homestead exemption (in some states)
3) personal property set asides
4) elective share
5) family allowance for reasonable living expenses during the probate process

Question 47

what is an elective share?

Answer 47

50% of the augmented estate that the spouse is entitled to, if they invoke the right

Question 48

how can a spouse waive their elective share?

Answer 48

The waiver must be in writing, and the spouse must be represented by independent legal counsel

Question 49

what is an advancement in the context of a will?

Answer 49

an inter vivos gift given by the testator to one of their children. This gift is subtracted from whatever portion of the estate the child would be entitled to under intestacy

ex. Dad gives son $50k in life. Dad dies intestate, leaving an estate of $200k. Son and a Sister survive. The $50k Son got goes back in the estate: $250k total. Son would normally be entitled to 50% of that $250k, but the $50k gift is deducted from his entitled $125k, so now he only gets $75k intestate.

Question 50

when is a gift during life considered an advancement instead of just a normal gift?

Answer 50

traditionally, any lifetime gift to children is considered an advancement

Under UPC, it’s an advancement if it’s accompanied by a writing indicating that the gift was intended to be an advancement

Question 51

how is an advancement calculated?

Answer 51

Hotchpot method: First, the advancements are added back into the estate. Then, that estate is divided amongst all the children. Then, the child who got the advancement has the advancement deducted from their intestate share.

Question 52

Can a parent intentionally disinherit one of their children?

Answer 52

Yes.

Question 53

What is the slayer rule?

Answer 53

If a beneficiary kills the testator, they can’t inherit anything, and they’re treated as though they predeceased the testator

Question 54

What happens if testator has a child, but dies before updating their will to include that child?

Answer 54

If the testator has no other kids when they die, the omitted kid gets their intestate share.

If the testator had at least one child at the execution of the will, and the will devised
property to at least one of those children, then the omitted child takes an equal share of what that named child receives from the will

Question 55

what is a disclaimer in the context of wills?

Answer 55

When a beneficiary refuses to accept a gift devised to them in the will?

Question 56

How can someone disclaim a testamentary gift?

Answer 56

Must be done within 9 months of the decedent’s death.

The disclaimer must be in writing, signed, and filed with the court, or identify the decedent, describe the interest being disclaimed, and describe the extent of what they’re disclaiming

Question 57

If an interested party wants to contest the validity of a will, what’s the timeline on when they must do it?

Answer 57

within 6 months after the will is admitted to probate

Question 58

What are the various ways an interested party can contest a will’s validity?

Answer 58

1) testator’s mental capacity when executing the will
2) undue influence
3) fraud
4)

Question 59

what are the different types of mental incapacities that can invalidate a will?

Answer 59

1) General mental capacity of the testator: challenging party has burden to prove that testator lacked mental capacity at the time of the will’s execution

2) insane delusion: the testator isn’t necessarily mentally ill, but they’re adhering to some false belief despite all evidence to the contrary

Question 60

How can an interested party contesting a will prove that the testator suffered an insane delusion?

Answer 60

An objective test:
1) Must compare the testator’s delusion with what a rational person would do in the testator’s shoes
2) But for Causation. But for the insane delusion, would the testator have disposed of their property in the way they did?

Question 61

How can a contesting party show that the testator’s will was afflicted by undue influence?

Answer 61

Contesting party has the burden to prove:
1) some third party beneficiary had a confidential relationship with the testator
2) the beneficiary received a substantial benefit from the will
3) the testator had a weakened intellect

If these elements are met, the burden then shifts to the third party beneficiary to prove by a preponderance of the evidence that there was no undue influence

Question 62

what is an in terrorem forfeiture clause?

Answer 62

A no-contest clause in a will that disinherits a beneficiary if they challenge the validity of the will

These clauses are generally unenforceable under the UPC so long as the beneficiary has probable cause to challenge the will. If there is no probable cause, then the clause is enforceable.

Question 63

what is fraud in regards to challenging the validity of a will?

Answer 63

the contesting party bears the burden of showing that a beneficiary 1) intentionally engaged in unlawful misrepresentation, 2) with the purpose of influencing the testator’s disposition of their property

Question 64

what are the 2 types of fraud in the context of will contestation?

Answer 64

1) Fraud in the inducement: The misrepresentation causes the testator to make a different will
than the testator would have otherwise made.

2) Fraud in the execution: A misrepresentation as to the character or contents of the will

Question 65

what is the most common remedy to will fraud?

Answer 65

a constructive trust

Question 66

what is a non-claim statute?

Answer 66

a statute barring a creditor from making a claim on the decedent’s estate after a certain time period has
elapsed

Question 67

Time wise, when must probate proceedings be brought?

Answer 67

within 3 years of the testator’s death

Question 68

what are the duties of an estate’s personal representative (the person acting on behalf of the estate during probate)

Answer 68

1) inventory and appraise the estate
2) locate and contact interested parties, including creditors
3) satisfy debts, taxes, funeral expenses, etc.
4) close the estate at the end of the probate process

Question 69

What are the duties of an estate’s personal represnetative?

Answer 69

They owe a fiduciary duty, so a duty of loyalty and care. They also cannot use their position for self-dealing

Question 70

what is the power of appointment?

Answer 70

a personal power held by a testator to appoint someone to dispose of their property based on the terms of the will

Question 71

what are the 2 types of power of appointment?

Answer 71

1) General: no conditions on the representative/donee’s powers. Therefore, donee can appoint herself or one of her creditors as the owner of the property.

2) Special: The testator/donor can specify certain individuals or groups as the objects of the power, thereby limiting donee’s power

Question 72

for someone to validly give another power of attorney, what elements must be met?

Answer 72

The Appointment must be:
1) In writing
2) signed
3) dated

Question 73

what are the different types of power of attorney?

Answer 73

1) General: Covers all affairs during a person’s period of incapacitation

2) Special: Limits the authority to specific subject matters (ex. only having power of attorney when it comes to contract issues)

3) Advance healthcare directives: directs how a testator receives healthcare/treatment when they become incapacitated

Question 74

what is a living will?

Answer 74

a type of advance healthcare directive that directs the medical care someone wants in the event the individual is not able to make
those wishes known.

Question 75

what is non-probate property?

Answer 75

property that is transferred via an instrument other than the will

Question 76

what is probate property?

Answer 76

Property passed on/transferred via a will or intestacy statute

Question 77

What are some examples of instruments that can transfer non-probate property?

Answer 77

1) a deed
2) a trust
3) joint tenancy
4) pay upon death contract

Question 78

What is a putative spouse, and how are they treated when it comes to inheritance?

Answer 78

When a marriage is not valid but at least one spouse believes in good faith that it is, then the spouses are termed “putative” and qualify as spouses for inheritance purposes.

Question 79

What is the order by which a decedent’s estate pays off costs?

Answer 79

1. Administrative expenses
2. Last medical expenses and funeral expenses
3. Family allowance
4. Tax claims
5. Secured claims
6. Judgments against the decedent
7. All other claims

Question 80

What is the portion of money called that a surviving spouse is entitled to get while the probate process is happening?

Answer 80

family allowance

Question 81

If a spouse is omitted from a will, what is the common law presumption, and how can it be overcome?

Answer 81

There’s a presumption that the omission was a mistake.

This presumption can be overcome only if the will’s language shows a clear intent to disinherit the spouse.

Question 82

How does elder abuse affect whether a person can inherit from an elderly testator?

Answer 82

Some states bar an individual from taking if the individual is guilty of elder abuse.

Question 83

what are the 3 methods by which a minor’s property can managed by an adult?

Answer 83

1) guardianship
2) trusteeship
3) custodianship

Question 84

what is a guardianship?

Answer 84

A management system for a minor’s property. Guardians have very little power over the minor’s property and must go through extensive court proceedings to get permission to use/dispose of the property

Question 85

what is the Uniform Transfers to Minors Act (UTMA)?

Answer 85

federal law that appoints a custodian to use the minor’s property at the custodian’s discretion on the minor’s behalf without court approval and with no accounting requirement.

The custodian must turn any remaining property over to the minor upon the minor’s attainment of age 21.

Question 86

If a will is silent as to who is supposed to serve as the executor/personal representative of the testator’s estate, what happens?

Answer 86

The govt will gap fill someone into that position, based on statutory priorities they’ve created.

Typically, a surviving spouse is the first one put in

Question 87

What is a community property system?

Answer 87

A martial property approach where each spouse owns 50% of the marital property

Question 88

in a community property jurisdiction, how is the estate divided if the decedent dies intestate?

Answer 88

Spouse gets their typical 50%, but also gets the decedent spouse’s 50%. So, 100% of the estate goes to the spouse

Question 89

what is a putative marriage, and how does it affect a spouse’s inheritance rights in a will?

Answer 89

A putative marriage is a legally invalid marriage, but at least 1 of the spouses entered into the marriage in good faith and believes it’s valid.

In wills, a putative spouse gets treated like a legitimate spouse if they believe in good faith that the marriage was valid

Question 90

Can a child borne out of wedlock have any inheritance rights?

Answer 90

Traditionally, no. However, the modern approach creates inheritance rights in 4 situations:
1) if the father subsequently marries the natural mother
2) if the father held the bastard child out as their own and supported them
3) paternity is proven by clear and convincing evidence after the father’s death
4) paterinty

Question 91

What is a pour-over will?

Answer 91

A will substitute that devises a testator’s property (i.e., pours it over) into a trust that was created when testator was alive

Question 92

what is a demonstrative gift?

Answer 92

a gift that identifies property from a specific source, even though it doesn’t identify the individual gift.

Ex. “$10k to my son, to be paid from my savings account, but if the savings funds are insufficient, then to be paid out of my checking.”

Question 93

if a will gives a class gift (ex. to all my children), but one of the class members predeceases the testator, what happens?

Answer 93

Traditionally, rest of the surviving class members incorporate that dead class member’s share into their shared share. This differs if anti-lapse applies.

Question 94

How do anti-lapse statutes affect a class gift and class member’s dying?

Answer 94

If a class member predeceases the testator, traditionally, the rest of the class take the dead class member’s share.

But if anti-lapse statute applies, the dead class member’s issue (descendants) step in and take that dead class member’s share.

Question 95

If a child is omitted from the will, what is the common law presumption, and how can it be overcome?

Answer 95

It’s presumed that the omission was a mistake, and the child can inherit an intestate share.

This presumption is rebutted by (i) intentional omission; (ii) Testator had other children when
will executed and left substantially all of his estate to the other parent of the pretermitted child; (iii) the testator provided for the child outside of the will and intended this to be in lieu of a provision in the will.

Question 96

who can contest the validity of a will?

Answer 96

An interested party, i.e., someone who would benefit from the will, either through the will, or through intestacy