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Wills Flashcards

1
Q

Nonprobate property

A

Property that does not pass through probate and is not governed by will or intestacy

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2
Q

Tenancy in common

A

No ROS and Decedent’s share passes through estate

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3
Q

Joint tenancy

A

Decedent’s share passes to surviving Joint tenant

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4
Q

when intestacy occurs

A

1) person died without a will (total intestacy)
2) will did not dispose of all property (partial intestacy) – watch out for this

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5
Q

heirs

A

persons who take by intestacy (parents, spouse, kids)

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6
Q

Varying statutory schemes for intestate succession

A

states have varying rules for how decedent’s assets are distributed through intestate succession (i.e., who is entitled to distributed assets and the amounts distributed)

CANNOT rebut the scheme in a state

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7
Q

Applicable law for intestacy

A

Marital rights: Law of domicile when property acquired
Succession rights:
Personal property: law of of domicile at death
Real Property: law of situs (location of land)

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8
Q

Spouses Intestate share varies by state

A

may be surviving spouse inherits one-half or one-third of decedent’s estate, with remainder to surviving descendants (e.g., children)’

This share may also vary depending on number of children or length of marriage

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9
Q

descendants

A

persons related to decedent in descending lineal line such as children/grandchildren

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10
Q

Not survived by spouse (no spouse left) - what happens to intestate

A

If all children survive, they receive equal shares

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11
Q

Per capita Intestate Distributions

A

When decedent’s estate does not pass to her surviving spouse, but instead to her descendants, statutes control how distributions are made (diff approaches on how to handle this by state)

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12
Q

Per Stirpes Distribution

A

majority rule

Divide estate into shares at first generation below decedent

Create one share for each surviving child and one share for each predeceased child who left living descendants

Give each surviving child one share

Give share created for predeceased child to child’s descendants

E.g., X dies intestate and has three children: A, B, & C but only A is alive upon X’s death (i.e., B & C predecease X); A has one child, J; B is survived by one child, K; C is survived by three children, L, M, & N
X’s estate is divided into 1/3 shares: A takes 1/3, B’s 1/3 goes to K; L, M, & N split C’s 1/3 share (i.e., L, M, & N each get 1/9)

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13
Q

under per stirpes, if you die with no kids

A

your share is scrapped, just scratch it out

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14
Q

per capita with representation distribution (MOST COMMON)

A

divide estate at first generation with surviving members (THIS IS WHAT IS DIFFERENT)

each living person at that level takes a share

share of deceased person at that level passes to issue

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15
Q

per capita at each generation distribution

A

divide estate into shares at first generation with survivors

pool shares at lower generation, so each person receives equal share

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16
Q

no descendants or spouses

A

goes to ancestors: persons related in ascending lineal line such as parents and grandparents

or

Collaterals: persons related but not in lineal line such as siblings, aunts, and uncles

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17
Q

Estate passes in this order

A

1) parents
2) Siblings
-If one parents and at least one sibling survive, some states give entire estate to parent
- other states give one half to parent and one half to siblings
3) grandparents and their descendants

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18
Q

adopted child rights

A

adopted child inherits from adoptive parents and grandparents

BUT whether adopted child inherits from biological parents varies by state

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19
Q

adoptive/biological parent rights

A

adoptive parents inherit from adopted child

biological parents do not inherit from adopted child tho

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20
Q

remedy for children

A

adoptive by estoppel may permit child to inherit (this is often step children)

stepchildren have no inheritance rights generally

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21
Q

age of adopted rule

A

in most states, age when adopted does not matter. but it can

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22
Q

rules on nonmarital children

A

always inherit from mother

inherit from father if state req’s met (such as determination of paternity)

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23
Q

half blood sibling

A

siblings with one common parent

most states do not distinguish between half bloods and whole bloods (but this can differ)

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24
Q

posthumous child

A

child born after death of a parent

state law dependent

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25
Q

advancement

A

gifts made during testator or decedent’s life with the intent that the gift be applied against any share the heir or beneficiary inherits from decedent/testator’s estate
Common law — gifts were automatically deducted from beneficiary/heir’s remaining interest

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26
Q

Survival of heir restrictions

A

some states: heir can survive for any amount of time
UPC: heir must survive by 120 hours
No survival –> heir treated as predeceased

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27
Q

does an heir have the right to deny the estate

A

yes - one may disclaim an interest that otherwise would pass to them for a decedent or decedent’s estate

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28
Q

req’s for disclaims

A

1) in writing
2) signed by person disclaiming
2) acknowledged in front of notary
4) timely filed

Modern view: can disclaim at any time so long as no acceptance or use of benefits from gift

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29
Q

effect of disclaimer

A

effect of disclaimer is to treat person who disclaimed as dying first

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30
Q

If heir or beneficiary kills decedent

A

states handle this 1/2 ways:
1) slayer statute precludes killer from inheriting or being beneficiary
2) court can impose constructive trust

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31
Q

validity of will: applicable law

A

real property –> law of situs
Personal property –> law of domicile at death

savings statute: will valid if it complies with local law, law where it is executed, or law of decedent’s domicile at death or will execution

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32
Q

requirements of will validity

A

1) legal capacity
2) testamentary capacity
3) testamentary intent
4) formalities

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33
Q

what is legal capacity of a will

A

in most states, person must be at least 18 years old

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34
Q

testamentary capacity req for a will

A

1) understand what testator is doing
2) understand effect of what testator is doing
3) understand and nature and extent of property
4) recognize natural objects of testator’s bounty
5) ability to do the above at same time

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35
Q

when a mentally disabled person may lack capacity for a will

A

adjudication of incompetence –> just a rebuttable presumption of lack of capacity

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36
Q

testamentary intent req

A

testator intended instrument to be will

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37
Q

formalities of attested will

A

1) in writing
2) signed by testator or proxy (can be initials, nicknames, etc.)
3) signed by at least 2 witnesses (states vary whether interested witness loses gift)

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38
Q

What if testator uses a proxy to sign

A

If testator is incapable of signing, must be signed by another in her presence and by her direction

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39
Q

The “two witnesses” req often means

A

must be in testators conscious presence usually (states differ)

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40
Q

attestation clauses, req’d?

A

Not required, but clause included immediately between testator and witness signatures in a will, which sets forth the above required elements and that they were satisfied

Constitutes prima facie evidence of the facts recited in the clause (i.e., that execution requirements have been satisfied)

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41
Q

Self-proving affidavit

A

testator and witnesses swear in affidavit to things they would swear to during probate proceeding

Can substitute for in court testimony of witnesses

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42
Q

holographic wills

A

written in testator’s handwriting

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43
Q

req’s for holographic will

A

1) be in testators writing (either all or just material parts depending on state); and
2) be signed and dated

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44
Q

what is not required for a holographic will

A

no witnesses in most states.

How much needs to be in testator’s handwriting varies by state

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45
Q

Noncupative or oral will (uncommon)

A

abolished in most states

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46
Q

Classifications of Gifts

A

1) Devise: Gift of real property
2) Bequest: Gift of personal property (diff kinds)
3) legacy or demonstrative legacy: gift of personal property not sufficiently described to be specific (usually $$)

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47
Q

specific bequest vs specific bequest of general nature

A

property distinguishable from rest of testators estate

Specific bequest of general nature is not distinguishable from rest of estate

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48
Q

demonstrative legacy

A

gift of specific sum of money payable out of designated fund

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49
Q

residuary gift

A

girl of remainder of estate after al debts and other gifts are paid (just a big general clause giving all remainder to my wife)

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50
Q

ademption

A

gift fails because property is no longer in testator’s estate.. but exceptions

(ex. I say Jonah can have my Honda accord, I sell the Honda. what can Jonah get? nothing)

51
Q

exceptions to ademptions

A

1) replacement property
2) balance of purchase price
3) condemnation or insurance proceeds
4) proceeds from sale by guardian

52
Q

ademption by satisfaction

A

beneficiary receives gifted property before testators death

(most states require writing here)

53
Q

what happens to stock splits or stock dividends

A

beneficiary receives increased number of shares from stock splits or stock dividends, just not new stocks

54
Q

exoneration of liens

A

some states: liens exonerated (paid off with estate funds)

UPC and other states: no exoneration unless will provides for it

55
Q

abatement:

A

process or reducing gifts when estate property is inadequate to satisfy gifts and debts

56
Q

abatement order

A

1) property passing by intestacy
2) residual gifts
3) general gifts
4) demonstrative gifts
5) specific gifts

57
Q

can a beneficiary disclaim a gift from will

A

yes can a beneficiary disclaim a gift from will

58
Q

lapse

A

gft fails bc beneficiary dies before testator or is legally treated as not surviving testator

59
Q

how to distribute lapsed property

A

1) look to will’s terms
2) anti-lapse statute may apply
3) residuary clause
4) intestacy

60
Q

anti-lapse statutes

A

prevent lapse by substituting descendants of predeceased beneficiary for predeceased benefits

Relationship needed between testator and predeceased beneficiary varies by state

61
Q

an anti-lapse statute will usually save a lapsed gift if

A

predeceased beneficiary was:

1) a relative of testator (usually descendants only); and
2) had descendants

NO NON RELATIVES!

62
Q

lapse in residuary gift

A

arises where bequest is made to a person who predeceases testator and the anti-lapse statute does not apply (bc not testators relative)

63
Q

2 views under lapse in residuary gift

A

Common law — deceased beneficiary’s share passes by intestacy

Modern view — residuary beneficiaries who survive testator and deceased beneficiary take the deceased beneficiary’s share

64
Q

If you have a will, it shows

A

you did not intend to die intestate

65
Q

if you have conflicting provisions in a will

A

use one closer to testator’s death

66
Q

we construe a will

A

as a WHOLE! and we give
ordinary words = ordinary meaning
technical words = technical meaning

67
Q

3 types of ambiguity in a will

A

1) patent: ambiguity is obvious
2) latent: language is clear on its face but cannot be carried out without further clarification (I leave to Frank, but you have 2 cousins frank)
3) no apparent: language is clear on its face and can be carried out, but someone thinks testator was mistaken

68
Q

how will we resolve patent or latent ambiguity

A

court will look to extrinsic evidence

69
Q

how to handle no apparent ambiguity?

A

Depends on jdx

can be:
1) traditional rule: cannot disturb plain meaning of will
2) modern rule: extrinsic evidence permitted

70
Q

can you incorporate documents to help reference a will?

A

yes incorporation by reference. but need
1) intent to incorporate
2) writing must be in existence when will is executed**
3) writing must be clearly identified in will

state needs to recognize this

71
Q

tangible personal property document

A

testator’s will may refer to written list to dispose of tangible personal property, even if list was not in existence at time of will execution

72
Q

facts of independent signifcance

A

something that has a legal reason for existing other than the disposition of property at death (just going outside the will to find significance)

73
Q

conditional will

A

will that is to operate if certain event occurs or does not occur

but courts construe will as general, not conditional, if possible

can have ineffective will if condition is not met

74
Q

Codicil

A

Amendment to existing will

75
Q

republication of codicil

A

will and codicil treated as one document speaking from date of codicil

codicil can incorporate defective will by reference

76
Q

pour over provision

A

provision in will that leaves property to inter vivos trust

trust can be created before or after testator executes will

77
Q

internal integration

A

must be able to show that all pages present at time of will execution are the same as pages present at time of probate

(just showing that pages are unified as one big document)

78
Q

joint will

A

single testamentary document containing the wills of 2 or more persons (this is a mess, dont do it)

79
Q

reciprocal wills:

A

separate wills with parallel dispositive provisions (sweetheart wills)

80
Q

contractual will

A

will executed pursuant to a contract

CL: extrinsic evidence can establish contractual nature of will
Modern law: writing req’d

81
Q

can a contractual will be revoked?

A

can be revoked by agreement of parties while both alive

82
Q

but what if revoked by one person while both alive? (contractual will)

A

other person can change will

83
Q

What if revoked by one person after other dies? (REMEDY of breach of contractual will)

A

Injured beneficiaries may sue to impose constructive trust on property they should have received

84
Q

power of appointment (just a right you have)

A

owner of property (donor) transfers to the donee the power to appoint the new owner of the property

85
Q

2 types of power of appointment:

A

1) general power of appointment: power exercisable in favor of donee, their estate, their creditors, or creditors of estate
2) special power: power exercisable in favor of limited class of appointees, not including donee, their estate, their creditors, or creditors of estate

86
Q

how a power of appointment may be exercised

A

1) presently exercisable power: exercisable by donee during lifetime
2) testamentary power: exercisable only by donee’s will

this depends on how the original power of appointment was created

87
Q

creditors cannot usually reach the property over which the donee has a power of appointment, until that power is actually exercised.

If you dont exercise while alive, or in your will, but you do have a residual clause (leaving all residual of your property), does your power of appointment pass under the residual clause?

A

This answer differs by state:

Some states say yes: it passes under the will even though it is just a residual clause

Some states say no: a residual clause does not exercise a power of appointment unless it specifically refers to it

88
Q

Revocation of will: Marriage after will execution

A

In most states, marriage has no effect on prior will

Some states and UPC: Spouse receives intestate share unless
1) will provides for spouse
2) omission was intentional OR
3) testator executed will in contemplation of marriage

89
Q

What happens when there is divorce after will

A

All provisions in favor of ex-spouse are void

voiding occurs upon final divorce, not pending divorce

Property that would have gone to ex-spouse passes under terms of will as if ex-spouse had died first

90
Q

Renovation of will: murder of testator by benenficiary

A

beneficiary gets nothing

91
Q

requirements for revocation by physical act:

A

1) intent to revoke
2) mental capacity (sound mind)
3) physical act: burning, tearing, ripping, writing void

92
Q

is proxy revocation permitted

A

yes but only if done at testator’s request and in testator’s presence

93
Q

partial revocation by physical act (crossing out a few clauses)

A

Depends on jdx

94
Q

revocation by subsequent will or codicil

A

Will or codicil must meet formal requirements and
revocation can be express

95
Q

revocation by inconsistency: what happens if the new will is inconsistent with old will?

A

If it completely disposes of testator’s property –> old will completely revoked

If new will partially disposes of testator’s property –> old will revoked only as to inconsistent parts

96
Q

presumption in revocation of wills

A

presumption of no revocation if will is found in normal location there are no suspicious circumstances

Also,

If will is in testator’s possession or control but can’t be produced after testator’s death –> presumption that testator revoked will

BUT can rebut this evidence obvi

97
Q

testator executes valid will 1, and then validly executes will 2 that revokes will 1. Then revoked will 2. What result?

A

revival fact pattern

3 diff approaches

98
Q

3 approaches for revival

A
  1. UPC/Intent Approach: Look at testator’s intent
  2. Automatic revival approach: Revoking will never took effect because it was revoked
  3. No revival approach: Revocation by subsequent writing takes effect immediately when signed (will 1 is gone bc it is dead)
99
Q

conditional revocation

A

this will is revoked only if … happens

100
Q

remember the doctrine of dependent relative revocation DRR is

A

a remedy that courts will use when testator revoked a prior will but will 2 was invalid for some reason! TESTED!
all about whether they prefer will 1 over intestacy

101
Q

fact pattern: testator executes will 1. testator validly revokes will 1. testator executes will 2, but will 2 is invalid. does will 1 remain?

A

implied conditional revocation (dependent relative revocation - DRR)

Will 1’s revocation was impliedly conditioned on validity of Will 2. If will 2 is invalid, will 1 remains.

102
Q

to determine whether Dependent Relative Revocation - DRR - applies, courts look at

A

intent: would the testator have preferred will 1 over intestacy (they only revoked will 1 because of belief that will 2 was good)

Court will look at:
1) more similar will provisions = more likely court will apply DRR
2) more dissimilar = less likely court will apply DRR

103
Q

courts that apply harmless error will use it in

A

revocation situations so long as there is clear and convincing evidence to revoke

104
Q

surviving spouses - spouses elective share

A

spouses’s elective share

Surviving spouse has right to portion of estate regardless of what will says

Amount may be percentage or vary with number of children or length of marriage

105
Q

some statements will give the spouse a share of

A

augmented estate, which includes non probate assets

106
Q

community property states - spouses

A

no elective share because spouse is protected by owning half of community property

Deceased spouse can give away only separate property and their half of community property

107
Q

Pretermitted Child Statutes

A

purpose is to carry out testator’s presumed intent to provide for children

Typically applies to children born or adopted after will execution

108
Q

Situations where pretermitted child does not receive forced share

A

1) entire estate left to pretermitted child’s other parent
2) omission was intentional
3) tester provided for pretermitted child

109
Q

Additional possible protections for child or surviving options to get:

A

1) homestead (family residence) live there without title
2) family allowance (amount of money so they can survive, very common - but the amount differs among states)
3) exempt personal property (protected from creditors bc of family reasons)

110
Q

effect of codicil

A

when a codicil is validly executed, the original will is treated as republished and deemed to have been executed on the date the codicil was executed

111
Q

contesting for insane delusion

A

persistent belief in facts that are against all evidence

must have connection between insane delusion and property disposition to be grounds for will contest

112
Q

elements of undue influence

A

1) influence existed and was exerted
2) influence overpowered testator’s mind and free will
3) influence caused testator to execute will with different terms (causation)

113
Q

how do you prove undue influence/duress

A

Direct evidence is great, but unlikely.

Evidence of undue influence:
1) unnatural disposition
2) opportunity to exert undue influence
3) confidential or fiduciary relationship
4) ability of testator to resist
5) beneficiary’s involvement in drafting will

114
Q

contest for fraud

A

1) false representation made to testator
2) knowingly false by person making statement
3) testator reasonably believed and acted in reliance

115
Q

fraud in the execution/factum

A

testator deceived as to identity or contents of instrument (didnt know it was a will when they signed)

ex. asking Stevie wonder for an autograph, but instead it was a will

116
Q

fraud in the inducement

A

testator knows identity and contents of will but is deceived as to extrinsic fact and makes gift based on that fact

117
Q

mistake in the execution/factum

A

testator is in error regarding contents or identity of instrument

118
Q

mistake in the inducement

A

testator mistaken as to some extrinsic fact and makes will based on fact

courts generally will not grant relief (taking someone off your will based off a mistake)

119
Q

No contest Clause:

A

Beneficiary forfeits interest in estate if they contest the will and lose

Most states enforce clause unless contest was in good faith and with probable cause

Some states give clause full effect even if contest was in good faith

120
Q

who carries out estate administration

A

personal representative (court appoints them)

If they died intestate, its called an administrator

If person died in the will, they are called an executor

121
Q

duties of personal rep

A

1) give notice to heirs and beneficiaries
2) give notice to creditors
3) collect and manage all probate assets
4) pay estate expenses and creditors
5) distribute proeprty to heirs or beneficiaries

122
Q

priority of creditors claims

A

1) administration expenses
2) funeral expenses and expenses of last illeness
3) family allowance
4) federal claims
5) secured claims
6) unsecured claims

123
Q

advanced directives

A

1) medical power of attorney/durable healthcare power: principle names agent to make medical decisions when principal cannot
2) living will: states individual’s desires regarding life-sustaining procedures

124
Q

statutory surgot decisions

A

if you dont name a power of attorney then there may be someone close to you who is appointed to be your person for advanced directives

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