Wills Flashcards
1
Q
Nonprobate property
A
Property that does not pass through probate and is not governed by will or intestacy
2
Q
Tenancy in common
A
No ROS and Decedent’s share passes through estate
3
Q
Joint tenancy
A
Decedent’s share passes to surviving Joint tenant
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
5
Q
heirs
A
persons who take by intestacy (parents, spouse, kids)
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
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)
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
9
Q
descendants
A
persons related to decedent in descending lineal line such as children/grandchildren
10
Q
Not survived by spouse (no spouse left) - what happens to intestate
A
If all children survive, they receive equal shares
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)
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)
13
Q
under per stirpes, if you die with no kids
A
your share is scrapped, just scratch it out
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
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
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
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
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
19
Q
adoptive/biological parent rights
A
adoptive parents inherit from adopted child
biological parents do not inherit from adopted child tho
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
21
Q
age of adopted rule
A
in most states, age when adopted does not matter. but it can
22
Q
rules on nonmarital children
A
always inherit from mother
inherit from father if state req’s met (such as determination of paternity)
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)
24
Q
posthumous child
A
child born after death of a parent
state law dependent
25
advancement
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
26
Survival of heir restrictions
some states: heir can survive for any amount of time
UPC: heir must survive by 120 hours
No survival --> heir treated as predeceased
27
does an heir have the right to deny the estate
yes - one may disclaim an interest that otherwise would pass to them for a decedent or decedent's estate
28
req's for disclaims
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
29
effect of disclaimer
effect of disclaimer is to treat person who disclaimed as dying first
30
If heir or beneficiary kills decedent
states handle this 1/2 ways:
1) slayer statute precludes killer from inheriting or being beneficiary
2) court can impose constructive trust
31
validity of will: applicable law
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
32
requirements of will validity
1) legal capacity
2) testamentary capacity
3) testamentary intent
4) formalities
33
what is legal capacity of a will
in most states, person must be at least 18 years old
34
testamentary capacity req for a will
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
35
when a mentally disabled person may lack capacity for a will
adjudication of incompetence --> just a rebuttable presumption of lack of capacity
36
testamentary intent req
testator intended instrument to be will
37
formalities of attested will
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)
38
What if testator uses a proxy to sign
If testator is incapable of signing, must be signed by another in her presence and by her direction
39
The "two witnesses" req often means
must be in testators conscious presence usually (states differ)
40
attestation clauses, req'd?
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)
41
Self-proving affidavit
testator and witnesses swear in affidavit to things they would swear to during probate proceeding
Can substitute for in court testimony of witnesses
42
holographic wills
written in testator's handwriting
43
req's for holographic will
1) be in testators writing (either all or just material parts depending on state); and
2) be signed and dated
44
what is not required for a holographic will
no witnesses in most states.
How much needs to be in testator's handwriting varies by state
45
Noncupative or oral will (uncommon)
abolished in most states
46
Classifications of Gifts
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 $$)
47
specific bequest vs specific bequest of general nature
property distinguishable from rest of testators estate
Specific bequest of general nature is not distinguishable from rest of estate
48
demonstrative legacy
gift of specific sum of money payable out of designated fund
49
residuary gift
girl of remainder of estate after al debts and other gifts are paid (just a big general clause giving all remainder to my wife)
50
ademption
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
exceptions to ademptions
1) replacement property
2) balance of purchase price
3) condemnation or insurance proceeds
4) proceeds from sale by guardian
52
ademption by satisfaction
beneficiary receives gifted property before testators death
(most states require writing here)
53
what happens to stock splits or stock dividends
beneficiary receives increased number of shares from stock splits or stock dividends, just not new stocks
54
exoneration of liens
some states: liens exonerated (paid off with estate funds)
UPC and other states: no exoneration unless will provides for it
55
abatement:
process or reducing gifts when estate property is inadequate to satisfy gifts and debts
56
abatement order
1) property passing by intestacy
2) residual gifts
3) general gifts
4) demonstrative gifts
5) specific gifts
57
can a beneficiary disclaim a gift from will
yes can a beneficiary disclaim a gift from will
58
lapse
gft fails bc beneficiary dies before testator or is legally treated as not surviving testator
59
how to distribute lapsed property
1) look to will's terms
2) anti-lapse statute may apply
3) residuary clause
4) intestacy
60
anti-lapse statutes
prevent lapse by substituting descendants of predeceased beneficiary for predeceased benefits
Relationship needed between testator and predeceased beneficiary varies by state
61
an anti-lapse statute will usually save a lapsed gift if
predeceased beneficiary was:
1) a relative of testator (usually descendants only); and
2) had descendants
NO NON RELATIVES!
62
lapse in residuary gift
arises where bequest is made to a person who predeceases testator and the anti-lapse statute does not apply (bc not testators relative)
63
2 views under lapse in residuary gift
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
If you have a will, it shows
you did not intend to die intestate
65
if you have conflicting provisions in a will
use one closer to testator's death
66
we construe a will
as a WHOLE! and we give
ordinary words = ordinary meaning
technical words = technical meaning
67
3 types of ambiguity in a will
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
how will we resolve patent or latent ambiguity
court will look to extrinsic evidence
69
how to handle no apparent ambiguity?
Depends on jdx
can be:
1) traditional rule: cannot disturb plain meaning of will
2) modern rule: extrinsic evidence permitted
70
can you incorporate documents to help reference a will?
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
tangible personal property document
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
facts of independent signifcance
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
conditional will
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
Codicil
Amendment to existing will
75
republication of codicil
will and codicil treated as one document speaking from date of codicil
codicil can incorporate defective will by reference
76
pour over provision
provision in will that leaves property to inter vivos trust
trust can be created before or after testator executes will
77
internal integration
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
joint will
single testamentary document containing the wills of 2 or more persons (this is a mess, dont do it)
79
reciprocal wills:
separate wills with parallel dispositive provisions (sweetheart wills)
80
contractual will
will executed pursuant to a contract
CL: extrinsic evidence can establish contractual nature of will
Modern law: writing req'd
81
can a contractual will be revoked?
can be revoked by agreement of parties while both alive
82
but what if revoked by one person while both alive? (contractual will)
other person can change will
83
What if revoked by one person after other dies? (REMEDY of breach of contractual will)
Injured beneficiaries may sue to impose constructive trust on property they should have received
84
power of appointment (just a right you have)
owner of property (donor) transfers to the donee the power to appoint the new owner of the property
85
2 types of power of appointment:
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
how a power of appointment may be exercised
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
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?
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
Revocation of will: Marriage after will execution
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
What happens when there is divorce after will
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
Renovation of will: murder of testator by benenficiary
beneficiary gets nothing
91
requirements for revocation by physical act:
1) intent to revoke
2) mental capacity (sound mind)
3) physical act: burning, tearing, ripping, writing void
92
is proxy revocation permitted
yes but only if done at testator's request and in testator's presence
93
partial revocation by physical act (crossing out a few clauses)
Depends on jdx
94
revocation by subsequent will or codicil
Will or codicil must meet formal requirements and
revocation can be express
95
revocation by inconsistency: what happens if the new will is inconsistent with old will?
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
presumption in revocation of wills
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
testator executes valid will 1, and then validly executes will 2 that revokes will 1. Then revoked will 2. What result?
revival fact pattern
3 diff approaches
98
3 approaches for revival
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
conditional revocation
this will is revoked only if ... happens
100
remember the doctrine of dependent relative revocation DRR is
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
fact pattern: testator executes will 1. testator validly revokes will 1. testator executes will 2, but will 2 is invalid. does will 1 remain?
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
to determine whether Dependent Relative Revocation - DRR - applies, courts look at
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
courts that apply harmless error will use it in
revocation situations so long as there is clear and convincing evidence to revoke
104
surviving spouses - spouses elective share
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
some statements will give the spouse a share of
augmented estate, which includes non probate assets
106
community property states - spouses
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
Pretermitted Child Statutes
purpose is to carry out testator's presumed intent to provide for children
Typically applies to children born or adopted after will execution
108
Situations where pretermitted child does not receive forced share
1) entire estate left to pretermitted child's other parent
2) omission was intentional
3) tester provided for pretermitted child
109
Additional possible protections for child or surviving options to get:
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
effect of codicil
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
contesting for insane delusion
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
elements of undue influence
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
how do you prove undue influence/duress
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
contest for fraud
1) false representation made to testator
2) knowingly false by person making statement
3) testator reasonably believed and acted in reliance
115
fraud in the execution/factum
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
fraud in the inducement
testator knows identity and contents of will but is deceived as to extrinsic fact and makes gift based on that fact
117
mistake in the execution/factum
testator is in error regarding contents or identity of instrument
118
mistake in the inducement
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
No contest Clause:
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
who carries out estate administration
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
duties of personal rep
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
priority of creditors claims
1) administration expenses
2) funeral expenses and expenses of last illeness
3) family allowance
4) federal claims
5) secured claims
6) unsecured claims
123
advanced directives
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
statutory surgot decisions
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
