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Wills Flashcards

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1
Q

Uniform Probate Code vs. state intestacy laws re surviving spouse

A

UPC considerably more generous to surviving spouse

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2
Q

UPC: If spouse + shared descendants survive

A

Spouse takes ENTIRE estate

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3
Q

UPC: If spouse and parent survive decedent

A

Spouse takes 300k + 75% of remainder

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4
Q

UPC: If spouse + shared descendants + spouse’s other kids survive decedent

A

Spouse takes 225k + 1/2 of remaining property

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5
Q

UPC: If spouse + non-spousal kids survive decedent

A

Spouse takes 150k + 1/2 of remaining property

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6
Q

UPC: If decedent only survived by spouse

A

Surviving spouse takes ENTIRE estate

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7
Q

Codicil

A

Supplement that amends or revokes will in whole or in part

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8
Q

Probate

A

Judicial process for administering and settling decedent’s estate

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9
Q

Do living people have heirs?

A

NO

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10
Q

Issue/Descendants

A

Decedent’s lineal line (kids/grandkids, going DOWN)

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11
Q

Ancestors

A

Decedent’s parental lines (going UP)

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12
Q

Collateral relatives

A

Decedent’s relatives through ancestor (siblings, cousins, etc) – going side to side

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13
Q

Is decedent’s actual intent relevant to legislative default estate plan?

A

NO

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14
Q

Uniform Simultaneous Death Act

A

If unclear who survived whom (e.g. car crash), property will pass as if each had predeceased the other.

Heir must be proven by 1) clear + convincing evidence and 2) must have survived decedent by 120 hours

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15
Q

Must a lineal line member have a parent-child relationship to receive from decedent?

A

YES

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16
Q

Adoptive children inheritence

A

Inherit from decedent like biological children

Adoption SEVERS right to inherit from adoptee’s natural parents

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17
Q

Stepparent Adoption

A

Creates parent/child relationship with stepparent for purposes of inheritance

This type of adoption does NOT prevent adoptee from inheriting from other genetic parent

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18
Q

Posthumously-Born Children

A

If conceived before, but born after, death of mother’s husband

CL: If child born within 280 days of death, rebuttable presumption of parentage and child will inherit

UPA: increases rebuttable presumption period to 300 days

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19
Q

Per Stirpes Method

A

Divides shares equally according to decedent’s lineal line

1) Divide shares into total number of children who survive OR leave issue to survive
2) Then divide by representation

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20
Q

Per Capita with Representation

A

1) Divide property equally at generation where a member first survives decedent
2) If deceased member NOT survived by issue, that member does not take a share

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21
Q

Three will execution requirements

A

1) signed by testator
2) presence of witnesses
3) testamentory intent

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21
Q

Per Capita at each Generation (UPC!!)

A

1) Divide property into equal shares at first generation where there is surviving member (same first step as other per capita)
2) THEN pass to next generation by pooling
3) Divide pooled shares equally at next generation

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22
Q

Can will be oral?

A

NO, under UPC, must be written

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23
Q

Must signature be at end of will?

A

In some states, YES

Other states/UPC: signature can be anywhere and will is still valid, BUT any words after signature are INVALID

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24
Q

Capacity to sign will

A

Must be at least 18 and of sound mind

Formal signature not required

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25
Q

Presence of witnesses: UPC vs. most jdx

A

Most jdx require at least two witnesses

Most jdx: Testatory and witnesses must sign in presence of one another

UPC: Witnesses must sign within reasonable time of signature by testator

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26
Q

Traditional vs. modern approach of “in the presence” for will signing

A

Traditional: “line of sight” (must be in same room)

Modern: “conscious presence” (must be aware, even if cannot directly see)

*UPC adopts modern view ONLY if will is signed by another person on testator’s behalf

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27
Q

Interested witness CL vs. Purge

A

An interested witness has a financial interest in the will

CL: Interested witnesses not competent

Purge theory (many states): interested witnesses do not invalidate will, BUT probate court will purge any gains in excess of intestate succession baseline.

Purge exceptions: Do not purge gain if 1) if two other disinterested witnesses OR 2) interested witness would take share under intestate AND takes lesser of intestate share

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28
Q

Does UPC observe interested witness doctrine?

A

No, abolished

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29
Q

Must testamentory intent be present?

A

YES, at time of signing

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30
Q

Failure to satisfy formalities (CL v. UPC)

A

CL (majority): Strict compliance required

UPC (minority): substantial compliance required, CCE for intent can establish formality

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31
Q

Holographic Wills requirements for legitimacy

A

TO be valid, must be SIGNED

Does NOT need to be dated

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32
Q

Must codicil be in same form as will?

A

NO
Same formalities required, but a formal will can be amended with holographic codicil, and vice versa

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33
Q

Types of Will Substitutes (5)

A

Joint Tenancy
Revocable Trust
Pour-Over Will (clause that ‘pours over’ some assets into inter vivos trust)
POD (Payable On Death) Contract
Deed (requires present intent to convey to qualify as will)

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34
Q

Is a will ambulatory?

A

Yes! Can be altered or revoked any time until testator’s death

In whole OR in part

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35
Q

Three ways to revoke a will

A

1) subsequent instrument
2) physical act
3) operation of law

CANNOT be oral
CAN be partial or entire

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36
Q

Subsequent instrument

A

Express revocation: later writing expressly revokes prior will

Implied revocation: later writing inconsistent with prior will. If it is VALIDLY EXECUTED, the later document controls

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37
Q

Distinguish codicil from new will?

A

If original will has residual gift and later writing does not –> probably a CODICIL

If original will has no residuary gift and later writing does –> probably a NEW WILL

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38
Q

Physical act

A

A testator may revoke by burning, tearing, or crossing things out

Majority: words, including signature, must be destroyed to invalidate

UPC: Destructive act only needs to affect some part of will (corner is fine)

*Destruction of signed original or duplicate presumptively destroys all copies

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39
Q

Lost wills

A

When we know a will exists but cannot find it when testator dies (or is found mutilated), creates REBUTTABLE PRESUMPTION of destruction by physical act

Burden on proponent to show will’s existence by CCE

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40
Q

Can duplicate originals or copies of wills be admitted if original will is lost?

A

Duplicate original (another version that is signed and attested): YES

Copy: NO

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41
Q

Operation of law

A

In most jdx, divorce revokes all will provisions in favor of former spouse UNLESS evidence that testator wanted divorced spouse to take share

UPC invalidates gifts not just to ex-spouse, but to ex-spouse’s relatives

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42
Q

Does re-marriage revoke a will?

A

No, subsequent marriage does not revoke will because surviving spouse can take elective share

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43
Q

Third-party revocation

A

Okay if 1) at testator’s direction and 2) in testator’s conscious presence

44
Q

What happens to codicils when WILL revoked

What happens to will when CODICILS revoked

A

If will revoked, attached codicils ALSO revoked

If codicils revoked, underlying will REVIVED in its original form

45
Q

Republication

A

UPC Majority rule does NOT recognize automatic revival of a revoked will

If second will revoked, testator needs to re-execute first will

Revival occurs if new will shows testator INTENDED previous will to take effect

Extrinsic evidence to revive admissible for physical act destruction

46
Q

Dependent Relative Revocation

A

Safety valve for testators who revoke on basis of a mistake in law or fact

This invalidates mistaken revocation and DOES revive earlier will

Analysis: but for mistake, testator would NOT have revoked original will

47
Q

Plain Meaning Doctrine

A

Courts give words in wills plain meaning UNLESS will states otherwise by defining terms

48
Q

Incorporation by reference

A

Will may incorporate document outside will itself if
1) document exists at time of execution
2) testator intends for document to be incorporated
3) document is described with sufficient certainty to be identified

UPC exception: does not need to exist at time of execution if only DISPOSES OF tangible personal property

49
Q

Acts of independent Significance

A

Testator can dispose of property based on act or event unrelated to will

This applies to all acts occurring in the future (e.g. possible births/deaths/marriages)

50
Q

Lapse at CL

A

CL: Testamentory gifts lapse (fail) if beneficiary dies. They would be dumped into residuary gifts

51
Q

Anti-lapse statutes

A

Provide alternative for lapsed gifts

Must be 1) protected relationship (relative) and 2) survived by issue

If these requirements are NOT met, CL applies and gifts go to residuary

52
Q

Class gift member death rules

A

CL: If member’s gift lapses, only surviving members (rest of class) shares that member’s gift

UPC: If anti-lapse statute applies, then ISSUE of pre-deceased member will take

If lapsed member NOT covered by anti-lapse statute, CL rule controls and rest of class members share gift

53
Q

Abatement

A

If estate doesn’t have sufficient funds, gifts will be abated in specific order

Hierarchy (from first to last to go):
Intestate
Residuary gift
General Gift (gift satisfied from general assets)
Specific Gift (particular piece of property)

Note: demonstrative gift (general gift from particular source) is treated as specific when enough info provided

54
Q

Ademption by extinction

A

When will makes devise of property, but piece of property no longer in estate at time of death

Traditional (identity theory): extinct, devisee takes nothing

UPC (intent theory): If testator’s intent suggests ademption was intentional, you can take specific property that is substitute OR monetary value

55
Q

Ademption by satisfaction

A

Applies when specific or demonstrative gift given in whole or part through inter-vivos transfer

Testator must 1) intend for gift to adeem and 2) intent must be supported by writing

56
Q

Types of ambiguities

A

Latent: NOT visible on face of will (e.g. “my brother” but not clarifying which one)

Patent: Visible on face of will (e.g. typos/inconsistencies in address number)

57
Q

Traditional vs. modern treatment of ambiguities

A

Traditional: extrinsic evidence only admissible for latent ambiguities, not patent

Modern: Most courts allow latent AND patent ambiguities to be resolved with extrinsic evidence

58
Q

Mistakes in will writing

A

Courts are unforgiving if you e.g. accidentally write wrong cousin’s name

NOTE: this is not mistake of fact or law, this is just error

59
Q

Rights of surviving spouse ( money property etc)

A

Social security + pension
Homestead exemption
Personal property set asides
Family allowance (for expenses during probate)
Elective share

60
Q

Spousal elective share

A

Forced share that a surviving spouse may elect to take, which will change gifts to other beneficiaries

UPC: Forced share is 50% of decedent’s AUGMENTED estate (property from before marriage + property acquired during marriage) which is greater than community property

61
Q

Waiver by surviving spouse

A

Surviving spouse can waive right to elective share if 1) in writing 2) after fair disclosure of contents and 3) represented by independent counsel

62
Q

Advancements

A

Lifetime gift to child that is treated as satisfying part or all of intestate share

CL: lifetime gift PRESUMED to be advancement, child has burden of showing it was outright gift

UPC: gift is advancement only if 1) declared by decedent in contemporaneous writing or 2) writing indicates gift should be taken into account in computing

63
Q

Hotchpot analysis

A

How to calculate advancement

1) ADD value of advancement BACK into intestate estate
2) DIVIDE resulting estate by number of children taking
3) DEDUCT child’s advancement from his intestate share

64
Q

May a person intentionally disinherit his children?

A

Yes lmao

65
Q

Unintentional disinheritance

A

When testator has a child after executing a will and does not amend

1) If testator had NO children when will was executed, omitted child takes her INTESTATE share

2) if testator had children when will was executed, and property given to at least one of those children, omitted child takes EQUAL SHARE from portion of property already devised to other kid(s)

66
Q

Slayer rule

A

Beneficiary who murders decedent is BARRED from taking under decedent’s will and is treated as if he PREDECEASED testator

Does not apply for involuntary manslaughter or self-defense–only intentional murder

Does NOT apply if you kill decedent’s spouse/family

UPC: allows killer’s ISSUE to take, if relevant

67
Q

Disclaimer of gift by heir

A

A person may disclaim a gift if

1) in writing, signed, and filed with court

OR

2) declared to person in charge AND identifies decedent, interest being disclaimed, and extent of disclaimer

TIMING: Must disclaim within 9 months of decedent’s death

68
Q

Elder Abuse

A

Someone convicted of financial exploitation, abuse, or neglect of elder under her care cannot inherit from that person

69
Q

Who has standing to challenge validity of will? + SOL

A

Only interested party (one who would receive financial benefit under will OR would take under intestate succession but doesn’t under will)

Must file a contest claim within 6 months after will is admitted to probate

70
Q

General testamentory capacity: what must be shown to challenge

A

Person challenging will (contestant) bears burden of proving that the testator lacked capacity at time of EXECUTION (the ‘when’)

Can show that testator lacked ability to know:

why: the nature of the act
what: nature of property
who: objects of his bounty (people)
how: plan of disposition

71
Q

Insane delusion

A

False belief that testator adheres to in spite of reason and evidence to contrary, when he DOES have general capacity but is delusional in some belief

Objective test:
Measure the delusion against actions of RATIONAL PERSON in same position
If belief is insane delusion, rational person could not agree

Causation: must show but-for causation that delusion caused the testamentory disposition

72
Q

Undue influence

A

A coerced relationship + allegations that third party controlled testator’s decisionmaking

Causation matters!

Elements: 1) susceptibility 2) motive 3) opportunity 4) causation

73
Q

Proof of undue influence

A

Contestant bears initial burden of showing:

1) beneficiary received substantial benefit
2) beneficiary had CONFIDENTIAL professional relationship (e.g. attorney/physician/priest) with testator
3) Testator had WEAKENED intellect

Upon this showing, presumption of undue influence created, and burden shifts to third party to show by preponderance that no undue influence existed

If undue influenced–treated as if predeceased

74
Q

Beneficiary Fraud elements

A

Beneficiary made misrepresentation with

1) intent to deceive testator
2) with purpose of influencing testamentory disposition

Contestant bears burden

75
Q

Fraud in the inducement

A

Misrepresentation causes testator to make different will (e.g. beneficiary promises to give money to testator’s child)

76
Q

Fraud in the execution

A

Misrepresentation as to character or contents of the will (e.g. telling a blind person that the will says a different name)

77
Q

Remedy for fraud

A

Constructive trust

78
Q

Forfeiture clauses

A

In terrorem: no-contest clause to dissuade party from suing about his share

UPC: Clause unenforceable if beneficiary had probable cause to challenge

So, if NO probable cause, forfeiture clause IS enforceable

79
Q

Probate vs. non-probate property

A

Probate: passes by will or intestate succession

Non-probate property transfers by instrument OTHER THAN will, including
Deed
Trust
Joint tenancy
POD Contract

80
Q

Probate purpose/role

A

-Protecting and satisfying creditors
-Quieting contested titles and transferring titles
-Protect testator’s interests against fraud/undue influence
-efficiently handling will contests

81
Q

Probate filing under UPC - statute of limitations and notice

A

Must be brought within 3 years of death (afterward, presumption of intestacy)

Party requesting probate can choose formal or informal notice

82
Q

Creditor Non-claim statute

A

Bars creditor from making claim on estate after certain period of time elapses, after which point claim is BARRED

Personal representative must provide notice to creditors of estate

83
Q

Seven classes of creditors (most to least important)

A

1) Administrative expenses
2) medical and funeral expenses
3) family allowances
4) taxes
5) secured claims
6) judgments against decedent
7) all other claims

84
Q

Personal representative

A

Person who acts on behalf of estate during probate

If appointed by court: administrator
If named in will: executor

85
Q

Duties of personal representative

A

-inventory and appraise estate
-locate and contact interested parties, including creditors
-satisfy debts, including taxes, burial expenses, and support
-close estate

Obligations: loyalty and care, CANNOT engage in self-dealing (but gets paid from estate)

86
Q

Priority of choice for personal representative

A

If not named, priority is:
1) surviving spouse who is devisee
2) other surviving devisee
3) surviving spouse (if not devisee)
4) other heirs
5) 45 days after death: any creditor

87
Q

Power of appointment

A

ability of decedent (donor) to select individual (donee) to dispose of certain property under the will

Power is personal to donee

Types: General and special

88
Q

General power of appointment re donee power

A

No conditions or restrictions on donee’s power

Donee can appoint herself or one of her creditors as owner of property

If she fails to exercise power –> property reverts back to owner’s estate

89
Q

Special power of appointment

A

Donor can specify certain groups or individuals as objects of donee’s power to LIMIT the power

90
Q

Power of attorney

A

Authority to act on another’s behalf in legal or business matter

must be 1) in writing 2) signed 3) dated

91
Q

General POA

A

covers all affairs during period of incapacitation

92
Q

Special POA

A

limits authority to specific subject matters or business details

93
Q

Advance health care directives v healthcare POA

A

Living will: dictates the care that individual wants, agent must see that directive is enforced

Durable POA for healthcare: appoints agent to stand in principal’s shoes and make medical choices for them

94
Q

May putative spouses collect inheritence?

A

Yes, if marriage is not valid but one party believes it is valid in good faith, the spouses are putative and qualify for inheritance

95
Q

When may non-marital child collect from father?

A

CL: Never

Modern: Cannot inherit unless
1) father married mother
2) father held child out as own
3) paternity proven CCE after father’s death
4) paternity proven during father’s life by preponderance

96
Q

When no surviving spouse or issue exists, who is property distributed to?

A

Decedent’s ancestory (parents, grandparents, etc) or more remote collateral relatives (cousins, aunts, etc.)

97
Q

Handwriting in holographic wills: CL v UPC

A

All mateiral provisions MUST be handwritten

CL: Any markings invalidate the will

UPC: only material provisions must be in testator’s handwriting

98
Q

Holographic wills requirement for showing intent

A

CL: Look for words suggesting intent

UPC: Extrinsic evidence to establish intent allowed

99
Q

Republication by codicil

A

A codicil republishes a will as of the date of codicil

Valid codicil MAY correct initially invalid will

100
Q

Conditional will

A

Testator may write a will that says will is to take effect only if certain condition occurs

Courts do NOT look favorably at conditional wills

101
Q

Conflict of laws: validity determined by which jdx ?

A

CL: determined under law of state where testator domiciled at time of death

UPC: Determined 1) under law of place executed or 2) if valid wher etestator domiciled, has residence, or is a national

102
Q

Conflict of laws: Personal Property

A

Law of place where testator was domiciled at time of death governs

103
Q

Real property

A

Law of the place where property is located governs

104
Q

Integration

A

Under doctrine of integration, will consists of all pages 1) present at execution and 2) intended to be part (shown by physical connection/staples or ongoing nature of language)

105
Q

Stocks in will: are shares after wills execution included ? Are dividends included ?

A

UPC: stocks given in will include additional shares obtained since time of execution

Beneficiary will also receive dividends

106
Q

Life insurance Ks

A

Policy proceeds payable to beneficiary upon death

Usually owner can change beneficiary name without their consent, so long as aligned with K policy

Change of beneficiary by will almost NEVER permitted

107
Q

Survivorship clause: UPC v. CL

A

CL: If beneficiary who is supposed to survive testator dies first, anti-lapse does NOT apply

UPC: Even if express survivor requirement, courts may still give gift to beneficiary’s issue unless extrinsic evidence of contrary desire

108
Q

Where is the executor of an estate domiciled?

A

NOT his actual domicile–the same state where the DECEDENT is domiciled

Mixed Law Flashcards (24 decks)

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