Wills

Question 1

what does SS take if she and D just had kids together, or if no kids and D had no parents

Answer 1

everything

Question 2

what does SS get if D doesn’t have kids but does have a parent

Answer 2

SS gets 300k and 75% of remainder

Question 3

what does SS get if D has kids with her + a first batch

Answer 3

225k + 50% of remainder

Question 4

what does SS take if D has kids not related to her

Answer 4

150k and 50% of estate

Question 5

how much of community property does SS get if D dies intestate

Answer 5

D’s 50% of the community property goes to SS, rest is distributed by intestacy

Question 6

common law and uniform simultaneous death act rules for survival

Answer 6

CL: any length of time (preponderance)

USDA: 120 hours. Otherwise act as if each predeceased (clear and convincing)

Question 7

what could be considered equitable adoption for a foster kid so he can inherit

Answer 7

• relationship started when kid was little and established by clear and convincing evidence that a legal barrier prevented adoption or
• foster parent agreed to adopt and treated kid as own

Question 8

what is the effect of an equitable adoption

Answer 8

foster kid can inherit from but not through foster parent

foster parent can’t inherit from kid

doesn’t affect genetic parents

Question 9

Modern trend: bastard can’t inherit from dad unless

Answer 9

• father subsequently married mother
• father held kid out as his own, lived with, or supported
• paternity proven by clear and convincing after father’s death or
• paternity is adjudicated

Question 10

uniform parentage act requirements for bastard to inherit

Answer 10

requires proof of paternity

presumption of paternity if father held out

otherwise no presumption and kid has 3 years after turning 18 to bring action

Question 11

formalities for will

Answer 11

writing signed by T

2 or more witnesses

T has present testamentary intent

Question 12

where does T have to sign will

Answer 12

some states: at end or else invalid

UPC: anywhere but anything after signature is invalid

Question 13

when can someone else sign for T

Answer 13

at T’s direction in T’s presence

Question 14

T’s capacity

Answer 14

18 and of sound mind

• nature and extent of property
• persons getting the stuff
• disposition trying to make
• testamentary plan

Question 15

does T have to sign in presence of Ws

Answer 15

yes

UPC: may acknowledge it instead

Question 16

when do Ws have to sign

Answer 16

UPC: within reasonable time after witnessing T sign or acknowledge

Question 17

presence tests for Ws

Answer 17

traditional: line of sight (literally see each other or could see each other)

modern: conscious-presence (aware through any sense)

Question 18

common law interested W doctrine

Answer 18

interested W is not a competent W

purge theory: gift to W is denied to extent of the amount in excess of W’s intestate rights

Question 19

compliance standards with will formalities

Answer 19

common law: strict

UPC: substantial if there is clear and convincing evidence of T’s intent

Question 20

holographic will elements

Answer 20

hand written (some states - all, UPC - material parts)

must be signed by T himself

handwritten changes after will completed are effective

Question 21

how does a deed work as will sub

Answer 21

unconditionally delivered to grantee during D’s lifetime or delivered to escrow agent during D’s lifetime with instructions to give to grantee upon death

Question 22

what if a will is lost

Answer 22

rebuttable presumption of revocation

doesn’t apply if duplicate original is found

Question 23

how to revoke will

Answer 23

subsequent instrument
destruction + intent
operation of law (divorce)

Question 24

effect of revocation of codicil

Answer 24

revives the will

Question 25

common law for republication of original will after subsequent will is revoked

Answer 25

original will is automatically revived (followed in only a few states)

Question 26

UPC for republication of original will after subsequent will is revoked

Answer 26

look for T’s intent based on

i) (no extrinsic) second will is revoked by another new will: only revived if arms of new will show that T intended previous will to take effect

ii) (extrinsic OK) second will revoked by physical act -

wholly revoked: presumption that T didn’t intend to revive first will

partially revoked: presumption T intended to revive the parts that were destroyed

Question 27

kinds of gifts

Answer 27

specific
general
demonstrative
residuary

Question 28

elements for incorporation by reference

Answer 28

existed at time of execution of will
intended to be incorporated
described with sufficient certainty to identify

Question 29

order of abatement (reduction of gifts when assets insufficient)

Answer 29

1. intestate property
2. residuary bequests
3. general bequests
4. specific bequests (including demonstrative)

Question 30

how are mistakes treated by court

Answer 30

plain meaning rule - reluctance to disturb plain meaning of will regardless of mistake

Question 31

how can ambiguities /mistakes be solved

Answer 31

extrinsic

Question 32

what is the rule of construction

Answer 32

will speaks at time of T’s death

Question 33

how do courts handle conditional will

Answer 33

courts will construe excess language as mere explanation rather than invalidate if possible

Question 34

rebuttable presumption for omitted spouse

Answer 34

rebuttable presumption that it was a mistake, omitted spouse gets intestate

common law: rebutted if T’s intent is clear from language or spouse provided for outside will

UPC: reubutted with prenup

Question 35

common law and UPC for advancement of inheritence

Answer 35

common law: presumed to be advancement

modern UPC: gift only an advancement if D declared in contemporaneous writing that it was or heir acknowledged that was in writing

Question 36

rebuttable presumption for omitted kid

Answer 36

that it was a mistake

Question 37

bars to succession

Answer 37

homicide - must be intentional and felonious

disclaimer

Question 38

who has standing to contest

Answer 38

directly interested parties who stand to benefit financially

Question 39

tests for insane delusion

Answer 39

rational person test
but for causation

Question 40

test for undue influence

Answer 40

confidential relationship - T as a result of weakened state confided, trusted, relied on other party

Question 41

elements of fraud

Answer 41

misrepresentation made by B when will was executed
with intent to deceive T and
with purpose of influencing
resulting in will that wouldn’t have been made but for the fraud

Question 42

what is a forfeiture clause

Answer 42

if B contests then he loses his share

unenforceable if B has probable cause

Question 43

conflict of laws for validity

Answer 43

will validity determined by law of place where will is executed or T domiciled at death

Question 44

conflict of laws for probate

Answer 44

place where D domiciled at death

Question 45

what is the fiduciary duty for personal rep

Answer 45

owes highest duty of loyalty and care

Question 46

types of power of attorney

Answer 46

general: can do anything
special: limited to specific function/duration

Question 47

what is power of attorney liable for

Answer 47

only intentional misconduct