Wills Flashcards
what does SS take if she and D just had kids together, or if no kids and D had no parents
everything
what does SS get if D doesn’t have kids but does have a parent
SS gets 300k and 75% of remainder
what does SS get if D has kids with her + a first batch
225k + 50% of remainder
what does SS take if D has kids not related to her
150k and 50% of estate
how much of community property does SS get if D dies intestate
D’s 50% of the community property goes to SS, rest is distributed by intestacy
common law and uniform simultaneous death act rules for survival
CL: any length of time (preponderance)
USDA: 120 hours. Otherwise act as if each predeceased (clear and convincing)
what could be considered equitable adoption for a foster kid so he can inherit
- 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
what is the effect of an equitable adoption
foster kid can inherit from but not through foster parent
foster parent can’t inherit from kid
doesn’t affect genetic parents
Modern trend: bastard can’t inherit from dad unless
- 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
uniform parentage act requirements for bastard to inherit
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
formalities for will
writing signed by T
2 or more witnesses
T has present testamentary intent
where does T have to sign will
some states: at end or else invalid
UPC: anywhere but anything after signature is invalid
when can someone else sign for T
at T’s direction in T’s presence
T’s capacity
18 and of sound mind
- nature and extent of property
- persons getting the stuff
- disposition trying to make
- testamentary plan
does T have to sign in presence of Ws
yes
UPC: may acknowledge it instead
when do Ws have to sign
UPC: within reasonable time after witnessing T sign or acknowledge
presence tests for Ws
traditional: line of sight (literally see each other or could see each other)
modern: conscious-presence (aware through any sense)
common law interested W doctrine
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
compliance standards with will formalities
common law: strict
UPC: substantial if there is clear and convincing evidence of T’s intent
holographic will elements
hand written (some states - all, UPC - material parts)
must be signed by T himself
handwritten changes after will completed are effective
how does a deed work as will sub
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
what if a will is lost
rebuttable presumption of revocation
doesn’t apply if duplicate original is found
how to revoke will
subsequent instrument
destruction + intent
operation of law (divorce)
effect of revocation of codicil
revives the will
common law for republication of original will after subsequent will is revoked
original will is automatically revived (followed in only a few states)
UPC for republication of original will after subsequent will is revoked
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
kinds of gifts
specific
general
demonstrative
residuary
elements for incorporation by reference
existed at time of execution of will
intended to be incorporated
described with sufficient certainty to identify
order of abatement (reduction of gifts when assets insufficient)
- intestate property
- residuary bequests
- general bequests
- specific bequests (including demonstrative)
how are mistakes treated by court
plain meaning rule - reluctance to disturb plain meaning of will regardless of mistake
how can ambiguities /mistakes be solved
extrinsic
what is the rule of construction
will speaks at time of T’s death
how do courts handle conditional will
courts will construe excess language as mere explanation rather than invalidate if possible
rebuttable presumption for omitted spouse
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
common law and UPC for advancement of inheritence
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
rebuttable presumption for omitted kid
that it was a mistake
bars to succession
homicide - must be intentional and felonious
disclaimer
who has standing to contest
directly interested parties who stand to benefit financially
tests for insane delusion
rational person test
but for causation
test for undue influence
confidential relationship - T as a result of weakened state confided, trusted, relied on other party
elements of fraud
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
what is a forfeiture clause
if B contests then he loses his share
unenforceable if B has probable cause
conflict of laws for validity
will validity determined by law of place where will is executed or T domiciled at death
conflict of laws for probate
place where D domiciled at death
what is the fiduciary duty for personal rep
owes highest duty of loyalty and care
types of power of attorney
general: can do anything
special: limited to specific function/duration
what is power of attorney liable for
only intentional misconduct
