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Wills Flashcards

1
Q

When does intestacy apply?

A

No will, will fails, there is undisposed property, will specifies intestate distribution

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2
Q

What do surviving spouses get in intestacy?

A

All states: The entire estate if no descendants

Most states: 1/2 to 1/3 if descendants

UPC: dollar amount + 1/2 or 1/3 if descendants but entire estate if all surviving descendants are surviving spouse’s descendants

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3
Q

How do descendants take in intestacy if they all survive?

A

Equal shares

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4
Q

How do descendants take in intestacy if at least one has predeceased the decedent?

A

Majority - per capita with representation (divided into equal shares at first generation level with living takers)

Minority - per stripes (one share for living child and one for each deceased child who has at least one surviving descendent)

Modern - per capita at each generational level (first generation level but shares of deceased persons at that level are combined and then divided equally among takers at the next level)

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5
Q

per capita with representation

A

Majority - (divided into equal shares at first generation level with living takers)

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6
Q

per stripes

A

Minority - (one share for living child and one for each deceased child who has at least one surviving descendent)

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7
Q
A
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8
Q

If no descendants (spouse or children) survive, who takes next?

A
  • Parents
  • Descendants of parents
  • Grandparents or their descendants
  • Divided into maternal and paternal shares and pass to nearest kin
  • State
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9
Q

What happens to adopted, step/foster, posthumous, and non-marital children in intestacy?

A

Adopted - treated as natural child; inheritance rights cut off in natural parents

Step - no rights unless adopted or adoption by estoppel

Posthumous - child in gestation at decedent’s death inherits as if born in lifetime

Nonmarital always inherit from mother; can inherit from father if married after birth or adjudicated father

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10
Q

Are disinheritance clauses enforceable?

A

Majority - ineffective if partial intestacy

Minority and UPC - given full effect

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11
Q

How do states deal with simultaneous death?

A

1/2 states USDA - property passes as if he survived the other person

1/2 states 120 hour rule - must survive 120 hours to take

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12
Q

What is disclaimer?

A

Can’t be forced to accept inheritance

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13
Q

What happens when disclaimer occurs?

A

Property passes as though disclaimant predeceased decedent

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14
Q

How does one disclaim?

A

Describe property, in writing, signed by disclaiming, and filed within 9 months*

*unless under 21

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15
Q

What are the types of testamentary gifts?

A

specific devise/legacy = gift of particular item that is distinct
specific bequest = general nature not distinguishable until testator dies
general legacy = general money
demonstrative legacy = money to be paid from specific fund

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16
Q

What happens if decedent death is cause by heir/beneficiary?

A

If felonious and intentional, property passes as though killer predeceased decedent

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17
Q

What is an advancement? Is it presumed?

A

Gift doled out during life and subtracted from estate. Not presumed unless 1. intent shown by contemporaneous writing by donor or 2. written acknowledgment by donee

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18
Q

What is required for execution of a will?

A

Legal capacity
Testamentary capacity - 18 sound mind
Testamentary intent - present intent to make a will
Formalities (Writing + Signature of testator)

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19
Q

What is required for formal attested wills?

A

Necessaries +
2 attesting witnesses (or signed by notary under UPC)

note. some states require will gets published

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20
Q

What do attesting witnesses have to do?

A

Sign in testator’s presence

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21
Q

What happens if an attesting witness is also a beneficiary?

A

Gift will be purged unless
1. Witness is extra
2. Witness would have taken without the will
UPC allows interested witness to keep gift

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22
Q

When can a will be executed even when defective?

A

Under UPC, can happen if clear and convincing evidence that testator intended it to be his will

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23
Q

What is a holographic will?

A

Will in handwriting

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24
Q

What is necessary for a holographic will to be executed?

A

Necessaries + in testator’s handwriting + witnesses not needed

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25
Integration
Pages present at execution are part of will if so intended
26
Is incorporation by reference allowed?
Yes, document must be: a. In existence at the time the will was executed, b. Sufficiently described in the will, and c. The will must show intent to incorporate
27
What is a codicil?
Republishes will; Must be executed with same formalities as a will Note: Revocation of will revokes codicils; revocation of codicil revokes only codicil—not will
28
General v. special powers of appointment
can designate person who shall take property and how they take General power can be exercised in favor of donee; special power cannot
29
What is the power of appointment?
Authority granted to a person, enabling that person to designate, within the limits prescribed by the creator of the power, the persons who shall take the property and how
30
Residuary clause
Clause that disposes of leftover property; does not, by itself, exercise testamentary power. Must mention power
31
Are blanket exercises of power permissible?
Permissible
32
What are non probate assets?
Things that can't be disposed of by will (life insurance, property passing by survivorship, etc)
33
What are the ways a will can be revoked?
By operation of law - divorce revokes provisions in favor of ex By written instrument - executed in same formalities as will -- later in time provisions revoke earlier by implication By physical act - burning, tearing, or cancelling with intent to revoke -- will not found at death is presumed revoked
34
How can one revive a will?
UPC - look to testators intent some state, automatic revival if revoked revoking will some states, need to republish
35
What is dependent relative revocation?
Court can disregard revocation if revocation 1. Premised on mistake of law or fact 2. Would not have occurred but for mistaken belief
36
How can you k to will
A contract to make a will, not to revoke a will, or to die intestate can be established by: a. Provisions in the will stating terms of contract, b. Express reference in will to contract, plus evidence of contract terms, or c. Writing signed by decedent evidencing the contractW
37
What happens if breach of contract will
Damages after death; no remedy during lifetime
38
Anti lapse statute
Save gift from lapsing order: 1. term of will 2. if beneficiary was in specified degree of relationship to testator -> descendants take by substitution 3. residuary clause 4. intestacy
39
Failure by ademption
Failure of a gift because the property is no longer in the testator’s estate at the time of their death Note: only to specific devises and bequests; may be partially adeemed
40
What are exceptions to ademption?
1. Some states allow replacement if testator replaced gifted item with similar item (and intended) 2. Or if sold, may get $ when -condemnation -insurance -property sold by guardian -remaining money of sale price
41
What happens when estate goes up after execution of will?
Increases before testator's death: income goes to general estate, but improvements to real property go to devisee Increases after testator's death pass to specific beneficiary
42
What is elective share statutes? How much is the share?
Gives spouse an election to take a statutory share of the decedent’s estate in lieu of taking under the decedent’s will In most states, one-third of net probate estate if surviving descendants and one-half without surviving descendants
43
What is pretermitted child statutes? How much is the share?
In most states, afterborn or after-adopted children take an intestate share (or those thought dead) Exceptions: a. Omission appears intentional b. At execution, testator had other children and left nearly all of his estate to other parent of omitted child c. Testator provided for omitted child outside of the will
44
What add'l protections exist on restrictions of testation?
Homestead - protect the family residence or farm from credit Family allowance - support during probate administration, and usually takes precedence over all claims other than funeral and administration expenses Exempt personal property
45
When can you contest a will?
a. Defective execution b. Will offered has been revoked c. Testator lacked testamentary intent or capacity d. The will or gift is a product of undue influence e. The will or gift was procured by fraud f. The document was executed or gift made because of mistake
46
How to prove lack of testamentary intent?
1. Testator must be at least 18 years old at date of execution 2. Contestant must prove that testator could not understand: a. Nature of act b. Nature and extent of property c. People who are the natural objects of testator’s bounty d. Nature of disposition
47
How to prove undue influence?
a. Influence exerted on testator, b. Overpowered the mind and free will of testator, and c. Product was will that would not have been made but for the influence
48
When does presumption of undue influence arise?
a. There is a confidential relationship between the testator and beneficiary, and b. The beneficiary participated in a significant activity related to execution of the will
49
Fraud vs. mistake remedy
Will or gift as result of fraud is invalid No relief for mistaken omission in contents
50
Latent vs. patent ambiguity
Latent ambiguity (ambiguous as applied)—evidence admissible Patent ambiguity (on face of will)—gift fails under traditional view, but modern view allows evidence of intent
51
Reformation
UPC and Restatement permit court to reform will terms (even if will unambiguous) to conform to testator’s intent if clear and convincing evidence that testator’s intent or will terms were affected by fraud or mistake
52
When is no contest clause enforced?
Will be enforced unless contestant had probable cause to challenge will
53
Who is the personal rep and how selected?
1. Order of preference—person named in will, surviving spouse (will beneficiary), any will beneficiary, surviving spouse, any heir, a creditor 2. Duties—give notice, collect assets, manage assets, pay expenses, distribute property
54
Priority of claims for estate
---> administration expenses, funeral and last illness expenses, family allow- ance, tax claims, secured claims, judgments, all other claims
55
What happens during abatement?
When assets insufficient, gifts reduced in this order: a. Property passing by intestacy b. Residuary estate c. General legacies (pro rata) d. Specific devises and bequests
56
How to interpret ambiguous will?
- Favor intestate heirs - Favor construction avoiding intestacy - Favor construction consistent with perceived plan - Every portion of will given effect if possible - Between completely inconsistent provisions, one most recently added is favored
57
How do specific bequests work re: stocks?
CL: includes any additional shared produced by stock split but not shares produced by stock dividend UPC: also includes shares
58
59
ademption by satisfaction
gift satisfied bc inter vivos transfer
60
Ademption test
Objective: whether the specifically bequeathed property is part of the testator's estate (no intent)
61
How does a will operate for general gifts?
Operates upon circumstances and property as they existed at time of testator's death
62
What is the residuary estate?
Balance of testator's property after all expenses, claims, and bequests have been paid
63
living will healthcare directive
states desires re: liver sustaining procedures need written, signed by 2 witnesses
64
do beneficiaries take subject to mortgage/liens
depends on state, but probably
65
lapse in residuary gift
CL: takes intestate and cant have the dead person's share modern: can take dead person's share

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