Wills Flashcards
When does intestacy apply?
No will, will fails, there is undisposed property, will specifies intestate distribution
What do surviving spouses get in intestacy?
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
How do descendants take in intestacy if they all survive?
Equal shares
How do descendants take in intestacy if at least one has predeceased the decedent?
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)
per capita with representation
Majority - (divided into equal shares at first generation level with living takers)
per stripes
Minority - (one share for living child and one for each deceased child who has at least one surviving descendent)
If no descendants (spouse or children) survive, who takes next?
- Parents
- Descendants of parents
- Grandparents or their descendants
- Divided into maternal and paternal shares and pass to nearest kin
- State
What happens to adopted, step/foster, posthumous, and non-marital children in intestacy?
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
Are disinheritance clauses enforceable?
Majority - ineffective if partial intestacy
Minority and UPC - given full effect
How do states deal with simultaneous death?
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
What is disclaimer?
Can’t be forced to accept inheritance
What happens when disclaimer occurs?
Property passes as though disclaimant predeceased decedent
How does one disclaim?
Describe property, in writing, signed by disclaiming, and filed within 9 months*
*unless under 21
What are the types of testamentary gifts?
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
What happens if decedent death is cause by heir/beneficiary?
If felonious and intentional, property passes as though killer predeceased decedent
What is an advancement? Is it presumed?
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
What is required for execution of a will?
Legal capacity
Testamentary capacity - 18 sound mind
Testamentary intent - present intent to make a will
Formalities (Writing + Signature of testator)
What is required for formal attested wills?
Necessaries +
2 attesting witnesses (or signed by notary under UPC)
note. some states require will gets published
What do attesting witnesses have to do?
Sign in testator’s presence
What happens if an attesting witness is also a beneficiary?
Gift will be purged unless
1. Witness is extra
2. Witness would have taken without the will
UPC allows interested witness to keep gift
When can a will be executed even when defective?
Under UPC, can happen if clear and convincing evidence that testator intended it to be his will
What is a holographic will?
Will in handwriting
What is necessary for a holographic will to be executed?
Necessaries + in testator’s handwriting + witnesses not needed
Integration
Pages present at execution are part of will if so intended
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