Wills

Question 1

What is a putative spouse and how is one treated for purposes of inheritance?

Answer 1

When a marriage is not valid but at least one spouse believes in good faith that it is, then the spouses are termed “putative” and qualify as spouses for inheritance purposes

Question 2

What kind of will is valid even if witnesses do not sign it, as long as they sign affidavits before a court officer?

Answer 2

A self-proved will.

Under the UPC, a will that is executed with attesting witnesses may be made self-proved by the acknowledgement of the testator and affidavits of the witnesses before a court officer in substantial accordance with a prescribed form.

Question 3

How does the UPC treat the inheritance rights of a person adopted by a stepparent?

Answer 3

The adoption does not curtail the inheritance rights of either natural parent, and adds in inheritance rights through the stepparent, resulting in the child standing to inherit through three different people: two natural parents and the stepparent/adopted parent

Question 4

What kind of will need not be witnessed?

Answer 4

A holographic will.

A holographic will is one that is completely handwritten and signed by the testator

Question 5

If a testator executes a will, then adopts a child, then dies without revising the will, what is the presumption regarding the omission of that adopted child?

What can overcome this presumption?

Answer 5

In such a case, a presumption is created that the omission of the child was accidental.

This can be rebutted by evidence that
1) the omission was intentional
2) the testator had other children when the will was executed and left substantially all of the estate to the other parent; OR
3) the child was provided for outside of the will with the intent that it be in lieu of a provision in the will

Question 6

How does a decedent’s estate pass according to the parentelic approach?

Answer 6

Under this approach, a decedent’s estate would first pass to the decedent’s parents and their issue; if there are none, then to the decedent’s grandparents and their issue, and so on

Question 7

According to the Uniform Testamentary Additions to Trusts Act (UTATA) what happens when a will attempts to pour over estate assets into a trust not executed in accordance with the Statute of Wills?

Answer 7

A will may still pour over assets into such trust as long as the trust is identified in the will and its terms are set forth in a written instrument.

Note: if these requirements are met, the pour-over bequest is valid even if the trust is unfunded, revocable, and amendable.

Question 8

What kind of will is generally valid only for the disposition of personal property in contemplation of immediate death?

Answer 8

Noncupative (oral) wills

These wills are invalid under the UPC and most states. Where valid, they require at least two witnesses, can devise only a limited amount of personal property, and may require that the testator die within a prescribed period after making the oral will

Question 9

What is a supplement to a will that alters, amends, or modifies the will, rather than replacing it?

Answer 9

A codicil.

A codicil must be executed with the same formalities as a will, but need not be executed with the same formalities as the will that it alters, amends, or modifies. An attested will may be altered, amended, or modified by a holographic codicil and a holographic will may be altered, amended, or modified by an attested codicil. A valid codicil republishes the will as of the date of the codicil and may even validate an invalid will if the codicil refers to the will with sufficient certainty to identify or incorporate it, or if the codicil is on the same paper as the invalid will.

Question 10

What are the requirements for an international will?

Answer 10

1. In writing
2. Signed
3. Witnessed by two individuals
4. Witnessed by a third person who is authorized to act in connection with international wills and who must prepare a certificate to attach to the will

Question 11

How does the revocation of a will differ from the revocation of a codicil?

Answer 11

Revocation of a will revokes all codicils thereto, whereas revocation of codicil does not revoke a will, but rather revises it.

Question 12

What is a demonstrative legacy?

Answer 12

When a legacy be paid from a particular source. A testator can also direct that, if the source of the demonstrative legacy is insufficient, it can be paid out of general assets.

Question 13

What are the requirements for a will incorporating by reference another writing not executed with testamentary formalities?

EID

Answer 13

EID
Exist Itended Described

The other writing must:
1. Exist at the time the will was executed
2. Be intended to be incorporated, AND
3. Be described in the will with sufficient capacity so as to permit its identification

Question 14

When a gift is adeemed, what is the beneficiary entitled to?

LPCF

Answer 14

LPCF
Left Price Condemnation Foreclosure

1. Whatever is left of the specifically devised property,
2. The balance of the purchase price owing from the purchaser of the property
3. Any amount of condemnation award for the taking of the property, to the extent unpaid upon death, OR
4. Property acquired from the foreclosure of a security interest on a specifically devised note

Question 15

Wills: What is the Acts of Independent Significance Doctrine?

Answer 15

The Acts of Independent Significance Doctrine allows a will to provide for the designation of a beneficiary or the amount of a disposition by reference to some unattested act or event occurring before or after the execution of the will / testator’s death, if the act or event has some significance apart from the will.

While similar to the republication by codicil and incorporation by reference, the acts of independent significance doctrine is the only one that applies to future acts or events.

Question 16

What is Quasi-Community Property?

Answer 16

Quasi-community property is separate property that would have been community property had the parties been domiciled in a community-property state when acquired. It is treated as community property for distribution purposes.

Question 16

When a gift is to an entire class and one member of the class predeceases the testator, what results when there is no anti-lapse statute applicable?

What happens when there is an anti-lapse statute applicable?

Answer 16

No anti-lapse statute applicable: only the surviving members take

Anti-lapse statute applicable: the issue of the predeceased member take the member’s share. The majority of states and the UPC apply the anti-lapse statute first, before the determination of the class gift.

Question 16

What are the three property management options for property transferred to minors pursuant to a will or intestacy?

GCT

Answer 16

GCT
Guardianship Custodianship Trusteeship

Because minors lack the legal capacity to hold property, the law provides three management options:
1. Guardianship
2. Custodianship (via will only)
3. Trusteeship (via will only)

Question 17

What happens when encumbered property is specific devise? (Majority Rule)

Answer 17

In most states, the specific devisee of encumbered property takes subject to the mortgage, notwithstanding the fact that the will contained a clause directing the executor to pay the decedent’s debts.

Question 18

What comprises the marital-property of a decedent’s agumented estate, and how much of that may a surviving spouse claim as the elective share?

Answer 18

The UPC subjects property acquired BEFORE and DURING marriage to the “marital property” portion of the augmented estate to which the surviving spouse is entitled.

Under the UPC, the surviving spouse may take an elective-share amount equal to 50% of the value of the marital-property portion of the augmented estate.

Question 19

A spouse omitted from a will is entitled to an intestate share unless:

Answer 19

1. A valid prenuptial agreement exists,
2. The spouse was given property outside of the will in lieu of a disposition, OR
3. The spouse was specifically excluded from the will

Question 20

Six Fiduciary Duties of a Power of Attorney

Answer 20

1. Exercise the powers for the benefit of the principal and in accordance with reasonable expectations
2. Act in good faith
3. Separate the assets of the principal from agent
4. Exercise reasonable care, competence, and diligence
5. Account for all transaction made on behalf of the principal
6. File an accounting of the administration whenever so directed by the court

Question 21

When a will is executed that bequests security, and then additional security is later acquired, how is that additional security treated under the UPC?

Answer 21

Additional security acquired after the will was executed will be included with the bequest of security accounted for in the will.

Note: This is different than under common law, which treats gift of securities differently depending on whether the bequest was specific or general. The UPC has rejected this approach of classifying the type of bequest.

Question 22

Wills: What is the majority rule for the requirements of a valid disclaimer?

WSP

Answer 22

WSP
Writing Signed Period

Most jurisdictions require that the disclaimer be:
1. In writing
2. Signed
3. Filed within a certain period after the decedent’s death

Question 23

When is the value of an inter vivos gift determined?

Answer 23

The value is determined at the time the recipient takes possession or enjoys it, whichever is first.

Question 24

What does the Uniform Transfer to Minors Act do?

Answer 24

The Uniform Transfer to Minors Act (UTMA) appoints a custodian to use property transferred to a minor at the custodian’s discretion on the minor’s behalf without court approval and with no accounting requirement. The custodian must turn any remaining property over to the minor upon the minor’s attainment of age 21.

Question 25

When is a life insurance policy considered to be part of a decedent’s estate?

Answer 25

When the policy’s beneficiary is the estate itself.

Question 26

What happens when a beneficiary dies before the testator or before the statutory requirement for survival following the testator’s death?

Answer 26

Common Law: the gift failed and went to the residue of the estate unless the will specified otherwise.

Modern Rule: almost all states have Anti-Lapse Statutes.

Anti-Lapse Majority Rule: if gift was made to a close relation (often required to be related by BLOOD; thus, not a spouse) to the testator, and the relation predeceased the testator but left issue, the issue succeeds to the gift, unless specified otherwise in the will. If there is no such issue, the gift passes to the esate.

Question 27

When the language of an anti-lapse statute does not address a particular type of devisee and that devisee predeceases the testator, what happens to the property intended to pass to that devisee?

Answer 27

The intended devise goes to the devisee of the residual, or in the absence of such passes by means of intestacy.

Question 28

Wills Vocab

Decedent
Will
Testate
Intestate
Codicil
Probate
Intestate Succession

Answer 28

Decedent - someone who has died
Will - legal document used to dispose of the decedent’s property
Testate - decedent dies with a will
Intestate - decedent dies without a will
Codicil - a supplement that either amends or revokes a decedent’s will in whole or in part
Probate - judicial process for administering and settling a decedent’s estate
Intestate Succession - a default estate plan, developed by the legislature, for distributing property when the decedent dies intestate

Question 29

Wills Vocab 2

Heirs
Spouse
Issue/Descendants
Ancestors
Collaterals

Answer 29

Heirs - individuals entitled to receive property by intestate succession
–living people do not have heirs

Spouse - decedent’s marital partner
Issue/Descendants - decedent’s lineal line (i.e. decedent’s kids, their kids, etc.)
Ancestors - decedent’s parental line (i.e. parents, grandparents, etc.)
Collaterals - decedent’s relatives through an ancestor (i.e. siblings, cousins, aunts, uncles)

Question 30

What relevance does intent have in intestacy distribution?

Answer 30

NONE.

Intestacy is a default estate plan developed by the legislature. The decedent’s actual intent is irrelevant

Question 31

What are heirs?

Answer 31

Heirs are individuals entitled to take an intestate share of decedent’s estate. To take from a decedent, the individual must survive the decedent

Question 32

What happens, regarding inheritance, when there is a simultaneous death?

Answer 32

Key Components:
-Treat as though each predeceased the other
-120 hours between deaths is required for an alternate presumption

The UPC follows the Uniform Simultaneous Death Act (USDA) to control the situation where the decedent and heir die at the same time. If there is insufficient evidence to determine who survived whom, the property will pass as though each had predeceased the other. Under the USDA, an heir must be proved by clear and convincing evidence to have survived the decedent by 120 hours.

Question 33

Is an unmarried cohabitant legally a “spouse?”

Answer 33

NO.

A spouse is a legally-married partner

Question 34

Spousal Share (intestacy):
If a decedent is survived by a spouse and descendants from that spouse, and surviving spouse has no other descendants…

Answer 34

Surviving spouse takes the entire estate

Question 35

Spousal Share (intestacy):
If a decedent is survived by a spouse and a parent, but no descendants…

Answer 35

Surviving spouse takes $300,000 and 75% of the remainder of the estate

Question 36

Spousal Share (intestacy):
If decedent is survived by descendants who are also descendants of the surviving spouse, and the spouse has no other issue…

Answer 36

Surviving spouse takes $225,000 and half of the remainder of the estate

Question 37

Spousal Share (intestacy):
If decedent is survived spouse and by issue not related to the surviving spouse…

Answer 37

Surviving spouse takes $150,000 and half of the remainder of the estate

Question 38

Spousal Share (intestacy):
If decedent is survived only by spouse and not by any descendants or parents…

Answer 38

Surviving spouse takes the entire estate

Question 39

What happens when an intestate decedent dies without heirs?

Answer 39

The decedent’s property escheats to the state

Question 40

How are biological and adoptive children treated differently under intestacy?

Answer 40

THEY AREN’T.

Issue includes a decedent’s lineal line, where a parent-child relationship exists, and adoptive children inherit from decedent just like biological children.

This, of course, includes when a stepparent adopts spouse’s children as their own, but a child adopted by a stepparent maintains their inheritance rights from the other biological parent. Thus, if a divorced father remarries, and his new wife adopts father’s child as her stepchild, the child can still inherit from the biological mother.

Question 41

When is there a rebuttable presumption that a child born after the death of a husband is the husband’s posthumous biological child?

Answer 41

If the child is born within 280 days of the husband’s death, there is a rebuttable presumption that the child is the husband’s and the child will inherit from the husband as if child was born before the husband died.

If the child is born more than 280 days after the husband’s death, the child will have to prove parentage in order to inherit from the husband.

This 280 day cutoff has been increased to 300 days in jurisdictions that have adopted the Uniform Parentage Act.

Question 42

How is per stirpes inheritance calculated?

Answer 42

-Estate will be divided equally according to lineal line, with the division occurring at the first generation.
-Each living issue and each deceased issue with issue of their own will receive one equal share.
-Thus, if Parent X had four children, and one died with issue, and one died without issue, the two living children will receive 1/3 share of estate and the children of the deceased issue will equally divide the 1/3 share that their parent would have received.

Question 43

How is per capita with representation inheritance calculated?

Answer 43

-Estate will be divided equally according to the first generation with living members. Thus, if a decedent’s children are all dead but at least one has children (grandchild/ren) of their own, the estate will be divided by the number of living members and non-living members with issue at the grandchild’s generational level.
-Any deceased members at the grandchild’s generational level who leave their own issue will have their share divided equally among their issue.
-Thus, if decedent X dies but is predeceased by his two children, but one of his two children had four children (A, B, C, and D), and grandchild A is alive but B, C, and D are dead, this is still the generation where the estate will be evenly divided. If B left two children and C left one child, A would take 1/3 of the estate, B’s two children would each take 1/6, and C’s child would take 1/3.
-Any of the members of the dividing generation who have died but did not leave issue will not be included in the division nor will they receive a share.

Question 44

How is per capita at each generation inheritance calculated? (UPC)

Answer 44

-Estate will be divided equally according to the first generation with living members. Thus, if a decedent’s children are all dead but at least one has children (grandchild/ren) of their own, the estate will be divided by the number of living members and non-living members with issue at the grandchild’s generational level.
-Any deceased members at the grandchild’s generational level who leave their own issue will have their issue receive a portion of the estate.
-However, unlike per capita with representation, under per capita at each generation the generation following the dividing generation will have all of its members dividing the leftover shares (those of deceased members with issue at the dividing generational level) equally.
-Thus, if decedent X dies but is predeceased by his two children, but one of his two children had four children (A, B, C, and D), and grandchild A is alive but B, C, and D are dead, this is still the generation where the estate will be evenly divided. If B left two children and C left one child, A would take 1/3 of the estate, B’s two children and C’s one child would split the remaining 2/3 of the estate evenly.
-In other words, cousins and siblings at the same generational level all take the same equal share, divided evenly from the shares that would have gone to the deceased members of the dividing generation.
-Any of the members of the dividing generation who have died but did not leave issue will not be included in the division nor will they receive a share.

Question 45

What are the requirements of a valid will?

SWT

Answer 45

SWT
Signed Witnesses Testamentary

1. Signed writing
2. Witnesses
   AND
3. Testamentary intent**

**Testamentary intent requires that the testator be 18 years old and of sound mind!
The entire will be must written
The will must be signed by the testator (some states require it at the bottom, other states and the UPC allow a signature anywhere on the will). In a state that allows a signature anywhere, though, anything below the signature will not be given effect.
The UPC does not permit oral/video wills
A formal signature is not required, so long as it indicates the testator’s desire to sign

Question 46

How many witnesses are required and what must they do in order to make a will valid?

Answer 46

TWO witnesses must be “present,” and must sign the document, though not necessarily at the same time.

Majority:
Testator must sign or acknowledge the will in the presence of the witnesses; AND
Witnesses must sign in the presence of the testator

UPC:
Witnesses must sign within a “reasonable time” of the original signature by the testator, thus the testator and witnesses do not have to sign in one another’s presence

Question 47

What are the two different approaches to defining the “presence” of witnesses to a will?

Answer 47

Line of Sight (Traditional approach) - witnesses and testator must observe or have the opportunity to observe the signing of the will. They must, therefore, be in the same room and visible to one another

Conscious Presence (Modern approach) - witness or testator must be AWARE that the act is being performed, even if she cannot see it

UPC adopts conscious presence ONLY for the situation where the will is signed by another on behalf of the testator

Question 48

What is an interested witness?

Answer 48

An interested witness is a witness to the signing of a will who has a direct financial interest in the will

Common Law: interested witnesses are not competent to witness the will

Purge Theory: many states use the purge theory to reduce a witness’s inheritance beyond intestate share

UPC: abolishes the interested witness doctrine; if a witness is acting improperly, there are other ways of addressing it (undue influence or fraud).

Question 49

Wills: Purge Theory

Answer 49

Under the Purge Theory, which has been adopted by many states, if a witness (or witness’s spouse) has a direct financial interest under a will, their acting as a witness will not affect the validity of the will
BUT
Probate court will “purge” any gain due to the interested witness under the will that is in excess of what the witness would take under intestate succession

EXCEPTIONS
No purge of testate share if:
-There were two other disinterested witnesses
OR
Interested witness would take a share under intestate succession
AND
Interested witness takes the lesser of intestate share or bequest

Question 50

What are the requirements of a testator to validly execute a will (requirements of the testator as a person, not requirements of the will)?

PAM

Answer 50

PAM
Present Age Mind

Present Testamentary Intent: testator must have present testamentary intent to make a testamentary transfer

Competency: A testator must be at least 18 years old and of sound mind. Competency is measured at the time of the signing. Subsequent incompetence will NOT invalidate a will

Question 51

What is the effect of a failure of will formalities?

Answer 51

Common Law (majority rule): strict compliance with will formation formalities (witnesses, writing, signature, testamentary intent)

Modern View (UPC & minority): substantial compliance with statutory formalities. Even if formality is not met, a court will nevertheless admit a will to probate if there is clear and convincing evidence that the decedent intended the document to serve as his will

Question 52

What is a holographic will?

Answer 52

A holographic will is an informal, handwritten will. It does NOT need to be witnessed, but it MUST be signed.

Some jurisdictions require that EVERY marking on the paper must have been done by the testator or the will is invalid
UPC: only the material provisions MUST be in the testator’s handwriting

Intent: look for words or phrases that suggest intent. UPC expressly authorizes looking to extrinsic evidence to establish intent.

Question 53

What is a codicil?

Answer 53

A codicil supplements a will, but does NOT replace the underlying will. A codicil must be executed with the same formalities as a will.

Formal codicil: must be signed, witnessed, etc.
Holographic codicil: must be in testator’s handwriting

A formal will can be amended by a holographic codicil, and vice versa

Question 54

What types of property are passed on at the time of a decedent’s death without probate or will?

Answer 54

Joint tenancy: avoids probate because it has a right of survivorship

Revocable Trust: avoids probate because it is an inter vivos transfer

Pour-over will: avoids probate because it distributes property under a trust

POD Contract: avoids probate because it distributes by an inter vivos transfer

Deed: avoids probate because it is an inter vivos transfer (assuming the deed contains or carries intent of passing to a new person at or after decedent’s death). Even an oral expression to an independent 3d party about who the deed should go to upon decedent’s death is valid.

Question 54

Are life insurance policies devisable?

Answer 54

NO.

Life insurance policies are not devisable because they are considered an inter-vivos gift. Some states permit a will to name a new beneficiary, but the majority rule is that the beneficiary named on the policy is the rightful beneficiary

Question 55

What are the three ways to revoke a will?

SPO

Answer 55

SPO
Subsequent Physical Operation

A will can be altered or revoked, in full or in part, at any time up until testator’s death. This means a will is “ambulatory”

1. Subsequent Instrument
2. Physical Act
3. Operation of Law

Question 56

How does a subsequent instrument revoke a will?

Answer 56

Express Revocation: a later writing that expressly revokes a prior will
Implied Revocation (i.e. inconsistency): Later writing is inconsistent with prior will
-So long as it is validly executed, a later document controls

Is it a new will or a codicil?
-Original will has residuary gift and later writing does not = later writing probably a codicil
-Original will does not have a residuary gift and later writing does = later writing probably a new will

Question 57

What types of physical acts will revoke a will?

IA

Answer 57

IA
Intent Act

Intent: testator must intend for the physical act to revoke the will
Act: A testator can revoke a will in part or in whole by engaging in a physical act of destruction, such as tearing, burning, or crossing stuff out.

The effect of destroying specific langauge:
Majority: the particular language in question must be destroyed
UPC: only requires that destructive act affect some part of the will

Question 58

What are the consequences and actions that can be taken in the event of a lost will?

Answer 58

When it is known that a will exists but it cannot be found at the time of the testator’s death, a rebuttable presumption is formed that the testator revoked the will by physical act.

Burden is on the proponent to show will’s existence by CLEAR AND CONVINCING evidence.

-Duplicate originals can be admitted (another version of the original, signed and attested)
-Copies cannot be admitted

Question 58

What is the effect of a divorce on the provisions of a will?

Answer 58

Divorce:
-in most jurisdictions, a divorce revokes all will provisions in favor of the former spouse, UNLESS there is evidence that testator wanted the will’s gifts to ex-wife to survive
-UPC: invalidates all gifts to the ex-spouse as well as to ex-spouse’s relatives
-A mere separation will not affect the rights of a spouse
-If a divorced couple remarries before the testator dies, the will provisions relating to former spouse or domestic partner are revived, because they have married each other again

Question 59

3d Party Revocation of a Will - a third party can revoke a will on behalf of a testator when:

DP

Answer 59

DP
Direction Presence

A third party can revoke a will on behalf of a testator when:
-it is at the testator’s direction; AND
-In the testator’s conscious presence

Question 60

Revocation of a Will and the effect on Codicils

Answer 60

By revoking a will, the testator also revokes any codicil attached to the will,
BUT the opposite is not true:
By revoking a codicil, the underlying will is revived in its pre-codicil form

Question 61

Republication of a Will - UPC (majority rule)

Answer 61

UPC (majority rule) does not recognize automatic revival of a revoked will. UPC focuses on the testator’s intent and applies a hybrid approach depending on:
1. Whether the second will is revoked by act or by another, later will
AND
2. If the second will IS revoked by an act, then whether
a) the first will was wholly or
b) partially revoked by that second will

If second will is revoked by another new will, the previous will is only revived if the terms of the new will show that the testator intended the previous will to take effect. In this instance, the court will NOT consider any extrinsic evidence in determining the revivability of the first will

If the second will is revoked by a physical act, the burden of establishing the testator’s intent depends on whether the first will was wholly or partiall revoked by the second will.

If the second will wholly revoked the first will, the court will not revive the first will unless the proponent can prove otherwise. Court CAN consider extrinsic evidence.

If the second will only partially revoked the first will, the court will presume the testator intended to revive the revoked parts of the first will, unless challenger of the first will proves otherwise. Court CAN consider extrinsic evidence.

Question 62

Republication of a will - common law (minority approach)

Answer 62

At common law, the revocation of a will or codicil that had revoked another will automatically revived the original will

Question 63

Republication of a will - no-revival approach (many states follow, but not a majority)

Answer 63

Second will is treated as two legal instruments, each with its own effective date:
1) A revoking instrument that is effective upon its execution
2) a dispositive instrument effective upon the testator’s death

Question 64

Dependent Relative Revocation (DRR)

Answer 64

“But for the mistake, the testator would not have revoked the first will.”

Dependent Relative Revocation provides a safety valve for testators who revoke a will on the basis of a mistake

Mistake could be one of law or fact, and the DRR invalidates the mistaken revocation and revives the earlier revoked will. Typically it will be that a party revoked an earlier will but the new will was not valid; DRR will revive the first will so the decedent does not die intestate.

Buzzwords to use: revocation, mistake, causation, safety valve

Question 65

Which doctrine of construction does will interpretation use?

Answer 65

Plain Meaning Doctrine:
courts give the words in wills their plain meaning. Unless the testator explicitly states that a word has a different than usual meaning, the court will interpret the will exactly as it is written, using the common definition of all words

Question 66

Wills: incorporation by reference

A will may incorporate an extrinsic document that is not testamentary in nature if:

EID

Answer 66

EID
Existence Intends Described

1. The document is in existence at the time of execution (UPC waives this requirement if it only disposes of personal property)
2. The testator intends the document to be incorporated into the will;
   AND
3. The document is described in the will with sufficient certainty to permit its identification

Question 67

Wills: Lapses

Answer 67

A testamentary gift would lapse (fail) if an intended beneficiary did not survive the testator, and failed gifts would be dumped into the residuary gift

Question 68

Wills: Anti-Lapse Statutes

RI

Answer 68

RI
Relationship Issue

Anti-Lapse Statutes provide an alternative disposition for lapsed goods, typically that the gift goes to the issue of the intended beneficiary rather than the residuary gift

Requirements:
1. Protected relationship - lapsed gift was intended for a relative of the testator
2. Survived by Issue

If the requirements of the statute are not met, the lapsed gift goes to the residuary under the common law

Question 69

Special Rules for Class Gifts

Answer 69

Under the common law, class gifts were an exception to the lapsed gift rule

-If a member’s gift lapses, the rest of the class share that member’s gift
-But if the deceased member is protected by an anti-lapse statute, the outcome may be different, depending on the language of the anti-lapse statute

Question 70

Wills: Abatement & Abatement Hierarchy

IRGS

Answer 70

The estate does not have sufficient funds to pay debts or make gifts. In this case, the gifts will be abated, or reduced, in specific order

Abatement Hierarchy:
1. Intestate property (first to be abated)
2. Residuary gift
3. General gifts
4. Specific gifts (last thing to be abated, most protected)

Question 71

Wills: Ademption by Extinction

When a piece of property is no longer in the estate at the testator’s death…

Answer 71

Identity Theory / Traditional Rule: the devise is extinct and the devisee takes nothing

Intent Theory / UPC Rule: look to testator’s intent at the time she disposed of property for facts that suggest the ademption was intended or not.
-UPC tries to avoid ademption and provides for beneficiary to take replacement property on a specific gift

Question 71

Types of Testamentary Gifts

SGDR

Answer 71

1. Specific gift: a gift of a particular piece of property
2. General gift: a gift of property satisfied from general assets of estate
3. Demonstrative gift: a general gift from a particular source. Demonstrative gifts, if capable of being satisfied, are treated as specific gifts. Otherwise they are general gifts.
4. Residuary gift: left over

Question 72

Wills: Ademption by Satisfaction

Requirements

IW

Answer 72

IW
Intent Writing

Applies when a testator satisfies a specific or demonstrative gift, either in whole or in part, by an inter vivos transfer

Requirements:
1. Testator inteded the gift to adeem
AND
2. Intent must be supported by writing

Question 73

Will Ambiguity - Latent

Answer 73

A latent ambiguity is one that arises upon the attempted administration of the estate property, such as when the will directs that property go to “my brother” but the decedent had two brothers

Extrinsic evidence can be used to resolve a latent ambiguity

Question 74

Will Ambiguity - Patent

Answer 74

A patent ambiguity is one that is clear on its face, when there is contradictory language in the will that is immediately apparent.

Traditional Rule: had to be resolved without looking to extrinsic evidence

Modern Rule: Extrinsic evidence permitted for resolution

Question 75

How does a court handle a mistake in a will?

Answer 75

Courts are not forgiving when it comes to mistakes in wills. Courts tend to honor the language of the written will, not the alleged intended devisee

Question 76

Rights of the Surviving Spouse

SHAPE

Answer 76

SHAPE
Social Homestead Allowance Personal Elective

A surviving spouse is entitled to the following statutory rights upon decedent spouse’s death:
1. Social security & pension plans
2. Homestead exemption
3. Personal property set asides
4. Family allowance for reasonable living expenses during probate
AND
5. Elective share

Question 77

Surviving Spouse’s Elective Share & Waiver

WDIC

Answer 77

WDIC
Writing Disclosure Independent Counsel

Spouse’s elective share is a forced share and could change the gifts to other beneficiaries

UPC: forced share is 50% of the decedent’s augmented estate
Augmented Estate: UPC subjects property acquired before marriage, as well as during marriage, to the elective share

Waiver: surviving spouse can waive the right to an elective share if:
1. The waiver is in writing after a fair disclosure of its contents,
AND
2. The spouse is represented by independent legal counsel

Question 78

When can a court modify a trust?

Answer 78

A court may modify a trust if events that were unanticipated by the settlor have occurred and the changes would futher the purposes of the trust.

To the extent possible, the modification must be made in accordance with the settlor’s probable intention.

The court does NOT need to seek beneficiary consent to make the modification.

Generally, when strict adherence to the terms of a trust frustrate the settlor’s/testator’s purpose, the terms can be modified to better align with the purpose.

Question 79

When can a court modify the terms of a trust even if circumstances have not changed in an unanticipated manner?

IWA

Answer 79

IWA
Impracticable Wasteful Administration

The court may modify the terms of a trust that relate to the management of trust property if continuing the trust on its existing terms would be
1. impracticable
2. wasteful
OR
3. impair the trust’s administration

Question 80

Trusts/Wills: What is the doctrine of cy pres?

Answer 80

Under the cy pres doctrine, in an effort to carry out the testator’s intent, a court may modify a charitable trust to seek an alternative charitable purpose if the original charitable purpose becomes
1. illegal,
2. impracticable,
OR
3. impossible to perform.

The settlor’s intent controls, and a charitable beneficiary creates the presumption that the settlor had a charitable purpose in mind for the trust.

Question 81

Wills: What is a lapse and what is the effect of one?

Answer 81

A lapse occurs when a beneficiary under a will predeceases the testator. The effect of such depends on the jurisdiction.

Common Law: if a beneficiary died before testator or before the point they must survive until to inherit, the gift FAILS and goes to the residue of the will. This occurs even if the will left property to someone who was already deceased.

Anti-Lapse Statutes: state laws that prevent the failure of a devise in the event of a lapse.
a) Majority: IF the gift was made to a predeceasing relation of testator (degree determined by statute), the issue succeeds to the gift unless the will states to the contrary. Most statutes require that the devisee be a grandparent, descendant of grandparent, or stepchild of testator. Most statutes apply only to testatmentary gifts
b) UPC & Modern Trend: anti-lapse protection may also apply to nonprobate transfers

Question 82

When does a healthcare power of attorney become effective?

Answer 82

Upon the incapacitation of the principal

Question 83

What is a power of attorney?

Answer 83

An authorization to act on someone else’s behalf in a legal or business matter

Question 84

How must an agent authorized under a health-care power of attorney conduct itself in this capacity?

Answer 84

An agent must make a healthcare decision in accord with the principal’s instructions or other known wishes. If such instructions do not exist, the agent must make decisions in accordance with the agent’s determination of the principal’s best interest.

Question 85

How do typical healthcare POA statutes treat potentials for civil liability?

Answer 85

The typical durable healthcare POA statute shields the agent from civil liability for healthcare decisions that are made in good faith.

Agents act within the scope of the statute when they act pursuant to a properly executed durable healthcare power of attorney.

An agent is thus only held responsibile for intentional misconduct, not for unknowingly doing something wrong.

Question 86

Why do typical healthcare POA statutes shield agents from being subjected to slayer statutes that would prevent them from inheriting from the deceased principal?

Answer 86

Because allowing a slayer statute to apply to a healthcare POA would undermind the purpose of the POA, which is to appoint a trusted family member to act in good faith on the patient’s behalf. If such conduct prohibited the agent from taking under the decedent’s will, the patient would not appoint potential heirs as agents and potential heirs would refuse to serve.

Question 87

When a testator does not own a specifically devised asset at the time of death, how does the ademption by extinction operate?

Answer 87

The ademption by extinction will cause the devise to fail and the devisee takes nothing - not even the sale proceeds. Instead, proceeds from the sale of the specifically devised asset will become part of the general estate.

This would be the case if property is sold or foreclosed on after the will is executed, and even applies when the proceeds are identifi

Question 88

What is the difference between ademption and lapse?

Answer 88

An ademption occurs when the devised property no longer exists at the administration of the will. This causes the devisee to take nothing, insofar as the adeemed property is concerned.

A lapse occurs when the beneficiary has predeceased the administration of the will. This causes either a) the devise to fail and the property to go to the residual gift or estate OR b) an anti-lapse statute applies.

Question 89

When a state’s laws of intestate succession deprive nonmarital biological children of the parent’s estate, what is the result?

Answer 89

Laws that treat biological marital children differently than biological nonmarital children are unconstitutional on their face and thus invalid.

Question 90

When can a nonmarital child inherit from their natural father?

Answer 90

Again, laws barring nonmarital children from inheriting from their parents are unconstitutional. However, in order for a nonmarital child to inherit from their father, one of the following must be true:
1. The father subsequently married the natural mother
2. The father held the child out as his own and either provided support or received the child into his home
3. Paternity was proven by clear and convincing evidence after the father’s death
4. Paternity was adjudicated during the lifetime of the father by a preponderance of the evidence