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Bar Exam Study > Wills > Flashcards

Wills Flashcards

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1
Q

Create a Valid Will

A
  1. Legal Capacity (At least 18 years old, but some states allow under 18 to write a will if married or military)
  2. Testamentary Capacity(sound mind). Elements:
    * Understand the action
    * Understand the effect (dispose property when I die)
    * Understand nature and extent (no exact knowledge necessary – just general)
    * Recognize natural objects of your bounty (recognize your family situation and you’re like yeah that’s them)
    * Do the other 4 simultaneously
  3. Testamentary Intent (to create a will)
  4. formalities depending on type of will
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2
Q

Formalities Attestation

A

in writing
signed (any mark intending to identify and authorize)
attested (2 competent witnesses)

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3
Q

Formalities Holographic Will

A

written in testator handwriting (split re all K or just material terms
self authorizing
50/50 re witnesses present

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4
Q

Formalities Oral Will

A

pretty much abolished BUT allowed for last sickness little money or military

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5
Q

Disclaimer Rule

A

Disclaimer: a beneficiary may disclaim any interst that otherwise would pass to her from the decedent’s estate, with the conseuqnce that the interest passes as through disclaimant predeceased the decedent. The gift may be saved with an anti-lapse statute, but otherwise the gift fails and becomes part fo the residuary estate. An anti-lapse statute typically provides that the surviving descendants can take by substitution only when the predeceasing beneficiary is a descendant of the testator. Other states, including UPC, extend the application to other relatives.

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6
Q

Marital Rights

A

governed by the law of domicile of the spouses when the property is acquired

some states will give 1/3 or 1/2 of estate, depending on number of children or length of marriage - anything left over is passed through intestacy

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7
Q

Governing Law of Type of Property Passed Through intestacy

A

property = situs
personal property = where testator domiciled at death

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8
Q

What are the Methods to Determine Intestacy shares

A

Per Stirpes Distribution
Per Capita with Representation
Per Capita at Each Generation

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9
Q

Per Stirpes Distribution

A

divide at first generation below the decedent.
if any of the children are deceased, divide their “would’ve been” share to their children (the grandchildren)

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10
Q

Per capita w/ Representation Distribution

A

divide at generation with first surviving member
if grandchildren are the first surviving members, then they all get equal shares, not their parents “would’ve been” shares; otherwise they get a split of the would’ve been shares

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11
Q

Per Capita at Each Generation

A

divide estate into shares at the first generation with survivors

then pool the shares of the lower generation so each member of the lower generation gets equal shares

(modern family chart)

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12
Q

List Potential Problems with intestacy Wills

A

(1) Advancement
(2) Survival requirements
(3) Disclaimer
(4) Unworthy Heirs

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13
Q

Unworthy Heirs

A

slayer statute
no inheritance or constructive trust if murder (auto non-inheritance) or voluntary/negligent manslaughter (balance interests)

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14
Q

Disclaimer Requirements (Intestacy and Willed)

A

(1) oral or in writing
(2) signed by the disclaiming party
(3) in front of a notary
(4) timely filed (either 90 days or before receiving benefit)

effect: treat as predeceased

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15
Q

Survival Requirements Intestacy

A

some states say any amount of time, other say survive by 120 hours, if no survival then treat as predeceased

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16
Q

Advancement Intestacy

A

given during lifetime
needs to be in writing
impact: compute as if the advance was still in estate and then subtract

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17
Q

Determine the Applicable Law for Will

A

property = situs
personal = domicile at death
savings statute = will recognize as a valid will if (1) valid where executed or (2) valid at testator’s domicile at death OR (3) complies w local law

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18
Q

Categories of Willed GIfts

A

(1) Devise = property
(2) Bequeath = personal Property (specific = THIS laptop; general = “my laptop” to be determined at time of death)
(3) Legend = money (general = here’s 10k; specific = this amount from this trust)
(4) Residual = gift of the remainder

Note: private vs. charitable gifts

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19
Q

List the Potential Changes in Property (no factors)

A

(1) Ademption
(2) Ademption by Satisfaction
(3) Abatement
(4) Exoneration of Liens
(5) Disclaimer
(6) Lapse

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20
Q

Lapse Definition & Order

A

if beneficiary is predeceased or has disclaimed
if lapsed, then distribute as follows:
(1) Terms of the Will
(2) Anti Lapse Statute (see flashcard for elements)
(3) residual clause
(4) if residual clause unavailable, then intestacy

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21
Q

Abatement Definition and Order

A

Definition: the process of lowering the gift amount where the estate is insufficient

Order: abate in the following order
(1) Intestacy
(2) Residual
(3) General Gifts
(4) Demonstrative Gifts
(5) specific gifts

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22
Q

Anti-Lapse Statute

A

saves a failed gift to predeceased beneficiary
goes to predeceased descendants if related to testator (some jurisdictions)
any express “if he survives me” language defeats anti-lapse and goes straight to the residual

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23
Q

Ademption

A

defeats the gift bc the property is no longer part of the estate
* identity rule (majority)
* replacement property rule

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24
Q

Ademption by Satisfaction (Definition and Elements)

A

Definition: Testator gave to Beneficiary during lifetime

Elements:
(1) in writing
(2) appreciation/depreciation is irrelevant
(3) stock split/dividends/mergers: BENEFICIARY GETS THE INCREASED NUMBER OF SHARES from stock splits of stock dividends

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25
Q

Exoneration of Liens

A

if the will is silent, then state law governs
(1) some states, liens can be exonerated using estate property
(2) others say no unless the will provides for it

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26
Q

Basic Rules of the Wills

A

(1) presume you didn’t want to die intestate
(2) if conflicting, use words at the end of document (time closer to death)
(3) Construe it as a whole
(4) give ordinary words grammatical meaning and technical words technical meanings
(5) Give effect to all language

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27
Q

Ambiguities (All of them)

A

Patent: obvious on its face you can’t carry it out – bring in extrinsic evidence to resolve but can’t fill in the blanks for testator

Latent: makes sense when you read it but literally can’t carry it out “my sister Pat” - bring in extrinsic evidence to resolve

if NO ambiguity, then traditionally do not disturb the plain meaning of the will, but modern route is to incorporate extrinsic evidence to give full effect to testator’s intent but NEED clear and convincing evidence

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28
Q

Patent Ambiguity (Definition and Impact)

A

Patent: obvious on its face you can’t carry it out – bring in extrinsic evidence to resolve but can’t fill in the blanks for testator

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29
Q

Latent Ambiguity (Definition and Impact)

A

Latent: makes sense when you read it but literally can’t carry it out “my sister Pat” - bring in extrinsic evidence to resolve

30
Q

If no ambiguity in testator’s will,

A

if NO ambiguity, then traditionally do not disturb the plain meaning of the will, but modern route is to incorporate extrinsic evidence to give full effect to testator’s intent but NEED clear and convincing evidence

31
Q

Requirements to Incorporate Document by Will

A

(1) intent to incorporate
(2) the writing is in existence at the time of will execution
(3) the writing is clearly identified/sufficiently described in the will

32
Q

Tangible Personal property Document

A

the will may refer to a written list to dispose of tangible personal propeprty, not otherwise disposed of, even though this list was not in existence at time of execution of the will

33
Q

Fact of Independent Significance

A

i.e. conveying contents of a safety deposit box - whatever ends up being in the box is a face of independent significance

34
Q

Conditional Will

A

operates only if certain even occurs or does not occur
(generally, presume against conditional will)

Cancer as inducement for will but i die in car accident VERSUS “this is only effective if i die from cancer”

35
Q

Codicil

A

amendment to an existing will
republishes the will except for the inconsistent parts
view as one document from the date of the codicil

36
Q

Pour Over Will Provision

A

leave to inter vivos trust, created before or after the will is executed

37
Q

Integration

A

show that all pages are present and the same as executed vs. probate

38
Q

Combination Wills (all of them)

A

Joint (stupid)
Reciprocal
Contractual Wills
* Common Law
* Modern law
Revoke By Agreement

39
Q

Revoke by Agreements

A

can revoke together
if revoked by one while other is still alive, they can amend their own will
if revoked by one once the other has died, then the beneficiaries can sue to impose a constructive trust on the property they should’ve received under the K

40
Q

Power of Appointment

A

owner of property transfers to donee the power of appointing the new owner, otherwise reversion

1) general power: can self appoint or appoint to creditors
2) special/specific: can’t self appoint for own benefit, have to give within a specified class

No duty to name, just a fun right you have
creditors can’t reach until you name where it’s going
some states allow this power to pass through the residual

41
Q

Name all the Ways you can revoke a will (general categories and sub-categories, but not elements)

A

By Law (Marriage, Divorce, Murder)
By Physical Act
By Subsequent Will or Codicil

42
Q

Revocation of Wills Marriage

A

most states no effect, but UPC says that new spouses will get intestacy share UNLESS
(1) the will clearly provides for the spouse
(2) clear that the omission was intentional
(3) T executed the will in contemplation of marriage

43
Q

Revocation of Wills Divorce

A

all provisions favorable to ex-spouse drop out (some states include provisions favorable to ex-inlaws) as long as divorce is final and not pending.

can reconcile to restore will, but otherwise treat as if spouse has predeceased

44
Q

Revocation by Physical Act

A

(1) intent to revoke - mistake doesn’t revoke
(2) mental capacity (no duress etc)
(3) physical act (varies, but ripping, shredding, etc)

45
Q

Proxy Revocation

A

at request of T and in T’s presence

46
Q

Partial Revocation

A

allowed if sufficient evidence that T made the changes
bring in extrinsic evidence to determine whether partial or total revocation intended

47
Q

Revocation by Subsequent Will or Codicil (general)

A

Express
Presume against revocation if will found in normal place and no suspicious circumstances re will

48
Q

Revocation by Subsequent Wills or Codicil when will is missing

A

if will in T possession, then presume revoked
if will in T possession or control but can’t be produced for non-evil reasons, then presume revoked
if will can’t be found bc fire killed T and burned the will, then prove by clear and convincing evidence that
(1) valid will
(2) cause of nonproduction
(3) contents

49
Q

Revival of Revoked Wills Approaches

A

(1) UPC Intent Approach (look to T Intent)
(2) Automatic Revival of the original Will
(3) NO revival of anything, once it’s dead it’s dead

50
Q

Conditional Revocations
Dependent Relative Revocation

A

when will 1 is torn up, it’s implied that it’s on condition that will 2 will be valid (Romeo and Juliet)

(revocation of 10k to sub 15k, 15 K not accompanied by writing or codicil, use DRR to revive 10k)

51
Q

Protections of Surviving Spouses

A

if you left you spouse nothing and you were primary breadwinner, then marital property gives elective or forced share where spouse has a right to portion

52
Q

Community Property States

A

no elective share bc spouse s protected regardless of which spouse earned the money. the deceased spouse can give away only their separate property and half of their community property

53
Q

Pretermitted or Omitted Child

A

carries out presumptive intent you meant to include them - see the exceptions

54
Q

Exceptions to Omitted Child Forced Share

A

(1) if entire estate is left to other spouse
(2) proof that the omission was intentional (i.e. republishing will by codicil and still not providing for the kid)
(3) if separately provided for (i.e. by trust)

55
Q

Minor Children or Spouse

A

(1) Homestead (protected from creditors - unlimited right to live there even if no title to the actual house)
(2) Family Allowance
(3) Exempt Personal Property (protected from creditors)

56
Q

Ground to Contest the Will (General)

A

(1) Validity Requirements
(2) Insane Delusion w Nexus
(3) Undue Influence
(4) Duress
(5) Fraud (in factum and inducement)
(6) Mistake (in factum or extrinsic)
(7) no contest clause

57
Q

Undue Influence Elements

A

(1) influence actually existed and was exerted
(2) actually overpowered T mind and free will
(3) such that resistance is futile
(4) and the will shows the desires of the influencer, not the testator
(5) influence caused the testator to execute a will w different terms than otherwise would’ve

58
Q

Proving Undue Influence

A

(1) unnatural disposition in favor of random
(2) opportunity to exert
(3) relationship - confidential or fiduciary
(4) ability to testator to resist
(5) beneficiary involvement in drafting the will (presume undue influence if you helped write the will and you’re named in it)

59
Q

Fraud Elements

A

(1) False Representation made to T
(2) Knowledge of Falsity
(3) T reasonably believed it
(4) Caused T to execute something they otherwise wouldn’t have

60
Q

Types of Fraud (and describe)

A

Fraud in the Factum: deceived re what they were signing (i.e. didn’t know it was a will)

Inducement: knew it was a will, but was lead to execute it based on erroneous extrinsic fact

61
Q

Mistake

A

Mistake in Factum: error re contents or identity (Fixable)
Mistake in Inducement: mistaken re extrinsic fact - not fixable by the courts

62
Q

No Contest Clause

A

if you contest this will and lose, you’re fucked
interpret typically if contest in good faith

63
Q

Personal Representative

A

person appointed to carry out estate (spouse adult children parents, and other relatives in that order)

64
Q

Duties of Personal Representative

A

after being appointed and properly qualified by posting bond:
(1) notice to beneficiaries
(2) Notice to Creditors (order in separate flashcard)
(3) Collect Probate Assets
(4) Manage Assets
(5) Compensate

65
Q

Notice to Creditors Order

A

(1) Administration Expenses first
(2) specific amounts like funeral or last illness
(3) family allowances
(4) federal claims like tax
(5) secured claims like car
(6) unsecured claims
(7) the beneficiaries

66
Q

Elements for Advance Health Care Directives

A

(1) in writing
(2) witnessed or notarized

67
Q

Types of Advance Health Care Directives (list them)

A

Medical Power of Attorney
Living Will

68
Q

Medical Power of Attorney

A

name an gent who will make medical decisions for you when you cannot

general or limited

agent must act in good faith

69
Q

Living Will

A

directive to physicians. if unable to state desires, can indicate you want life sustaining procedures or re hydration/nutrition/pain management

70
Q
A

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