Wills Flashcards
Intestate Succession
Intestacy is the default statutory distribution scheme. It applies when, as here, an individual dies without disposing of his property through a valid will. Intestacy statutes generally favor the decedent’s surviving spouse and issue, followed by the decedent’s other relations.
Valid Will Requirements (Attested Will)
A valid will must be in writing and signed with present testamentary intent by the testator in the joint presence of two witnesses.
Holographic Wills
A Holographic will is in a testator’s handwriting, signed by the testator, and need not be witnessed.
To be valid, a will must be acknowledged by the testator and signed in the presence of at least two attesting witnesses, who also sign the will within 30 days
Elective Shares
An elective share gives the surviving spouse a fraction of the decedent’s estate if the surviving spouse decides to elect that share, rather than a gift in the will.
Setting Aside Inter Vivos Transfers
In some jurisdictions, the surviving spouse can set aside inter vivos transfers made by the decedent during marriage, without spousal consent, if the decedent initiated the transfer within one year of her death, retained an interest in the property, or received less than adequate consideration.
Life Insurance Policies
A beneficiary of a life insurance policy takes by virtue of the insurance contract.
The proceeds are not part of the decedent’s estate, unless they are payable to the estate as beneficiary.
Life insurance policies typically provide that proceeds will only be paid to a beneficiary named on an appropriate form filed with the insurance company; other possible methods of changing a beneficiary are thus viewed as being excluded by the insurance contract.
However, some courts have upheld a beneficiary change by will if the insurance company does not object.
Incorporation
A will may incorporate by reference another writing not executed with testamentary formalities, provided the other writing meets three requirements:
(i) it existed at the time the will was executed;
(ii) the testator intended the writing to be incorporated; and
(iii) the writing is described in the will with sufficient certainty so as to permit its identification.
Lapse and Anti-Lapse
Under common law, if a beneficiary died before the testator or before a point in time by which he was required to survive under the will, the gift failed and went to the residue unless the will provided for an alternate disposition.
Today, almost all states have anti-lapse statutes that provide for the alternate disposition of lapsed gifts. Typically, an anti-lapse statute will save the gift if:
(i) the gift was made to a beneficiary related to the Testator by blood within a certain degree of relationship, and
(ii) that beneficiary is survived by issue.
Abatement
Gifts by will are abated, i.e. reduced, when the assets of the estate are insufficient to pay all debts and legacies. If not otherwise specified in the will, gifts are abated in the following order:
(i) intestate property;
(ii) residuary bequests;
(iii) general bequests; and then
(iv) specific bequests. Abatement within each category is pro rata.
Rules of Construction
Because of the rule of construction that a will “speaks” at the time of death, a bequest of generically described property applies to property that meets the generic description at the testator’s death.
The doctrine of ademption applies only to specific bequests.
Slayer Statute
A party cannot take property from a decedent when the party was responsible for the decedent’s death.
Parent Child Relationship: UPC
A parent-child relationship must be established for an individual to be classified as issue of another. Under the UPC and the majority of jurisdictions, adoption establishes a parent-child relationship between the stepparent and child, including full inheritance rights in both directions.
Parent-Child Relationship: Common Law
The common-law rule was that if a child was born out of wedlock, he could not inherit from his natural father.
Most jurisdictions provide that an out-of-wedlock child can inherit from his natural father if:
(i) the father subsequently married the natural mother,
(ii) the father held the child out as his own and either received the child into his home or provided support,
(iii) paternity was proven by clear and convincing evidence after the father’s death, or
(iv) paternity was adjudicated during the lifetime of the father by a preponderance of the evidence. Further, the Supreme Court has held that a statute is unconstitutional if it denies inheritance rights to a nonmaterial child when paternity has been established during the father’s lifetime.
Revocation
A will may be revoked wholly or partially in three ways: by subsequent writings, by physical destruction of the will, or by operation of law. Physical destruction may take the form of burning any portion of the will or canceling, tearing, obliterating, or destroying a material portion of the will with the intent to revoke it. Both the act and a simultaneous intent to revoke must be proven to yield a valid revocation.
Pretermitted Statutes
Petermitted heir statutes permit children of a testator under certain circumstances to claim a share of the estate even though they were omitted from the testator’s will. While the birth or adoption of a child after the execution of a will does not invalidate the will, such children are typically not provided for in the will. If the testator then dies without revising the will, a presumption is created that the omission of the child was accidental.
An omitted child statute does not apply if:
(i) it appears that the omission of the child was intentional;
(ii) the testator had other children at the time the will was executed and left substantially all of his estate to the other parent of the pretermitted child; or
(iii) the testator provided for the child outside of the will and intended this to be in lieu of a provision in the will.
