Wills Flashcards
Intestate Succession
Any property that does not pass by will upon the decedent’s death will be distributed according to the state’s applicable intestacy statutes.
Modern Per Stirpes
Under the modern per stirpes model, the estate is divided at the first generation with surviving members. Each living member at that generation receives a share and the share of each deceased person’s share will pass to their issue by right of representation.
Per Capita at Each Generation
Under the per capita at each generation model, the estate is divided at the closest generation to the decedent in which one or more descendants are alive. The share of the deceased descendants are added together and divided equally among representatives of deceased descendants.
Adopted Children
An adopted child is entitled to take through and from their adoptive parents under the laws of intestacy. May also inherit through and from biological parent if the adoptive parent is a close relative or stepparent.
Will Validity
A will is valid if in writing, signed by the testator in the presence of two attesting witnesses, and signed by at least two witnesses in the testator’s presence within a reasonable time. The UPC also allows for notarization instead of witness signatures.
Holographic Wills
A holographic will is a handwritten will that is not witnessed. A holographic will is valid only if the material portions are in the testator’s handwriting.
Incorporation by Reference
A document or writing may be incorporated by reference if testator intended to incorporate the document into the will, the document was in existence at the time the will was executed, and the document is sufficiently described in the will.
[Under the UPC, Tangible personal property may be disposed by a signed memorandum regardless of whether it was created before or after execution of the will.]
Advancements
Gifts to heirs during a testator’s lifetime were considered advancements on the heir’s estate. An advancement must be declared in a contemporaneous writing by decedent evidencing intent to make an advancement or acknowledged in writing by heir that it was an advancement.
Ademption by Satisfaction
A testamentary gift may be satisfied in whole or in part by an inter vivos transfer from the testator to the beneficiary after execution of the will if testator intends to have that effect. Under the UPC, the gift is adeemed if provided for in the will, a contemporaneous writing is executed by testator at the time the gift is made, or devisee acknowledges in writing the gift as satisfaction.
Ademption by Extinction
Under the doctrine of ademption, if the subject-matter of devise is not in the estate at the time of the testator’s death, the devise to the beneficiary fails.
Revocation by Physical Act
A will can be revoked by execution of a new will for the sole purpose of revoking the prior will; a subsequent will or codicil containing a revocation clause or terms inconsistent with the prior will; or cancellation by some physical act. [Under the UPC words of cancellation only need to be somewhere on the will to be valid.]
Dependent Relative Revocation Doctrine
Under the DRR doctrine, the valid revocation of a will be ignored if the will was revoked under the testator’s mistaken belief of law or fact that the testator could revive an earlier will or modify disposition by a new codicil or will.
Revocation by Divorce
A divorce revokes provisions in a will that devise property to the testator’s former spouse and relatives of the former spouse by operation of law unless expressly provided otherwise.
Anti-Lapse Statutes
Under an anti-lapse statute, devises will vest in the descendants of the predeceased beneficiary if the predeceased beneficiary is a close relative of the testator and has descendants who survive testator.
Slayer Statutes
A person who feloniously and intentionally kills the decedent is barred from claiming a share of the decedent’s estate under the will or laws of intestacy. A conviction of murder creates the presumption that the killing was felonious and intentional.
Disclaimers
A beneficiary under a will can disclaim causing the disclaimed property to pass as if the beneficiary predeceased the testator.
Abatement
Abatement is the process of reducing the testamentary gifts where estate assets are insufficient to pay all claims against the estate and to satisfy all dispositions. The order of abatement is intestate property, residuary gifts, general gifts, and specific gifts.
Specific Devise
A specific devise is a gift of a particular item of property distinct from all other objects in the testator’s estate.
Specific Bequest
“Generic Terms”
A specific bequest of a general nature is not distinguishable from the rest of testator’s estate until testator dies.
Demonstrative Legacy
A demonstrative legacy is a gift of a general amount that is to be paid from a particular source or fund.
General Legacy
A general legacy is a gift of reasonable economic benefit payable out of the general assets of the estate.
Residuary Gift
The residuary gift is the balance of the testator’s property after paying debts, expenses, taxes, and gifts made under the will.
Testamentary Capacity
A testator must have testamentary capacity. A testator has capacity when testator knows: the nature and extent of their property; the nature of the instrument that is being signed; the disposition that is being made; and the people who are natural objects of testator’s bounty.
Insane Delusion
An insane delusion arises when testator has a belief in facts that do not exist and that no rational person would believe existed.
