Wills

Question 1

What is removed from decedent’s assets before probate distribution?

Answer 1

○ Life insurance
○ Joint tenancies
○ Tenancies by entirety
○ Inter vivos trusts
○ Bank account trusts
○ Deeds
○ Contracts
Inter vivos gifts

Question 2

In general: intestacy applies when

Answer 2

○ Decedent dies w/o having made a will or will is denied probate
Decedent’s will doesn’t dispose of all of decedent’s property

Question 3

What is the applicable law for intestacy?

Answer 3

marital rights: apply law at time and place where the property was acquired
- law of domicile and community property marital property system
succession rights:
- personal property: law of decedent’s domicile at death
-real property: law of situs of property

Question 4

Interstate share of surviving spouse under common law

Answer 4

surviving spouse is not an heir
Widow: dower, life estate in 1/3 of real property owned by husband during marriage
Widower: curtesy: life estate in all wife’s real property provide child born to marriage

Question 5

Interstate share of surviving spouse under modern law

Answer 5

spouse is an heir, share depends on several factors
if Descendants also survive:
Majority: if decedent leaves descendants and surviving spouse, the spouse takes 1/3 or 1/2 of estate
UPC: surviving spouse takes entire estate if the decedent is survived by descendants, all of whom are descendants of the surviving spouse
No descendants survive:
Majority: spouse takes entire estate
UPC: spouse takes entire estate if decedent is not survived by descendants or parents

Question 6

classic per stirpes

Answer 6

one share is created for each living child, one share is created for each deceased child with at least one surviving descendant

Question 7

Majority rule: per capita with representation

Answer 7

property is divided in equal shares at first generational level where there are living takers and each living person takes a share and the share of each deceased person at that level passes to their issue

Question 8

Modern trend: per capita at each generational level

Answer 8

initial division at first generational level where there are living takers, but the shares of the deceased persons at that level are combined and divided equally among the next generational level

Question 9

shares of other heirs

Answer 9

○ If decedent is not survived by a spouse or descendants, the estate is first distributed to ancestors (parents, grandparents) and collaterals (siblings, uncles, aunts)
1. Parents or surviving parent
UPC gives entire estate to surviving parent
Other states give 1/2 to surviving parent and 1/2 to sibling or siblings
2. Brothers and sisters and their descendants
3. 1/2 to paternal grand parents and 1/2 to material grandparents
- All to one side if no takers on other side
4. 1/2 to nearest kin on maternal side, 1/2 to nearest kin on paternal side
- All to one side if no takers on other side
5. Otherwise, estate escheats to state

Question 10

Adopted children

Answer 10

treated same as biological children of adopting parents; no inheritance from bio parents in either direction

Question 11

Stepchildren and foster children

Answer 11

no inheritance rights

Question 12

Adoption by estoppel

Answer 12

child can inherit from stepparent or foster parent when legal custody of child is gained under an unfulfilled agreement to adopt

Question 13

nonmarital children

Answer 13

Mother: child always inherits
father: child inherits if inherits if:
1. Father married mother after child’s birth
2. Man is adjudicated to be Father after paternity suit
3. After death and during probate, Man is proved by clear and convincing evidence to be the father

Question 14

half siblings

Answer 14

treated as whole siblings

Question 15

posthumous children

Answer 15

If person is in gestation at the time of intestate’s death, most states allow that person to be an heir

Question 16

Disinheritance clause

Answer 16

common law: a will provision expressly disinheriting an heir is ineffective as to any property passing by intestacy (to be effective, must dispose of everything

UPC: testator may exclude the right of an individual to succeed by intestate succession by will provision/disinheritance

Question 17

Advancement

Answer 17

Definition: lifetime gift to an heir with intent that the gift be applied against any share the heir inherits from donor’s estate
Common law: substantial lifetime gift presumed to be an advancement
Modern law: lifetime gift is presumed not an advancement unless shown to be intended as such
UPC: advancement exists only if it is (1) declared as such in contemporaneous writing by donor or (2) acknowledged as such by heir’s writing

Question 18

what if the advancement recipient predeceases testator?

Answer 18

Majority: advancement is binding on those who succeed to estate of advancee
UPC: advancement is not binding on advancee’s successor unless writing states so

Question 19

What if decedent dies “simultaneously” with devisee/donee/heir?

Answer 19

Traditional Act: when disposition of property depends on death order and order cannot be determined, the property of each decedent is disposed as If they had survived each other

Revised Act: person must survive decedent by 120 hours

Question 20

Disclaimer requirements

Answer 20

Majority: disclaimer must be written, signed by disclaimant, acknowledge by notary, and filed w/appropriate court within 9 months of decedent’s death

passes as if disclaimer predeceased

Question 21

What if the disclaimer is an infant, incompetent, or deceased?

Answer 21

Disclaimer may be made if court finds it is in the best interest of those interests in the beneficiary’s estate/not detrimental to the beneficiary’s best interests

Question 22

Out-of-state and foreign wills

Answer 22

UPC: savings statute; will is admissible to probate in jurisdiction if the will is executed in accordance with the law of (1) that jurisdiction, (2) the state where the will was executed, (3) the testator’s domicile at the time of the will’s execution, or (4) testator’s domicile at death

Question 23

testamentary capacity

Answer 23

must have capacity to understand:
1. The nature of their act (that they are executing a will);
2. The nature and extent of their property;
3. The persons who are the natural objects of their bounty (family members); and
4. They can formulate an orderly scheme of disposition (can do all elements simultaneously)

• determined at time of will’s execution

Question 24

Testamentary intent

Answer 24

Testator must have present intent that the instrument operates as their will

When not clear, testamentary intent will be found only if show that the testator (1) intended to dispose of property, (2) intended the disposition to occur on his death and (3) intended the instrument accomplished this disposition

Question 25

Attested will execution

Answer 25

1. the will or codicil must be in writing 2. The will or codicil must be signed by the testator (or by agent at the testator's direction and in their presence) 3. There are two attesting disinterested witnesses Conscious presence test: presence requirement met if each party (witness and testator) is conscious of whether the other parties were and what they were doing, and the signing took place within the general awareness of other parties Minority: scope of vision test 4. The testator signed the will (or acknowledged previous signature) in each of the witness' presence 5. The witnesses signed in the testator's presence

Question 26

UPC attested will

Answer 26

Attested will is valid if either (1) attested by two competent witnesses OR (2) is signed by a notary

Question 27

interested witnesses

Answer 27

Common law: witness who was a beneficiary is not competent as witness, will cannot be probated State law: will valid but witness's gifts purged UPC: gifts to interested witnesses are not purged and will is valid

Question 28

harmless error in will formation

Answer 28

UPC: harmless error test, court can ignore harmless error if will proponent establishes by clear and convincing evidence that the testator intended the document be in their will

Question 29

holographic wills

Answer 29

will that is entirely in testator's handwriting and has no attesting witnesses States vary on how much of will is in testator's handwriting to be valid (UPC: holographic wills must have material terms in handwriting) Must have testator's signature Most states recognizes holographic wills and handwritten changes made by testator after the will is completed

Question 30

ademption by extinction

Answer 30

failure of gift because property is no longer in testator's estate at time of their death applies only to specific devises or bequests

Question 31

Partial ademption

Answer 31

If testator devises large tract of land then conveys land during their life, the beneficiary takes the remaining portion exceptions: replacement property, balance of purchase money, proceeds of condemnation award or insurance, proceeds of sale by guardian

Question 32

ademption by satisfaction

Answer 32

a testamentary gift may be satisfied in whole/in party by inter vivos transfer from testator to beneficiary after the execution of the will IF the testator intends the transfer to have that effect - most states require writing or specific instruction UPC: ademption by satisfaction does not apply unless testator provides contemporaneous writing or devisee acknowledges so in writing

Question 33

exoneration of liens

Answer 33

Common law: liens on specifically devised property are exonerated (paid off with estate funds) UPC and majority: liens on specifically devised property are NOT exonerated unless will directs (Beneficiary takes property subject to debt)

Question 34

abatement

Answer 34

reducing testamentary gifts where estate assets are insufficient to pay all claims against the estate/satisfy bequests and devises

Question 35

order of abatement

Answer 35

1. Property passed by intestacy 2. Residuary estate 3. General legacies 4. Demonstrative legacies 5. Specific bequests and devises

Question 36

What happens if beneficiary predeceases testator?

Answer 36

Gift lapses. Distribution of lapsed gifts is controlled by will's express terms, anti-lapse statutes, residuary clause, and intestacy

Question 37

Anti-lapse statutes

Answer 37

Nearly all states: save the gift if the predeceasing beneficiary was of a specified degree of relationship to the testator (descendant of testator, testator's parent, or testator's grandparent) and left descendants who survived testator - Surviving descendants take by substitute

Question 38

Will's survivor provisions and anti-lapse statutes

Answer 38

Statute applies unless contrary provision in will Majority: words of survivorship sufficient, anti-lapse statute doesn't apply UPC: words of survivorship insufficient, anti-lapse statue does apply

Question 39

Will interpretation

Answer 39

§ Fact that testator left will indicates intent to avoid intestacy Of the two or more contradictory provisions in a will, the last one prevails The will is construed as a whole Words are given their ordinary and grammatical meaning unless clear that testator intended otherwise Technical words are given their technical meaning unless clear that testator intended otherwise Attempt to give effect to all words testator included in will

Question 40

patent ambiguity

Answer 40

provision is facially ambiguous and fails to convey any meaning Traditional view: extrinsic evidence not admissible to correct Modern view: extrinsic evidence is admissible

Question 41

Latent (hidden) ambiguity

Answer 41

provision is clear on face but cannot be carried out without further clarification Court will consider extrinsic evidence

Question 42

Mistake (no apparent ambiguity)

Answer 42

Traditionally: plain meaning rule: extrinsic evidence cannot be use to disturb a will's clear meaning Modern rule: can bring in extrinsic evidence if the evidence is significant and assists court in carrying out testator's intent

Question 43

Incorporation by reference

Answer 43

Testator may incorporate an extraneous document into will by reference if (1) Will manifests intent to incorporate the document (2) Document is in existence at the time the will is executed and (3) The document is sufficiently described in the will

Question 44

tangible personal property list

Answer 44

Some States and MPC: a testator can refer to a list specifying the distribution of items, where testator can write/alter list AFTER executing will

Question 45

Acts or facts of independent significance

Answer 45

something outside of a will which has a purpose other than disposing of property at death examples Specific gifts of general nature (i.e. my cars) Class gift designations (to all my children) Gifts to "my spouse" Gifts of contents ("I leave my box" while changing box contents during life)

Question 46

Conditional wills

Answer 46

will that is to be operative only upon the occurrence/nonoccurrence of a certain event - Courts interpret wills to be general, not conditional (interpret against condition if possible ) - May interpret condition as a motive - Parol evidence not admissible to show will absolute on its face is meant to be conditional

Question 47

Codicil

Answer 47

modification of previously executed will, must be executed w/same formalities

Question 48

Republication by codicil

Answer 48

will and codicil are treated as one instrument speaking from the date of last codicil's execution

Question 49

Validation of prior invalid wil

Answer 49

-Valid codicil is viewed as impliedly incorporating a defective will by reference, thus validating the will - Invalid will cannot be republished

Question 50

Pour-over gift to inter vivos trust

Answer 50

Pour over provision: provisioning will making a gift to an inter vivos trust most states; testator can make a gift to a trustee of an inter vivos trust notwithstanding the trust may be amended/revoked after execution Trust may be created before or after the testator executes will Property will be governed by all trust amendments If trust is revoked, gift fails Trust need not be funded prior to death

Question 51

Integration

Answer 51

Person probating will must show the pages present at time of execution are all present at time of probate

Question 52

Joint wills

Answer 52

single instrument executed for 2+ testators, intended to be the will of each Unadvisable, difficult to manage and probate

Question 53

Reciprocal or mutual wills

Answer 53

separate wills executed by two or more testators that have substantially similar provisions

Question 54

Contractual wills

Answer 54

will executed or not revoked as consideration for a contract - governed by contract law - contract becomes irrevocable upon first testator's death - upon breach, remedy is constructive trust if party dies in reliance of contract

Question 55

Powers of appointment

Answer 55

authority granted to a person, enabling that person to designate, within the limits prescribed by the creator of the power, the people who shall take and the manner of taking

Question 56

General power of appointment

Answer 56

exercisable in favor of anyone including the donee, their estate, their creditors, and the creditors of their estate

Question 57

Special power

Answer 57

in favor of a LIMITED class of appointees (does not include the donee, their estate, their creditors, and the creditors of their estate)

Question 58

Marriage following execution of will

Answer 58

Majority: marriage following will execution has no effect on earlier will UPC and minority: new spouse takes intestate share as "omitted spouse unless: - Will makes provisions for new spouse - Omission was intentional - Will was made in contemplation of marriage

Question 59

divorce or marriage anulment

Answer 59

Majority: divorce following execution of will revokes all gifts and fiduciary appointments for former spouse UPC: divorce also revokes gifts/fiduciary appointments in favor of former spouse's relatives not related to the testator

Question 60

Pretermitted children

Answer 60

if testator fails to provide in their will for any child born/adopted after will's execution, the child takes a share via statute

Question 61

Revocation by physical act

Answer 61

testator can revoke by burning, tearing, canceling, or obliterating a material portion of will with intent to revoke intent to revoke must exist when will is destroyed proxy will revocation OK partial revocation OK if sufficient evidence testator made changes

Question 62

revocation by written instrument

Answer 62

All or part of will may be revoked of altered by a subsequent instrument executed with same formalities as a will

Question 63

express revocation

Answer 63

subsequent instrument may expressly revoke earlier will

Question 64

revocation by inconsistency

Answer 64

If new instrument completely disposes of testator's property, old will is completely revoked by inconsistency If new instrument partially disposes of testator's property, old will is revoked to the extent of inconsistent provisions

Question 65

presumption of no revocation

Answer 65

if will is found in normal location and no suspicious circumstances

Question 66

Presumption of revocation:

Answer 66

if will was last seen in testator's possession or under their control, but the OG will cannot be found after death or is found in mutilated condition, rebuttable presumption exists that testator revoked will

Question 67

lost or destroyed wills; admitted when

Answer 67

party can prove (1) valid execution, (2) cause of nonproduction, and (3) the contents of the will

Question 68

Express conditional revocation (rare)

Answer 68

testator may state in the revoking instrument that the revoking instrument is effective upon happening of a named event

Question 69

Doctrine of dependent relative revocation

Answer 69

applies when testator revoked will 1 under belief that will 2 would be effective. But-for the mistaken belief, testator would not have revoked the will

Question 70

Uniform Probate Code: harmless error statute

Answer 70

Proponent must establish by clear and convincing evidence that decedent intended the document which does not meet technical requirements for valid will to be a partial or complete revocation of a will or an alteration of a will

Question 71

protection of surviving spouse; elective shares

Answer 71

spouse has an election to take statutory share of decedent's estate instead of taking under the decedent's will typically 1/3 if decedent is survived by descendants 1/2 if no descendants

Question 72

protection of accidentally omitted children

Answer 72

§ Most states provide forced share to child born/adopted after will's execution UPC: if a testator fails to provide in their will for a living child solely because testator believed child was dead, the child's shares in estate as if omitted afterborn/adopted usually intestate share; may be entitled to bequests to other children (not other beneficiaries)

Question 73

Circumstances providing no protection to pretermitted child

Answer 73

Testator had other children at time will was executed but left substantially all of estate to parent of omitted child Omission appears to be intention Testator provided for omitted child by transfer outside of will in lieu of testamentary gift

Question 74

grounds for contest

Answer 74

1. insane delusion 2. undue influence 3. duress 4. fraud 5. mistake

Question 75

Insane delusion

Answer 75

belief in facts that do not exist and that no rationally person would believe exist Destroys testamentary capacity if there is a connection between the disposition of property and the insane delusion

Question 76

Undue influence

Answer 76

contestants must establish (1) the influence existed and was exerted, (2) the effect of the influence was to over power the mind and free will of testator and (3) the resulting testamentary disposition would not have been executed but for the influence (causation) Evidence to prove: - Unnatural dispositions - Opportunity or access to testator - Confidential or fiduciary relationship between parties; - Presumption of undue influence if (1) beneficiary had confidential relationship with testator and (2) beneficiary was active in procuring, drafting, or executing the will -No automatic presumption between spouses -Attorney as drafter and beneficiary often voids gifts unless related/ethical rule violations Ability of testator to resist Beneficiary's involvement with drafting/execution

Question 77

Duress

Answer 77

form of undue influence, violent conduct

Question 78

Mistake

Answer 78

error not caused by evil conduct

Question 79

mistake in execution

Answer 79

testator is in error regarding identity or contents of instrument, lacks testamentary intent Extrinsic evidence admissible Some courts deny relief

Question 80

mistake in inducement

Answer 80

no relief, court cannot fix unless inducement in face of will

Question 81

No-contest clauses

Answer 81

clause in will providing that beneficiary forfeits their interest if they contest the will and lose Majority: no forfeiture if probable cause for contesting will - Forfeiture for bad faith Minority rule: no contest clause is given full effect

Question 82

order of probate claims

Answer 82

1. Administration expenses 2. Funeral expenses and expenses of the last illness 3. Family allowance 4. Debts given preference under federal law 5. Secured claims 6. Judgments entered against the decedent during lifetime 7. Other claims