Wills Flashcards
What is removed from decedent’s assets before probate distribution?
○ Life insurance
○ Joint tenancies
○ Tenancies by entirety
○ Inter vivos trusts
○ Bank account trusts
○ Deeds
○ Contracts
Inter vivos gifts
In general: intestacy applies when
○ 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
What is the applicable law for intestacy?
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
Interstate share of surviving spouse under common law
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
Interstate share of surviving spouse under modern law
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
classic per stirpes
one share is created for each living child, one share is created for each deceased child with at least one surviving descendant
Majority rule: per capita with representation
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
Modern trend: per capita at each generational level
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
shares of other heirs
○ 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
Adopted children
treated same as biological children of adopting parents; no inheritance from bio parents in either direction
Stepchildren and foster children
no inheritance rights
Adoption by estoppel
child can inherit from stepparent or foster parent when legal custody of child is gained under an unfulfilled agreement to adopt
nonmarital children
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
half siblings
treated as whole siblings
posthumous children
If person is in gestation at the time of intestate’s death, most states allow that person to be an heir
Disinheritance clause
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
Advancement
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
what if the advancement recipient predeceases testator?
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
What if decedent dies “simultaneously” with devisee/donee/heir?
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
Disclaimer requirements
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
What if the disclaimer is an infant, incompetent, or deceased?
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
Out-of-state and foreign wills
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
testamentary capacity
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
Testamentary intent
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
Attested will execution
- the will or codicil must be in writing
- The will or codicil must be signed by the testator (or by agent at the testator’s direction and in their presence)
- 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 - The testator signed the will (or acknowledged previous signature) in each of the witness’ presence
- The witnesses signed in the testator’s presence
UPC attested will
Attested will is valid if either (1) attested by two competent witnesses OR (2) is signed by a notary
interested witnesses
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
harmless error in will formation
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
holographic wills
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
ademption by extinction
failure of gift because property is no longer in testator’s estate at time of their death
applies only to specific devises or bequests
Partial ademption
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
ademption by satisfaction
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
exoneration of liens
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)
abatement
reducing testamentary gifts where estate assets are insufficient to pay all claims against the estate/satisfy bequests and devises
order of abatement
- Property passed by intestacy
- Residuary estate
- General legacies
- Demonstrative legacies
- Specific bequests and devises
What happens if beneficiary predeceases testator?
Gift lapses. Distribution of lapsed gifts is controlled by will’s express terms, anti-lapse statutes, residuary clause, and intestacy
Anti-lapse statutes
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
Will’s survivor provisions and anti-lapse statutes
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
Will interpretation
§ 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
patent ambiguity
provision is facially ambiguous and fails to convey any meaning
Traditional view: extrinsic evidence not admissible to correct
Modern view: extrinsic evidence is admissible
Latent (hidden) ambiguity
provision is clear on face but cannot be carried out without further clarification
Court will consider extrinsic evidence
Mistake (no apparent ambiguity)
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
Incorporation by reference
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
tangible personal property list
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
Acts or facts of independent significance
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)
Conditional wills
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
Codicil
modification of previously executed will, must be executed w/same formalities
Republication by codicil
will and codicil are treated as one instrument speaking from the date of last codicil’s execution
Validation of prior invalid wil
-Valid codicil is viewed as impliedly incorporating a defective will by reference, thus validating the will
- Invalid will cannot be republished
Pour-over gift to inter vivos trust
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
Integration
Person probating will must show the pages present at time of execution are all present at time of probate
Joint wills
single instrument executed for 2+ testators, intended to be the will of each
Unadvisable, difficult to manage and probate
Reciprocal or mutual wills
separate wills executed by two or more testators that have substantially similar provisions
Contractual wills
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
Powers of appointment
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
General power of appointment
exercisable in favor of anyone including the donee, their estate, their creditors, and the creditors of their estate
Special power
in favor of a LIMITED class of appointees (does not include the donee, their estate, their creditors, and the creditors of their estate)
Marriage following execution of will
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
divorce or marriage anulment
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
Pretermitted children
if testator fails to provide in their will for any child born/adopted after will’s execution, the child takes a share via statute
Revocation by physical act
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
revocation by written instrument
All or part of will may be revoked of altered by a subsequent instrument executed with same formalities as a will
express revocation
subsequent instrument may expressly revoke earlier will
revocation by inconsistency
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
presumption of no revocation
if will is found in normal location and no suspicious circumstances
Presumption of revocation:
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
lost or destroyed wills; admitted when
party can prove (1) valid execution, (2) cause of nonproduction, and (3) the contents of the will
Express conditional revocation (rare)
testator may state in the revoking instrument that the revoking instrument is effective upon happening of a named event
Doctrine of dependent relative revocation
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
Uniform Probate Code: harmless error statute
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
protection of surviving spouse; elective shares
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
protection of accidentally omitted children
§ 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)
Circumstances providing no protection to pretermitted child
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
grounds for contest
- insane delusion
- undue influence
- duress
- fraud
- mistake
Insane delusion
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
Undue influence
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
Duress
form of undue influence, violent conduct
Mistake
error not caused by evil conduct
mistake in execution
testator is in error regarding identity or contents of instrument, lacks testamentary intent
Extrinsic evidence admissible
Some courts deny relief
mistake in inducement
no relief, court cannot fix unless inducement in face of will
No-contest clauses
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
order of probate claims
- Administration expenses
- Funeral expenses and expenses of the last illness
- Family allowance
- Debts given preference under federal law
- Secured claims
- Judgments entered against the decedent during lifetime
- Other claims