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Wills Flashcards

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1
Q

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

A

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

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2
Q

In general: intestacy applies when

A

○ 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

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3
Q

What is the applicable law for intestacy?

A

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

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4
Q

Interstate share of surviving spouse under common law

A

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

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5
Q

Interstate share of surviving spouse under modern law

A

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

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6
Q

classic per stirpes

A

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

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7
Q

Majority rule: per capita with representation

A

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

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8
Q

Modern trend: per capita at each generational level

A

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

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9
Q

shares of other heirs

A

○ 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

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10
Q

Adopted children

A

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

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11
Q

Stepchildren and foster children

A

no inheritance rights

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12
Q

Adoption by estoppel

A

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

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13
Q

nonmarital children

A

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

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14
Q

half siblings

A

treated as whole siblings

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15
Q

posthumous children

A

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

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16
Q

Disinheritance clause

A

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

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17
Q

Advancement

A

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

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18
Q

what if the advancement recipient predeceases testator?

A

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

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19
Q

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

A

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

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20
Q

Disclaimer requirements

A

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

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21
Q

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

A

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

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22
Q

Out-of-state and foreign wills

A

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

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23
Q

testamentary capacity

A

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
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24
Q

Testamentary intent

A

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

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25
Q

Attested will execution

A
  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
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26
Q

UPC attested will

A

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

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27
Q

interested witnesses

A

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

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28
Q

harmless error in will formation

A

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

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29
Q

holographic wills

A

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

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30
Q

ademption by extinction

A

failure of gift because property is no longer in testator’s estate at time of their death

applies only to specific devises or bequests

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31
Q

Partial ademption

A

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

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32
Q

ademption by satisfaction

A

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

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33
Q

exoneration of liens

A

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)

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34
Q

abatement

A

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

35
Q

order of abatement

A
  1. Property passed by intestacy
  2. Residuary estate
  3. General legacies
  4. Demonstrative legacies
  5. Specific bequests and devises
36
Q

What happens if beneficiary predeceases testator?

A

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

37
Q

Anti-lapse statutes

A

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

38
Q

Will’s survivor provisions and anti-lapse statutes

A

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

39
Q

Will interpretation

A

§ 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

40
Q

patent ambiguity

A

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

41
Q

Latent (hidden) ambiguity

A

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

42
Q

Mistake (no apparent ambiguity)

A

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

43
Q

Incorporation by reference

A

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

44
Q

tangible personal property list

A

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

45
Q

Acts or facts of independent significance

A

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)

46
Q

Conditional wills

A

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
47
Q

Codicil

A

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

48
Q

Republication by codicil

A

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

49
Q

Validation of prior invalid wil

A

-Valid codicil is viewed as impliedly incorporating a defective will by reference, thus validating the will

  • Invalid will cannot be republished
50
Q

Pour-over gift to inter vivos trust

A

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

51
Q

Integration

A

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

52
Q

Joint wills

A

single instrument executed for 2+ testators, intended to be the will of each

Unadvisable, difficult to manage and probate

53
Q

Reciprocal or mutual wills

A

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

54
Q

Contractual wills

A

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

55
Q

Powers of appointment

A

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

56
Q

General power of appointment

A

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

57
Q

Special power

A

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

58
Q

Marriage following execution of will

A

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

59
Q

divorce or marriage anulment

A

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

60
Q

Pretermitted children

A

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

61
Q

Revocation by physical act

A

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

62
Q

revocation by written instrument

A

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

63
Q

express revocation

A

subsequent instrument may expressly revoke earlier will

64
Q

revocation by inconsistency

A

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

65
Q

presumption of no revocation

A

if will is found in normal location and no suspicious circumstances

66
Q

Presumption of revocation:

A

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

67
Q

lost or destroyed wills; admitted when

A

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

68
Q

Express conditional revocation (rare)

A

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

69
Q

Doctrine of dependent relative revocation

A

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

70
Q

Uniform Probate Code: harmless error statute

A

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

71
Q

protection of surviving spouse; elective shares

A

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

72
Q

protection of accidentally omitted children

A

§ 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)

73
Q

Circumstances providing no protection to pretermitted child

A

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

74
Q

grounds for contest

A
  1. insane delusion
  2. undue influence
  3. duress
  4. fraud
  5. mistake
75
Q

Insane delusion

A

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

76
Q

Undue influence

A

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

77
Q

Duress

A

form of undue influence, violent conduct

78
Q

Mistake

A

error not caused by evil conduct

79
Q

mistake in execution

A

testator is in error regarding identity or contents of instrument, lacks testamentary intent

Extrinsic evidence admissible
Some courts deny relief

80
Q

mistake in inducement

A

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

81
Q

No-contest clauses

A

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

82
Q

order of probate claims

A
  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
83
Q
A

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