Wills Flashcards
What kind of property cannot pass by will?
Non-probate property
What are the 4 most common types of non-probate property?
Insurance awards
Trust property
Rights of survivorship
Pay-on-death arrangements
Unless otherwise stated, how much does a surviving spouse get thru intestate?
All kids together-All of the estate
Mixed family-1/2 the estate, plus $ amount in some states.
What is the majority view for intestate property division?
Per capita with representation
Per capita with representation intestate transfer works how?
- Divide property by equal shares at 1st level of survivor.
- Those alive take share, those dead it passes down to the dead’s descendants.
What is the modern (UPC) intestate scheme?
Per capita at each generation
How does Per Capita at each Generation work?
- Divide property by equal shares at 1st level of survivor.
- Those alive take share.
- Remaining shares are divided equally at the next generation of survivors.
What is the minority view for intestate property division?
Strict per Stirpes
How does Strict Per Stirpes work?
- Divide property by testator’s living children, or those with descendants.
- Property is passed down from there to those alive.
What is the order of intestate succession with no children?
Parents, then descendants of parents
Grandparents, then their descendants
Nearest kin of mother and father (unless laughing heirs statute)
The State
3 rules about adopted children?
- Treated same as regular children.
- Natural family cutoff from intestacy.
- Equitable Adoption works.
Do step-kids and foster kids take under intestacy?
Not unless equitable adoption applies.
What is the rule for non-marital children under intestacy?
Always takes from mother.
Must establish father before taking. (marriage works)
What happens if there is a disinheritance clause under intestacy?
Majority-Ineffective if partial intestacy.
Minority-Given full effect…passes as if disclaimed.
What is the general rule if 2 people die simultaneously?
Their property passes as they survived each other.
What are the 3 requirements for a Disclaimer (refuse property) to be effective?
- Can’t have already accepted.
- Signed writing describing property.
- File within a reasonable time. (9 months usually).
What happens if one feloniously and intentionally killed the testator?
The property passes as thought the murderer is already dead.
When can a lifetime gift be considered part of the recipient’s probate share?
Only if it was intended to be thru written evidence from donor or recipient.
If an inter vivos gift is found to be an advancement to the recipient’s probate share of property, how to distribution work?
Add the value of the gift back to the property before dividing the property up, then subtract the value from the recipient’s share.
What are the 3 main requirements for a testator to create a will?
Legal capacity
Testamentary capacity
Testamentary intent
What 3 things are needed for testamentary capacity?
understand the act
understand the property
understand the natural objects of bounty
What is legal capacity?
at least 18 and of sound mind
What is testamentary intent?
PRESENT intent to create a will
What are the 3 extra requirements for an attested will?
Writing
signed
2 witnesses
Who can sign a will?
The testator, OR
Someone at their direction in their presence.
What are the circumstances needed for the 2 witnesses to attest to a will?
Majority-Sign in the conscious presence of testator.
Minority-Sign within the scope of vision of testator.
When a signing witness is also a beneficiary under the will, his share is purged unless what 3 possibilities?
There are 2 other witnesses,
Witness takes lesser gift.
UPC-Doesn’t matter.
Under the UPC, harmless error in executing a will is okay if proved thru what?
clear and convincing evidence
What 2 extra requirements are there for holographic wills?
Material provisions in testator’s handwriting,
Signature
What documents will courts constitute as being part of the will? (integration)
The ones present during execution of the will as evidenced thru: attachment, internal coherence, and orderly plan
What is a codicil?
A later testamentary instrument executed with the same formalities as a will intended to alter the will.
What are the 3 requirements for an incorporation by reference to be included as part of the will?
The extrinsic document must have existed during execution of will,
it is described in the will,
the will shows intent to incorporate
What is the exception to the main rule regarding incorporation by reference extrinsic documents?
Lists of tangible property
Rule of construction is that if 2 inconsistent provisions, go with?
The most recent
How will a court fix a patent (obvious) ambiguity?
With extrinsic evidence, but not to fill in blanks.
How will courts fix latent (hidden) ambiguities?
With extrinsic evidence.
How do you determine if an ambiguity if latent or patent?
Is it ambiguous on its face to an uninterested party?
What is a pour-over will?
When a decedent makes a gift thru will that goes to a trust.
What are the 3 main ways a will can be revoked?
Operation of law
By a writing
By physical act
How can operation of law revoke a will?
Divorce revokes gifts in favor of former spouse.
What is required for a written revocation of a will?
Same formalities as a will
When will the act of destroying a will revoke it?
When there was intent to revoke it.
What are the 3 requirements for a court to disregard a will revocation? (dependent relative revocation)
Revocation premised on mistake,
Wouldn’t have revoked without the mistake,
Disregarding come closer to testator’s intent.
Contracts to make a will or not to revoke a will are established how?
Either having a separate contract referenced to in the will, or by having the contract terms in the will itself.
What are mutual wills?
Separate wills by 2 or more people containing substantially similar terms.
What are joint wills?
A single will executed by two people and intended as a will for each.
What is a lapse?
When a donee dies before the donor.
How do most anti-lapse statutes work?
The dead beneficiary’s estate gets the property from donor.
What is ademption by extinction?
When specifically designated property is no longer in the estate at the time of testators death.