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Bar Prep > Wills > Flashcards

Wills Flashcards

1
Q

What kind of property cannot pass by will?

A

Non-probate property

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2
Q

What are the 4 most common types of non-probate property?

A

Insurance awards
Trust property
Rights of survivorship
Pay-on-death arrangements

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3
Q

Unless otherwise stated, how much does a surviving spouse get thru intestate?

A

All kids together-All of the estate
Mixed family-1/2 the estate, plus $ amount in some states.

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4
Q

What is the majority view for intestate property division?

A

Per capita with representation

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5
Q

Per capita with representation intestate transfer works how?

A
  1. Divide property by equal shares at 1st level of survivor.
  2. Those alive take share, those dead it passes down to the dead’s descendants.
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6
Q

What is the modern (UPC) intestate scheme?

A

Per capita at each generation

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7
Q

How does Per Capita at each Generation work?

A
  1. Divide property by equal shares at 1st level of survivor.
  2. Those alive take share.
  3. Remaining shares are divided equally at the next generation of survivors.
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8
Q

What is the minority view for intestate property division?

A

Strict per Stirpes

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9
Q

How does Strict Per Stirpes work?

A
  1. Divide property by testator’s living children, or those with descendants.
  2. Property is passed down from there to those alive.
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10
Q

What is the order of intestate succession with no children?

A

Parents, then descendants of parents
Grandparents, then their descendants
Nearest kin of mother and father (unless laughing heirs statute)
The State

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11
Q

3 rules about adopted children?

A
  1. Treated same as regular children.
  2. Natural family cutoff from intestacy.
  3. Equitable Adoption works.
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12
Q

Do step-kids and foster kids take under intestacy?

A

Not unless equitable adoption applies.

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13
Q

What is the rule for non-marital children under intestacy?

A

Always takes from mother.
Must establish father before taking. (marriage works)

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14
Q

What happens if there is a disinheritance clause under intestacy?

A

Majority-Ineffective if partial intestacy.
Minority-Given full effect…passes as if disclaimed.

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15
Q

What is the general rule if 2 people die simultaneously?

A

Their property passes as they survived each other.

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16
Q

What are the 3 requirements for a Disclaimer (refuse property) to be effective?

A
  1. Can’t have already accepted.
  2. Signed writing describing property.
  3. File within a reasonable time. (9 months usually).
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17
Q

What happens if one feloniously and intentionally killed the testator?

A

The property passes as thought the murderer is already dead.

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18
Q

When can a lifetime gift be considered part of the recipient’s probate share?

A

Only if it was intended to be thru written evidence from donor or recipient.

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19
Q

If an inter vivos gift is found to be an advancement to the recipient’s probate share of property, how to distribution work?

A

Add the value of the gift back to the property before dividing the property up, then subtract the value from the recipient’s share.

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20
Q

What are the 3 main requirements for a testator to create a will?

A

Legal capacity
Testamentary capacity
Testamentary intent

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21
Q

What 3 things are needed for testamentary capacity?

A

understand the act
understand the property
understand the natural objects of bounty

22
Q

What is legal capacity?

A

at least 18 and of sound mind

23
Q

What is testamentary intent?

A

PRESENT intent to create a will

24
Q

What are the 3 extra requirements for an attested will?

A

Writing
signed
2 witnesses

25
Q

Who can sign a will?

A

The testator, OR
Someone at their direction in their presence.

26
Q

What are the circumstances needed for the 2 witnesses to attest to a will?

A

Majority-Sign in the conscious presence of testator.
Minority-Sign within the scope of vision of testator.

27
Q

When a signing witness is also a beneficiary under the will, his share is purged unless what 3 possibilities?

A

There are 2 other witnesses,
Witness takes lesser gift.
UPC-Doesn’t matter.

28
Q

Under the UPC, harmless error in executing a will is okay if proved thru what?

A

clear and convincing evidence

29
Q

What 2 extra requirements are there for holographic wills?

A

Material provisions in testator’s handwriting,
Signature

30
Q

What documents will courts constitute as being part of the will? (integration)

A

The ones present during execution of the will as evidenced thru: attachment, internal coherence, and orderly plan

31
Q

What is a codicil?

A

A later testamentary instrument executed with the same formalities as a will intended to alter the will.

32
Q

What are the 3 requirements for an incorporation by reference to be included as part of the will?

A

The extrinsic document must have existed during execution of will,
it is described in the will,
the will shows intent to incorporate

33
Q

What is the exception to the main rule regarding incorporation by reference extrinsic documents?

A

Lists of tangible property

34
Q

Rule of construction is that if 2 inconsistent provisions, go with?

A

The most recent

35
Q

How will a court fix a patent (obvious) ambiguity?

A

With extrinsic evidence, but not to fill in blanks.

36
Q

How will courts fix latent (hidden) ambiguities?

A

With extrinsic evidence.

37
Q

How do you determine if an ambiguity if latent or patent?

A

Is it ambiguous on its face to an uninterested party?

38
Q

What is a pour-over will?

A

When a decedent makes a gift thru will that goes to a trust.

39
Q

What are the 3 main ways a will can be revoked?

A

Operation of law
By a writing
By physical act

40
Q

How can operation of law revoke a will?

A

Divorce revokes gifts in favor of former spouse.

41
Q

What is required for a written revocation of a will?

A

Same formalities as a will

42
Q

When will the act of destroying a will revoke it?

A

When there was intent to revoke it.

43
Q

What are the 3 requirements for a court to disregard a will revocation? (dependent relative revocation)

A

Revocation premised on mistake,
Wouldn’t have revoked without the mistake,
Disregarding come closer to testator’s intent.

44
Q

Contracts to make a will or not to revoke a will are established how?

A

Either having a separate contract referenced to in the will, or by having the contract terms in the will itself.

45
Q

What are mutual wills?

A

Separate wills by 2 or more people containing substantially similar terms.

46
Q

What are joint wills?

A

A single will executed by two people and intended as a will for each.

47
Q

What is a lapse?

A

When a donee dies before the donor.

48
Q

How do most anti-lapse statutes work?

A

The dead beneficiary’s estate gets the property from donor.

49
Q

What is ademption by extinction?

A

When specifically designated property is no longer in the estate at the time of testators death.

50
Q
A

Bar Prep (11 decks)

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