Wills

Question 1

Ways that property can pass through intestate succession

three general ways

Answer 1

1. Decedent dies w/o having made a will
2. Will is denied by probate court
3. Will does not dispose of all the decedent’s property

Examiners love bc they can test wills and intestate succession

Question 2

Which state’s intestacy law applies?

Answer 2

• Person property = law of the decedent’s domicile at death
• Real property = law of forum where property sits

Question 3

Methods of Computing Intestacy Shares

Answer 3

• Majority Approach: Per capita with Representation
• Modern Approach: Per Capita at Each Generational Level
• Common law: Strict Per Stirpes

Question 4

Per Capita w/ Representation

majority rule

Answer 4

Property is divded into equal shares at the first generational level at which there are living takers

Question 5

Per Capita at Each Generational Level

modern trend

Answer 5

initial division is at first generational level which there are living takers but the shares of deceased persons at that level are “bundled and dropped”

Question 6

Nonmarital Children

Answer 6

A nonmarital child inherits from the mother. Generally the child will inherit from their father if:
1. father married mother after child’s birth;
2. man was adjudicated to be father in paternity suit
3. man is proved by clear and convicining evidence as dad during probate procedures

Question 7

Adopted Children

Answer 7

Generally no inheritance distinction between adopted children and biological distinction

Question 8

Requirements of a valid will

Answer 8

testator is at least 18 w/ capacity, intent to create a will, signed by testator in front of two witnesses who saw testator sign or saw testator acknowledge his sig

double check

Question 9

Slayer Statute

Answer 9

When a decedent’s death is caused by the beneficiary, this rule disqualifies killer from taking any interest or benefit from the estate.

Evidentary standard is state dependent.
* muruders always included
* lesser degrees of killing depends on the state

Question 10

Testamentary Capacity

Answer 10

Testatory can understand:
* nature of their act
* nature and extent of their property
* persons who are the natural objects of their bounty
* how the above factors interrelate

Question 11

Proper Execution through (3)

Answer 11

Attested Will
Holographic Will
Harmless Error

Question 12

Attested Will ok if

Answer 12

• writing
• signed (any mark at end of will)
• two witnesses that either witness
• T signing, T acknowledging his signature, or acknowledgement before notary

rebuttable presumption validly executed
self-proving provisions - almost always enough to prove validity

Question 13

Holographic Will ok if

Answer 13

• signed
• material portion in handwriting
• states testator’s intent

Question 14

Harmless Error

Answer 14

Last resort option
* clear and convincing evidence
* of testamentary intent

Question 15

Distributional Hierarchy of an Estate

Answer 15

(1) Property in a contractual agreement, distributed per terms of the K (not part of the probate estate), POD accounts, Retirement, Insurance accounts.

(2) property owed to creditors (including taxes and admin fees)

(3) statutory allowances: family allowance, homestead allowance,
TPP allowance, elective share (if chosen by spouse)

(4) property for which the D left a valid will; distributed per terms of
will
* Specific devises
* Demonstrative
* General
* Residuary
(5) all remaining property; distributed per rules of intestate

Question 16

Ademption is (rule stmt) (and only applies to)

Answer 16

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

only applies to specific devises

Question 17

Abatement: insufficient funds order

Answer 17

Order of abatement:
* residuary–devise of all the rest, residue and remainder
* general–devise of dollar amount
* demonstrative–devise of specfific $ from specific fund
* specific–devise of transfer of property

if not enough left over for all devises -> use fractions to divide distributions