Wills Flashcards
What is a codicil?
Supplement that either amends or revokes a decedent’s will in whole or part.
Intestacy - Simultaneous death
Uniform Probate Code follows the Uniform Simultaneous Death Act to control situation where decedent and heir die at the same time. If there is insufficient evidence to determine who survived whom, the property will pass as though each had predeceased the other.
An heir must be proven by clear and convincing evidence to have survived the decedent by 120 hours .
Intestacy - Decedent survived by spouse and shared descendants
Surviving spouse takes entire estate
Intestacy - Decedent is survived by a parent and spouse but no descendent
Surviving spouse takes $300,000 and 75% of remainder of estate
Intestacy - Decedent is survived by spouse and shared descendants, and spouse has other kids
Surviving spouse takes $225,000 and one half of remaining property
Intestacy - Decedent is survived by spouse and child not related to surviving spouse
Surviving spouse takes $150,000 and 50% of remaining property
Intestacy - Person dies without heirs
If decedent dies without heirs, property with escheat to the state
Intestacy - Who qualifies as an issue?
- Decedent’s lineal line - must be parent-child relationship.
- adoptive children inherit just like biological children. Adoption severs the child’s relationship with his or her natural parents.
- step parent adoption – creates a child/parent relationship for the purposes of inheritance, but does not prevent the adoptee from inheriting from the other genetic parent.
- Posthumously born children - if child is born within 280 days of the husband’s death, there is a rebuttable presumption that the child is the husband’s and child will inherit from husband.
Method of calculating issue’s share - Per Stirpes
Shares are divided equally according to the decedent’s lineal line. Divide shares into total number of children who survive or leave issue who survive, and then divide by representation. Allows a surviving child to stand in the place of his deceased parent.
Method of calculating issue’s share - Per Capita with representation
Divide the property equally at the first generation where a member survives the decedent. If they are deceased members at that first generation, their shares drop-down to their surviving issue at the next generation. If deceased member of generation is not survived by living issue, then that member does not take a share.
Method of calculating issue’s share - Per capita at each generation
Divide property into equal shares at the first generation where there is a surviving member. Instead of passing a deceased member’s share by representation, this method pools the remaining shares after each generation.
Formality requirements for execution of wills
- Signed writing;
- Witnesses; and
- Testamentary intent
Formality of wills - Location of signature
In some states, the signature must be at the end of the document. In other states (and the UPC), the signature can be located on any part of the will. Key thing is whether the testator intended her name to be her signature.
Formality of wills - Witnesses
Most states required that will be signed in presence of two witnesses. Witnesses must also sign document, but not necessarily at the same time.
Most jurisdictions: Testator must sign or acknowledge will in presence of witnesses; and witnesses must sign in presence of testator. Under UPC, witnesses must sign within a reasonable time of the original signature by the testator.
Formality of wills - What counts as ‘in the presence’ of a witness?
Line of sight (traditional approach): Witness and testator must observe or have the opportunity to observe signing of the will.
Conscious presence (modern approach): Witness or testator must be aware the act is being performed, even if they cannot see it. UPC adopts this approach only for situation where will is signed by another on behalf of testator.
Formality of wills - Interested witnesses
An interested witness has direct financial interest in the will.
Under the common law, an interested witness is not competent to witness the will.
Purge theory (adopted by many states): If a witness (or witnesses’ spouse) has direct financial interest under will, it does not forget validity of will BUT probate court will purge any gain in excess of what the witness would take under intestate succession. This is unless there were two other disinterested witnesses OR interested witness would take a share under intestate succession AND interested witness takes the lesser of intestate share or bequest.
UPC abolished interested witness doctrine
Present testamentary intent
Person making a will must have the present intent to make a testamentary transfer
Will - Failure to satisfy formalities
Common law (majority): Strict compliance required
Modern view (UPC and minority): Even if formality is not met, a court will nevertheless admit a will to probate if there is a clear and convincing evidence that the decedent intended document to serve as his will.
Holographic wills
Informal, handwritten will, which does not need to be witnessed, but must be signed to be valid.
In some jurisdictions, any markings not in testator’s handwriting invalidate the will. Under UPC, only requires that material provisions be in testator’s handwriting.
Intent is important - need words or phrases that express intent. UPC expressly authorizes looking to extrinsic evidence to establish intent.
Substitutes to a will (non-probate transfers)
Decedent can avoid probate by transferring property via a will substitute, including:
- Joint Tenancy
- revocable trust
- pour-over will
- POD contract
- Deed
Revoking a will
Wills can be altered or revoked at any time up until testator’s death, either in full or in part.
Three ways to revoke:
- Subsequent instrument;
- physical act; or
- Operation of law
Revoking a will - subsequent instrument
Express revocation - Later writing which expressly revokes prior will.
Implied revocation - Later writing is inconsistent with prior wills. So long as later writing is validly executed, later document controls.
Revoking a will - Physical Act
Testator can revoke a will in part or whole by engaging in physical act of destruction, such as tearing, burning or crossing out. Testator must intend for physical act to revoke the will.
Majority requires that particular language in question must be destroyed, but UPC requires that destructive act affect some part of the will.
Lost wills
Creates a rebuttable presumption that testator revoked will by physical act. Burden is on receiver to show will’s existence by clear and convincing evidence.
Duplicate originals can be admitted, but not copies.
