Wills Flashcards

1
Q

Intestate Succession

A

Distributing assets not disposed of by will because no will exists, will is denied probate, or will did not dispose of all property

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2
Q

Intestate share of surviving spouse

A

if descendants exists: spouse gets 1/3 or 1/2 of decedent’s estate; if descendants are also of surviving spouse, then spouse takes entire estate
no descendants exists: spouse usually takes entire estate

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3
Q

Intestate share of children and other descendants

A

portion of estate that surviving spouse does not receive; if no spouse, then entire state is distributed amongst children or other descendants

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4
Q
A
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5
Q

Intestate share of heir

A

no surviving spouse or descendants -> parents, then to parents descendants, grandparents, then to grandparents descendants

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6
Q

Adopted children

A

adopted persons are treated the same as a natural child of adopting parents; AC can inherit from AP, AP can inherit through AC; no inheritance rights from natural parents

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7
Q

Stepchildren or foster children

A

generally have no inheritance rights; exception: adoption by estoppel

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8
Q

non-marital children

A

can inherit from mother, can inherit from father if (1) father married mother after child was born (2) proven as father after death of man (3) paternity suit adjudication

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9
Q

Simultaneous deaths of decedent and beneficiary

A

Uniform Simultaneous Death Act: property passes as though beneficiary survived decedent
120-hour rule: heir or beneficiary must survive decedent by 120 hours to take as beneficiary

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10
Q

Disclaimers

A

Beneficiary refuses to accept gift, and interest passes as though disclaimant predeceased decedent; must be (1) in writing (2) irrevocable (3) filed within 9 months of decedents death

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11
Q

Decedents death caused by heir or beneficiary

A

property passes as though the killer predeceased the victim

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12
Q

advancement

A

lifetime gift made to an heir with intent that gift be applied against any share heir inherits from donor’s estate

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13
Q

advancement under common law

A

lifetime gift to child is presumed to be an advancement

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14
Q

advancement under modern law

A

lifetime gift is not an advancement unless (1) declared as such in writing by donor OR (2) acknowledged as such by writing by donee

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15
Q

Will

A

an instrument executed with certain formalities that directs how a person’s property should be disposed of at their death

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16
Q

Attested Will Requirements

A

Most states: (1) writing (2) signed by testator (3) witnessed by 2 individuals
UPC: (1) writing (2) signed by testator (3) signed by 2 witnesses or notarized

17
Q

Will requirements to be valid

A

testamentary intent: testator intended to create a will
testamentary capacity: must be 18 and of sound mind
meets will requirements: writing signed by testator with 2 witnesses or notarized

18
Q

Codicil

A

instrument that amends or alters valid will in part or in whole

19
Q

Holographic Will

A

a handwritten will by testator without witnesses; requires intent for writing to be a will and signature of testator

20
Q

Incorporation by reference

A

documents not present at time of will execution may be incorporated if (1) document exists at time of will execution (2) sufficiently describes and identifies writing (3) intent to incorporate document

21
Q

Lapsed gift

A

When a will beneficiary dies during testator’s lifetime, the gift will fail and and into residuary estate as undisposed of property

22
Q

Anti-lapse statute

A

Saves otherwise lapsed gift by leaving gifts to the deceased beneficiaries’ descendants - testator and beneficiary must have certain degree of relationship

23
Q

Doctrine of Ademption

A

When SPECIFIC gifts are destroyed, sold, given away, or otherwise disposed of before the testator’s death the intended beneficiary does not get a replacement of that specific gift; does not apply to general or demonstrative gifts

24
Q

Accessions (increases to property)

A

before testator’s death: goes to general estate and beneficiary
after testator’s death: beneficiary

25
Methods of revoking will
operation of law; by subsequent instrument; by physical act
26
Revocation by operation of law
Divorce: revokes all gift to former spouse but rest of will is valid pretermitted children (born/adopted after will execution): will is revoked to extent that allows child's share to come out of residuary estate
27
revocation by written instrument
subsequent will, codicil, or other writing revoking part or all of previous will must meet testamentary formalities (intent, capacity, signatures, and witness)
28
revocation by physical act
burning, shredding, or other acts must show intent to revoke part or whole will
29
revival of revoked will
a will that was revoked by a subsequent will remains revoked even after the subsequent is also revoked unless there is a showing that the original will was to be revived
30
Dependent Relative Revocation
allows court to disregard a revocation if it is determined that the revocation was made by mistake of law or fact
31
Grounds to contest will
must be done within 6 months of will being probated for (1) lack of testamentary capacity or intent (2) defective execution of will (3) undue influence, duress, mistake, or fraud
32
Abatement
gifts are reduce because debt of estate are greater than asset to cover all gifts made; order of abatement (1) property passing by intestacy (2) residuary gift (3) general gifts (4) specific gifts