Wills

Question 1

Intestate Succession

Answer 1

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

Question 2

Intestate share of surviving spouse

Answer 2

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

Question 3

Intestate share of children and other descendants

Answer 3

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

Question 5

Intestate share of heir

Answer 5

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

Question 6

Adopted children

Answer 6

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

Question 7

Stepchildren or foster children

Answer 7

generally have no inheritance rights; exception: adoption by estoppel

Question 8

non-marital children

Answer 8

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

Question 9

Simultaneous deaths of decedent and beneficiary

Answer 9

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

Question 10

Disclaimers

Answer 10

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

Question 11

Decedents death caused by heir or beneficiary

Answer 11

property passes as though the killer predeceased the victim

Question 12

advancement

Answer 12

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

Question 13

advancement under common law

Answer 13

lifetime gift to child is presumed to be an advancement

Question 14

advancement under modern law

Answer 14

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

Question 15

Will

Answer 15

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

Question 16

Attested Will Requirements

Answer 16

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

Question 17

Will requirements to be valid

Answer 17

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

Question 18

Codicil

Answer 18

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

Question 19

Holographic Will

Answer 19

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

Question 20

Incorporation by reference

Answer 20

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

Question 21

Lapsed gift

Answer 21

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

Question 22

Anti-lapse statute

Answer 22

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

Question 23

Doctrine of Ademption

Answer 23

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

Question 24

Accessions (increases to property)

Answer 24

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

Question 25

Methods of revoking will

Answer 25

operation of law; by subsequent instrument; by physical act

Question 26

Revocation by operation of law

Answer 26

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

Question 27

revocation by written instrument

Answer 27

subsequent will, codicil, or other writing revoking part or all of previous will must meet testamentary formalities (intent, capacity, signatures, and witness)

Question 28

revocation by physical act

Answer 28

burning, shredding, or other acts must show intent to revoke part or whole will

Question 29

revival of revoked will

Answer 29

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

Question 30

Dependent Relative Revocation

Answer 30

allows court to disregard a revocation if it is determined that the revocation was made by mistake of law or fact

Question 31

Grounds to contest will

Answer 31

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

Question 32

Abatement

Answer 32

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