Wills Flashcards
Intestate Succession
Distributing assets not disposed of by will because no will exists, will is denied probate, or will did not dispose of all property
Intestate share of surviving spouse
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
Intestate share of children and other descendants
portion of estate that surviving spouse does not receive; if no spouse, then entire state is distributed amongst children or other descendants
Intestate share of heir
no surviving spouse or descendants -> parents, then to parents descendants, grandparents, then to grandparents descendants
Adopted children
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
Stepchildren or foster children
generally have no inheritance rights; exception: adoption by estoppel
non-marital children
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
Simultaneous deaths of decedent and beneficiary
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
Disclaimers
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
Decedents death caused by heir or beneficiary
property passes as though the killer predeceased the victim
advancement
lifetime gift made to an heir with intent that gift be applied against any share heir inherits from donor’s estate
advancement under common law
lifetime gift to child is presumed to be an advancement
advancement under modern law
lifetime gift is not an advancement unless (1) declared as such in writing by donor OR (2) acknowledged as such by writing by donee
Will
an instrument executed with certain formalities that directs how a person’s property should be disposed of at their death
Attested Will Requirements
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
Will requirements to be valid
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
Codicil
instrument that amends or alters valid will in part or in whole
Holographic Will
a handwritten will by testator without witnesses; requires intent for writing to be a will and signature of testator
Incorporation by reference
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
Lapsed gift
When a will beneficiary dies during testator’s lifetime, the gift will fail and and into residuary estate as undisposed of property
Anti-lapse statute
Saves otherwise lapsed gift by leaving gifts to the deceased beneficiaries’ descendants - testator and beneficiary must have certain degree of relationship
Doctrine of Ademption
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
Accessions (increases to property)
before testator’s death: goes to general estate and beneficiary
after testator’s death: beneficiary
Methods of revoking will
operation of law; by subsequent instrument; by physical act
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
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)
revocation by physical act
burning, shredding, or other acts must show intent to revoke part or whole will
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
Dependent Relative Revocation
allows court to disregard a revocation if it is determined that the revocation was made by mistake of law or fact
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
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
