Wills Flashcards
Nonprobate Property
Nonprobate property is property that cannot be disposed of by will or passed by intestacy.
Common Examples Include:
- Property in trust
- Inter vivos gifts
- Property passing by right of survivorship
- Life insurance
- Totten trust bank arrangement
- Transfer/pay on death arrangement (bank accounts, securities, deeds)
Intestate Succession Rule
When a decedent dies without a will, their remaining property after their debts and taxes are paid passes to their heirs pursuant to the intestacy statutes.
Property may also pass by intestate succession when a decedent’s will does not dispose of all of the decedent’s property.
What law applies for intestate succession?
Marital Rights: law of domicile at the time the property was acquired
Succession rights:
- Real property: law of situs
- Personal property: law of decedent’s domicile at date of death
What intestate share does a surviving spouse get if decedent is survived by descendants also?
Unlike at common law, under modern law, the spouse is an heir. The share of a surviving spouse varies from state to state.
- In most states, if the decedent leaves descendants as well as a surviving spouse, the spouse takes 1/3 or 1/2 of the estate. Some states give the surviving spouse a specific dollar amount in addition to that.
- Under the Uniform Probate Code (UPC), the surviving spouse takes the entire estate if the decedent is survived by descendants, all of whom are are descendants of the surviving spouse, and the surviving spouse has no other surviving descendant.
What intestate share does a surviving spouse get if decedent is NOT survived by descendants also?
In most states, if the decedent is survived by a spouse but no descendants, the surviving spouse takes the entire estate. In UPC states, however, the spouse takes the entire estate only if the decedent is not survived by descendants or parents.
Descendant definition
Descendants are related to the decedent in a descending lineal line, such as children and grandchildren.
What intestate share do children get?
The portion of the estate that does not pass to the surviving spouse, or the entire estate if there is no surviving spouse, passes to the decedent’s children and descendants of deceased children.
If all of the decedent’s children survive the decedent (or all of the decedent’s predeceased children have no descendants who survive the decedent), each child receives an equal share.
A descendant from a younger generation (such as grandchildren) cannot take if the older generation (the grandchild’s parent) is still alive.
Classic/Strict Per Stirpes
Under classic/strict per stirpes distribution, one share is created for each child and one share for each deceased child who has at least one surviving descendant. Each child receives one share and one share passes to a deceased child’s descendants by representation. This method divides into shares at the child generation even if no child survives the intestate.
Per Capita with Representation
This is the majority rule. Under the per capita with representation distribution method, the property is divided into equal shares at the first generational level at which there are living takers. Each living person at that level takes a share, and the share of each deceased person at that level passes to their issue by right of representation.
If all children are deceased and all property is going to the grandchildren, each grandchild takes an equal share rather than the share (or part of the share) the parent would have taken had the parent survived.
Per Capita at Each Generational Level
Under this method followed by the UPC, the initial division of shares is made at the first generational level at which there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level. Persons in the same degree of kinship to the decedent always take equal shares.
What intestate share do other heirs get?
If decedent is not survived by a spouse or descendants, the estate is distributed to ancestors (those related in an ascending lineal line such as parents) and collaterals (i.e., siblings, uncles, aunts, etc.). The estate passes in the order below, proceeding down until takers are found:
- Parents or surviving parent
- Brothers and sisters and their descendants (NOTE: under UPC, if one parent and at least one sibling survive, entire estate given to parent. Some states will divide it 50-50 though)
- 1/2 to paternal grandparents and 1/2 to maternal grandparents and their descendants
- 1/2 to nearest kin on maternal side and 1/2 to nearest kin on paternal side
- Escheats to the state
What intestate share do adopted children get?
Adopted children are treated the same as the biological children of the adopting parents and thus they inherit the same.
Generally, there is no inheritance in either direction between adopted children and their bio parents, except where one of the bio parents marries an adopting parent, or the child is adopted by a close relative.
Most states make no distinction based on age of the child at the time of adoption.
What intestate share do nonmarital children get?
Nonmarital child always inherits from the mother.
Generally, a nonmarital child will inherit from their father if:
(1) the father married the mother after the child’s birth;
(2) the man is adjudicated to be the father in a paternity suit; or
(3) after his death and during probate proceedings, the man is proved by clear and convincing evidence to be the father.
Advancement of intestate share
An advancement is a lifetime gift to an heir w/ the intent that the gift be applied against any share the heir inherits from the donor’s estate.
A lifetime gift is presumptively not an advancement unless shown to be intended as such.
Under the UPC and many state, an inter vivos gift is not an advancement unless it is:
(1) declared as such in a contemporaneous writing by the donor, or
(2) acknowledged as such in writing by the heir.
If found to be an advancement, the gift’s value when given is added back into the estate for purposes of calculating shares, and then subtracted from the recpipient’s share.
Simultaneous Death
A person cannot take as an heir or will beneficiary unless they survive the decedent.
Nearly all states have adopted a version of the Uniform Simultaneous Death Act (“USDA”). The USDA provides that when disposition of property (by will, intestacy, joint tenancy, etc.) depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if they had survived the other. If there is evidence that an heir or beneficiary survived the decedent by even minutes, the USDA does not apply.
120-Hour Rule: Many states and the UPC require that a person survive the decedent by 120 hours (5 days) to take any distribution of the decedent’s property.
Disclaimers
An heir, will beneficiary, life insurance beneficiary, surviving joint tenant, etc., cannot be forced to accept an inheritance or gift under a will. They may disclaim their interest. IF there is a valid disclaimer, the disclaimed property passes as if the disclaimant had predeceased the decedent.
In most states, a disclaimer must:
(1) be in writing,
(2) signed by the disclaimant,
(3) acknowledged before a notary, and
(4) filed with the appropriate court within 9 months (though the time may vary).
An interest cannot be disclaimed if the heir or beneficiary has accepted the property or any of its benefits.
Decedent’s death caused by heir or beneficiary
In most states, a person who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate. The property passes as though the killer predeceased the victim.
A conviction of murder in any degree is conclusive for purposes of this type of statute. Courts are divided on how to handle lesser degrees of killing.
Will definition
A will is an instrument executed with certain formalities that usually directs the disposition of a person’s property at death. A will is revocable during the testator’s lifetime and operative at their death.
Codicil definition
A codicil is a supplement to a will that modifies it.
Requirements for a valid will
The requirements of a valid will are:
(1) legal capacity (usually 18+ and of sound mind);
(2) testamentary capacity;
(3) testamentary intent; and
(4) formalities
Testamentary Capacity
Testamentary capacity is determined at the time of the will’s execution.
A testator must have the capacity to understand:
- the nature of their act, that is, that the testator is executing a will;
- the nature and extent of their property;
- the persons who are the natural objects of their bounty; and
- be able to formulate an orderly scheme of disposition.
Testamentary Intent
The testator must have the PRESENT intent that the instrument operate as their will.
Parol evidence is admissible to show that an instrument was not meant to have any effect.
When it is not clear, testamentary intent will be found only if it is shown that the testator:
(1) intended to dispose of the property;
(2) intended the disposition to occur only upon his death; and
(3) intended that the instrument in question accomplish the disposition.
Execution of Attested Wills
To be valid and admissible to probate, a will must meet the forma requirements imposed by state statute. The formalities vary from state to state, but most states require:
(1) that the will or codicil be in writing;
(2) that the will or codicil be signed by the testator, or by another at the testator’s direction and in their presence (any mark made w/ intent suffices);
(3) that there be 2 attesting witnesses;
(4) that the testator sign the will (or acknowledge their previous signature or the will) in each of the witnesses’ presence; AND
- the witnesses sign in the testator’s presence
Order and location of signatures
The order of signing is not critical as long as the signing is done as part of a single contemporaneous transaction. In most states and under the UPC, a will is valid if signed anywhere on the instrument, not just at the end.
Witness Requirements & Issues
- COMPETENCY: at the time will is executed, the witness is mature enough and of sufficient mental capacity that they could testify in court on these matters.
- PRESENCE REQUIREMENT: Most courts use the “conscious presence” test, under which the presence requirement is satisfied if each party was conscious of where the other parties were and what they were doing, and the act of signing took place w/in the general awareness and cognizance of the other parties.
- INTERESTED WITNESSES: will is still valid, but the bequest to the interested witness may be void under a “purging statute” unless they would have taken a share as an heir by intestacy. Under UPC, however, gifts to interested witnesses are not purged.
Attestation Clause
An attestation clause recites the elements of due execution and is prima facie evidence of those elements.
Self-Proving Affidavit
A self-proving affidavit recites that all the elements of due execution were performed and is sworn to by the testator and witnesses before a notary public. It functions like a deposition and eliminates the need to produce the witnesses in court years later.
Signatures on affidavit can be counted as signatures on will.
Holographic Will
A holographic will is one that is entirely in the testator’s handwriting and has no attesting witness. Holographic wills must contain the testator’s signature, but it need not be at the end of the will.
States vary with regard to how much material may be typewritten before the will no longer qualifies as holographic, but the UPC and most states that recognize holographic wills accept a will that contains some typewritten text as long as the portion not in the testator’s handwriting is not material.
Integration of a will
Integration of a will is the process of embodying several sheets of paper or documents into a single, entire will, validated by a single action of execution. The will proponent must show that the pages were present when the will was executed and were intended by the testator to be part of the will. The requirements of intent and presence are presumed when there is a physical connection of the pages, there is an internal coherence by provisions running from one page to the next, or the pages, when read together, set out an orderly dispositional plan.
Specific bequest or legacy
A specific bequest or legacy is a gift of a particular item of property distinct from all other objects in the testator’s estate.
Specific bequest of a general nature
A specific bequest of a general nature is not distinguishable from the rest of the testator’s estate until the testator dies.
Example: I leave my computer to Harambe.
General legacy
A general legacy is a gift of a general economic benefit (often a dollar amount) payable out of the general assets of the estate without requiring any particular source of payment.
Example: “100 shares of XYZ stock” or “$10,000 to Harambe.”
Demonstrative legacy
A demonstrative legacy is a gift of a general amount that is to be paid from a particular source or fund. If the designated fund is insufficient, the balance will usually be paid from other assets of the estate.
Example: “$10,000 to Harambe from my account at Silicon Valley Bank.”
Residuary Estate
The residuary estate, and hence a gift of the residue, consists of the balance of the testator’s property after paying (1) debts, expenses, and taxes; and (2) specific, general, and demonstrative gifts.
Ademption
Ademption refers to the failure of a gift because the property is no longer in the testator’s estate at the time of their death. This only applies to specific bequests.
Most states follow the “identity” approach so that if specifically bequeathed property is not in the testator’s estate at death, the bequest is adeemed and the beneficiary takes nothing.
Some states allow the beneficiary to receive replacement property if the testator replaced the gifted item with another similar item.
Satisfaction
A testamentary gift may be satisfied in whole or in part by an inter vivos transfer from the testator to the beneficiary after the execution of the will, if the testator intends the transfer to have that effect.
Most states require a writing or specific instructions in the will before the gift is deemed a satisfaction. In UPC states, the doctrine doesn’t apply unless the testator provides for satisfaction in the will or a contemporaneous writing, or the devisee acknowledges, in writing, the gift as one in satisfaction.
Increases to property after execution of will
Specific Gifts:
- Appreciation and depreciation of specifically gifted property between execution of will and death is normally irrelevant.
Securities Acquired After Will Execution:
- Stock Splits & Dividends: At COMMON LAW, a specific bequest of stock includes any additional shares produced by a stock split but does not include shares produced by a stock dividend.
The UPC and MOST STATES NOW include stock dividends. The beneficiary will also take an increase caused by merger or corporate reorganization.
- Newly purchased securities: beneficiary does not take new securities purchased or acquired by reinvestment of dividends.
Abatement
Abatement is the process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims against the state and satisfy all bequests. If the testator does not set out an order of abatement in the will, testamentary gifts will usually abate in the following order:
- Property passing by intestacy
- Residuary estate
- General legacies
- Demonstrative legacies
- Specific bequests
Within a class, abatement is pro rata. In some states, personal property in each category is used before real property in that category.
Lapsed gifts
A gift lapses if the beneficiary predeceases the testator or if the beneficiary is treated as not surviving the testator (i.e., b/c of disclaimer).
Who receives a lapsed gift is controlled by:
- Express terms of will
- Rule of law (anti-lapse statute)
- Residuary clause
- Intestacy
Anti-lapse statutes
Most states have anti-lapse statutes which operate to save the gift if the predeceasing beneficiary was in a specified degree of relationship to the testator (usually a descendant or ascendant) and left descendants who survived the testator. These descendants take by substitution.
Some states apply their anti-lapse statutes further (i.e., to collateral or more broadly to anyone). In most states though, they only apply w/ lineal.
Lapse in residuary gift
If a will devises the residuary estate to 2+ beneficiaries and one of them predeceases testator (and anti-lapse statute doesn’t apply), under COMMON LAW, deceased beneficiary’s share passes by intestacy. MODERN VIEW followed by most states is that surviving residuary beneficiaries divide the share in proportion to their interests in the residue.
Exoneration of Liens
While COMMON LAW and some states follow the contrary view, the UPC and MOST STATES provide that liens on specifically devised property are NOT exonerated (paid off with estate funds) unless the will so directs. This means the beneficiary takes the property subject to the debt.
Extrinsic Evidence & Will Interpretation
- Patent/Obvious Ambiguity –> ambiguous on its face. Modern view is that extrinsic evidence is admissible to interpret.
- Latent (hidden) Ambiguity –> court will consider extrinsic evidence.
- No Apparent Ambiguity (Mistake):
** Traditional approach: extrinsic evidence cannot be used to disturb clear meaning of a will.
** Modern rule: extrinsic evidence allowed, usually just for scriviner errors (i.e., atty made a mistake).
Incorporation by Reference
Instead of writing something in the will, a testator may incorporate an extraneous document into the will by reference.
The effect of this is that the incorporated material is treated as if it were actually written out in full in the will. Will formalities are not needed (i.e., no witnesses, signatures, etc. are needed).
A document may be incorporated by reference into a will provided:
(1) the will manifests an intent to incorporate the document;
(2) the document is in existence at the time the will is executed; and
(3) the document is sufficiently described in the will.
Many states and the UPC make an exception the requirement that the document exist at the time the will is executed and will permit a testator to refer in their will to a list specifying the distribution of items of tangible personal property and to write or alter that list after executing the will.
Acts or Facts of Independent Significance
An act or fact of independent significance is something outside of a will which has a purpose other than disposing of property. A will may dispose of property by reference to acts and events, even though they are in the future and unattested, if they have significance apart from their effect on dispositions made by the will.
Examples:
- Gifts to “my spouse” (have to go outside will to determine who spouse is)
- Gifts of contents (i.e., of a safety deposit box).
Codicil
A codicil modifies a previously executed will and must itself be executed with the same formalities. It need not be a separate document, it may appear on the same piece of paper as the will it amends.
Under the doctrine of republication by codicil, the will and codicil are treated as one instrument speaking from the date of the last codicil’s execution.
A validly executed codicil is generally viewed as impliedly incorporating a defective will by reference, thus validating the will.
Revocation of Wills General Rule
Because a will does not speak until death, a person with testementary capacity may revoke their will at any time prior to death.
Revocation by Operation of Law
Divorce or Annulment:
- In most states, divorce or annulment following execution of a will revokes all gifts and fiduciary appointments in favor of the former spouse. The will remains valid and is read as if ex-spouse predeceased the testator. - The UPC and some states extend the application of this to provisions in favor of the former spouse’s relatives who are not relatives of the testator.
- Divorce must be final.
- If the parties remarry, the revocation does not occur.
Pretermitted Children:
- Most states have pretermitted child statutes, under which, if the testator fails to provide in their will for any child born or adopted after the execution of the will, the child takes a share computed using statutorily provided formulas. In may states, if the entire estate is left to the pretermitted child’s other parent, the child will not receive a forced share.
Revocation by Physical Act
A will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will with the intent to revoke.
In most states, the testator may direct someone else to destroy or cancel the will, but the physical act must be done at the testator’s request and in the testator’s presence.
Revocation by Written Instrument
All or part of a will may be revoked or altered by a subsequent instrument that is executed with the same formalities as a will.
The subsequent instrument may expressly revoke the earlier will.
It can also revoke by inconsistency – if the new instrument completely disposes of the testator’s property, the old will is completely revoked by inconsistency. If the new instrument partially disposes of the testator’s property, the old will is revoked only to the extent of the inconsistent provisions.
