Wills Flashcards
What is intestate succession?
Any property that does NOT pass by will upon the decedent’s death will be distributed according to the state’s applicable intestacy statutes.
If a decedent is survived by ONLY a spouse, what happens to the estate?
The surviving spouse will inherit the entire estate.
What is the inheritance rule if the decedent is survived by a spouse AND descendants?
The surviving spouse will inherit one-half or one-third of the estate, with the surviving descendants inheriting the rest.
Under the Uniform Probate Code (UPC), what happens if all descendants are descendants of the surviving spouse?
The surviving spouse will inherit the entire estate.
What occurs if the decedent is NOT survived by a spouse or descendants?
The decedent’s surviving parents will inherit the entire estate equally.
What happens if a child predeceases an intestate parent?
Three rules address how to distribute an intestate estate under these circumstances: Strict Per Stirpes, Modern Per Stirpes, and Per Capita at Each Generation.
What is the Strict Per Stirpes approach?
The estate is divided by the number of living members in the first generation of children, with shares of deceased members dropping to the next generation.
What is the Modern Per Stirpes approach?
The estate is divided equally among living and deceased members at the first generation with a living taker.
Describe the Per Capita at Each Generation approach.
The estate is divided at the closest generation with living descendants, pooling shares of deceased descendants for equal distribution among their representatives.
What rights do adopted children have under intestacy laws?
Adopted children are entitled to receive the same share as biological children.
What is adoption by estoppel?
A child may be informally adopted and can inherit if they establish a relationship of love and parental responsibilities.
Can children born out-of-wedlock inherit from an intestate decedent?
Yes, non-marital children may inherit from either parent if a legal parent-child relationship is established.
How are half-blood children treated under intestacy laws today?
Half-blood children are generally treated equally as whole-blood children.
What are advancements in the context of intestate succession?
Gifts to heirs during a testator’s lifetime that may be considered advancements on the heir’s intestate share.
What must occur for a gift to be considered an advancement?
The decedent must declare the gift as an advancement in writing or the heir must acknowledge it in writing.
What is the Uniform Simultaneous Death Act (USDA)?
It establishes that evidence of survivorship, no matter how brief, suffices to establish a sequence of death.
Under the UPC, how long must a beneficiary survive the testator to inherit?
There must be clear and convincing evidence that the beneficiary survived the testator by 120 hours (5 days).
What governs the disposition of a decedent’s personal property?
The law in the jurisdiction of the decedent’s domicile at death.
What is the Harmless Error Rule?
A will that is not properly executed can still be valid if there is clear evidence of the decedent’s intent.
List the general formalities required for a valid will.
- In writing
- Signed by the testator
- Signed by at least two witnesses
What is a holographic will?
A handwritten will that is NOT witnessed.
What is required for a document to be integrated into a will?
- The testator intended the document to be part of the will
- The document was physically present at the time of the will’s execution
What does incorporation by reference allow?
Extrinsic documents to be incorporated into the will if certain conditions are met.
