Wills Flashcards
How do courts treat a will that is not found after the death of the decedent?
The will is presumed destroyed.
How to rebut the presumption of a destroyed will?
with clear and convincing evidence of testamentary intent, if those statements confirm the dispositive scheme in the decedent’s will
“Inherits” versus “takes”
Inherits –> through intestacy
Takes –> through a will
Does marrying a person with children make the children yours for the purpose of wills?
NO. Must adopt, otherwise, they have no rights under intestacy laws.
Timing of Construction
Will construed as if it were written immediately prior to the death of the testator, unless a contrary intention is explicit in the will
“Gift List” or “Legal List” and requirements to be valid
Can be used to dispose of tangible personal property. Need not comply with formalities of will. Instead:
1) In writing;
2) Sufficiently describe the property and the recipients;
3) Signed by testator;
4) not otherwise devised in the will
Does adoption affect status of descendent?
Yes. If a person’s child is adopted by someone else, their status as descendent is terminated.
When can a third party revoke a will on behalf of a testator?
A third party can revoke a will on behalf of the testator as long as the revocation is at the testator’s direction and in the presence of the testator
Slayer statute
Bars inheritance by the slayer of the decedent when (1) slayer is convicted of murder or voluntary manslaughter; or (2) Party opposing slayer’s inheritance shows by preponderance of eividence that Slayer committed murder or voluntary manslaughter, even if acquitted by insanity.
Slayer treated as predeceased.
Escheat
when no surviving kin, property escheats to the commonwealth. (But see “laughing Heir” statute)
“Laughing Heir” Statute
Allows relative to inherit, no matter how remotely related
Requirerments for valid will
(1) In writing; (2) signed by testator or proxy at testator’s direction in testator’s presence; (3) in the presence of two witnesses (or acknowledged); and (4) witnesses must sign the will in the presence of the testator (but not in the presence of each other)
Codicil
Amendment to a prior will. Must e performed with will formalities
Holographic Will Requirements
(1) Wholly in testator’s handwriting; (2) signed by testator; (3) manifest testamentary intent; and (4) two disinterested witnesses to identify handwriting when will is offered for probate.
Handwritten requirement for holographic will
If there are non-handwritten parts, will still effective if handwritten part effective independent of other parts
Testamentary intent for Holographic Will
Must, on its face, express testator’s testamentary intent
Revocation
Wills are revocable at any time prior to the death of the testator, even if the testator contracted otherwise.
CANNOT be oral
Revocation by physical act
purposely destroying will, or directing third party to destroy will, with present intent to revoke.
Revival following Express revocation in second will’
DOES NOT EXIST. Instead, estate passes by intestacy
Revival following revocation by inconsistency
ALLOWED. Estate passes by revived will
Revival by remarriage
If portions of will were revoked by divorce, they are revived by remarriage
Anti-Lapse
Anti-lapse only applies when the beneficiary is a grandparent or a descendant of a grandparent of the testator
* VA presumes a gift in favor of the deceased beneficiary’s surviving descendants
* Imposing an express condition of survivorship on a gift negates the anti-lapse statute; if
anti-lapse is negated, the gift lapses and falls into the residue
Where is a will administered?
(1) where the decedent has a house or known place of residence;
(2) where the decedent owner real property that is devised or owned by the decedent;
(3) where the decedent dies or has personal property.
Rebuttable presumption that a nursing home does not change the decedent’s place of residence
What is a personal representative?
Manages the decedent’s estate
What do you call a Personal representative named in the will?
Executor/executrix
What do you call a court-appointed personal representitive
Administrator
Administrator cum testamento annexo (administrator c.t.a)
Appointed when the decedent dies with a will, but either no executor is named or the named executor refuses to serve
How to qualify as an executor or administrator
1) Legally competent and 2) 18 or older
Omitted Spouse
Receives an intestate share of the testator’s estate unless the omission is intentional
Omitted Child Born after Testator Executes Will
If testator has no living children –> after-born children are entitled to an intestate share
If testator had living children –> after born children are entitled to the lesser of an intestate share or the largest amount any other child receives under the will
Omitted Child Born After Executed Will
No special rules
If omitted child dies before 18
They get nothing. Property, instead, reverts to whoever was entitled had their not been an omitted child.
What does the administrator/executor do when a minor is entitled to take/inherit?
Petition the court to appoint a guardian
