wills 2 Flashcards
Incorporation by reference
writing may be incorporated to reference if exists at time of execution and will intends to incorporate and describes writing to id it
Acts of independence significance
furniture in room to jack gets a new furniture new furnitutre goes to jack
pour over trust
assets from the testator’s estate are poured over into a trust
A trust that is established before, or concurrently with, the execution of the will;
* Identification of the trust in the will; and
* A trust embodied in a writing.
list of tangible properties
Prop may be distributed with list if
will refers to writing
Signed
Items described
May be changed no witnesses last list governs
Lost or destroyed wills
if lost A rebuttable presumption of revocation arises
-may be proved two disinterested witness who knew terms
-Copy of will from witnesses (carbon copy )
-Later discovered admissible by interested person before admin closed
dependent relative revocation
Tanya Testator executed Will #1 in 2009. She executed Will
#2 in 2010. At the same time she executed Will #2, Tanya tore up Will #1.
However, Will #2 was invalid because there was only one attesting
witness.
Because Will #1 was validly revoked by physical act, and Will #2 was
invalid, Tanya would die intestate unless the court reestablished Will #1.
Tanya’s lawyer has a copy of each will. The only difference is that Tanya
changed the identity of a charitable beneficiary that was to receive a
$1,000 devise. Because she had no desire to die intestate, as evidenced
by her continued testamentary scheme, the court may apply DRR. It
would likely decide that Tanya destroyed Will #1 on the condition that Will
#2 was valid. That constitutes a conditional revocation of Will #1. In other
words, Will #1 was not to be revoked unless Will #2 was valid. Because
Will #2 was not valid, then Will #1 may be admitted to probate.
more on 104
ademption
An asset devised in a will that is not in existence at the time of the testator’s life, it is
“adeemed” or abolished unless a statutory exception applies or the testator’s intent not to
have the gift adeem can be proven
Adeemed- canceled- thing in will no longer in testators estate
only specifc devise or bequeth
Claims against estate
before distribution claims must be paid
Costs to attorney personal reps
Funeral
Debts taxes
Medical expenses
Allowance
Child support
Debts after death inquired business
All other claims
if estate can’t pay creditors paid in proportion to claims
LOOK AT QUESTIONS
Doreen’s will contained three devise
divises
property particularly designated only to be satisfied by property described
(my estates black acre to my son)
specific devise
A devise of “property which is particularly designated & which is to be satisfied only by the
receipt of the particular property described.”
residuary gift
A gift of whatever probate assets have not been devised by specific, demonstrative, or general
devises
For example: Testator states “I devise & bequeath the rest, residue, & remainder of my
estate my grandson George.
general legacy
A devise that is neither specific not demonstrative, but which indicates a particular amount or
quantity to be received.
demonstrative devise
A devise of a fixed amount, payable first from a particular property or fund, or from the
proceeds of a particular item, and second from general assets to the extent that the particular
source identified is insufficient or is not part of the estate.
exceptions to ademption
balance of purchase price owed at testators death
balance of condemption award (eminent domain)
unpaid insurance recovery
net proceeds from forclosure sale
If the specifically devised property is converted to cash by a guardian, and the testator (George) regains capacity and survives for at least one year after an adjudication that his disability has ended, the beneficiary (Lisa) is entitled to receive a general pecuniary devise equal to the net amount received for the property
abatement of gifts
abate when no provision for payment of claims
or assets cant pay debts or satisfy specific or general devises
abatement order
Property passing by intestacy;
Residuary devises & bequests
General legacies;
Specific & demonstrative gifts.
if demonstrative insufficent funds then treated as genreal legacy
spouses shit abate last
within a class equally abate
exoneration homestead
homestead exempted
exoneration leins wont be exonerated un less will says so, merely paying all debts doesnt count
pretermittted spouse
married testator after the will , may elect to take an intestate share of the will unless provided for in will in contemplation of marriage (name the person and say proivde for incontemplation of that person) or waives in nuptial agreement,
If will demonstrates not to provide for spouse ss has burden of proving could use ee
If a will makes a provision for a person who later
becomes the testator’s spouse,
– The surviving spouse has the burden of proving
that the provision was not made in
contemplation of marriage.
share taken from rules of abatement
Pretermitted child
child not it will intestate share
Exemption- child got advancement , intentional omission, to parent of child
Wills anti lapse statue
-lapses if bene predeceases testator
-If gift lapse resulting trust arises in favor of test estate
-Protected grandparents or lineal descendants of grandparents (adopted count)
-Distributed per stripes to lineal descendants of bene
-Could make own provisions in will
Lapsed class gifts
to avoid must survive until date gift vests ,( death of testator or unless will provides otherwise)
class mat increase or decrease
Residue devisee takes all if deceased devisee not protected by anti laps
homestead
-requires natural person may not be devised
-if survived by spouse or minor child (if s but no mc then could devise to s in fee simple)
-If dies intestate or /\ ss takes life estate vested remainder to owners lineal at time of death
-tenancy by e s right of s
-in lieu of ss life estate, ss may elect 1/2 interest as tenant in common with lineal desen
-protected from claims of owners creditors
-Except for taxes, obligations contracted (mortgages), obligations for house
-homestead protection also extends to 1000 In personal prop
family allowance
18000 may be claimed by ss or descendants or ascendants supported by
It is in addition to there’s shares of estate
exempt personal property
-ss or decedents children may take 20k household furniture
-Automobiles for personal use by dependent or family
Pre paid college contracts
-Benefits by teachers or administrators
- taken free of the claims of unsecured creditors but creditors may force sale
-specifically or demonstratively devised proper not included
-Except personal prop given in addition
review elective share later
l
simultaneous death
for title to property if no evidence other then simultaneous the property of each person shall be disposed of as if that person survived (164 look at chat if you want)
slayer
killer forfeits benefits
Criminal conviction or court determines by preponderance of evidence
Advancements
transfer before death
Needs written designation and acknowledgment by heir
Satisfaction of devises
Same as /\ but for intestate deemed satisfied will says it , tester writes it
