Wills 21-30 Flashcards
What is a Residual Gift?
A gift of any property remaining after the distribution of the estate to the identified beneficiaries.
Priority: Medium
Specific Gift
vs.
General Gift
vs.
Demonstrative Gift
Specific Gift: One that is specifically identified (i.e. real or personal property).
General Gift: Nonspecific, and can be satisfied from any funds remaining in the testator’s estate.
Demonstrative Gift: A hybrid, and occurs when the testator makes a general gift, but also identifies a specific source that the gift should come from.
Priority: Medium/Low
Are gifts to an Interested Witness valid?
Gifts to an interested witness (a beneficiary under the will) are presumed invalid.
*If an interested witness cannot overcome this presumption, he will only take his intestate share of the estate.
Priority: Medium
How do Adopted Children inherit from their parents?
They inherit as if they were natural born children.
Priority: Medium
What is an Omitted Spouseentitled to?
(Omitted Spouse = surviving spouse not mentioned in a will executed before the marriage began)
One-half of decedent’s community property and quasi-community property; AND
Intestate share of separate property (but notmore than one-half).
*The other half of community/quasi-community property already belongs to surviving spouse.
Priority: HIGH
When is an Omitted Spouse not entitled to an Intestate Share of the estate?
The spouse was intentionally omitted;
The spouse was given property outside of the will (in lieu of a disposition); OR
The omission was consistent with a valid prenuptial agreement.
Priority: HIGH
How is the estate distributed under Intestacy to a Surviving Spouse?
Community Property: One-half of decedent’s community property and quasi-community property.
*The other half of community/quasi-community property already belongs to surviving spouse.
Separate Property: Goes to surviving spouse as follows:
Entire Share – if no surviving issue, parent, siblings, or issue of siblings.
One-Half – if decedent leaves (a) only 1 child or issue of 1 child, or (b) no issue, but parent or their issue.
One-Third – if decedent leaves (a) 2+ children, (b) 1 child and issue of 1+ deceased children, or (c) issue of 2+ deceased children.
Priority: HIGH
Under Intestacy, how are shares NOT going to the Surviving Spouse distributed?
Shares pass to decedent’s issue either:
Equally – if all in same degree of kinship; OR
Per Capita by Representation.
Priority: HIGH
When does a testator have sufficient
Testamentary Capacity?
A testator must:
Be at least 18 years old;
Understand the nature and extent of her property; AND
Understand the natural objects of her bounty (relatives/friends).
*Appointment of a conservator alone DOES NOT prove lack of capacity.
Priority: HIGH
What are the elements of Undue Influence?
If:
Testator had a weakness that made him susceptible to influence;
Wrongdoer had access to the testator and an opportunity to exert influence;
Wrongdoer actively participated in drafting the will; AND
There is an unnatural (unexpected) result.
Priority: HIGH
