Wills Flashcards
Intestate Administration: When does it apply
Applies when there is no Valid will or non-probate device.
Intestate Administration: Ga Law
- How does property pass?
- Who are the administrators?
Property passes to decedent’s heirs at law (heirs are specified in Ga’s intestacy laws)
Admins = may be selected by unanimous choice of the heirs unless heir = sole surviving spouse and there was an action for divorce or separation pending upon death.
–If no unanimous choice can be made–>probate will appoint admin who serves estate’s best interest. (Notice must be given in this case)
Admin= doesn’t have to be Ga resident or US citizen
Intestate order for NO Administration Necessary can be issued when?
1) consent is given by all heirs who are of legal age and competency OR consent for non-sui juries heirs is given through a guardian ad litem.
2) There are no debts of the estate or any creditors consent to the order AND
3) the heirs sign and have notarized an agreement as to the distribution of property
Testate Administration
Decedent has a Valid Will
Probate will appoint executor (person is named in will)
–If no one is named then court will appoint an Admin with Will Annexed
Personal Representatives are who?
Executors
Admins with Will Annexed
Admins of Intestate Estates
Forms of Probate
1) Common Form: granted immediately, no notice, not conclusive for 4 years, executor has limited power to collect/preserve estate as temp. admin.
2) Solemn Form: granted immediately, notice required.
Time Limits on Probating
Must be probated within 5 years of the time that any other petition is filed concerning the estate (e.g. petition for appt of admin, etc)
Caveats (Challenges) to Probate
Brought in Superior Court
Larger counties may have probate court which hears challenges
If a person is in possession of another will, what must happen?
It must be filed in probate court even if it is not probated
A Year’s Support
Unique to Georgia Law
file a petition to receive it
Available to decedent’s surviving spouse and/or minor children of the decedent
Available both intestate and testate
A Year’s Support Award Amount
An award of year’s support takes precedent over all debts of the estates except secured deeds.
Support property passes in fee simple
Spouse/minor children are awarded the amount requested in the petition unless an option is filed (an option requires a hearing to be held and the award amount is determined by probate judge and is based on spouse/children’s standard of living/other available means of support)
- -Separate awards may be granted
- -Separate awards are required when surviving spouse = not surviving children’s parent
Award divests the property of any accrued taxes and the taxes due in the year of the decedent’s death.
Personal Representative Jurisdictional powers
Decedent domicile in Ga: Personal Reps are under the jurisdiction of the Probate Court of the county in which the decedent was domicile on the date of death
Decedent domicile outside of Ga: Personal reps are under the jurisdiction of the probate court in the country in which real property owned by the decedent is located (in GA)
Personal Reps; Powers and Duties
Required by law to:
1) Assemble the estate assets and post a bond
2) file an inventory both with the Ct and Heirs/Will beneficiaries
3) give notice to creditors and pay off estate debts (no debts need to be paid during initial 6 mo period)
4) Obtain permission to sell estate prop
5) Distribute estate to heirs/beneficiaries
6) File annual and final returns
- -may be relieved from filing these returns if a) gave a bond on any will or b) has unanimous consent of heirs/beneficiaries of estate
May be granted broader powers by either the will itself or by unanimous consent of the estate’s heirs/beneficiaries
How do you distribute the estate to heirs/beneficiaries
If decedent died testate:
1) Executor takes title to decedent’s prop
2) executor transfers title to beneficiaries with an executor’s deed
If decedent died intestate:
1) title to real prop descends to decedent’s heirs subject to divestment by the appointed Administrator.
Ga Intestate: If the decedent is survived by a spouse but no lineal descendants then, surviving spouse gets?
Entire estate
Ga Intestate: If decedent is survived by a spouse and by lineal descendants, then who gets what?
Surviving spouse takes equally with the children.
Surviving spouse NEVER takes less than 1/3 of the estate
Ga Intestate: If decedent has no surviving spouse but is survived by lineal descendants, then how is the estate divided?
Descendants take per capita and per stires.
Per capita = decedent’s actual children (biological or adopted)
Per stirpes = decedent’s grandchildren, nieces/nephews, siblings (anyone not the decedent’s children who are in the family)
Ga Intestate: If decedent dies with no surviving spouse or lineal decedents then what happens to the estate?
Decedent’s parents share equally—if no surviving parents, then Decedent’s siblings share equally—if no surviving siblings, then to Decedent’s nieces/nephews equally
Ga Intestate Rights of Non-marital children
A child can always inherit from mother unless parental rights have been terminated.
- A child born out of wedlock can inherit from the child’s biological father only if:
1) Court order entered recognizing paternity of child
2) parents of wedlock child later marry (child = automatically legalized)
3) during child’s lifetime, father signed a sworn affidavit attesting to paternity or willingly signed birth certificate
4) Clear & Convincing evidence child = father’s
5) rebuttable presumption paternity = established by genetic testing showing 97% probability of paternity
Can a body be ordered to be exhumed in order to establish paternity through genetic testing?
Yes, a Ga statute allows this is there is no other way to procure the genetic material
Ga Intestate Rights of Adopted Children
Adoption established full inheritance rights
Adoption also termites any parental relationship towards the analogous biological parent
(Ex: adoption by stepfather terminates biological father’s relationship for inheritance purposes. Child can then only recover from adopted dad, not both if they both die intestate)
Included in class gift categories: however if a child is adopted out of a class, then the child cannot take under the intestate succession unless the child was specifically mentioned
Ga Intestate: Equitable Adoption
Principle of virtual adoption: occurs if there is an unperformed K to adopt
**Mere existence of de facto parent-child relationship = insufficient for virtual adoption. There must be an agreement between the parents/guardian and the one who plans to adopt.
Ga Intestate Advancements
ONLY applies to INTESTATE estates
A transfer to a prospective heir is treated as an advancement of the heir’s intestate share of the estate only if there is a written acknowledgement that the transfer is intended to be an advancement.
Written acknowledgement must be singed by transferor within 30 days of the transfer or by the transferee at anytime
Calculation: add the decedent’s actual estate value plus the advancement amount at the time it was made. Then split the amount equally among the beneficiaries. Note: subtract the advancement amount from the one who received the advancement so as to prevent double enrichment. (See page 11 for example of calculation)
Simultaneous Death
Applicable to intestate and testate estates
Applies when prop title passage depends on who died first and there is insufficient evidence to establish who died first, Ga treats the death as occurring simultaneously. The prop of each person is passed as though that person died first. This presumption stands unless there is sufficient evidence to the contrary.
Survivorship Clauses
Testators include this in their will: Example, to Joe if he outlives me by X number of days.
To receive under the will, Joe MUST survive x number of days past the testator death
This can rebut the simultaneous death presumption.
Oh, You killed the decedent and now you want your inheritance?
yeah, not going to happen!
When an individual kills another feloniously and intentionally, the slayer will not take from the victim’s estate. The slayer is treated as predeceasing the victim and the killer’s decadents take the killer’s share of the estate.
Rule applies to testate, intestate or no-probate transfers
Feloniously and Intentionally = Murder, Felony murder, Voluntary Manslaughter
If no conviction/guilty plea, the nature of killing can be established by clear/convincing evidence
Renunciation
Heir/Beneficiary may renounce (disclaim) his/her interest provided the renunciation (declaimer) is accomplished before acceptance of the prop, is in writing, and is filed with the court/personal rep within 9 mo. of the decedent’s death.
May be in whole or in part
Results in the prop passing as if the renouncing party predeceased the decedent, unless will states otherwise.
Will Ks
A K to make a will, not to revoke a will, or to die intestate made on or after Jan. 1, 1998 must be in writing and signed by the party being sued.
Remedy for Violation of a Will K
1) Damages: value of what was promised
2) Quantum meruit: value of services performed
3) Specific Performance: imposition of constructive trust on the promised property in the estate
Joint/Mutual Wills
2 separate testators may make one joint will or 2 mutual wills that have reciprocal provisions.
These will not be deemed to be wills in which the survivor has promised not to revoke his/her will unless they are based on a written express K that is signed by the party being sued. (basically, H & W, have mutual wills & H dies, W hasn’t promised that she won’t revoke her mutual will unless there was an express written K that says otherwise. W can always make a new will)
Where do you admit a will of a person who was domiciled outside of Ga but has property in Ga?
May be admitted to
1) Original probate: if it meets the Ga execution and attestation requirements and has not been probated elsewhere
2) Ancillary probate: upon proof that it has been properly probated in another jurisdiction
Define probated
To establish the validity of a will
Ga Execution Requirements
applies to wills
1) Will must be in writing
2) Testator must sign with a full intended signature
- -Proxy signature= Another person may sign for testator only at Testator’s request and in testator’s presence
3) Testator must sign in sighted presence or must acknowledge signature to witnesses
4) There must be 2 attesting witnesses
- -must have witnesses even if will = handwritten
5) Witnesses must sign in testator’s presence (doesn’t have to be in the presence of each other)
Ga Will publication requirement
There isn’t one. Only the requirement for the will to be validly executed.
GA Will Interested Witnesses
If a witness to the will is a beneficiary under the will, the witness is still competent to be a witness but the witness will not take the gift under the will unless there are at least two other subscribing witnesses who are not interested.
Attestation Clause
found in a will
Not required. Will may be admitted to probate without the testimony of the witnesses if the will is self proved.
Ga law provides that a self-proved will gives a rebuttable presumption that all of the formalities recited were performed.
Self Proving Affidavit
May be included in the will
Is a separate affidavit singed by Testator and witnesses and notarized.
If will = self proved= rebuttable presumption that will was properly executed/attested = thus no need for witnesses to testify at probate about will’s validity
Revocation of Wills: Types
1) Valid Subsequent Instrument
2) Physical Act
3) Operation of Law
Revocation of Will by Valid Subsequent Instrument
Can be
Express: “I hereby revoke all former will…” (is effective immediately)
Implied: Same prop. going to different parties in two diff. but valid wills that can be probated. Effective only upon testator’s death.
Remember subsequent instrument has to be valid
Revocation of Will by a Physical Act
Can only be a full revocation. Ga does NOT recognize partial revocation by a physical act. The physical act must affect a material portion of the will.
Requires an act of destruction with intent to revoke
Can be done by proxy: Testator can ask another, in Testator’s presence, to revoke the will by a physical act (e.g. tear up the will).
**Ga takes an all or nothing approach to physical act revocation. either the entire will was revoked by the physical act, or nothing was revoked by it.
Revocation of Will by Operation of Law
1) Pretermitted Child: Birth/Adoption of a Child: If a childish born/adopted by the testator AFTER THE EXECUTION OF THE WILL, and the will makes no reference to the child, then the child receives the intestate portion of the decedent’s estate.
2) PretermittedSpouse: Subsequent Marriage: If a decedent marries AFTER THE EXECUTION OF THE WILL, the new surviving spouse is entitled to an intestate portion from decedent’s estate.
3) Divorce/Annulment: If testator’s marriage ends in divorce/marriage AFTER WILL IS EXECUTED, all provisions in favor of former spouse are revoked. The children of the divorced/annulled spouse and the testator take in place of the spouse under the will (this is anti-lapse)
- -If couple remarries prior to testator’s death, will provisions are reinstated.
**IN all three, if the will appears by clear/convincing evidence that testator contemplated the birth/adoption/subsequent marriage/divorce/annulment, then the child/subsequent spouse does not take intestate portion and the divorced/annulled spouse takes under the will as planned.
Presumption of Lost Wills
If possession of the will is traced to the testator and the will cannot be found upon the testator’s death, there is a presumption the testator revoked the will by physical act.
Presumption can be rebutted by the will proponent showing by preponderance that no physical act revocation occurred. (Proponent must prove by showing proper execution and contents of the will).
Partial Revocations
Partial Physical Act Revocation = NOT permitted in GA
Partial Revocation may only be performed by formal writing in the form of a codicil or a subsequent will
Implied Revocation
Occurs whenever a codicil/valid subsequent will does not expressly revoke an earlier will, but contains an inconsistent provision. when this occurs, the provisions in the earlier will and the subsequent will must be read together and given effect. IF there is any inconsistency in the two wills’ provisions, the later will’s provision is given effect.
Reviving Wills; Revoke the Revoking Will
There is no automatic revival of the revoked will by the destruction of the revoking instrument.
The first will is only revived if all of the surrounding circumstances indicate that the testator intended, by revoking the revoking instrument, to revive the first will.
Reviving Wills: Dependent Relative Revocation
CL Equitable Doctrine
Allows the ct to disregard a physical act revocation if that revocation was based on mistake of law/fact
Ambiguities
1) Patent: mistake appears on the will itself
2) Latent: more than one items meets the description int eh will allowed for probate
Remedy: Extrinsic evidence is used to resolve the ambiguity.
Mistake
Remedy for plain language. (Ex: The will’s lang plainly states X, but testator meant Y. Use mistake to fix this. )
Cts. will NOT admit evidence to fix plain language. Apply plain lang of will.
Exception: Cts will allow evidence of a mistaken omission by a parent in the parent’s will if the parent believes the child to be dead and hence didn’t provide for the child in the will.
–GA statute: A child of Testator who is omitted from Testator’s will because Testator thought the child was dead is entitled to receive a share equal to: if there are no other children, the child receives his intestate proportion, if there are other children, child will receive an equal share proportionate to what the other children received.
Incorporation by Reference
If a document is in existence at the time the will is executed then that document may be incorporated by reference into the will even though it is not part of the will itself.
To incorporate:
1) the writing must have existed at the time the will was executed
2) will must manifest intent to incorporate that document
3) will must describe the document sufficiently to permit identification
Acts of Independent Significance
If there is an event that has lifetime significance other than that recited in the will, it may allow for a valid transfer under the will even though not specified.
Anti-Lapse Statute Definition
ONLY Applies to WILLS
If a testator leaves a valid will and that will devises a gift/prop to a beneficiary who dies during testator’s lifetime, the state’ anti-lapse statute will distribute that property to the pre-deceasing testator’s issue instead.
Ex: B leaves prop to A in B’s will. A dies before B. A’s heirs are her issues. Thus, the prop in B’s will goes to A’s heirs when B dies.
Ga Anti Lapse Statute applies when?
1) Predeceased beneficiary is survived by issue and these issue also survive the testator
2) there are no contingency lang in the will preventing application of the anti-lapse statute
Applies to class gifts thus allowing issue of predeceasing beneficiaries to take as substitute takers.
What happens if the anti-lapse statute is inapplicable?
The lapsed gift/prop becomes part of the residuary estate.
If the lapsed gift is the residuary estate then the residuary estate passes to the testator’s intestate heirs.
Abatement
Real & Personal Prop = treated the same
In the payment of debts/expenses, gifts abate in the following order (absent express intent of testator):
1) debts by the terms of the will
2) residuary estate
3) general testamentary gifts, abate pro rata
4) demonstrative gifts, abate pro rata
5) specific legacies
Ademption by Extinction
Only applies to specific prop/gifts
If testator devises a specific gift/prop to a specific person in her will, but then sells/destroys or by some other means gets rid of the gift/prop then that person cannot recover the gift/prop when testator dies. The gift/prop is adeemed by extinction.
If the specific gift/prop is lost, destroyed or stolen within 6 mo preceding the testator’s death, the beneficiary is entitled to insurance proceeds.
Ademption by Satisfaction
IF testator makes a specific, demonstrative, residuary or general bequest in a will to a named person, and during the testator’s lifetime, makes a transfer to this same person and in the will or in a contemporaneous writing, declares that the transfer during lifetime is satisfaction of the bequest in the will, then the lifetime transfer will be treated as in satisfaction of the gift in the will.
The writing stating that the lifetime gift is in satisfaction must be executed by the testator within 30 days of transfer, or by the recipient at any time.
Accessions
Deals with stocks and bonds
All stock splits go to the legatee under the form/substance rule
Cash/stock dividends and income all go to the general estate, not the legatee.
Exoneration
Real/personal prop specifically bequeathed to a person carries with it a rebuttable presumption that testator intended the beneficiary to take the prop free of any encumbrances
Payment is made from the intestate or residuary estate.
Conditional Wills
Any condition on the will has to be express. Without an express condition, the will be considered valid until it is revoked or testator dies
Contesting the Will based on Lack of Testamentary Capacity
Testator (and witnesses) must be 14
CL Test:
1) Did testator understand the nature of the act she was doing?
2) did testator comprehend the character and event of the property?
3) did testator know the natural objects of her bounty?
4) did testator understand the disposition she was taking?
Evidence of capacity/incapacity must relate to the circumstances at the time the will was executed or shortly before/thereafter.
Mere old age, physical frailty, sickness failing memory, eccentricity, vacillating judgment, use of drugs, or habitual drunkenness are not inconsistent with testamentary capacity.
Contesting the Will based on Insane Delusion
Occurs when testator is sane but the will (or a legacy in the will) is a product of an insane delusions, having no basis in fact/reason, to which testator adheres against all reason/evidence.
Look for a rational basis in the will. If not rational, then argue invalid.
Contesting the Will based on Undue Influence
Must affect the free will/MIND of the testator, amounting to coercion or over persuasion. Destroys testator’s free will
But for this coercion/persuasion that existed at the time the will was executed, testator would never have executed the will.
Burden of proof = on contestant of the will
If someone in a confidential relationship with testator receives a benefit under the will and participated in the drawing/procuring of the will, then undue influence is presumed and must be rebutted by the proponent of the will by preponderance. Evidence must relate to the testator’s state of mind & must show that testator could resist the influence of the person in the confidential relationship.
Evidence of Undue Influence
1) opportunity to exert undue influence
2) testator’s susceptibility to the influence due to factors such as old age or illness
3) suspicious circumstances
4) mere fact of an unnatural disposition (stranger takes everything and excludes testator’s relatives)
Contesting the Will based on Fraud
Fraud = intentional misrepresentation of a material fact to the testator, and but for that misrepresentation the subsequent injury of the heirs would not have occurs.
Fraud VOIDS the will and a constructive trust is imposed.
No Contest Clauses
States that if a person who takes under the will subsequently contests the will, then this person loses the bequest.
Valid in Ga so long as there is a direction in the will as to where the property will go in the event of a contest.
Will Construction
Cardinal Rule= cts to comply with what they find to be the testator’s intent
Court looks to the four corners of the will to determine intent
Once will is executed, there is a presumption against intestacy.
If two provisions in the will are inconsistent and cannot be given effect together, the latter provision controls.
–BUT, if the first provision grants a fee simple and the latter provisions reduces the prop into smaller/lesser estates, then the first provision controls UNLESS intent to reduce is clearly manifest in the writing
Missing Individuals
If a person is missing but it has not been concluded that the person is missing, then probate can appoint a conservator of that individual’s estate.
People presumed to be dead
An individual is presumed to be dead if the individual is missing and not heard from for 4 years.
An individual may be proved dead if missing for 12 months.
If an individual has been exposed to a specific peril that likely resulted in death, the individual’s death may be proved at any time by clear and convincing evidence.
If an individual is either presumed or proved dead, the probate court proceeds to administer the estate as if the individual was dead.
Intestate decedent’s heirs can’t be found, what happens to decedent’s estate?
IF the intestate decedent’s heirs can’t be found for a period of 4 years, then the estate escheats to the country board of education in the county of the decedent’s domicile at death.
