Wills

Question 1

Probate

Answer 1

Court proceeding in which:

1) it is judicially determined that the decedent left a validly executed will
2) a personal representative appointed to administer the decedent’s estate and wind up the decedent’s affairs
3) letters testamentary or letters of administration are issued by the court showing the personal representative’s authority to represent the estate

Question 2

Principal duties of a personal representative

Answer 2

1) take possession and control of assets that comprise the estate
2) give notice to creditors and pay creditors’ claims
3) satisfy the tax authorities
4) distribute the remaining estate to the Will beneficiaries or heirs

Question 3

Testator

Answer 3

A person who executes a wil

Question 4

Heirs

Answer 4

Person who take by intestate succession

Question 5

Beneficiaries

Answer 5

Persons who take under a will

Question 6

Residuary estate

Answer 6

The estate of a testator that remains after all debts, taxes and administration expenses have been paid, and after all specific gifts and cash legacies made by the will have been satisfied

Question 7

When testate distribution rules apply

Answer 7

1) decedent left no will
2) will does not make a complete disposition of the estate
3) an heir successfully contests the will on the ground of lack of testamentary capacity or undue influence and the will is denied probate

Question 8

Original UPC rules for the intestate share of surviving spouse

Answer 8

If survived by spouse but not by descendents or parents spouse gets all.

If survived by descendents all of whom are descendents of surviving spouse the first $50,000 plus one half of any balance goes to the spouse.

If survived by descendents some of who are not descendents of surviving spouse the spouse gets one half.

Survived by spouse and no descendents but by one or both parents spouse gets the first $50,000 plus one half of any remaining balance.

Question 9

Revised UPC rules for the intestate share of surviving spouse

Answer 9

If survived by the spouse but not by descendents or parents the spouse gets all.

If survived by descendents all of whom are descendents of surviving spouse and the surviving spouse has no descendents from an earlier marriage the spouse gets all.

If survived by descendents all of whom are descendents of the surviving spouse but the surviving spouse has one or more descendants were not descendants of the decedent spouse gets the first $225,000 ($150,000) plus one half of any balance.

If survived by descendants some of whom are not descendants of the surviving spouse surviving spouse gets the first $150,000 ($100,000) plus one half of any balance.

If not survived by descendents but survived by a parent the spouse gets the first $300,000 ($200,000) plus 3/4 of any balance.

Question 10

Strict per stirpes

Answer 10

Shares for each line of descendents are always divided at the first generational level regardless of whether there are any living takers at that level and then one share for each family line

Question 11

Per capita with representation

Answer 11

Cut the shares at the first generational level at which there are living takers and then one share for each family line

Question 12

Per capita at each generation

Answer 12

Make the initial division of shares at first generational level at which there are living takers. Each living descendent in that nearest generation takes one share. Shares of deceased persons at that generational level are combined and then divided equally among the takers at next generational level and so on. As a result persons in the same degree of kinship to the decedent always take the same share.

Question 13

What if a decedent leaves no spouse or descendents

Answer 13

1) all to parents or to a surviving parent.
2) if not survived by parents to descendents of parents and the same rule applies as that that is applied to determine inheritance by descendents.
3) If not survived by parents or issue of parents have to maternal grandparents and have to paternal grandparents

Question 14

Intestate share of adopted children

Answer 14

Adopted children and their descendents have full inheritance rights from the adoptive family and treated in all respects the same as natural children.

Question 15

Intestate share of nonmarital children

Answer 15

Nonmarital child can inherit from natural father if:

1) the man was adjudicated to be the father in a paternity suit
2) the man acknowledged in writing that he was the father
3) after the man’s death he is proved to have been the father of the child in the probate proceeding by clear and convincing evidence

Question 16

Common-law rule of advancements

Answer 16

A lifetime gift to a child was presumptively an advancement of the child’s intestate share to be taken into account on distributing the intestate estate at death.

Question 17

UPC rule of advancements

Answer 17

A lifetime gift to an heir is not an advancement unless declared as such in a contemporaneous writing by the donor or or acknowledged as such in a writing by the donee.

Question 18

UPC rule for lifetime gifts

Answer 18

Gift to a beneficiary named in an earlier will is not treated as an satisfaction of legacy unless declared as such in a contemporaneous is writing by the donor or acknowledged as such in writing by the donee or the will provide for reduction of legacies by any lifetime gifts.

Question 19

Requirements for a disclaimer

Answer 19

1) must be in writing, signed and notarized.
2) must be filed within nine months after the decedent’s death.
3) disclaimer can be partial.
4) beneficiary or heir cannot disclaim after accepting an interest or its benefits
5) disclaimant cannot exercise dominion by attempting to direct who takes by reason of the disclaimer.

Question 20

Effect of disclaimer

Answer 20

Disclaimant is treated as if they predeceased the decedent.

Question 21

Uniform simultaneous death act

Answer 21

When title to property depends on order of death and there is no sufficient evidence that the persons have died otherwise than simultaneously the property of each passes as though he or she survived.

Question 22

120 hour rule

Answer 22

Must arrive by 120 hours to be an heir.

Question 23

Requirements for a will

Answer 23

1) testator must be 18 years old
2) document must be signed by the testator or someone at the testator’s direction and in her conscious presence
3) testator must sign the will in each witness’s presence
4) two attesting witnesses each of whom witnessed either testator’s signing of the will or testator’s acknowledgment of his earlier signature of the will
5) witnesses must sign within a reasonable time after witnessing either testator’s signing of the will or testator’s acknowledgment of her earlier signature of the well

Question 24

Codicil

Answer 24

Must meet the same requirements as a will

Question 25

Attestation clause

Answer 25

Recite the elements required for due execution

Question 26

Effect of Attestation clause

Answer 26

Prima facie evidence of the facts recited

Question 27

Self proving affidavit

Answer 27

Testator and witnesses execute a sworn affidavit before a notary public that recites the statements the witnesses would tested testify to in an open court.

Question 28

Dispensing power statute

Answer 28

Probate judge can excuse full compliance with the formalities required for execution of a will if there is clear and convincing evidence that testator intended the document to be her will

Question 29

Line of sight rule for presence requirement

Answer 29

To count witnesses must be in a testator’s line of sight.

Question 30

Conscious presence test for presence requirement

Answer 30

Witnesses are in the testator’s presence whenever he is so near to them that he is conscious of where they are and what they are doing and he could see them with a slight physical effort on his part.

Question 31

Attorney liability to Will beneficiaries for negligence

Answer 31

Under the minority rule not liable because there is no privity of contract.

Under the majority rule liable for intended beneficiaries of the attorney’s service.

Question 32

Holographic wills

Answer 32

Hand written and signed but unwitnessed wills. Valid in about 30 states.

Question 33

Conditional wills

Answer 33

Court can decide that the will is conditional meaning that the probate should be denied because the condition did not occur or the court can decide that the conditional will was merely a motive or inducement for making the will and allow it for probate.

Question 34

How to revoke a will

Answer 34

1) by a subsequent testamentary instrument executed with appropriate formalities or
2) by physical act (burning, tearing, canceling, obliterating, or other act of destruction)

Question 35

Proof of lost will statute

Answer 35

My show:

1) proof of due execution
2) cause of Will’s nonproduction must be established.
3) contents must be substantially proved by copy of will or by testimony of witnesses who have read the will or heard it read.

Question 36

Presumption of Will revocation

Answer 36

Where a will was last seen in the testator’s possession or under his control and is not found after death presumption is that the testator revoked the will by physical act.

Where a will was last seen in the possession of someone adversely affected by its contents presumption does not arise.

Question 37

Dependent relative revocation

Answer 37

Permit a revocation to be disregarded when the active revocation was premised upon, conditioned upon, depended upon, a mistake of law or fact as to the validity of another disposition.

Doctrine should be applied only if the disregarding revocation would come closer to what the testator tried but failed to do than would an intestate distribution.

Question 38

Partial revocations by physical act

Answer 38

In most states partial revocation by physical act are valid.

Question 39

Lapsed gifts

Answer 39

When a Will beneficiary predeceases the testator the gift lapses.

Question 40

Anti-lapse statute

Answer 40

Applies when the predeceasing beneficiary was a grandparent or descendent of a grandparent of the testator and the predeceased beneficiary left descendents who survived the testator.

Question 41

Surviving residuary beneficiaries rule

Answer 41

If the residuary estate is devised to two or more persons and a gift to one of them fails for any reason the other residuary devisees take the entire residuary estate in proportion to their interest in the residue.

Question 42

Class rule of construction

Answer 42

In a gift by Will to a class of persons if a member of the class predeceases the testator the class members who survived the testator take.

Question 43

Rule of convenience

Answer 43

The class is closed when some class member is entitled to a distribution.

Question 44

Omitted spouse statute

Answer 44

If marriage follows execution of the will the omitted spouse takes an intestate share unless it appears that the omission was intentional or provision was made for the spouse by transfers outside the will and it is shown that the transfers were intended as in lieu of testamentary gifts by testator’s declarations, by amount of the transfer or otherwise

UPC limits spouses share to intestate share of property only as to that portion of the estate that was not not devised to testator’s children or descendants who were not descendents of the surviving spouse.

Question 45

Testator divorce after the well is executed

Answer 45

A final decree of divorce or annulment revokes all gifts and fiduciary appointments in favor of former spouse. Former spouse treated as if though he or she predeceased the testator.

Statute operates to revoke gifts and appointments only if they are divorced or the marriage is annulled at testator’s death.

Question 46

Pertermitted child statute

Answer 46

Child born after the execution of the will, will take the intestate share.

In several states intestate share is limited to the amount devised to other children.

Question 47

Republication by codicil

Answer 47

If they testator creates a codicil the will is deemed to have been executed on the date of the last codicil thereto.

Question 48

Abatement of legacies

Answer 48

Debts and expenses are paid out of:

1) intestate property
2) residuary assets
3) general legacies
4) specific bequest.

Demonstrative legacies are treated as specific bequests.

Question 49

Ademption

Answer 49

Where the Will makes a specific gift of property and the property is not owned by the testator at death the gift fails.

Ademption applies only to specific gifts.

Question 50

Exceptions to a demotion for real property

Answer 50

1) beneficiary take any unpaid balance of the purchase price together with any security interest by reason of the sale of property
2) beneficiary takes any condemnation award for taking of the property
3) beneficiary takes any amount of fire or casualty insurance proceeds for damage or destroy property
4) beneficiary takes any property acquired as a replacement property for specifically devised property

Question 51

Specific bequest of encumbered property

Answer 51

The lien is not exonerated so the beneficiary take subject to the lien.

Question 52

Incorporation by reference

Answer 52

An extrinsic document not present when the will was executed can be incorporated by reference into the will if:

1) writing must be in existence when the will was executed
2) Will must show an intent to incorporate the writing
3) Will must describe the writing sufficiently to permit its identification.

Question 53

Documents devising tangible personal property

Answer 53

Will may refer to written statement or list that disposes of tangible personal property not specifically disposed of by the will. Written list must be signed by testator must describe the property with reasonable certainty but does not have to be written before the will is executed.

Question 54

Acts of independent significance

Answer 54

If there is a lifetime gift with a lifetime motive or purpose a gift is still upheld.

Question 55

Majority rule when no ambiguity in the will

Answer 55

If there is no ambiguity extrinsic evidence is not admissible to overturn the plain language. (Plain meaning rule)

Question 56

Latent ambiguities

Answer 56

If there is a latent ambiguity because there is a misdescription extrinsic evidence is allowed to determine what the testator intended.

Question 57

Patent ambiguities

Answer 57

For patent ambiguities extrinsic evidence is allowed including facts and circumstances evidence and anything testator said to his attorney.

Question 58

Contracts relating to Wills

Answer 58

Can only be established by provisions in the will stating that a contract does exist and stating the material provisions of the contract or a binding and enforceable written agreement.

Question 59

Effect of words of disinheritance

Answer 59

When a will does not make a complete disposition of the estate words of disinheritance in the will are ineffective.

UPC allows the words to have effect.

Question 60

Nonprobate assets

Answer 60

1) property passing by right of survivorship
2) property passing by contract.
3) property held in trust.
4) property over which the decedent held a power of appointment.

Question 61

Powers of appointment

Answer 61

Authority created in a person to designate, within the limits prescribed by the creator of the power, the persons who will take certain property and the manner in which they will take it.

Question 62

General power of appointment

Answer 62

One exercisable in favor of the donee herself, her estate, her creditors, or the creditors of her estate.

Question 63

Special power of appointment

Answer 63

One exercisable in favor of a specified class of persons that does not include the donee, her estate, her creditors, or the creditors of her estate.

Question 64

Presently exercisable power of appointment

Answer 64

A power exercisable by the donee during her lifetime

Question 65

Testamentary power of appointment

Answer 65

One exercisable only by donee’s will

Question 66

Failure to exercise general power

Answer 66

If a donee fails to exercise a general power and there is no gift in default, the property passes to the donor’s heirs or residuary legatees.

Question 67

Failure to exercise special power of appointment

Answer 67

If the donee of a special power fails to exercise it and there is no gift in default of appointment, a gift to the objects of power is implied.

Question 68

Residuary clause to exercise testamentary power

Answer 68

A residuary clause by itself does not exercise any power of appointment.

If donee’s will devices all the rest, residue, and remainder of my property, including any property over which I may have a power of appointment exercises a testamentary power.