Wills Flashcards
What is the “surviving residuary beneficiaries” rule?
What’s the effect of the anti-lapse statute on this rule?
If the residuary estate goes to 2+ people, and one of them dies, that person’s pie slice goes away and the slices of the rest grow to fill the gap.
The anti-lapse statute trumps this rule. If the person who dies is saved by the anti-lapse statute, their pie slice doesn’t go away—their descendants take it.
The anti-lapse statute saves bequests to beneficiaries who:
- Predeceased T
- Are descendants of T’s parents
Who does the pretermitted child statute protect?
- Child born/adopted after the will
- Not provided for in the will
- Not provided for by any non-probate transfers at death (e.g. life insurance benefits)
In a one-marriage situation, how does a testator’s share of community property pass to:
- Surviving spouse
- Descendants (children)
- SS gets EVERYTHING. Since she is still living, the children will take according to her will when she dies.
- Descendants get nothing.
If a testator is survived by children, at least one of whom is NOT a child of the surviving spouse, how does the testator’s community property pass to:
- Surviving spouse
- Descendants (T’s children)
- Descendants’ children (T’s grandchildren)
- SS gets her 1/2 share of the community property
- Children take their per capita share of the remaining one half
- Grandchildren get nothing, unless one of T’s children has passed already. In that case, the deceased child’s children would take by representation.
Who does the pretermitted child statute protect?
- Child born/adopted after the will
- Not provided for in the will
- Not provided for by any non-probate transfers at death (e.g. life insurance benefits)
In a one-marriage situation, how does a testator’s share of community property pass to:
- Surviving spouse
- Descendants (children)
- SS gets EVERYTHING. Since she is still living, the children will take according to her will when she dies.
- Descendants get nothing.
If a testator is survived by children, at least one of whom is NOT a child of the surviving spouse, how does the testator’s community property pass to:
- Surviving spouse
- Descendants (T’s children)
- Descendants’ children (T’s grandchildren)
- SS gets her 1/2 share of the community property
- Children take their per capita share of the remaining one half
- Grandchildren get nothing, unless one of T’s children has passed already. In that case, the deceased child’s children would take by representation.
What does it take to have a valid holographic will?
How do you prove it in court?
- Entirely in T’s handwriting
- Signed by T
- Two witnesses attesting to T’s handwriting
Are oral wills/codicils valid?
- Not after Sept 1, 2007
- Before that, yes, IF: personal property only, said during last sickness, and reduced to writing shortly after death, and signed by three witnesses to the utterance
When is small estate administration available?
- INTESTATE
- Value of estate (EXCLUDING HOMESTEAD) does not exceed $50,000
Decedent owns two pieces of real estate—his homestead, and a second vacation home. Can his surviving spouse use small estate administration to clear title to the homestead?
NO—small estate admin to clear homestead ONLY applies if D didn’t own ANY other real estate.
When is muniment of title an option?
What’s the procedure for utilizing it?
- There’s a WILL
- D has no unpaid debts
(1) Admit the will to probate and obtain an order (this can include an order construing the will)
(2) File the will and the order with the county clerk to record the title change.
(3) File an affidavit with the court within 180 DAYS to update it on what terms of the will were executed and which were not.
When is a statutory heirship proceeding an option?
What does it accomplish?
- D died INTESTATE
- Fixes the share of each heir’s share of the estate
D dies intestate, survived by his spouse. He has some children from a previous marriage, so they are entitled to his 1/2 CP. He also has a homestead. Who takes care of this administration? What can they do about clearing up title to the homestead?
SS can administer as the COMMUNITY ADMINISTRATOR (basically the same duties/powers as an IE). She can take care of distributing the property to the other kids.
Since D died INTESTATE, she will need to use a STATUTORY HEIRSHIP PROCEEDING to clear title.
What is the process for starting an independent administration, assuming it’s a viable option?
(1) Admit the will to probate.
(2) Obtain letters testamentary
(3) IE files some papers:
- Inventory of property
- Appraisal of the property
- List of claims on the estate
(4) Go out and administer the state
Testamentary capacity:
- Understand the nature of the act
- Know the nature and extent of T’s property
- Know the “natural objects of T’s bounty” (e.g. that he is married and has kids)
- Understand the disposition T is making
- Legal capacity does NOT equal testamentary capacity
Self-proving will:
- AFFIDAVIT:
- “T declared to us that this was her last will and asked that we witness it”
- Signed by T and W’s - If W’s sign the affidavit, but not the will, their signatures are deemed to be transferred to the will, so the will can be valid. But now the self-proving affidavit doesn’t have two signatures—the will is no longer self-proving.
Venue for probating a will:
RESIDENT»_space;> County where T resided
NON-RESIDENT»_space;> Principal assets OR where T died
LIABILITY OF PREPARING ATTY
To intended beneficiaries:
- E.g. lawyer screws up the will, so no one gets anything
- General rule: No privity b/w atty and beneficiaries—no liability
LIABILITY OF PREPARING ATTY
To T, or T’s estate:
- Atty can be liable to the estate, e.g. where his negligence results in the liability for the estate (e.g. estate taxes that shouldn’t have come up, or improper characterization of SP/CP)
INTERESTED WITNESS
Does NOT void the will
Voids the BEQUEST unless:
- Will can be proved anyway w/o that W’s testimony
- W’s testimony can be corroborated
OR - The bequest doesn’t benefit W any more than intestacy
HOLOGRAPHIC WILLS
Wholly in T’s handwriting
- Typed surplusage is okay—as long as it’s not necessary to complete the will
Should include some indication of TESTAMENTARY INTENT
- Extrinsic evidence is admissible to prove this if it’s not self-evident from the writing
TWO witnesses to prove up T’s handwriting
What’s the effect of the anti-lapse statute if there is a lapse in a class gift? (as far as the B saved by the statute)
- Anti-lapse TRUMPS the class gift rule—the predeceasing beneficiary’s share is PRESERVED for B’s descendants, instead of being subsumed by the other members of the class
BUT see:
VOID class gifts
- If a member of the class is already dead, his gift is VOID—the other class members are deed to take his share.
- The anti-lapse statute CANNOT override this rule.
120 HOURS RULE
How does this affect spouses re community property and separate property?
COMMUNITY PROPERTY
- A spouse has to survive the other by 120 hours to claim 100% of the CP. - If the spouses die within 120 hours of each other, their community property is divided as though each survived the other (1/2 to one, 1/2 to the other).
SEPARATE PROPERTY
- Each spouse keeps his/her SP - Since neither survived the other, they (their heirs) don't take any of the other spouse's SP
120 HOURS RULE
How does this effect a joint bank account with a right of survivorship?
- Have to survive by 120 hours to claim the entire account by right of survivorship
- If none of the owners of the account survives the other(s) by 120 hours, then the account is divided equally among them (no one takes all by right of survivorship).
DISCLAIMING YOUR INHERITANCE / BENEFITS
Why would you do this?
How to do it:
- Avoid gift taxes—pass the inheritance to your kids w/o having to pay gift taxes
- Avoid creditor claims
(1) Written, signed, and NOTARIZED
(2) Affirm that you’re not behind on CHILD SUPPORT
(3) Filed within 9 MONTHS of decedent’s death
(4) Filed with probate court and decedent’s personal rep
ADVANCEMENT AND SATISFACTION OF LEGACY
= Giving someone a share of their inheritance early
INTESTATE»_space;> ________________
WILL»_space;> ________________
INTESTATE»_space;> Advancement
WILL»_space;> Satisfaction of Legacy
REVOCATION
How do you revoke a will?
When is it presumed that you revoked your will?
(1) Subsequent testamentary instrument that EXPRESSLY REVOKES
OR
(2) Physical act indicating intent to revoke
- If the will was last seen in T’s possession, and cannot be found after T’s death, it is presumed that T destroyed it and thus revoked it by physical act.
- Presumption does not apply IF:
- The will was last seen in the hands of someone adversely affected by the will’s contents, OR
- Evidence shows that the will was destroyed by something other than T revocation
PROVING A LOST WILL
Must show:
- The lost will was properly executed (T intent, signed by T, 2 W’s, etc.)
- The cause of the will’s non-production (overcome the presumption that T revoked it by destroying it)
- OR demonstrate that the will can’t be found despite a diligent search
- The contents must be substantially proven
- Someone who has read the will, or heard it read
- Someone who can identify an accurate COPY of the will
Pretermitted child who is a descendant of the surviving spouse:
(assume there are no other children)
(1) Determine T’s estate (usually 1/2 CP and some SP)
(2) Bequeath to PC’s other parent (here, the SS) according to the will. NOTE: if T’s will says “all to my wife” then there will be nothing left to give to PC; she will get all of the 1/2 CP and SP.
(3) If there’s anything left (there might not be), give PC whatever he would get if T had died intestate, owning only that property.
Pretermitted child born OUT OF WEDLOCK (not descendant of the surviving spouse):
(assume there are no other children)
(1) Determine T’s estate (usually 1/2 CP and some SP)
(2) Bequeath to PC’s other parent according to the will (might be nothing, since PC’s mom is not married to T and might be out of the picture)
(3) If there’s anything left (usually all of the 1/2 CP and all SP is left), give PC whatever he would get if T had died intestate, owning only that property (usually all of it).
* *BUT we haven’t dealt with T’s bequeath to his SURVIVING SPOUSE yet. If she is supposed to get anything from T’s estate (the 1/2 CP and some SP), her share cannot be reduced by more than 1/2. Take some back from the PC to make sure spouse’s share is not reduced by more than 50%.
REVIVING A REVOKED WILL
(1) Re-execute the will:
- Attesting W’s, re-sign it
OR
(2) Execute a re-published codicil referencing the revoked will (“This is a codicil to my 1999 will”)
T cannot revive a will by revoking the will that revoked the original one. The original will is legally dead.
ABATEMENT
Bequests are ABATED if the estate doesn’t have enough assets to distribute to them.
ORDER of abatement (first to go, to last to go):
- Intestate property (T died partially intestate)
- Residuary estate
- General legacies of personal property
- General legacies of real property
- Specific bequests of personal property
- Specific devises of real property
SPECIFIC GIFT OF ENCUMBERED PROPERTY
ISSUE: Is B entitled to take the property free of encumbrances—force the estate to pay them off before giving the property to B?
AFTER 2005»_space;> Liens are NOT exonerated from the residuary estate. The lien remains on the property when B gets it.
So, if grandma gives you her home, you still have to pay off the mortgage, even if her estate has plenty of money left to take care of that for you.
INCORPORATION BY REFERENCE
Requirements:
- Writing must be IN EXISTENCE at the time of the will
- Will shows INTENT to incorporate
- Document is CLEARLY IDENTIFIED in the will, so there can be NO MISTAKE as to the identity of the document
NON-TESTAMENTARY ACTS
“I devise my car to B.”
T then trades her Ford in for a brand new Mercedes.
ISSUE: is this a backdoor way to increase B’s gift without changing the will? If so, it is invalid.
Independent source doctrine
- IF the change is a LIFETIME ACT with a LIFETIME PURPOSE, it is valid.
WILL CONTEST
SOL =
SOL = 2 years
- If based on fraud or forgery, apply DISCOVERY RULE
Undue influence
Undue influence
= T was controlled by a DOMINANT INFLUENCE OR POWER
Elements:
(1) EXISTENCE of the influence
(2) EFFECT was to overpower the mind and will of T
(3) CAUSATION: produced a will that would not exist BUT FOR the influence
- Circumstantial evidence that is NOT sufficient:
- Mere opportunity to exert influence
- Mere susceptibility to influence (sick, old, etc.)
- Mere fact of an unnatural disposition
- Influence of a person with a CONFIDENTIAL RELATIONSHIP with T
- If suspicious enough, this can provide an inference of undue influence.
PREPARING LAWYER BENEFICIARY
VOID IF T’s will makes a gift to:
- The lawyer
- His parent, or a descendant of his parent
UNLESS:
- The lawyer is RELATED TO T (within third degree of consanguinity—count up to common ancestor, then down to T, must only take three steps or less)
Intestate share of COMMUNITY PROPERTY IF:
All of T’s kids are from the surviving spouse
T has some kids from a previous relationship
IF no kids:
All of T’s kids are from the surviving spouse
- Surviving spouse TAKES ALL of the community property.
- The kids might get something from her will.
T has some kids from a previous relationship
- Surviving spouse gets 1/2
- Kids get the other 1/2 (per capita)
IF no kids:
- Surviving spouse takes ALL
Intestate share of SEPARATE PROPERTY
Personal property
- Surviving spouse:
- Kids (from this relationship, or another one):
- IF no kids:
Real property
- Surviving spouse:
- Kids (any relationship):
- IF no kids:
Personal property
- Surviving spouse: 1/3
- Kids (from this relationship, or another one): 2/3 (per capita)
- IF no kids:
- Surviving spouse takes ALL
- Parents (or siblings if no parents): NOTHING if there’s a surviving spouse
Real property
- Surviving spouse: 1/3 LE
- Kids (any relationship): 2/3 remainder FS
- IF no kids:
- Surviving spouse: 1/2 LE
- Parents (or siblings if no parents): 1/2 remainder FS if there’s a surviving spouse
Intestate share if NO SPOUSE OR DESCENDANTS
Survived by BOTH PARENTS:
Survived by only ONE PARENT:
**BAD DADDY RULE:
Survived by BOTH PARENTS: 1/2 to mom, 1/2 to dad
Survived by only ONE PARENT: 1/2 to parent, 1/2 to siblings (and their descendants by rep)
**BAD DADDY RULE:
- A parent cannot inherit from a child by intestacy IF:
- Abandoned the child and failed to pay child support
- Knowingly abandoned the mother of his child during pregnancy
OR
- Was criminally responsible for the death or serious injury of a child
PRESUMED FATHER
(1) Child born during the marriage, or w/in 300 days after
(2) Parties married AFTER the birth, and dad voluntarily asserted paternity:
- In a record with the Bureau of Vital Statistics
- Consenting to be named on the birth certificate
(3) Dad lived with the child during its FIRST TWO YEARS of life and represented that the child was his.
ADOPTED CHILDREN
Adoption by estoppel
Inheriting from natural parents after adoption
Adoption by estoppel
- Represented that they will adopt the child
- Relied upon by the natural parents
- This allows the adopted child to INHERIT by intestacy from the foster parents—but not the foster parents’ kin.
Inheriting from natural parents after adoption
- Adopted child CAN inherit from natural parents
- UNLESS natural parent terminated parent-child relationship
120 HOURS RULE
Life insurance policies
Life insurance policies
- Have to survive the decadent by 120 hours to claim the benefits
- If B doesn’t survive decedent by 120 hours, the proceeds go to either the ALTERNATE BENEFICIARY, or the DECEDENT’S ESTATE (if the policy was purchased during the marriage, it is CP, subject to division).
REVOCATION
Revocation by implication
Revocation by implication
- If a second will doesn’t expressly revoke the previous one, the general rule is, READ THE TWO INSTRUMENTS TOGETHER.
- BUT if the second is WHOLLY INCONSISTENT with the first one, then the first is revoked by implication.
HEF
Homestead
HEF
Homestead
- Surviving spouse has exclusive right of occupancy (rent-free) until she dies
- OR $45,000 if there’s no homestead
HEF
Exempt property set-aside
Exempt property set-aside
- Up to $60,000
- This pays out “off the top” before any intestate distribution is made
- OR $30,000 if no EXEMPT property
HEF
Family allowance
Family allowance
- If surviving spouse doesn’t have enough property, she may qualify for ONE YEAR of support.
- This pays out “off the top” before any intestate distribution is made
HANDWRITTEN CHANGES TO A WILL
HANDWRITTEN CHANGES TO A WILL
The only way to change a will after it has been executed is with a HOLOGRAPHIC CODICIL.
- Must be entirely in T’s handwriting
- Must be a complete thought, with sufficient T intent
- E.g., can’t just cross things out—have to write out a codicil that would be complete on its own.
- BUT if you’re starting out with a HOLOGRAPHIC WILL, subsequent changes are valid. A holographic will can be written in spurts.
ADVANCEMENT AND SATISFACTION OF LEGACY
Giving someone a GIFT is not an advancement/satisfaction UNLESS:
What if the donee pre-deceases T?
Giving someone a GIFT is not an advancement/satisfaction UNLESS:
- Donor declares it to be an advancement in a contemporaneous writing
- Donee acknowledges it to be an advancement in a writing
OR
- The will says that all lifetime gifts are to be considered advancements.
* A satisfaction of legacy arises ONLY IF the acknowledgement was signed AFTER THE WILL was executed.
An advancement does NOT reduce the donee’s inheritance if the donee PREDECEASED the testator. In that case, the donee’s heir takes according to will/intestacy—the lifetime gift to donee has NO EFFECT.
WILL CONTEST
Estoppel
Estoppel
- Once B accepts gift, they are estopped from contesting it
- UNLESS they accepted without full knowledge of the relevant facts that would have provided a basis for challenging the gift
VALID WILL
Requirements?
VALID WILL
(1) T is 18+
(2) Signed by T (or proxy)
- Any mark intended to be a sig
(3) TWO witnesses (14+ yo) sig
* *IN T’s CONSCIOUS PRESENCE — CONTEMPORANEOUS TRANSACTION
- T is conscious of what they are doing, if they’re out of sight—could see them by some slight physical exertion, can’t be in a totally different room
- Does NOT have to be dated
- CANNOT be an ORAL will, even if given during last sickness (statute authorizing this was repealed in 2007)—but remember proxy sig is okay
Proving the will in court
Proving the will in court
- Just need ONE of the witnesses
- IF neither witness is available, need TWO witnesses who can testify as to T’s handwriting (or one W, if another can’t be found despite diligent search)
- OR use self-proving…
