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
