Wills Flashcards
What is a codicil?
A codicil is a supplementary document that either amends or revokes a decedent’s will in whole or in part.
What is the UPC Rule on simultaneous death?
The UPC follows the “Uniform Simultaneous Death Act” And if there is insufficient evidence to determine who survived whom, the property will pass as though each party predeceased the other. An heir must be proven by clear and convincing evidence to have survived the decedent by 120 hours to rebut.
What is a spouse’s intestate share of a decedent’s estate when he or she survives along with shared descendants?
Where the decedent is survived by a spouse and shared descendants, the spouse takes the entire estate
Where a decedent is survived by a parent and a spouse but no descendants what is the spouse’s intestate share?
Where the decedent is survived by a spouse and a parent but no descendants the spouse takes $300,000 and 75% of the remainder of the estate.
Where a decedent is survived by a spouse, shared descendants, and spouse’s other issue what is the spouse’s intestate share?
Where the descendant is survived by a spouse, shared descendants, and spouse’s other issue the spouse takes $225,000 and 50% of the remaining estate.
Where a descendant is survived by a spouse and by issue not related to the surviving spouse what is the spouse’s intestate share?
Where a descendant is survived by a spouse and issue not related to the surviving spouse the surviving spouse is entitled to $150,000 and 50% of the remaining estate.
What is the rule of intestate succession for posthumously born children?
If a child is born within 280 days of the decedent’s death there is a rebuttable presumption that the child is the husband’s and may inherit as issue. (Uniform Parentage Act increases this number to 300 days)
What are the three methods of calculating the issue’s shares once the spouse has taken intestate? Which of them is followed by the UPA?
- Per Stirpes
- Per Capita with Representation
- Per Capita at Each Generation (Followed by UPC)
What is the per stirpes method of calculating intestate share of a decedent’s issue?
Under the per stirpes method, shares are divided equally among the total number of children who survive or leave issue who survive, and then divide by representation
What is the per capita with representation method of calculating intestate share of a decedent’s issue?
Under the per capita with representation method property is divided equally at the first generation where a member survives the decedent. (First move is different)
What is the per capita at each generation method of calculating intestate share of a decedent’s issue?
Under the per capita at each generation method property is divided into equal shares at the first generation where there is a surviving member. Instead of passing to a deceased member’s issue by representation the remaining shares are pooled and divided among the next generation. (UPC Method)
What are the three requirements for a formal will?
- Signed writing
- Witnesses
- Testamentary Intent
What are the two approaches to witnessing the execution of a will “in the presence” of a witness?
- Line of sight
2. Conscious Presence (modern approach)
What is the competency requirement for a valid will?
The testator must be at least 18 years old and be of sound mind at the time of the execution of the instrument.
What is the modern/UPC rule on compliance with the formalities of a will?
Under the modern/UPC “substantial compliance” view, even if a formality is not met, the Court will admit the will to probate if there is clear and convincing evidence that the testator intended the document to serve as his will.
What is a holographic will?
A holographic will is a will executed by Captain Picard aboard the Starship Enterprise, witnessed by Wesley Crusher and Geordie Laforge.
either that or it is an informal handwritten will that need not be witnessed, only signed by the testator.
How can you distinguish between a codicil and a new will?
Look for a residuary gift: If an original will has a residuary gift, and the new writing does not it is probably a codicil. If the original will does not have a residuary gift and the new writing does, it is probably a new will.
Name the 5 will substitutes
- Joint Tenancy with the right of survivorship
- Revocable Trust
- Pour over will
- Paid on Death Contract
- Deed
What are the three methods of revoking a will?
- Subsequent Instrument
- Physical Act
- Operation of Law
What is the rule for lost wills?
Where a will has been lost there is a rebuttable presumption that the testator revoked the will by physical act. The burden is on the proponent of the will to show its existence by clear and convincing evidence.
What is Dependent Relative Revocation? (DRR)
DRR provides a mechanism whereby a will may be invalidated if it can be shown that the will was executed based upon a mistake, and that mistake caused the challenged will to be executed.
What is an “act of independent significance?
The doctrine of acts of independent significance allows a testator to condition a gift on unrelated acts that happen in the future. (e.g. my stamp collection to my daughter in law)
What are the requirements for qualification under an anti-lapse statute?
To qualify under most anti-lapse statutes a gift must have been intended for a family member who predeceased the decedent, who is survived by issue.
What are the two rules for ademption? (Old and New)
Under the traditional rule a devise is extinct if it is not in the estate. This traditional theory is often called “identity theory” because the identity of the devised property was central.
Under the modern rule, known as the “intent theory” a court will look to the testator’s intent at the time she disposed of the property and try to avoid ademption by providing a substitute gift.
