Wills Flashcards
Intestate
Decedent dies without a will
Decedent’s will denied probate
Deceden’ts will doesn’t dispose of all property
Intestate share of surviving spouse w/ Descendants
It’s one half or one third, rest to descendants. But UPC says all to spouse if all the decsdendents from the same dude.
Intestate share of surviving spouse w/o desscendants
Entire Estate
Intestate distribution MAJORITY RULE - Per Capita with Representation
Property divided into equal shares at next generational level (unless all dead). That person then takes their equal share. For dead people at that level, it will pass equally to their issues at the next generational level
Intestate distribution UPC AND MODERN TREND - Per Capita at Each Generation
Divide whatever is left among each generational level. Once it’s equally divided among and live and dead, then add back up whats left and divide it equally among the next generational level
Distribution if no spouse or descendents
(1) Parents or surviving parent
(2) Brothers and sisters and their descendants
(3) 1/2 to paternal grandparents and 1/2 to maternal grandparents and their descendants (both to one side if no takers on one)
(4) 1/2 to nearest kin on maternal side and 1/2 to nearest kin on paternal side (both to one side if no takers on one)
Nonmarital children in inheritancy cases
Always inherit from mother
Inherit from father if (1) marries mother, (2) man adjudicated to be father, (3) after death proved by clear and convincing evidence he’s the father
Uniform Simultaneous Death Act - Not UPC
Property disposed of as if he had survived the other if it cannot be determined who died first. Will not apply if you can show who survived longer - even by minutes!!!!
Revised USDA and UPC model
Applies 120 hour rule. Must survive other by at least 120 hours in order to take any distribution of the decedent’s property
Disclaimers
Beneficiary disclaims their interest. It must be
(1) in writing
(2) irrevocable
(3) filed within nine months of decedent’s death
Can’t disclaim once accepted
Advancement of Intestate Share
Lifetime gift intended to be applied against beneficiaries share of donor’s estate.
UPC requires:
(1) must be declared as an advancement
(2) acknowledged by heir in writing
Will definition
instrument executed under formalities that directs disposition of a person’s property at death.
Codicil definition
supplement to a will that modifies it. Must go through all the same requirements as will formation. Will gets new date of last codicil execution.
Elements to make a will (and codicil)
(1) Present intent
(2) capacity
(3) Signed by testator in witnesses presence (conscious presence test)
(4) two writtnesses (UPC: notary only OK)
(5) witnesses sign in testator’s presence
And sometimes
(6) sign at the end of will
(7) publish the will
(8) witnesses sign in presence of each other
UPC - Ignore Harmless Errors
If will not executed properly, UPC allows court to ignore harmless errors.
Holographic Wills
Will entirely in testator’s handwriting without witnesses. UPC acknowledges these.
Does UPC recognize oral wills?
NO
Conflict of law issue - real property, personal property, foreign wills
Real property - law of state where property is located
Personal property - law of testator’s domicile at time of death
Foreign will - admissible if executed according to laws of that jurisdiction, state where will was executed
Can beneficiaries sue attorney for negligence?
YES - SOL begins on testator’s death not creation of will
Interested witnesses
Doesn’t void the will - ok if she isn’t supernumerary or would have taken a similar share had it not been probated. If no excdption that it merely voids the gift to her, but doesn’t void the will
What happens if testator alters will?
ineffective unless testator reexecutes the will with proper formalities
Incorporation by Reference
Will can incorporate a document into it provided
(1) document in existence at time of execution (UPC going away with this rule)
(2) sufficiently described in the will
(3) will manifests an intent to incorporate it
Pour Over Gifts
Testamentary gifts in a will made to an existing revocable trust. Can be changed in lifteime of settlor without changing a will which avoids will formalities
Conditional Wills
Conditions must give rise in order for will to be executed. Argue both sides: Should be denied because condition didn’t occur. Shouldn’t be denied because it still shows how testator would have distributed their property had they died
Will substitutes - Nonprobate assets that cannot be disposed of by will
life insurance death benefit plans property passing by right of survivorship property held in trust deeds contracts inter vivos gifts bank accounts
How do you revoke a will?
(1) operation of law
(2) subsequent instrument
(3) physical act
Marriage following execution of will
UPC: new spouse takes intestate share unless
(1) will makes provision for new spouse
(2) ommission was intentional
(3) will made in contemplation of marriage
Divorce following execution of will
All provisions of former spouse revoked as if they died before testator - even appointments.
Child born following execution of will - Pretermitted child
child takes an intestate share
Revoking will be new will
Must exercise formalities of will formation. If the subsequent will does not revoke prior, then they are read together and any inconsistent terms later will prevails
Revoking by physical act
burn, tear, shread, WITH INTENT to revoke and it is made concurrently
Is partial revocation ok?
YES - extrinsic evidence allowed to determine whether its partial or full revocation
Revocation of Codicil
Does not revoke entire will - but revocation of will revokes all codicils.
Lost or Destroyed Wills
Allowed in if
(1) valid execution
(2) cause of nonproduction
(3) contents of the will
Revival of revoked wills
Can revive unless shown that testator did not intend to revive
Dependent Relative Revocation
applies when testator revokes will under mistaken belief that another disposition of his property would be effective, and if he never had the mistaken belief, he wouldn’t have revoked his will. Allows the revocation to fail and will to come back in.
UPC - Harmless Error Statute
Same as applied to execution applies to revocation.
Propoent can establish by clear and convincing evidence that decedent intended doc to be partial or complete revocation
Contract to make a gift in a will
Valid - must have
(1) provisions in the will stating provision of K
(2) express refrence in a will to K
(3) writing signed by decedent
Anti-Lapse Statutes
Beneficiary dies before testator. Statute allows gift to pass beyond deceased to their descendants. Does not apply if will provides otherwise - must be specific as to survivorship under UPC
Ademption
Failure of gift because it’s no longer in testator’s estate at time of death.
ONLY applies to specific devises - that is gift or property that can only be satisfied by receipt of that particular property (ex. rolex watch).
General vs. demonstrative legacy
This property is NOT adeemed (ie - if it’s no longer there, there will be a forced sale to make up for it)
General legacy - gift of specific dollar amount paid out of general assets.
Demonstrative legacy - gives a dollar amount but from a specific source
If not enough there it will be satisified by selling other assets - it is not adeemed.
Abatement
Court will abate assets in the following order in cases where estate assets are not sufficient to pay all CLAIMS against the estate and satisfy general or demonstrative legacys:
Property passing by intestacy
then residual assets
then general legacies
then specific bequests
Elective share statute
Spouse can elect to take a statutory share of estate versus a taking under the will if they are being fucked over
file notice
Permitted Child Statutes
Testator can disinherit children. Permitted child statutes protect against accidential ommission. Children will inherit their intestate share unless it can be shown
(1) omission intentional
(2) did something else for that child outside of the will
How to contest a will
Attack:
(1) defective execution
(2) revocation
(3) lack of capacity
(4) Lack of intent
(5) undue influence
(6) fraud
(7) mistake
How much of will defective if contestant successful?
Just the parts that were subject to the problem (minus some exceptions)
Capacity requirements for will
(1) must be 18
(2) mental capacity
(3) Insane delusion
What is mental capacity for purposes of capacity requirements?
Testator understands
(1) nature of her acts
(2) nature of her property
(3) her bounty
(4) formulate scheme for disposition
Undue influence requirements
(1) influence exerted
(2) overpower mind and free will
(3) resulting disposition product of undue influence
Undue influence presumed in certain relationships
confidential relationships
beneficiary involved in drafting and provisions unnaturally favor beneficiary
Fraud requirements
Testator willfully deceived as to
(1) character or content
(2) facts
Mistake in Execution
Admit extinsic evidence
Mistake in inducement
alleged mistake involves reasons that led testator to make the will - no relief granted (Testator thought son was dead and created will, after testator died son returned alive - no relief for son).
Mistake as to Conents
Mistaken omission - no relief granted
Mistaken in describing beneficiary or property - no relief
Latent or patent ambiguity - extrinsic evidence admissible
No contest clauses
Valid unless beneficiary had probable cause for bringing the contest
Personal representative to administer the will
Named in will - executor
Not named in will - administrator
Healthcare power of attorney
Creation:
In writing
signed
witnessed - but UHCDA does not require witnesses
Agent must act in P’s best interest and good faith.
Revoke by oral or writing.
Latent Ambuigty
Language in will is clear, but results in a misdecription when applied. EXTRNISIC EVIDENCE ALLOWED (all my shit to my cousin nellie - testator has two cousin nellies)
Patent Ambuity
Language in will is not clear - EXTRINSIC EVIDENCE ALLOWED (all of my shit to A and/or B. Not clear)
