Wills Flashcards
What is intestate succession?
A fixed set of rules that govern where property goes upon death based on the degree of relationship.
What are examples of non-probate property (filter them out from the question)?
There are three principal categories of nonprobate assets: (i) property passing by contract, (ii) property passing by right of survivorship, and (iii) property held in trust.
- Inter vivos outright gifts (already gave away property)
- Inter vivos trusts (property has already transfered)
- Future interests (already transfered at date of deed)
- Co-ownership of property (tenancy in common passes through to probate, but joint tenancy does not)
- “Pay on death” property
- Contracts (provides benefits payable on death to named beneficiary, e.g. pension, retirement, life insurance)
What is total intestacy?
Decedent dies without valid will
What is partial intestacy?
Decedent dies with valid will but it does not dispose of all of decedent’s property
How can you tell which state’s marital rights law (domestic relations law, e.g.) applies?
It’s the law of domicile at the time of marriage; rights don’t change as the couple moves
How can you tell which state’s intestacy law applies to succession rights (personal and real property)
Personal property: intestate’s domicile at time of death.
Real property: law of situs (where land is physically located)
What are the common law way of providing intestate shares to surviving spouses?
Spouse wasn’t an heir at common law, so widows received dowers and men received curtesy.
Dower: life estate was 1/3 of property husband owned during marriage, regardless of whether property was still owned at time of death.
Curtesy: life estate in all of wife’s real property, provided she proved her worth and brought a child into the world!
What is the modern law way of providing intestate shares to a surviving spouse?
Note: have to be married.
Spouse is made an heir. Share of surviving spouse depends on number of children, whether surviving spouse is parent of all the spouse’s children.
If decedent is survived by spouse but no descendants, surviving spouse takes estate. Note that under UPC, decedent’s parents take 1/2.
Could be in dollars, percentages, based on lenght of marriage.
How does intestacy split up descendant shares when all children survive the intestate (or all of the intestate’s predeceased have no descendants who survive the intestate)
Each child receives an equal or per capita share.
The younger generation descendant (grandchild) cannot take if older generation (child) is still alive.
What are the three ways for computing descendant shares when at least one descendant has predeceased the intestate and is survived by a descendant who survives intestate?
Ex. all descendants belong to second generation (grandchildren) or descendants are from multiple generations (some children, some grandhilcren)
- Per stirpes (common law minority)
- Per capita with representation (majority)
- Per capita at each generation (UPC, large minority)
What is the per stirpes (common law minority) method of computing descendant shares?
- Divide into shares at first generation below decedent (i.e. children) even if no survivors.
- One share for each surviving child, one for each deceased child who left descendants.
- Each surviving child receives one share, and a share of each deceased child passes to the grandchildren.
Under this model, heirs from similar generation could receive unequal shares.
What is the per capita with representation model of splitting descendant shares?
- Divide into shares at first generation with survivors.
- If all children are deceased, each grandchild receives equal share, rather than dividing at generation above.
Can create same outcome as per stirpes if one child is dead and one alive (split it at that generation; grandchildren still get unequal shares).
What is the per capita at each generation model of splitting descendant shares?
Modern majority. Approach was adopted by Uniform Probate Code.
- Divide intestate property into shares at first generation with survivors.
- Shares created on behalf of predeceased children are pooled, and then divided pro rata among grandchildren.
- Give all equally related persons the same share. Each child gets the same as other child. Every grandchild gets the same as other grandchild.
Who are “ancestors” and “collaterals” for purposes of intestacy?
Ancestors - related in ascending lineal line (parents, grandparents)
Collaterals - persons related but not in lineal line (brother, sister, niece, nephew).
What is the general rule for passing intestacy property when a decedent has no descendants?
All property not passing to the surviving spouse passes to the ancestors and collaterals.
If both parents of a decedent survive, and the decedent has no spouse/descendants, how does intestacy split those shares?
If both parents are alive, each parent gets half.
If no parents, then to descendants of parents (siblings, niece/nephew).
If none, to maternal grandparents or descendants (grandparent, aunt/uncle, cousins)
If none to nearest kin
If none, escheats to the state.
If one parent and a sibling (or descendant of sibling) survive, and the decedent has no spouse/descendants, how does intestacy split the share?
Some states at Uniform Probate Code give entire estate to surviving parent.
Some states give half to the parent, half to first-line collaterals.
If a decedent has no, spouse, or descendant, but at least one sibling (or descendant of sibling), how does intestacy split the share?
All property would then be divided among first-line collaterals (siblings)
How does intestacy deal with second-line collaterals, grandparents, and more distant relatives?
Property passes according to state law. Some cut it off at a predetermined level (descendants of grandparents, i.e.) and others look to more distant relatives.
What is escheat to state government?
If decedent has no heirs, estate passes to state government.
What are the inheritance rights of an adopted child?
Viewed as child for purposes of inheriting their parent’s estate.
Re: bio parents - jurisdictions as to whether they can inherit through bio parent.
What are the inheritance rights of an adoptive parent?
Parents can take from and through adopted child.
What are the inheritance rights of biological parents to an adopted child?
Bio parents do not take from and through adopted child.
Minor exceptions: one of the natural parents marries an adopting parent, or the child is adopted by a close relative (then might be able to)
What is adoption by estoppel, aka equitable adoption?
Conduct of parent makes it appear as if that person had adopted a child even though a formal adoption did not occur. If parent dies without completing formal adoption, some states allow child to inherit as a child. However, if child dies, many states prohibit parent from inheriting.
Do states distinguish between the adoption of a child and of an adult, for intestacy purposes?
Most states don’t distinguish.
How are non-marital children vis-a-vis mother treated?
Treated the same as marital children.
How are non-marital children vis-a-vis father treated?
Many states impose additional requirements on non-marital children in order to inherit from father, such as determination of paternity or father acknowledging the child as his own
The child will inherit from his father if:
- The father married the mother after the child’s birth,
- The man was adjudicated to be a father in a paternity suit, or
- After death and during probate proceedings, the man is proved by clear and convincing evidence to be the father.
How does intestacy treat stepchildren?
Stepchildren are not included in intestate distributions, unless the parent has adopted the child.
Minority includes them.
May still be included under the doctrine of estoppel.
How does intestacy treat a collateral heir who shares only one common ancestor with the decedent?
“Half-blooded heirs” i.e. a half sibling
Jurisdictions vary as to the effect. Options:
- No distinction (UPC and majority)
- Half shares (minority)
- Cut them out if other whole-blooded collaterals exist (minority)
How does intestacy treat a posthumously born child (child born after death of parent)?
Posthumous descendant of decedent (child in gestation at decedent’s death) - an exception to the general rule that one cannot claim as an heir of another unless alive at the person’s death.
Jdns vary as to whether that child can inherit, and the time by which child needs to be conceived or born.
If an heir murders the intestate, what will be intestacy’s remedy?
Heir will not be able to inherit, either due to a “slayer statute” or the equitable remedy of a constructive trust (prevents unjust enrichment).
Murder 1 - definitely can’t gain.
Courts divided on lesser degrees (negligence, i.e.)
Doesn’t matter if you kill testator’s spouse, rule doesn’t prohibit that.
How will a parent’s failure to support their child affect their later ability to collect shares from intestate child?
A bio parent or parent kin cannot inherit through child, unless parent can prove that they deserve to inherit by openly treating person as a child, and not refusing to support the child
What effect will a parent’s child abuse have on their ability to collect from child’s estate in intestacy?
Some states limit the inheritance right of heirs who physically or financially abuse their children.
What effect will a parent’s adultery have on their ability to collect from child’s estate in intestacy?
Some states place limits on inheritance rights
What is an advancement, in intestacy?
An irrevocable gift intended by the donor as prepayment of an inheritance, given as a lifetime gift to an heir.
At old common law, a substantial lifetime gift to one of the decedent’s children was presumed an advancement.
Modern CL: a lifetime gift is presumptively NOT an advancement unless shown to be intended as such.
UPC: advancement only if (1) declared as such in contemporaneous writing by the donor, or (2) acknowledged as such in a writing by the heir (needs not be contemporaneous)
Value determined at time of gift (inflation doesn’t matter)
How can someone show proof of advancement of an inheritance?
Many states require writing signed either by donor or donee. Some states allow oral proof.
What is the effect of an advancement, for purposes of intestate distribution?
The advance goes back into the pot of money. Compute shares as though the advancement were still in the estate, and then subtract the gift from the recipient’s share. The heir need not return the amount of an advancement in excess of the value of her intestate share.
Majority: binding upon those who succeed to estate of advancee if the advancee predeceases the intestate
UPC minority: advancement is NOT binding on the advancee’s successors unless the required writing states that it is
Compare will “satisfaction” (the whole share is gone)
What happens if the heir dies really soon after the intestate?
Most states require survival by 120 hours. If there is insufficient evidence to rebut, heir is treated as though they predeceased?
Can an heir/beneficiary reject an advancement, in intestacy?
Yes, they can DISCLAIM because the gift could have burdensome consequences, could have tax implications if treated as a gift, and may want to avoid creditors (disclaimed property can’t reach creditor, exception for federal tax lien)
To disclaim, must be written, signed by disclaimant, sworn and signed by notary, filed with appropriate court within 9 months of date of death (or within 9 months of beneficiary’s 21st birthday).
For federal tax purposes, a surviving joint tenant may disclaim her interest only within 9 months from the other joint tenant’s death. The holder of a future interest may disclaim only nine months after the interest was created.
Can’t disclaim if you have accepted or have received any benefits. If you disclaim, it’s irrevocable.
Disclaimed property passes as if disclaiming heir predeceased decedent. Can’t direct the benefit.
Disclaimer may be made by a guardian on behalf of an infant or incompetent, or a personal representative on behalf of a decedent, if the court finds that it is in the best interest of those interested in the estate of the beneficiary and is not detrimental to the best interests of the beneficiary.
Can someone disinherit an heir without leaving a will giving the property to someone else?
AKA negative will.
You can expressly disinherit someone only if you make disposition of remaining property. If the testator dies partially intestate, the express disinheritance will be ineffective.
Under UPC: testator may exclude the right of an individual to succeed to property passing by intestate succession. If the person survives the decedent, his intestate share passes as though he had disclaimed it (large minority)
Ex. Can’t say “I don’t want my daughter to get estate” without providing for someone who will.
Must executors comply exactly with the terms of a valid will?
Most states require exact compliance with all requirements.
The UPC permits courts to excuse minor errors (substantial compliance test)
What state’s law attaches to real property in a will, for purposes of determining whether will is valid?
The law of the situs (Where the property is)
What state’s law attaches to personal property in a will, for purposes of determining whether will is valid?
Law at place of death.
What are the major requirements of a valid will or codicil?
- Testamentary intent (presently intends to make a will)
- Testamentary capacity
- Formalities
What is a codicil?
An amendment to an existing will. Needs to meet the same requirements of a will (capacity, intent, formalities)
What is the “testamentary capacity” requirement of a valid will?
Typically,
- 18 years old AT TIME OF SIGNING unless married or military then can be under 18.
- Of sound mind
The standard is lower than the power to contract.
Sound mind:
- Understand the action (making a will)
- Comprehend the effect of action (disposes of property upon death)
- Know general nature and extent of property (exact knowledge not needed)
- Recognize the natural objects of bounty (who their family members are)
- Simultaneously hold elements in mind (do the above 4 things at the same time, see their relationship, form reasonable judgment as to them
Standard is determined at time of will’s execution.
Fact that a testator was old, ill, possessed failing memory, or was drinker/drug addict does not mean that lacked testamentary capacity.
Can mentally challenged individuals make a valid will?
Yes, if they can meet the five elements of testamentary capacity?
If someone has been adjudicated to be “incompetent” may they make a valid will?
Adjudication of incompetency creates rebuttable presumption of lack of testamentary capacity, but can overcome if during “lucid interval.”
Can a sane person ever fail to meet the testamentary capacity element?
Sure, all the time, especially if they’re under the influence of intoxicating substances, or are disoriented due to an accident or medical procedure.
What is the “testamentary intent” requirement for a valid will?
Must presently intend that the very instrument executed will be the will.
“I am going to write a will to leave my jewelry to you” will not meet test.
Parol evidence is admissible to show that an instrument was not meant to have any effect (sham will).
When it is not clear whether an instrument was intended to be testamentary, testamentary intent will be found only if it is shown that the testator:
- Intended to dispose of the property
- Intended the disposition to occur only upon her death
- Intended that the instrument in question accomplish the disposition
What are the elements required to meet the “formalities” required for a valid will, when the will is an attested/formal will?
- In writing (can be written on anything)
- Signed by testator or proxy (initials and illegible signature OK)
(proxy signature only if in testator presence and by testator request) - Attestation (see next)
Signature - any mark affixed by the testator with intent that it operate as signature satisfies the signature requirement. May be made by proxy. Proxy can also count as an attesting witness. Order of signing doesn’t matter, so long as it is one contemporaneous transaction. Most states, valid if signed anywhere, not just at the end.
minor point: where state requires sign at end, and testator doesn’t sign at end, some states void and some states void only what is after the signature.
What are the required elements to meet the “attestation” requirement within the “formalities” requirement of an attested/formal will
All states:
- At least 2 witnesses (UPC: or a notary)
- Witnesses have capacity (able to testify in court - old enough and sufficient capacity)
- Testator’s sign in conscious presence of the witnesses (majority: “conscious presence” test each parties were conscious of where other parties were and what doing, and act of signing took place within the general awareness and cognizance of other parties; large minority require “scope of vision” - could have seen sign)
- Witness signs in presence of testator
Minority of states also require:
- Testator must sign at end of will
- Testator must publish the will (inform W that it is a will)
- Witnesses sign in each other’s presence
Ramifications of using interested witnesses (many states void gifts - purging statute; UPC - not purged). Either way, will still valid. Exception: if the witness was supernumerary (not necssary for meeting 2 requirement)
Attestation clause isn’t required but is prima facie proof that formalities are satisfied; doesn’t excuse witnesses from coming to court though.
If have self-proving affidavit, witnesses don’t need to come to court
What is a self-proving affidavit?
Testator and witness swear under oath that requirements for a will were satisfied. Witnesses don’t then need to come to court if uncontested, it functions as a deposition.
May be separate document or combined with will depending on jdn.
What is a holographic will?
Recognized by the UPC and majority of states. A holographic will is an unattested will entirely in the testator’s handwriting, with no attesting witnesses. The fact that the will is handwritten does not make it a holographic will.
Requirements:
- material provisions to be in testator’s handwriting
- testator signature, but that can appear anywhere in document (nickname, first name, initials - OK).
- testamentary intent/testamentary capacity
Usually, if amendments are made to a holographic will later, the change will be honored (note: if modification to an attested will by hand, will be excluded unless it can meet the requirements of a valid holographic codicil).
Witnesses aren’t required in about half the states.
Often lose on TESTAMENTARY INTENT:
Ex. letter to attorney asking him to incorporate new provisions into the will does not constitute a modification through holographic codicil.
What is a noncupative will?
Oral will.
Recognized in only a few states under really limited circumstances, like for PERSONAL PROPERTY if testator was dying or in military. Required: 2 witnesses.
What if you determine a will is invalid?
Cycle back and analyze under the intestacy rules.
