Wills Flashcards

1
Q

In intestacy, what is the spouses share if the decedent is survived by: spouse and shared descendants?

A

Spouse takes entire estate

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2
Q

In intestacy, what is the spouses share if the decedent is survived by: Spouse + parents but no descendants

A

Spouse takes 300k and 75% of the remaining estate

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3
Q

In intestacy, what is the spouses share if the decedent is survived by: Spouse + shared descendants + spouse’s nonshared kids

A

Spouse takes 225k and 50% of the remaining estate

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4
Q

In intestacy, what is the spouses share if the decedent is survived by: Spouse + non-shared kids

A

Spouse takes 150k and 50%

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5
Q

In intestacy, what is the spouses share if the decedent is survived by: Just spouse

A

Spouse takes everything.

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6
Q

Per Stirpes is when

A

Surviving child stands in place of deceased parent

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7
Q

Per capita with representation is when?

A

the estate is divided at the first level with surviving members and the shares of those who are deceased in that generation drop down to the surviving issue at the next generation. If deceased member with no issue, they get no share.

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8
Q

Per capita at each generation is?

A

Estate divided at first level with surviving member then remaining is pooled and redivided to issue at next level.

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9
Q

Can you disinherit a child?

A

Yes in a properly executed will.

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10
Q

What is required to execute a will?

A

Capacity (over 18), singed writing, witnesses, and testamentory intent.

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11
Q

What types of presence is acceptable for witneses?

A

Most require line of sight presence, others allow conscious presence.

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12
Q

What is the purge theory?

A

A witness with an interest in the will will have his interest purged in excess of what the witness would take by intestate succession. UPC no longer follows the purge theory.

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13
Q

What happens if there is a failure to satisfy formalities of will execution?

A

at common law the will is invalid, modern view allows substantial compliance, i.e. if there is clear and convincing evidence that the document was intended to be a will it will be admitted to probate.

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14
Q

What is a holographic will?

A

An informal, unwitnessed will. Must be signed to be valid. At common law any non testator marking invalidate, at UPC the material provisions must be written by the testator. There must be intent!

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15
Q

How can a will be revoked?

A

Any time until death by subsequent instruments that are inconsistent or expressly revoke the prior will, physical acts with intent to revoke, or operation of law (divorce revokes provisions in favor of former spouse).

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16
Q

How does revoking a codicil affect a will?

A

It revokes only the codicil and revives the original will.

17
Q

What is dependent relative revocation?

A

If a will is revoked on the basis of mistake in law or fact, the DRR will revive the revoked will.

18
Q

How are wills constructed?

A

Plain meaning unless the will states otherwise.

19
Q

A will can incorporate a document if?

A

The document exists at the time of execution, the testator intends the document to be incorporated, and the document is described sufficiently to identify it.

20
Q

What is an anti-lapse statute?

A

It prevents a gift from lapsing if there is a family relationship and the intended recipient is survived by issue.

21
Q

What is the order for abatement?

A

Residual gift, General bequests to others, general bequests to family, specific bequests to others, specific bequests to family, specific bequests to spouses.

22
Q

Ademption has what two rules?

A

Traditionally, the devise is extinct, under the UPC however, the testators intent is considered and the beneficiary may take replacement property.

23
Q

What is a surviving spouses elective share?

A

A choice to take 50% of the decedents augmented estate.

24
Q

What are the views on lifetime gifts to children?

A

Common law viewed them as satisfying a child’s intestate share, the UPC views them as satisfying intestate share only if that was declared in a writing.

25
Q

If a child is unintentionally disinherited, what do they take?

A

If no other children, their intestate share, if other children,their share of that inheritance.

26
Q

Undue influence requires:

A

Showing the beneficiary received a substantial benefit under the will, had a confidential relationship, and that the testator had a weakened intellect at time of execution.

27
Q

A no contest clause is?

A

Unenforceable under the UPC.