Wills Flashcards
Intestate Succession
Any property not passing by a valid will or by operation of law will be governed by a state’s applicable intestacy statute
General distribution order under intestacy
Depending on who survives decedent
- Only spouse - spouse gets entire estate
- Spouse and kids - certain percentage according to state statute, EXCEPT under UPC: spouse gets everything if decedent’s kids are her kids too
- No spouse, just kids - kids get entire estate
- Everyone else generally if no spouse: issue (kids, grandkids, great grandkids), parents, siblings, grandparents, aunts/uncles, step-kids, next of kin, parent in laws, sibling in laws, escheat
Will execution requirements
Under UPC, a will must be
- in writing
- signed by testator, AND
- in presence of at least 2 witnesses who understand what they’re witnessing is a will OR notarized
Holographic will
Handwritten will that is not witnessed.
- Not all states recognize holographic wills
- States that do recognize, require signature by testator
Interested witnesses rule
Will NOT valid if any of the two witnesses are receiving a benefit under the will, UNLESS:
- the interested witness is an heir, any gift to wtiness reduced to an intestate share, OR
- if another disinterested witness was present so that there were still a total of two disinterested witnesses
Codicils
Instrument made after a will is executed that modifies, amends, or revokes a will. Must satisfy same formalities as a will to be valid.
Holographic Codocils
Revokes any earlier valid will to the extent it conflicts with the codicil. Only available in states that recognize a holographic will
Integration of Documents into the Will
**Tip - look for staples, numbered pgs, etc.
Document will be integrated into the will if testator intended it to be a part of will, AND document physically present at time of will’s execution
Incorporation by reference
Document or writing can be incorporated if:
- in existence at time will was executed
- sufficiently described in the will, AND
- testator intended to incorporate the document/writing
Acts of Independent Significance
May use an act of independent significance (acts outside the will-making process) to fill any gaps of a will.
Revocation by Physical Act
Revoked if testator
- intended to revoke will, AND
- the will is burned, torn, destroyed or cancelled by testator (or under his direction and in his presence)
Revocation by Subsequent Will or Codicil
Can revoke a will by executing a subsequent valid will or codicil. New will revokes previous will only to the extent the previous will conflicts, UNLESS new will expressly revokes the previous will in its entirety
Dependent Relative Revocation Doctrine (DRR)
Cancels a previous revocation that was made under a mistake belief of law or act by the testator.
Applies when testator would not have revoked his original will but for the mistake belief that another will he prepared would be valid
Revival of a Will
Modern view:
A will revoked by a physical act will be revived if testator shows intent for revival,
OR
A will revoked by subsequent instrument can be revived if testator republishes the will by a subsequent will or codicil
Distribution of Property according to the Terms of a Will
Property distributed according to terms. A will takes effect at time of testator’s death and treated as if it was executed immediately before the death.
Distribution according to Per Capita at Each Generation
**Need to look up
Distribution according to Per Stirpes
**Look up
Distribution according to Modern Per Stirpes
**Look up
Issue with Advancements
Common law: gifts to heirs inter vivos considered an advancement of their intestate share, and would be deducted from the heir’s share of the estate
Moder view and UPC: gifts to heirs are not deemed advancements UNLESS:
- will provides for deduction of the gift, OR
- it was indicated in writing that the property was in satisfaction of a devise
Simultaneous death
T and Devisee die at same time, then devisee will be deemed to predecease T
If Joint tenants - jt separates and become tenants in common
If husband and wife - common prop and qualified cp divided in half
Rule of Lapse
All gifts in a will were conditioned on the beneficiary surviving the testator. If beneficiary doesn’t survive testator, then their gift goes to residuary estate or pass through intestate rules
Anit-lapse statutes
If predeceased beneficiary is T’s blood and leaves issue, then issue will step into shoes of the predeceased and take gift
Ademption by Extinction
If specific gift is not identifiable at the tie of testator’s death or testator does not own it anymore, it does not pass
Exception to Ademption by Extinction
Replacement property - T replaced gifted item with another similar item
Money devise equal to the value of gift
Stock Splits and Dividends as gifted item
Beneficiary that is gifted securities in a will is entitled to additional shares owned by the testator that were acquired as the result of stock splits or dividends
Exoneration
Common law - specific devise of real property DOES NOT pass subject to any mortgage, mortgage paid from estate
Modern view - specific devise of real property ASSUMES the mortgage
Abatement
If there are more creditor claims against the estate than there are assets to cover all of the gifts under the will, the gifts will abate (get reduced/used to pay off creditors before passing)
Abatement order
Order that gifts get used to satisfy creditors. Note ALL of one category gets used up prior to moving on to the next category. (ie. all intestacy gets used before residuary gets tapped)
- property passed by intestacy
- residuary gifts
- general gifts
- specific gifts
Slayer statutes
Individual who intentionally kills the decedent forfeits all benefits and entitlements to the decedent’s estate
Disclaimer
Beneficiary renounces their benefit in a will. Must be:
- declared in writing
- describe the interest disclaimed
- signed by person making disclaimer, AND
- be delivered or filed
Effect of Divorce on a will
May result in revocation of a will.
Common law: bequest was NOT revoked by divorce
Modern view: final divorce decree revokes any
- gift or property to former spouse and their relatives
- power of appointment given to former spouse or relative of former spouse
- ability of former spouse to serve as any type of fiduciary or representative
Effect of a prenuptial on a will
Prenup agreement between spouses waiving rights to each other’s assets upon divorce DOES NOT apply to voluntary gifts or bequests
Class gifts
Like property. Gift intended for a group ie. “children”
- adopted child treated like a natural child
Class generally closes at the death of testator. Legally, class closes when any member of class is entitled to possession
Rights of an ommitted child
If left out of the will, a child has NO rights to their parents estate. Child must be expressly intentionally disinherited or could get share of intestate property passed outside of the will.
Exception: pretermitted child - a child born after the will was made
Adopted children
Adopted children treated as natural child - gets the same share in intestacy
Informal adoption - when a person takes in a child and assumes parental responsibilities - entitled to an intestate share
Testamentary capacity
To have legal capacity to execute a will, a testator must be capable of knowing and understanding
- nature and extent of his property
- natural objects of his bounty (relatives and friends), AND
- knows the nature of his act
Undue Influence
Will invalid if executed under undue influence (when a person exerts influence that overcomes a testator’s free will and judgment)
Prima facie case for Undue Influence
- weakness of testator (physical, emotional, mental)
- susceptibility of testator
- access and opportunity of wrongdoer
- wrongdoer actively participated in drafting the will, AND
- unnatural result
Standing to challenge a will
Person has standing if
- they are a beneficiary of the will
- should be a beneficiary of the will, OR
- would be financially benefited if the decedent died without a will
No-Contest Clauses
Clauses that penalize someone (if they lose) for trying to contest the validity of the will. Generally valid, UNLESS
- beneficiary with reasonable cause brings contest on the grounds of forgery, revocation, or invalid transfer
