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Themis > Wills > Flashcards

Wills Flashcards

1
Q

supplement that changes or amends the will in whole or part

A

codicil

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2
Q

Simultaneous Death

A

must be CLEAR AND CONVINCING evidence heir survived decedent by 120 HOURS

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3
Q

Intestate Succession w/r/t Spouses: Decedent is survived by descendants who are also descendants of surviving spouse, and surviving spouse has no other descendants [Spouse + shared descendants]

A

surviving spouse takes entire estate

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4
Q

Intestate Succession w/r/t Spouses: Decedent is survived by a parent but no descendant [Spouse + parent]

A

Surviving spouse takes $300,000 and 75% of the remainder of the
estate

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5
Q

Intestate Succession w/r/t Spouses: Decedent is survived by descendants who are also descendants of the surviving spouse, and the spouse has other issue [Spouse + shared descendants +spouse’s kids]

A

Surviving spouse takes $225,000 and 50% of the remaining property

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6
Q

Intestate Succession w/r/t Spouses: Decedent is survived by issue not related to the surviving spouse [Spouse + non-spousal kids]

A

Surviving spouse takes $150,000 and 50% of the remaining property

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7
Q

Intestate Succession w/r/t Spouses: Decedent is not survived by descendants or parents [Just spouse]

A

Surviving spouse takes entire estate

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8
Q

Intestate Succession: decedent dies w/o heirs

A

property escheats to the state

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9
Q

Issue Issues: Posthumously Born Children

A

If child is born within 280 days of husband’s death, there is a rebuttable presumption that the child is the husband’s and the child will inherit from husband as if child was born before husband died.

Uniform Parentage Act increases period to 300 days

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10
Q

Calculating the Issue’s Share: Per Stripes

A

(Divides shares equally according to a decedent’s lineal line)

Step 1: Divide shares into the total number of children who survive leave issue who survive,
Step 2: Divide by representation

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11
Q

Calculating the Issue’s Share: Per Capita w/ Representation

A

(a) Divide the property equally at the first generation where a member survives the decedent.
(b) If there are deceased members at that first generation, their shares drop down to their surviving issue at the next generation.
(c) If a deceased member of a generation is not survived by living issue, then that member does not take a share.

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12
Q

Calculating the Issue’s Share: Per Capita at Each Generation

A

[UPC!]

(a) Divide property into equal shares at the first generation where there is a surviving member
(b) Instead of passing a deceased member’s share by representation, however, this method pools the remaining shares (i.e. in the subsequent generation)
(c) Pooled shares are divided equally at the next generation (i.e. don’t get disadvantaged because your parents profligate)

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13
Q

Disinheriting Children

A

The UPC allows an individual to disinherit an heir

Must be done by a properly executed will

Disinherited heir is treated as having predeceased the
decedent

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14
Q

Three formal execution requirements for Wills

A

(1) Signed Writing (some states req. at the end of the doc)
(2) Witnesses (usually at least 2)
(3) Testamentary Intent

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15
Q

Form of Signature for Wills

A

A formal signature is not required

Signature must indicate testator’s desire to sign

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16
Q

Witness Reqs. for Wills

A

Most states require that the will be signed in the presence of at least 2 witnesses.

Witnesses must also sign:

(1) Most JXs:
(a) Testator must sign or acknowledge the will in the presence of the witnesses; and
(b) Witnesses must sign in the presence of the testator.
(2) UPC: Witnesses must sign w/in a reasonable time of the original signature by the testator.

Two views of “in the presence”

(1) Traditional Approach: line of sight
(2) Modern Approach: Witness or testator must be aware act is being performed, even if cannot see

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17
Q

If a witness has a direct financial interest in the will…

A

Common Law: Interested witness was not competent to witness the will

Purge Theory: (Many states have adopted)
(a) If a witness (or witness’s spouse) has a direct financial interest under the will, it
does not affect the validity of the will
(b) BUT, probate court will purge any gain in excess of
what the witness would take under intestate succession o -Exceptions! Don’t purge if…
(a)There were two other disinterested witnesses, OR
(b) the interested witness would take a share under intestate succession AND interested witness takes the lesser of intestate share or bequest

UPC: doesn’t matter (abolished interested witness doctrine)

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18
Q

Req. for Testamentary Intent

A

Must have present intent to make a testamentary transfer

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19
Q

If formalities in forming will are not met…

A

Common Law (majority rule): strict about the formalities

Modern View (UPC and minority rule):
-substantial compliance with statutory
formalities
-Even if formality is not met, a court will nevertheless admit to probate if there is clear and convincing evidence that the decedent intended the document to serve as his will

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20
Q

An informal, handwritten will.

A

What is a “Holographic Will”?

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21
Q

Reqs for Valid Holographic Will

A
  • Needn’t be Witnessed
  • MUST be signed
  • How much writing?
    (a) Some jurisdictions: any markings not in testator’s handwriting invalidates the will
    (b) UPC: Only requires that material provisions be in testator’s handwriting
  • Intent (UPC expressly authorizes looking to extrinsic evidence to est. intent.)
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22
Q

Reqs. for valid Codicil

A

anything that satisfies reqs for valid Will (holographic or otherwise)

remember that a codicil doesn’t replace the previous will

23
Q

Will Substitutes (Non-Probate Transfers): 5 Examples

A

(1) Joint Tenancy: Avoids Probate b/c of right of Survivorship
(2) Revocable Trust: Avoids probate because it is an Inter Vivos Transfer
(3) Pour-Over Will: Avoids probate because it distributes under a trust
(4) Payable On Death Contract: Avoids probate because it distributes by an inter vivos transfer
(5) Deed: Avoids probate because it is an inter vivos transfer

24
Q

How to Revoke a Will by Subsequent Instrument

A

(a) express revocation
(b) inconsistency
- Later writing is inconsistent with prior will(s).
- So long as validly executed, a later document controls

25
Q

How to Revoke a Will by Physical Act

A

may achieve by tearing, burning, or crossing things out with INTENT

Destroying specific language:

  • Majority: The particular language in question must be destroyed
  • UPC: Only requires that destructive act affect some part of the will
26
Q

How to Revoke a Will by Operation of Law

A

o Divorce revokes all will provisions in favor of the former spouse
o Exception: There is evidence that testator wanted will to survive

o By contrast, a subsequent marriage does not revoke a will because a surviving spouse is entitled to take an elective share.

27
Q

Lost Wills

A

-Know a will exists, but cannot find it at testator’s death
-Creates a rebuttable that testator revoked will by physical act
-Burden is on proponent to show will’s existence by
clear and convincing evidence

Duplicate Originals: can be admitted
Copies: cannot be admitted

28
Q

Revocation w/r/t Wills with Codicils

A

Revoking the underlying will revokes the codicil

If a testator revokes a codicil, the underlying will is revived in its original form.

29
Q

Revival of Prior Will

A

UPC (and majority): Revocation of the second will does NOT automatically revive the first will.

Dependent Relative Revocation (DRR): Provides a safety valve for testators who revoke a will on the basis of a mistake (in law or fact) –> invalidates the mistaken revocation and revives the earlier revoked will.

30
Q

Incorporation by Reference

A

A will may incorporate an extrinsic document that is not testamentary in nature, if:

(1) The document is in existence at the time of execution
(2) The testator intends the document to be incorporated into the will; AND
(3) The document is described in the will with sufficient certainty to permit its identification.

31
Q

Acts of Independent Significance

A

A testator can dispose of property based on some act or event that is unrelated to the execution of the will. (e.g. devising to a daughter-in-law when children unmarried)

32
Q

Lapse and Anti-Lapse Statutes

A

Common Law: Lapsed gifts would be dumped into the residue. EXCEPTION: if class gift, rest of class shares that member’s gift

Anti-lapse statutes:
(1) protected relationship
(2) survived by issue
If these requirements are not met, the common law rule applies and the gift goes to the residuary

33
Q

Abatement hierarchy:

A
  1. Property not disposed of by a will (i.e. intestary property) (first to be reduced)
  2. Residuary Gift
  3. General bequests
  4. General bequests of cash, stocks, and bonds
  5. Specific bequests to other takers
  6. Specific bequests to T’s issue
  7. Specific bequests to T’s spouse—most protected (last thing to be reduced)
34
Q

Ademption by Extinction

A

Traditional Rule: Devise is extinct and the devisee takes nothing Often called the identity theory

UPC Follows the modern approach:

(a) Look to the testator’s intent at time she disposed of the property.
(b) Looking for facts that suggest the testator intended the ademption
(c) UPC tries to avoid ademption. The UPC provides for beneficiary take replacement property on a specific gift.

35
Q

Reqs for Ademption by Satisfaction

A

(1) Testator must intend for the gift to adeem; and

(2) Intent must be supported by writing.

36
Q

Ambiguities

A

Patent Ambiguity: appears on the face of the document
Latent Ambiguity: cannot see ambiguity just by looking at the face of the document (e.g. “to my brother” but 3 bros.)

TraditionalRule:

  • patent ambiguities had to be resolved without looking to extrinsic evidence
  • Extrinsic evidence was admissible to resolve latent ambiguities.

Modern Rule: Most courts allow both ambiguities to be resolved with extrinsic evidence

37
Q

Mistakes

A

courts usually not forgiving - follow what the document says

38
Q

What means of support are spouses entitled to?

A
  1. Social security and pension plans
  2. Homestead exemption
  3. Personal property set asides
  4. Family allowance for reasonable living expenses during probate
  5. Elective Share
39
Q

Elective Shares (right of surviving spouse)

A

will change gifts to other beneficiaries

UPC: Forced share is 50% of the decedent’s augmented estate.

Augmented Estate: The UPC subjects property acquired before the marriage, as well as property acquired during the marriage, to the elective share. The elective share under the UPC is broader than a community property share.

40
Q

How can a surviving spouse waive an elective share?

A

(1) Waiver is in writing, after a fair disclosure of its contents; and
(2) Spouse is represented by indepenent legal counsel

41
Q

Advancement

A

Lifetime gift to a child that is treated as satisfying all or part of the child’s intestate share

42
Q

Two views on advancements

A

Common Law:

  • Any lifetime gift was presumed to be an advancement of that child’s intestate share
  • Child had burden to show that item was an outright gift

UPC: A gift is an advancement only if:

  • Decedent declared in a contemporaneous writing that gift was an advancement (or heir acknowledged as such in writing); or
  • Writing indicates that gift should be taken into account in computing the division of property of the decedent’s estate
43
Q

Calculating effect of advancement

A

“Hotchpot” analysis

(1) Add the value of the advancements back into the intestate estate.
(2) Divide the resulting estate by the number of children taking.
(3) Deduct the child’s advancement from the child’s intestate share.

44
Q

Omitted children

A

Intentional Disinheritance: A parent can intentionally disinherit his children

Unintentional Disinheritance: Testator has a child after executing a will and dies without amending the will

  • If Testator had no other children when the will was executed, then omitted child takes her intestate share
  • If Testator had at least one child at the execution of the will, and the will devised property to at least one of those children, then the omitted child takes an equal share from the portion of the property already devised to the other child.
45
Q

Reqs to disclaim inheritance:

A

Disclaimer must be:
(1)
(a) in writing, signed, and filed with court; OR
(b) declared to the person in charge of distributing estate; AND
(2)
(a)identify the decedent,
(b) describe the interest being disclaimed, AND
(c) define the extent of the disclaimer.

Timing: must disclaim w/in 9 months of the decedent’s death

46
Q

Bars to inheritance

A

Slayer statute (though your issue might still inherit under UPC)

Elder Abuse

47
Q

How long does an interested party have to file a contest claim?

A

Interested party must file a contest claim within 6 months after the will is admitted to probate.

48
Q

Testamentary Capacity

A

Whether the testator had the ability to know:

  1. The nature of the act — “The why Question”;
  2. The nature and character of her property — “The what Question”;
  3. The natural objects of his bounty — “The who Question”; and
  4. The plan of the attempted disposition — “The how Question.”
49
Q

Showing undue influence

A

Required Proof: Contestant bears the initial burden of showing:

  1. The beneficiary received a substantial benefit under the will;
  2. The beneficiary had a confidential relationship with the testator; and
  3. Testator had a weakened intellect at the time of execution

Burden Shift

  • If contestant meets the burden, creates a presumption of undue influence
  • Burden shifts to the proponent (third party) to show by a preponderance of the evidence that there was no undue influence.

Consequences: Beneficiary is treated as if he predeceased the testator to the extent that the gift is in excess of the beneficiary’s intestate share

50
Q

insane delusion

A

(1) Objective test:
(a) Measure testator’s insane delusion against that of a rational person in the testator’s position.
(b) Belief is an insane delusion if the rational person could not have reached the same conclusion.
(2) Causation: Contestant must show that the insane delusion was a but-for cause of the testamentary disposition.

51
Q

UPC: Probate proceedings must be brought within ______________________________________, after which there is a presumption of intestacy

A

3 years of death

52
Q

Seven classes of creditors (from most important to least important):

A 
o Administrative expenses
o Medical and Funeral Expenses
o Family Allowances
o Taxes
o Secured Claims
o Judgment sagainst the Decedent
o All other claims
53
Q

Duties and Duties owed by Personal Representative

A

Duties of Personal Representative

  1. Inventory and appraise the estate
  2. Locate and contact interested parties, including creditors,
  3. Satisfy debts, including taxes, burial expenses, and support payments
  4. Close the estate

Duties owed by Personal Representative
o Personal representative is a fiduciary, owing duties of loyalty and care.
o Personal representative cannot engage in self-dealing

The personal representative gets paid.

54
Q

To be valid, an appointment of power of attorney must…

A

be:

1) in writing
2) signed; and
3) dated

Themis (12 decks)

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