Wills

Question 1

Intestacy - when applicable

Answer 1

1. Use when no will; will fails; or property isnt dealt with in will (no residual clause)
   
   2. If spouse survives and there are no children, spouse typically takes the estate entirely. (unlikely on bar)
   3. Then, if there are children, spouse will take 1/2 spousal share (or 1/3 in some states) and the rest is divided among the children.
   4. If there are children, then parents and siblings of deceased will not receive anything via intestacy
   5. If there are no children, then look to parents, siblings, other relatives of the deceased.
   6. Anything left escheats to the state (rare)

Question 2

Intestacy - Three Schemes

Answer 2

The three leading schemes are: per capita by representation; per capita at each generational level, or strict per stirpes. Under per capita by representation, the estate is divided at the first level of living takers. Under per capital at each generational level, each generational level takes equally, and the initial division occurs at the first generational level with living takers. Under classic per stirpes, the division would take place at the first level regardless of whether there is a living relative.

Question 3

Intestacy - generally (no schemes)

Answer 3

Typically, the property would pass to the spouse and/or children. Absent spouse or children, the property would pass to parents and/or siblings of the deceased.

Under intestate schemes, the children of the sibling will take their parent’s share.

Question 4

Ademption

Answer 4

• Under the doctrine of ademption, when specifically bequeathed property is not in the testator’s estate at death (e.g it was destroyed, sold, given away or lost), the bequest is adeemed; i.e it fails.

Question 5

Ademption - Exception

Answer 5

Under the doctrine of ademption, when specifically bequeathed property is not in the testator’s estate at death (e.g it was destroyed, sold, given away or lost), the bequest is adeemed; i.e it fails. Ademption applies because the property that was to have satisfied the bequest was not owned by the testator at her death.

However, when a guardian or conservator is appointed for a testator after the will has been executed and the bequeathed property is sold by the guardian, the beneficiary is entitled to the sale proceeds.

Question 6

Basic Req. of Will

Answer 6

(only if facts don’t provide a rule)

- The formalities required for execution of a will vary from state to state. Most states require the following formalities:
		1. The will or codicil must be signed by the testator, or by another person at the testator's direction and in her presence
		2. There must be two attesting witnesses
		3. The testator must sign the will (or acknowledge her previous signature or acknowledge the will) in each of the witnesses' presence. 
		4. The witnesses must sign in the testator's presence.

Question 7

Divorce (effects on will)

Answer 7

If a testator is divorced after making a will, all gifts to the former spouse are revoked by operation of law and the will operates as if the former spouse predeceased the testator. In most states, absent a valid revocation, gifts to other individuals will pass as stated in the will regardless of the relationship.

UPC follows a different rule.

Question 8

Non-Probate Assets

Answer 8

Life insurance proceeds are a non-probate asset and pass to the beneficiary outside of the estate. A life insurance policy is a contract, and the disposition of the proceeds is governed by the terms of the contract. Most life insurance policies allow individuals to change the beneficiaries but only by adhering to the contract’s policies on such changes. A will cannot change the beneficiary unless the life insurance contract specifically allows it.

Question 9

Incorporation (by reference)

Answer 9

In most states, a document that is not present when the will is executed may be incorporated into the will by reference and considered part of the will if (1) it was inexistence at the time the will was executed; (2) the will sufficiently describes the document, and the will manifests an intent to incorporate the document. For personal property, however, most states and the UPC require only that the writing is signed by the testator and the items and devisees are described with reasonable certainty.

Question 10

Anti-Lapse Statutes

Answer 10

Typically, if a will beneficiary dies during the testator’s lifetime, then the gift to him will fail or lapse. All states have some form of anti-lapse statute which will save the gift in some circumstances. However, the majority of states do not include a predeceasing spouse and the gift will lapse and fall into the residuary clause or absent that, into intestacy.

Question 11

Abatement

Answer 11

When an estate’s assets are insufficient to pay all claims and satisfy all bequests and devises, the gifts abate. Abatement is the process of reducing gifts. Unless the will states a specific method of abatement, gifts abate in the following order: intestate property, the residuary estate, general legacies, and specific devises and bequests.