Wills

Question 1

how are intestate shares usually distributed?

Answer 1

per capita with representation

Question 2

what inheritance rights do stepchildren have?

Answer 2

none

Question 3

The decedent and her only child were involved in a plane crash. Neither was alive when the emergency team reached them. The child, who died without a will, is survived by a spouse. The decedent is survived by only a brother. The decedent left a sizeable intestate estate and a life insurance policy naming the child the sole beneficiary. Who will share in the decedent’s estate, and who will take the insurance proceeds?

Answer 3

decedent’s brother.

Both parties were dead when help arrived; thus, there is no sufficient evidence that one survived the other. The decedent’s estate will be distributed as though she survived the child. If the child predeceased the decedent, the decedent’s brother is her only intestate heir and will take the estate. The USDA also applies to life insurance, so the insurance proceeds will be paid to the decedent’s estate and also pass to the brother.

Question 4

Under the Uniform Simultaneous Death Act (“USDA”), when the title to property or its devolution depends on priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, how is property disposed?

Answer 4

The property of each person is disposed of as if he had survived.

Question 5

Does the Uniform Simultaneous Death Act (“USDA”) apply to life insurance?

Answer 5

Yes.

Question 6

If one of two joint tenants kills the other, how is title to the property held?

Answer 6

The killer and the victim’s estate each own one-half of the property as tenants in common.

Question 7

To execute a valid attested will, the testator must sign the will in the presence of two attesting witnesses who must:

Answer 7

Sign in the presence of the testator.

Question 8

When a specifically bequeathed item is not in the testator’s estate at his death, what will the court consider in determining whether the bequest is adeemed?

Answer 8

Whether the property was disposed of by a guardian. Intent is irrelevant!

Question 9

When will a court consider extrinsic evidence to interpret a will?

Answer 9

When the language of the will is ambiguous.

Question 10

special power of appointment

Answer 10

exercisable in favor of a limited class of appointees that does not include the donee, her estate, her creditors, or the creditors of her estate

Question 11

general power of appointment

Answer 11

exercisable in favor of the donee herself, her estate, her creditors, or the creditors of her estate

Question 12

presently exercisable general power of appointment

Answer 12

exercisable by the donee during her lifetime in favor of the donee, her estate, her creditors, or the creditors of her estate; also exercisable by the donee’s will unless the donor expressly limited its exercise to the donee’s lifetime

Question 13

testamentary power of appointment

Answer 13

Exercisable only by the donee’s will. The fact that the power was created by a testator’s will does not make it a testamentary power. The key is when the power is exercisable.

Question 14

Does marriage subsequent to a will’s execution revoke the will by operation of law?

Answer 14

No; the new spouse is protected by the elective share statute.

Question 15

Does divorce revoke life insurance policies in favor of the former spouse?

Answer 15

No! Disposition of the proceeds is governed by the contract with the life insurance company. Thus, if the decedent fails to change the named beneficiary from his former spouse subsequent to their divorce but prior to his death, the former spouse takes the proceeds.

Question 16

The testator’s son is married with one child. If the testator bequeaths property to his son’s wife, and the son and the wife subsequently divorce, who takes that property on the testator’s death?

Answer 16

The son’s former wife. (The only divorce potentially impacting the estate would be that of the testator.)

Question 17

When does a beneficiary who unsuccessfully contests a will with a no-contest clause NOT forfeit her bequest?

Answer 17

when the challenge was brought in good faith and based on probable cause

Question 18

When is extrinsic evidence admissible in interpreting a will?

Answer 18

to show that the testator was unaware of the nature of the instrument he signed

to resolve ambiguity of intent in the will

Question 19

Totten trust

Answer 19

deposit of money in the depositor’s own bank account in trust for another person

Question 20

When does a presumption of undue influence arise?

Answer 20

(i) a confidential relationship existed between the testator and beneficiary, and
(ii) the beneficiary participated in in a significant activity related to the execution of the will, such as procuring or drafting the will.

Question 21

key essay phrases

Answer 21

The distribution of the estate will depend on the law followed by the jurisdiction.

The will speaks at time of death.

Valid disclaimers are treated as though the person predeceased.

Question 22

ademption

Answer 22

Failure of a gift because the property is no longer in the testator’s estate at time of death.

Question 23

probate

Answer 23

process by which a will is proved in court

Question 24

cy pres

Answer 24

near as possible to the testator’s or donor’s intentions when these cannot be precisely followed (money left to IJM, IJM no longer exists, so it goes to Out of Darkness)

Question 25

requirements to revoke by written instrument

Answer 25

present intent to revoke, instrument executed with same formalities as required to execute a will

Question 26

acts sufficient to revoke a will

Answer 26

vary by state, but generally:

burning, tearing, obliterating, canceling a material portion

Question 27

quantum meruit

Answer 27

reasonable sum of money to be paid for services rendered when the amount due is not stipulated in the will (or any contract)