Wills Flashcards
Probate property
- The default
- Property that passes through probate under the decedent’s will or by intestacy in a formal court proceeding.
Nonprobate property
- Property that passes outside of probate by way of a will substitute. Includes:
(1) joint tenancy property,
(2) life insurance,
(3) contracts payable on death,
(4) interests in trusts
(5) legal life estates and remainders - Decedent’s nonprobate property goes to transferees identified in written instrument properly creating the nonprobate property arrangement
3 Functions of Probate
(1) Provides evidence of transfer of title
(2) Protects creditors by providing procedure for debt repayment
(3) Proper distribution of decedent’s property
14th Amendment
Actual notice must be given to creditors
Duty
Duty to not only client, but also to intended beneficiaries. Privity not required
Intestate
- Person dies without a will
UPC Intestate Share of Spouse
- Spouse gets everything if no descendant or parent
- Spouse gets $300,000 + 3/4 if no descendant but live parent
- Spouse gets $225,000 + 1/2 if the couple shared children but survivor had kid with someone else
- Spouse gets $150,000 + 1/2 if decedent had kids with someone else
UPC Spouse share
- Most intestacy statutes provide spouse with 1/2
- Tennessee provides spouse with 1/3
UPC Share of heirs other than spouse
(1) To descendants
(2) To decedent’s parents equally or survivor
(3) Descendants of parents
(4) Half to parental grandparents, half to maternal grandparents
(5) Descendants of grandparents
(6) Deceased spouse’s descendants
(7) No taker - estate escheats to state
UPC Simultaneous Death
- 120 Hour Rule: an heir/devisee/beneficiary that fails to survive decedent by 5 days is deemed to have predeceased.
- Must establish survivorship by clear and convincing evidence.
- Tennessee follows
Stepchildren
- About 1/3 of states and UPC recognize stepchildren
- Stepchildren may take if no descendants of grandparents or more closely related kin
Half-bloods
Most states: treat half siblings the same
Others: Half-share
Disinheritance by negative will
- To negatively disinherit a child, must devise entire estate to other persons
English per stirpes
- Younger generation descendants divide the share the older generation would have received
- Tennessee follows
Modern per stirpes (Per capita with representation)
- If all takers are same generation, they share equally.
- If takers are of different generations, share is based on parent’s share
Per capita at each generation
- Equality among like-related persons
Parentelic Inheritance
- Tennessee
- Estate not passing to surviving spouse is divided into moieties
- 1/2 to maternal GPs and 1/2 to paternal GPs
- ## If no GPs, moiety passes to aunts and uncles and their descendants
2 ways to determine closest heir
(1) Civil law system: count number of steps between intestate and potential heir, smallest number inherits (most common)
(2) Canon Law System:
Adoption
- Adoptee can inherit from a parent but not through a parent
- Most statutes draw no distinction between adult and minor adoption
Equitable Adoption Doctrine
If oral agreement takes place, and adoptive parents take child into their home, adoptive parents are estopped from denying that adoption took place
Posthumous Children
- Conceived before but born after father dies
- Child is treated as “in being” from time of conception
- Presumption that child born 300 days after death of husband = child belongs to husband
Equitable Legitimation Doctrine
Allows nonmarital child to inherit from father if there’s clear and convincing evidence of paternity and father’s intent that child be treated as heir
Posthumously Conceived Children
- Child conceived after father’s death
- Inherits from deceased parent if:
(1) parent consented to conception in signed writing or clear and convincing
(2) Child is in utero not later than 36 mo. or born no later than 45 mo. after death - TN doesn’t recognize S.S. benefits for posthumously conceived children
Tennessee Law on Posthumous Conception
- In order to inherit, child must have been conceived prior to death of parent
Uniform Parentage Act
Recognizes inheritance rights for posthumously conceived child if parent consented to posthumous conception in writing
Hotchpot
- If gift is treated as advancement, it is accounted for in distributing the decedent’s estate by bringing it into the hotchpot
- Add up advancement and estate, subtract advancement, divide equally
Advancements
- Disproportionate advancements: does not have to pay back
- Appreciation and depreciation is ignored
- Extra help to kid in need or tuition is likely a gift
UPC Advancements
If:
(1) decedent or heir declared as such in contemporaneous writing, or
(2) decedent’s contemporaneous writing or heir’s written acknowledgment otherwise indicates that gift is to be taken into account when dividing estate
- Same as TENNESSEE!!
Property Management Options for Minor
(1) Guardianship
(2) Conservatorship
(3) Custodianship
(4) Trusteeship
Guardianship
- Guardians do not have title to property and need court order to change investments
- Duty of preserving property and delivering to ward at age 18 unless court approves otherwise
- strict court supervision is burdensome, time consuming, expensive,
- should be avoided
Conservatorship
- More flexibility, has replaced guardianship system
- Conservator has been given title as trustee to protected person’s property
- investment powers similar to trustees
- cost effective
- terminates when minor reaches age or dies
- UTMA allows for payments from estate to custodians of minors of up to $10,000 without court order and more with court order
Custodianship
- given property to hold for benefit of minor under UTMA
- enables for payment to custodial parent or to account in child’s name w/out appt of guardian or conservator
- Discretion to spend for minor’s benefit without court order
- fiduciary subject to standard of prudent person in dealing with property of another
- Ideal for modest gifts but trusts are preferable for larger gifts
Trusteeship
- Most flexible of all property arrangements
- donor can tailor to family circumstances and donor’s particular desires
- trust can postpone possession until donor thinks child is competent to manage property
- allows for creation of contingent trusts in event that minor beneficiary develops after creation of trust development
UPC Slayer Rule
- Killers may not succeed to probate and non-probate property
- If not convicted, court must determine whether individual is responsible by a preponderance of the evidence
- Tennessee follows
Formal Requirements of Will
(1) Writing
(2) Signature by testator
(3) Attestation by witnesses (2)
UPC Formal Requirements of Will
(1) Writing.
(2) Signed by testator or some other person in testator’s conscious presence and by testator’s direction.
(3) Either attestation an
and signature by 2 witnesses who sign within a reasonable time of each other (no need for witnesses to be present at the same time) after witnessing the signing of the will or testator’s acknowledgment of that signature of acknowledgment of the will OR acknowledgment before a notary public.
(4) Holographic Wills.
(5) Extrinsic evidence.
TN Law Will Formalities
1) The testator shall signify to the attesting witnesses that the instrument is the testator’s will… and the testator sign.
(2) The attesting witnesses must sign (a) in the presence of the testator; and (b) in the presence of each other.
Attestation Clause
(1) Where witness signs
(2) Recites that the will was duly executed. Although no state requires it, the clause gives rise to the presumption of due execution and it would be malpractice not to include one in the will.
TN Presence in will execution
- TN requires that testator see witnesses
- Also requires that witnesses sign together and in the presence of the testator
Meaning of “writing”
- Wills don’t have to be on paper, just reasonably permanent record of the markings making up the will
- Video/electronic wills only used as evidence, not a will (except Nevada)
TN Purging Statute
- No will is invalidated because attested by an interested witness, but any interested witness shall, unless the will is also attested by two (2) disinterested witnesses, forfeit so much of the provisions therein made for the interested witness as in the aggregate exceeds in value, as of the date of the testator’s death, what the interested witness would have received had the testator died intestate.
Will procedure
(1) Specify number of pages and secure them.
(2) Confirm with testator that she has read the will and understands it.
(3) Have yourself, testator, three witnesses and notary enter room together and exclude everyone else.
(4) Close door.
(5) Ask the testator:
a) is this your will?
B) have you read it, and do you understand it?
c) does it dispose of your property in accordance with your wishes?
(6) Confirm that testator wants witnesses to witness the signing of her will.
(7) Make sure witnesses can see the testator sign the will.
(8) Have witness read attestation clause.
(9) Have witness sign and write her address next to the signature.
(10) Self-proving affidavit at end of will.
TN Safeguarding Statute
Every original will shall remain in the clerk’s office of the county where it is proved or exhibited, among the records of that office, except when it is before another court awaiting the determination of any controversy, and any person may have access to it, as to other records.
TN Lost wills
A copy will suffice
Curing Defective Execution and Reformation
There are two means of correcting a switched wills execution error, namely to probate the will decedent intended to sign (problem here is the document was not signed) or probate the will that she actually signed and reform it to make sense
Guardians ad litem
When interests of minor children or unborn heirs are at stake, courts usually appoint a guardian ad litem, a person to represent the interests of the minor or unborn heir in the litigation.
The Substantial Compliance Doctrine
Substantial Compliance – deeming a defectively executed will as being in accord with the statutory formalities if there is clear and convincing evidence that the defective execution nonetheless fulfills the purposes of those formalities.
Harmless Error
a court may excuse noncompliance with statutory formalities if there is clear and convincing evidence that the decedent intended the document to be her will (also known as dispensing power).
UPC Harmless Error Rule
A document that was not properly executed will be probated as though it had if, by clear and convincing evidence, the decedent intended the document or writing to constitute:
(1) Decedent’s will.
(2) A partial or complete revocation of a will.
(3) An addition to or alteration of the will.
(4) A partial or complete revival of her formerly revoked will or of a formerly revoked portion of the will.
Tennessee: Self-Proved Affidavit Statute
Any and all attesting witnesses to any will may, at the request of the testator or, after the testator’s death, at the request of the executor or any person interested under the will, make and sign an affidavit before any officer authorized to administer oaths in this state, stating the facts to which they would be required to testify in court to prove the will, which affidavit shall be written on the will or, if that is impracticable, on some paper attached to the will, and the sworn statement of any such witness so taken shall be accepted by the court of probate when the will is not contested if it had been taken before the court.
Notarized Wills
As amended in 2008, UPC § 2-502 (a)(3) provide that a will is valid if it is signed by two witnesses or if it is notarized. (adopted in CO and ND)
Holographic Wills
- Permitted in slightly over half the states.
* Defined as a will written in testator’s hand that is signed by testator.
Tennessee Law: Holographic Wills
No witness to a holographic will is necessary, but the signature and all its material provisions must be in the handwriting of the testator and the testator’s handwriting must be proved by two (2) witnesses.
Codicil
Testamentary instrument that amends a prior will but does not replace it.
Revocation of Wills
All states permit revocation of wills by:
(1) a subsequent writing executed with testamentary formalities, or
(2) a physical act such as destroying obliterating, or burning the will.
UPC Revocation
(a) A will or any part thereof is revoked:
(1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
(2) by performing a revocatory act on the will, if the testator performed the act with the intent for the purpose of revoking the will or part or if another individual performed the act in the testator’s conscious presence and by the testator’s direction. For purposes of this paragraph, “revocatory act on the will” includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. A burning, tearing, or canceling is a “revocatory act on the will,” whether or not the burn, tear, or cancellation touched any of the words on the will…
TN Revocation
A will or any part thereof is revoked by:
(1) A subsequent will, other than a nuncupative will, that revokes the prior will or part expressly or by inconsistency;
(2) Document of revocation, executed with all the formalities of an attested will or a holographic will, but not a nuncupative will, that revokes the prior will or part expressly;
(3) Being burned, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking it, by the testator or by another person in the testator’s presence and by the testator’s direction; or
(4) Both the subsequent marriage and the birth of a child of the testator, but divorce or annulment of the subsequent marriage does not revive a prior will.
Revocation Requirements
1) Capacity to revoke.
(2) Intent to revoke.
(3) Satisfactory physical act performed on the will.
(4) The simultaneous existence of the first three prerequisites.
