Wills Flashcards
Property may pass by intestate succession when
3 reasons
(1) a decedent dies without having made a will
(2) a decedent’s will is denied probate or
(3) a decedent’s will does not dispose of all of his property, either because a gift has filed or because the will contains no residuary clause
Intestate Share of Surviving Spouse: Descendants Also Survive
In most states, if the decendent leaves descendants as well as a surviving spouse, the spouse takes 1/3 or 1/2 of the estate.
Some states give the surviving spouse a specific dollar amount plus 1/3 or 1/2 of the estate
In states adopting the UPC, the surviving spouse takes the entire estate if the decedent is survived by descendants, all of whom are descendants of the surviving spouse, and the surviving spouse has no other surviving descendant
Intestate Share of Surviving Spouse: No Descendants Survive
In most states, if the decedent is survived by a spouse but no descendants, the surviving spouse takes the ENTIRE ESTATE.
In UPC states, the spouse takes the entire estate only if the decedent is not survived by descendants or parents
Intestate Share of Children and Other Descendants
The portion of the estate that does not pass to the surviving spouse, or the entire estate if there is no surviving spouse, passes to the decedent’s children and descendants of deceased children.
Majority Rule: Per Capita with Representation
Compare: Classic Per Stirpes
Modern Trend: Per Capita at Each Generational Level
Per Capita with Representation
In most states, a decedent’s descendants take their shares per capita with representation, which means the property is divided into equal shares at the first generational level at which there are living takers. Each living person at that level takes a share, and the share of each deceased person at that level passes to his issue by right of representation
Classic Per Stirpes
Under the classic (or strict) per stirpes distribution of the common law, one share passes to each child of the decedent, regardless of whether there are living takers at that level. A deceased child’s descendants take the child’s share by representation. This method is still used in a minority of states
Per Capital at Each Generational Level
Modern trend. A growing number of states and the UPC make the initial division of shares at the first generational level at which there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level. Persons in the same degree of kinship to the decedent always take equal shares.
Shares of Other Heirs
If the decendant is not survived by a spouse or descendants, the estate is distributed to other heirs in the order below, proceeding down the list until takers are found;
(1) Parents or surviving parent
(2) brothers and sisters and their descendants
(3) 1/2 to paternal grandparents and 1/2 to material grandparents and their descendants (both halves to one side if there are no takers on the other side)
(4) 1/2 to nearest kind on maternal side and 1/2 to nearest kin on paternal side (all to one side if there are no kin on the other side)
Failing the above, the estate escheats to the state.
Adopted Children
For the purposes of intestate succession, adopted children are treated the same as the natural children of the adopting parents. There is no inheritance in either direction between adopted children and their natural parents, except where one of the natural parents marries an adopting parent, or the child is adopted by a close relative
Stepchildren and Foster Children
Generally, stepchildren and foster children have no inheritance rights unless adopted by the stepparent or foster parent.
Adoption by Estoppel
Allows a child to inherit from or through a stepparent or foster parent when legal custody of a child is gained under an (unfulfilled) agreement to adopt him
Posthumous Children
Generally, one cannot claim as an heir of another unless he was alive at that person’s death.
Exception: posthumous descendants of the defendant (child in gestation at the time of the decedent’s death)
Nonmarital Children
Always inherits from his mother.
Will inherit from father if
(1) father married the mother after the child’s birth
(2) man was adjudicated to be his father in a paternity suit
(3) after his death and during probate proceedings, the man is proved by clear and convincing evidence to be the father
No Distinction Between Half Bloods and Whole Bloods
Half bloods are brothers and sisters with only one common parent.
UPC and most states make no distinctions between half bloods and whole bloods; they inherit equally.
Inheritance Clause
Common law and most states: will provision expressly disinheriting an heir is ineffective as to any property passing by intestacy (the will must effectively dispose of everything in order to disinherit an heir)
UPC and by statute: testator may exclude the right of an individual to succeed to property passing by intestate succession. If that person survives the decedent, his intestate share passes as though he had disclaimed it
Simultaneous Death
A person cannot take as an heir or will beneficiary unless he survives the decedent.
Because it is sometimes difficult to determine whether one person survived the other, many states have adopted the Uniform Simultaneous Death Act (USDA).
1/2 of states follow traditional USDA, 1/2 follow Revised USDA (120 rule)
Neither statute applies if the decedent’s will or other instrument makes a different provision regarding survival.
USDA
When disposition of property (by will, intestacy, joint tenancy, etc.) depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if he had survived the other.
In cases of tenancy with right of survivorship: 1/2 of tenancy passes through the estate of each party.
Applies only if there is no sufficient evidence of survival (even by minutes– USDA does not apply)
Revised USDA/120 Rule
A person must survive the decedent by 120 hours in order to take any distribution of the decedent’s property
Disclaimers
A beneficiary can disclaim an interest, which results in the interest passing as if the disclaiming party predeceased the decedent.
To be effective for fed tax purposes: must be
- in writing
- irrevocable
- filed within 9 months of decedents death OR beneficiary’s 21st birthday
Special rule for surviving joint tenants for fed tax purposes:
- May disclaim interest only within 9 months from other joint tenant’s death
- Holder of future interest may disclaim only within 9 months after the interest was created
Disclaimer on Behalf of Infant, Incompetent, or Decedent
May be made by guardian of infant/incompetent, or a personal representative on behalf of the decedent if the court finds it is in the best interests of those interested in the estate of the beneficiary and is not detrimental to the best interests of the beneficiary.
Disclaimer: Estoppel
An interest cannot be disclaimed if the heir or beneficiary has accepted the property or any of its benefits
Disclaimer: Creditors’ Claims
A disclaimer can be used to defeat creditor’s claims; the disclaimant has no interest that can be reached by creditors.
However: disclaimer cannot be used to defeat a federal tax lien.
Disclaimer of Life Estate: Effect on Remainder
Because interest passes as though disclaimant predeceased the decedent, disclaimer of a life estate accelerates the remainder
Decedent’s Death Caused by Heir or Beneficiary
One who feloniously and intentionally bring about the death of a decedent forfeits any interest in the decedent’s estate. The property passes as though the killer predeceased the victim.
Usually reached by operation of a specific statute (“slayer statute”) or by imposition of a constructive trust
Effects all types of transfers (insurance proceedings, family allowance, etc.) Also loses benefit of right of survivorship in any property so held w/ decedent, although killer does not forfeit his own share
Decedent’s Death Caused by Heir or Beneficiary: Proof of Killing, Evidentiary Standard
A conviction of murder in any degree is conclusive for purposes of this type of statute. In the absence of such a conviction, the court must generally find that the killing was unlawful or intentional by a PREPONDERANCE OF THE EVIDENCE before applying this forfeiture rule.
Advancement
Lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate.
Advancement: Common Law
Substantial lifetime gift to one of the decedent’s children was presumed an advancement.
Advancement: Majority Rule
A lifetime gift is presumptively not an advancement unless it is shown to be intended as such.
UPC: advancement only if it is:
(1) declared as such in a contemporaneous writing by the donor
(2) acknowledge as such in a writing by the heir (need not be contemporaneous)
Procedure if Advancement Found
Gift’s value when given is added back into the estate for the purpose of calculating shares, and then subtracted from the recipient’s share.
Heir need not return the amount of an advancement in excess of the value of her intestate share.
Advancee Predeceases Intestate
Advancement is binding upon those who succeed to the estate of the advancee in the even the advancee predeceases the intestate.
UPC: advancement NOT binding on the advancee’s successors UNLESS the required writing states that it is
Satisfaction of Legacies
Testamentary gift may be satisfied in whole or in part by an inter vivos transfer from the testatory to the beneficiary subsequent to the execution of the will, if the testator intends the transfer to have that effect.
UPC: does not apply unless the testator provides for satisfaction in the will or a contemporaneous writing, or the devisee acknowledges, in writing, the gift as one in satisfaction. Writing is not required if the testator gives specifically described property to the beneficiary– then there is both legacy and ademption
What Constitutes a Will?
Instrument executed with certain formalities that usually directs the disposition of a person’s property at death, although an instrument that merely appoints a personal representative or revokes an earlier will can be a will.
Revocable during the testator’s lifetime and operative at death.
Codicil
Supplement to a will that modifies it at death
Expectancy
What a beneficiary has during the testator’s life (not a property interest)
Testamentary Intent
T must have present intent that the instrument operate as his will.
Promises to make a will in the future and ineffective deeds are not given effect as wills.
Parol evidence is admissible to show that an instrument was not meant to have any effect (that it was a sham will)
When it is not clear whether an instrument was intended to be testamentary, testamentary intent will be found only if it is shown that T:
(3 Requirements)
(1) Intended to dispose of the property
(2) Intended the disposition to occur only upon his death
(3) Intended that the instrument in question accomplish the disposition
Conditional Wills
Provides that is to be operative only if a stated condition is satisfied.
A court might interpret what appears to be a condition as merely expressing a MOTIVE to make the will, and might give the will effect even if the condition does not apply.
Parol evidence is not admissible to show that a will absolute on its face was intended to be conditional
Testamentary Capacity
at least 18 years old and of sound mind at the time he makes the will
Execution of Attested Wills
7 Requirements
Must meet formal requirements of due execution imposed by the statutes of the appropriate state. Formalities vary, but usually include
(1) Will or codicil signed by T, or by another at T’s direction and in her presence
(2) 2 attesting witnesses
(3) T sign the will (or acknowledge her previous signature or acknowledge the will) in each of the witness’s presence
(4) Witnesses sign in testator’s presence
MAY include one or more of the additional requirements
(5) T must sign at the end of the will
(6) T must “publish” the will (declare to the witnesses that the document is her will
(7) Witnesses must sign in the presence of each other
UPC: attested by two competent witnesses OR singed by a notary
Testator’s Signature
Any mark affixed by T with intent that it operate her signature satisfies the signature requirement
May be made by another person at T’s direction and in her presence— if proxy signer signs own name as well, may count as an attesting witness. Order of signing is not critical as long as its part of a single, contemporaneous transaction.
In most states + UPC: valid if signed anywhere on instrument, not just at the end
If required to be at the end- some states hold will is void, while others uphold will but disregard everything after the signature.
Presence Requirements
Most state: conscious presence
Presence requirement satisfied if each party was conscious of where the other parties were and what they were doing, and the act of signing took place within the general awareness and cognizance of the other parties.
Substantial minority: scope of vision test
Person must be in such close proximity that he could have seen the signing if he looked
Telephone calls are not presence!
Witnesses
Most states require 2 competent witnesses
Competency
At the time the will is executed, witness is mature enough and of sufficient mental capacity that she could testify in court on these matters
Interested Witnesses
Common law: witness who is also a beneficiary is not competent, and will could not be probated unless there were 2 other competent witnesses
All states now provide that will is still valid, but bequest to interested witness may be void unless she is supernumerary OR would have taken a share if the will had not have been probated.
Under UPC: gifts to interested witnesses not purged.
NOTE: fiduciaries, creditors, trustees, and attorneys are NOT interested and not disqualified from collecting debts or serving estate
Attestation Clause
Recites elements of due execution and is prima facie evidence of those elements
Useful if witness forgets or misremembers facts surrounding execution
Self-Proving Affidavit
Recites that all elements of due execution were performed and is sworn to by the testator and witnesses before a notary public.
Functions like a deposition and eliminates the need to produce the witnesses in court years later.
Signatures on the affidavit can serve as signatures needed on the will itself.
UPC: Harmless Errors
Even though will is not executed in accordance with all of statutory formalities (e.g. only one witness), UPC gives the court the authority to ignore harmless errors.
Defectively executed will can be given effect if the will proponent establishes by CLEAR AND CONVINCING EVIDENCE that T intended the document to be his will.
Holographic Wills
Entirely in T’s handwriting and has no attesting witnesses.
Must contain testator’s signature, but need not be at the end of the will.
Nickname, first name, or initials can constitute T’s signature
Recognized by UPC and majority of states.
Most states that recognize holographic wills give effect to handwritten changes made by testator AFTER will is completed
Oral Wills
Most states and UPC do not recognize oral wills.
Small number of states allow them only for disposition of personal property and only if made by (1) soldiers or sailors (with some states requiring an armed conflict in progress) or (2) by any person during his last sickness or in contemplation of immediate death. Must be 2 witnesses
Conflict of Laws: Real Property
Validity and effect of will w/r/t real property are determined by the law of the state where the real property is located
Conflict of Laws: Personal Property
Validity and effect of will w/r/t personal property are determined by the law of T’s domicile at the time of death
Conflict of Laws: Foreign Wills
Under law of many states and UPC, will is admissible to probate in a jurisdiction if the will has been executed in accordance with the law of (1) that jurisdiction (2) the state where the will was executed (3) the testator’s domicile at the time of the will’s execution or (4) the testator’s domicile at death
Attorney Liability for Negligence
In most states, attorney’s duty runs not only to client but also to intended beneficiaries of the attorney’s services, and they can sue for negligence (in preparation or execution)
Statute of limitations begins to run on the date of the decedent’s death and not on the date that the will was executed
Integration
Physical attachment, internal coherence of pages, or an orderly dispositional plan raise a presumption that the pages were present and intended to be part of the will when it was executed.
Proof of integration can also be provided by testimony or other extrinsic evidence.
Republication by Codicil
Codicil modifies a previously executed will and must be executed with same formalities.
Will is treated as having been executed on the date of the last codicil. May be important for purposes of determining whether a child was born after the will’s execution for purposes of the pretermitted child statute
Any addition, alteration, interlineation, or deletion made after the will has been signed and attested is ineffective unless the will is reexecuted with proper formalities (or it’s a holographic codicil, where recognized)
Validation of Prior Invalid Will
Validly executed codicil is generally viewed as impliedly incorporating a defective will, by reference, thus validating the will.
An invalid will technically cannot be republished, So even if the word “republished” is used in the codicil, the defective will is instead implied incorporated by reference
- original document must have been intended to be a will
- drafted but completely unexecuted document cannot e incorporated by implication– would have to meet requirements for incorporation
Incorporation by Reference
Document may be incorporated by reference into will, provide that
(1) it is in existence at the time of execution
(2) it is sufficiently described in the will
(3) the will manifests an intent to incorporate the document
Language of the will must refer to the extrinsic document in such a way that it may be reasonably identified, and the document must correspond to the description in the will.
Many states and UPC have exception to the requirement that the document exist at execution, permitting T to refer in her will to a list specifying the distribution of items of tangible personal property and to write or alter that list after executing the will
Acts of Independent Significance
Will may dispose of property by reference to acts and events, even though they are in the future and unattested, if they have significance apart from their effect on dispositions made by the will.
Ex: bequest to each person in my employ at the time of my death– valid because it is assumed that a T would not make employment decisions solely for the purpose of disposing of property
Acts of third persons as well as T can be used under this doctrine
Pour-Over Gift to an Inter-Vivos Trust
Uniform Testamentary Additions to Trust Act: permits a testator to make a bequest or devise to a trustee of an inter vivos trust notwithstanding the fact that the trust may be amended or revoked after execution of a will
Powers of Appointment
Authority granted to a person, enabling that person (the donee) to designate, within limits prescribed by creator of power, the persons who shall take the property and the manner in which they shall take it.
General Power of Appointment
Power exercisable in favor of the donee himself, his estate, his creditors, or the creditors of his estate
Special Power of Appointment
Power exercisable in favor of a limited class of appointees, which does not include the donee, his estate, his creditors, or the creditors of his estate
Presently Exercisable Power of Appointment
Exercisable by the donee during her lifetime.
Testamentary Power of Appointment
Exercisable only by the donee’s will
Appointive Property Not Subject to Elective Share Statute
Surviving spouse’s elective share does not apply to property over which the deceased spouse held a power of appointment
Creditors & Appointive Assets
Generally, creditors cannot reach appointive assets under the theory that if the donee does not own the appointive property.
If the donee does not exercise her general power (whether presently exercisable or testamentary) her creditors cannot reach the property.
If the donee exercises the power, even if she appoints to another person, her creditors can reach the appointive property as if she were the owner.
If the donee of a general power is also the donor, her creditors can reach the appointive assets regardless of whether she exercises the power.
Exercise of Powers of Appointment: Residuary Clause
Residuary clause does not, by itself exercise testamentary power
Minority rule: in states that have enacted the Revised Uniform Probate Code, a will’s residuary clause exercises a general (but not a special) power of appointment unless
(1) the donor’s will called for its exercise by a specific reference to the power
(2) the donor’s will provides for a gift in default of appointment
Exercise of Powers of Appointment: Blanket Exercise of Power
Blanket exercise of power permissible: “all the rest and residue of my property, including any property over which I may have a power of appointment”– will be given effect unless the creator of the power called for the power’s exercise by an instrument that specifically referred to the power.
