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.
Exercise of Powers of Appointment: Exercise by Implication
Courts will find that a power of appointment (general or special) was exercised by implication when the donee purports to dispose of property subject to the power as though it were her own– disposition can be given effect only if it treated as an exercise of the power.
Found unless the donor called the power’s exercise by a specific reference to the power.
Exercise of Powers of Appointment: Interests That Can Be Created by the Power’s Exercise
Absent a contrary provision in the instrument creating the power, the donee can:
- appoint the property outright or in trust (and can include spendthrift provisions in the trust)
- create life estates and future interests
- impose conditions and limitations on the interests created
- create additional powers of appointment
Contract to Exercise Testamentary Power of Appointment
Invalid. Donee cannot contract to make an appointment; such a contract is invalid.
Nonprobate Assets: Disposal
Nonprobate assets cannot be disposed of by will.
A will cannot make a gift of nonprobate assets, which include life insurance and similar death benefits, property passing by right of survivorship, and property held in trust. These pass according to terms of the particular arrangement
Revocation of Wills: In General
A person with testamentary capacity may revoke his will at any time prior to death.
A will may be revoked by operation of law, by subsequent instrument, or by physical act.
Even a will that the testator has contractually agreed not to revoke may be revoked; beneficiaries may then have a breach of contract action against the estate.
Revocation by Operation of Law: Marriage Following Execution of the Will
In most states, marriage following execution of the will has NO EFFECT on the earlier will
In some states + UPC, new spouse takes an intestate share as an “omitted spouse” UNLESS:
(1) will makes provision for new spouse
(2) omission was intentional
(3) will was made in contemplation of the marriage
Revocation by Operation of Law: Divorce or Anulment
In most states, divorce or annulment revokes provisions (all gifts and fiduciary appointments, appointments as executor, guardian, or trustee) in favor of former spouse. Will is read as if the ex-spouse predeceased T.
UPC: extends application of the rule to provisions of the former spouse’s relatives who are not relatives of T. Do not apply to insurance policies.
Pretermitted Children
Most states have pretermitted child statutes.
If T fails to provide in his will for any child born or adopted after the execution of the will, child takes an intestate share. In making up child’s share, general rules of abatement apply. Share usually comes out of the residue, revoking the will to that extent.
Revocation by Written Instrument
All or part of a will may be revoked or altered by a subsequent instrument executed with the same formalities as a will.
If the subsequent testamentary instrument does not EXPRESSLY invoke the earlier will, the two are read together, with the later instrument revoking the earlier only to the extent of inconsistent provisions.
Revocation by Physical Act
Typical statute: will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will with the intent to revoke.
Intent must be concurrent with the act.
Physical act may be performed by another if done at the testator’s direction and in the testator’s presence.
Accidental destruction of will does not revoke it! Even if T later decides he wanted to revoke it, because the intent to revoke must be present at the time of the physical act of destruction
Partial Revocation
Most states allow partial revocation by physical act.
Extrinsic evidence admissible to determine whether partial or total revocation intended
Revocation: Presumptions
If will last seen in T’s possession or under his control cannot be found after his death or is found in a mutilated condition, rebuttable presumption arises that T revoked it
If will last seen in possession of a third person or if a person adversely affected by its contents had access to the will, no presumption of revocation arises.
Extrinsic evidence is admissible to overcome the presumption of revocation.
Effect of Revocation on Other Testamentary Instruments
Revocation of a will revokes all codicils to it.
Revocation of a codicil to a will does not revoke the entire will.
When will has been executed in duplicate, act of revocation done to either copy revokes the will.
Destruction of an unexecuted copy with intent to revoke does not revoke the will.
Lost of Destroyed Wills
If lost or destroyed (and presumption T revoked it overcome), it may be admitted to probate if the following can be proven:
(1) valid execution
(2) cause of nonproduction (i.e. proof that the will was not revoked)
(3) contents of the will
Contents are usually proved by the testimony of at least two witnesses, or by production of a carbon or photocopy of the will.
Revival of Revoked Wills
UPC + many states: will that wholly revoked a previous will is thereafter revoked, and previous will remains revoked unless evidence from the circumstances or T’s statements that T intended to revive previous will. If original will only partly revoked, revoked provisions are revived unless it is evident from the circumstances or T’s statements that T did not intend to revive the provisions.
Other states: will, once revoked, is not revived when the subsequent will itself revoked unless earlier will is reexecuted (resigned and witnessed) or republished by validly executed codicil.
Other states: revival automatic under theory that the revoking will did not take effect b/c it was revoked prior to T’s death
Dependent Relative Revocation (DRR)
Applies when T revokes his will under the mistaken belief that another disposition of his property would be effective, and but for this mistaken belief, he would not have revoked the will.
If other disposition fails, revocation also fails and will remains in force.
Applied only if it comes closer to what the T tried (but failed) to do than would an intestate distribution
UPC: Harmless Error Statute
Applies to the execution of wills, also applies to attempted revocation or alteration of a will.
Proponent must establish by clear and convincing evidence that the decedent intended the document to be a partial or complete revocation of a will or alteration of a will.
Contract to Make a Gift by Will
Contract to make, not to make, not to revoke a will is valid
Contract law governs these issues. Consideration required.
Many states have statutes requiring these contracts be in writing or specifically mentioned in the will
Contract to Make a Gift by Will: Remedies for Breach
No remedy during T’s lifetime b/c T can comply up until death
If T repudiates the contract after substantial performance by the promisee, promisee may seek damages, quantum meruit, or equitable relief.
If T dies in breach, usual remedy is for court to grant a constructive trust for benefit of promisee.
Joint Will
Single instrument executed by two or more Ts and intended to be the will of each
Mutual Will
Separate wills executed by 2 or more Ts that contain substantial similar provisions
Joint and Mutual Wills: Revocability
Like any other will, joint wills & mutual wills are revocable at any time during T’s life
Joint and Mutual Wills: No Presumption of Contract
Mere execution of joint wills or mutual wills does not raise a presumption that the wills were in fact executed pursuant to a promise by each party not to revoke.
Many courts do find the execution of joint wills (but not reciprocal wills) to be evidence of a contract
Contracts Not to Revoke
No remedy for breach of contract in which each party promises not to revoke his will, unless the first party dies in reliance on the contract.
Constructive trust will be granted in favor of beneficiaries on the contractual wills only if the survivor disposes of property in breach of the agreement after the first party dies in compliance with the agreement.
Lapsed Gift
Gift lapses if the beneficiary predeceases the T
Anti-Lapse Statutes
Operate to save the lapsed gift if the predeceasing beneficiary was in a specified degree of relationship to T (e.g. descendant of T, grandparent, descendant of T’s grandparents) & left descendants who survived T. These descendants take by substitution.
Statute applies unless a contrary provision appears in will.
Most states: words of survivorship are considered a contrary will provision, anti-lapse statute will not be applied
UPC: mere words of survivorship are not sufficient to negate application of the anti-lapse statute
Lapse in Residuary Gift
If will devices residuary estate to 2+ beneficiaries and one of them predeceases T ( and anti-lapse statute does not apply), some states follow common law rule and do not allow surviving residuary beneficiaries to divided the deceased beneficiary’s share among them (unless will specifies this). Instead, deceased beneficiary’s share passes by intestacy. (No residue of a residue rule)
Most states: allows the surviving residuary beneficiaries to divide the share in proportion to their interests in the residue.
NOTE: if anti-lapse statute’s provisions are met, that statute takes precedence and deceased beneficiary’s descendents take
Class Gifts
If a will makes a gift to a class, only the class members who survive T take a share of the gift, unless the will provides otherwise or anti-lapse statute’s requirements are met
Beneficiary Dead When Will Executed
If will makes a gift to a beneficiary who was dead at the time the will was executed, gift is void.
Most states, rules that apply to lapsed gifts also apply to void gifts.
Specific Devise of Legacy
Gift of a particular item of property distinct from all other objects in T’s estate
General Legacy
Gift of general economic benefit (often $ amt) payable out of the general assets of the estate without requiring any particular source of payment.
Demonstrative Legacy
Gift of a general amount that is to be paid from a particular source or fund. A hybrid: treated as a specific legacy to the extent that the source of payment is available and a general legacy to the extent of any shortfall of that source of payment.
Residuary Estate
AKA gift of the residue.
Consists of the balance of T’s property after paying:
(1) debts, expenses and taxes
(2) specific, general, and demonstrative gifts
Ademption
Failure of a gift because the property is no longer in T’s estate at the time of her death
Ademption: Specific Devises and Bequests
Ademption applies ONLY to specific devises and bequests.
If specifically bequeathed property is not in T’s estate at death, bequest is adeemed and beneficiary takes nothing.
Most states: court will not inquire into T’s intent or reason the property is no longer in the estate
Ademption: Partial Ademption
A gift may be partially adeemed, as where T devises a large tract of land and then conveys a portion of the tract during his life.
Beneficiary takes remaining portion
Ademption: General or Demonstrative Legacies
Ademption does not apply to general or demonstrative legacies. They will be satisfied by selling (or directly giving) other assets.
To avoid ademption, court will attempt to construe a gift of securities as a general legacy, unless T specifically stated “MY 200 shares of X stock”
Ademption: Common Statutory Exceptions
- Specific devisee or legatee of property no longer in the estate may be entitled to proceeds from the sale of the property if the sale contract was executory at T’s death
- Casualty insurance proceeds for loss of the property if they are paid after T’s death
- Condemnation award paid after T’s death
- Securities in another entity that were the result of action on the part of the entity whose stock was bequeathed
- Remaining proceeds paid to a guardian on an incompetent T
Increases to Property After Execution of Will (Accessions):
Before T’s Death
Income on property goes to general estate
Improvements to real property go to the specific devisee
Increases to Property After Execution of Will (Accessions):
After T’s Death
Increase to specific gifts occurring after T’s death passes to specific beneficiary b/c beneficiary is deemed to own property from time of T’s death
Increases to Property After Execution of Will (Accessions):
Stock Splits and Stock Dividends
At common law, specific bequest of stock includes any additional shares produced by a stock split, but does not include shares produced by a dividend.
UPC and nearly all states now also include dividends
Protection of the Surviving Spouse: Elective Share Statutes
Nearly all states have these.
Give spouse election to take a statutory share of decedent’s estate in lieu of taking under decedent’s will
Amount of Elective Share
Varies from state to state, but typically 1/3 of net probate estate if decedent is survived by issue and 1/2 if decedent is not survived by issue
Some states base amt on duration of marriage
Property Subject to Election
Share usually calcuated from decedent’s net estate (probate estate minus expenses and creditor’s claims).
Some states apply share fraction to decedent’s augmented estate, which includes certain lifetime transfers.
Elective Share: Notice
Notice must be filed by surviving spouse within specified period (usually 6 months from admission of will to probate)
Elective Share: Right to Election
Personal to spouse. Only surviving spouse or guardian of incapacitated spouse may take election
Elective Share: Effect of Election on Testamentary Plan
Elective share is paid first from the assets that, but for the election, would have passed to the surviving spouse.
Beyond that, abatement rules apply.
Life estates are treated as though the spouse predeceased T, and remainders are accelerated
Elective Share: Lifetime Transfers to Defeat
Lifetime transfers by decedent are subject to elective share if decedent retained power to revoke or invade, consume, or dispose of principal.
Pretermitted Child Statutes
T may disinherit her children; pretermitted child statutes protect children from being accidentally omitted.
Child born or adopted after will was executed takes an intestate share of decedent’s estate unless
(1) it appears from the will that the omission was intentional
(2) T had other children at the time the will was executed and devised substantially all of her estate to the other parent of the omitted child, or
(3) T provided for the omitted child by transfer outside of the will in lieu of a testamentary gift
Pretermitted Child: Limitation
Omitted child may be limited to bequests to other children.
Under UPC and by statute in several non-UPC states, if T had other children at the time the will was executed and the will makes a provision for one or more of the children, the portion of the estate to which the pretermitted child is entitled is limited to the provisions made to the other children.
Bequests to the other children are reduced, but no other beneficiary’s bequest is reduced.
Pretermitted child takes such share of the bequests to the other children as he would have received had T included the child with children upon whom benefits were conferred under the will, and given an equal share of such benefits to each child.
Pretermitted Child: Republication
A child born before republication of the will by codicil IS NOT CONSIDERED PRETERMITTED and is not entitled to the protection of the statute.
Pretermitted Child: Failure to Provide for Child Believed to Be Dead
Many states + UPC: if T fails to provide in her will for living child solely because she mistakenly believed child to be dead, child shares in estate as though he were omitted afterborn or after-adopted child.
Homestead
Most states: by statute, protect family residence or farm from creditor’s claims by exempting a certain amount of land.
Provide that the decedent’s spouse or dependent children are entitled to occupy the homestead for as long as they choose despite the disposition of the residence in the decedent’s will
Family Allowance
Purpose of family allowance is to provide support during probate administration, and usually takes precedent over all claims other than funeral and administrative expenses.
In addition to amount passing by will, intestacy, or elective share.
Some states limit allowance to specific dollar amount while others authorize payment of amount needed to maintain the spouse and children for one year or a reasonable amount
Exempt Personal Property
Surviving spouse (or minor children) is usually entitled to petition to set aside certain items of tangible personal property (e.g. household furnishings, personal effects, farm equipment, and sometimes, automobiles) as exempt from claims against the estate except for perfected security interests on the items themselves.
Claims are in addition to amounts passing by will, intestacy or elective share.
7 Grounds for Will Contests
Challenges validity of a document offered for probate
(1) defective execution
(2) revocation
(3) lack of testamentary capacity
(4) lack of testamentary intent
(5) undue influence
(6) fraud
(7) mistake
Will Contests: Procedural Aspects
Most states: must be filed within 6 months after will is admitted to probate
Only interested parties (i.e. those whose interests would be adversely affected by the admission of the will) having standing to contest will. Creditors, executors, and testamentary trustees are NOT testamentary parties.
Legatees under will and all intestate heirs are necessary parties and are entitled to notice
Burden of proof is on the will contestant
Only portion of will is found to have been procured by undue influence/fraud/duress/mistake– only that part is void, remainder given effect
Testamentary Capacity
Must be at least 18 years old as of date of execution of valid will
Any will executed while under 18 is invalid
Mental Capacity
Must have capacity to understand:
(1) Nature of her act
(2) Nature and extent of her property
(3) Who are the natural objects of her bounty
(4) Above factors and be able to formulate an orderly scheme of disposition
Less than capacity required for contracts!
Capacity Determined
At time of will’s execution.
All circumstances existing at that time are admissible, as well as evidence of testator’s state of mind shortly before and shortly after will’s execution
Capacity: Testator with Physical Ailments or Drug Addiction
Fact that T was old, ill, possessed a failing memory or was a drinker/addict does not mean she lacked capacity
Capacity: T Adjudicated Insane
Adjudication of insanity or appt of guardian/conservator is evidence of T’s lack of capacity, but is not conclusive
Capacity: Insane Delusion
An insane delusion is a belief in facts taht do not exist and that no rational person would believe existed. An insane delusion may invalidate an entire will or only a particular gift, because the will is set aside only to the extent that the delusion caused the testamentary disposition
Capacity: Burden of Proof
T is presumed competent and burden is on contestant to produce evidence to the contrary
Undue Influence
Contestants must establish
(1) influence was exerted
(2) effect of that influence was to overpower the mind and free will of T and
(3) resulting testamentary disposition would not have been executed but for that influence
Mere pleading, begging, nagging, cajoling, or even threatening do not constitute undue influence. Free will of T must be destroyed.
Undue Influence: Circumstantial Evidence
Circumstantial evidence alone is insufficient to establish undue influence
Presumption of Undue Influence: Confidential Relationships
Arises when
(1) there was a confidential relationship btwn T and a beneficiary
(2) that beneficiary was active in procuring, drafting or executing the will
Some states add:
(3) provisions of the will appear to be unnatural and favor the person who allegedly exercised undue influence
Once these elements show, burden of proof shifts to will proponent
Presumption of Undue Influence: Between Spouses
No automatic presumption between spouses.
Although a husband and wife share a confidential relationship, presumption of undue influence does not arise btwn spouses UNLESS spouse exerted influence over T in such a manner that
(1) overpowered the free will of T
(2) resulted in a disposition reflecting the desires of the spouse exerting the influence
Fraud
Successful contest requires testator have been willfully deceived as to
(1) character or content of instrument
(2) extrinsic facts that would induce will or particular disposition
(3) facts material to disposition.
If T is fraudulently prevented from making a will, some courts will impose a constructive trust against intestate beneficiaries in favor of those who would have taken had the will been made.
Mistake: In Execution
Extrinsic evidence admissible to show T did not know the instrument he was signing was a will, b/c evidence of testamentary intent is at issue
If T mistakenly signs wrong will, some courts will deny relief, but better view is court will grant relief where nature of mistake is obvious
Mistake: In Inducment
No relief.
If mistake involves reasons T made his will a particular way and the mistake was not fraudulently induced, court will not normally grant relief.
Relief may be granted if mistaken inducement appears on face on will.
UPC + several states: relief if child omitted because T mistakenly thought child was dead.
Mistake: As to Contents of Will
Extrinsic evidence not admissible to show that provision omitted or is incorrect.
Plain meaning rule: evidence of mistake is not admissible to contradict plain, unambiguous language of will
Mistake: Ambiguity
Extrinsic evidence admissible to cure latent ambiguities– does not have effect of rewriting the will.
Latent ambiguity: will’s language is clear on its face, but results in a misdescription as applied.
Traditional and Majority Rule:
Patent ambiguity: uncertainty appears on the face of the will.
Modern, better view would admit it
Mistake: Reformation for Mistake Under UPC
Court will reform a will, even if will is unambiguous, to conform to T’s intent if ti is proven by clear and convincing evidence that T’s intent and the terms of the will were affected by a mistake of fact or law.
Includes mistakes involving both the expression of terms and inducement to make the will or any of its provisions.
No-Contest Clauses
UPC + most states: clause in a will providing that a beneficiary forfeits her interest in the estate if she contests the will is valid and will be enforced unless the beneficiary had probable cause for bringing the contest.
Suits objecting to the court’s jurisdiction, challenging the appointment of an executor, and asking the court to construe the will are not will contests for purposes of these clauses.
In some states, a no-contest clause gets full effect, regardless of probable cause.
Probate
The proceeding in which an instrument is judicially determined to be the will of the decedent or in which the decedent’s heirs are determined.
Personal Representative
Appointed to carry out estate administration.
If named in will= executor
If not named in will= administrator
Testate estates must go through administration. Intestate estates need not be administered if heirs are able to agree on distribution of property
Primary Probate Jurisdiction
State of decedent’s domicile at the time of death.
Ancillary jurisdiction may be wherever decedent’s assets are located
Appointment of Personal Representative
Any person with capacity to contract may serve
If named in will, he will be appointed unless disqualified.
If no executor named in will or executor named cannot serve, or if estate intestate, administrator will be appointed.
Personal representative must file a bond unless the testator has provided in his will that no bond is required.
Powers and Duties of Personal Representative
Primary functions are to
(1) give notice to devisees, heirs, and claimants against estate
(2) discover and collect decedent’s assets and file inventory
(3) manage the assets of the estate during administration
(4) pay expenses of administration, claims against estate, and taxes
(5) distribute property
Serves in fiduciary capacity.
Primarily a liquidator and generally must have court approval to borrow money, operate a business, or sell property
Compensation of Personal Representative
Entitled to compensation for services. Rates may be governed by statute, or court has discretion to award reasonable compensation.
Testator may provide compensation for personal representative by means of a gift in the will.
Court may deny compensation where personal representative has engaged in dishonest or fraudulent conduct or has neglected his duties.
Creditor’s Claims
Personal representative must give notice of administration to creditors of the estate.
Creditors must file claims within specified period of time, or claims are barred.
Order of Claims Paid
(1) administrative expenses
(2) funeral expenses and expenses of last illness
(3) family allowance
(4) debts given preference under federal law
(5) secured claims
(6) judgments entered against the decedent during his lifetime
(7) all other claims
Abatement
Process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises.
If T does not set out order of abatement in will, estates usually abate in following order:
(1) property passing by intestacy
(2) residuary estate
(3) general legacies
(4) specific bequests and devises
to extent that they can be satisfied from designated source, demonstrative legacies are treated as specific legacies for abatement purposes. To extent fund is insufficient, treat demonstrative legacies like general legacies for abatement purposes.
Exoneration of Liens
UPC + large number of states: liens on specifically devised property are NOT exonerated unless will so directs
Common law: liens on specifically devised property are exonerated
When Will Ambiguous: Interpretation of Testator’s Actual Intent
If will provision ambiguous, and the court is unable to find the testator’s intent within the four corners of the will, extrinsic evidence is admissible to explain the provision.
T’s own declarations, however, are generally inadmissible except when a description of a beneficiary of property describes more than one person or more than one item of property
Rules of Construction
When there is no evidence of testator’s intent, courts result to the following rules of construction:
(1) favor those who would take intestate
(2) favor the construction that avoids intestacy
(3) favor the construction that is consistent with the perceived plan of disposition
(4) every portion of the will should be given effect, if possible
(5) between totally inconsistent clauses, the latter is most likely the final intent
Will Substitutes: in General
Will substitutes include life insurance, joint tenancies, or tenancies by entirety, inter vivos trusts, bank account trusts, deeds, contracts, and inter vivos gifts, including gifts causa mortis.
Will substitutes may enable individuals to avoid taxes and eliminate the cost and inconvenience of probate
Nonprobate assets. Not effected by the testator’s will.
Property passes to the beneficiary or survivor despite any provision in will
Life Insurance
Most widely used will substitute
A contract; disposition governed by the terms of the contract.
Bank Arrangements
Ex. Totten trusts, joint or survivor accounts, and payable upon death designations
Totten Trusts
Deposit of money in a bank account in trust for another person.
Depositor retains complete control over the account during her lifetime, and the transfer is complete only upon death
Joint or Survivor Accounts
Bank account deposit in the name of two or more persons “with the right of survivorship” is generally effective to give the survivor the absolute right of all of the money.
UPC: creditors can reach the money in a joint account, to the extent that the decedent deposited money in the account, if the other estate assets are insufficient to satisfy their claims.
Common law: creditors can reach the joint account if it was opened for the decedent’s convenient and no survivorship feature was intended.
Many states: evidence is admissible to show that the joint account was set up merely as a convenience for paying the depositor’s bills, and no gift to survivor was intended
Payable on Death Designations
Many courts have held payable on death designations on bank accounts ineffective, while some uphold them by statute
Deeds
Deed deposited in escrow, with delivery conditioned upon the grantor’s death, may be a valid nontestamentary transfer.
If a deed, which by its terms is effective only upon the grantor’s death, has actually been delivered to the grantee, a court may sustain the transfer as nontestamentary by construing the deed as a present transfer of a future interest, subject to a life estate in the grantor
Contracts
A contract that purports to dispose of property upon death is testamentary in nature and must comply with formalities required for a will in order to be enforceable.
Living Will
States an individual’s desires regarding:
(1) whether to administer, withhold, or withdraw life-sustaining procedures
(2) whether to provide, withhold, or withdraw artificial nutrition or hydration
(3) whether to provide treatment to alleviate pain
Durable Healthcare Power
Appoints an agent to make healthcare decisions on behalf of the principal and does not become effective until the principal becomes incapacitated
Living Wills and Durable Healthcare Powers: Creation and Execution
Most states require that living wills and durable healthcare powers be
(1) in writing
(2) signed by the testator or principal or another at his direction and
(3) witnessed by two adult witnesses
Most (but not all) states provide that the person designated as the agent cannot serve as a necessary witness
Uniform Health Care Decisions Act does not require any witnesses for a durable healthcare power
Living Wills and Durable Healthcare Powers: Capacity Presumed
Testator or principal must be an adult and of sound mind.
Capacity is presumed, so the burden of proof is on the challenger
Living Wills and Durable Healthcare Powers: Family Consent Statutes
Even when durable healthcare power is not properly witnessed, designated agent may nonethless have authority to act under state’s “family consent” statute.
Laws enacted in some states, permit a close family member to act as a surrogate decision-maker for a person who has not properly designated an agent under the state’s durable healthcare power statute
Living Wills and Durable Healthcare Powers: Living Wills Revocation
Can be revoked at any time by
(1) obliterating, burning, tearing, or destroying the will
(2) a written revocation of the will
(3) an oral expression of intent to revoke the will
Living Wills and Durable Healthcare Powers: Durable Healthcare Power Revocation
Can be revoked by notifying either the agent or the principal’s healthcare provider, and the revocation can be either oral or written.
Some states also allow in the same manner as for living wills
Individuals Eligible to Act as Agent Under Durable Healthcare Power
A principal can appoint as agent anyone except an owner, operator, or employee of a healthcare facility at which the principal is receiving care, unless than individual is related to the principal.
Authority of Agent Under Durable Healthcare Power
The agent has the authority to make any healthcare decisions on the principal’s behalf that the principal could have made for himself while having capacity.
The authority of the agent is within the discretion of the principal and must be stated in the instrument creating the durable healthcare power.
If specific powers are not expressed and stated in the instrument creating the durable healthcare power, the agent must act in the principal’s best interest.
The agent is not subject to civil or criminal liability or to discipline for unprofessional conduct relating to healthcare decisions provided she acted in good faith.
