Wills Flashcards
Who can execute a will?
Person 18+ (unless married or enlisted) w/ testamentary intent = testator
When is will validly executed
Testator
Signed (marked) or marked with T’s direction in presence of 2 attesting witnesses
Need 2 attesting witnesses 14+, both must sign will in T’s presence
Holographic will
Valid only if: WHOLLY in T’s handwriting and signed by T.
Must show testamentary intent: look to language or extrinsic evidence of intent is unclear. No date required on document.
Venue for will actions
County where T resided
If T non-resident: county where property is or where T died
Beneficiary dies in T’s lifetime analysis
- Does anti-lapse statute apply (beneficiary related to T’s parents?)
- Does surviving residuary beneficiary rule apply?
Anti-Lapse Statute
WILLS ONLY
Prevents requests to dead Bs from lapsing by allowing B’s descendants to take B’s share. B’s will doesn’t dictate where bequest goes (b/c B’s will already probated.) If B has no descendants, gift lapses and goes into T’s residuary estate.
Surviving Residuary Beneficiary Rule
When residuary estate devised to 2+ B’s, and 1 B’s gift lapses, surviving Bs take residuary estate in proportion to their interests.
Nonprobate Assets
Assets that don’t pass by will or intestate, usually governed by K.
401k accounts go to named beneficiary, predeceasing spouse doesn’t get interest
CD, checking account, or assets w/ROS (valid only if signed by both spouses)
Probate Assets
Homestead (mortgage passes with homestead), cash
Intestate with Surviving Spouse (no descendants)
If no descendants –> SS gets all CP and 1/2 fee simple in all decedent’s separate real property. Decedent’s parents get other 1/2 interest.
Intestate with SS and all children inside marriage
SS gets all CP, 1/3 PSP 1/3 life estate in RSP
Intestate with SS and kids outside marriage
SS gets her half of CP, 1/3 PSP, 1/3 life estate in real SP
Intestate (no spouse)
If deceased has descendants, they take whole estate per capita with representation.
If no descendants, parents take 1/2 each.
If one parent dead, H’s siblings take dead parent’s share.
If no parents, passes to H’s siblings and descendants.
If no siblings to H’s deceased aunts/uncles and their descendants.
120 Hour Rule
To inherit by will or by intestate sucession, must survive deceased by 120 hours (unless will says otherwise). If don’t survive by 120 hours, treated like predeceased.
120 hr rule applies to rights of survivorship as well.
Adopted Children’s Inheritance
Can inherit from biological parents unless rights were terminated in decree terminating parent-child relationship (silence means you can inherit)
Adoption establishes right to inherit from adoptive parents.
Adult adoptees can inherit from adoptive parents but not from bio parents.
Kid w/out father (Inheritance)
Can inherit if child established paternity via paternity presumption, man’s sworn statement acknowledging paternity, paternity suit, or in probate court.
Stepchildren inheritance
Generally don’t inherit from step-parents
Can if adoption by estoppel
Advancement of Inheritance
If T gives lifetime gift to B, only counts as advance on inheritance if T says it’s an advance in a writing or B acknowledges it in a writing
Disclaim Inheritance
Disclaimer must be in writing, signed, notarized, & filed w/ the probate ct and personal representative w/in 9 mos of T’s death (treat as if predeceased T)
SS Claims Beyond Will
All taken from community estate
H - homestead
E - exempt personal property up to 60k or 30k in cash
F - family allowance of one year’s support for the family (must show that thye have inadequate SP for their support)
SS Homestead
Right of occupancy as long as contineu to use residence
Must pay property taxes
Urban: 10 acres, rural: 200 acres
Effect of Divorce
Revokes all gifts and fiduciary appointment in favor of ex-spouse; will not impated by T’s post-will marriage
Pretermitted children (definition)
Child born after execution of a will who is not provided for by the will or other nonprobate transfer, but would be an heir if T died intestate
Only gets a share of probate assets
Pretermitted children inheritance
If other kids got something under will, PC takes pro-rata interest (gets same share)
If no other kids, or other kids don’t get anything, kid takes his intestate share of all property not bequeathed to SS (but can’t reduce SS’s share of T’s CP by more than 1/2)
Pretermitted child rule application
NOT when:
child mentioned in will or “to all my children”
child provided for in nonprobate asset
republication of will by codicil after kid born
Will Revocation
- Revoke w/ a subsequent testamentary instrument executed w/ same formalities or physical act.
- Where will last seen in T’s possession and cannot be found, presumption that will destroyed w/ intent to revoke
- Need intent to revoke + act of revocation at the same time
Prove Lost Will
Prove that it was duly executed (affidavit, witness testify that T was 18, signed will, and signed and witnessed by 2 witnessed)
proof of contents (copy or witness)
proof of reason for non-production
Prior Wills
May not be revived if newer one invalid (unless mistake of fact)
Too Much Will, Not Enough Assets
Abatement order: (PP always abates before RP)
- Intestate property
- Residuary legacies
- General legacies
- Specific legacies
Incorporate doc into will
Doc must exist when will executed, will must show intent to incorporate and clearly identify doc
K Will
Not enforceable unless clear indication of contract in will or enforceable written agreement
Challenge Will Validity
- Defective execution
- Valid revocation
- Lack of capacity
- Undue influence
- Fraud
- Mistake
- T unaware of will’s contents
Stock Bequests
If “my 100 shares –> stock must be in estate or ademption applies (specific legacy)
If “100 shares” –> can get date of death value for stocks if T already sold (general legacy)
Lack of Testamentary Capacity
Must have had capacity to understand nature of act knoew the nature and value of property know the natural objects os his bounty understand disposition that he is making
Undue Influence
Must prove
existence and exertion of influence
effect was to OVERPOWER mind and will
will would not have been executed but for influence
Inference of undue influence where will precured by one in confidential relationship who benefits from will
No Contest Clause
Enforceable unless contest brought in GF and w/ just cause; strictly construed, not triggered by suit to construe will or contest filed by guardian
Independent Administration
When will provides for one or all distributees agree on independent administration.
Independent executor can do anything a dependent administration could do by a court order. If will allows sale, can sell real property. If doesn’t allow, can sell only to pay debt.
PR Closing Administration
File closing report w/ the county court records showing property received, debts paid, names/addressed of distributees
PR Duties upon Appointment
Post bond w/in 20 days of appointment (unless will waives requirement)
Publish notice of admin in newspaper w/in 1 month
File estate inventory with ct in 90 days
Give notice to beneficiaries w/in 60 days after will admitted to probate
Removing Independent Administrator
Can remove for cause for
- failure to file inventory in 90 days
- failure to notify beneficiaries in 60 days
- misapplied/embezzled estate property
- fails to make accounting
- guilty of gross misconduct or mismanagement
- becomes incompetent or imprisoned
JX over probate matters
If county has probate ct or county ct at law –> exclusive OJX
Counties w/out either –> DC and county cts have concurrent JX
Clear Title w/out Admin
File a muniment of title if will (can’t have debts)
File for statutory heirship proceeding if not
Probate Timing
Will must be admitted to probate w/in 4 years of T’s death
But if person offering will not at fault for delay, must give notice to heirs and can probate as muniment of title
Non-probate method of distributing debt-free estate
Small estate administration by affidavit as long as estate less than 50k (not counting homestead) and no debts other than mortgage
Notice to Creditors
Notice must be given within 2 months to secured creditors, then have 4-6 mos to present claims. If don’t present, secured only to value of collateral.
Notice by publication all required for unsecured creditors, can give notice that triggers 4 mos SOL
Dependent Admin & Creditors
Claim must be authenticated
PR must allow/reject claim in 30 days
Claimant must file suit on rejected claim w/in 90 days or claim barred
Priority Claims in Insolvent Estate
- Funeral and last illness costs (up to 15k)
- Family allowance
- Administration costs
- Secured claims
- Child support judgment
- State taxes
- Cost of decedent’s confinement in prison
- Medicaid reimbursements
- All other costs
