Wills Flashcards
Intestacy rule for determining surviving spouse’s share: SS and has shared kids
SS take 100%
Intestacy rule for determining surviving spouse’s share: SS and surviving parent
SS take 300k and 75%
Intestacy rule for determining surviving spouse’s share: SS and has shared kids and own kids
SS take 225k and 50%
Intestacy rule for determining surviving spouse’s share: SS, and nonspousal kids
SS take 150k and 50%
Surviving spouse definition
(a) must be legally married and
(b) survive T to inherit.
Surviving spouse: marriage requirement
legal marriage or good faith belief in invalid marriage. © cohabitants
Surviving spouse: “survival” requirement
C/L-survive for any length of time.
USDA/UPC—must survive T by 120 hours, prove clear and convincing evidence. If insufficient, skip.
Issue definition
Issue: there must be a parent-child relationship
Inheritance right of an adopted child–right to inherit from genetic parents
No inheritance right from genetic parent
© If adopted by stepparent, retains inheritance right from genetic parent.
Inheritance right of a nonmarital child
Common Law vs. UPC
can’t inherit from father unless
(1) father subsequent marriage,
(2) father held child out as his own,
(3) paternity proven after death, or
(4) paternity adjudicated during father’s life.
UPC—requires proof of paternity. Presumption if held child out as own
Inheritance right of a posthumous child:
If born within 280 days of death, rebuttable presumption of parentage
Per stirpes:
First divide by total # of D’s children (1) living or (2) left issue.
Second, divide by representation (surviving issue stand in place of deceased person).
Per capita with representation
First go to a generation where a member survives D, divide by the # of people (1) living or (2) left issue.
Second divide by representation (surviving issue stand in place of deceased person.
Per capital at each generation (UPC):
First go to a generation where a member survives D, divide by # of people (1) living or (2) left issue.
Second, pool the shares for dead members and divide equally among the issues left.
Valid will is executed when
∑ (a) writing signed by testator
(b) 2+ witnesses
(c) present testamentary intent
Testamentary intent:
T
(a) understood he was executing a will and
(b) intended it to have testamentary effect.
Testator capacity:
T must be 18+ and have a sound mind (ability to know Who What Why How)
Location of T’s signature must be:
C/L—At the end
UPC—anywhere, but portion thereafter invalid
W’s presence required when T is signing
C/L—T must sign in 2 Ws’ joint presence.
UPC—T can sign in one W’s presence (joint presence not required) or T can acknowledge his signature to W.
T’s presence required when W is signing
C/L—A W must sign in T’s presence (2Ws need not sign at the same time).
UPC—W can sign within reasonable time after witnessing T sign or acknowledge will.
The meaning of “presence” as a requirement for a valid will:
“line of sight” (traditional)—each must observe or have the opportunity to observe each other signing;
“conscious presence” (modern)—each must be aware that the other is signing.
Witness interested party doctrine:
C/L—if direct financial interest, W not competent, will is invalid unless 2+ disinterested Ws;
Purge theory—if direct financial interest, will is valid, but purge any gain in excess of what W would take under intestate.
UPC—abolished.
Compliance with will formalities:
C/L—strict compliance;
UPC—will is valid if T has intent to make it a will and substantial compliance with formalities.
Handwritten will requirement:
(a) writing, directly signed by T,
(b) witness not required,
(c) testamentary intent
“Writing” requirement for a handwritten will
C/L—all must be handwritten;
UPC: Preprinted form OK as long as material provisions are handwritten (who beneficiaries are, and what they get).
Codicil:
a change or addition to a will; does not revoke underlying will.
Requirement for a valid codicil
Same formalities as a will: signed writing, witness (or not req if holographic), intent
Effects of a valid codicil (other than to add)
Valid codicil (a) republishes the will as of the date of codicil execution; (b) may cure an invalid will if it incorporates the former will by reference
Effect of revoking a codicil
revives prior will
Revocation of will: 3 ways
(1) subsequent written instrument (express or implied)
(2) destruction
(3) operation of law.
When does a subsequent written instrument impliedly revoke the original will
A will may be partially or completely revoked by a subsequent written instrument.
Inconsistent later document revokes prior inconsistencies (e.g. later writing supplementing residuary gift= codicil. later writing contains residuary gift=new will)
Revoking with physical destruction requires 2 elements
(a) physical destruction with (b) intent to revoke.
A will may be partially or completely revoked
For physical destruction, Intent to revoke exists when
C/L—cancelled/tore material part of the will.
UPC—some part of the will.
Lost wills (will once known to exist can’t be found): is it destroyed?
There is a presumption that it was destructed with the intent to revoke
© Duplicate original exists. Photocopy doesn’t count
Revocation by divorce:
Divorce revokes all will provisions in favor of former spouse, unless T intended will to survive.
Revival can occur by
republication or DRR
If a later will is revoked, is the original will revived?
C/L—1st will revives.
UPC—1st will revive if T intent to revive, based on how 2nd will was revoked.
DRR (do not miss this):
allows court to revive a revoked will when T revoked it under mistake of law (e.g. believed second will is valid) or fact.
Construction of a will: 2 questions to ask
[1] What are the terms?
[2] How to distribute?
Doctrine of integration:
A will consists of all pages present at execution and intended to form part of the will.
Incorporation by reference:
A will can incorporate by reference a writing that
(a) existed at the time of execution,
(b) intended to be incorporated and
(c) is described with sufficient certainty.
©UPC: A writing disposing of T’s personal property doesn’t require contemporaneous existence.
Distribution of property under a will: 3 factors to analyze
Classification, Abatement, Ademption.
Classification of estate
Specific gift, general gift, demonstrative, residual
Specific gift
Specific gift: a specific gift of property that can be distinguished from other property
General gift
Gift of personal property that can be satisfied from general assets
Demonstrative gift
Gift to be paid from a particular source (e.g. $10k from my X bank account); if source is insufficient, T directs that gift be satisfied out of general assets.
Abatement:
Gifts by will are abated (i.e. reduced) when the assets of the estate are insufficient to pay all debts and legacies. (T give away more than he has)
Order of abatement:
Gifts are abated in the following order:
- Intestate,
- Residuary.
- General.
- Specific.
Ademption:
A gift fails if property no longer in T’s estate
Ademption by extinction:
C/L—beneficiary of specific gift gets nothing if that gift no longer part of the estate at T’s death.
UPC—if T intended the gift, beneficiary inherits replacement property or money value of the item.
Exoneration of liens:
C/L—beneficiary of encumbered property can have lien paid off from estate. UPC/maj—no.
Lapse of a testamentary gift
Anti-lapse statute
C/L: if beneficiary dies before T, gift lapses and passes to residuary beneficiary, or if none, via intestacy.
© Anti-lapse statute will save the gift if:
(a) the gift was made to T’s blood relative, and
(b) that beneficiary is survived by issue.
Surviving spouse elective share:
C/L—SS can elect to take a share of T’s augmented estate rather than gift left to SS in will. Waiver with signed writing after fair disclosure
C/P—SS gets forced share of ½ community property. SS must elect to take forced share in lieu of gift left to SS in will.
Omitted spouse definition
A spouse married T after T’s will was executed
Does an omitted spouse inherit?
OSS is entitled to an intestate share unless—
(1) omission was intentional
(2) OSS received stuff outside will in lieu of will;
(3) prenup waives OSS right.
Advancement to children:
C/L—presumption that lifetime gift is an advancement of child’s intestate share.
UPC—advancement only if D said it is in a contemporaneous writing or child admitted in writing.
Omitted child defined
(1) child born/adopted after T’s will was executed; or
(2) T thought child dead.
Does an omitted child inherit?
Omitted child is entitled to a share unless
(1) omission was intentional;
(2) OC received stuff outside will in lieu of will;
(3) T had other children and left estate to OC’s other parent
How much share is an omitted child entitled to
If no sibling, OC gets intestate. If sibling received gift, OC take equal share from the sibling’s gift.
Slayer statute:
A person who feloniously and intentionally kill T cannot take under will or intestacy.
Only applies to T’s heir. Does not apply for kills of another person even if that person is the source of decedent’s property
Property passes as though killer predeceased
3 basis of a will contest:
Lacked capacity,
Insane delusion,
Undue influence/fraud
To contest a will for insane delusion ∑ 2
must show ∑ 2
(a) T was operating under insane delusion; and
(b) the insane delusion caused the property distribution.
T is operating under insane delusion if
A person has an insane delusion if a rational person in T’s situation could not have reached the same conclusion.
To contest a will for undue influence ∑4
must show ∑4
(a) T has weakened intellect susceptible to influence;
(b) influencer had motive to influence
(c) influencer had opportunity to benefit (familial or confidential relationship);
(d) influencer caused an unnatural property division.
Wills–rules for a specific gift of stock
C/L—specific gift of stock includes additional shares produced stock split but not shares produced by stock dividends.
UPC—specific gift of stock includes stock dividends
