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MEE COPY (use this one!) > Wills > Flashcards

Wills Flashcards

1
Q

In intestacy, what is the spouses share if the decedent is survived by: spouse and shared descendants?

A

Spouse takes entire estate

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2
Q

In intestacy, what is the spouses share if the decedent is survived by: Spouse + parents but no descendants

A

Spouse takes 300k and 75% of the remaining estate

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3
Q

In intestacy, what is the spouses share if the decedent is survived by: Spouse + shared descendants + spouse’s nonshared kids

A

Spouse takes 225k and 50% of the remaining estate

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4
Q

In intestacy, what is the spouses share if the decedent is survived by: Spouse + non-shared kids

A

Spouse takes 150k and 50%

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5
Q

In intestacy, what is the spouses share if the decedent is survived by: Just spouse

A

Spouse takes entire estate

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6
Q

Per Stirpes is when …

Rules?

A

Surviving child stands in place of deceased parent

Issue equally share portion that deceased ancestor would have taken if living

Estate first divided into total number children of ancestor who survive or leave issue who survive

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7
Q

Per capita with representation

A

Property divided equally among first generation with at least 1 living member

Share of a non-living member of that generation passes to living issue of member

Non-living member with no living issue —> no property allocated to non-living member

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8
Q

Per capita at each generation

A

Property is divided into as many equal shares as there are living members of the nearest generation of issue & deceased members of that generation with living issue

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9
Q

Can you disinherit a child?

A

Yes in a properly executed will — “negative inheritance”

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10
Q

Valid will requirements

A
  1. Writing signed by T
  2. 2+ witnesses, &
  3. T has present testamentary intent
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11
Q

What types of presence is acceptable for witneses?

A

Most require line of sight presence, others allow conscious presence.

Line-of-sight (traditional) test: T & Ws see (or have opportunity to see) each other sign the will

Conscious presence (modern) test: T & W must be aware through any sense that each is signing the will

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12
Q

What is the purge theory?

A

A witness with an interest in the will will have his interest purged in excess of what the witness would take by intestate succession. UPC no longer follows the purge theory.

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13
Q

What happens if there is a failure to satisfy formalities of will execution?

A

at common law the will is invalid, modern view allows substantial compliance, i.e. if there is clear and convincing evidence that the document was intended to be a will it will be admitted to probate.

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14
Q

holographic will

A

A holographic will is in a T’s handwriting, signed by the T, & need not be witnessed.

Some states: entire will must be in T’s handwriting
UPC/other states: only the material provisions must be in T’s handwriting (e.g. a filled-in printed form)

Must be signed by T to be valid

No witnesses required

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15
Q

How can a will be revoked?

A

Any time until death by subsequent instruments that are inconsistent or expressly revoke the prior will, physical acts with intent to revoke, or operation of law (divorce revokes provisions in favor of former spouse).

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16
Q

How does revoking a codicil affect a will?

A

It revokes only the codicil and revives the original will.

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17
Q

How are wills constructed?

A

Plain meaning unless the will states otherwise.

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18
Q

If a child is unintentionally disinherited, what do they take?

A

If no other children, their intestate share, if other children,their share of that inheritance.

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19
Q

Effect of no-contest clause in will

A

Unenforceable under the UPC.

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20
Q

Putative spouse

A

Qualify as spouse IF spouse believes in good faith in validity of invalid marriage

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21
Q

Effect of separation of spouses

A

Spouse still qualifies until issuance of final dissolution decree

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22
Q

Uniform Simultaneous Death Act

A

120-hour rule - must have survived D by 120 hours

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23
Q

Survival requirement

A

SS (or other heir) must survive D in order to inherit (or take under will)

Common law: must have survived D by any length of time

USDA: 120-hour rule

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24
Q

Burden of proof for survival requirement

A

On party whose claim depends on survivorship

Common law: preponderance of evidence

USDA: clear & convincing evidence

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25
Q

Issue

A

Includes all lineal descendants (children; grandchildren; great-grandchildren etc.)

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26
Q

Parent-child relationship - child of a marriage

A

Presumption: child is natural child of parties to marriage

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27
Q

Parent-child relationship - posthumously-born child

A

Rebuttable presumption: child is child of deceased husband IF child is born within 280 days of his death

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28
Q

Rule - adopted child (reference in will)

A

Reference in will to “child” includes an adopted child

Treated like a biological child for inheritance purposes

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29
Q

Stepparent exception to adopted child rule

A

An adoption by a stepparent establishes a parent-child relationship between the stepparent & child (with full inheritance rights) BUT does NOT curtail the parent-child relationship of the genetic parent who is married to the stepparent NOR the right of the adoptee (or descendant of adoptee) to inherit from or through the other genetic parent

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30
Q

Equitable adoption (requirements)

A

A relationship started during the child’s minority & established by clear & convincing evidence that a legal barrier prevented adoption, OR

A foster parent agreed with the genetic parents to adopt the child & the foster parent treated the child as his own

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31
Q

Equitable adoption (effects)

A

Child can only inherit from (not through) the equitable adoptive parent

Equitable parents cannot inherit through or from child

Inheritance rights between child & genetic parents is unaffected

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32
Q

Children born out of wedlock cannot inherit from natural father unless …

A
  1. Father subsequently marries mother
  2. Father held child out as his own & lived with child or provided support
  3. Paternity is proven by clear & convincing evidence after father’s death, OR
  4. Paternity is adjudicated during father’s lifetime by a preponderance of the evidence
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33
Q

Uniform Parentage Act (UPA)

A

Requires proof of paternity for a child to inherit

When father holds child out as his own —> presumption of paternity
- child can bring action to establish paternity at any time

Otherwise —> no presumption of paternity
- child must bring action within 3 years of reaching age of majority

34
Q

“Writing signed by T” requirement - rules

A

Entire will must be in writing — can be handwritten, IF signature + witness requirements met

Location of signature —>

  • some states: at end, otherwise will invalid
  • UPC/other states: anywhere on will, BUT portion of will AFTER signature is invalid
35
Q

Can someone sign T’s will on T’s behalf?

A

Yes, by person in T’s presence + at T’s direction

36
Q

T’s capacity - rules

A

T must be at least 18 years old + of sound mind

T meets mental capacity if T knows:

  1. Nature & extent of her property
  2. Persons who are the natural objects of T’s bounty
  3. Disposition she is trying to make, &
  4. Testamentary plan
    * *mental capacity PRESUMED unless challenged
37
Q

Required knowledge of instrument for witness’ to will execution

A

Ws must be aware that the instrument is a will - but, need not know of contents

38
Q

Interested witness doctrine

A

Applies to W who receives a gift under a will

Common law: an interested W is NOT competent as a W - will is invalid unless there are at least 2 disinterested Ws

Purge theory: a gift to W is denied to the extent of the amount in excess of W’s intestate rights

UPC: interested W doctrine is abolished

39
Q

Testamentary intent - 3 requirements + knowledge of content?

A

Rule: T must …

  1. Execute a will with present testamentary intent
  2. Understand that he is executing a will, &
  3. Intend that it have testamentary effect

**T must generally know & approve of will’s contents, BUT need not understand all provisions

40
Q

Self-proved will

A

A will acknowledged by T + affirmed by Ws before a court official

Effect: removes need for testimony of attesting Ws at a formal probate proceeding

41
Q

Oral wills

A

Most states/UPC: not permitted

42
Q

Codicil

A

Change or addition to a will

43
Q

Execution of codicil - rule & effect

A

Same formalities as for a will must be observed

Effect: relinquishes the will as of the date the codicil was executed
— may validate an invalid will

44
Q

Pour-over will

A

A devise of T’s property to a trust created during T’s life

45
Q

Deed as will substitute

A

Unconditionally delivered to grantee during D’s lifetime, OR

Delivered to an escrow agent during D’s lifetime with instructions to turn over to grantee upon D’s death

— some states allow transfer on death (TOD) deed; does not require will formalities

46
Q

Oral revocation of will

A

Invalid

47
Q

Rule if inconsistencies in subsequent instrument revoking prior will

A

Later document controls & revokes prior inconsistencies

48
Q

Requirement to revoke will via destruction

A

Most states: requires defacement of some language in will

UPC/Some states: destructive act need only affect some part of will

49
Q

Can a third party revoke a will for T?

A

Via destruction with intent to revoke - yes, if done at T’s direction + in T’s conscious presence

50
Q

Alteration of will

A

T cannot increase a gift by canceling words in will, BUT can decrease a gift as long as alteration made to existing language, RATHER THAN through addition of new language to the will

51
Q

Burden of proof re: lost wills

A

Burden on proponent

Clear & convincing evidence

52
Q

Dependent Relative Revocation (DRR)

A

T’s revocation of will is disregarded IF:

  1. It was based on a mistake of law or fact, &
  2. Would not have been done but for that mistake
53
Q

Incorporation by reference

A

A will may incorporate by reference another writing not executed with testamentary formalities, provided the other writing meets 3 requirements:

  1. Writing existed at time of execution of will
  2. T intended writing to be incorporated, &
    —> look to language in will
  3. Writing is described in the will with sufficient certainty so as to permit identification
54
Q

Lapse (rule if beneficiary died before T)

A

Common law: If beneficiary died before T, the gift fails (lapses) & passes to the residual beneficiary, unless the will provides for an alternate disposition

If no residue —> passes via intestacy)

55
Q

Anti-lapse statute

A

Exists in most states today - provides for the alternate disposition of lapsed gifts

Anti-lapse statute saves the gift IF:

  1. The gift was made to a beneficiary related to T by blood within a certain degree of relationship, &
  2. That beneficiary is survived by issue

i.e. does NOT apply to T’s spouse! (Not related by blood)

Applies to class gifts

UPC/modern trend: also apply to non-probate transfers

56
Q

Void gifts

A

Gift to beneficiary, who unbeknownst to T, is already deceased when the will was executed

Anti-lapse statute also applies to void gifts

57
Q

Abatement

A

Gifts by will are abated, i.e. reduced, when the assets of the estate are insufficient to pay all debts & legacies

Abated in specific order, unless otherwise specified in will (see other flashcard)

58
Q

Order of abatement

A

Gifts abate in following order:

  1. Intestate property
  2. Residuals bequests
  3. General bequests
  4. Specific bequests

**Abatement within each category is pro rata

**unless otherwise specified in will

59
Q

Ademption

A

The denial of a gift to a beneficiary because the property is no longer in T’s estate

60
Q

Ademption by extinction

A

Applies only to specific bequests

Traditional approach: “identity theory”

UPC approach: “intent theory” - mild presumption against ademption

61
Q

Exoneration of liens

A

Common law: a beneficiary of encumbered real property can have lien paid off

UPC/most states: a beneficiary of encumbered real property is NOT entitled to have the lien paid off

62
Q

Ademption by satisfaction

A

A gift may be satisfied by inter vivons transfer of property after the execution of the will IF that is T’s intent

UPC: presumes NO ademption by satisfaction absent express writing

63
Q

Rights of SS - elective share or forced share

A

Common law: SS can elect to take a share of T’s augmented estate rather than the gifts left to SS in the will
—> right may be waived by signed writing after fair disclosure before or during marriage

Community property state: SS entitled to 1/2 of CP & quasi-CP (forced share)
—> SS must elect to take the forced share in lieu of any interest under T’s will

64
Q

Rights of SS - Omitted spouse

A

Spouse who married T after T’s will was executed & is not a beneficiary in will

Rebuttable presumption that omission was by mistake
—> SS entitled to intestate share

Presumption rebutted if T’s intent to omit spouse is apparent from language of will OR if spouse was provided for outside the will

65
Q

When is a gift to a child an advancement of inheritance?

A

UPC: gift is advancement if D declared in a contemporaneous writing that the gift was an advancement, OR the heir acknowledges the gift was an advancement in writing

66
Q

Omitted child - presumption

A

A child born after T’s will executed

Rebuttable presumption: omission was by mistake

Rebutted by:

  1. Intentional omission
  2. T had other children when will executed, left estate to other parent of omitted child
  3. T otherwise provided for child
67
Q

Omitted child - share

A

T’s only child —> intestate share

Other children —> shares equally in property devised to other children

68
Q

Probate property

A

Property that passes under T’s will OR by intestacy

69
Q

Jurisdiction for probate proceedings

A

Place where D is domiciled at time of death —> JX over D’s personal property + any real property located there

70
Q

Notice requirement for probate proceedings

A

Must be given to interested parties

71
Q

Timing requirements for probate proceedings

A

Common law: will can be probated at any time

UPC: probate proceedings must be brought within 3 years of death

72
Q

Requirements for creditor’s claims (probate proceedings)

A
  1. Period of limitations - claim must be made within specified period after probate is opened
  2. Notice - personal representative must provide notice to creditors
73
Q

Priority of creditor’s claims (probate proceedings)

A

Administrative expenses

Last medical expenses & funeral expenses

Family allowance

Tax claims

Secured claims

Judgments against D

All other claims

74
Q

Priority for appointment of personal representative

A

Person named in the will

SS who is a devisee

Other devises

SS

Other heirs

Any creditor (45 days after death)

75
Q

2 types of powers of attorney

A

General: the agent can handle all affairs when the principal is unable to do so

Special: they agent’s powers are limited to a specific function and/or duration

76
Q

Scope of authority re: liability - powers of attorney

A

Agent is only responsible for intentional misconduct

77
Q

Revocation of powers of attorney

A

Principal may revoke at any time

78
Q

Durable powers of attorney

A

Agency continues until the death of the principal, even if the principal becomes incapacitated

Majority of states presume power is durable

79
Q

A beneficiary of a life insurance policy takes …

A

By virtue of the insurance contract.

Proceeds are not part of the decedent’s estate, UNLESS they are payable to the estate as beneficiary

**note: some courts have upheld a beneficiary change by will if the insurance company does not object (but this is exception, not rule!)

80
Q

Effect of insufficient evidence in order of death? (Under Uniform Simultaneous Death Act)

A

property of each individual passes as though the other individual pre-deceased him

81
Q

Doctrine of Integration

A

a will consists of all pages that are present at the time of execution & that are intended to be included in the will
–> can be shown either by (i) physical connection of the pages, OR (ii) the ongoing nature of the language of the will

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