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Wills Flashcards

1
Q

What is intestacy?

A

Default statutory scheme that applies if some dies without effectively disposing of their property through a will.

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2
Q

How is separate property distributed?

A
  1. All SP goes to spouse if NO issue or parents.
  2. 1/2 of SP if one issue or parent
  3. 1/3 of SP if more than one descendent.
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3
Q

Can a putative spouse inherit?

A

Yes

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4
Q

Survival requirements (common law vs. USDA vs. CA)

A

CL: preponderance of evidence that heir survived
USDA: clear and convincing evidence that heir survived by 120 HOURS (by will or intestacy)
CA: if spouses die simultaneously, 1/2 of CP goes to each estate. 120 hour rule ONLY applies to intestacy.

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5
Q

How is death determined?

A

CL: cessation of heart and lungs
Modern: heart and lungs or brain function

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6
Q

What happens if joint tenants die simultaneously?

A

1/2 goes to each estate. Remember, joint tenants CANNOT devise their interest through will because of right of survivorship, but they can convey during lifetime and sever the joint tenancy.

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7
Q

What happens if an insured and beneficiary die simultaneously?

A

Proceeds go to INSURED’s estate (unless they are spouses, in which case, each gets 1/2).

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8
Q

What is “issue”?

A

All lineal descendants, but excluding descendants of living lineal descendants.

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9
Q

Creation of Valid Will

A

Testator must:

  1. Be 18
  2. Have capacity
  3. Have Intent
  4. Meet will formalities

WRITE THIS AT BEGINNING OF WILL ESSAYS!!!

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10
Q

Formal requirements of a will?

A
  1. In writing with testamentary intent
  2. Signed by testator, or at his direction AND in his presence
  3. 2 uninterested witnesses (who must know it’s a will, but don’t need to read it), who can sign anytime after will execution, but need to be present with testator at time he signs.
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11
Q

What if testator doesn’t have 2 witnesses to sign?

A

Intent can be proven by clear and convincing evidence.

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12
Q

What is the presumption with “interested” witnesses? Exceptions?

A

That will was product of fraud, duress, or coercion.

Exceptions:

  1. If there are 2 other uninterested witnesses
  2. If devise is made in fiduciary capacity.
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13
Q

What is a holographic will and what are the requirements?

A

A holographic will is one written in testator’s handwriting and signed. Does NOT need to meet formal witness requirements.

NOTE: if a date is not present and there is doubt whether another will controls, holographic will is invalid to extent of inconsistencies.

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14
Q

Compliance with will requirements (common law vs CA)

A

CL - strict compliance

CA - substantial compliance (but lack of signature is fatal)

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15
Q

Undue influence (common law)

A

“SOUP”

  1. Susceptible to influence
  2. Opportunity by beneficiaries to influence
  3. Unnatural disposition of property
  4. Procured disposition.
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16
Q

Undue influence (CA)

A

Excessive persuasion that overcomes free will and results in inequity

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17
Q

When is fraud presumed?

A

If property transferred to:

  1. Person who drafted will
  2. Fiduciary who transcribed instrument
  3. Caretaker during drafting or within 90 days
  4. Cohabitant/employee of any of the above individuals.
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18
Q

Exceptions to presumption of fraud

A
  1. If beneficiary is blood relative or cohabitant
  2. Property is $5,000 or less
  3. Independent attorney reviews instrument
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19
Q

Conflict of Laws

A

Will is valid if meets requirement in state where it’s EXECUTED or where testator is DOMICILED at time of will execution or death.

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20
Q

Integration (what is it?)

Is extrinsic evidence allowed?

A 
Papers become party of will if:
1. Present at time of execution
2. Intended to be part of will
(E.g., stapled together, folded together)
Extrinsic evidence is permitted
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21
Q

Incorporation by reference

A

Writing OUTSIDE of will may be incorporated if:

  1. Writing existed at time of will
  2. Will shows intent to incorporate it
  3. Sufficiently describes the writing

NOTE: outside doc does not need to be valid to incorporate

EX. If will says “I incorporate by reference a list of personal items in my safety deposit box”, but the list is dated AFTER the will, it CANNOT be incorporated (but see CA’s exceptions…)

22
Q

Incorporation by reference - limited tangible property (CA)

A

In CA, even if paper cannot be incorporated by reference because the paper existed after the date of the will, they may be admitted into probate if:

  1. Identifies property not exceeding $5,000 each, or $25,000 total (NOTE: no real property, $, bank accounts, etc)
  2. Referred to in will
  3. Dated and signed, or in handwriting
23
Q

Acts of Independent Legal Significance

A

Will can dispose of property by referencing acts/events that have independent legal significance apart from will

Ex. paying employees based on performance, or paying unknown beneficiary based on marriage to kids (e.g., “to the man who is my niece’s spouse at time of my death”)

24
Q

Codicil

A

Amendment to existing will

MUST MEET SAME REQUIREMENTS AS WILL

25
Revocation of codicil vs. revocation of will
Revocation of codicil leaves the will intact. Revocation of underlying will revokes BOTH will and codicil.
26
What is the effect of a codicil on a will?
It REPUBLISHES the will as of date of codicil execution. NOTE: This could remedy prior issues with will that made it ineffective, like prior witness issues. NOTE 2: A codicil can be holographic and avoid the need for witnesses.
27
What is a “pour-over” will?
A will which identifies a TRUST created by testator into which he can “pour over” his assets and avoid probate, IF LESS THAN $100,000. Reqs: 1. Trust identified in will. 2. Trust terms exist outside will. 3. Trust executed before or at time of will.
28
How can a will be revoked?
1. Physical Act 2. Subsequent Will 3. Operation of Law
29
Revocation by physical act
Can include destroying, burning, tearing, etc. Presumption: A destroyed will is presumed to be revoked.
30
What if a duplicate will is destroyed and not the other one?
If there is intent to revoke, the will is revoked.
31
If a beneficiary in a will is crossed out, what is the effect?
Beneficiary does not take under will and devise goes to RESIDUE, NOT ANOTHER BENEFICIARY.
32
Revocation by subsequent will
A will or a part of a will is revoked by subsequent will which: 1. EXPRESSLY revokes, or 2. Impliedly revokes through inconsistencies.
33
Revocation by operation of law
The law will revoke a devise in a will to accommodate an UNINTENTIONALLY omitted spouse or child.
34
What happens if spouse is omitted from will?
1. Spouse will receive INTESTATE SHARE unless: A. Intentionally omitted. B. Provided for outside of will. C. Waived right in valid agreement (i.e. premarital agreement). If A made will and later met B (thus not mentioning her in will), whom he married, B is entitled to intestate share (1/2 CP/QCP, and SP not to exceed 1/2)
35
What happens if child is omitted from will?
Child will receive INTESTATE SHARE if born/adopted AFTER will was created unless: 1. They were intentionally omitted. 2. They were provided for in lieu of will 3. If most of the estate went to the child’s other parent.
36
What is Dependent Relative Revocation (DRR)?
The court will apply DRR if first will is revoked on mistaken belief that a substantially similar will or codicil would be effective, but is not effective at death. The court will simply disregard revocation of the first will.
37
Can a will be revived after revocation?
Yes. If a will is revoked by physical act or subsequent will, the first will is revived if: 1. Subsequent will is revoked AND 2. Testator has intent to revive. NOTE: Extrinsic evidence is permitted to show intent to revive will destroyed by physical act.
38
What are the classifications of testamentary gifts?
1. Specific - identifiable property 2. General - gift from general assets of property 3. Demonstrative - general gift that specifies property or fund from which gift is to be made 4. Residuary - what remains of estate after all gifts are satisfied and all debts are paid.
39
What is ademption, what types exist, and to what class of gift does it apply?
Determines what happens if a gift is not in the estate’s possession. 1. Ademption by extinction - if item is not part of estate at time of death, gift is VOID. NOTE: Intent of testator is important. 2. Ademption by Satisfaction - a gift will be considered satisfied if: A. Will provides deduction for a lifetime gift B. There’s a written declaration that gift is satisfied C. The same property is given to beneficiary during lifetime.
40
What is abatement? What is the order?
Abatement reduces gifts to beneficiaries to pay off estate debts. ORDER: 1. Property not disposed of in will 2. Residuary gifts 3. General gifts to nonrelatives 4. General gifts to relatives 5. Specific gifts to nonrelatives 6. Specific gifts to relatives
41
What is exoneration?
Applies when gift is subject to encumbrance and will requires encumbrance be paid off so beneficiary can take it free and clear. 1. Abatement order applies 2. Other specific property CANNOT be used to exonerate property with a mortgage.
42
Lapse vs. Anti-Lapse What is it? Which does CA adopt?
It refers to what happens if a beneficiary is dead at time of testator’s death. Lapse (traditional) - gift lapsed and fell into estate residue or by intestate succession Anti-Lapse (CA) - ISSUE of beneficiary take gift IF BENEFICIARY is RELATED to testator or testator’s spouse.
43
Does anti-lapse apply to class gifts? Residuary gifts?
Applies to class gifts. Does NOT apply to residuary gifts IF OTHER BENEFICIARIES REMAIN.
44
What are survivor rights?
1. Widow’s Election - allows widow to elect to take will amount OR statutory share (50% of CP/QCP) (e.g., if testator tried to devise more than 50% of CP or QCP.). NOTE, she cannot take BOTH. 2. Property Transfers - widow can require transferee to return obtain 1/2 of the proceeds if: A. Joint tenancy property B. Property in which decedent retained possession or right to collect income (Totten trust or payable on death bank account) C. Property in which decedent retain right to revoke or dispose of principal for his benefit (revocable trust)
45
Bars to Succession
1. No Contest Clause - penalizes beneficiary for contesting will with no probable cause 2. Killers - can’t take under will or intestacy. Killers are treated as having PREDECEASED testator and lapse/anti-lapse rules DO NOT apply.
46
What is per capita distribution?
1st generation with living takers EVENLY divides shares with non-living takers in that generation. The TOTAL of the non-living takers is then evenly distributed to the next living generation. NOTE: Used in CA if all issue are of EQUAL kinship (i.e., all members of that generation are still alive, or if the dead one didn’t leave issue).
47
What is Modern Per Stirpes/Per Capita With Representation
If heirs are deceased and don’t leave issue, their share goes back into pot and is evenly distributed amongst remaining closest pairs. If they leave issue, their own share is evenly divided among their issue. NOTE: Used in CA if issue are of UNEQUAL degree of kinship (i.e., someone dead in first surviving generation leaves issue), or will doesn’t specify how shares should be divided.
48
What is strict per stirpes?
Same as modern per stirpes, but distribution starts at first generation (whether alive or not)
49
How are adopted children and step children treated?
Adopted - treated as natural children of adopting parents, but it SEVERS relationship with natural parents Step/foster - CANNOT take under intestate succession, UNLESS: 1. Relationship began as minor 2. Continued through life AND 3. There was a legal barrier which prevented adoption.
51
Paternity
Presumption arises if father holds out child as his own, or so states in writing. Also, if child is born within 300 days of termination of marriage.

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