Wills and Decedents Flashcards
What is a putative spouse and how is one treated for purposes of inheritance?
When a marriage is not valid but at least one spouse believes in good faith that it is, then the spouses are termed “putative” and qualify as spouses for inheritance purposes.
What kind of will is valid even if witnesses do not sign it, as long as they sign affidavits before a court officer?
A “self-proved will”
Under the UPC, a will that is executed with attesting witnesses may be made “self-proved” by the acknowledgment of the testator and affidavits of the witnesses before a court officer in substantial accordance with a prescribed form.
How does the UPC treat the inheritance rights of a person adopted by a stepparent?
The adoption does not curtail the inheritance rights of a either natural parent, and adds in inheritance rights through the stepparent, resulting in the child standing to inherit through three different people: two natural parents and the stepparent/adopted parent.
What is the general statutory order in which expenses and debts are to be paid from an estate?
- Administrative expenses
- Last medical expenses and funeral expenses
- Family allowance
- Tax claims
- Secured claims
- Judgments against the decedent
- All other claims
What kind of will need not be witnessed?
A holographic will.
A holographic will is one that is completely handwritten and signed by the testator.
If a testator executes a will, then adopts a child, then dies without revising the will, what is the presumption regarding the omission of that adopted child?
What can overcome this presumption?
In such case, a presumption is created that the omission of the child was accidental.
This can be rebutted by evidence that (1) the omission was intentional, (2) the testator had other children when the will was executed and left substantially all of the estate to the other parent, or (3) the child was provided for outside of the will with the intent that it be in lieu of a provision in the will.
How does a decedent’s estate pass according to the parentelic approach?
Under this approach, a decedent’s estate would first pass to the decedent’s parents and their issue; if there are none, then to the decedent’s grandparents and their issue, and so on.
What is the Dependent Relative Revocation (DRR) Rule?
DRR allows a court to disregard a testator’s revocation that was based on a mistake of law or fact that would not have been made but for that mistake. The testator’s last effective will, prior to the set-aside revocation, will once again control his estate.
According to the Uniform Testamentary Additions to Trusts Act (UTATA), what happens when a will attempts to pour over estate assets into a trust not executed in accordance with the Statute of Wills?
A will may still pour over assets into such trust as long as the trust is identified in the will and its terms are set forth in a written instrument.
Note: if these requirements are met, the pour-over bequest is valid even if the trust is unfunded, revocable, and amendable.
How does a decedent’s intent weigh on how property passes via intestacy?
The decedent’s intent is irrelevant regarding how property passes by intestacy.
What kind of will is generally valid only for the disposition of personal property in contemplation of immediate death?
Nuncupative (oral) wills
These wills are invalid under the UPC and most states. Where valid, they require at least two witnesses, can devise only a limited amount of personal property, and may require that the testator die within a prescribed period after making the oral will.
What is a supplement to a will that alters, amends, or modifies the will, rather than replacing it?
A codicil.
A codicil must be executed with the same formalities as a will. A valid codicil republishes the will as of the date of the codicil and may even validate an invalid will if the codicil refers to the will with sufficient certainty to identify or incorporate it, or if the codicil is on the same paper as the invalid will.
What are the requirements for an international will?
- In writing
- Signed
- Witnessed by two individuals
- Witnessed by a third person who is authorized to act in connection with international wills and who must prepare a certificate to attach to the will.
What are the three ways a will may be wholly or partially revoked?
- Subsequent writings
- Physical destruction of the will
- Operation of law
Under common law, what happened to a devise when the recipient beneficiary died before the testator?
The gift failed and went to the residue, unless the will provided for an alternate disposition.
What is the order gifts are abated, unless otherwise specified in the will?
- Intestate property
- Residuary bequests
- General bequests
- Specific bequests
What are the formal execution requirements for a valid will?
- A writing
- Signed
- Present testamentary intent
- Joint presence of two witnesses
- Witnesses understand the significance of the testator’s act
- Witnesses understand that the will has no legal effect until after the testator’s death
What is the difference between a duplicate and copy in terms of lost wills?
Duplicate: one of two copies of the same will executed in the same manner, each complying with the same formalities. This may be admitted to probate.
Copy: like a photocopy, cannot itself be admitted to probate, although it may be used as proof of testamentary intent.
How does the revocation of a will differ from the revocation of a codicil?
Revocation of a will revokes all codicils thereto, whereas revocation of a codicil does not revoke a will, but rather revives it.
How are patent and latent ambiguities in a will resolved, and what happens if they cannot be resolved?
Patent and latent ambiguities may both be resolved by extrinsic evidence. If the ambiguity cannot be resolved, then the gift in question becomes part of the residue.