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Bar Exam: Outline > Wills and Descedents' Estates (MEE) > Flashcards

Wills and Descedents' Estates (MEE) Flashcards

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1
Q

UPC Intestacy: SS + Shared Decedents + SS Has No Other Issue

A

SS takes entire estate if either:
* All of Decedent’s descendants are descendents of surviving spouse, and SS has no other descendents, or
* Decedent has SS, but no descendents or parents

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2
Q

UPC Intestacy: SS + No Surviving Descendant + Surviving Parent

A

SS takes $300,000 and 75% of remainder of estate if:
* No descendent of D survives D, but D has a surviving parent and a SS

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3
Q

UPC Intestacy: SS + Surviving Issue with SS + SS has other Issue

A

SS takes $225,000 and 50% of remainder of estate if:
* All of D’s issue are also issue of SS, and SS has other issue

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4
Q

UPC Intestacy: SS + Surviving Issue Not Related to SS

A

SS takes $150,000 and 50% of remainder of estate if:
* D has issue not related to SS

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5
Q

Community Property Rules

A
  • All property acquired during marriage is jointly owned by both spouses unless it is gift, inheritance, or devise given to only one spouse
  • At death, SS entitled to: (i) own 1/2 of CP; and (ii) decedent’s 1/2 of CP, so SS takes 100% of CP.
  • SP is distributed pursuant to general intestacy
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6
Q

Surviving Spouse: Marriage

A
  • Basic Rule: SS must have been legally married to D
  • Putative spouse doctrine: Even if marriage is not valid, as long as one party believes in good faith in its validity, spouses are termed putative and qualify as spouses for inheritance purposes.
  • Separation: Spouses are married until issuance of final dissolution decree
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7
Q

Intestacy: Basic Survival Requirement

A

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

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8
Q

Intestacy: Common-Law Survival Requirement

A

Must establish by preponderance of the evidence that SS or heir survived D for any length of time

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9
Q

Intestacy: UPC/USDA Survival Requirement

A

UPC follows USDA, which requires proof by clear and convincing evidence that SS or heir must have survived D by 120 hours.

Note: If there is insufficient evidence of death, property of each individual passes as if other individual predeceased him.

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10
Q

Parent-Child Relationship: Married Parents

A
  • Child of Marriage: Presumption that child is natural child of parties to marriage
  • Posthumously-born children: Rebuttable presumption that child is child of deceased husband if child is born within 280 days of death
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11
Q

Parent-Child Relationship: Adopted Child

A
  • Adopted child treated like a biological child for inheritance purposes
  • No inheritance rights between genetic parents and adopted child
  • Stepparent exception: Adoption by stepparent establishes parent-child relationship but does not curtail parent-child relationship of genetic parent who is married to stepparent nor right of adoptee (or his descendants) to inherit from/through other genetic parent
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12
Q

Parent-Child Relationship: Foster Parents and Step Parents

A

Generally no inheritance rights between child and foster parent or stepparent (unless adopted)

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13
Q

Parent-Child Relationship: Equitable Adoption

A

Can establish an equitable adoption by showing:
* (i) Relationship started during child’s minority and established by clear and convincing evidence that a legal barrier prevented adoption, or
* (ii) Foster parent agreed with genetic parents to adopt child and foster parent treated child as his own

Effect of an equitable adoption: Inheritance rights between child and genetic parents are unaffected, and child can only inherit from (not through) equitable adoptive parent. Equitable parents cannot adopt from or through child.

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14
Q

Parent-Child Relationship: Non-Marital Children (Modern Trend)

A

Cannot inherit from natural father unless:
* (i) Father later married natural mother;
* (ii) Father held child out as his own, lived with child, provided support to child;
* (iii) Paternity is proven by clear and convincing evidence after father’s death; or
* (iv) Parenty is adjudicated during father’s lifetime by preponderance of evidence

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15
Q

Parent-Child Relationship: Non-Marital Children (UPC)

A

Requires proof of paternity for a child to inherit:
* When father holds child out as his own, there is a presumption of paternity
* Otherwise, there is no presumption, and child must bring action within 3 years of reaching 18

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16
Q

Intestate Share: Per Stirpes

A
  • Divide shares equally according to descendent’s lineal line
  • Divide shares into total number of children who survive or leave issue who survive, and then divide by representation
  • Allows surviving child to stand in place of deceased parent
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17
Q

Intestate Share: Per Capita with Representation

A
  • Divides property equally at first generation where a member survives the decedent
  • If there are deceased members at that first generation, their shares drop down to their surviving issue at the next generation
  • If a deceased member of a generation is not survived by living issue, that member does not take a share
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18
Q

Intestate Share: Per Capita At Each Generation

A
  • Divide property into equal shares at first generation when there is a surviving member
  • Instead of passing deceased member’s share by representation, pool remaining shares after each generation
  • Pooled shares are divided equally at next generation
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19
Q

Intestate Share: Ancestors and Remote Collaterals (UPC)

A

When there is no SS or descendent, UPC approach follows collateral line until a live taker is found. D’s property is then distributed within that taker’s parentelic line:
* Parents: D’s parents equally if both survive or all to the surviving parent if only one survive,
* Brothers/Sisters: Then to descendants of D’s parents,
* Grandparents: Then to D’s living maternal/paternal grandparents,
* Aunt/Uncle: Then to descendent’s of D’s deceased grandparents,
* Then to to D’s nearest maternal/paternal relative
* Finally D’s estate escheats to state

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20
Q

Valid Will Requirements

A

Three formal execution requirements:
* Writing signed by testator (T)
* Two+ witnesses
* T has present testamentary intent

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21
Q

Will Requirements: Writing Signed by T

A
  • Entire will must be in writing; can be handwritten if signature and witness requirement is met
  • Formal signature not required; signature must indicate testator’s present intent
  • Signature may be signed on T’s behalf if in T’s presence and at T’s direction
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22
Q

Will Requirements: Location of Testator’s Signature

A
  • Some states: At end, otherwise entire will is invalid
  • UPC: Anywhere on the will, but the portion of the will after the signature is invalid
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23
Q

Will Requirements: Capacity

A

T must be at least 18 years old and of sound mind. T meets mental capacity if she knows:
* Nature and extent of her property;
* Persons who are the natural objects of T’s bounty;
* Disposition she is trying to make; and
* Testamentary plan

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24
Q

Will Requirements: Witnesses

A

Most states require that the will be signed in the presence of at least 2 witnesses

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25
Q

Will Requirements: Presence of Witnesses

A

Two views of “in the presence”
* Line-of-sight test (traditional): T and Ws see (or have opportunity to see) each other sign will
* Conscious-presence test (modern): T and W must be aware through any sense that each is signing will

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26
Q

Will Requirements: Witnessing T’s Signing

A
  • Most jurisdicitions: Will must be signed by T (or someone else on T’s behalf) in joint presence of two witnesses
  • UPC: T may acknowledge his signature to Ws; Ws need not be present at same time
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27
Q

Will Requirements: Witnesses’ Signing

A
  • Most states: Witnesses must sign in presence of T
  • UPC: Witnesses may sign within a reasonable time after witnessing T sign or acknowledge will
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28
Q

Interested Witness Doctrine

A
  • Common Law: An interested witness is not competent as a witness. Witness is invalid unless there are at least two disinterested witnesses.
  • UPC: Interested witness doctrine is abolished.
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29
Q

Interested Witness Doctrine: Purge Theory

A

A gift to an interested witness is denied to the extent of the amount in excess of the witness’s intestate rights

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30
Q

Will Requirements: Testamentary Intent

A
  • T must execute a will with present testamentary intent, must understand he is executing a will, and intend that it have testamentary effect
  • T must generally know and approve of will’s contents, but need not understand all provisions
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31
Q

Compliance with Will Requirements: Common Law vs. UPC

A
  • Common Law: Strict compliance
  • UPC: Substantial compliance if there is clear and convincing evidence of T’s intent to have document serve as will
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32
Q

Holographic Will: Requirements

A
  • Informal, handwritten: In some states, entire will must be in T’s handwriting. For UPC, only material provisions must be in T’s handwriting.
  • Need not be witnessed
  • Must be signed by T
  • Must demonstrate testamentary intent: UPC allows for extrinsic evidence; otherwise look to words or phrases
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33
Q

Oral Wills

A
  • UPC/Most States: Not permitted
  • Some states: Permitted, but valid for disposition of limited personal property made in contemplation of immediate death
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34
Q

Codicils

A
  • Changes or adds to a will
  • Does not replace underlying will
  • Must be executed with the same formalities of a will
  • Effect: Republishes will as of date codicil was executed, and may even validate an otherwise invalid will
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35
Q

Will Substitutes: Outside of Probate

A
  • Joint tenancy
  • Revocable Trusts
  • Pour-over-will
  • Bank accounts and securities registered in beneficiary form
  • Payable-on-death clause in contract
  • Life insurance
  • Deeds
  • Totten trusts
36
Q

Revocation of Will: Three Ways

A

A will or codicil can be revoked any time prior to T’s death by:
* Subsequent Instrument
* Physical Act
* Operation of Law

37
Q

Revocation of Will: Subsequent Instrument

A
  • Express Revocation: Later writing expressly revokes prior will or codicil
  • Implied Revocation: Later writing is inconsistent with prior will or codicil. So long as second will is validly executed, the later document controls

Note: Oral revocation of will does NOT affect the will or codicil.

38
Q

Revocation of Will: Physical Act

A
  • T, or a third-party at T’s direction and in T’s presence, may revoke a will or codicil in part or in its entirety by engaging in a physical act of destruction (e.g., burning, canceling, tearing). This also presumptively revokes all duplicates.
  • Most states: Require defacement of some language of the will
  • Some states (UPC): Destructive act need only affect some part of will
39
Q

Revocation of Will: Lost Wills

A
  • Creates a rebuttable presumption that the testator revoked the will by physical act
  • Burden is on proponent to show will’s existence by clear and convincing evidence

Note: This does not apply if a duplicate original is found.

40
Q

Revocation of Will: Operation of Law

A

In most states (UPC), final divorce decree revokes will or codicil provisions for the former spouse unless there is evidence that T intended for the will to survive the divorce.

41
Q

Revocation of Will: Cancellation of Words

A
  • T cannot increase a gift to a beneficiary by canceling words in his will.
  • T may be able to decrease gift as long as alteration is made to existing language of will rather than through addition of new language.
42
Q

Revocation of Codicils

A
  • By revoking a will, the testator also revokes any codicil attached to the will
  • By contrast, revocing a codicil will revive the will
43
Q

Revival of a Will: Republication

A

If an instrument that revoked a prior valid will is later revoked, prior will may be republished

44
Q

Revival by Republication: Common Law

A
  • Automatic revival of original will upon revocation of a subsequent will
  • Followed in only a few states
45
Q

Revival by Republication: UPC

A

Outcome depends on method of later instrument’s revocation:
* Later instrument revoked by new will: Previously revoked will revived if terms of new will show that T intended previous will to take effect
* Later instrument revoked by physical act: Extrinsic evidence of testator’s intent to revive original will is admissible. If whole revocation, presumption T did not intend to revive first will. If partial revocation, presumption T intended to revive revoked parts of previous will.

46
Q

Revival of a Will: Dependent Relative Revocation (DRR)

A
  • Allows a court to revive a revoked will when T revoked will by subsequent instrument or physical act under a mistaken belief of law or fact.
  • It must be shown that T would not have revoked original will but for mistaken belief.
47
Q

Will Contracts

A
  • Writing: Will states K’s material provisions in a written K, or will expressly references a K and extrinsic evidence proves its terms
  • Consideration: Required (e.g., B promises to care for T in exchange for a bequest)
  • Enforceability: Only if **signed **by party sought to be charged
  • Remedy: No remedy for breach while T still alive
  • Reciprocal provisions: Generally do not create a presumption not to revoke. But, if evidence establishes devises were made in consideration of reciprocal devises, K becomes irrevocable upon death of first party.
48
Q

Construction of Wills: Classification System of Gifts

A
  • Specific: Property distinguished with reasonable accuracy from T’s other property
  • General: Property to be satisfied from general estate assets
  • Demonstrative: Property to come from a particular source
  • Residuary: Property remaining after all specific, general, and demonstrative gifts are made
49
Q

Construction of Wills: Incorporation by Reference

A

Writing not executed with testamentary formalities may be incorporated by reference if it:
* Existed at time will was executed (exception under UPC for T’s tangible personal property);
* Is intended to be incorporated; and
* Is described in the will or codicil with sufficient certainty.

Note: A validly executed codicil can incorporate an invalid will and make the terms of the will valid.

50
Q

Construction of Wills: Acts of Independent Significance

A

A will can provide for designation of a beneficiary or amount of a disposition by reference to some unattested act or event occurring before or after execution of will or T’s death if act or event has significance independent from will.

51
Q

Construction of Wills: Lapse

A
  • Common law: If a beneficiary dies before T, gift to beneficiary lapses (fails).
  • Modern anti-lapse statutes (UPC): If beneficiary is sufficiently related to T, beneficiary’s surviving issue (child, grandchild, etc.) will take in his/her place.
52
Q

Lapse: Class Gifts

A
  • Traditional rule: If will beneficiaries are a class, only surviving members of class receive benefit of will.
  • Modern approach: If an anti-lapse statute applies (because predeceased class member was related to testator), then issue of predeceased member also will take.
53
Q

Lapse: Residuary Lapse

A
  • Common Law: Lapsed residuary interest passes by intestacy
  • UPC: Lapsed residuary interests pass to the remaining residuary beneficiaries
54
Q

Lapse: Void Gifts

A

Anti-lapse statute also applies to void gifts to a beneficiary who, unbeknownst to T, is already deceased when will was executed

55
Q

Construction of Wills: Abatement

A

Reduction/elimination of gifts when estate assets are insufficient. Gifts abate in following order:
* (1) Intestate property
* (2) Residuary bequests
* (3) General bequests
* (4) Specific bequests (demonstrative gift may qualify as this or, if not, a general bequest)

56
Q

Construction of Wills: Ademption by Extinction

A
  • Traditional Rule: if subject matter of specific gift is missing, destroyed, or there is substantial change in form of gift, beneficiary takes nothing (“identity theory”)
  • UPC approach (modern rule): T’s intent at time he disposed of subject matter is examined. Mild presumption against ademption. (“intent theory)
57
Q

Construction of Wills: Ademption by Satisfaction

A

T satisfies a specific or demonstrative gift, either in whole or in part, by an inter vivos transfer. Requirements:
* T must intend for the gift to adeem; and
* Intent must be supported by a writing

Note: UPC presumes no ademption by satisfaction absent an express writing.

58
Q

Construction of Wills: Plain Meaning Rule

A
  • Courts tend to give words in wills their plain meaning.
  • Assume T meant the plain meaning of what he said, even if T meant something else.
  • Exception: Will states otherwise (e.g., by defining terms).
59
Q

Construction of Wills: Ambiguities

A
  • Modern courts: Allow latent (not ambiguity on its face) or patent (ambiguous on its face) ambiguities to be resolved by extrinsic evidence
  • Traditional courts: Only allowed extrinsic evidence for latent ambiguities
60
Q

Construction of Wills: Mistakes

A
  • Extrinsic evidence admissible to show mistake in execution of a will
  • Extrinsic evidence not allowed if mistake involves reasons behind T making will or a particular gift
61
Q

Rights of Surviving Spouse to Elective Share: Common Law

A
  • SS can elect to take share of T’s augmented state rather than gifts left to SS in will
  • **UPC **: Forced share is 50% of augmented state, includes property acquired before and during marriage
62
Q

Rights of Surviving Spouse to Forced Share: Community Property

A
  • SS entitled to one-half of community and quasi-community property (forced share)
  • SS must elect to take forced share in lieu of any interest under T’s will
63
Q

Rights of Surviving Spouse to Elective Share: Waiver

A

Surviving spouse can waive right to an elective share if:
* Waiver is in writing after a fair disclosure of its contents;
* Spouse is represented by independent legal counsel

64
Q

Rights of Surviving Spouse: Omitted Spouse

A

An omitted spouse is entitled to an intestate share unless:
* Omission was intentional;
* Spouse was given property outside of will in lieu of a disposition in the will; or
* Spouse is party to a valid prenuptial agreement waiving her right to a share in estate

65
Q

Gifts to Children: Advancement of Inheritance

A
  • Common law: Any lifetime gift is presumed to be an advancement of child’s intestate share. Child has burden to show an item was a gift.
  • UPC: A gift is an advancement only if D declared in contemporaneous writing that gift was an advancement, or heir acknowledges as such in writing
66
Q

Calculating Effect of Advancement: “Hotchpot” Analysis

A
  1. Add value of advancements back into intestate estate;
  2. Divide resulting estate by number of children taking; and
  3. Deduct child’s advancement from child’s intestate share
67
Q

Omitted Child

A

Rebuttable presumption that omission was by mistake unless:
* (i) intentional omission;
* (ii) T had other children when will executed, left estate to other parent of omitted child; or
* (iii) T otherwise provided for child

Note: If omitted child was T’s only child, omitted child takes intestate share. If T had other children, omitted child shares equally in property devised to other children.

68
Q

Bars to Succession: Slayer Rule

A
  • Party cannot take property from decedent when party intentionally and feloniously caused the decedent’s death
  • UPC: Treat killer as if he predeceased the decedent, but allows the killer’s issue to take if an anti-lapse statute applies
69
Q

Bars to Succession: Disclaimer

A

Disclaimer must be:
* In writing, be signed, and filed with the court; or
* Declared to the person in charge of distributing the estate;

AND
* Identify the decedent, describe the interest being disclaimed, and define extent of disclaimer

Note: Must disclaim within nine month’s of decedent’s death

70
Q

Will Contests: Standing to Contest

A

Only an interested party has standing to challenge a will. An interested party is someone who:
* would stand to benefit financially under the will; or
* Take under intestate succession but does not take under will

Note: Must file contest claim within six months after will is admitted to probate

71
Q

Will Contests: Insane Delusion

A
  • A belief is an insane delusion if a rational person in the T’s situation could not have reached the seame conclusion
  • If it is shown that T has an insane delusion, it must be shown that but for this delusion, T would not have disposed of the proprty in the manner he did
72
Q

Will Contests: Undue Influence

A

Undue influence: Mental or physical coercion is exerted by a third party on a testator with the intent to influence T such that he loses control of his own judgment. Must also show beneficiary received a substantial benefit and beneficiary had confidential relationship with T.
* Burden of proof is on beneficiary to show by preponderance of the evidence there was no undue influence

Note: If there is undue influence, beneficiary is treated as if he predeceased T to extent that gift is in excess of beneficiary’s intestate share.

73
Q

Will Contests: Fraud

A

Contestant bears burden of showing beneficiary engaged in an unlawful misrepresentation at time of conveyance. Must show beneficiary made misrepresentation with:
* Intent to deceive T; and
* Purpose of influencing the testamentary dissposition

Note: Can be either fraud in the inducement or fraud in the execution

74
Q

Will Contests: Forfeiture Clause

A
  • Designed to deter beneficiary from suing over his share by causing him to lose his entire share is he does sue
  • UPC: Clause is unenforceable if beneficiary had probable cause to challenge his share
75
Q

Will Contests: Restraints on Marriage

A

Provisions imposing a forfeiture of a gift if the beneficiary should ever marry are invalid as against public policy

76
Q

Will Contests: Conflict of Laws

A

Validity under UPC is determined under law of place where will was executed or testator is domiciled

77
Q

Probate: Jurisdiction

A

Place where D is domiciled at time of death has jurisdiction over D’s personal property and any real property located there

78
Q

Probate: Notice and Timing

A
  • Notice: Given to interested parties, including creditors
  • Timing: Will could be probated at any time (common law) vs. within three years of death (UPC)
79
Q

Probate: Priority of Claims

A
  1. Administrative expenses
  2. Last medical expenses and funeral expenses
  3. Family allowance
  4. Tax claims
  5. Secured claims
  6. Judgments against D
  7. All other claims
80
Q

Personal Representative in Probate: Priority for Appointment

A
  1. Person named in the will
  2. Surviving spouse who is a devisee
  3. Other devisees
  4. Surviving spouse
  5. Other heirs
  6. Any creditor (45 days after death)
81
Q

Personal Representative in Probate: Duties

A

Owes highest duty of loyalty and care to those represented

82
Q

Powers of Appointment: Types

A
  • General: No restrictions or conditions on exercise of power
  • Specific: Places limitations on holder’s exercise of power
83
Q

Powers of Attorney: Requirements

A

To be valid it must be:
* In writing,
* Signed, and
* Dated

84
Q

Powers of Attorney: Types

A
  • General: Covers all affairs during a person’s period of incapacitation
  • Special: Limits authority to specific subject matters (i.e., resolving a particular business deal)
85
Q

Advance Health Care Directives: Durable Power of Attorney

A
  • Agency continues until death of principal, even if principal becomes incapacitated
  • Allows agent to stand in principal’s shoes and make decisions for her
86
Q

Advance Health Care Directives: Living Will

A
  • Dictates the care the individual wants in the event the individual is not able to make those wishes known
  • Agent’s job is to see that the directive is enforced

Bar Exam: Outline (16 decks)

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