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Wills and Estates Flashcards

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1
Q

Decedent

A

person who has died

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2
Q

will

A

legal doc used to dispose of someone’s prop after they die

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3
Q

testate

A

decedent dies with a will

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4
Q

intestate

A

decedent dies without a will; leads to system of intestate succession

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5
Q

codicile

A

supp that either amends or revokes a will in whole or part

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6
Q

probate

A

judicial process for administering decedent’s estate.

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7
Q

intestate succession

A

default estate plan; developed by leg; for distributing prop when decedent dies intestate

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8
Q

heirs

A

individuals entitled to receive prop via intestate succession; living people do not have heirs.

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9
Q

devisee

A

if you are entitled via a will (rather than intestate)

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10
Q

spouse

A

decedent’s marital partner

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11
Q

issue decedent?

A

decedent’s lineal line going down

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12
Q

ancestors

A

decedent’s parental line

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13
Q

collaterals

A

decedent’s relatives through an ancestor

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14
Q

for intestate succession, does decedent’s intent matter?

A

no

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15
Q

must an heir survive the decedent to take by intestate succession?

A

Yes

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16
Q

Simultaneous death

A

UPC: Uniform Simultaneous Death Act: When decedent and heir die at same time, if insufficient evidence as to who died first, prop will pass as if each had predeceased each other. Heir must be proved by clear and convincing evidence to have survived decedent by 120 hours.

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17
Q

Who qualifies as spouse for intestate succession?

A

Legally married partner. Not unmarried cohabitants.

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18
Q

Spouse + shared descendants: Decedent survived by descendant who are also descendants of surviving spouse. Surviving spouse has no other descendants.

A

Surviving spouse takes entire estate.

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19
Q

Spouse + parent: Decedent survived by parent but no descendant (and spouse).

A

Surviving spouse takes $300,000 + 75% of the remaining estate. 25% goes to the parent.

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20
Q

Spouse + shared descendants + spouse’s kids: Decedent survived by descendants who are also of the surviving spouse, and spouse has other issue (kids from other relationship).

A

Spouse takes $225,000 and 50% of remaining prop

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21
Q

Spouse + nonspousal kids: Decedent survived by issue not related to surviving spouse.

A

Spouse gets $150,000 + 50% of remaining estate.

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22
Q

Just spouse survives

A

Takes entire estate

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23
Q

What if decedent dies without heirs?

A

Escheats to the state

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24
Q

The issue relationships

A

There must be a parent-child relationship (biological or adopted). Step-parent adoption: adoption will not prevent adoptee from inheriting from the other natural parent. Post-humously born child: born after death of mother’s husband; if born within 280 days of death, rebuttable presump that child is husband’s and will inherent from him; if more than 280, will have to prove parentage; Uniform Parentage Act increases amount to 300 days.

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25
Q

Systems for calculating issue share

A
  1. Per stirpes 2. Per capita with rep 3. Per capita at each gen
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26
Q

Per stirpes

A

CL rule. Divides shares equally by total number of children who survive or leave issue who survive. Issue take in equal shares regardless of whether anyone in that generation survived.

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27
Q

Per capita with rep

A

Divide prop equal at first gen a member survives. If someone at that generation dead, still allowing their issue to stand in their place. If not survived by issue, get no share.

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28
Q

Per capita at each gen

A

UPC approach. Divide prop equal at first gen a member survives. But then don’t pass by rep; Pools what’s left and drops down to next gen dividing equal (so you take what same people at your generation take rather than how many siblings you have).

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29
Q

Formal will execution reqs

A
  1. Signed writing 2. Witnesses 3. Testamentary intent
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30
Q

Formal will execution reqs

A
  1. Signed writing 2. Witnesses 3. Testamentary intent
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31
Q

Signing req for formal will

A

Entire will must be written or typed and signed by testator. UPC does not allow oral wills (including audio or video recordings). Has to be signed by testator. In some states at end of doc. In others (UPC included) can be located on any part of the will (must intend for name to be signature), but any words after the signature will not be given effect. Formal signature not required. Just has to indicate their intent to make and sign that will.

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32
Q

Competency wrt testator

A

Must be at least 18 and of sound mind. Measured at time of signing. If you become incompetent later, no effect on validity of will.

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33
Q

Witnesses req for formal will (attestation req)

A

Most states require it signed in presence of at least 2 witnesses. Witnesses must also sign doc but not necessarily at same time. Most jx say testator must sign or acknowledge it in presence of witnesses and they must sign in his presence. UPC says they must sign within a reasonable time of the original signature by the testator, so doesn’t need to be in each others’ presence. In the presence: Old rule - line of sight: basically be in the same room Modern rule - conscious presence: must be aware act is being performed even if can’t see it. (UPC adopts this only for situation where will signed by another on behalf of testator.) Ex: over phone not enough.

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34
Q

COI wrt witnesses and will

A

Interest: witness has direct financial interest in the will. CL: Interested witness not competent to witness the will. Purge theory adopted by states: If witness has direct financial interest, still valid will, but purge any excess they would get other than from intestate succession. Wouldn’t purge if there were 2 other disinterested witnesses though. Or if interested witness would take a larger share under intestate succession, then would take the lesser of the two–not really an interested witness any more. UPC has abolished interested witness doctrine.

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35
Q

Present testamentary intent wrt formal wills

A

Testator must have present intent to make a testamentary transfer.

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36
Q

Do you need to adhere to formal wills reqs strictly?

A

CL (majority rule): strict adherence to formalities Modern (UPC) (minority view): strict compliance not required, need sub compliance; can still admit if clear and convincing evidence if they intended the doc as a will

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37
Q

Informal wills (hallographic wills)

A

Informal handwritten will. Need not be witnessed. Must be signed though. Some jx: Any markings not in his handwriting invalidate the will. (Creates a problem with form wills.) UPC: Only requires that material provisions be in his handwriting. Material = identifying prop, who will take it, what amount, etc. (Makes form wills ok.) Look for words of intent. UPC says can look at extrinsic evidence to glean intent.

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38
Q

Codicil

A

Supplements a will, but doesn’t replace it, not revoked. Must be executed with same formalities as a will, but a formal will can be amended by informal will and vise versa??

39
Q

Will substitutes

A
  1. Joint tenancy: right of survivorship 2. Revocable trusts: inter vivos transfer 3. Pourover will: distributes prop via trust 4. Payable on death contract: like life insurance; inter vivos transfer 5. Deed: inter vivos transfer
40
Q

Wills are ambulatory:

A

Can be altered or revoked any time up until the testator’s death. Later will controls.

41
Q

Will can be revoked in part?

A

Yes, in full or in part.

42
Q

How can a will be revoked?

A
  1. subsequent instrument 2. physical act 3. operation of law
43
Q

subsequent instrument (for revoking a will)

A

Express: Later writing expressly revokes prior will. Oral not enough. Implied: Later writing is inconsistent with later writing. So long as validly executed, it controls.

44
Q

Codicil v. new will

A

Look for residuary. If OG will has one and later one doesn’t, probs codicil. If vise versa, later one more likely to be a new will.

45
Q

Physical act (for revoking a will)

A

Physical act of destruction (tearing, burning, crossing things out). Must intend for physical act to revoke the will (if you accidentally set it on fire, doesn’t count). Destroying specific language: Majority says that language must be destroyed. UPC says just destroying some part of it enough??? Lost wills: Rebuttable presumption that testator revoked it by physical act. Burden is on proponent to show its existence by clear and convincing evidence.

46
Q

Duplicate originals v. copies admissibility in probate:

A

Duplicate originals: Can be admitted into probate. Copies: Cannot be admitted.

47
Q

Operation of law (for revoking a will)

A

In most jx, divorce revokes all provisions in favor of the former spouse. Exception: If evidence testator wanted it to continue after divorce. UPC: Invalidates gifts to ex-spouse and their relatives. Separation does not affect the rights of the spouse. Subsequent marriage does not revoke a will bc surviving spouse is entitled to take elective share??

48
Q

Third-party revocation

A

Can happen if it’s at testator’s direction and in their conscious presence.

49
Q

Revoking codicil

A

Revoking will also revokes codicil. But opposite is not true. If you revoke the codicil, original will is revived.

50
Q

Automatic revival

A

UPC (majority rule on this): Does not recognize automatic revival of a revoked will.

51
Q

Dependent relative revocation (DRR)

A

Safety valve for testators who revoke a will on basis of a mistake (law or fact). Invalidates a mistake in revocation and revives a revoked will. Causation: but for the mistake, testator would not have revoked the will

52
Q

Plain meaning doctrine

A

Courts give words in will their plain meaning. Even if testator meant something else. Unless the will explains otherwise.

53
Q

Corporation by reference

A

Doc outside the will itself. Will refers to it. Can incorporate an extrinsic doc and it’s not testamentary in nature. Can do so if it’s in existence at time of the execution (UPC waives this rule if doc only disposes of personal prop). Testator intends doc to be incorporated into will. And doc is described in will with sufficient certainty to permit its ID.

54
Q

Acts of independence signficance

A

Can dispose of prop based on some act or event unrelated to exec of will. Notion is that something is going to happen in the future.

55
Q

Lapses and anti-lapse statute

A

CL: Testamentary gift would lapse (fail) if intended beneficiary did not survive testator. Would then go to residuary gift. States have adopted anti-lapse statutes: Prevents certain gifts from lapsing–protected (familial) relationship gifts (gifts to relatives of the testator). They must be survived by issue–we’ll let them stand in the place of the predeceased individual. If you’re not sheltered by the statute, CL rule applies. Class gifts: At CL, if a member of a group lapses, rest of the members in that class share that gift. If class member covered by anti-lapse statute, then that statute applies.

56
Q

Abatement doctrine

A

If estate does not have sufficient funds, gifts in the estate are abated (reduced) in a specific order. Last to be abated has most protection. 1. Intestate prop 2. Residuary gift 3. Gen gifts 4. Specific gifts

57
Q

Specific gifts

A

a piece of prop

58
Q

General gift

A

prop satisfied by gen assets of estate

59
Q

demonstrative gift

A

Gen gift from particular source. If can be satisfied, treated as specific gifts. Otherwise treated as gen gifts.

60
Q

residuary gift

A

the leftover

61
Q

Ademption by extinction

A

Will makes specific devise of prop but then it’s no longer in the estate at time of death. Traditional rule: Identity theory - Devise is extinct and devisee takes nothing. UPC: Intent theory - Look to testator’s intent at time she disposed of prop and look for evidence that they intended the ademption, so devisee might be able to take a replacement gift.

62
Q

Ademption by satisfaction

A

When a testator satisfies a specific or demonstrative gift either in whole or part by inter vivos transfer. Testator must intend for gift to adeem and it must be supported by a writing.

63
Q

Latent ambiguities vs. patent ambiguities

A

Latent: On the face of the will don’t see the problem, but as we look deeper into it we see a problem. Patent: Appears on the face of the doc. Traditional rule: Patent ambiguities had to be resolved without looking at extrinsic, but latent could be resolved using extrinsic evidence. Modern rule: Most courts allow both to be resolved using extrinsic evidence.

64
Q

Mistakes in wills

A

Courts less forgiving of these than ambiguities. Court not likely to interfere with that and correct the mistake.

65
Q

Limits on power to transfer

A
  1. rights of testator’s spouse 2. children 3. bars to succession
66
Q

Surviving spouse entitled to what means of support?

A
  • social security and pension plans - homestead exception - personal prop set-asides - fam allowance: to ensure money coming in if family relying on decedent’s income/prop - elective share
67
Q

elective share

A

spouse can elect to take it; forced share–they are satisfied before rest of estate; if spouse elects to take it, affects other beneficiaries’ gifts UPC: 50% of decedent’s augmented estate (prop acquired before and during marriage, so broader than community prop share which is everything from marriage onward). To waive, wife’s waiver must be in writing, after fair disclosure of contents, and spouse must be repped by independent legal counsel

68
Q

Advancement

A

lifetime gift to a child that is treated as satisfying all or part of child’s intestate share CL: Any lifetime gift presumed to be an advancement of child’s intestate share and child bears burden of showing not advancement but a separate gift. UPC: Gift is advancement only if first decedent declared in a contemporaneous writing that it was advancement or heir acknowledged in writing that gift was an advancement or a writing indicates it should be taken into account in computing the division of prop of decedent’s estate.

69
Q

How to calculate advancements

A

Hodgepod analysis (how states compute advancements): 1. Add: Add value of total advancement back into intestate estate 2. Divide: Divide resulting estate by number of children taking 3. Deduct: Deduct child’s advancement from child’s intestate share.

70
Q

Intentional ommission

A

Parent can intentionally disinherit children.

71
Q

Unintentional ommission

A

Sometimes bc will goes before child is born. If testator had no other children when will executed, then omitted child takes intestate share. If testator had other child and that child got something, omitted child takes equal share from portion of prop already devised to other child.

72
Q

Bars to succession

A
  1. Slayer rule: If you murder a testator you don’t get to inherit from him. Treated as if murder predeceased testator. Not applied in involuntary(?) manslaughter or SD cases, so must be intentional and feloneous. UPC allows killer’s issue to take though. 2. Person might disclaim the gift (I don’t want it). Often bc of taxes. Must be in writing, signed and filed with court. Or it can be declared to person in charge of distributing estate and ID the decedent, describe the interest being disclaimed, and define the extent of the disclaimer. Must disclaim within 9 months of death.
73
Q

Elder abuse rule

A

Someone convicted of financial exploit, abuse or neglect to person under their care is prohibited from inheriting from that person.

74
Q

Who has standing to challenge a will?

A

Only an interested party - someone who has financial benefit under the will, or who would take under intestate succession but does not take under the will.

75
Q

When must interested party file contest claim?

A

Within 6 months after will admitted to probate.

76
Q

Grounds for challenging a will

A
  1. Testator capacity 2. Insane delusion 3. Undue influence 4. Fraud
77
Q

Contestant

A

Person challenging will

78
Q

Challenging will on capacity grounds

A

Contestant bears burden of proving testator lacked requisite mental capacity at time of exec of will. –> Did he have the ability to know nature of the act (why), nature and character of her prop (what), the natural objects of his bounty (who), plan of the attempted disposition (how). Just about ability to know these things, not whether actually did. Ex: being a drunk doesn’t count; bouts of dementia counts.

79
Q

Insane delusion

A

A false belief and testator adheres to it in spite of all reason and evidence to contrary. Objective test: measure against rational person in testator’s position–if rational person could not have reached same decision. Insane delusion must be but-for cause.

80
Q

Undue influence

A

Coerced relationship. Contestant alleges third party effectively controlled testator’s decision process. Contestant bears initial burden of showing beneficiary received sub benefit under will, that beneficiary had confidential relationship with testator (often professional), and that testator has weakened intellect at time. If that is satisfied, burden shifts and creates presumption of undue influence. Then proponent (third party) must show by preponderance of evidence that no undue influence. If can’t, consequence: treat beneficiary as predeceasing testator to extent it is in excess of his intestate share. Causation matters here too.

81
Q

Fraud def, elements, kinds, remedy

A

Contestant bears burden of showing beneficiary engaged in unlawful misrep at time of conveyance. 1. Misrepped with intent to deceive testator 2. With purpose of influencing testamentary disposition Kinds: 1. Fraud in inducement: causes testator to make diff will than would have otherwise made 2. Fraud in execution: misrep as to character/contents of will Remedy: constructive trust

82
Q

Forfeiture clause

A

Intererum - no contest clause: Dissuades beneficiary from suing under his or her share. UPC: unenforceable if beneficiary had probable cause to challenge.

83
Q

How to start estate problem?

A
  1. Classify as probate (passed by will or intestate succession) or not probate prop (instrument other than will, like deed, trust, joint tenancy, POD contract, etc.) 2. Nonprobate prop: figure out who takes it and give it to them 3. If will, is it valid? Who are intended beneficiaries. 4. Prop not specifically devised goes intestate. Any invalid part also through intestate.
84
Q

If will invalid in whole or part, invalid part passes through…

A

intestate succession

85
Q

Timing for probate

A

UPC: Probate proceedings must be brought within 3 years of death, otherwise presumption of intestacy

86
Q

How can probate happen?

A

Party requesting probate can choose to have it through informal ex parte or formal probate (notice probate).

87
Q

Non-claims statute

A

Bars creditors form making claim on decedent’s estate after certain time period has elapsed.

88
Q

Notice to creditors

A

Personal rep must provide notice to creditors of estate. 7 classes of creditors (from most important to least): 1. admin expenses 2. med and funeral expenses 3. fam allowances 4. taxes 5. secured claims 6. judgments against decedent 7. all other claims

89
Q

Personal rep

A

acts on behalf of estate during probate process. If appointed by court = administrator. If named in will = executor.

90
Q

Duties of personal rep

A
  1. Inventory/appraise estate. Can hire to do that. 2. Locate and contact interested parties, including creditors. 3. Satisfy debts.
91
Q

Duties owed by personal rep

A
  1. Fiduciary, so duty of loyalty and care. No self-dealing.
92
Q

If no personal rep named…

A
  1. Surviving spouse who is devisee, then 2. Some other surviving devisee, then… 3. Surviving spouse, then… 4. Some other heir, then… 5. 45 days after decedent death, any creditor.
93
Q

Powers of appointment

A

Ability of decedent (donor) to select individual (donee) to dispose of certain prop under will. Power is personal to donee (only they can appoint). Types: 1. General: No conditions or restrictions on donee’s power. Can appoint herself or one of her creditors. If fails, prop reverts back to donor’s estate. 2. Special: Donor can specify certain individuals as objects of the power and limit donee’s power that way.

94
Q

Powers of attorney

A

Authority to act on another’s behalf in a legal or business matter. Principal-agent relationship. To be valid must be in writing, signed, and dated. Types: 1. General: Covers all affairs during a person’s period of incapacitation. 2. Special: Limits auth to specific subject matters. 3. Advanced healthcare directives: To make sure care handled correctly. –> Living will: What they want during their life in case they cannot make those wishes known later on in their life, agent must make sure they are enforced. –> Durable power of attorney for healthcare: Appoints agent for if they become incapacitated and cannot make medical decision and actually make the decisions for her.

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