Wills and Estates

Question 1

What is an Intestacy Statute?

Answer 1

It governs any property NOT passing by a valid will or by operation of law.

The statute will dictate how the property will pass to heirs.

Example: If a decedent leaves only a surviving spouse and no descendants, in most states the surviving spouse will receive the entire estate.

Priority: HIGH

Question 2

What are the Will Execution Formalities under the Uniform Probate Code (UPC)?

Answer 2

A will must be:

1. In a writing;
2. Signed by the testator; AND
3. Either:

• Signed by at least two individuals within a reasonable time after witnessing the signing; OR
• Notarized.

*A valid will requires intent by the testator to create the will.

Priority: HIGH

Question 3

Under the Harmless Error Rule, what needs to be proven to validate an improperly executed will?

Answer 3

For the Will to be validated, it must be proven:

1. By clear and convincing evidence;
2. That the decedent intended the writing to be his will.

*The greater the departure from the necessary execution formalities, the harder it is to prove the testator’s intent.

Priority: Medium

Question 4

Under the Doctrine of Integration, when will a document be integrated into a Will?

Answer 4

If the testator:

1. Intended it to be part of the will; AND
2. The document was physically present at the will’s execution.

*Integration may be proven by extrinsic evidenced or witness testimony.

Priority: Medium

Question 5

What is a Codicil?

Answer 5

An instrument made AFTER a will is executed that modifies, amends, or revokes portions of a will (a codicil MUST satisfy the same formalities as a will to be valid).

*Execution of a codicil republishes the will.

Priority: HIGH

Question 6

What is a Holographic Will?

What is a Holographic Codicil?

Answer 6

Holographic Will: A handwritten will that is NOT witnessed. Some states require that the writing be subscribed (signed at the end of the will) by the testator.

Holographic Codicil: A handwritten alteration to a will that is NOT witnessed. A valid holographic codicil revokes any earlier will to the extent it conflicts with the codicil.

Priority: HIGH

Question 7

When will a document/writing be Incorporated by Reference into a Will?

Answer 7

If it:

1. Was in existence at the time the will was executed;
2. Is sufficiently described in the will; AND
3. The testator intended to incorporate it into the will.

*To incorporate into the will, it must be signed by the testator and describe the item and the recipients.

Priority: HIGH

Question 8

When is a Will revoked by a physical act?

Answer 8

If:

1. Testator intended to revoke the will; AND
2. The will is burned, torn, destroyed, or cancelled by the testator.

*Cancellation by physical contact with the words of the will is required under common law, but not under the UPC.

Priority: HIGH

Question 9

Revocation by Subsequent Will or Codicil

Answer 9

By executing a subsequent valid will or codicil. Execution of a new will revokes a previous will only to the extent that the previous will conflicts with the new will (unless the new will expressly revokes the previous will in its entirety).

Priority: HIGH

Question 10

What is the Dependent Relative Revocation Doctrine, and when does it apply?

Answer 10

It cancels a previous revocation that was made under a mistaken belief of law or fact by the testator.

The doctrine applies when the testator would not have revoked his original will or bequest but for the mistaken belief that another will would be valid.

Priority: HIGH

Question 11

Under the common law, an earlier Will was automatically revived if a subsequent Will was revoked.

How does this differ from the modern view?

Answer 11

Under the modern view, a revival of a revoked will happens ONLY under two circumstances:

• A will revoked by a physical act will be revived if a testator shows intent for its revival; OR
• A will revoked by subsequent instrument can be revived if the testator republishes the will by a subsequent will or codicil that complies with will execution formalities.

Priority: Medium

Question 12

When are Contractual Wills enforceable?

Answer 12

The wills MUST expressly state that the parties intend their wills to be a binding contract between them.

There must be a specific reference to the contract upon which the joint wills are based, and there must be specific, express intent that the parties desire the contract.

Priority: Medium

Question 13

What does Generically Described Property gifted in a will apply to?

Answer 13

It applies to property owned at the time of the decedent’s death matching the description in a will.

*The gift applies to whatever item is owned at the time of death, regardless of the specific item that was owned at the time of the execution of the will.

Priority: Low

Question 14

Under the UPC and Modern View, when are gifts to heirs during a testator’s lifetime deemed Advancements?

Answer 14

When:

• The will provides for deduction of the gift; OR
• It was indicated in writing that the property was in satisfaction of a devise or that’s its value will be deducted from the value of the devise.

Priority: Medium

Question 15

What happens if there is a Simultaneous Death under the Revised Uniform Simultaneous Death Act?

Answer 15

If there is no proof by clear and convincing evidence that one person survived the other by 120 hours (5 days), then the property is distributed as if that person predeceased the other person.

Priority: Medium

Question 16

Under the Common Law, any residuary shares that were invalid passed to the Testator’s heirs via intestacy.

How does the Modern View differ?

Answer 16

Under the Modern View, if the residuary is devised to two or more persons, any residuary beneficiary’s share that fails will pass to the other residuary beneficiaries.

Priority: Medium

Question 17

Generally, a condition in a Will or Trust that prohibits marriage is void. When may a restraint on marriage be upheld?

Answer 17

• If it is a restraint on remarriage; OR
• The language of the bequest/gift indicates that it’s intended purpose is to take care of a person’s daily needs until they are able to obtain such support through marriage.

Priority: Medium

Question 18

What is an Anti-Lapse Statute?

Answer 18

When a beneficiary under a will predeceases the testator, the gift will vest in the issue of that predeceased beneficiary if:

1. The predeceased beneficiary is a specified blood relative of the testator; AND
2. The beneficiary leaves issue who survive the testator.

Priority: HIGH

Question 19

When is a specific gift fail (adeem) by extinction?

Answer 19

Common Law: If it cannot be identified at the time of the testator’s death or if the testator does not own it at the time of his death. (This can occur when the testator makes a specific gift, but the property is later destroyed or sold before his death.)

Modern View: A specific gift will adeem ONLY IF the testator intended the gift to fail.

Priority: HIGH

Question 20

What is a beneficiary entitled to if the testator DID NOT intend for a specific gift to fail (adeem)?

Answer 20

• Any real or personal property that the testator acquired as a replacement for the specific gift; OR
• A monetary devise equal to the value of the specific gift.

Priority: HIGH

Question 21

Is a person gifted securities (shares of stock) in a Will entitled to stock splits and/or dividends?

Answer 21

YES, the beneficiary is entitled to additional shares owned by the testator that were acquired as the result of stock splits or stock dividends.

Priority: Medium

Question 22

What is Abatement?

What is the Abatement order?

Answer 22

Abatement is not giving effect to bequests in the will so that creditors’ claims against the estate can be satisfied.

A testator’s property abates as follows:

1. Property passing by intestacy;
2. Residuary gifts;
3. General gifts;
4. Specific gifts.

*Each category must be fully abated before moving onto the next category.

Priority: HIGH

Question 23

What happens to a beneficiary’s gift if they kill the decedent?

Answer 23

f the beneficiary feloniously and intentionally kills the decedent, they forfeit all benefits and entitlements to the decedent’s estate. If the decedent dies intestate, the estate passes as if the killer disclaimed their intestate share.

*Modern precedent holds that a state’s slayer statute DOES NOT apply to a person acting under a Durable Health Care Directive when withholding treatment to a decedent.

Priority: HIGH

Question 24

What are the requirements for a valid Disclaimer?

Answer 24

It must:

1. Be declared in writing;
2. Describe the interest or power disclaimed;
3. Be signed by the person making the disclaimer; AND
4. Be delivered or filed.

Priority: HIGH

Question 25

What happens if a gift/interest is Disclaimed?

Answer 25

It either:

• Passes according to any applicable terms of the will or trust; OR
• Passes as if the person predeceased the testator (the gift will lapse unless an anti-lapse statute is applicable).

Priority: HIGH

Question 26

What effect does a final Divorce Decree have on a Will?

Answer 26

It REVOKES any gift or appointment of property made to the former spouse.

(Some states revoke gifts to a spouse when divorce proceedings are pending)

*Under Common Law, bequests/appointments in favor of the former spouse’s relatives remain intact. Under the UPC, they are revoked.

Priority: HIGH

Question 27

Specific Gift

vs.

General Gift

vs.

Demonstrative Gift

Answer 27

Specific Gift: One that is specifically identified (i.e. real or personal property).

General Gift: Nonspecific, and can be satisfied from any funds remaining in the testator’s estate.

Demonstrative Gift: A hybrid, and occurs when the testator makes a general gift, but also identifies a specific source that the gift should come from.

Priority: Low

Question 28

A Class Gift is a gift to a group of persons described collectively. When do Class Gifts close?

Answer 28

Class gifts generally close at the death of the testator/settlor.

Under the Rule of Convenience, the class is closed when any member of the class is entitled to possession of the gift.

Priority: HIGH

Question 29

Class Gifts to Predeceased Members

Class Specifically Named

vs.

Class Members Named as a Group

Answer 29

Whether the gift to a predeceased member of the class will go into the residuary estate or be divided amongst the other class members depends on:

Specifically Named: The gift will lapse and fall into the residuary estate UNLESS an anti-lapse statute applies.

Named as a Group: The predeceased member’s share will be divided amongst the other members, UNLESS there is a provision to the contrary or an anti-lapse statute applies.

Priority: HIGH

Question 30

At Common Law, only biological children born into wedlock were entitled to inherit.

What is the Modern View on this?

Answer 30

Under the Modern View, gifts to children include any child that is included in the legal definition of “children”, including biological children, half-blood children, and adopted children.

*BUT, non-marital children inheriting from a father must first establish paternity.

Priority: HIGH

Question 31

How may a child be Informally Adopted?

Answer 31

When a person takes in a child and assumes parental responsibilities, equity holds the person as having formally adopted the child.

In some states, such a child is entitled to an intestate share of the descendant’s estate.

Priority: Medium

Question 32

What is a Spouse’s Elective Share?

Answer 32

It gives a surviving spouse the right to take a statutory amount of the deceased spouse’s estate.

The amount of the elective share varies by state, but it is typically one-third of the net probate estate (which is the gross-probate estate less creditor claims).

Priority: HIGH

Question 33

When does a child who was omitted from a Will have rights to his parent’s estate?

Answer 33

When the child is a Pretermitted Child (a child born after the will was made).

BUT, a child that is intentionally omitted from a will is NOT entitled to a share of the parent’s estate.

Priority: HIGH

Question 34

What are the elements of Testamentary Capacity?

Answer 34

The Testator must know and understand:

1. The nature and extent of his property;
2. The natural objects of his bounty (heirs);
3. The disposition that he is making of that property; AND
4. Have the ability to connect above elements into a coherent plan.

*Mental capacity is presumed, unless proven otherwise.

*Appointment of a conservator/guardian alone DOES NOT automatically establish a lack of capacity.

Priority: HIGH

Question 35

What are the elements of a prima facie case of Undue Influence?

Answer 35

If:

1. Testator had a weakness that made him susceptible to influence;
2. Wrongdoer had access to the testator and an opportunity to exert influence;
3. Wrongdoer actively participated in drafting the will; AND
4. There is an unnatural (unexpected) result.

Priority: HIGH

Question 36

What are the elements of a Will contest for Fraud?

Answer 36

If:

1. An individual knowingly makes a material misrepresentation of fact;
2. With the intent to induce reliance by the testator; AND
3. Misrepresentation actually induces reliance to the testator’s detriment.

*Fraud may occur in the inducement or execution of a Will.

Priority: Low

Question 37

When does a person have Standing to challenge a will?

Answer 37

If the person:

• Is a beneficiary of the will;
• Should be a beneficiary of the will; OR
• Would be financially benefited if the decedent died intestate (without a will).

Priority: Medium

Question 38

When does a No-Contest Clause NOT apply?

Answer 38

When:

• The contestant is alleging fraud or that the will was revoked by another will AND there is a good basis for the claim;
• The contest is on behalf of a minor or incompetent;
• The contestant is alleging that the court does not have jurisdiction; OR
• The contestant is merely asking the court to interpret/construe the will’s terms.

Priority: Low

Question 39

Joint Tenants of a Bank Account have what rights?

Answer 39

The right of survivorship, and will be entitled to the remaining funds upon the death of the other joint tenant.

Exception: If it can be shown that the account was a Convenience Account (it was setup for the convenience of the parties).

Priority: Medium

Question 40

How can a Totten Trust be revoked?

Answer 40

During the creator’s lifetime, he must:

• Withdraw all funds; OR
• Deliver a signed, written, and acknowledged revocation to the bank which names the financial institution and the new beneficiary.

It can be revoked/terminated/modified in a will ONLY IF: (1) with an express direction; (2) that specifically names the beneficiary and financial institution.

Priority: Low

Question 41

What is an Inter Vivos Gift, and when does it occur?

Answer 41

A gift made during the donor’s lifetime.

This gift occurs when:

1. A donor with intent to make a gift;
2. Delivers the gift; AND
3. The donee accepts the gift.

*Delivery of a gift may be constructive when the donor transfers a means of controlling or taking ownership of the property rather than the property itself (i.e. keys).

Priority: Low

Question 42

What is the responsibility of a Personal Representative (i.e. an Executor)?

Answer 42

They handle all the matters associated with probate (including filing paperwork, gathering property, notifying beneficiaries, etc.).

If a decedent DOES NOT name a personal representative in his will, the court will appoint one.

Priority: Low

Question 43

Advanced Directive (Living Will)

vs.

Durable Health-Care Power of Attorney

Answer 43

Advanced Directive: Specifies the patient’s preferences for treatment or non-treatment should they become incapacitated.

Durable Health-Care Power of Attorney: Gives a designated agent the power to make health-care decisions in the event of the principal’s incapacity.

*Both need to be in a signed writing that is witnessed or notarized.

Priority: Low

Question 44

What is the liability of an agent under a Health-Care Power of Attorney?

Answer 44

A Health-Care Power of Attorney INSULATES the individual acting as agent from liability for health-care decisions made in good faith.

Priority: Medium

Question 45

How may an adult designate an individual to act as surrogate under Family Consent Laws?

Answer 45

By personally informing the supervising health care provider.

In the absence of a designation, any member of the following classes of the patient’s family who are readily available may act as a surrogate (in order of priority): spouse, adult child, parent, adult sibling.

Priority: Medium