Wills and Estates Flashcards
Intestate Succession
Occurs when a decedent dies intestate, or without a will that would properly divest their personal property upon their death
Order of distribution of intestate property
- Surviving Spouse
- Issue (descendant)
- Surviving Parents
- Siblings and their issue
- Per capita or per stirpes
Per capita distribution
Per capita at each generation
- find first generation with living people then give them each a share (giving a share to the surviving issue of the dead)
- then take the shares of those who are dead but left no surviving issue and divide that among the next generation, etc.
Per stirpes (per capita with representation)
- Find first generation with living people then divide it among everyone, including the one share for a dead person among their living children
Validity of a Will
General Requirements (Attested Will)
- Writing
- Testator is at least 18 years old
- Testamentary intent
- Testamentary capacity
- Signed by testator
- witnessed by at least two witnesses
Holographic wills
- signed by testator; and
- material portions are in the testator’s handwriting
Clear and convincing evidence may be allowed to prove validity of a will
Revocation of Will
Will may be revoked by:
- physical act, like tearing, burning; and
- intent to revoke the will
May also be revoked by a subsequent will that is inconsistent with the prior will
Dependent Relative Revocation Doctrine – a prior will is not revoked if the subsequent will is invalid. It may be invalid due to mistake of law or fact, but it may not constitute revocation if there is evidence that the testator would not have revoked the will had they had accurate information and weren’t mistaken.
Divorce may revoke gifts to the spouse unless the testator specifies that they want the spouse to still take.
Slayer Statutes
Statutes that provide that a beneficiary of a will may not take from that will if they feloniously and intentionally kills the testator. The gifts are divested as if the person predeceased the testator.
Doctrine of Integration
A will may be integrate an outside document into the will if 1) there is intent of the testator to integrate it; and 2) the document is physically present at the time the will is executed
Interested witnesses
common law requires that for an interested witness to be able to take from the will, there must be at least two other disinterested witnesses present at the signing of the will – or the will is invalid
modern law says that the will is still valid but the gift will be purged unless they would’ve received more as an heir (intestate share) or there were two or more disinterested witnesses present
Codicil
a codicil is a document created after a will that either amends, modifies, or revokes the will
must have the same formalities of the will
Incorporation by Reference
A will can incorporate a gift into its provisions by referencing a separate document as long as 1) the document is in existence at the time the will is executed; 2) the will describes the document; and 3) there’s intent to incorporate that document into the will
Revival of a will
A will may be revived by a subsequent will or with intent by the testator
Advancements of Gifts
An inter vivos gift can be considered an advancement towards an heir’s intestate share
Residuary Estates
Common law – invalid residuary shares passed intestate
Modern – invalid residuary shares pass to other residuary holder
Lapsed gifts and the anti-lapse statute
Gifts lapse when the intended beneficiary predeceases the decedent. Typically, lapsed gifts would pass to the residuary estate unless there is a testamentary provision that states how a gift should be distributed in case of predecease or an anti-lapse statute applies, which would pass the gift to the testator’s issue or close beneficiary
