Wills and Estates

Question 1

Intestacy Succession

Answer 1

decedent dies without a will or without a valid will.

• if spouse but no parents/kids: spouse takes all
• if spouse and parents: spouse gets first 30k and half the rest.
• if spoise and kids: if all kids by that spouse: first 30k and half of the rest;
  
  • if not,spouse gets hald
• if no spouse or share not taken by spouse
  
  • all to issue
  • if no issue, all to parents
  • if not issue or parents, all to siblings and their issue.

Question 2

Will execution

Answer 2

• most states: in writing, signed by testator and witnessed by 2.
• upc: writing, signed by testator, AND signed by 2 wts or notaried “when wtss sign w/i testator presence)

Question 3

Integration

Answer 3

A doc will be intergrated into a will if the testator:

• intended it to be apart of the ill and
• the document was physicall present at the time of will’s execution.

Question 4

Codicil

Answer 4

modifies earlier will.

to be valid must satisfy the same will requirements.

if a codicil republishes a will, the will is deemed executed on the same day as the codicil.

Question 5

holographic will

Answer 5

a handwritten will that is not witnessed.

states that recognize require writing it to be signed at the end by testator; a valid holographic codicil revoked an earlier will.

Question 6

Incorporation (Extrinsic Docs) by Reference

Answer 6

• writing must exist at time of execution
• will must manifest intent to incorporate it
• will must sufficiently describe the writing.

under upc will be incorporated if signed and described with reasonable certainty.

Question 7

Revocation of a Will

Answer 7

will may be revoked or modified any time prior to death.

• subsequent instrument
  
  • making a new will or codicil. oral revocation not valid
• physical destruction
  
  • intent to revoked + physical act (burn, destroy, cancel)
    
    • words of cancellateing valid if written over in will in cL, in upc, words are valid if written anywhere on.
• divorce
  
  • revoked all provision in favor of former spouse
• alteration
  
  • cannot increase but may decrease
• holographic will.

Question 8

Revival of a will

Answer 8

• CL: automatically revived if a subsequent will was revoked.
• modern: revival permitted when
  
  • will is revoked by physical act + testator intended to revive or
  • will is revoked by subsequent instrument and that will is alter republished bya subsequent will or codicil.
• upc: auto revival but only if will was partially revoked by a subsequent instrument

Question 9

Advancement

Answer 9

• CL: gifts during testator’s lifetime are advancements to the heir and would be deducted from the heir’s share of the estate.
• upc: not deemed an advancement unless:
  
  • the will provides for a deduction OR
  • a writing indicated that the property was in satisfaction of a devisee or that the value will be deducted from the value of the devisee.

Question 10

Lapse & Anti Lapse

Answer 10

• CL: all gifts in a will conditioned on the beneficiary surviving the testator .
• anti lapse statute: a lapsed gift will vest in the issue of a predeceased beneficiary if:
  
  • that beneficiary is a specified descendant of the testator AND
  • beneficiary leaves issue who survive the testator
• UPC: anti lapse rule applies to gifts to issue.

Question 11

Ademption

Answer 11

when a gift fails by extinction

CL: special gift adeemed. regardless of intent

most states: gift adeemed only if the testator intended the gift to fail. if no intent

• beneficiary entitled to any property acquired as a replacement or
• a onetary devise equal to the value of the gift.

Question 12

Abatement

Answer 12

reducing gift if estate not big enough to pay all obligations/bequest

order

1. property passing intestacy
2. residuary gifts
3. general gifts
4. special gifts

Question 13

Slayers Statute

Answer 13

receive nothing if feloniously and intentionally kills the decedent

Question 14

Disclaimer

Answer 14

renouncing a legal right to inheritance.

effective disclaimer:

• be declared in writing
• decribe the interest or power disclaimed,
• be signed by the person making disclaimer; AND
• be delivered or filed.

Question 15

Timing for Disclaimer

What happens if disclaimed?

Answer 15

CL: must be made within a reasonable time.

some states: must be made within 9 months

UPC_ may be made any time so long as disclaimer not barred.

if disclaimed, the property

• passeds according to the applicable terms of a will/trust OR
• as if the person predeceased the testator ( gift lapse)

Question 16

Testamentary provision revoked upon Divorce

Answer 16

A final divorce decree revoked bequests or appointments of property to former spouse.

generally, anything to former spouse’s relatives will last but under UPC it doesnt.

Question 17

Class Gift

Answer 17

• class closes at testators death, anyone alive at the time will benefit.
• rule of conveniencE: class closed when any member of class is entitled to possession of the gift.
• an adopted child inherits the same as bio child
• predeceased class members:
  
  • if individually named, gift will lapse and anti lapse statues apply
  • if not name: included in gift and divided among remaining parties.

Question 18

Pretermitted Children

Answer 18

a child botn or adopted AFTER the execution of a will is entitled to an intestate share of the estate unless intentionally ommitted from the will.

child not entitled to a share if provided for outside of the will. or left all or left all or substantiall all to childs parent.

child living at time of execution is not entitled to a share unless the child was omitted unless did not know of child’s existence or believed child to be dead

Question 19

Will Contest: testamentary Capacity

Answer 19

Testator must be capable of knowing and understanding the:

• nature and extent of his property
• nutural objects of his bounty
• disposition he is making AND
• have the ability to connect above elements in coherent plan.

Question 20

Will conteset: undue influence

Answer 20

when a person exerts influence that overcomes a testator’s free will and judgment ; makes will invalid.

undue influence established:

• testator had a weakness
• wrongdoer had access and opportunity
• wrongdoer actively participated ; AND
• unexpected result occurred.

CL Presumption: Undue influence established if

• confidential relationship
• activiely participated,
• an unnatural result occurred.