Wills and Estates Flashcards
Intestacy rule for determining surviving spouse’s share: SS and has shared kids
SS take 100%
Intestacy rule for determining surviving spouse’s share: SS and surviving parent
SS take 300k and 75%
Intestacy rule for determining surviving spouse’s share: SS and has shared kids and own kids
SS take 225k and 50%
Intestacy rule for determining surviving spouse’s share: SS, and nonspousal kids
SS take 150k and 50%
Surviving spouse definition
(a) must be legally married and| (b) survive T to inherit.
Surviving spouse: marriage requirement
legal marriage or good faith belief in invalid marriage. © cohabitants
Surviving spouse: “survival” requirement
C/L-survive for any length of time. USDA/UPC—must survive T by 120 hours, prove clear and convincing evidence. If insufficient, skip.
Issue definition
Issue: there must be a parent-child relationship
Inheritance right of an adopted child–right to inherit from genetic parents
No inheritance right from genetic parent © If adopted by stepparent, retains inheritance right from genetic parent.
Inheritance right of a nonmarital childCommon Law vs. UPC
COMMON LAW:
can’t inherit from father unless (1) father subsequent marriage, (2) father held child out as his own, (3) paternity proven after death, or (4) paternity adjudicated during father’s life.
UPC:
requires proof of paternity. Presumption if held child out as own
Inheritance right of a posthumous child:
If born within 280 days of death, rebuttable presumption of parentage
Per stirpes:
First divide by total # of D’s children (1) living or (2) left issue. Second, divide by representation (surviving issue stand in place of deceased person).
Per capita with representation
First go to a generation where a member survives D, divide by the # of people (1) living or (2) left issue. Second divide by representation (surviving issue stand in place of deceased person.
Per capital at each generation (UPC):
First go to a generation where a member survives D, divide by # of people (1) living or (2) left issue. Second, pool the shares for dead members and divide equally among the issues left.
Valid will is executed when
∑ (a) writing signed by testator (b) 2+ witnesses (c) present testamentary intent
Testamentary intent: (2 requirements)
The testator:
(1) understood he was executing a will and
(2) intended it to have testamentary effect.
Testator capacity:
T must be 18+ and have a sound mind (ability to know Who What Why How)
Location of T’s signature must be:
C/L—At the end
UPC—anywhere, but portion thereafter invalid
W’s presence required when T is signing
C/L—T must sign in 2 Ws’ joint presence. UPC—T can sign in one W’s presence (joint presence not required) or T can acknowledge his signature to W.
T’s presence required when W is signing
C/L—A W must sign in T’s presence (2Ws need not sign at the same time). UPC—W can sign within reasonable time after witnessing T sign or acknowledge will.
The meaning of “presence” as a requirement for a valid will:
“line of sight” (traditional)—each must observe or have the opportunity to observe each other signing; “conscious presence” (modern)—each must be aware that the other is signing.
Witness interested party doctrine:
C/L—if direct financial interest, W not competent, will is invalid unless 2+ disinterested Ws; Purge theory—if direct financial interest, will is valid, but purge any gain in excess of what W would take under intestate. UPC—abolished.
Compliance with will formalities:
C/L—strict compliance; UPC—will is valid if T has intent to make it a will and substantial compliance with formalities.
Handwritten will requirement:
(a) writing, directly signed by T, (b) witness not required, (c) testamentary intent
“Writing” requirement for a handwritten will
C/L—all must be handwritten; UPC: Preprinted form OK as long as material provisions are handwritten (who beneficiaries are, and what they get).
Codicil:
a change or addition to a will; does not revoke underlying will.
Requirement for a valid codicil
Same formalities as a will: signed writing, witness (or not req if holographic), intent