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Isabella Bar Study > Wills and Estates > Flashcards

Wills and Estates Flashcards

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1
Q

Totten Trust

A

deposit of money in a bank account in trust for another person. Depositor retains complete control over the account during their lifetime and transfer is complete only upon their death. They are accounts not true trusts

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2
Q

When does intestacy occurs

A
  1. When person dies without a will (total intestacy)
  2. will did not dispose of all property (partial intestacy)
    -e.g. did not name all property, the heirs died before the person giving property
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3
Q

Heirs v. Heirs apparent

A

heirs: persons who take by intestacy
heirs apparent: those persons when you aren’t dead yet

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4
Q

what is the applicable law for intestacy for marital rights

A

Law of domicile when property acquired

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5
Q

what is the applicable law for intestacy for succession rights?

A
  1. Personal property: law of domicile at death
  2. Real property: Law of location of land (situs)
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6
Q

Law of Situs

A

Location of land

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7
Q

Can you rebut intestacy?

A

No, evidence can’t be brought in–but it would depend on the state

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8
Q

Is a spouse an heir?

A

in CL, no and the widow was only entitled to a dower which is a life estate in 1/3 of the real property that the husband owned during marriage.

Modern Law: spouse is always an heir. Share may vary depending on states,
-Percentage varies
-Share depends on number of children or length of marriage

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9
Q

How to decide how shares are split up to descendants if someone dies intestate?

A

If all children survive, they receive equal shares

children first then grandchildren.

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10
Q

Definitions of descendants

A

descending lineal line can be children and grandchildren for example

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11
Q

Ways to compute shares if some children are dead and there are grandchildren

A
  1. Per Stirpes Distribution (CL/Minority):
  2. Per Capita w/ Representation Distribution (Modern Per Stirpes)
  3. Per Capita at each generational level
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12
Q

Per Stirpes Distribution (CL/Minority

A

-Divide estate into shares at FIRST GENERATION below decedent
-Create one share for each surviving child and one share for each predeceased child who left living descendants

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13
Q

Per Capita w/ Representation Distribution (Modern Per Stirpes)

A

-Divide estate at FIRST GENERATION with SURVIVING MEMBERS
-Each living person at that level takes a share
-Share of deceased person at that level passes to issue

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14
Q

Difference between per stirpes and per capita divide

A

per capita: divide with first generation of surviving members not at the first generation of children

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15
Q

Per Capita at each generational level

A

-Divide estate into shares at first generation with survivors
-Pool shares of lower generation so each person RECEIVES EQUAL SHARE

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16
Q

Where does property pass if there is no descendants

A
  1. Ancestors: ascending line such as parents and grandparents

THEN

  1. Collaterals: siblings, aunts, and uncles
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17
Q

Estate passes in following order:

A
  1. Spouse and/or descendants
  2. Parents
    -if only one surviving parent, different with each state
  3. Descendants of parents (siblings or their descendants)
  4. maternal/paternal grandparents or descendants
  5. nearest maternal/paternal kin
  6. the state
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18
Q

What will an adopted child inherit?

A
  1. Adoptive parents
    -Adopted child inherits from adoptive parents
    -Will inherit from adopted child
  2. Biological
    -Inherit from biological parents varies by state
    -parents don’t inherit from child
  3. Adoption by estoppel
    -may permit child to inherit. Generally stepchildren have no inheritance rights unless estoppel
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19
Q

Nonmarital children, how do they inherit?

A
  1. Always inherit from mother
  2. Inherit from father if state requirements met (such as determination of paternity, or acknowledgement of child)
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20
Q

Half blood siblings: how do they ibherit?

A

Siblings with one common parent

-Most states don’t distinguish between half bloods and whole bloods

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21
Q

Posthumous children, how do they inherit?

A

child born after the death of their parent.

-If in gestation at time of death, most states will allow that person to be a heir
-Some states allow child not in gestation but born within a statutorily stated period of time

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22
Q

Advancement

A

lifetime gift (irrevocable) intended by donor as prepayment of intestate share

-some states require it be in writing, some states allow extrinsic evidence

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23
Q

How long must an heir outlive the intestate to claim a share

A
  1. Some states: can survive for any amount of time
  2. UPC: heir must survive by 120 hours
  3. No survival-heir treated as predeceased
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24
Q

Requirements of disclaimer (wills)

A

Saying you don’t want the property

  1. Written
  2. Signed by the disclaiming person
  3. Notary
  4. timely filed (state dependent)
    -modern view: can disclaim at any time as long as no acceptance or have used any benefits from the gift
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25
Q

Effect of disclaimer (wills)

A

treat person who disclaimed as dying first

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26
Q

What is an heir or beneficiary kills decedent?

A

State dependent

  1. Slayer statute: precludes killer from inheriting or being beneficiary OR
  2. Constructive trust
27
Q

Savings statute

A

Most states and the UPC. Will is valid if the will has been executed in accordance with the law of:

  1. That jurisdiction
  2. state where will was executed
  3. testator’s domicile at time of the will’s executed or at death
28
Q

Requirements of will validity

A
  1. legal capacity (at least 18 unless military or married (state dependent))
  2. testamentary capacity (sound mind)
  3. testamentary intent (person’s intent for a will)
  4. formalities
29
Q

Testamentary capacity

A
  1. understand what testator is doing
  2. understand effect of what you are doing
  3. understand nature and extent of property
  4. recognize natural objects of testator’s bounty
  5. Ability to do all above at the same time
30
Q

Formalities of attested wills

A

state dependent but likely:

  1. in writing
  2. signed by testator or proxy
  3. two witnesses
    -usually in testator’s conscious presence
    -some states allow notarization to substitute
31
Q

Attestation clause

A

recited elements of execution and is prima facie evidence of proper execution

not necessary though

32
Q

Self-proving affidavit

A

-testator and witnesses swear in affidavit to things they would swear to during probate proceeding
-can substitute for in court testimony of witnesses

33
Q

Holographic wills

A

state dependent

  1. written in testator’s handwriting
  2. no need for witnesses in some states
  3. how much must be in testator’s handwriting varies by state
    -majority: everything
    -minority: only material provisions
34
Q

Oral Wills

A

most states and upc DO NOT recognize

If allowed:
1. soldiers/sailors
2. during last sickness or pending immediate death

35
Q

Devise

A

Gift of real property

36
Q

Bequest

A

gift of personal property

37
Q

Legacy

A

Gift of personal property not sufficiently described to be specific (usually money)

General legacy: a particular sum of money
Demonstrative legacy: gift of specific sum of money payable out of designated fund

38
Q

Specific Devise, Legacy or Bequest

A

Devise or Legacy: gift of a particular item of property distinct from all other objects in the testator’s estate
(I leave my Sony computer model vgn382 with serial number 2892891 to walter)

Bequest: of a general nature: not distinguishable from the rest of the testator’s estate until testator dies
(I leave my computer to walter)

39
Q

Residual gift

A

gift of remainder of estate after all debts and other gifts are paid

40
Q

Ademption and common exceptions

A

gift fails because property is no longer in testator’s estate

Exceptions (state dependent)
1. Replacement property
2. Balance of purchase price
3. Condemnation or insurance proceeds
4. Proceeds from sale by guardian

41
Q

Ademption by satisfaction

A

beneficiary receives gifted property before testator’s death

  1. most states require a writing
42
Q

Difference between advancement and ademption by satisfaction

A

Advancement governs distributions in intestacy and ademption by satisfaction governs transfers made under wills.

43
Q

Exoneration of liens (wills)

A

state dependent

  1. Some states: liens exonerated (paid off with estate funds)
  2. UPC and other states: no exoneration unless will provides for it
44
Q

Abatement

A

process of reducing gifts when estate property is inadequate to satisfy gifts and debts

Abatement Order:
1. property passing by intestacy
2. residual gifts
3. general gifts
4. demonstrative gifts (general gift, but made payable out of a particular designated fund or source of property in the estate of the testator)
5. specific gifts

45
Q

Lapse

A

gift fails because beneficiary fails to survive testator or is legally treated as not surviving testator

How to distribute
1. will’s terms
2. anti-lapse statute
3. residual
4. intestacy (partial intestate)

45
Q

Anti lapse statutes

A

-prevent lapse by substituting descendants of predeceased beneficiary for predeceased beneficiary

-relationship needed between testator and predeceased beneficiary varies by state

-usually have to be relatives

45
Q

Conflicting provisions in a will

A

use one closer to testator’s death

46
Q

Lapse in residuary gift

A

CL: deceased beneficiary share passes by intestacy

Modern: surviving beneficiaries divide the deceased beneficiary’s share

46
Q

Ambiguities

A
  1. Patent Ambiguity: Appears when an ambiguity is obvious
    -Court will look at extrinsic evidence but it can’t be used to fill in blank spaces or supply omitted gifts
  2. Latent Ambiguity: language is clear on it’s face but cannot be carried out without further clarification
    -Court will consider extrinsic evidence
  3. No Apparent Ambiguity: when a will is clear on its face but someone thinks testator makes a mistake
    -Plain meaning rule (traditional): no extrinsic evidence
    -Modern rule (some jx): extrinsic evidence allowed to show intent
47
Q

Incorporation by reference definition and requirements

A
  1. Instead of writing something in the will, testator may incorporate an extraneous document into the will by reference & its treated as it was part of the will. Doesn’t matter if no witnesses, or written while under the influence.
  2. Requirements:
    -Intent to incorporate writing
    -writing must be in existence when will is executed
    -writing must be clearly identified in will
  3. some states allow a list of tangible personal property even if it was not in existence at time of will execution
48
Q

Doctrine of facts of independent significance

A

something that is outside of the will which has a purpose other than the disposition of property at death

(e.g. class gift designation (I leave all of my property to all of my children but doesn’t list all of the children and you have to go outside the will to see who the children are))

49
Q

Conditional will

A

will that is to operate if certain event occurs or does not occur.

-if possible, courts will generally construe will as general and not conditional

50
Q

Codicil and republication by codicil

A

Amendment to existing will

Republication:
-will and codicil treated as one document speaking from date of codicil

-Proof of codicil=proof of will

-Codicil can incorporate defective will be reference

51
Q

Pour over provision

A

provision in will that leaves property to inter vivos trust

-trust can be created before or after testator executes will

52
Q

Integration (wills)

A

must be able to show that all pages present at time of will execution are the same as pages present at time of probate

53
Q

Combination wills

A
  1. Joint Will
    -single testamentary document containing the wills of 2 or more persons
  2. Reciprocal/Mutual Wills
    -separate wills w/ parallel dispositive provisions (1 spouse to spouse to kids)
  3. Contractual Wills
    -will executed pursuant to a contract (x leaves estate to Y if y agrees to take care of x till they die)
    -extrinsic evidence (common law) v.
    writing required (modern law)
54
Q

Contractual Wills Revocation

A

Can be revoked by agreement of parties while both alive

-revoked by one person while both alive: other person can change the will

-revoked by one person after other dies: injured beneficiaries may sue to impose constructive trust on property they should have received

55
Q

Power of appointment

A

owner of property (donor) transfers to the donee the power to appoint the new owner of the property

  1. General Power: allows the holder to distribute assets to anyone they want, including themselves, their creditors or their estate.
  2. Special Power: allows the holder to appoint assets to a limited and specific group of people, such as their descendants or their spouse. Not to themselves
56
Q

Trustee

A

Holds legal title to property
Owes fiduciary duties to beneficiaries

57
Q

Settlor

A

Creates the trust (trustor, grantor, donor)

58
Q

Elements of trust validity

A
  1. intent
  2. identifiable corpus
  3. ascertainable beneficiaries
  4. proper purpose
  5. formalities and mechanics
59
Q

Express Intent Elements

A
  1. Settlor with capacity to convey
  2. Present intent to create a trust relationship (not future intent)
  3. Competent trustee with duties
  4. Definite beneficiary abd
  5. the same person is not the sole trustee and sole beneficiary
60
Q

Precatory Expressions

A

Expression of a hope, wish, or mere suggestion that the property be used in a certain way does not create a trust.

Isabella Bar Study (8 decks)

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