Wills and Estates Flashcards
Totten Trust
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
When does intestacy occurs
- When person dies without a will (total intestacy)
- will did not dispose of all property (partial intestacy)
-e.g. did not name all property, the heirs died before the person giving property
Heirs v. Heirs apparent
heirs: persons who take by intestacy
heirs apparent: those persons when you aren’t dead yet
what is the applicable law for intestacy for marital rights
Law of domicile when property acquired
what is the applicable law for intestacy for succession rights?
- Personal property: law of domicile at death
- Real property: Law of location of land (situs)
Law of Situs
Location of land
Can you rebut intestacy?
No, evidence can’t be brought in–but it would depend on the state
Is a spouse an heir?
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
How to decide how shares are split up to descendants if someone dies intestate?
If all children survive, they receive equal shares
children first then grandchildren.
Definitions of descendants
descending lineal line can be children and grandchildren for example
Ways to compute shares if some children are dead and there are grandchildren
- Per Stirpes Distribution (CL/Minority):
- Per Capita w/ Representation Distribution (Modern Per Stirpes)
- Per Capita at each generational level
Per Stirpes Distribution (CL/Minority
-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
Per Capita w/ Representation Distribution (Modern Per Stirpes)
-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
Difference between per stirpes and per capita divide
per capita: divide with first generation of surviving members not at the first generation of children
Per Capita at each generational level
-Divide estate into shares at first generation with survivors
-Pool shares of lower generation so each person RECEIVES EQUAL SHARE
Where does property pass if there is no descendants
- Ancestors: ascending line such as parents and grandparents
THEN
- Collaterals: siblings, aunts, and uncles
Estate passes in following order:
- Spouse and/or descendants
- Parents
-if only one surviving parent, different with each state - Descendants of parents (siblings or their descendants)
- maternal/paternal grandparents or descendants
- nearest maternal/paternal kin
- the state
What will an adopted child inherit?
- Adoptive parents
-Adopted child inherits from adoptive parents
-Will inherit from adopted child - Biological
-Inherit from biological parents varies by state
-parents don’t inherit from child - Adoption by estoppel
-may permit child to inherit. Generally stepchildren have no inheritance rights unless estoppel
Nonmarital children, how do they inherit?
- Always inherit from mother
- Inherit from father if state requirements met (such as determination of paternity, or acknowledgement of child)
Half blood siblings: how do they ibherit?
Siblings with one common parent
-Most states don’t distinguish between half bloods and whole bloods
Posthumous children, how do they inherit?
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
Advancement
lifetime gift (irrevocable) intended by donor as prepayment of intestate share
-some states require it be in writing, some states allow extrinsic evidence
How long must an heir outlive the intestate to claim a share
- Some states: can survive for any amount of time
- UPC: heir must survive by 120 hours
- No survival-heir treated as predeceased
Requirements of disclaimer (wills)
Saying you don’t want the property
- Written
- Signed by the disclaiming person
- Notary
- timely filed (state dependent)
-modern view: can disclaim at any time as long as no acceptance or have used any benefits from the gift
Effect of disclaimer (wills)
treat person who disclaimed as dying first
What is an heir or beneficiary kills decedent?
State dependent
- Slayer statute: precludes killer from inheriting or being beneficiary OR
- Constructive trust
Savings statute
Most states and the UPC. Will is valid if the will has been executed in accordance with the law of:
- That jurisdiction
- state where will was executed
- testator’s domicile at time of the will’s executed or at death
Requirements of will validity
- legal capacity (at least 18 unless military or married (state dependent))
- testamentary capacity (sound mind)
- testamentary intent (person’s intent for a will)
- formalities
Testamentary capacity
- understand what testator is doing
- understand effect of what you are doing
- understand nature and extent of property
- recognize natural objects of testator’s bounty
- Ability to do all above at the same time
Formalities of attested wills
state dependent but likely:
- in writing
- signed by testator or proxy
- two witnesses
-usually in testator’s conscious presence
-some states allow notarization to substitute
Attestation clause
recited elements of execution and is prima facie evidence of proper execution
not necessary though
Self-proving affidavit
-testator and witnesses swear in affidavit to things they would swear to during probate proceeding
-can substitute for in court testimony of witnesses
Holographic wills
state dependent
- written in testator’s handwriting
- no need for witnesses in some states
- how much must be in testator’s handwriting varies by state
-majority: everything
-minority: only material provisions
Oral Wills
most states and upc DO NOT recognize
If allowed:
1. soldiers/sailors
2. during last sickness or pending immediate death
Devise
Gift of real property
Bequest
gift of personal property
Legacy
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
Specific Devise, Legacy or Bequest
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)
Residual gift
gift of remainder of estate after all debts and other gifts are paid
Ademption and common exceptions
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
Ademption by satisfaction
beneficiary receives gifted property before testator’s death
- most states require a writing
Difference between advancement and ademption by satisfaction
Advancement governs distributions in intestacy and ademption by satisfaction governs transfers made under wills.
Exoneration of liens (wills)
state dependent
- Some states: liens exonerated (paid off with estate funds)
- UPC and other states: no exoneration unless will provides for it
Abatement
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
Lapse
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)
Anti lapse statutes
-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
Conflicting provisions in a will
use one closer to testator’s death
Lapse in residuary gift
CL: deceased beneficiary share passes by intestacy
Modern: surviving beneficiaries divide the deceased beneficiary’s share
Ambiguities
- 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 - Latent Ambiguity: language is clear on it’s face but cannot be carried out without further clarification
-Court will consider extrinsic evidence - 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
Incorporation by reference definition and requirements
- 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.
- Requirements:
-Intent to incorporate writing
-writing must be in existence when will is executed
-writing must be clearly identified in will - some states allow a list of tangible personal property even if it was not in existence at time of will execution
Doctrine of facts of independent significance
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))
Conditional will
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
Codicil and republication by codicil
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
Pour over provision
provision in will that leaves property to inter vivos trust
-trust can be created before or after testator executes will
Integration (wills)
must be able to show that all pages present at time of will execution are the same as pages present at time of probate
Combination wills
- Joint Will
-single testamentary document containing the wills of 2 or more persons - Reciprocal/Mutual Wills
-separate wills w/ parallel dispositive provisions (1 spouse to spouse to kids) - 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)
Contractual Wills Revocation
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
Power of appointment
owner of property (donor) transfers to the donee the power to appoint the new owner of the property
- General Power: allows the holder to distribute assets to anyone they want, including themselves, their creditors or their estate.
- 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
Trustee
Holds legal title to property
Owes fiduciary duties to beneficiaries
Settlor
Creates the trust (trustor, grantor, donor)
Elements of trust validity
- intent
- identifiable corpus
- ascertainable beneficiaries
- proper purpose
- formalities and mechanics
Express Intent Elements
- Settlor with capacity to convey
- Present intent to create a trust relationship (not future intent)
- Competent trustee with duties
- Definite beneficiary abd
- the same person is not the sole trustee and sole beneficiary
Precatory Expressions
Expression of a hope, wish, or mere suggestion that the property be used in a certain way does not create a trust.
