Wills and Estates

Question 1

What is a putative spouse and how is one treated for purposes of inheritance?

Answer 1

When a marriage is not valid but at least one spouse believes in good faith that it is, then the spouses are termed “putative” and qualify as spouses for inheritance purposes.

Question 2

What kind of will is valid even if witnesses do not sign it, as long as they sign affidavits before a court officer?

Answer 2

A “self-proved will”

Under the UPC, a will that is executed with attesting witnesses may be made “self-proved” by the acknowledgment of the testator and affidavits of the witnesses before a court officer in substantial accordance with a prescribed form.

Question 3

How does the UPC treat the inheritance rights of a person adopted by a stepparent?

Answer 3

The adoption does not curtail the inheritance rights of either natural parent, and adds in inheritance rights through the stepparent, resulting in the child standing to inherit through three different people: two natural parents and the stepparent/adopted parent.

Question 4

What is the general statutory order in which expenses and debts are to be paid from an estate?

Answer 4

1. Administrative expenses
2. Last medical expenses and funeral expenses
3. Family allowance
4. Tax claims
5. Secured claims
6. Judgments against the decedent
7. All other claims

Question 5

What kind of will need not be witnessed?

Answer 5

A holographic will.

A holographic will is one that is completely handwritten and signed by the testator.

Question 6

If a testator executes a will, then adopts a child, then dies without revising the will, what is the presumption regarding the omission of that adopted child?

What can overcome this presumption?

Answer 6

In such case, a presumption is created that the omission of the child was accidental.

This can be rebutted by evidence that (1) the omission was intentional, (2) the testator had other children when the will was executed and left substantially all of the estate to the other parent, or (3) the child was provided for outside of the will with the intent that it be in lieu of a provision in the will.

Question 7

How does a decedent’s estate pass according to the parentelic approach?

Answer 7

Under this approach, a decedent’s estate would first pass to the decedent’s parents and their issue; if there are none, then to the decedent’s grandparents and their issue, and so on.

Question 8

According to the Uniform Testamentary Additions to Trusts Act (UTATA), what happens when a will attempts to pour over estate assets into a trust not executed in accordance with the Statute of Wills?

Answer 8

A will may still pour over assets into such trust as long as the trust is identified in the will and its terms are set forth in a written instrument.

Note: if these requirements are met, the pour-over bequest is valid even if the trust is unfunded, revocable, and amendable.

Question 8

What kind of will is generally valid only for the disposition of personal property in contemplation of immediate death?

Answer 8

Nuncupative (oral) wills

These wills are invalid under the UPC and most states. Where valid, they require at least two witnesses, can devise only a limited amount of personal property, and may require that the testator die within a prescribed period after making the oral will.

Question 9

What is the Dependent Relative Revocation (DRR) Rule?

Answer 9

DRR allows a court to disregard a testator’s revocation that was based on a mistake of law or fact that would not have been made but for that mistake. The testator’s last effective will, prior to the set-aside revocation, will once again control his estate.

Question 10

How does a decedent’s intent weigh on how property passes via intestacy?

Answer 10

The decedent’s intent regarding the disposition of property that passes by intestacy is irrelevant.

Question 11

Under common law, what happened to a devise when the recipient beneficiary died before the testator?

Answer 11

The gift failed and went to the residue, unless the will provided for an alternate disposition.

Question 11

What is a supplement to a will that alters, amends, or modifies the will, rather than replacing it?

Answer 11

A codicil.

A codicil must be executed with the same formalities as a will, but need not be executed with the same formalities as the will that it alters, amends, or modifies. An attested will may be altered, amended, or modified by a holographic codicil and a holographic will may be altered, amended, or modified by an attested codicil. A valid codicil republishes the will as of the date of the codicil and may even validate an invalid will if the codicil refers to the will with sufficient certainty to identify or incorporate it, or if the codicil is on the same paper as the invalid will.

Question 12

What are the requirements for an international will?

Answer 12

1. In writing
2. Signed
3. Witnessed by two individuals
4. Witnessed by a third person who is authorized to act in connection with international wills and who must prepare a certificate to attach to the will.

Question 13

What are the three ways a will may be wholly or partially revoked?

Answer 13

1. Subsequent writings
2. Physical destruction of the will
3. Operation of law

Question 14

What is the order gifts are abated, unless otherwise specified in the will?

Answer 14

1. Intestate property
2. Residuary bequests
3. General bequests
4. Specific bequests

Question 15

What are the formal execution requirements for a valid will?

Answer 15

1. A writing
2. Signed
3. Present testamentary intent
4. Joint presence of two witnesses
5. Witnesses understand the significance of the testator’s act
6. Witnesses understand that the will has no legal effect until after the testator’s death

Question 16

What is the difference between a duplicate and copy in terms of lost wills?

Answer 16

Duplicate: one of two copies of the same will executed in the same manner, each complying with the same formalities. This may be admitted to probate.

Copy: like a photocopy, cannot itself be admitted to probate, although it may be used as proof of testamentary intent.

Question 17

How does the revocation of a will differ from the revocation of a codicil?

Answer 17

Revocation of a will revokes all codicils thereto, whereas revocation of a codicil does not revoke a will, but rather revives it.

Question 18

How are patent and latent ambiguities in a will resolved, and what happens if they cannot be resolved?

Answer 18

Patent and latent ambiguities may both be resolved by extrinsic evidence. If the ambiguity cannot be resolved, then the gift in question becomes part of the residue.

Question 19

When two individuals die at the same time and there is no evidence as to who actually died first, what act is applied, and what is the result?

Answer 19

The Uniform Simultaneous Death Act (USDA) provides that when there is insufficient evidence of the order of death of two individuals, the property of each passes as though the other individual predeceased him.

Note: this act only applies when there is no instrument to state otherwise.

Question 20

Would the following gift be classified as specific, general, demonstrative, or residuary:

“$50,000 to Wesley from my Checking Account, but if funds are not sufficient, then the rest paid out of general funds.”

Answer 20

Demonstrative.

A testator intended that a demonstrative legacy be paid from a particular source, but if that source is insufficient, then the testator directs that the legacy be satisfied out of the general assets of the estate.

Question 21

What are the requirements for a will incorporating by reference another writing not executed with testamentary formalities?

Answer 21

The other writing must:
1. Exist at the time the will was executed,
2. Be intended to be incorporated, and
3. Be described in the will with sufficient certainty so as to permit its identification.

Question 22

If a gift is adeemed, what is the beneficiary entitled to?

Answer 22

i. Whatever is left of the specifically devised property,
ii. The balance of the purchase price owing from the purchaser of the property,
iii. Any amount of condemnation award for the taking of the property, to the extent unpaid upon death, or
iv. Property acquired from the foreclosure of a security interest on a specifically devised note.

Question 23

What is quasi-community property?

Answer 23

Quasi-community property is separate property that would have been community property had the parties been domiciled in a community-property state when acquired. It is treated as community property for distribution purposes.

Question 23

What doctrine allows a will to provide for the designation of a beneficiary or the amount of a disposition by reference to some unattested act or event occurring before or after the execution of the will / testator’s death, if the act or event has some significance apart from the will?

Answer 23

The acts of independent significance doctrine.

While similar to republication by codicil and incorporation by reference, the acts of independent significance doctrine is the only one that applies to future acts or events.

Question 24

Under most anti-lapse statutes, what happens when a gift is made to a close relative of the testator, and that relative predeceases the testator but leaves behind issue?

Answer 24

The issue succeeds to the gift, unless the will expressly provides to the contrary.

Note: Most statutes require that the devisee who failed to survive was a grandparent, descendant of a grandparent, or a stepchild of the testator.

Question 25

When a gift is to an entire class and one member of the class predeceases the testator, what results when there is no anti-lapse statute applicable?

What happens when there is an anti-lapse statute applicable?

Answer 25

No anti-lapse statute applicable: only the surviving members take

Anti-lapse statute applicable: the issue of the predeceased member take the member’s share. The majority of states and the UPC apply the anti-lapse statute first, before the determination of the class gift.

Question 26

What are the three property management options for property transferred to minors pursuant to a will or intestacy?

Answer 26

Because minors lack the legal capacity to hold property, the law provides three property management options:

1. Guardianship
2. Custodianship (available via will only)
3. Trusteeship (available via will only)

Question 27

What is the majority rule regarding the specific devise of encumbered property?

Answer 27

In most states, the specific devisee of encumbered property takes subject to the mortgage, notwithstanding the fact that the will contained a clause directing the executor to pay the decedent’s debts.

Question 28

What is the elective share and where is it available?

Answer 28

The elective share is only available in common-law states, not community property states. The elective share allows a surviving spouse to choose to receive a fraction of the decedent’s estate instead of any gift contained in the will. The elective share applies to all property of the decedent, regardless of when it was acquired.

Question 29

What is the rule for ademption by satisfaction?

Answer 29

A general, specific, or demonstrative devise may be satisfied in whole or in part by an inter vivos transfer to the devisee after the execution of the will, if it was the testator’s intent to satisfy the devise by the transfer.

Question 30

What does a homestead exemption statute do?

Answer 30

Under such statute, a certain acreage or value of real property is exempt from creditors’ claims, is inalienable during the life of the owner without consent, and passes upon death by statute, not by will.

Note: the amount of the homestead exemption differs by state

Question 31

Under the modern trend, what is required for a gift to be considered an advancement?

Answer 31

Under the UPC, which is the modern trend, a gift is an advancement only if:

1. The decedent declared it so in a contemporaneous writing / the heir acknowledged it so in a writing, or
2. That writing otherwise indicates that the gift was to be taken into account in computing the division and distribution of the decedent’s intestate estate

Note: the UPC approach applies to all heirs, not just the decedent’s children

Question 32

What is the support called that a surviving spouse may receive during probate?

Answer 32

Family allowance. The amount of family allowance varies by jurisdiction. Some jurisdictions allow minor children to receive a family allowance as well. Depending on the jurisdiction, the family allowance is either a set amount or one based on the marital standard of living.

Question 33

What comprises the marital-property portion of a decedent’s augmented estate, and how much of that may a surviving spouse claim as the elective share?

Answer 33

The UPC subjects property acquired before and during marriage to the “marital property” portion of the augmented estate to which the surviving spouse is entitled.

Under the UPC, the surviving spouse may take an elective-share amount equal to 50% of the value of the marital-property portion of the augmented estate.

Question 34

How may a surviving spouse waive a forced or elective share?

Answer 34

The right of a surviving spouse to take her elective or forced share can be waived in writing if the writing is signed after fair disclosure of its contents.

Question 35

If a party decides to disclaim a testamentary gift, what happens to that property?

Answer 35

The disclaiming party is treated as if the party predeceased the decedent, and the property is distributed to the next eligible taker.

Question 36

What three things negate an omitted spouse’s entitlement to the intestate share of the decedent’s estate when the marriage began after the execution of the will?

Answer 36

A spouse omitted from a will is entitled to an intestate share unless:

1. A valid prenuptial agreement exists,
2. The spouse was given property outside of the will in lieu of a disposition, or
3. The spouse was specifically excluded from the will.

Question 37

What are the six fiduciary duties of a power of attorney?

Answer 37

1. Exercise the powers for the benefit of the principal and in accordance with reasonable expectations
2. Act in good faith
3. Separate the assets of the principal from agent
4. Exercise reasonable care, competence, and diligence
5. Account for all transactions made on behalf of the principal
6. File an accounting of the administration whenever so directed by the court

Question 38

Under common law, a will could be probated at any time, even decades after the decedent’s death. What is the time limit for probating a will under the UPC?

Answer 38

The UPC provides that probate proceedings must be brought within three years of the decedent’s death. After that, there is a presumption of intestacy.

Question 39

When a will is executed that bequests security, and then additional security is later acquired, how is that additional security treated under the UPC?

Answer 39

Additional security acquired after the will was executed will be included with the bequest of security accounted for in the will.

Note: This is different than under common law, which treats a gift of securities differently depending on whether the bequest was specific or general. The UPC has rejected this approach of classifying the type of bequest.

Question 40

When a spouse is omitted from a will, what is the presumption and how is it rebutted under the traditional view?

Answer 40

A rebuttable presumption is created that the omission was a mistake.

The traditional view is that the presumption cannot be rebutted unless the intent to omit the spouse is apparent from the language of the will or the spouse was otherwise provided for.

Question 41

When is the value of an inter vivos gift determined?

Answer 41

The value is determined at the time the recipient takes possession or enjoys it, whichever is first.

Question 42

What do most jurisdictions require for a valid disclaimer?

Answer 42

Most jurisdictions require that the disclaimer be:

1. In writing
2. Signed
3. Filed within a certain period after the decedent’s death

Question 43

What does the Uniform Transfer to Minors Act do?

Answer 43

The Uniform Transfer to Minors Act (UTMA) appoints a custodian to use property transferred to a minor at the custodian’s discretion on the minor’s behalf without court approval and with no accounting requirement. The custodian must turn any remaining property over to the minor upon the minor’s attainment of age 21.

Question 44

Can a party take a family allowance from a decedent’s estate when that party is responsible for the decedent’s death?

Answer 44

No, a party cannot take property from a decedent when the party is responsible for the decedent’s death. This includes an intestate share, an elective share, an omitted spouse’s share, exempt property, a homestead allowance, and a family allowance.

Question 45

Do involuntary manslaughters and assisted suicides fall within the homicide doctrine, barring a party from taking property from a decedent?

Answer 45

Involuntary manslaughters (as well as self-defense killings) do not fall within the homicide doctrine.

Assisted-suicide killings do fall within the homicide doctrine.

Question 46

How does elder abuse affect an individual taking from a decedent’s estate?

Answer 46

Some states bar an individual from taking if the individual is guilty of elder abuse. Requirements vary- some require conduct just short of homicide, while others will bar for abandonment. Most jurisdictions treat the abuser as predeceasing the decedent.

Question 47

Which power of attorney becomes effective upon incapacitation of the principal?

Answer 47

A healthcare power of attorney