Wills And Estates Flashcards
What are non-probate assets?
Life transfers that pass outside of the will/intestacy process.
What is required to make a will?
- testamentary capacity
- testamentary will
- appropriate formalities (vary based on type of will)
What capacity is required to make a will?
- over 18
- of sound mind
What is required to be of sound mind to make a will?
Must have the ability to understand:
1. The nature, condition, and extent of your property
2. The nature of the disposition that testator is making of your property
3. The names of and testator’s relationship to their descendants
How does an insane delusion affect a will?
An irrational belief with no basis in fact or reality.
Doesn’t necessarily negate soundness of mind.
A particular gift or will is invalid to the extend it was the product of the insane delusion
What is testamentary intent?
At execution, a testator must intend that the particular document under discussion be his or her will.
What negates testamentary intent?
- Undue influence
- Fraud
- Mistake
When is undue influence sufficient to void a will?
The wrongdoer overcomes the testator’s free will, and the influence causes the testator to make a transfer that they would not have otherwise made
When does a presumption of undue influence in the execution of a will arise?
The alleged wrongdoing was in a confidential relationship with the donor
There were suspicious circumstances surrounding the preparation, formulation, or execution of the will
When does fraud invalidate the will?
Fraud in the execution - as to the nature or contents of the writing itself
Fraud in the inducement - as to intrinsic facts that induces the testator to make a gift that they wouldn’t have made if they knew the true facts
When does mistake invalidate a will?
Mistake in the execution - as to the nature of the document
In the inducement - no affect on testamentary intent —> doesn’t invalidate a will
What are the formalities required for a valid attested will?
- In writing
- Signed by the testator or in their name in the testators presence and direction
- Witnessed by at least 2 people or public notary
What is the harmless error rule for wills?
Even if the formalities are not met, the will is valid if the proponent proves by clear and convincing evidence that the testator intended the document to be their will.
What is the integration rule for a will?
Any pieces of paper present at execution that are intended to the be a part of the will, will be part of the will.
How does the signing of a will by an interested witness affect the will?
Doesn’t invalidate it - may purge the interested party’s share.
Under Uniform Probate Code - has no effect at all.
What is a holographic will?
Written by the testator entirely in their own handwriting. UPC requires only the material portions to be in handwriting.
Does not require any witnesses
What is a codicil?
An instrument executed after a will. Refers back to the earlier will but adding to, explaining, or deleting.
Republishes the will, so the will is treated as if it were first written and executed as of the date of the codicil.
How can a will be revoked?
- Physical act
- Later valid will
- Divorce
How is a will revoked by physical act?
- Revocatory act on the will - burning, tearing, canceling, obliterating, or destroying
- With intent to revoke
How does a divorce affect a will?
All provisions of the will relating to the now ex-spouse become ineffective for all purposes, unless it is apparent in the will that the provisions were intended to survive the divorce.
When can a revoked will be revived?
Only if restated, re-executed, republished, or other clear evidence of intent to revive.
A codicil revives a will as of the date of the codicil.
What happens to a lost will known to be in the testator’s possession?
It’s presumed to be destroyed by testator with the intent to revoke
What happens to a lost will known to be in the testator’s possession?
It’s presumed to be destroyed by testator with the intent to revoke
What’s the effect of an unsigned copy of a will?
It’s an unexecuted copy - no legal effect, revocation has no legal effect
Who has standing to challenge a will?
Only someone who will have a beneficial interest if they succeed - heirs.
What are the grounds for contests of a properly executed will?
- Lack of testamentary capacity
- Undue influence
- Mistake
- Fraud
- Ambiguity
What is a no-contest clause in a will?
Attempts to disqualify anyone who contests the will from taking anything.
Construed narrowly - doesn’t apply to fraud or good faith/reasonable cause in contesting
When can an unintegrated act/page become part of will?
- Facts of independent significance
- Incorporation by reference
- Personal property list
- Dispositions to inter vivos trusts
When can a document be incorporated to a will by reference?
- In existence at time of execution of the will
- Will manifested intent to incorporate
- Will described the writing enough to identify
When is a personal property list incorporated into a will?
- Must describe beneficiaries and property with reasonable certainty
- Must be signed, even if not property attested
- Can be created after the will is executed
- Cannot give away real estate or money
What is a spouse’s elective share in wills?
Can decline to take under a will or intestacy statute, and instead take an elective share - generally 50% of the marital property portion of the augmented estate.
When can a beneficiary under a will not take property?
- Disqualification - slayer statutes, divorce
- Simultaneous death
- Disclaimer - rejection of share
What is required for a disclaimer of testate or intestate share to be valid?
- in writing
- declare the disclaimer
- describe the interest or power disclaimed
- signed by the disclaiming party
- delivered or filed
Can’t occur when:
- waiver
- already received and accepted the property
- rights already assigned
What is ademption by extinction?
When a specific gift in a will is no longer in the testator’s estate at death.
What is ademption by satisfaction?
When the testator makes an inter vivos gift of the property to a beneficiary with the intent that the provision or the will be thereby satisfied in whole or in part.
What is abatement?
When the assets of the testator’s estate are insufficient to satisfy all bequests or devises to the beneficiaries after paying claims against the estate.
What happens to the property in a will when a lapse occurs?
The beneficiary predeceases the testator
- lapse in body falls to residuals
- total lapse of residuary falls to intestacy
- lapses in group gifts fall to remaining group takers (class or residuary)
When does an anti-lapse statute save a gift?
- the predeceasing beneficiary was closely enough related to the testator
And - the predeceasing beneficiary was survived by descendants
Then, gift goes to those descendants
What is the pure/strict per stirpes approach to intestate distribution when there is no surviving spouse?
Go to child level and count the number of live roots, then divide down as needed
What is the modern/modified per stirpes approach of intestate division, when no surviving spouse?
Go the first generation with at least one living member and count the number of live roots in that generation.
Divide down as needed.
What is the UPC approach to intestate division when there’s no surviving spouse?
Go the first generation under the decedent with at least one surviving member.
Count the number of live roots, not live members in that generation.
Allocate a share to each living member in that generation.
Count the remainder, if any, and repeat by distribution a share to any qualified takers at the next generation.
When is property given in life treated as an advancement of an intestacy share?
It is specifically or generally declared in a contemporaneous writing by the decedent, or
It is acknowledged in any writing by the heir as an advancement
