Wills and Estates Flashcards
Wills and Estates Opening Statement
Will and probate law, guided in many states by the Uniform Probate Code, governs the disposition of assets upon death.
What state’s will and probate law controls?
A will must comply with the law where the testator was domiciled at the time of its execution or where the testator died.
What are the requirements for a valid will?
SITMA: signed by the testator, testamentary intent, testamentary age (18), mental capacity (must understand property nature/extent, object of bounty, testamentary effect on execution), attested to (two witnesses, okay if interested parties if not undue influence).
- Integrate the will by initialing each page and total pages numbers at the end.
- Incorporating separate writings okay if IDed and in existence at the time of writing.
What is ademption?
If devised property is sold/destroyed before death, the taker gets nothing (except property that specifically replaces it or insurance net proceeds).
What is accession?
A property beneficiary gets the increase in value to the property between execution and death.
What is exoneration?
A beneficiary receives a property subject to liabilities on that property accrued after execution (unless the will states to the contrary).
What is satisfaction?
Inter vivos gifts from the testator “count against” a beneficiary’s devise (in common law; by the UPC, they do not unless specified).
What is a codicil?
A codicil is a supplementation or modification of an existing will. If it creates a new scheme (adds to other beneficiaries’ devises), it needs SITMA formalities. A codicil referring to an earlier will republishes it (the parts not overruled by the codicil).
What if I want to revoke part of my will?
A will may be revoked by being burned, torn, canceled, or destroyed with the intention of revocation by the testator. Any related codicil is presumed revoked. A former will is revived only if intent is shown. Revocation of just a part w/o SITMA formalities is okay if it only increases the residue. If an original will is revoked by a testator not knowing the new will would fail, the original can be revived.
Tell me about the Uniform Simultaneous Death Act, besides having an awesome name.
A beneficiary is assumed to predecease the decedent unless there is clear evidence to the contrary, so the property passes to all alternative takers, not to the beneficiary’s heirs.
What do I need for standing to challenge a will, and what do I have to prove?
To have standing to challenge a will, the petitioner must have something to gain if the will is denied probate. The burden on the contestant is to prove by clear and convincing evidence: failure to adhere to SITMA formalities, lack of capacity, fraud in the execution or inducement, or undue influence (decision-making power was overcome by beneficiary, presumed if unusually large devise, opportunity was present, active participation, and a fiduciary relationship).
*If a challenge is successful, the most recent previous unrevoked will is revived (if none, intestate).
What if I die intestate?
1) Any inter vivos transfers are advancements and counted in the total to be divided (then subtracted from that beneficiary’s share) by common law (UPC presumes it’s just a gift).
2) Marital/community property goes to surviving spouse (elective share statutes require a minimum to stay w/in the family).
3) Separate property goes 1/3 to spouse, 2/3 to issue; if no kids, 3/4 to spouse, 1/4 to parents/siblings.
4) If no surviving spouse, issue take all. If no issue, surviving parents take all, then siblings, grandparents, aunts/uncles, cousins (closest takes first).
5) Beyond first or second cousins, if no takers, escheats to the state (exception if surviving stepchildren).
How are intestate shares divided between the issue if a child with children predeceases the decedent?
Per stirpes: the property is divided equally at the decedent’s children level, grandkids of the deceased child share equally what the child would have received.
Per capita: division is only made at the level of the first generation with live takers. If with representation, the live members of that generation take their share and the kids of the dead members split would would have been their shares (much like per stirpes). If at each generation, the live members take their shares, then all kids of dead members are counted and the remainder is split evenly among them.
What other related documents may I sign away my rights on, please?
Power of attorney: authorization of the principal to an agent to operate upon later incapacitation (must be in writing, power to make wills/trusts must be express).
Health care directive: POA to make medical decisions (no liability for wrongful death if agent acts in good faith).
Living will: directive to medical attendants to withhold life-extending procedures if there is no reasonable hope of recovery from a terminal illness.
What is a probate proceeding, and where is it held?
Probate is a court-supervised process which establishes the rights of the beneficiaries, protects creditors, and ensures no beneficiary will have claims asserted against the assets they receive from an estate. Jxn is proper where the decedent was domiciled at death.
