Wills and Estates

Question 1

Intestacy Distribution Scheme (6 levels)

Answer 1

(1) SS
(2) Descendants of decedent
(3) Parents of decedent and parent’s descendants (decedent’s siblings and nieces/nephews)
(4) Grandparents
(5) Descendants of grandparents (decedent’s aunts/uncles and cousins)
(6) Escheat

Question 2

Surviving Spouse’s intestate share? (4) scenarios; Exceptions?

Answer 2

If SS and D’s descendants: SS 1/2 net estate
— EXCEPTION: if SS is a subsequent spouse and D has living descendants that are not descendant of S: SS - 1/4 FMV RE (minus liens and encumbrances) and 1/2 net personal

If SS and 1 or both of D’s parents survive, but no descendants of D survive: SS 3/4 net estate, parents 1/4 (or 1/8 each)

If SS, no living parents of D, and D has no living descendants: SS entire estate

EXCEPTION to SS share: if SS is living in adultery at time of decedent’s death OR willful desertion or abandonment without just cause and continues until death of deserted spouse —> SS is barred from taking

Question 3

D’s descendants’ intestate share?

Answer 3

The portion of the estate that does not pass to SS - or the entire state, if no SS - passes to the D’s children and descendants of deceased children per capita with representation

Question 4

How to determine per capita with representation

Answer 4

• Divided equally/per capita at the 1st generation with living takers; living takers take their share
• 1 share for each at deceased level/familial line –> issue split evenly/take by representation

Question 5

D’s Parents/parent’s descendants (D’s siblings/neices/nephews) intestate share? (4 scenarios) (Exception*)

Answer 5

(1) SS and P(s), but no descendants of D —> SS 3/4, P’s 1/4 (1/8 each)
(2) No SS, no descendants of D, no P’s descendants (no siblings/neices/nephews), BUT D’s P’s survive —> P’s: entire estate, or split if both

(3) No SS, no descendants of D, BUT P’s and P’s descendants —> P’s & D’s siblings: entire estate, share equally, & if sibling predeceases D (P of N/N): N/N takes with representation
- — HOWEVER: when surviving siblings or their issue (N/N) exist, each living P gets minimum 1/4 share

(4) No SS, no descendants of D, no P’s, no siblings, BUT N/N & their descendants —> entire, take equally if same degree of kinship, otherwise by representation

Question 6

D’s grandparents’ intestate share?

Answer 6

If no SS, no descendants of D, no P’s, and no descendants of P, BUT GP’s survive D —> entire estate, shared equally

Question 7

D’s grandparents’ descendants’ (D’s aunts/uncles/cousins) intestate share? Special rule?

Answer 7

If no SS, no descendants of D, no P’s, no descendants of P’s, no GPs, BUT descendants of GP’s —> entire estate passes to:
- D’s surviving aunts and uncles (siblings of D’s P’s)
&
- surviving issue of D’s aunts and uncles (D’s cousins)

• per stirpes quirk: estate divided into ask many shares as there are aunts/uncles who survive D or who leave issue who survive D

Question 8

Nonprobate property

Answer 8

Property that passes pursuant to the terms of the instrument to the transferee identified in the instrument without passing through probate

Pass on death of D by way OTHER THAN will or intestacy; such as:

• by K (life insurance and retirement plan)
• by right of survivorship (joint tenancy/TBE)
• by inter vivos trust

Question 9

Property may pass through intestacy when… (5)

Answer 9

IN intestacy statutes apply to distribute estate assets when D:

(1) dies without valid will
(2) has made an invalid will
(3) had made a valid will, but some property is not disposed of under such will
(4) has valid will that specifies intestate statutes should apply; or
(5) leaves pretermitted child who is entitled to take pursuant to intestate statute

Question 10

“Descendants” - include? does not include?

Answer 10

“Descendants”/”Issue” include D’s lineal heirs (children, grandchildren, great-grandchildren); does NOT include collateral heirs (siblings, aunts, uncles, cousins, etc.)

Question 11

Intestacy rules for adopted children? Exceptions?

Answer 11

As to adopted family: C treated same as bio-C —> can inherit from & through adoptive P’s, adoptive P’s can inherit from & through C

As to natural P’s: C & C’s descendants —> no inheritance rights from or through bio P’s and vice versa
— EXCEPTION: C adopted by spouse of bio-P —> no affect on inheritance rights between that bio P; inheritance rights btwn C and other natural P —> severed

—- EXCEPTION: C adopted by family members: related by blood & adopt C –> can can inhere from these other members through EITHER bio-P’s OR adoptive P’s - whichever share is greater

Question 12

Intestacy rule for posthumous children?

Answer 12

General rule: one cannot claim as an heir of another unless alive at other persons death
— EXCEPTION: posthumous children: a C in gestation at D’s death inherits as in born in D’s lifetime

Question 13

Intestacy rules for non marital children?

Answer 13

MOTHER: in all cases, a non marital C is deemed C of mother (so that C & his descendants inherit from and through mom and vice versa)

FATHER: non marital C has no inheritance rights from father UNLESS paternity is established (if established, C and C’s descendants have full inheritance rights from & through father & vice versa)

• – In IN, paternity may be established either:
  (1) F marries M & acknowledges C as his own
  (2) F signs paternity affidavit
  (3) For C 20y/o or over —> paternity is established by a cause of action filed during F’s lifetime
  (4) For C less than 20y/o —> paternity is established by a cause of action filed during F’s lifetime OR w/in 5 months after F’s death
  (5) For posthumous C —> paternity is established by a cause of action filed within 11 months after F’s death

Question 14

Intestacy rule for half-bloods?

Answer 14

Half-bloods inherit the same/equally as whole bloods

Question 15

Intestacy rule for step-children/foster children?

Answer 15

No inheritance rights

Question 16

Waiver of Intestate estate share?

Answer 16

D’s spouse or other heir may waive her share in Ds estate by signed K/agrmt/waiver

If K made b4 marriage: the promise to marry is sufficient consideration

If K made post-nuptial: valid only if executed after full disclosure of circumstances & supported by fair consideration

Question 17

(Wills & Intestacy) Disclaimer (effect)?

Answer 17

No one may be compelled to accept a gift; a beneficiary or heir may disclaim, in whole or in part, any interest that otherwise would pass to them from the D or D’s estate, with the consequence that the interest passes as though the disclaiming party predeceased the D & accelerates any future interest (upon disclaimer of a life estate, the remainder is accelerated)

• Disclaimer does NOT mean intestate distribution starts at different level! Still starts at level of 1st living taker

Question 18

(Wills & Intestacy) Disclaimer: formalities/requirements

Answer 18

(1) must be accomplished b4 acceptance of any property
(2) must be accomplished in writing or other record
(3) must be delivered to the relevant person obligated to distribute the estate (personal representative, trustee, etc.)
(4) must be signed
(5) must describe the interest being disclaimed
(6) must be made within 9 months of D’s death to qualified for fed gift tax purposes or at any time for state tax purposes

Question 19

(Wills & Intestacy) Survival requirement - Simultaneous Death Rule

Answer 19

IN follows Uniform Simultaneous Death Act (ISDA): (Rule) when title to property or its devolution depends on priority of death (ie, who died first), and there is insufficient evidence that the persons have died other than simultaneously —> the property passes as though the owner survived the benficiary/heir (ie, as if beneficiary/heir predeceased the owner) absent other contrary provision

Question 20

(Wills & Intestacy) Reduction in share - advancement? how to calculate?

Answer 20

Advancement (applies to intestacy): a gift made by an intestate during his life to an heir, which can be counted against/deducted from heir’s intestate share when the instate dies

RULE: A lifetime gift is presumptively NOT an advancement (presumed to be gift)(and thus, not deducted from heir’s share) UNLESS (1) there is a writing (2) in which the intestate or the heir acknowledges the gift as an advancement OR which otherwise indicates that the gift is to be taken into account when calculating the heir’s intestate estate

CALCULATE: (1) the amount advanced/given to the heir is added back to the “hotchpot”/net value of the estate;

(2) once the shares are calculated,
(3) an heir who received an advancement has his share reduced by the amount of the advancement
* ** HOWEVER, if the advancement amount is greater than the heir’s share, the heir is NOT responsible for returning the excess

Question 21

(Wills & Intestacy) Reduction in share - satisfaction? limitation?

Answer 21

Satisfaction (applies to wills): when a testator executes a valid will making various bequests & thereafter makes a lifetime gift to one of the will’s beneficiaries, there is a rebuttable presumption that such a gift was in satisfaction of/deducted from the beneficiary’s legacy (OPPOSITE PRESUMPTION FROM ADVANCEMENT)

Limitation: in IN, satisfaction applies only to general or residuary devises made to T’s children; does NOT apply to specific bequests (the theory of ademption applies to cover specific devises)

Question 22

(Wills & Intestacy) Slayer rule

Answer 22

In IN, if an heir or beneficiary (1) has been found guilty OR guilty but mentally ill (2) of murder OR voluntary manslaughter OR causing D’s suicide —> the heir or beneficiary forfeits any interest in the estate (slayer holds the property as constructive trustee for the benefit of those who would have taken the property if the heir/beneficiary had predeceased the D)

If individual was tried but found not guilty by reason of insanity, a civil action can be initiated to have individual declared constructive trustee over any property to which he is entitled as result of D’s death; BOP = POE that caused D’s death

Question 23

“Codicil”

Answer 23

“Codicil” is a supplement that alters, modifies, or amends a previously executed will

RULE: MUST be executed with all testamentary formalities of a will

Question 24

Formal requirements for valid will/codicil

Answer 24

(1) legal capacity (when executed, T must be 18 y/o OR a member of the armed forces)
(2) testamentary capacity (when executed, T must have been of “sound mind” - (1) understand value and extent of property; (2) understand the persons who are the natural objects of his bounty; and (3) understand the nature of the disposition he is making)
(3) testamentary intent (it must be evident that T’s present intent upon executing a particular document was that it serve as his will
(4) proper execution and attestation (all requirements for execution/attestation must be met)

Question 25

Execution/Attestation Requirements (6)

Answer 25

(1) the will must be in writing (EXCEPT nuncapative wills)
(2) the will must be signed by T OR T’s proxy at T’s direction and in T’s presence
(3) the will must be signed by T attesting witnesses
(4) the T must sign the will or acknowledge her previous signature in each of the witnesses’ presence (who are both present at the same time)
(5) the witnesses must sign in the presence of each other and in the presence of T
(6) T must “publish” her will (declare to the witnesses that the instrument is her will

Question 26

IN presence requirement

Answer 26

IN follows majority conscious presence rule: the presence requirement is satisfied if each party was conscious of where the other parties were and of what they were doing, and the act of signing took place hereby, within the general presence and cognizance of the other parties

Question 27

Interested witnesses rules

Answer 27

An attesting witness must NOT be a beneficiary under the will UNLESS the interested witness is either:

(1) Supernumerary; or
(2) the interested witness would have received an intestate share or a fiat pursuant to an earlier will (interested witness takes the share he would have received intestate/under earlier will - to the extent that it does not exceed his gift in the will he witnessed)

If interested witness does NOT meet one of these exceptions: the will is valid, and the gift to the interested witness is void (purging statute)

Question 28

“Holographic wills”? IN rule? exception?

Answer 28

Holographic will: handwritten & signed by T, but not witnessed

Holographic wills are NOT recognized in IN unless they satisfy the choice of law rules

Question 29

Nuncapative (oral) will: to be recognized in IN? formalities? limit? revocation?

Answer 29

Nuncapative wills are recognized in IN ONLY if:

(1) will was made while T in imminent peril of death &
(2) T dies because of such impending peril

Formalities:

(1) T must orally declare will b4 2 disinterested witnesses
(2) the will must be reduced to writing by witnesses w/in 30 days of T’s declaration; &
(3) the will must be submitted to probate within 6 months of T’s death

Monetary limit: can only dispose of personal property up to $1k in value ($10k if T in military)

Revocation limited: an oral will can revoke a previous oral will but NOT a written will

Question 30

Attny liability

Answer 30

IN has discarded privity of K defense, and holds that the attny owes duty to client and to beneficiaries named in the will
(means beneficiaries can sue attny for negligence in will preparation or execution for the amount the should have received under the will)

Question 31

Choice of law rules

Answer 31

A will is valid in IN if executed in accordance with:

(1) IN law
(2) law of state where executed
(3) law of state of T’s domicile when executed; or
(4) law of state of T’s domicile at death

Question 32

Revocation of a will - general rule? methods?

Answer 32

General rule: a person who has testamentary capacity (ie, sound mind) can revoke his will at any time b4 death

Methods:

(1) revocation by subsequent testamentary writing
(2) revocation by act
(3) by operation of law

Question 33

Effect of revocation of will? revocation of codicil?

Answer 33

The revocation of a will revokes all codicils to that will

A physical act of revocation on a codicil revokes ONLY the codicil, not the prior will

Question 34

Revocation by subsequent testamentary writing: rule

Answer 34

(1) A will OR any part thereof may be revoked OR altered by a
(2) subsequently written will, codicil, or other writing declaring such revocation AS LONG AS THERE IS
(3) present intent to revoke &
(4) the instrument is executed with the same formalities as required for execution of a will

Question 35

Revocation by subsequent testamentary writing: revocation by implication/inconsistent provisions - rule

Answer 35

To the extent possible, the 2 instruments are read together (ie, the 2nd instrument is treated as a codicil to the earlier will)
— HOWEVER, the 2nd instrument revokes the 1st to the extent of any inconsistent provisions

Question 36

Revocation by physical act: requirements

Answer 36

A will may be revoked by (1) T/T’s proxy at T’s direction and in T’s presence;
(2) physical act of mutilating or destroying the will
(3) with the present into to revoke (intent to revoke must be present at time of the act)
(4) must touch an essential part of the will (ex. signatures)
& (5) in IN, must serve to revoke the WHOLE will (no partial revocation by physical act)

Question 37

Presumptions as to revocation: will not found after T’s death

Answer 37

When a will was last seen in possession or T or under his control & cannot be found after Ts death –> presumption arises that the will was revoked

Question 38

presumptions as to revocation: will found after T’s death in mutilated condition

Answer 38

When a will was last seen in possession or T or under his control & is found after T’s death in mutilated condition –> presumption arises that T did the mutilated with intent to revoke

Question 39

Presumptions as to revocation: evidence to overcome presumptions?

Answer 39

Proponent of the will must prove by POE that the will was NOT revoked (ex, an interested party had access to the will)

Question 40

Can probate a lost or destroyed will if…

Answer 40

IN permits probate of a lost or destroyed will if proponents of the missing will can prove:

(1) valid will execution with all testamentary formalities;
(2) the cause of non-production (ex. fire/flood); &
(3) substantial proof of the wills contents (usually proved by testimony of at least 2 witnesses or by production of photocopy of the will)

Question 41

Revocation by operation of law: divorce/annulment

Answer 41

T’s divorce or annulment following the execution of a will revokes all GIFTS & FIDUCIARY APPOINTMENTS (executor, trustee) in favor of the former spouse

• – the rest of the will remains valid, and is read as though the ex-spouse predeceased the T
• – the statute ONLY applies to wills/revocable trusts; it does NOT apply to LI policies