wills and estates

Question 1

What happens in the case of simultaneous death?

Answer 1

Uniform Probate Code (UPC) follows Uniform Simultaneous Death Act (USDA):

1) if insufficient evidence to determine who survived whom, property will pass as though EACH HAD PREDECEASED THE OTHER
2) to avoid this, must be proven by CLEAR AND CONVINCING EVIDENCE that heir survived decedent by 120 HOURS.

Question 2

What do unmarried cohabitants typically get via intestate succession?

Answer 2

NOTHING!!!!

Question 3

What does a surviving spouse get via intestate succession in the following scenarios?

1) spouse and decedent have kids
2) no kids but decedent’s parents are alive
3) kids and spouse has other kids
4) kids that are not the spouse’s
5) just spouse, no kids

Answer 3

1) spouse + shared descendants: spouse takes ENTIRE estate
2) spouse + parent: spouse takes $300k + 75% of leftovers
3) spouse + shared descendants + spouse’s kids: spouse takes $225k + 50% of leftovers
4) spouse + non-spousal kids: spouse takes $150k + 50% of leftovers
5) just spouse: spouse takes ENTIRE estate

Question 4

What happens if a decedent dies intestate without any heirs?

Answer 4

property ESCHEATS to the state

Question 5

Who qualifies as an issue for intestate succession purposes?

Answer 5

children: must be a parent-child relationship

Question 6

How are adoptive children treated for intestate succession purposes?

Answer 6

1) they inherit just like biological children

2) the adoption severs their relationship with natural parents
- EXCEPTION: stepparent adopting stepchild does not prevent adoptee from inheriting from other genetic parent

Question 7

How are posthumously born children (conceived before but born after death of mother’s husband) treated for intestate succession purposes?

Answer 7

if born within 280 DAYS of husband’s death, REBUTTABLE PRESUMPTION that child is the husband’s and child acts as normal child for intestate succession.

if born AFTER 280 DAYS, must PROVE PARENTAGE in order to inherit

BUT: Uniform Parentage Act increases period to 300 days

Question 8

What the three ways to calculate the share children (“issues”) and their children get?

Generally, how do they work?

Answer 8

PER STIRPES: always make the cut at each generation, regardless of whether anyone in it survived.
-children stand in place of dead parents

PER CAPITA WITH REPRESENTATION: make first cut at earliest generation with a surviving member.
-children stand in place of dead parents

PER CAPITA AT EACH GENERATION: make first cut at earliest generation with a surviving member
-POOL remaining shares and split those equally at the next generation

Question 9

What are the three requirements for execution of a formal will?

Answer 9

signed writing

witnesses

testamentary INTENT

Question 10

FORMAL WILL: SIGNED WRITING REQUIREMENT
are oral wills ever okay?

where must the signature be?

what is required of a testatory to have the capacity to sign?

can the testator use a nickname?

Answer 10

UPC says NO ORAL WILLS (like a video)

location:

• -some states: END
• -UPC & other states: ANY PART, but words after signature DON’T HAVE EFFECT

capacity requirements:

• -18 years old
• -sound mind

yes to nickname, a formal signature is not required

Question 11

FORMAL WILL: WITNESSES REQUIREMENT
how many witnesses?

when must witnesses sign?

what does “in the presence” mean?

what is an interested witness? can they be witnesses?

Answer 11

most states: sign will in presence of 2 or more witnesses

when to sign:

• -most jx: testator must sign will “IN THE PRESENCE” of witnesses, who must sign IN THE PRESENCE OF TESTATOR
• -UPC: witnesses must sign within a REASONABLE time of the original signature by the testator (not in presence, unless signor is signing on behalf of testator, then conscious presence required)

“in the presence”:

• -traditional: LINE OF SIGHT (same room)
• -modern: CONSCIOUS PRESENCE (aware act is being performed)

interested witnesses = direct financial interest in will

• -UPC: TOTALLY FINE NO WORRIES
• -common law: NOT COMPETENT TO WITNESS
• -many states: PURGE THEORY (interested witness does not affect validity, but court will purge any gain in excess of what they’d get in intestate succession*)
• —*exceptions: don’t purge if there were two OTHER disinterested witnesses, OR witness takes the lesser amount than intestate

Question 12

When is competency to sign a will measured?

Answer 12

TIME OF SIGNING

Question 13

What happens if you fail to satisfy the formalities?

Answer 13

common law (majority): STRICT COMPLIANCE REQUIRED

UPC/minority view: SUBSTANTIAL COMPLIANCE required.
-if formality not met, still admit will if CLEAR AND CONVINCING EVIDENCE that decedent intended it to be his will

Question 14

What is a holographic will?

does it need witnesses?

must it be signed?

how much writing is required and by who?

how do you determine intent to make a will (which is super important)?

Answer 14

informal, HANDWRITTEN will

need not be witnessed

must be signed

writing amount:

• some jx: ANY markings NOT IN TESTATOR’S HANDWRITING invalidate the will
• UPC: only MATERIAL PROVISIONS must be in testator’s handwriting

INTENT (v. important here!)

• look for words/phrases that suggest intent (“inherit, bequeath”, etc)
• UPC expressly allows extrinsic evidence to establish intent

Question 15

What is a codicil?

what is required of it?

must a codicil be formal if the will is formal?

Answer 15

SUPPLEMENTS a will, does not replace it

SAME FORMALITIES required (signed, witnessed, intent), holographic okay too

FORM: formal will can be amended by holographic codicil and vice versa

Question 16

When can a will be altered or revoked?

Can a will be partly revoked?

Answer 16

wills are AMBULATORY: so they can be changed or revoked any time UP UNTIL TESTATOR’S DEATH

yes, will be can be revoked in FULL or in PART

Question 17

What are the three ways to revoke a will?

Answer 17

1) SUBSEQUENT INSTRUMENT
2) PHYSICAL ACT
3) OPERATION OF LAW

Question 18

How can a subsequent instrument revoke a will?

How can you tell between a subsequent writing that is a codicil and a new will that revokes the old one?

Answer 18

1) express revocation
- -later writing (oral not enough)
- -“will #1 is hereby revoked”

2) implied revocation (inconsistency)
- -as long as validly executed, later, INCONSISTENT document revokes

CODICIL V. REVOCATION: look to RESIDUARY GIFT

• -if old writing has residuary and new doesn’t, new one is probably a codicil
• -if later writing has a residuary, it’s likely a new will

Question 19

How can a physical act revoke a will?

What is the effect of only destroying part of a will?

What is the effect of a lost will?

If a will is lost, can a copy be used?

Answer 19

burning, tearing, destroying, crossing out revokes will entirely as long as testator had THAT INTENT

PARTIAL DESTRUCTION:

• -UPC: destructive act only has to affect some part of will to revoke it entirely
• -MAJORITY: particular language in question must be destroyed

LOST WILL:

• -creates REBUTTABLE PRESUMPTION that it was revoked by physical act
• -burden on PROPONENT to show will’s existence by CLEAR AND CONVINCING evidence
• -DUPLICATE ORIGINAL is okay, COPIES ARE NOT

Question 20

How can a will be revoked by operation of law?

Answer 20

DIVORCE REVOKES all provisions in favor of former spouse

• -UNLESS evidence that testator wanted will to survive divorce
• -UPC: also ends gifts to ex-spouse’s family
• -SEPARATION DOESN’T DO THIS

Question 21

When can a third party revoke a will on behalf of the testator?

Answer 21

1) at testator’s DIRECTION, AND

2) in testator’s CONSCIOUS PRESENCE

Question 22

What happens to a codicil if the attached will is revoked?

What about the reverse: if a codicil is revoked?

Answer 22

if will is revoked, any codicils attached are also revoked

if codicil is revoked, underlying will is just revived in original form

Question 23

What happens to a prior will if a second will is revoked?

Answer 23

UPC (majority) does NOT recognize automatic revival.

you’d have to RE-EXECUTE first will.

Question 24

What is dependent relative revocation (DRR)?

Answer 24

safety valve for mistakes!

if mistake of law or fact leads to a revocation, relative can revive the earlier revoked will

key is BUT FOR CAUSE: would not have revoked BUT FOR MISTAKE

Question 25

What is the general rule of interpretation of a will?

Answer 25

PLAIN MEANING: give words plain meaning , even if testator meant something else

UNLESS the will states otherwise by, e.g., DEFINING words

Question 26

When can a will incorporate an outside non-will document?

Answer 26

1) document is in EXISTENCE at time of execution
- -though UPC waives this requirement if document is only disposing of personal property

2) testator INTENDS to incorporate document; and
3) document is DESCRIBED in the will with sufficient certainty to permit its IDENTIFICATION

Question 27

What happens if an intended beneficiary does not survive the testator?

Different rule for class gifts?

Answer 27

COMMON LAW:
–gift would LAPSE (i.e., fails), and go into residuary gift

ANTI-LAPSE STATUTES: goes to dead beneficiary’s kids IF:

1) protected relationship (RELATIVE); AND
2) beneficiary is survived by ISSUE
- -if not met, COMMON LAW APPLIES, gift goes into residuary

CLASS GIFTS:
--COMMON LAW: exception to normal rule. if class member predeceases testator, rest of class SHARE his gift

Question 28

What happens if an estate does not have sufficient funds to fulfill debts or make gifts?

Answer 28

ABATEMENT (reduction) in specific order:

1) FIRST, reduce intestate property
2) residuary gift
3) general gifts (satisfied from general assets of estate)
4) specific gifts (particular piece of property or from specific source)

Question 29

What happens if a piece of property is no longer in testator’s estate at time of death?

Answer 29

ADEMPTION:

1) ademption by EXTINCTION:
- -traditional rule: gift is EXTINCT (identity theory)
- -UPC: INTENT theory–ask if testator intended the ademption, and if not, give replacement gift

2) ademption by SATISFACTION:
- -inter vivos transfer
(a) must INTEND for gift to adeem; and
(b) must be supported by WRITING

Question 30

How are ambiguities to be treated in a will?

Answer 30

LATENT: looks fine on face, turns out there’s a factual problem (“my brother” but he has two)

PATENT: appears on face (different address used in different parts of will)

TRADITIONAL RULE:

• -patent ambiguties had to be resolved WITHOUT EXTRINSIC EVIDENCE
• -latent COULD USE extrinsic evidence

MODERN RULE (majority):
--EXTRINSIC EVIDENCE fine to resolve both types

Question 31

How do courts resolve a mistake in a will?

Answer 31

UNFORGIVING

if it says so in the will, it doesn’t matter if it was a mistake

Question 32

What are the three situations that limit a testator’s power to transfer property?

Answer 32

rights of his SPOUSE

gifts to his CHILDREN

BARS to succession

Question 33

What is a surviving spouse entitled to, even if she is written out of the will?

Answer 33

1) social security and pension plans;
2) homestead exemptions;
3) personal property set asides;
4) family allowance for reasonable living expenses;
5) ELECTIVE share

ELECTIVE SHARE =

• -surviving spouse can elect to take a FORCED SHARE, which will change gifts to other beneficiaries
• -UPC: 50% of AUGMENTED estate (pre-marriage and during marriage acquired)

can be WAIVED if:

1) in WRITING,
2) after FAIR DISCLOSURE of its contents, and
3) spouse is represented by INDEPENDENT COUNSEL

Question 34

What is an advancement to a child?

How do you tell whether a gift is an advancement?

How do you determine the effect of an advancement?

Answer 34

Advancement = lifetime gift treated as satisfying all or part of child’s INTESTATE share

COMMON LAW:

• -any lifetime gift is PRESUMED to be an advancement of child’s intestate share
• -child had burden to show it was an outright gift

UPC: gift is advancement only if:

• -decedent declared in CONTEMPORANEOUS WRITING that gift was advancement (or heir acknowledged that in writing), OR
• -WRITING indicates that gift should be taken into account in computing shares

Calculating effect: HOTCHPOT analysis

1) ADD value of advancements BACK INTO intestate estate
2) DIVIDE resulting estate by number of children taking
3) DEDUCT child’s advancement from child’s share

Question 35

Can a parent intentionally disinherit his children?

Answer 35

YES OF COURSE!

Question 36

What happens if a testator has a child AFTER executing a will and dies WITHOUT AMENDING his will to include that child?

Answer 36

IF no other children when will was executed: omitted child takes her INTESTATE SHARE

IF other children at time of execution of will, AND WILL GAVE PROPERTY to any of those children, then omitted child takes an EQUAL SHARE from portion of property ALREADY DEVISED to other child.

Question 37

What is the slayer rule?

Answer 37

Beneficiary who MURDERS testator is treated as if he PREDECEASED the testator

murder must be INTENTIONAL and FELONIOUS, NOT involuntary manslaughter or self-defense

UPC: allows killer’s issue to take

Question 38

Can a person disclaim a testamentary gift?

Answer 38

YES! must:

1) be in writing, signed, and filed with court, OR
2) declared to person in charge of distributing estate, AND

3) identify decedent, describe interest being disclaimed, and define extent of disclaimer

MUST DISCLAIM WITHIN NINE MONTHS OF DEATH

Question 39

Can a person convicted of elder abuse inherit from that person?

Answer 39

NO!

Question 40

Who has standing to challenge a will?

When must they challenge it?

Answer 40

only an INTERESTED PARTY:

1) would receive a financial benefit under the will, OR
2) would take under intestate succession but does not take under the will

must file a contest claim WITHIN SIX MONTHS after will is admitted to probate

Question 41

Who bears the burden of proof in challenging a will based on a testator’s capacity?

What must be shown?

Answer 41

CHALLENGER bears burden of proving that testator lacked requisite mental capacity at TIME OF EXECUTION of will (“the when q”)

capacity = 18 years or older; sound mind.

this means ability to know:

• -the why: nature of act
• -the what: nature/character of her property
• -the who: natural objects of her bounty, AND
• -the how: plan of the attempted disposition

MUST NOT ACTUALLY KNOW, just have ABILITY TO KNOW

Question 42

What constitutes an insane delusion for the purposes of challenging the validity of a will?

What is the test?

Answer 42

INSANE DELUSION = false belief to which testator adheres in spite of all reason and evidence to the contrary (still has general capacity though)

OBJECTIVE TEST:

1) measure insane delusion against actions of a RATIONAL PERSON in testator’s position
2) belief is an insane delusion if rational person COULD NOT HAVE REACHED SAME CONCLUSION

3) CAUSATION REQUIRED:
- -challenger must show that insane delusion was a BUT-FOR CAUSE of the testamentary disposition.

Question 43

What constitutes undue influence for the purpose of challenging the validity of a will?

what is the test?

what is the consequence?

Answer 43

undue influence = a COERCED RELATIONSHIP, where a THIRD PARTY effectively CONTROLLED the testator’s decision-making process

challenger bears INITIAL BURDEN of showing:

1) beneficiary received a SUBSTANTIAL BENEFIT under the will;
2) beneficiary had a CONFIDENTIAL RELATIONSHIP with testator (often professional); AND
3) testator had a WEAKENED INTELLECT at time of execution

this creates a PRESUMPTION of undue influence, and the BURDEN SHIFTS to proponent (third party):

• -must show by PREPONDERANCE of evidence that there was no undue influence
• -CAUSATION IS KEY

consequence:
–third party treated as though he PREDECEASED testator to extent that gift is in EXCESS of his INTESTATE SHARE

Question 44

What is fraud w/r/t challenging a will?

Who bears BOP?

What are the elements?

What are the kinds of fraud?

What is the remedy?

Answer 44

fraud = challenger bears burden of showing that beneficiary engaged in UNLAWFUL MISREPRESENTATION at TIME OF CONVEYANCE

elements;

1) INTENT to deceive testator, AND
2) PURPOSE of influencing the will

KINDS of fraud:
1) fraud in the INDUCEMENT: fraud causes testator to make a different will than he would have otherwise

2) fraud in the EXECUTION: misrepresentation as to CHARACTER/CONTENTS of the will

REMEDY = CONSTRUCTIVE TRUST

Question 45

What does a forfeiture clause do?

Answer 45

In terrorem: a NO-CONTEST clause designed to dissuade a beneficiary from suing about his share

UPC: only enforceable if beneficiary has NO PROBABLE CAUSE to challenge
–if PC to challenge, clause is unenforceable

Question 46

What property goes through the probate process? What doesn’t?

Answer 46

probate property passes by will or intestate succession

everything else goes via another instrument, like deeds, trusts, joint tenancies, etc

Question 47

In probate, what is the order in which creditors are repaid?

Answer 47

most important to least important:

1) administrative expenses
2) medical and funeral expenses
3) family allowance
4) taxes
5) secured claims
6) judgments against defendant
7) all other claims

Question 48

What duties are owed by the personal representative of a testator?

If the will does not name a personal rep, who is picked to serve?

Answer 48

fiduciary: owes a duty of loyalty and care

priority of personal reps:

1) a surviving spouse who is a devisee,
2) other surviving devisee;
3) surviving spouse (if not a devisee)
4) other heirs of the decedent
5) 45 days after decedent’s death, any creditor

Question 49

What is required for a power of attorney agreement to be valid?

Answer 49

1) in writing
2) signed
3) dated