Wills and Intestacy

Question 1

Intestacy

Answer 1

Any property that does NOT pass by will upon the decedent’s death will be distributed
according to the state’s applicable intestacy statutes

Question 2

Decedent survived by spouse, and descendants who are also spouse’s descendants and spouse doesnt have other descendants.

Answer 2

Surviving Spouse Takes entire estated

Question 3

Decedent survived by a Spouse and surviving parent

Answer 3

Surviving spouse takes $300k and 75% of the remainder of the estate

Question 4

Decedent Survived by Spouse + Shared Descendants + Spouse’s other kids

Answer 4

Surviving Spouse takes $225k and 1/2 of remaining property

Question 5

Decedent survived by Spouse and Issue note related to surviving spouse

Answer 5

Surviving Spouse takes 150k and 1/2 of remaining estate

Question 6

Decedent only survived by spouse

Answer 6

Spouse takes entire estate

Question 7

If decedent dies without heirs…

Answer 7

property will escheat to the state

Question 8

Decedent survived by no spouse

Answer 8

decedent’s surviving descendants will inherite entire estate equally

Question 9

If no spouse or descendants–>

Answer 9

Parents.

Question 10

intestacy - If no parents–>

Answer 10

descendants of decedents parents

and if no one at all escheat

Question 11

Adopted Children

Answer 11

inherent from decedent just like bio children

Question 12

Stepparent Adoption

Answer 12

If a stepparent adopts a child, this creates a parent child relationship with the stepparent for purposes of inheritance. But does not prevent adoptee from inheriting from other genetic parents. Pretty sweet

Question 13

Equitable Adoption

Answer 13

In some states, a child may be informally adopted through adoption by estoppel when a person takes a child in and assumes parental
responsibilities. If such a surviving child can establish an adoption by estoppel,
equity holds that she can inherit from the decedent as if she were a legally
adopted child. Courts consider several factors when determining whether a
relationship constitutes an adoption by estoppel:

(a) The parent’s bestowal of love and affection on the child;
(b) The parent’s performance of parental duties toward the child;
(c) The child’s obedience and companionship toward the parent;
(d) The child’s reliance on the relationship; AND
(e) The parent’s holding out the child as their own.

Question 14

Child Born out of wedlock

Answer 14

At CL could not inherit.

Today, non-marital children may
inherit from either parent so long as the facts establish a legal parent-child relationship
(non-marital children inheriting from a father must first establish paternity).

Question 15

Posthumously Born Children

Answer 15

Child conceived before, but born after, the death of mother’s husband.

If child born within 280 days of husbands death, there is a rebuttable presumption that child is husband’s and will inherit from husband as if child was born before they died.

*UPA increases the days to 300

*If a child is born more than 280 days after death, child will have to prove parentage in order to inherit.

Question 16

Half-Bloods

Answer 16

At common law, ONLY full-blood children were entitled to inherit
from an intestate decedent. Today, in almost every state, half-blood children (i.e., two
people who share one parent, but not the other) are treated equally as whole-blood
children. In a minority of jurisdictions, they are treated less favorably and sometimes
excluded if whole-blood kin exist.

Question 17

Per stirpes

Answer 17

Divide shares into the total number of children who Survive OR leave issue who survive, and then divide by representation.
Allows a surviving child to stand in the place of his deceased parent.

Question 18

Per Capita w/rep

Answer 18

Divide the property equally at the first generation where a member survives the decedent!! Diff than per stirpes

If there are deceased members at the first generation, their shares drop down to their surviving issue at the next generation.

If deceased member of a generation is not survived by the living issue, then that member does not take a share.

Question 19

Advancements

Answer 19

At CL, gifts to heirs during a testator’s lifetime were considered advancements on the heir’s intestate share of the estate, and were automatically deducted from the heir’s share of the estate

BUT TODAY, gifts to heirs during a testator’s lifetime are NOT considered advancements on
the heir’s intestate share of the estate UNLESS:

(1) The decedent declared his intent to make the gift an advancement in a
contemporaneous writing; OR
(2) The heir acknowledged the gift to be an advancement in writing.

Question 20

Simulateanous-ish death

Answer 20

Under the UPC and Revised Uniform Simultaneous Death Act (RUSDA), a beneficiary is only treated as having survived the testator if there is clear and convincing evidence
that the beneficiary survived the testator by 120 hours (5 days).

Question 21

valid law applied - UPC says

Answer 21

a written will is valid if complies with the law of the place:

a) where executed; OR

b) of testator’s domicile, abode, or nationality at
the time of (i) death or (ii) signing the will.

Question 22

Execution of Will: 3 basic reqs for formal will

Answer 22

1. Writing signed by testator;
2. Two witnesses (or notarized, if UPC) and
3. Testamentary Intent

Altho this is governed by the specific state statute

Question 23

Which law governs?

Answer 23

Generally, the law in the jurisdiction of the decedent’s domicile at death governs the disposition of his personal property, while the law in the jurisdiction in which the
decedent’s real property is located governs the disposition of his real property.

However, a decedent may select which state law governs in the terms of his will.

Question 24

What if will does not meet specific reqs of statute?

Answer 24

Common law, wills are invalid if they do not meet the specific requirements of
the state.

However, some states will find a will is valid if the decedent substantially
complied with the state’s requirements.

Question 25

Harmless Error Rule

Answer 25

Under the UPC, a will that is NOT properly executed will still be
valid if proven by clear and convincing evidence
that the decedent intended the writing to be his will

Question 26

Will Conditioned on Certain Events

Answer 26

The validity of a will can be conditioned on a particular event or circumstance. However, whenever possible, the court will construe excess language as a mere explanation or instruction, rather than a barrier to admitting the will to probate as a valid instrument. The court will consider whether the event is referred to expressly as a condition or only a statement of the motive for executing the will.

The court considers factors such as where the will was stored after the purported “condition” lapsed, whether setting the will aside would result in intestacy, and whether effectuating the will would result in an inequitable distribution.

Question 27

Ambiguities

Answer 27

Under the general rule of construction, a will “speaks” as of the time of death. Courts are reluctant to disturb the plain meaning of a will regardless of mistake. However, if there is an ambiguity, courts allow extrinsic evidence to resolve it.

Traditionally, courts distinguished between patent and latent ambiguities; however, many states no longer make this distinction.

Question 29

Lapse - general

Answer 29

Under common law, if a beneficiary died before the testator, the gift failed and went to the residue unless the will provided for an alternate disposition.

Almost all states have enacted anti-lapse statutes providing for alternate disposition of lapsed bequests. Under most statutes, if the gift was made to a relation of the testator who was within a specific statutory degree, and the relation predeceased the testator but left issue, then the issue succeeds to the gift, unless the will expressly states the contrary.

Question 30

Pretermitted Children **

Answer 30

Pretermitted heir statutes allow children of a testator to claim a share of the estate even though they were omitted from the testator’s will.

While the birth or adoption of a child after the execution of a will does not invalidate the will, such children are omitted from the will. If the testator then dies without revising the will, a presumption is created that the omission of the child was accidental.

Question 31

Power of Attorney

Answer 31

A power of attorney (POA) is an authorization to act on someone else’s behalf in a legal or business matter. The person authorizing the other to act is the principal, and the one authorized to act is the agent

Question 32

Healthcare POA

Answer 32

A healthcare POA appoints an agent to make healthcare decisions on behalf of the principal if she becomes unconscious, mentally incompetent, or otherwise unable to make decisions. Unlike other powers of attorney, a healthcare power of attorney becomes effective upon incapacitation of the principal.

An agent must make a healthcare decision in accord with the principal’s instructions or other known wishes. If such instructions do not exist, then the agent must make decisions in accordance with the agent’s determination of the principal’s best interest.

Question 33

Liability of Healthcare POA

Answer 33

The typical durable healthcare POA statute shields the agent from civil liability for healthcare decisions that are made in good faith. Agents act within the scope of the statute when they act pursuant to a properly executed durable healthcare power of attorney. In general, an agent is held responsible only for intentional misconduct, not for unknowingly doing something wrong.

Question 34

Slayer Rules

Answer 34

In general, a party cannot take property from a decedent when the party was responsible for the decedent’s death (as heir or beneficiary). The killing must have been intentional and felonious to bar the killer from taking. These rules are intended for homicide situations.

l. Generally, the decedent’s estate is distributed as if the killer had predeceased the
decedent.

Question 35

Appointment of Personal Representative - General rule

Answer 35

A personal representative is either named in the will (executor) or appointed by the court (administrator) to oversee the winding up of a decedent’s affairs. Any person with the capacity to contract may serve as a personal representative. When a will is silent regarding the appointment of a personal representative, a court will generally appoint an administrator.

Question 36

Divorce Effects on willl

Answer 36

In most jurisdictions, divorce revokes all will provisions in favor of the former spouse, unless it can be shown that the testator intended for the will to survive.

Spouses who are separated, or are in the process of obtaining a divorce, remain spouses until the issuance of a final decree of dissolution of the marriage, unless a complete property settlement is in place.

Question 37

Priority of who will be appointed by court as personal representative

Answer 37

1. A person named in the will has priority for appointment,
2. followed by the surviving spouse who is a devisee of the decedent,
3. then other devisees,
4. a surviving spouse who is not a devisee of the decedent,
5. other heirs of the decedent, and
6. 45 days after the death of the decedent, any creditor.

Question 38

Can spouse waive their rights to inherit?

Answer 38

A spouse may waive in whole or in part, before or during the marriage, the right to receive property that would pass by intestate succession or by testamentary disposition in a will that was executed before the waiver.

However, the waiver in the prenuptial agreement does not apply to subsequent gifts or bequests made voluntarily testator/grantor.

Question 39

Per Capita at each gen - UPC

Answer 39

Divde property into equal shares at first generation where theres a surviving member, then pool remaining shares and divide equally at the next generation.

Question 40

Interested witnesses - CL

Answer 40

Common Law→A will must be witnessed by 2 disinterested witnesses (not receiving a benefit under the will).

Question 41

Interested witnesses

Answer 41

Modern View (All States)→A will is VALID even if witnessed by an interested witness.
− *BUT, the gift to that witness is purged unless:

a) the interested witness is an heir – gift is
reduced to lesser of (i) intestate share or gift under prior will, or (ii) gift under current will); OR

b) if another disinterested witness was present so that there were still 2 disinterested witnesses.

Question 42

Holographic Will

Answer 42

a handwritten will (or alteration to a will) that is NOT WITNESSED.
-must be signed at end by T

-In states that recognize holographic wills, a valid holographic codicil revokes an earlier will (to the extent it conflicts

Question 43

Incorporation by Reference

Answer 43

A bequest through an unattested memorandum is valid if it meets requirements of incorporation by reference.

Most states say:

1) It was in existence at the time the will was executed;

2) It was sufficiently described in the will; AND

3) Testator intended to incorporate it into the will.

Question 44

Incorp by reference UPC

Answer 44

A bequest of tangible personal property (other than money) will be incorporated if:

1) signed by testator; AND

2) the item & devisees are described with
reasonable certainty.

*The document DOES NOT have to be in existence at the time of will execution.

Question 45

Revocation by Physical Act

Answer 45

A will is revoked by physical act if:

1) the testator intended to revoke the will;

AND

2) it is burned, torn, destroyed, or cancelled by
the testator (or someone at his direction).

Question 46

Words of cancellation

Answer 46

Common Law→words of cancellation are valid ONLY IF they come in physical contact with the cancelled words of the will (i.e. written over).

UPC→words of cancellation are valid written anywhere on the will (no physical contact is required).

Question 47

Revocation by subsequent will or codicil

Answer 47

Testator may revoke a will by executing a subsequent will or codicil.

− BUT, the revocation is valid only to the extent that the previous will conflicts with the new will
UNLESS the new will expressly revokes the previous will in its entirely.

Question 48

Dependent Relative Revocation

Question 49

Signature of Testator

Answer 49

Will must be signed by the testator or by some other person in his presence and at his direction

upc in presence = conscious presence. aware of act even she cannot see it.

Question 50

Witnesses Signing Will

Answer 50

Most jdx:
-testator must sign or acknowledge the will in the presence of the witnesses

-witnesses must sign in presence of testator, altho not necessarily in the presence of on another.

Under the UPC, the witnesses, all of whom need not be present at the same time, must sign the will within a reasonable time after witnessing the testator sign or acknowledge the will.

Question 51

How to revoke a will

Answer 51

A will may be revoked wholly or partially in three ways: by subsequent writings, by physical destruction of the will, or by operation of law

Question 52

revocation by physical destruction

Answer 52

Physical destruction may take the form of burning any portion of the will or canceling, tearing, obliterating, or destroying a material portion of the will with the intent to revoke it. Both the act and a simultaneous intent to revoke must be proven to yield a valid revocation.

Question 53

pretermitted child statute

Answer 53

Pretermitted heir statutes permit children of a testator under certain circumstances to claim a share of the estate even though they were omitted from the testator’s will. While the birth or adoption of a child after the execution of a will does not invalidate the will, such children are omitted from the will.

If the testator then dies without revising the will, a presumption is created that the omission of the child was accidental. An omitted child statute does not apply if: (i) it appears that the omission of the child was intentional; (ii) the testator had other children at the time the will was executed and left substantially all of his estate to the other parent of the pretermitted child; or (iii) the testator provided for the child outside of the will and intended this to be in lieu of a provision in the will.

Question 54

Dependent Relative Revocation

Answer 54

Example: T creates a second will and then writes on the first will, “I am revoking this will because I made a new will.” T did not realize that the second will was not valid. The revocation of the first will is set aside, and the first will is given effect.

EXAM NOTE: If you see an otherwise valid revocation based upon a mistake (whether of fact or law), begin your analysis by stating the DRR rule.

Question 55

Resulting Trust

Answer 55

When a trust fails, a court may create a resulting trust requiring the holder of the property to return it to the settlor’s estate.