Wills and Trusts Flashcards
intestate
Dies without a will
codicil
supplement that amends or revokes a will in whole or in part
Intestate succession
An estate plan developed by state legislature for distributing property when decedent dies intestate (w/o a will)
to take from a decedent, an individual must _____ the decedent
Survive. if they die at same time, must prove by clear and convincing evidence the heir survived him by 120 hours
To calculate spouse’s share if decedent is just survived by spouse, no parents and no descendants
Spouse gets 100%
Calculate spouse’s share if the dead guy is just survived by spouse and their kids together
spouse gets 100%!!
Calculate spouse’s share if dead guy is survived by spouse, they have NO kids together but spouse has other kids
spouse get $150,000 plus half of what’s left
kids born after dad dies
if kid is conceived before but born with 280 days of husband’s death there is a rebuttable presumption that the kid is the husband’s and kid will inherit from husband as if the kid was born before hubs died
How does Per Capita with Representation work to determine intestate share (when dying without a will)
Divide property equally at first generation where there is a member who is ALIVE. Then shares drop down to remaining kids, descendants.
How does Per Capita at each Generation work? (UPC method) to determine who gets what when dying without a will
- divide property into equal shares at first generation where there is a surviving member
- then do not pass deceased member’s share down to offspring but instead pool what remains
- divide what remains among surviving members at next generation.
formal execution requirements for a will
- signed writing
- witnesses
- intent
UPC does not allow oral wills or audio/video recordings
What is required when signing a will
intent and desire to sign. Formal signature is NOT required.
18 yrs old and of sound mind
who must attest the will
Most states require at least 2 witnesses
-testator must sign or acknowledge will in presence of witnesses
witnesses must sign in presence of testator
what are interested witnesses
What is the common law, modern, and UPC approach to interested witnesses
people that have a direct financial interest in the will
At common law- interested witness can not be a competent witness to a will and if they are, the will is not valid
Modern approach- states invalidate only the portion of the will that provided gift to the interested witness beyond what they would have received in intestacy
UPC- eliminated interested witness doctrine
What is the PRESENCE requirement of witnesses to a will
Majority view vs UPC view
Majority view- will must be signed in joint presence of and attested to by 2 witnesses
UPC view- witnesses do not have to be present at same time and T does not have to sign in their presence as long as he acknowledges his signature to them before they sign and they sign within reasonable time
What are the requirements for testator competencey
Competency is measured at the time of signing
Testator meets capacity if he knows:
1) nature and extent of his property
2) the persons who are the natural objects of his bounty
3) nature of the instrument he is signing
4) the disposition being made in the will
Does subsequent incompetence invalidate a will
No
What is required under common law/ majority rule about formalities for wills. How is it different for UPC
Strict compliance - i.e if you forget to sign name as witness, will is invalid
But under UPC- just need “substantial compliance and clearnand convincing evidence the testator intended the document to serve as his will
What is required in Modern View (UPC and minority rule) for compliance with formalities in will creation
Substantial compliance Doctrine-
If a formality isn’t met, a court will admit a will to probate if there is clear and convincing evidence that the decedent INTENDED the document to serve as his will
What is a holographic will
an informal handwritten will. Does not need to be witnessed. Just signed
UPC requires material provisions be in the testator’s writing.
INTENT IS KEY- UPC authorizes looking to extrinsic evidence to establish intent
what does a codicil do
supplements a will. Does not replace underlying will, just amends or supplements it.
Formal codicils must be signed, witnessed
Holographic codicils must be in writing
When can wills be altered or revoked
at any time up until the testator’s death. Can be revoked in full or in part
ways to revoke a will
- creating a new will
- physical act- burning, ripping up, LOST
- operation of law- i.e divorce revokes all will provisions favoring ex spouse
is tearing up a will over the phone with lawyer ok?
No, needs to be conscious presence
Does UPC recognize revival of revoked will?
NO. Need to re-execute a revoked will otherwise if you die before it is re-executed, then estate goes thru rules of intestate succession
What is Dependent Relative Revocation?
= a safety valve for testators who revoke a will on the basis of mistake. Can be a mistake of fact or law
DRR invalidates the mistake and revives the earlier will
“But for the mistake, the testator would not have revoked the will”
if the will refers to another document- i.e sketchbook in desk drawer- can that document be incorporated into the will
Yes- incorporation by reference- a will can incorporate an extrinsic document that is not testimentary in nature if the document is in existence at time of execution, testator INTENDS for it to be incorporated and document is described in will with sufficient certainty to permit its identification
What is the common law view on lapse
a gift in a will would lapse- fail- if the intended beneficiary dies before the testator
what is an anti- lapse statute
Prevents CERTAIN gifts from lapsing (failing) - ie. just gifts to relatives of testator.
- need familiar relationship
- and must be survived by issue
if that is the case, and intended recipient is dead, then gift goes to their issue
What is abatement
if the estate does not have sufficient funds to pay debts or make gifts, the gifts will be reduced (abated) in a specific order.
What happens when property in a will no longer exists at the time of the T’s death (ademption)
IF specifically devised property is not in the estate when T dies, the gift fails but under many statutes, if the T replaced the property then the beneficiary would receive that instead.
How do you prove undue influence over a testator
If the wrongdoer exerted such influence that it overcomes the testator’s free will and causes the testator to make a gift he otherwise would not have made. SODA
S- testator was susceptibel to undue influence
O- Influencer had opportunity
D- Influencer had a disposition to exert undue influence
A- will appears to be a product of undue influence (giving 50% or more to influencer)
Most courts only invalidate portions that are infected with undue influence.
what is the slayer statute
A person who intentionally kills dead guy or who is convicted of abuse or neglect of dead guy, forfeits all benefits with respect to dead guy’s estate including intestate share, elective share etc.
Voluntary manslaughter counts. Accidental/involuntary manslaughter does not bar a gift.
Killing must be felonious and intentional
If the dead guy died w/o a will but gave the child a gift during their lifetime, should the gift be deducted from what the kid would inherit under laws of intestate succession
Cl- lifetime transfer is subtracted from child’s intestate share
Majority rule- lifetime transfer consider a gift, ignored when computing intestate share unless there is evidence to show decedent intended otherwise.
Define Trust, how trusts are created - start of trust essay.
A trust is a fiduciary relationship where a trustee manages/protects/invests certain property and iany income derived from it for the benefit of one or more beneficiaries.
To create a trust, the grantor must have INTENT to creat the trust. A trust is valid as long as it has a trustee, an ascertainable beneficiary and assets
Is a trust presumed revocable or irrevocable
In most jurisdictions, a trust is presumed REVOCABLE unless it expressly states it is irrevocable.
Traditionally, a trust was presumed irrevocable.
Elements to create a valid private trust
- Capacity
- INTENT to transfer ownership of property
- To trustee for benefit of one or more ascertainable beneficiaries (can be unborn kids)
- for a valid purpose
Consideration is NOT required.