Wills and Trusts

Question 1

What is in a decedent’s estate?

Answer 1

A decedent’s estate consists of all property the decedent owns at death, including any real, personal, or intangible property.

Question 2

What is a Probate Estate?

Answer 2

The probate estate consists of all estate property to be disposed of by will or intestacy.

Question 3

What is an Intestate Estate?

Answer 3

The intestate estate, in turn, is that portion of the probate estate that isn’t disposed of by will. The intestate estate will pass to the decedent’s surviving heirs at law

Question 4

What can cause an intestate estate?

Answer 4

the decedent didn’t have a will,

the will was partially or totally invalid, or 

the will omitted certain property from its terms.

Question 5

What is an heir?

Answer 5

is one entitled to take under the law of intestacy, usually because the person bears a close enough family relationship to the decedent, A surviving heir is an heir who meets the jurisdiction’s survivorship requirement. most jurisdictions have statutes providing that the heir must be shown to have outlived the decedent by a specified minimum period, or else be deemed to have predeceased the decedent. In jurisdictions following the USDA, the survivorship requirement is one hundred twenty hours, or five full days

Question 6

May you disclaim an intestate estate?

Answer 6

Yes, An heir may disclaim all or part of his share of the intestate estate. As to the disclaimed portion, the heir will be deemed to have predeceased the decedent.

Question 7

What is a Slayer Statute?

Answer 7

Many jurisdictions have so-called slayer statutes providing that an heir will be deemed to have predeceased the decedent if he is either:

criminally convicted of feloniously and intentionally killing the decedent, or 

found to have done so by a preponderance of the evidence.

Even in jurisdictions without slayer statutes, courts generally bar the heir from inheriting in these situations, relying on equitable principles.

a potential heir must kill the decedent, not another person, to be barred from inheriting

Question 8

What is the Surviving Spouse’s share?

Answer 8

No surviving parents: spouse gets entire estate
At least 1 surviving parents but no descendants: first 300k and 3/4 the remainder, surviving parents get equally shares of the the remainder
Special case: the decedent and the surviving spouse have the same surviving descendants,

the decedent has surviving descendants by no one except the surviving spouse, and

the surviving spouse has surviving descendants by no one except the decedent.

If the decedent has surviving descendants by no one except the surviving spouse, but the surviving spouse has surviving descendants by anyone other than the decedent, then the surviving spouse takes the first $225,000, plus one-half the remaining balance. If the decedent has surviving descendants by anyone other than the surviving spouse, then the surviving spouse takes the first $150,000, plus one-half the remaining balance.

Question 9

Descendant’s Share

Answer 9

If the decedent has any surviving descendants, then their share is typically whatever is left, if anything, after deducting the surviving spouse’s share. If there’s no surviving spouse, then the surviving descendants will take the entire intestate estate. children take in equal shares, to the exclusion of more remote descendants such as grandchildren. But if a child of the decedent has descendants who survive the decedent, then those more remote descendants may take by representation.

Question 10

What are the two forms of taking by representation?

Answer 10

Per Stirpes and per capita at each generation

Question 11

Per Stirpes

Answer 11

the surviving descendants’ portion is divided into one equal share for:

each surviving child of the decedent, and

each deceased child of the decedent with at least one surviving descendant.

Each surviving child of the decedent takes his or her share. Each share allocated to a deceased child of the decedent is further divided in the same manner, until the descendants’ intestate share is fully allocated

surviving spouse -> divide remainder by descendants -> each deceased descendants share is split amongst that descendants descendants

Question 12

Per Capita at Each Generation

Answer 12

division of the descendants’ portion starts at what’s called the prime generation. The prime generation is the first generation of descendants with at least one surviving member. Beginning at the prime generation, the descendants’ portion is divided into one equal share for:

each surviving descendant in the prime generation, and

each deceased member of the prime generation who has at least one surviving descendant.

Each surviving member of the prime generation gets one equal share. The shares corresponding to any deceased members of the prime generation are combined into one share and then allocated in later generations in like manner, until the descendants’ intestate portion is fully allocated.

surviving spouse -> divide remainder by the descendants -> pool any deceased descendants share and equally divide amongst the next generation

Question 13

What is Probate?

Answer 13

Disposition by will occurs through a legal process called probate, which is usually administered through specialized courts called probate courts.

Question 14

How does a will gain valid effect?

Answer 14

For a will to have any dispositive effect within a jurisdiction, it must be declared valid and admitted to probate under that jurisdiction’s laws. Once the will is admitted to probate in the jurisdiction, the jurisdiction’s probate courts will typically acquire either primary or ancillary probate jurisdiction.

Question 15

What is Primary Jurisdiction?

Answer 15

Primary jurisdiction is jurisdiction over the estate at large, which generally vests in the probate courts of the jurisdiction where the decedent was domiciled at death. Once a will is admitted to probate in this jurisdiction, the probate court will usually appoint a fiduciary known as a personal representative to administer the estate.

Question 16

What is Ancillary Jurisdiction?

Answer 16

Ancillary jurisdiction is jurisdiction over the estate for a specific, limited purpose, usually to determine the will’s effect on property located in the jurisdiction if the testator was domiciled elsewhere at death. Alternatively, many jurisdictions have special statutes under which a will executed elsewhere may be received and administered within the jurisdiction.

Question 17

How does the Court determine which law governs the will?

Answer 17

majority doctrine, to the extent the will purports to dispose of personal property, the law of the decedent’s domicile at death governs the will’s validity, interpretation, and effect, regardless of where the personal property is located. But to the extent the will purports to dispose of real property, the law of the jurisdiction where the real property is located governs the will’s validity, interpretation, and effect.

Question 18

What happens if a will is determined to be invalid?

Answer 18

To the extent the will is invalid in the domicile, all personal property anywhere and all real property in the domicile pass by intestacy. if the will is valid in the foreign jurisdiction, then the real property passes according to the will, even if the will is invalid in the domicile. Conversely, if the will is invalid in the foreign jurisdiction, then the real property passes by intestacy as the foreign jurisdiction’s law provides, even if the will is valid in the domicile.

Question 19

What are the requirements for a Attested Will?

Answer 19

in writing;

signed; and

witnessed by the required number of people, two in most jurisdictions.

Question 20

Harmless Error Rule

Answer 20

some deficiencies in execution, particularly in attestation, can be overlooked if it’s proven by clear and convincing evidence that the testator intended to adopt the document as her will. The lack of a writing or a signature, though, typically can’t be excused under this rule.

Question 21

Line of Sight Test

Answer 21

the individual must sign the document within the testator’s field of vision, or line of sight, unless the testator is blind.

Question 22

Conscious Presence test

Answer 22

the presence requirement is satisfied if the person signs the document in the testator’s conscious presence, regardless of whether the person acts within the testator’s field of vision or line of sight.

Question 23

What is a competent witness?

Answer 23

he competence requirement is exceedingly lenient. Generally, it demands only that the witness be able to observe, recall, and communicate the pertinent facts surrounding the will’s execution

Question 24

What happens when an interested party is a witness?

Answer 24

But the modern majority rule is that an attested will is valid, even if it relies on the signatures of interested witnesses. Unless an exception applies, though, an interested witness will forfeit all benefits under the will. A partial exception applies to interested witnesses who would take by intestacy if the will were invalid. In this case, the interested witness may take under the will, but only up to the value of what he would receive if the testator died without a will.

And in virtually every jurisdiction, an interested witness forfeits no benefit under the will if there are enough disinterested witnesses to validate the will without considering the interested witness.

Question 25

How are unattested wills admitted to probate?

Answer 25

demonstrates testamentary intent, or intent for the document to serve as the testator’s will;
is entirely handwritten by the testator; and
is signed and dated by the testator.

As for the rule that a holographic will must be entirely in the testator’s handwriting, courts don’t typically interpret this requirement literally. Namely, if part of the will is in the testator’s handwriting and part of it isn’t, courts will disregard the portions that aren’t in the testator’s handwriting unless they meet the requirements of an attested will.

Under the Uniform Probate Code, or UPC, a holographic will is valid if the signature and material portions are in the testator’s handwriting. The material portions, of course, are those disposing of the testator’s property and identifying the recipients.

Question 26

May a holographic will be modified?

Answer 26

once the testator has written and signed a holographic will, he can make legally effective handwritten changes to the will without signing it again, provided the changes are in the testator’s handwriting, they pass muster, and the will remains valid. a testator may normally make handwritten changes to an attested will, provided he separately signs and, in some states, dates the changes. The handwritten changes are then treated as a valid holographic codicil amending the attested will.

Question 27

What happens to portions of a will under the signature?

Answer 27

under traditional doctrine, the will must be signed by the testator’s own hand. Thus, the will is invalid if anyone else signs the will, even if that person does so on the testator’s behalf, under the testator’s direction, and in the testator’s presence. Also, some courts require that the signature appear at the end of the will. In these states, courts disregard anything following the signature.

Question 28

Can you make handwritten changes to a will?

Answer 28

In states acknowledging unattested holographic wills, a testator may normally make handwritten changes to an attested will, provided he separately signs and, in some states, dates the changes. The handwritten changes are then treated as a valid holographic codicil amending the attested will.

Question 29

testamentary-intent

Answer 29

means that the testator must intend for this particular document to effectuate a legally binding transfer of property upon his death.

Question 30

What are 3 circumstances that allow extrinsic evidence?

Answer 30

1) courts consider extrinsic evidence to establish whether the will itself is valid, (capacity or intent)
2) most courts consider extrinsic evidence to determine whether a will provision is ambiguous. An ambiguous provision is reasonably susceptible to multiple interpretations.
3) courts consider extrinsic evidence to resolve ambiguities in the will. Ambiguities come in two flavors, patent and latent. Virtually any court will consider extrinsic evidence to resolve a patent ambiguity. Most courts will also consider extrinsic evidence to resolve a latent ambiguity, though some won’t.

Question 31

Patent Ambiguity

Answer 31

A patent ambiguity appears on the will’s face, often due to inconsistent or unclear language

Question 32

Latent Ambiguity

Answer 32

An ambiguity is latent if the will, on its face, appears clear, certain, and internally consistent but the surrounding context shows that the will is ambiguous.

Question 33

How can a will be reformed due to mistake?

Answer 33

reformation requires that two things be proven by clear and convincing evidence. First, a factual or legal mistake affected the will’s terms. The mistake can be one of expression or one of inducement. A mistake in expression can be a term that inaccurately states the testator’s intent, a term the testator meant to omit but somehow wound up in the will, or a term the testator meant to include but somehow got left out.

If there’s a mistake in inducement, then the will accurately states the testator’s intent but that intent was predicated on a mistake of fact or law. The mistake needn’t originate with the testator. Rather, the testator can reasonably rely on mistaken advice from someone else, like an attorney.

Second, reformation requires clear and convincing evidence of just what the testator’s intent was or, in the case of a mistake in inducement, would’ve been if not for the mistake. The relevant time to ascertain the testator’s intent, of course, is when the will was executed.

Question 34

What are the 2 theories of will reformation?

Answer 34

Under the doctrine of reformation, the relevant time to determine the testator’s intent is the time of the will’s execution. Here, at the time the investment banker executed the will, it accurately reflected his intent to leave his entire estate to the sister. Only later, after the falling out, did the investment banker form the intent to leave his estate to the brother instead. Hence, the doctrine of reformation would not admit evidence of the investment banker’s comments to reform the will to leave everything to the brother.

Some jurisdictions follow the so-called plain-meaning rule. This rule flatly bars extrinsic evidence to vary or reform the terms of an unambiguous will, regardless of any mistake. Here, the investment banker’s will unambiguously leaves everything to the sister. Accordingly, the plain-meaning rule would bar evidence of the investment banker’s comments to reform the will to leave everything to the brother.

Question 35

What is a codicil?

Answer 35

A codicil is a testamentary document that amends or supplements a previous, valid will. To have any testamentary effect, a codicil must, of course, satisfy the same formal requirements as a valid will. The previous will is revoked to the extent that its dispositive provisions are inconsistent with those in the codicil. In general, a codicil should be construed consistently with the will it modifies, except to the extent needed to effectuate the testator’s intent in modifying or supplementing the prior will. The codicil should also, of course, refer to the will it modifies.

Question 36

incorporation by reference

Answer 36

A valid will may incorporate the contents of an extrinsic document, even if that document doesn’t meet the requisites of a valid will.
the document must predate the will. That is, the document must already exist when the will is executed.
Second, the extrinsic document must be a written document. Purely oral statements can’t be incorporated by reference.
Third, the will itself must manifest the testator’s intent to incorporate the extrinsic document.
Fourth, and relatedly, the will must describe the document in enough detail to permit one to identify it. The standard here is reasonable certainty.

Question 37

republication by codicil

Answer 37

Under the doctrine of republication by codicil, a will is deemed reexecuted and republished entirely as of the date of the most recent valid codicil modifying it, unless that result would defeat the testator’s intent.

Question 38

Revocation by Testamentary Instrument

Answer 38

Revocation by testamentary instrument can be express or implicit. Express revocation means that a later testamentary instrument explicitly revokes a prior one by the same testator. Implicit revocation arises if the testator executes a later, valid testamentary instrument whose dispositive provisions are inconsistent with those of a prior one by the same testator.

Question 39

revocatory act

Answer 39

A revocatory act is some action that the testator performs on the will with intent to revoke it. The testator must perform the act on the original will, not a mere copy.

Question 40

what happens when a will cant be found?

Answer 40

Special rules apply if the will was last in the testator’s possession before her death, but after her death, it can’t be found. Here, courts presume that the testator destroyed the will, intending to revoke it. The presumption is rebuttable, though. The will’s proponent can get the will admitted to probate by proving that the testator didn’t revoke it, establishing its contents, and proving due execution.

Question 41

what happens if circumstances around the will change?

Answer 41

Sometimes, a will is revoked by operation of law due to changes in the testator’s family circumstances. In a handful of states, a will is revoked if the testator gets married after executing the will, unless the will was made in contemplation of a later marriage. if a testator gets divorced after executing a will, any gift, fiduciary appointment, or power of appointment to the former spouse in the will is revoked. Here, the former spouse will be treated as though he predeceased the testator.

Question 42

Revival

Answer 42

A will, once revoked, can be revived. Revival reinstates the revoked will. In any jurisdiction, a testator can revive a revoked will by later testamentary instrument. The testator may simply reexecute the revoked will or execute a valid codicil amending the prior will and indicating the testator’s intent to revive it.

Question 43

Explain the 2 cases for DRR and the implicit assumption that motivates it

Answer 43

Finally, let’s discuss dependent relative revocation, or DRR. If DRR applies, then a will remains valid despite the testator’s efforts to revoke it, even if those efforts would normally be legally effective to revoke the will. DRR applies in one of two cases.

First, the testator attempted to revoke the will to effectuate an alternative scheme of distribution to the one set forth in the will, yet the scheme proves invalid.

Second, the testator attempted to revoke the will based on a false legal assumption or a false belief about objective fact. The mistake must be stated in the revoking instrument, if any, or proven by clear and convincing evidence.

DRR rests on the assumption that the testator would rather have the revoked will survive than to die intestate. So, if the circumstances show that the testator would rather die intestate than have the will survive, DRR won’t apply.

Question 44

What is testamentary capacity

Answer 44

For a will to be valid, the testator must have testamentary capacity when the will is executed. Testamentary capacity, in turn, requires that the testator be:

at least 18 years old or, if younger, an emancipated minor, and

of sound mind.

Question 45

sound mind

Answer 45

he requirement of a sound mind is fairly narrow and lenient. To be of sound mind, for purposes of testamentary capacity, the testator must be able to understand, at least in a very general way:

the nature and extent of her property, so that she can at least index the major categories of her property;

the natural objects of her bounty, generally the testator's close family members;

the will's testamentary significance, or the fact that the will's purpose is disposing of the testator's property upon her death; and

how the will would dispose of her property.

Question 46

Undue Influence

Answer 46

undue influence has four basic elements:

the testator was susceptible to undue influence;

the wrongdoer had the opportunity to exert undue influence;

the wrongdoer had a disposition, or motive, to exert undue influence; and

the will features an unnatural disposition of property, which appears to be the result of undue influence.

But there’s another way to establish undue influence. Most courts will rebuttably presume that the four elements of undue influence are satisfied if:

the testator and the influencer share a confidential relationship,

suspicious circumstances surround the will's execution, and

the will makes an unnatural disposition of property without a reasonable basis.

Question 47

what are the 3 types of confidential relationships?

Answer 47

For purposes of undue influence, there are three general types of confidential relationships. They are fiduciary, reliant, and dominant-subservient.

Question 48

what is a will contest?

Answer 48

A will contest is a proceeding in which someone with standing challenges a will’s validity in probate court. The challenger may contest the will at large or just one or two discrete gifts. To the extent the will contest succeeds, the will is void. Any property that was to be disposed of in the voided provisions then passes into the residue or, if there’s no valid residue, into intestacy.

Question 49

what are some grounds for will contest

Answer 49

A common basis for will contests is lack of testamentary capacity. Another frequent ground for will contests is some defect in testamentary capacity, such as duress, undue influence, fraud, or an insane delusion.

Question 50

insane delusion

Answer 50

An insane delusion means that the testator, against all rational evidence, espouses a false belief. The false belief must materially affect or influence at least one disposition in the will. Only those provisions affected by the delusion are void, unless perhaps the delusion influenced the will at large.

Question 51

standing to contest a will

Answer 51

To challenge a will, someone must have a pecuniary or beneficial interest in the estate. That is, the challenger must stand to gain something of monetary worth if the relevant will provision is voided, or else to lose something of monetary worth if the provision remains intact.

Question 52

can creditors contest a will?

Answer 52

creditors don’t normally have standing to contest a will at common law. Creditors generally get paid ahead of donees under the will. Thus, the will’s validity or invalidity won’t usually affect creditors’ distribution from the estate.

Question 53

Who has standing under the upc?

Answer 53

anyone with a property right in or claim against the estate could, depending on the circumstances, have standing.

Question 54

No-Contest Clause

Answer 54

A no-contest clause purports to rescind or nullify a gift to, or fiduciary appointment of, anyone who contests the will. In most states and under the UPC, a no-contest clause is enforceable unless the challenger has probable cause to contest the will. Probable cause exists if, at the time of the will contest, a reasonable person fully aware of all material facts would conclude that the will contest has a substantial likelihood of success.

Question 55

Class Gift

Answer 55

a class gift boasts three defining characteristics. One, the gift is slated for a group of people. Two, each member of the group takes a fraction of the whole. Three, both the beneficiaries’ identities and their fractional shares of the overall gift can change over time. Existing members can leave the group, as by dying, which increases the other members’ fractional shares. Conversely, new members can enter the class, as by being born into it, which dilutes the other members’ shares.

Question 56

how to create a class gift

Answer 56

In most states, a donor creates a class gift by using a term of relationship, like children, or a group label, such as the players on the local football team. A class gift mustn’t be confused with a gift to multiple, specific recipients whose identities and shares are fixed. This sort of gift isn’t a class gift.

Question 57

when does a class close?

Answer 57

Under the rule of convenience, no new members can enter a class once the first class member becomes eligible to take. The class is said to close to new members at that time. For gifts by will, the class normally closes on the testator’s death. As to future interests, the class normally closes when the interest ripens into possession. In the case of a gift to class members who reach a certain age, the class usually closes once the first class member attains the required age after the instrument creating the gift becomes effective. Any existing class members at that time will take once they reach the required age, but no new members can enter the class going forward.

Question 58

single generation gift

Answer 58

A class gift might be a single-generation gift or a multiple-generation gift. A single-generation class gift is one that, by its terms, can span only one generation of lineal descendants. Common examples include gifts to brothers, sisters, grandchildren, and so on.

Question 59

multiple generation gift

Answer 59

A multiple-generation class gift can vest in members across several generations, for instance, gifts to someone’s issue, relatives, descendants, and similar terms.