Wills and Trusts Flashcards
Intestate Succession
o Survived by spouse with no descendants – surviving spouse inherits entire estate
o Survived by spouse and descendants – surviving spouse inherits 1/2 or 1/3 of decedent’s estate, with remainder to surviving descendants
—UPC – if decedent’s descendants are also surviving spouse’s descendants, entire estate goes to surviving spouse
o Not survived by spouse – decedent’s surviving descendants inherit entire estate
o Not survived by spouse or descendants – decedent’s surviving parents inherit entire estate
Per capita with rep (modern per stirpes)
Divided into equal shares at first generation with living takers. Each living person takes a share and each share of a deceased person at that level passes to her descendants
- Majority of states
Per capita at each generation
Divided at first generation with living takers, but shares of deceased are combined and divided equally among takers at the next level
- UPC and growing number of states
Surviving descendants - Simultaneous death
One cannot take as an heir or beneficiary unless she survives decedent.
—Uniform Simultaneous Death Act – property passes as though the beneficiary/heir died before the decedent unless there is sufficient evidence decedent died first
—120-hour rule – beneficiary/heir is only treated as having survived decedent if there is clear evidence that she survived by 120 hours or more
Disclaimers
For fed. tax purposes, disclaimer must be in writing, irrevocable, and filed within nine months of decedent’s death. The interest then passes as if the disclaiming party predeceased decedent
Advancements
Inter vivos gift with the intent that it be applied against inheritance/wills
o At CL, gifts were automatically deducted from beneficiary/heir’s remaining interest.
o Now, gifts are only advancements if decedent declared an intent to make the gift an advancement in writing, OR the beneficiary/heir acknowledged the gift to be an advancement in writing
Wills
Operative upon death. A will must be at least:
(1) In writing
(2) Signed by testator – any mark intended to be a signature suffices. Presence and direction needed for proxy
(3) Signed by at least two competent W – must see testator sign the will + sign as witnesses in testator’s presence in a reasonable time
—-Licensed notary satisfies this requirement in many states
(4) Testator has capacity (18+ and mental capacity) and testamentary intent
Interested Witness to a Will
—-CL - Where a W stands to benefit under the will, the will is valid but gift to W is void unless there were two other disinterested Ws or the interested W would take if there was no will
—-UPC – presence of interested W does not invalidate a will or any part of it
Testator capacity
Testator has capacity (18+ and mental capacity) and testamentary intent
- Mental capacity – testator must understand the nature of his act, his property, the persons, and the disposition > Rebuttable presumption exists that testator had mental capacity
- Testamentary intent – testator must have present intent for the instrument to operate as his will
Attestation clause
Clause between testator and witness signatures in a will, which sets forth that all elements were satisfied > prima facie evidence of the facts recited
Holographic will
Handwritten, unwitnessed will. Replaces/revokes any prior valid will. Are required to:
o Be in testator’s writing
o Be signed
o Reflect testator’s intent to make a will
Codicil
An amendment, modification, or alteration to a previously executed will
o To be valid, a codicil must be executed with the same formalities required for the will itself
Construction of Wills
Ambiguity – extrinsic evidence is admissible to resolve ambiguity. Can be patent or hidden (cannot be carried out without further clarification)
Integration – occurs if:
o Physical presence — at the time of the will’s execution; and
o Intent of inclusion
– Can be established by W testimony and other extrinsic evidence
o Requirements are presumed where there is a physical connection/internal coherence
Acts of independent significance – > valid as long as the act or event has some independent significance (ex: identifying beneficiaries or property)
Incorporation by reference – where:
o Intent to incorporate
o Authenticated document — the will sufficiently describes doc so that it can be authenticated; and
o In existence upon will execution (BUT tangible personal property exception)
Mistake – permits the use of extrinsic evidence. C&C std to prove the testator’s intent.
Revocation
- by written instrument, as long as there is:
o Intent — present intent to revoke; and
o Formalities — made with the same formalities required for will execution - by physical act
- by partial marking - marks of cancellation on the will
o Where such marks are found on a will known to have last been in testator’s possession, a presumption is created that the marks were made by testator with the requisite intent to revoke
Revocation by operation of law
Marriage following execution of a will (omitted spouse) – no effect in most states, but under the UPC the omitted spouse will take a share of decedent’s estate equivalent to what their intestate share would be
- Not applicable if will makes clear that the omission was intentional
Divorce following execution of a will — revokes all bequests made in favor of the former spouse, unless will expressly provides otherwise.
Pretermitted children — where testator’s will does not provide for children born or adopted after the will was executed, most states give the pretermitted child a share of testator’s estate equal to what they would have received through intestate succession
