Wills COPY

Question 1

In intestacy, what is the spouses share if the decedent is survived by: spouse and shared descendants?

Answer 1

Spouse takes entire estate

Question 2

In intestacy, what is the spouses share if the decedent is survived by: Spouse + parents but no descendants

Answer 2

Spouse takes 300k and 75% of the remaining estate

Question 3

In intestacy, what is the spouses share if the decedent is survived by: Spouse + shared descendants + spouse’s nonshared kids

Answer 3

Fixed amount and one half of any excess.

Under UPC, $100,000 plus 50% of excess.

Question 4

In intestacy, what is the spouses share if the decedent is survived by: Spouse + non-shared kids

Answer 4

Fixed amount and fraction of the excess (1/2).

Question 5

In intestacy, what is the spouses share if the decedent is survived by: Just spouse

Answer 5

Spouse takes everything.

Question 6

Per Stirpes is when

Answer 6

Surviving child stands in place of deceased parent. Treats equal relatives unequally.

So A1 gets 1/3, C1 and C2 get 1/6 each, and D1, D2, and D3 get 1/9 each.

Question 7

Per capita with representation is when?

Answer 7

The estate is divided at the first level with surviving members and the shares of those who are deceased in that generation drop down to the surviving issue at the next generation. If deceased member with no issue, they get no share.

One share for each line of descent.

Question 8

Per capita at each generation is?

Answer 8

UPC and modern trend.

One share for each line of descent, but each generation level takes equally.

So if there’s A, A1, B, C1, C2, D1, D2, and D3, A and B each get 1/4 and C1, C2, D1, D2, and D3 each get 1/10 (because 1/2 x 1/5).

So if there’s A1, C1, C2, D1, D2, and D3, each grandchild takes 1/6.

Question 9

Can you disinherit a child?

Answer 9

Yes in a properly executed will.

Question 10

What is required to execute a will?

Answer 10

Capacity (over 18), signed writing, witnesses, and testamentary intent.

Question 11

What types of presence is acceptable for witneses?

Answer 11

Most require line of sight presence, others allow conscious presence.

Question 12

What is the purge theory?

Answer 12

A witness with an interest in the will will have his interest purged in excess of what the witness would take by intestate succession. UPC no longer follows the purge theory.

Question 13

What happens if there is a failure to satisfy formalities of will execution?

Answer 13

At common law the will is invalid, but modern view allows substantial compliance, i.e. if there is clear and convincing evidence that the document was intended to be a will it will be admitted to probate.

Question 14

What is a holographic will?

Answer 14

An informal, unwitnessed will. Must be signed to be valid. At common law any non testator marking invalidate, at UPC the material provisions must be written by the testator. There must be intent!

Question 15

How can a will be revoked?

Answer 15

Any time until death by subsequent instruments that are inconsistent or expressly revoke the prior will, physical acts with intent to revoke, or operation of law (divorce revokes provisions in favor of former spouse).

Question 16

How does revoking a codicil affect a will?

Answer 16

It revokes only the codicil and revives the original will.

Question 17

What is dependent relative revocation?

Answer 17

If a will is revoked on the basis of mistake in law or fact, the DRR will revive the revoked will when undoing revocation comes closer to T’s intent.

Ineffective gift larger –> apply DRR
Ineffective gift smaller –> decline to apply DRR

Question 18

How are wills constructed?

Answer 18

Plain meaning unless the will states otherwise.

Question 19

A will can incorporate a document if?

Answer 19

The document exists at the time of execution, the testator intends the document to be incorporated, and the document is described sufficiently to identify it.

Question 20

What is an anti-lapse statute?

Answer 20

It prevents a gift from lapsing if there is a family relationship and the intended recipient is survived by issue.

Question 21

What is the order for abatement?

Answer 21

Residual gift, General bequests to others, general bequests to family, specific bequests to others, specific bequests to family, specific bequests to spouses.

Question 22

Ademption has what two rules?

Answer 22

Traditionally, the devise is extinct, under the UPC however, the testators intent is considered and the beneficiary may take replacement property.

Question 23

What is a surviving spouses elective share?

Answer 23

UPC maximum elective share is 1/2 plus surviving spouse’s right to homestead, exempt property, and family allowance.

Elective share vests at a rate of 3% a year until it reaches a maximum of 50% (after 15 years). So a marriage of 10 years would result in an elective share right of 30%.

Question 24

What are the views on lifetime gifts to children?

Answer 24

Common law viewed them as satisfying a child’s intestate share, the UPC views them as satisfying intestate share only if that was declared in a writing.

Question 25

If a child is unintentionally disinherited, what do they take?

Answer 25

If no other children, their intestate share. If other children, their share of that inheritance.

Question 26

Undue influence requires:

Answer 26

Showing the beneficiary received a substantial benefit under the will, had a confidential relationship to the T and an opportunity to exert undue influence, and that the T had a weakened intellect at time of execution.

Question 27

A no contest clause is?

Answer 27

As a matter of public policy, in most states a no-contest clause will not be enforced against someone as long as he has probable cause for his claim.