Wills & Decedent Estates Flashcards
How does the UPC divide a decedent’s estate when the decedent has a surviving spouse and issue unrelated to the surviving spouse?
Spouse takes $150k + 50% of remainder of estate
How does the UPC divide a decedent’s estate when the decedent has a surviving spouse, all of the decedent’s issue are also issue of the spouse, but the spouse has other issue as well?
Spouse takes $225,000 + 50% of remainder of estate
How does the UPC divide a decedent’s estate when the decedent has a surviving spouse and no surviving descendants or parents?
The spouse takes the entire estate
How does the UPC divide a decedent’s estate when the decedent has a surviving spouse, and the spouse’s only descendants are also the decedent’s descendants?
The spouse takes the entire estate
How does the UPC divide a decedent’s estate when the decedent has no issue, but does have a surviving spouse and surviving parent?
The spouse takes $300k and 75% of the remainder of the estate
What is required to be a surviving spouse?
The person must be legally married to the decedent (unless the putative spouse doctrine applies) and survive the decedent.
At common law, the spouse only needed to survive the decedent for any length of time, but under the USDA, the spouse must survive the decedent by 120 hours.
How does property pass when there is insufficient evidence of the order of death?
Under the USDA, the property of each individual passes as though the other individual pre-deceased him.
How is death determined?
Common law: A person dies when there is irreversible cessation of circulatory and respiratory functions.
Modern standard: A person dies when they are brain dead.
What is the burden of proof for proving survivorship, and on whom is the burden placed?
At common law, the standard was preponderance of the evidence. Under the USDA, the standard is clear and convincing evidence.
The burden is on the party whose claim depends on survivorship.
What is required for a valid will?
A valid will requires the testator have (1) capacity, (2) present testamentary intent, and (3) valid compliance with the applicable formalities.
What is testamentary capacity?
A testator must be at least 18 and of sound mind. The testator must also know and understand (1) the nature and extent of her property, (2) the disposition that she is making of that property, (3) the natural object of her bounty and her relationship to the beneficiaries, and (4) how these things affect a testamentary plan.
What will negate testamentary intent?
Undue influence, fraud, non-occurrence of a condition under a conditional will, mistake
What is dependent relative revocation?
Under this doctrine, if a testator purports to revoke their will in whole or in part, based on a mistaken belief of law or fact, and if it can be shown that the testator would not have revoked had they known of the mistaken belief, the revocation is presumptively ineffective.
How may a will be revoked?
The general rule is that any testator with capacity may revoke her will in whole or in part by destruction with intent or with a subsequent will or codicil.
How can a will incorporate an unattested document by reference?
A will may refer to an unattested written document and incorporate its terms into the will so long as that document (1) existed at the time the will was executed, (2) the document is identified with sufficient certainty, and (3) it was the testator’s intent to incorporate its terms into the will. The provisions of the document are given the same effect as if they were set forth in the will itself.
*minor UPC exception: the document need not have existed at the time of execution if it only applies to personal property.
