Wills & Decedents' Estates Flashcards
Intestacy
Under the UPC, when does a surviving spouse take the entire estate?
- All decedent’s descendants are also of surviving spouse, and surviving spouse has no other descendants
- Decedent has surviving spouse but no descendants or parents
Intestacy
Under the UPC, when does a surviving spouse take $300,000 and 75% of the estate’s remainder?
If decedent has no surviving descendants, but has surviving parent
Intestacy
Under the UPC, when does a surviving spouse take $225,000 and 50% of the estate remainder?
All of descendant’s issue are also issue of surviving spouse, and surviving spouse has no other issue
Intestacy
Under the UPC, when does the surviving spouse take $150,000 and 50% of the estate remainder?
Decedent has issue not related to surviving spouse
Intestacy
How do community property states treat property acquired during the marriage?
It is jointly owned by both spouses unless it is a gift, inheritance, or devise given only to one spouse
Intestacy
How is community property distributed?
- Divided equally (surviving spouse owns 50%)
- If decedent dies intestate, his 50% of community property given to surviving spouse and his separate property distributed pursuant to general intestacy scheme
Intestacy
What is the common law surviving spouse rule?
Surviving spouse must survive descedent for any length of time
Intestacy
What does the Uniform Simultaneous Death Act (USDA) require?
- One spouse must survive other by 120 hours
- Property of each individual passes as though the other predeceased him if insufficient evidence of death order
Intestacy
Under common law, how is death defined?
Irreversible cessation of circulatory and respiratory systems
Intestacy
Under the modern standard, how is death defined?
Brain death
Intestacy
What is the burden of proof on the party whose claim depends on survivorship? (CL and USDA)
- CL = preponderance of evidence
- USDA = Clear and convincing
Intestacy
What is meant by issue?
All lineal descendants (children, grandchildren, great-grandchildren, etc.)
Intestacy
What is the presumption re: parentage for the child of a marriage?
Child is the natural child of parties to marriage
Intestacy
What is the presumption re: parentage for posthumously-born children?
Rebuttable presumption that child is of deceased husband if child born within 280 days of husband’s death
Intestacy
How are adopted children treated re: wills?
- Reference to “child” in will extends to adoptees
- Treated like biological children
- No inheritance rights between genetic parents and adopted child, except when stepparent adopts
Intestacy
Re: foster parents and stepparents, what is equitable adoption?
- Relationship started when child was minor
- Legal barrier to adoption established by clear and convincing evidence
OR
- Foster parent agreed with genetic parents to adopt and treat child as his own
Intestacy
What are the effects of equitable adoption?
- Child can inherit from equitable adoptive parent (not through)
- Equitable parents cannot inherit from or through child
- Inheritence rights between child and genetic parents unaffected
Intestacy
When can children born out of wedlock inherit from natural father?
Modern Trend
- Father subsequently married natural mother
- Father held child out as own and lived with/supported child
- Paternity proven by clear and convincing evidence after father’s death; OR
- Paternity adjudicated during father’s lifetime by a preponderance of the evidence
Intestacy
When can a child born out of wedlock inherit from natural father?
UPC
- Presumption of paternity when father holds child out as his own; child can bring action to est. paternity at any time
- If no presumption of paternity, child must bring action within three years of reaching age of majority
Intestacy
Is a posthumously conceived child recognized as a child of the deceased parent?
No
Intestacy
What are the three formulas for calculating inheritance shares?
- Per capita with representation
- Per stirpes
- Per capita at each generation
NOTE: Can disinherit heir through properly executed will
Intestacy
Per Capita with Representation (dividing shares)
- Property divided equally among first generation with at least one living member
- Non-living member of that generation’s share passes to that member’s living issue
- No property allocated to non-living member with non-living issue
Intestacy
Per Stirpes (dividing shares)
- Issue equally share portion deceased ancestor would have taken if living
- Estate first divided into total number of children of ancestor who survive or leave issue who survive
Intestacy
Per Capita at Each Generation (dividing shares)
UPC follows this!
Property divided into as many equal shares as there are living members of the nearest generation of issue and deceased members of that generation with living issue
Execution of Wills
What are the requirements of a valid will?
- Writing signed by Testator
- Two or more witnesses
- Testator has present testamentary intent
Execution of wills
When does a testator have capacity to sign his will?
- At least 18 years old
- Sound mind
Execution of wills
When can someone sign on a testator’s behalf?
Sign in testator’s presence and at his direction
Execution of wills
What are the tests for presence re: witness signatures?
- Line of sight (Traditional): Testator and Witnesses see (or have opportuinty to see) each other sign will
- Conscious-presence (Modern): Testator and witness must be aware through any sense that each is signing will
Execution of wills
What is the interested witness doctrine?
- CL: Witness receiving gift under will not competent as witness; will invalid unless two disinterested witnesses
- UPC: Abolished doctrine
Purge theory: denies gift to witness to extent of the amount in excess of witness’s intestate rights
Execution of wills
How closely must you comply with statutory formalities of executing a will?
- CL (Majority): strict compliance
- Modern (UPC/Minority): Substantial compliance – court will admit to probate if clear and convincing evidence decedent intended document to be a will
Execution of will
What is a holographic will?
An informal will in testator’s handwriting
Execution of will
What are the requirements of a holographic will?
- In testator’s handwriting
-Some states require entire will in testator’s handwriting
-UPC states only require material provisions in testator’s handwriting - Signed by testator
- Date
- Testamentory intent
-UPC allows extrinsic evidence to establish
Execution of wills
Are oral wills permitted?
Most states do not allow
Some permit for disposition of personal propert made in contemplation of imminent death
Execution of wills
What is a codicil?
Change or addition to will
* Same formalities as will
* Republishes will as of date codicil executed
Execution of wills
What other methods are there for transferring property outside of probate? (Will substitutes)
- Revocable trusts
- Pour-over wills: devise of testator property to trust created during his life
- Bank accounts and securities registered in beneficiary form
- POD clause in contrac
- Life insurance (policy proceeds not part of decedent’s estate unless payable to estate as beneficiary)
- Deeds (unconditionally delivered to grantee during decedent’s lifetime or to escrow agent with instructions to turn over to grantee when decedent dies)
- Totten trusts: type of revocable trust set up with bank (similar to POD account)
Revoking wills
3 ways to revoke a will
- Subsequent instrument
- Physical act
- Operation of law
