Wills & Decedents' Estates

Question 1

Testate v. Intestate

Answer 1

Testate = died with will

Intestate = died without a will

Question 2

Issue / Descendants v. Ancestors

Answer 2

Issue = decedent’s lineal line (e.g. kids)

Ancestors = decedent’s parental line (e.g. parents, grandparents)

Question 3

Codicil

Answer 3

Supplement that either amends or revokes a will in whole or in part

Question 4

Under USDA an heir must be proven by

Answer 4

clear and convincing evidence that they survived the decedent by 120 hours

Question 5

Spousal Share: Spouse + shared descendants

Answer 5

Spouse takes entire estate

Question 6

Spousal Share: Spouse + parent

Answer 6

Spouse takes $300k + 75% of remainder of estate

Question 7

Spousal Share: Spouse + Shared descendants + Spouse’s kids

Answer 7

Spouse takes $225k + 50% of remaining estate

Question 8

Spousal share: Spouse + non-spousal kids

Answer 8

Spouse takes $150k + 50% of remaining estate

Question 9

Spousal Share: Just spouse

Answer 9

Spouse takes entire estate

Question 10

If a decedent dies without heirs, the property will

Answer 10

escheat to the state

Question 11

Child born within 280 days (or 300 under UPA) of husband’s death is

Answer 11

rebuttable presumed to be child of the husband

Question 12

Per Stirpes representation

Answer 12

Divide shares equally according to descendants lineal line

Divide shares into total number of children who survive or leave issue who survive, and then divide by representation

Question 13

Per Capita with representation

Answer 13

Divide property equally at first generation where a member survives

Note: if there are deceased members at that first generation, their shares drop down to surviving issue in the next generation

Member does NOT take a share if pre-deceased decedent and does not have any living issue

Question 14

Per capita at each generation

Answer 14

Divide property into equal shares at the first generation where there is a surviving member

However, instead of passing decedent’s share by representation, remaining shares are pooled for each successive generation (pooled shares are divided equally at next generation)

Question 15

3 Formal execution requirements for a will

Answer 15

(1) Signed writing
(2) Witnesses
(3) Testamentary Intent (present)

Question 16

Signature of a will

Answer 16

must be at the end in some states

in other states (and UPC) signature can be located anywhere (most important thing is intent) though any words after signature will not be given effect

Note: signature need not be formal, intent is most important thing

Question 17

Witnesses to a will

Answer 17

Will be signed in presence of 2 witnesses (UPC relaxes standard, witnesses must sign within a reasonable time)

Question 18

Line of Sight v. Conscious Presence

Answer 18

Old rule v. New rule

Must see / observe the other (same room) v. Must be aware the act is being performed

Question 19

Interested witness are deemed

Answer 19

not-competent under common law, interested witness’s interest is purged (will is otherwise valid)

Interested witness doctrine abolished in UPC (looks to undue influence and fraud instead)

Question 20

Importance of formalities in will execution

Answer 20

Common law: Strict compliance

Modern View (UPC): Substantial compliance (clear and convincing evidence of intent)

Question 21

Holographic wills are

Answer 21

informal and handwritten, need not be witnessed but must be signed

Some jurisdictions find any markings not in testator’s handwriting invalidate the will, while UPC requires only the material provisions be in the testator’s handwriting

Question 22

3 ways to revoke a will

Answer 22

(1) Subsequent instrument
(2) Physical Act (intended)
(3) Operation of Law

Question 23

Subsequent instruments of will revocation may be either

Answer 23

Express revocation or implied revocation (inconsistency with later, validly executed, document)

Question 24

A subsequent document is more likely to be a codicil and not a new will if

Answer 24

the original document has a residuary clause and the later one does not (if the later one DOES, more likely to be a new will)

Question 25

Lost Wills create

Answer 25

a rebuttable presumption that the testator revoked the will by physical act and the burden is on the proponent to show by clear and convincing evidence a will existed

Question 26

Duplicate v. Copies of wills

Answer 26

Duplicates are admissible, copies are NOT

Question 27

Operation of Law revocation of wills

Answer 27

Divorce (actual divorce, NOT simply filing for divorce) revokes all will provisions in favor of former spouse (unless there's intent not to) Subsequent marriage does not revoke a will

Question 28

Third Party revocation may be done

Answer 28

At testator's direction in testator's "conscious presence"

Question 29

Revocation of Codicil impact on will

Answer 29

revocation of a codicil revives will in its original form vs. revocation of a will revokes all attached codicils Codicil can cure an invalid will, and will republish a will as of the date of the codicil

Question 30

Revival by republication

Answer 30

Under UPC (majority rule) revoking subsequent will does NOT automatically revive earlier executed wills

Question 31

Dependent Relative Revocation (DRR) for wills provides

Answer 31

a safety valve for testators who revoke a will on the basis of a mistake of fact or law Invalidates mistaken revocation and revives earlier revoked will

Question 32

Incorporation by reference (for wills) requires

Answer 32

(1) document is in existence at time of execution (2) testator intends the document to be incorporated into the will (3) Document is described in will with sufficient certainty to permit identification

Question 33

Acts of independent significance are

Answer 33

acts or events that are unrelated to the execution of the will which allow for disposal of property E.g. "I leave my house to the person who is my brother's spouse at the time of my death" --> Getting married = act of independent significance

Question 34

Anti-lapse statutes require

Answer 34

(1) Protected relationship (2) pre-deceased devisee to be survived by issue If requirements are not met, common law rule applies and gift goes to the residuary (common law does NOT have anti-lapse)

Question 35

Special rule for class gifts and threat of lapsing under common law

Answer 35

If a member's gift lapses, the rest of the class share that member's gift (if there's an anti-lapse statute, that rule controls though)

Question 36

Abatement hierarchy

Answer 36

(1) Intestate property (first to be reduced) (2) Residuary gift (3) General gift (4) Specific gifts (most protected) Note: Demonstrative gifts are treated as specific gifts if possible, otherwise will be general

Question 37

Ademption by Extinction

Answer 37

Affects specific property Traditional rule: If devise is extinct devisee takes nothing (identity theory) Modern Rule: Intent theory (potential for replacement property to be given)

Question 38

Ademption by Satisfaction requires

Answer 38

(1) Testator must intend for gift to adeem and (2) Intent must be supported by a writing (applies to inter vivos transfers)

Question 39

Ambiguities and Mistakes in wills

Answer 39

Ambiguities: Latent and Patent (apparent on the fact of will) Extrinsic evidence relevant for latent not patent traditionally, though modern approach is to allow for both Courts are less forgiving when it comes to mistakes

Question 40

The right of the Surviving Spouse entitles the spouse to

Answer 40

(1) social security and pension plans (2) homestead exemption (3) personal property set asides (4) Family allowance for reasonable expenses (5) Elective Share (UPC - 50% of decedent's augmented estate)

Question 41

An elective share may be waived by a spouse by

Answer 41

(1) a writing after fair disclosure of its contents and (2) representation by independent legal counsel

Question 42

Advancements are

Answer 42

lifetime gift treated as satisfying part or all of child's intestate share Common law: any gift presumed advancement, burden on child to prove otherwise Modern trend: decedent must declare in contemporaneous writing or writing indicates that gift should be taken into account in computing division of property at death (default is to interpret it as an independent gift)

Question 43

Calculating advancement in Hotchpot Analysis

Answer 43

Add value back into intestate estate Divide resulting estate by # children Deduct child's advancement from intestate share

Question 44

Omitted children may be either

Answer 44

(1) intentional, or (2) unintentional (either takes intestate share or, if there was at least one other child at execution of will, take equal share from portion allocated to that child)

Question 45

The Slayer rule bars

Answer 45

inheritance if you murder decedent (UPC allows killer's issue to take) Note: Killing may be either intentional, felonious, negligent ACCIDENTAL killing may not bar inheritance

Question 46

Disclaimer of testamentary gift may be done by

Answer 46

(1) writing signed and filed with court, or (2) declared to person in charge of distributing assets Must be done within 9 months (or otherwise imposed timing) Note: If successfully disclaims, devises is treated as if pre-deceased decedent and gift either lapses or (if anti-lapse statute relevant) passes to living heir(s)

Question 47

Objections to a Will may be brought by

Answer 47

an interested party within 6 months after Will is admitted to probate

Question 48

To challenge a Will under general testamentary capacity, the contestant must show

Answer 48

the testator lacked the requisite mental capacity at the time of execution Testator must have had the ABILITY to know: (1) nature of act (that they were making a will) (2) nature and character of their property (what they owned) (3) Natural objects of their bounty (their family) (4) Plan of attempted disposition

Question 49

An insane delusion is

Answer 49

a challenge to a Will that the testator suffered from a false belief Objective test: Compare with rational person in testator's position Must be But-For cause

Question 50

Undue influence is

Answer 50

a challenge to a Will that a 3rd party coerced testator. Must prove (1) beneficiary received a substantial benefit under Will (2) Beneficiary had a confidential relationship, and (3) Testator had a weakened intellect at time of execution Note: If contestant meets this burden, creates a presumption which then shifts to 3rd party to prove by preponderance of the evidence there was no undue influence

Question 51

Fraud as a challenge to a Will requires

Answer 51

Misrepresentation at the time of conveyance (1) Intent to deceive and (2) Deception done for the purpose of influencing testamentary disposition May be either fraud in the inducement or execution Results in constructive-trust being created

Question 52

A forfeiture clause is

Answer 52

a no-contest clause which is unenforceable under the UPC if the beneficiary had probable cause to challenge (otherwise is OK)

Question 53

Filing for probate under the UPC must be

Answer 53

brought within 3 years of death after which there is a presumption of intestacy

Question 54

Non-claim status

Answer 54

bar creditors form making a claim on a decedent's estate after a certain amount of time has elapsed (personal representative must provide notice to creditors)

Question 55

Duties owed by Personal Representatives

Answer 55

Duty of loyalty and care (fiduciary duty) and NO self-dealing

Question 56

Types of Powers of Appointment

Answer 56

General (no conditions or restrictions on donee) Specific (donor may limit donee's power)

Question 57

To have a valid power of attorney it must be

Answer 57

(1) in writing, (2) signed, and (3) dated Note: Creates principal / agent relationship

Question 58

Types of power of attorney

Answer 58

(1) General (covers all affairs during period of incapacitation) (2) Special (limits authority to specific subject matter) (3) Advance Health Care directive (if principal becomes incapacitated) (3) may be either Living will (dictates care individual wants to be made) or Durable power (agent may stand in principal's shoes and make all required medical decisions)

Question 59

Under majority view, to prove undue influence a contestant must show

Answer 59

(1) Susceptibility (2) Motive (3) Opportunity (4) Causation

Question 60

In order for anti-lapse statutes to apply, the gift made must have been to

Answer 60

a relation of the testator, within a specific statutory degree, who predeceased the testator

Question 61

Ancestors and Remote Collateral is disposed of by either

Answer 61

Parentelic (UPC) approach or Degree of relationship approach Degree of Relationship is count number of degrees removed from decedent, whoever is closer wins Parentelic goes to parents, then decedents of parents, then maternal/paternal grandparents, then nearest relative and finally escheats to state

Question 62

Omitted spouses are

Answer 62

given a rebuttable presumption that omission was by mistake (unless intent is apparent)

Question 63

Validity of a will is governed by

Answer 63

Common law: the law of the state where the testator was domiciled at the time of his death. UPC: (1) where the will was executed, OR (2) the testator is domiciled/has a place of abode/or is a national at the time of death.

Question 64

The validity of a will may be conditioned on

Answer 64

a particular event or circumstance Note: court will balance whether it was purely motivation to create will OR intent for will to be valid only on the condition or circumstance

Question 65

The typical durable healthcare POA statute shields the agent

Answer 65

from civil liability for healthcare decisions that are made in good faith

Question 66

Consanguinity Method of heirship determines who inherits based off of

Answer 66

degree of relationship (# of steps away from the decedent - e.g. niece and uncle are both 3 degrees away)

Question 67

Parentelic Method of heirship allows inheritance by

Answer 67

descendants of decedent's parents but NOT grandparents (e.g. niece can inherit but uncle could not)

Question 68

Undue Influence? Prove by SODA

Answer 68

(1) testator was susceptible (2) the alleged influencer had the opportunity (3) the alleged influencer had the disposition to exert undo influence (4) the will appears to be a product of undo influence Note: Courts generally only invalidate portions of the will which are infected by undue influence

Question 69

Separation does not revoke the will provisions to a former spouse unless

Answer 69

there is a separation agreement

Question 70

Under the doctrine of Alteration, a testator cannot

Answer 70

increase a gift to a beneficiary by cancelling words in his will (as opposed to writing NEW words) but MAY be able to decrease the gift as long as alteration is made to existing language of the will

Question 71

Under the doctrine of integration, a Will consists of all pages that are

Answer 71

present at the time of execution and INTENDED to form part of the will

Question 72

Life insurance contracts almost never permit

Answer 72

a change of beneficiary by will

Question 73

If a testator has a child after executing a Will and does not execute a new Will, there is a presumption that

Answer 73

the omission of the child was accidental

Question 74

Most jurisdictions provide that an out-of-wedlock child can inherit from his natural father (through intestacy) if

Answer 74

(1) the father subsequently married the natural mother (2) the father held the child out as his own and either received the child into his home or provided support (3) paternity was proven by clear and convincing evidence after the father’s death, or (4) paternity was adjudicated during the lifetime of the father by a preponderance of the evidence

Question 75

Difference between CL and UPC concerning dividends

Answer 75

under CL, dividends distinct (not part of devise under will) under modern approach, not distinct and any dividends are passed along with bequeathed shares