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Wills & Decedents' Estates Flashcards

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1
Q

Testate v. Intestate

A

Testate = died with will

Intestate = died without a will

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2
Q

Issue / Descendants v. Ancestors

A

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

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

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3
Q

Codicil

A

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

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4
Q

Under USDA an heir must be proven by

A

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

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5
Q

Spousal Share: Spouse + shared descendants

A

Spouse takes entire estate

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6
Q

Spousal Share: Spouse + parent

A

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

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7
Q

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

A

Spouse takes $225k + 50% of remaining estate

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8
Q

Spousal share: Spouse + non-spousal kids

A

Spouse takes $150k + 50% of remaining estate

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9
Q

Spousal Share: Just spouse

A

Spouse takes entire estate

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10
Q

If a decedent dies without heirs, the property will

A

escheat to the state

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11
Q

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

A

rebuttable presumed to be child of the husband

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12
Q

Per Stirpes representation

A

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

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13
Q

Per Capita with representation

A

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

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14
Q

Per capita at each generation

A

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)

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15
Q

3 Formal execution requirements for a will

A

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

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16
Q

Signature of a will

A

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

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17
Q

Witnesses to a will

A

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

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18
Q

Line of Sight v. Conscious Presence

A

Old rule v. New rule

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

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19
Q

Interested witness are deemed

A

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)

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20
Q

Importance of formalities in will execution

A

Common law: Strict compliance

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

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21
Q

Holographic wills are

A

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

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22
Q

3 ways to revoke a will

A

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

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23
Q

Subsequent instruments of will revocation may be either

A

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

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24
Q

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

A

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)

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25
Q

Lost Wills create

A

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

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26
Q

Duplicate v. Copies of wills

A

Duplicates are admissible, copies are NOT

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27
Q

Operation of Law revocation of wills

A

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

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28
Q

Third Party revocation may be done

A

At testator’s direction in testator’s “conscious presence”

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29
Q

Revocation of Codicil impact on will

A

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

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30
Q

Revival by republication

A

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

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31
Q

Dependent Relative Revocation (DRR) for wills provides

A

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

32
Q

Incorporation by reference (for wills) requires

A

(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

33
Q

Acts of independent significance are

A

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

34
Q

Anti-lapse statutes require

A

(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)

35
Q

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

A

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)

36
Q

Abatement hierarchy

A

(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

37
Q

Ademption by Extinction

A

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)

38
Q

Ademption by Satisfaction requires

A

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

(applies to inter vivos transfers)

39
Q

Ambiguities and Mistakes in wills

A

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

40
Q

The right of the Surviving Spouse entitles the spouse to

A

(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)

41
Q

An elective share may be waived by a spouse by

A

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

42
Q

Advancements are

A

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)

43
Q

Calculating advancement in Hotchpot Analysis

A

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

44
Q

Omitted children may be either

A

(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)

45
Q

The Slayer rule bars

A

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

46
Q

Disclaimer of testamentary gift may be done by

A

(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)

47
Q

Objections to a Will may be brought by

A

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

48
Q

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

A

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

49
Q

An insane delusion is

A

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

50
Q

Undue influence is

A

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

51
Q

Fraud as a challenge to a Will requires

A

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

52
Q

A forfeiture clause is

A

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

53
Q

Filing for probate under the UPC must be

A

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

54
Q

Non-claim status

A

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)

55
Q

Duties owed by Personal Representatives

A

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

56
Q

Types of Powers of Appointment

A

General (no conditions or restrictions on donee)

Specific (donor may limit donee’s power)

57
Q

To have a valid power of attorney it must be

A

(1) in writing,
(2) signed, and
(3) dated

Note: Creates principal / agent relationship

58
Q

Types of power of attorney

A

(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)

59
Q

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

A

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

60
Q

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

A

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

61
Q

Ancestors and Remote Collateral is disposed of by either

A

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

62
Q

Omitted spouses are

A

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

63
Q

Validity of a will is governed by

A

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.

64
Q

The validity of a will may be conditioned on

A

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

65
Q

The typical durable healthcare POA statute shields the agent

A

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

66
Q

Consanguinity Method of heirship determines who inherits based off of

A

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

67
Q

Parentelic Method of heirship allows inheritance by

A

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

68
Q

Undue Influence? Prove by SODA

A

(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

69
Q

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

A

there is a separation agreement

70
Q

Under the doctrine of Alteration, a testator cannot

A

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

71
Q

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

A

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

72
Q

Life insurance contracts almost never permit

A

a change of beneficiary by will

73
Q

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

A

the omission of the child was accidental

74
Q

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

A

(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

75
Q

Difference between CL and UPC concerning dividends

A

under CL, dividends distinct (not part of devise under will)

under modern approach, not distinct and any dividends are passed along with bequeathed shares

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