Wills & Decedents' Estates Flashcards
Testate v. Intestate
Testate = died with will
Intestate = died without a will
Issue / Descendants v. Ancestors
Issue = decedent’s lineal line (e.g. kids)
Ancestors = decedent’s parental line (e.g. parents, grandparents)
Codicil
Supplement that either amends or revokes a will in whole or in part
Under USDA an heir must be proven by
clear and convincing evidence that they survived the decedent by 120 hours
Spousal Share: Spouse + shared descendants
Spouse takes entire estate
Spousal Share: Spouse + parent
Spouse takes $300k + 75% of remainder of estate
Spousal Share: Spouse + Shared descendants + Spouse’s kids
Spouse takes $225k + 50% of remaining estate
Spousal share: Spouse + non-spousal kids
Spouse takes $150k + 50% of remaining estate
Spousal Share: Just spouse
Spouse takes entire estate
If a decedent dies without heirs, the property will
escheat to the state
Child born within 280 days (or 300 under UPA) of husband’s death is
rebuttable presumed to be child of the husband
Per Stirpes representation
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
Per Capita with representation
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
Per capita at each generation
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)
3 Formal execution requirements for a will
(1) Signed writing
(2) Witnesses
(3) Testamentary Intent (present)
Signature of a will
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
Witnesses to a will
Will be signed in presence of 2 witnesses (UPC relaxes standard, witnesses must sign within a reasonable time)
Line of Sight v. Conscious Presence
Old rule v. New rule
Must see / observe the other (same room) v. Must be aware the act is being performed
Interested witness are deemed
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)
Importance of formalities in will execution
Common law: Strict compliance
Modern View (UPC): Substantial compliance (clear and convincing evidence of intent)
Holographic wills are
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
3 ways to revoke a will
(1) Subsequent instrument
(2) Physical Act (intended)
(3) Operation of Law
Subsequent instruments of will revocation may be either
Express revocation or implied revocation (inconsistency with later, validly executed, document)
A subsequent document is more likely to be a codicil and not a new will if
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)
Lost Wills create
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
Duplicate v. Copies of wills
Duplicates are admissible, copies are NOT
Operation of Law revocation of wills
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
Third Party revocation may be done
At testator’s direction in testator’s “conscious presence”
Revocation of Codicil impact on will
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
Revival by republication
Under UPC (majority rule) revoking subsequent will does NOT automatically revive earlier executed wills
Dependent Relative Revocation (DRR) for wills provides
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
Incorporation by reference (for wills) requires
(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
Acts of independent significance are
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
Anti-lapse statutes require
(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)
Special rule for class gifts and threat of lapsing under common law
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)
Abatement hierarchy
(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
Ademption by Extinction
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)
Ademption by Satisfaction requires
(1) Testator must intend for gift to adeem and
(2) Intent must be supported by a writing
(applies to inter vivos transfers)
Ambiguities and Mistakes in wills
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
The right of the Surviving Spouse entitles the spouse to
(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)
An elective share may be waived by a spouse by
(1) a writing after fair disclosure of its contents and
(2) representation by independent legal counsel
Advancements are
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)
Calculating advancement in Hotchpot Analysis
Add value back into intestate estate
Divide resulting estate by # children
Deduct child’s advancement from intestate share
Omitted children may be either
(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)
The Slayer rule bars
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
Disclaimer of testamentary gift may be done by
(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)
Objections to a Will may be brought by
an interested party within 6 months after Will is admitted to probate
To challenge a Will under general testamentary capacity, the contestant must show
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
An insane delusion is
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
Undue influence is
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
Fraud as a challenge to a Will requires
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
A forfeiture clause is
a no-contest clause which is unenforceable under the UPC if the beneficiary had probable cause to challenge (otherwise is OK)
Filing for probate under the UPC must be
brought within 3 years of death after which there is a presumption of intestacy
Non-claim status
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)
Duties owed by Personal Representatives
Duty of loyalty and care (fiduciary duty) and NO self-dealing
Types of Powers of Appointment
General (no conditions or restrictions on donee)
Specific (donor may limit donee’s power)
To have a valid power of attorney it must be
(1) in writing,
(2) signed, and
(3) dated
Note: Creates principal / agent relationship
Types of power of attorney
(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)
Under majority view, to prove undue influence a contestant must show
(1) Susceptibility
(2) Motive
(3) Opportunity
(4) Causation
In order for anti-lapse statutes to apply, the gift made must have been to
a relation of the testator, within a specific statutory degree, who predeceased the testator
Ancestors and Remote Collateral is disposed of by either
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
Omitted spouses are
given a rebuttable presumption that omission was by mistake (unless intent is apparent)
Validity of a will is governed by
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.
The validity of a will may be conditioned on
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
The typical durable healthcare POA statute shields the agent
from civil liability for healthcare decisions that are made in good faith
Consanguinity Method of heirship determines who inherits based off of
degree of relationship (# of steps away from the decedent - e.g. niece and uncle are both 3 degrees away)
Parentelic Method of heirship allows inheritance by
descendants of decedent’s parents but NOT grandparents (e.g. niece can inherit but uncle could not)
Undue Influence? Prove by SODA
(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
Separation does not revoke the will provisions to a former spouse unless
there is a separation agreement
Under the doctrine of Alteration, a testator cannot
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
Under the doctrine of integration, a Will consists of all pages that are
present at the time of execution and INTENDED to form part of the will
Life insurance contracts almost never permit
a change of beneficiary by will
If a testator has a child after executing a Will and does not execute a new Will, there is a presumption that
the omission of the child was accidental
Most jurisdictions provide that an out-of-wedlock child can inherit from his natural father (through intestacy) if
(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
Difference between CL and UPC concerning dividends
under CL, dividends distinct (not part of devise under will)
under modern approach, not distinct and any dividends are passed along with bequeathed shares
