Wills & Decedents' Estates MEE

Question 1

Intestacy Generally

Answer 1

1. Uniform Probate Code (UPC)
   * Surviving spouse (SS) takes the entire estate
   o All of decedent’s descendants are also descendants of SS, and SS has no other descendants, or
   o Decedent (D) has SS, but no descendants or parents * SS takes $300,000 and 75% of the remainder of the estate o No descendant of D survives D, but D has a surviving parent

• SS takes $225,000 and 50% of the remainder of the estate
  o All of D’s issue are also issue of SS, and SS has other issue
• SS takes $150,000 and 50% of the remainder of the estate
  o D has issue not related to SS

2. Community property (CP)—all property acquired during the marriage is jointly owned by both spouses unless it is gift, inheritance, or devise given to only one spouse
   * CP is divided equally—SS owns 50% of CP outright
   * If D dies intestate, then D’s 50% of CP is given to SS and D’s separate property (SP) is then distributed pursuant to the general intestacy scheme

Question 2

Intestacy Surviving Spouse

Answer 2

1. Marriage requirement—SS must have been legally married to D
   * Putative spouses—qualify if the spouse believes in good faith in the validity of an invalid marriage
   * Separation—spouses are still married until the issuance of a final dissolution decree
2. Survival requirement—SS (or other heir) must survive D to inherit (or take under a will)
   * Common law—must have survived D for any length of time
   * Uniform Simultaneous Death Act (USDA)
   o 120-hour rule—must have survived D by 120 hours
   o Insufficient evidence of order of death—the property of each individual passes as though the other individual predeceased him
   * Determination of death
   o Common law—irreversible cessation of circulatory and respiratory functions
   o Modern standard—brain death (for which there are no established criteria)
   * Burden of proof—on the party whose claim depends on survivorship o Common law—preponderance of the evidence o USDA—clear and convincing evidence

Question 3

Intestacy issue

Answer 3

all lineal descendants, including children, grandchildren, great-grandchildren, etc.

Question 4

Intestacy Parent-Child Relationship: Married parents

Answer 4

o Child of a marriage—presumption: the child is the natural child of the parties to the marriage

o Posthumously-born children—rebuttable presumption: the child is the child of the deceased husband if the child is born within 280 days of his death

Question 5

Intestacy Parent-Child Relationship: Adopted Child

Answer 5

o Reference in a will to “child” includes an adopted child

o Treated like a biological child for inheritance purposes

o No inheritance rights between the genetic parents and the adopted child

o Stepparent exception—an adoption by a stepparent establishes a parent-child relationship between the stepparent and the child (with full inheritance rights) but does not curtail the parent-child relationship of the genetic parent who is married to the stepparent nor the right of the adoptee (or a descendant of the adoptee) to inherit from or through the other genetic parent

Question 6

Intestacy Parent-Child Relationship: Foster Parents and Stepparents

Answer 6

o Generally, no inheritance rights between a child and a foster parent or stepparent

o Equitable adoption
 A relationship started during the child’s minority and established by clear and convincing evidence that a legal barrier prevented adoption, or
 A foster parent agreed with the genetic parents to adopt the child and the foster parent treated the child as his own

o Effects
 The child can only inherit from (not through) the equitable adoptive parent
 Equitable parents cannot inherit through or from the child
 Inheritance rights between the child and the genetic parents is unaffected

Question 7

Intestacy Parent-Child Relationship: Half-bloods

Answer 7

treated the same as whole-bloods

Question 8

Intestacy Parent-Child Relationship: Children born out of wedlock

Answer 8

o Modern trend—cannot inherit from the natural father unless:
 The father subsequently married the natural mother;
 The father held the child out as his own and lived with the child or provided support;
 Paternity is proven by clear and convincing evidence after the father’s death; or
 Paternity is adjudicated during the father’s lifetime by a preponderance of the evidence

o Uniform Parentage Act (UPA)—requires proof of paternity for a child to inherit
 When a father holds a child out as his own—presumption of paternity; the child can bring an action to establish paternity at any time
 Otherwise—no presumption of paternity; the child must bring an action within three years of reaching the age of majority

Question 9

Intestacy Parent-Child Relationship: Posthumously-conceived child

Answer 9

not recognized as a child of the deceased parent

Question 10

Intestacy Calculating Share - per capita with representation

Answer 10

o Property is divided equally among the first generation with at least one living member

o The share of a non-living member of that generation passes to the living issue of that member

o Non-living member with no living issue—no property is allocated to the non-living member

Question 11

Intestacy calculating share per stirpes

Answer 11

o Issue equally share the portion that the deceased ancestor would have taken if living

o The estate is first divided into the total number of children of the ancestor who survive or leave issue who survive

Question 12

Intestacy calculating share per capita at each generation

Answer 12

o Property is 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

Question 13

Intestacy calculating share negative inheritance

Answer 13

—to disinherit an heir through properly executed will

Question 14

Intestacy Ancestors and Remote Collaterals

Answer 14

when there is no SS or descendant

1. Parentelic (UPC) approach—follows collateral lines until a live taker is found; D’s property is distributed within that taker’s parentelic line
   * D’s parents equally if both survive or all to the surviving parent if only one survives
   * Then to descendants of D’s parents
   * Then to D’s living maternal/paternal grandparents
   * Then to descendants of D’s deceased grandparents
   * Then to D’s nearest maternal/paternal relative
   * Finally D’s estate escheats to state
2. Degree-of-relationship approach—calculated by counting the number of relatives between the living taker and D using the closest common ancestor
3. Combined approach—those in a closer collateral line take to the exclusion of those in a more remote collateral line

Question 15

Valid will requirements

Answer 15

• Writing signed by the testator (T)
• Two or more witnesses
• T has present testamentary intent

Question 16

Writing signed by T

Answer 16

• Entire will must be in writing (can be handwritten, if the signature and witness requirements are met)
• Signed by T
  o Location of signature
   Some states—at end, otherwise the will is invalid
   Other states (UPC)—anywhere on the will, but the portion of the will after the signature is invalid
  o Form of signature—T’s formal name is not required if the name used indicates T’s intent
  o Signature on T’s behalf—permitted by a person in T’s presence and at T’s direction
• T’s Capacity
  o T must be at least 18 years old and of sound mind
  o T meets mental capacity if she knows (capacity is presumed unless challenged):
   Nature and extent of her property
   Persons who are the natural objects of T’s bounty
   Disposition she is trying to make, and
   Testamentary plan

Question 17

Witnesses

Answer 17

• Number—at least two; some states require three
• Signatures
  o Signed by T (or by a person on T’s behalf) in the joint presence of two Ws
   UPC—T may acknowledge his signature to Ws; Ws need not be present at the same time
  o Signed by two Ws
   No need for an attestation clause
   Ws need not sign at the end of the will
   Ws must sign in the presence of T
   UPC—W may sign within a reasonable time after witnessing T sign or acknowledge the will
  o Presence
   Line-of-sight (traditional) test—T and Ws see (or have the opportunity to see) each other sign the will
   Conscious-presence (modern) test—T and W must be aware through any sense that each is signing the will
• Knowledge of instrument
  o Ws must be aware that the instrument is a will, but need not know its contents
• Age and competency—W has sufficient mental capacity/maturity to comprehend the value of the act of witnessing; determined at the time of signing

Question 18

Interested W doctrine

Answer 18

W who receives a gift under will

o Common law—an interested W is not competent as a W; the will is invalid unless there are at least two disinterested Ws

o Purge theory—a gift to W is denied to the extent of the amount in excess of W’s intestate rights

o UPC—interested W doctrine is abolished

Question 19

Will Formalities Testamentary Intent

Answer 19

• T must execute a will with present testamentary intent, must understand that he is executing a will, and intend that it have testamentary effect
• T must generally know and approve of the will’s contents, but need not understand all provisions

Question 20

Will formalities integration

Answer 20

a will consists of all pages present at the execution and intended to be a part of the will

Question 21

Will formalities compliance with statutory requirements

Answer 21

• Common law—strict compliance
• UPC—substantial compliance if there is clear and convincing evidence of T’s intent

Question 22

Holographic Wills

Answer 22

a will in T’s handwriting

1. Handwritten document
   * Some states—entire will must be in T’s handwriting
   * Other states (UPC)—only the material provisions must be in T’s handwriting (e.g., a filled-in printed form)
2. Must be signed by T—proxy not permitted
3. Witnesses—not required
4. Date—required by some states
5. Testamentary intent
   * Some states—established by reference to printed parts of the will or extrinsic evidence
6. Handwritten changes after will completed—effective

Question 23

Self-proved will

Answer 23

a will acknowledged by T and affirmed by Ws before a court official

• Effect—removes the need for testimony of the attesting Ws at a formal probate proceeding

Question 24

Nuncupative (oral) wills

Answer 24

1. Most states (UPC)—not permitted
2. Some states—permitted, but valid for disposition of limited personal property made in contemplation of immediate death

Question 25

Codicils

Answer 25

changes or additions to a will

1. Execution—the same formalities as for a will must be observed
2. Effect—republishes the will as of the date the codicil was executed
   * May validate an invalid will

Question 26

Will substitutes

Answer 26

methods for transferring property outside of probate

1. Revocable trusts
2. Pour-over wills—a devise of T’s property to a trust created during T’s life
3. Bank accounts and securities registered in beneficiary form
4. Payable-on-death clause in contract
5. Life insurance—policy proceeds are not part of D’s estate unless payable to the estate as beneficiary
6. Deeds—unconditionally delivered to the grantee during D’s lifetime or delivered to an escrow agent during D’s lifetime with instructions to turn over to grantee upon D’s death
   * Some states allow transfer on death (TOD) deed; does not require will formalities
7. Totten trusts—a type of revocable trust set up with a bank (similar to a payable-on-death account)

Question 27

Revocation of Will - Any time prior to T’s death

Answer 27

1. Subsequent instrument—an oral revocation of a will does not affect the will
   * Revocation can be express or implied by the terms of a subsequent instrument
   * Inconsistency—the later document controls and revokes prior inconsistencies
2. Destruction with intent to revoke
   * Destruction—burning, canceling, tearing, obliterating, or destroying a material portion of the will
   o Most states—requires defacement of some language of the will
   o Some states (UPC)—the destructive act need only affect some part of will
   * Rebuttable presumption of revocation—when a will once known to exist cannot be found
   o Inapplicable if a duplicate original is found
   * Destruction of executed will—presumptively revokes all other duplicate originals
   * Third party can revoke for T if done at T’s direction and in T’s conscious presence
3. Operation of law
   * Divorce
   o Most states (UPC)—revokes will provisions for the former spouse unless contrary to T’s intent
   o Some states—revokes will provisions for the former spouse if there is a property settlement agreement
4. Partial revocation—permitted, but if a revoked gift falls outside of residuary, revocation is not given effect until re-execution or republication of will
5. Cancellation of Words—cancelling attested words in a will can decrease, but not increase, a gift

Question 28

Lost wills

Answer 28

1. Duplicates/copies—a duplicate original is permitted, but not a photocopy
2. Burden on proponent—proof by clear and convincing evidence

Question 29

Revocation of codicils

Answer 29

revives the will (contrast: the revocation of a will revokes all codicils

Question 30

Revival

Answer 30

1. Republication
   * Implied
   o Common law—automatic revival of the original will upon revocation of a subsequent will; followed in just a few states
   o UPC—look for testator’s intent, based on (i) whether the second will is revoked by act or by a later will; and (ii) if the second will is revoked by an act, whether the first will was wholly or partially revoked by that second will
    Second will revoked by another new will—the previously revoked will is only revived if the terms of the new will show that T intended the previous will to take effect; no extrinsic evidence
    Second will revoked by physical act—extrinsic evidence permitted
   → Whole revocation—presumption that T did not intend to revive the first will; burden on the proponent of the first will
   → Partial revocation—presumption that T intended to revive the revoked parts of the previous will; burden on the challenger of the first will
   * Express—T acknowledges the original will with testamentary formalities
2. Dependent Relative Revocation (DRR)—T’s revocation of the will is disregarded if it was based on a mistake of law or fact and would not have been done but for that mistake

Question 31

Will Contracts

Answer 31

A. Writing requirement—the will states the contract’s material provisions; the terms are contained in a written contract; or the will expressly references a contract and extrinsic evidence proves its terms

B. Consideration requirement—e.g., B promises to care for T in exchange for a bequest

C. Enforceability—only if signed by the party sought to be charged; no remedy for breach while T is still alive

D. Reciprocal provisions

1. Joint wills—a single instrument that serves as the will of more than one person
   * Does not by itself create a presumption of a contract not to revoke
2. Reciprocal wills—identical or reciprocal provisions in separate wills
   * Does not by itself create a presumption of a contract not to revoke
3. Contract not to revoke
   * If evidence establishes (e.g., the wills state that devises were made in consideration of reciprocal devises), the contract becomes irrevocable upon death of first party; a constructive trust is imposed on property transferred by the second party in violation of the contract

Question 32

Classification system of gifts

Answer 32

1. Specific—property distinguished with reasonable accuracy from T’s other property
2. General—property to be satisfied from general estate assets
3. Demonstrative—property to come from a particular source
4. Residuary—property remaining after all specific, general, and demonstrative gifts are made

Question 33

Incorporation by reference

Answer 33

another writing not executed with testamentary formalities may dictate the distribution of T’s property if it:

• Existed at time of execution of the will,
• Is intended to be incorporated, and
• Is described in the will with sufficient certainty to permit identification

Question 34

Acts of independent significance

Answer 34

designation of a beneficiary or disposition by reference to some unattested act or event occurring before or after the execution of the will or T’s death if the act or event has some significance apart from the will

Question 35

Lapse

Answer 35

—if the beneficiary dies before T, the gift lapses and passes to the residuary beneficiary, or if none, via intestacy

1. Anti-lapse statute—if the beneficiary was T’s relative and left issue, then the issue succeeds to the beneficiary’s gift
   * Applies to class gifts
   * UPC/Modern trend—also apply to non-probate transfers
2. Residuary lapse
   * Common law—a lapsed residuary interest passes by intestacy (“no residue of a residue”)
   * UPC—a lapsed residuary interests passes to the remaining residuary beneficiaries
3. Void gifts—gift to a beneficiary, who unbeknownst to T, is already deceased when the will was executed
   * Anti-lapse statute also applies to void gifts

Question 36

Abatement (first to last)

Answer 36

eduction/elimination of gifts when assets insufficient

1. Order—gifts abate in the following order:
   * First, intestate property
   * Then, residuary bequests
   * Then, general bequests
   * Then, specific bequests

• Note: a demonstrative gift is treated as a specific bequest; if it cannot, then it is treated as a general bequest

Question 37

Ademption

Answer 37

—the denial of a gift to a beneficiary because the property is no longer in T’s estate

1. Ademption by extinction—applies only to specific bequests
   * Traditional approach—“identity theory”
   * UPC approach—“intent theory” (mild presumption against ademption)
2. Exoneration of liens
   * Common law—a beneficiary of encumbered real property can have the lien paid off
   * Most states (UPC)—a beneficiary of encumbered real property is not entitled to have the lien paid off
3. Ademption by satisfaction—a gift may be satisfied by inter vivos transfer of property after the execution of the will if that is T’s intent
   * UPC—presumes no ademption by satisfaction absent an express writing

Question 38

Ambiguities and mistakes

Answer 38

1. Plain meaning rule—reluctance to disturb the plain meaning of a will regardless of mistake
2. Ambiguities—can be resolved by extrinsic evidence
3. Mistakes—extrinsic evidence is admissible to show that there was a mistake in the will’s execution
4. Rule of construction—the will “speaks” at the time of T’s death
5. Conditional Will—if possible, when will’s validity is conditioned on an event, courts will construe excess language as mere explanation rather than a barrier to validity

Question 39

Power to transfer - rights of surviving spouse

Answer 39

1. Elective share or forced share
   * Common law state—SS can elect to take a share of T’s augmented estate rather than the gifts left to SS in the will
   o The right may be waived by a signed writing after fair disclosure before or during the marriage
   * Community property state—SS is entitled to one-half of community and quasicommunity property (forced share)
   o SS must elect to take the forced share in lieu of any interest under T’s will
2. Omitted spouse—a spouse who married T after T’s will was executed and who is not a beneficiary in the will
   * Rebuttable presumption that the omission was by mistake; the omitted spouse is entitled to the intestate share
   o Traditional doctrine—the presumption is rebutted if T’s intent to omit the spouse is apparent from the language of the will or if the spouse was provided for outside of the will
   o UPC—a valid prenuptial agreement also rebuts the presumption

Question 40

Power to transfer - gifts to children

Answer 40

1. Advancements of inheritance (corresponds to ademption by satisfaction for gift by will)
   * Common law—a lifetime gift is presumed to be an advancement of the child’s intestate share; the child has the burden to prove otherwise
   * Modern trend (UPC)—the gift is an advancement if D declared in a contemporaneous writing that the gift was an advancement, or the heir acknowledges that the gift was an advancement in writing
2. Controlled transfers to minors—guardianship, conservatorship, transfer pursuant to the Uniform Transfers to Minors Act, trust

Question 41

Power to transfer - omitted child

Answer 41

—a child born after T’s will is executed

1. Rebuttable presumption—that the omission was by mistake
   * The presumption is rebutted by (i) intentional omission; (ii) T had other children when will executed, left estate to other parent of omitted child; (iii) T otherwise provided for the child
2. Omitted child’s share
   * T’s only child—intestate share
   * Other children—omitted child shares equally in property devised to the other children

Question 42

Power to transfer - bars to succession

Answer 42

1. Homicide—the killer of D cannot take under D’s will or through intestacy
   * Killer is treated as if he predeceased D
2. Disclaimer—permitted but must be affirmatively done because acceptance of the gift is presumed
   * The disclaiming party is treated as if she predeceased D

Question 43

Standing to contest will

Answer 43

only directly interested parties who stand to benefit financially may contest a will; not T’s general creditors nor the spouse or prospective heir of a beneficiary under a prior will

Question 44

Will contest - Lack of tetstamentary capacity

Answer 44

T lacks capacity if, at the time of the will’s execution, T did not have the ability to know the nature of act, the nature and character of his property, the natural objects of his bounty, and the attempted disposition plan

Question 45

Will contest - insane delusion

Answer 45

—a belief for which there is no factual or reasonable basis, but to which T adheres despite all reason and evidence to the contrary

1. Rational person test—a rational person in T’s situation could not have reached the same belief
2. “But for” causation—the delusion was the sole cause of the testamentary disposition

Question 46

Will contest - undue influence

Answer 46

mental or physical coercion exerted by a third party on T with the intent to influence T such that he loses control of his own judgment and executes an unnatural will

1. Confidential relationship—T, as a result of his weakened or dependent state, confided, trusted, or relied upon the other party

• No confidential relationship between husband and wife
• Burden of proof is on the beneficiary to show by a preponderance of the evidence that there was no undue influence
• The beneficiary is treated as though he predeceased T to the extent the gift exceeds the beneficiary’s intestate share

Question 47

Will contest fraud

Answer 47

a misrepresentation made by the beneficiary when the will was executed with the intent to deceive T and with the purpose of influencing the disposition, resulting in a will that would not have been executed but for the fraud

Question 48

Will contest forfeiture clause

Answer 48

designed to deter a beneficiary from suing over his share by causing him to lose his share entirely if he does so; UPC/most states find forfeiture clauses unenforceable against a beneficiary who has probable cause to contest

Question 49

Will contest restraints on marriage

Answer 49

provisions imposing a forfeiture of a gift if the beneficiary should ever marry are invalid as against public policy

Question 50

Will contest conflict of laws

Answer 50

—validity under the UPC is determined under the law of the place where the will was executed or the testator is domiciled

Question 51

Probate and Administration

Answer 51

probate property is property that passes under T’s will or by intestacy

Question 52

Probate procedure

Answer 52

1. Jurisdiction—the place where D is domiciled at the time of death has jurisdiction over D’s personal property and any real property located there
2. Notice—given to interested parties
3. Timing
   * Common law—a will could be probated at any time
   * UPC—probate proceedings must be brought within three years of death

Question 53

Probate creditor’s claims

Answer 53

1. Period of limitations—a claim must be made within a specified period after probate is opened
2. Notice—the personal representative must provide notice to creditors
3. Priority of claims—administrative expenses, last medical expenses and funeral expenses, family allowance, tax claims, secured claims, judgments against D, all other claims

Question 54

Personal Representative

Answer 54

executor (named in will), administrator (appointed by court)

1. Priority for appointment—the person named in the will; the surviving spouse who is a devisee; other devisees; the surviving spouse; other heirs; any creditor (45 days after death)
2. Principal duties:
   * Provide notice to legatees, heirs, and claimants
   * Inventory, collect, and manage D’s assets
   * Receive and pay claims of creditors and tax collectors
   * Distribute remaining assets
3. Fiduciary duty—owes the highest duty of loyalty and care to those represented
   * Common law—can be personally liable for the actions of the estate
   * UPC—can only be sued in a representative capacity for breach of fiduciary duty

Question 55

Powers of appointment

Answer 55

(the power to decide to whom property is given)

A. Types
1. General power of appointment—no restrictions or conditions on the exercise of the power

2. Special power of appointment—places limitations on the holder’s exercise of the power

B. Scope of authority
1. Exercising power
* Any instrument, unless the donor directs otherwise, may be used to exercise the power
* Testamentary power of appoint can only be exercised via will o Mere residuary clause in a will is not sufficient to exercise a power, but use of the phrase “including any power of appointment I may possess” is generally effective

2. Contracting the power—the holder can do so if presently exercisable power

Question 56

Powers of attorney

Answer 56

A. Types
1. General—the agent can handle all affairs when the principal is unable to do so
2. Special—the agent’s powers are limited to a specific function and/or duration

B. Scope of authority
1. Durable power of attorney—agency continues until the death of principal, even if the principal becomes incapacitated; a majority of states presume power is durable
2. Fiduciary duties
3. Liability—the agent is only responsible for intentional misconduct
4. Revocation—the powers can be revoked by the principal at any time