Wills + Estates (100%) Flashcards
A devise is:
A will
A devisee is:
Person who receives property in a will (beneficiary)
Heirs means:
A person who takes by intestate succession (≠will)
Is a devisee an heir?
No, devisee takes by will
Heir takes by intestate succession
A escheat is
When a person dies intestate with no known heirs, the property passes to the state
(goes the escheat fund)
Strict or True Per Stirpes is
≠ N.C.
- the estate is divided into shares at the first generation below the decedent, even if there are no survivors. One share is allocated to each member of that generation, alive and deceased.
- If members of the first generation are deceased but have children, drop down their individual share and divide among the children
Per Capita at Each Generation
In North Carolina, per capita distribution is presumed to be the method of distribution, absent explicit per stirpes language or intent.
- the estate is divided into shares at the first generation below the decedent. Any surviving members take their share.
- The remainder of what is left over is drop down to the next generation and divided equally among all the children of the first generation
What are the elements of a testator’s capacity to make a will?
(5)
1) A person must be of sound mind in order to execute a valid will
2) The testator must intend to create a will
3) Testator understands what a will is
4) Testator knows nature and extent of their property
5) Natural objects of testator’s bounty are close family members (generally, should be family members benefiting)
The four types of wills recognized in North Carolina include:
a. Attested wills:
(1) Written will
b. Holographic wills:
(1) Entirely in the handwriting of testator
c. Nuncupative wills:
(1) Oral will
d. Serviceman’s will:
(1) A person in active military service
Written Attested Will Execution Requirements
2
- two competent witnesses to the execution of the will are required
- The will must be signed
Holographic Will Execution Requirements
3
- Has to be entirely in handwriting of testator
- signed anywhere on the instrument
- Must be found among the testator’s important papers
≠witnesses
Must have intention that it is the will
When is a witness competent to a Will?
When a witness is not a devisee under the will
What happens to a Will when one of the witnesses benefits from the will?
The will is valid but the gift to the witness (and those under (decedents of witness)) is removed to make the witness competent.
What is the purging statue?
It will remove a witness’ interest in the will to make them competent
For Holographic Wills, what if there is a mix handwriting and pre-printed forms?
Look to see if the handwriting alone is sufficient to get a holographic will
What is a Self-Proving Affidavit when used for an attested will
Used along with a written attested will when witnesses cannot be located when the will is to be probated.
Raises a presumption that the will was properly executed.
How to probate a holographic will?
2
- must have 3 witnesses testify as to the handwriting
2. must have 1 witness testify that it was in an important place
When is a nuncupative will valid?
- Expression of what they want done at death;
+ - Person is dying as they are saying it
Codicil requirements are?
The same as those for attested or holographic
What is a codicil
an amendment to the will
-becomes the new effective date of the will
A testator may incorporate by reference a separate document into a will if certain conditions are met
(2)
- document incorporated by reference is in existence when will is created
- referenced with enough specificity to identify the referenced document
How do we treat the will as being written in N.C.?
It speaks as of death: everything said is interpreted as if it was said at death
When is a will revoked by operation of law?
If testator makes a disposition in favor of a spouse, they divorce, then the gift to the divorced spouse is voided
North Carolina has specified that the only allowable methods to revoke a will are:
- Physical Act
2. New Will Revoking Prior Will
When will a Will be revoked by a subsequent will?
- Second will expressly revokes prior wills or
2. covers all the areas of the previous will
When is a will revoked by physical act?
When a will is:
- Destroyed
- Torn
- Canceling by drawing lines
-Must be intentional and in your presence/at instruciton
Probate of a Lost Will occurs when?
When there is an original will that is genuinely lost but there is a copy of the will, the will can be probated
**Have to over come Presumption that it has been destroyed
What is the presumption if the a will was last known to be in possession of the testator is not found?
It has been destroyed
When is crossing something out in a will a valid modification?
- if signed
2. if holographic will
A joint will is
One will that serves for two people
- signed by both
- witnessed
Mutual Wills are:
wills drawn together (2) wills
-does not presume there is a contract not to change the will
A contractual will occurs when: (2)
Effect on probate?
There is a will + a contract concerning the will
- if a contract is breached by probate, then they come in as creditors of the estate
Patent Ambiguities are
Ambiguities (confusion) that are obvious on their face
E.g. 1/2 to A, 1/2 to B, 1/2 to C
Latent Ambiguities
Ambiguities (confusion) that are not obvious on the face of the writing
How to deal with patent ambiguities
2
- modify terms of the will to testator’s intent
2. strike out the ambiguity
How to deal with latent ambiguities
2
- introduce extrinsic evidence to see what testator wanted
What is Will Integration concerned with?
Which pages are part of the will (is the document full integrated)
- Number the pages
- Initial each page
Specific Bequests and Devises in a will are:
items or real property are specifically identified to be given to someone
General Devises in a will generally are:
Gifts of $$ to someone
Demonstrative Devises are
a devise that is meant to come out of a specific fund.
If there is not enough in the fund, then have to take it from another source
Residuary Devises in a will are:
Gives everything else after specific bequests, general devises
What is ademption by extinction?
when the specific bequest to be given is not in the estate
-Result: the gift fails
What is ademption by satisfaction?
when the specific bequest/general devise (advancements) has already been given to the person in life
-Result: the gift is satisfied
The doctrine of ademption by satisfaction is analogous
to the doctrine of advancement in intestate estates.
How to deal with devises of securities?
Give the stock even if the corporate identity name changes
-transfer the interest in corp represented by stock (stock splits do not matter)
What happens if property given is subject to debt?
The property is given encumbered by the debt
- a general direction to pay off debts does not remove
- a specific direction to pay off the debt does remove
When has a devise lapsed?
When the devisee has died before the testator
What happens when a devisee dies before the testator (e.g. it has lapsed)?
(2)
- if the devisee shares a close family relationship (at least a grandparent)
- The living issue of the devisee take the gift
-unless contrary intent expressed (e.g. conditions such as: if X survives me)
What to do when a devisee intentionally caused the death of testator?
Slayer Statute
-The slayer is presumed to be dead at the time the victim dies, and property will pass as it would had he actually predeceased the victim.
What is the standard to activate the slayer statute?
- if criminal conviction of intentional willful killing
- a civil determination (preponderance of evidence)
If the slayer and the decedent held property as tenants by the entirety:
(3)
- 1/2 of victim passes to victim’s estate
- 1/2 of slayer stays in slayer’s estate for life
- At slayer’s death, 1/2 of slayer passes to the victim’s estate
Renunciation of devises
The testator cannot force a beneficiary to accept a gift under the will.
Reasons to disclaim or renounce a devise?
- would be better to devise in a different manner
2. Devisee is deeply in debt and wants to avoid creditors
What is the effect of a devisee disclaiming?
- If the decedent has not provided for an alternative disposition, the renouncing person is deemed to have pre-deceased the decedent
- the property will usually pass under the residuary clause, by intestacy, or according to the provisions of the applicable anti-lapse statute
- Disclaimer cannot direct the property
The problem of abatement arises when?
There is not enough money to satisfy all of the general gifts (not enough cash)
What is the default order when abatement occurs?
3
- satisfy specific gifts if you can, then
- satisfy general gifts if you can
- Lastly, satisfy residuary if you can
A class gift exists when
there is a gift to a group of people described by a generic descriptor
≠ named individuals
Anti-lapse statute application to class gifts
If all of the anti-lapse statute requirements are met, the statute will insert the issue into the class
The Class-Closing Rule is
The class is closed when the right to distribution occurs
When does a will contest occur?
a person interested in the distribution of the estate objects to the admission of the will to probate on the ground that the will is invalid for some reason.
Undue influence over a will occurs when?
3
When someone has substituted their will for the will of testator
- intention to influence
- opportunity to do so
- actually occurs
Ways to contest a will?
3
- Must have standing
Allege - Undue Influence
- Fraud
Fraud in the execution of the will is?
You present a paper to the testator a Will to sign but it is not a will
Fraud in the inducement is when?
You falsely represent a material fact that cause the testator to act a certain way.
When does a mistake sufficient to contest a will occur?
Most courts will not correct a testator’s mistake if it originates in the testato’rs own mind
What is the effect of no-contest clauses?
Make a gift under the will conditional on not contesting the will
-Courts are not egar to enforce no-contest clause when there is a good faith contest
Who has the standing to contest a will?
Someone with an economic state in the outcome
-always heirs
A valid inter vivos gift generally requires the following three elements
- Intent to give
- Delivery
- Acceptance
A valid testamentary gift generally requires the following two elements
- Effective Will
2. Acceptance
If a delivery of a gift is to made through the donor’s agent and the donee has not yet received the delivery:
Then donor can revoke
A gift causa mortis is:
Revoked when?
A gift made in light of impending death
-if the donor does not die as expected
Joint and Survivor Bank Account is
a bank account that works a joint tenancy
Payable on Death Account is
Not a joint account, but can indicate who takes at death
How does joint tenancy interest with right of survivorship pass at death?
No need to transfer, survivor’s interest just becomes the whole
What is a Spouse’s Elective Share?
A surviving spouse has the ability to
- Create the total estate (everything passing at death)
- Subtract the total estate property passing to the surviving spouse = Net Estate
3. Spouses Elective share = if died after October 1, 2013 a. 50% of net if married for 15 years or more b. 33% if married 10-15 years c. 25% if married 5-10 years e. 15 % of net if married
A pretermitted spouse is?
Rights?
a spouse who is ommitted from the will
-Has the ability to take elective share
What are the main questions to ask in any will distribution
3
- Is there a surviving spouse?
- Are there surviving children?
- Are there surviving parents?
What is needed to prohibit revocation of a Will?
A contract expressing such
> mutual wills
