Wills/Estates Flashcards
Execution of a Will
Testator must have present intent to:
- execute a will
- must have testamentary capacity; and
- must comply w/ required formalities
Choice of law
When individual dies testate, the state law which governs distribution of will is the state where the testator was domiciled when they died
Holographic wills
Unwitnessed wills; Valid if:
- signed by testator (UPC = material provisions in their handwriting)
Lapse and Anti-Lapse
When a beneficiary dies before the testator, the gift will lapse and fall into residue
Some states have anti-lapse statutes —- gift goes to beneficiaries’ issues instead of beneficiary (typically related by blood to testator + had issue who survived)
Republication by codicil
Will is treated as having been executed (aka republished) on the date of the last validly executed codicil
Ademption
When specifically devised property is not in the testator’s estate at his death, the bequest fails
UPC = devisee has right to any real property owned by testator at death that was acquired as a replacement OR unpaid insurance proceeds (if property sold)
Mental capacity
Testator must have mental capacity to execute a will. Contestant must show lack of capacity. Testator has capacity if:
- knows the nature and extent of his property
- persons who are natural objects of the testator’s bounty
- nature of the instrument that the testator is signing; and
- disposition that is being made in the will
Slayer statute
One who feloniously and intentionally brings about the death of the decedent forfeits any interest s in the decedent’s estate — property passes as if the killer died before the decedent
Only applies when heir kills decedent whose estate is at issue
If bene accidentally kills decedent, slayer rule does NOT bar a gift
Divorce
Revokes gift in favor of spouse —- must be divorce or annulment, not filing of divorce
UPC = revokes bequests to former spouse and relatives of former spouse
Dependent relative revocation
First will is not revoked if a later will is found invalid
Aka if if a T revokes a will/bequest based on mistaken assumption of law/fact, the revocation of will is ineffective if it appears that the T wouldn’t have revoked the will had T had accurate information
Specific bequest of stocks
- CL = includes additional SHARES produced by stock split, not those produced by stock dividends
- UPC = includes stock dividends
Intestate succession
In most states, if T is not survived by spouse or descendants, the property passes to parents or siblings
Per Capita w/ Representation
Property divided at the first generational level where there are living takers, with the share of each deceased person at that level passing to his issue by representation
MAJORITY
Per Stirpes
Shares always determined at first general level regardless of whether there are living takers
Per capita at each generation
- find first level where there are living issue — give one share for each living person and one share for each person who predeceased decedent but has surviving issue
- combine shares belonging to deceased persons and distribute equally at next generation —– cousins treated alike
MODERN
