Wills & Estates Flashcards
Incorporate by Reference
A will may incorporate by reference another writing not executed with testamentary formalities, provided the other writing meets three requirements: (i) it existed at the time the will was executed; (ii) the testator intended the writing to be incorporated; and (iii) the writing is described in the will with sufficient certainty so as to permit its identification.
Abatement
Gifts by will are abated, i.e., reduced, when the assets of the estate are insufficient to pay all debts and legacies. If not otherwise specified in the will, gifts are abated in the following order: (i) intestate property; (ii) residuary bequests; (iii) general bequests; and then (iv) specific bequests. Abatement within each category is pro rata.
Power of Attorney
A power of attorney (POA) is an authorization to act on someone else’s behalf in a legal or business matter. The person authorizing the other to act is the principal, and the one authorized to act is the agent. A healthcare POA appoints an agent to make healthcare decisions on behalf of the principal if she becomes unconscious, mentally incompetent, or otherwise unable to make decisions. Unlike other powers of attorney, a healthcare power of attorney becomes effective upon incapacitation of the principal.
An agent must make a healthcare decision in accord with the principal’s instructions or other known wishes. If such instructions do not exist, then the agent must make decisions in accordance with the agent’s determination of the principal’s best interest.
The typical durable healthcare POA statute shields the agent from civil liability for healthcare decisions that are made in good faith. Agents act within the scope of the statute when they act pursuant to a properly executed durable healthcare power of attorney. In general, an agent is held responsible only for intentional misconduct, not for unknowingly doing something wrong.
Pending Divorce
In most jurisdictions, divorce revokes all will provisions in favor of the former spouse, unless it can be shown that the testator intended for the will to survive. Spouses who are separated, or are in the process of obtaining a divorce, remain spouses until the issuance of a final decree of dissolution of the marriage, unless a complete property settlement is in place.
Effect of Will on Prenuptial Agreement
A spouse may waive in whole or in part, before or during the marriage, the right to receive property that would pass by intestate succession or by testamentary disposition in a will that was executed before the waiver. However, the waiver in the prenuptial agreement does not apply to subsequent gifts or bequests made voluntarily.
Adoption
Adoption curtails all statutory inheritance rights between the natural parents and the child.
Personal Representative Appointment
A personal representative is either named in the will (executor) or appointed by the court (administrator) to oversee the winding up of a decedent’s affairs. Any person with the capacity to contract may serve as a personal representative. When a will is silent regarding the appointment of a personal representative, a court will generally appoint an administrator.
A person named in the will has priority for appointment, followed by the surviving spouse who is a devisee of the decedent, then other devisees, a surviving spouse who is not a devisee of the decedent, other heirs of the decedent, and 45 days after the death of the decedent, any creditor.
Revocation of Will
A will may be revoked wholly or partially in three ways: by subsequent writings, by physical destruction of the will, or by operation of law. Physical destruction may take the form of burning any portion of the will or canceling, tearing, obliterating, or destroying a material portion of the will with the intent to revoke it. Both the act and a simultaneous intent to revoke must be proven to yield a valid revocation.
Pretermitted Children
Pretermitted heir statutes permit children of a testator under certain circumstances to claim a share of the estate even though they were omitted from the testator’s will. While the birth or adoption of a child after the execution of a will does not invalidate the will, such children are omitted from the will. If the testator then dies without revising the will, a presumption is created that the omission of the child was accidental. An omitted child statute does not apply if: (i) it appears that the omission of the child was intentional; (ii) the testator had other children at the time the will was executed and left substantially all of his estate to the other parent of the pretermitted child; or (iii) the testator provided for the child outside of the will and intended this to be in lieu of a provision in the will.
