Wills & Estates Flashcards
Holographic Will Requirements
A holographic will
1. is in a testator’s handwriting,
2. signed by the testator,
3. and need not be witnessed.
==> subject to state specific reqs to b recognized
Beneficiary of a Life Insurance Policy
Life insurance policies typically provide that proceeds will only be paid to a beneficiary named on an appropriate form filed with the insurance company;
==> other possible methods of changing a beneficiary are thus viewed as being excluded by the insurance contract.
==> However, some courts have upheld a beneficiary change by will if the insurance company does not object.
A beneficiary of a life insurance policy **takes by virtue of the insurance contract. **
The proceeds are not part of the decedent’s estate, unless they are payable to the estate as beneficiary.
Wills Incorporation of Other Docs
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.
Lapse & Anti-Lapse
Under common law, if a beneficiary died before the testator or before a point in time by which he was required to survive under the will, the gift failed and went to the residue unless the will provided for an alternate disposition.
Today, almost all states have anti-lapse statutes that provide for the alternate disposition of lapsed gifts. Under the majority of the statutes, if the gift was made to a relation of the testator within a specific statutory degree, and the relation predeceased the testator but left issue, then the issue succeeds to the gift, unless the will expressly states the contrary.
Abatement Priority
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 (property inherited w/o will);
(ii) residuary bequests (gift of remaining assets after other expenses have already been paid);
(iii) general bequests (paid from estates general assets); and then
(iv) specific bequests (paid from specific assets of estate).
Abatement within each category is pro rata (e.g. w/in each category recipients receive = amounts)
Choice of Law for Will
At common law, the validity of a will is determined under the law of the state **where the testator was domiciled at the time of his death. **
Under the UPC, validity is determined under the law of the place where
(i) the will was executed, or
(ii) the** testator is domiciled**, has a place of abode, or is a national **at the time of death. **
Conditional/ Contingent Wills
The validity of a will can be conditioned on a particular event or circumstance.
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
Factors to consider
-whether the event is referred to expressly as a condition or only a statement of the motive for executing the will.
-where the will was stored after the purported “condition” lapsed
-whether setting the will aside would result in intestacy
-whether effectuating the will would result in an inequitable distribution
Identifying Intended Beneficiary
Under the general rule of construction, a will “speaks” as of the time of death.
Courts are reluctant to disturb the plain meaning of a will regardless of mistake.
However, if there is an ambiguity, courts allow extrinsic evidence to resolve it.
Omitted Heir Statute
Pretermitted heir statutes allow children of a testator 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.
Issue
person’s lineal descendants, or all of their genetic descendants, regardless of degree.
This includes children, grandchildren, and other descendants.
“Issue” is a narrower term than “heirs”, which also includes spouses and collaterals, such as siblings, cousins, aunts, and uncles.
POA
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.
Healthcare POA
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.
Killing X Inheritance
In general, a party cannot take property from a decedent when the party was responsible for the decedent’s death.
==> The killing must have been intentional and felonious to bar the killer from taking.
