Wills & Estates Flashcards
Intestate Succession
HIGH
Any property not passing by a vild will or by operation of law will be governed by a state’s applicable intestacy statute.
Surviving spouse, no issue: Majority - spouse receives entire estate; minority - parents recieve some estate
Surving spouse, plus issue: Majority - spouse receives portion of estate, issue will take a certain percentage; UPC - surviving spouse receives entire estate ifall issue are issue of the surviving spouse
No spouse, plus issue: estate passes to decedent’s issue.
No spouse, no issue: Estate passes in following order:
* to decedent’s surviving parrents equally
* to the issue of the decedent’s parents (siblings)
* to more remote ancestors AND
* to issue of more remote ancestors
In majority of states, distribution of intestate assets will be performed usingthe Per Capita at Each Generation approach.
Will Execution
HIGH
Most states require a will be in writing signede by the testator and witnesseddby at least two individuals.
UPC: a will must be:
* in writing
* signed by the testator (showing intent by testator to create will)
* and either signed by at least two individuals witin a reasonable time after witnessing the signing of the will or be notarized.
Majority View: A will is signed by a witness in th etestator’s presence if it’s signed within the range of the testator’s senses (“conscious presence”).
Minority View: A will is signed by a witness in the testator’s presenvce if it’s signed within the testtator’s line of sight.
Strict Compliance
(Will Executio)
MED
Common Law: A will is invalid if it does not meet all requirements of the state’s law. Some states say okay if it substantialy complied with the state’s requirements.
UPC: Harmless Error Rule: an improperly executed will will still e valid if the party seeking to have it validated proves:
* by clear and convincing evidence
* that the decedent intended the writing to be his will
Doctrine of Integration
MED
A document will be integrated into a will if the testator:
* intended it to be part of the will AND
* document was physically present at the will’s execution.
All pages of a wil that are together when the last page is signed and witnessed are deemed to have been validly executed.
Integration may be proven by extrinsic evidence or witness testimony.
Interested Witnesses
HIGH
A will with an interested witness is valid, but gift to interested witness will be deemed void.
Exceptions:
* if the interested witness is an heir, any gift to that witness will be the lesser of (i) their intestate share or any gift under a prior will or (ii) the gift under the current probated will OR
* if another disinterested witness was present so that there is stil la total of two disinterested witnesses.
Codicils
HIGH
A codocil is an instrument made after a will is excuted that modifies amends or revokes a will.
A codocil must satisfy the same formalities as a will to be valid.
Execution of a codicil republishes the will, meaning courts will consider original will to have been executed on the same date as the codicil.
A validly executed codicil will cure any interested witnss issues with the original will or document, granted the codicil is witnessed by requisite number of disinterested witnesses.
A codicil cannot republish an invalid will.
Holographic Will
HIGH
A holographic will is a handwritten will that is not witnessed.
Not all states recognize holographic wills.
In the states that do, some require that the writing also be signed by the testator at the end.
A valid holographic codicil revokes any earlier valid will to the extent it conflicts with the codicil.
Incorporation by Reference
HIGH
A bequest through an unattested document is valid if it meets the requirements to be incorporated int o a will by reference.
A document or writing may be incorporated int oa will by reference if:
* it was in existence at the time the will was executed
* it is sufficiently described in the will AND
* the testator intended to incorporate it into the will
UPC: Document bequething tangible personal property is incorporated into will if it:
* was signed by the testator AND
* describes with reasonable certainty the items and the devisees
Under UPC, Document is not required to in existence at the time the will is execueted and may be prepared after execution
Acts of Independent Significance
LOW
A courtm ay use an act of independent significance to fill in any gaps of a will.
Acts of independent significance are those with significance outside of the will-making process.
Revocation of Will by Physical Act
HIGH
A will is revoked by a physical act if:
* testator intended to revoke the will
* the will is burned, torn, destroyed or cancelled by the testator
Common Law: words of cancellation are valid only if they come in physical contact with words of the will
UPC: words of cancellation are valid even if the ydid not physically contact the words of the will.
Note: A testator cannot substitute a gift by crossing out the type of gift and substituting it for another type of gift. Revocation is valid but substituted gift is not.
Revocation by Subsequent Will or Codicil
HIGH
A testator may revoke a will by executing a subsequent valid will or codocil.
Execution of a new will revokes a previous will only to the extent that the previous will conflicts wit hthe new will, unless the new will expressly revokes the previous will in its entirety.
Dependent Relative Revocation Doctrine
HIGH
Cancels a previous revocation that was made under a mistaken belief of law or fact by the testator.
The doctrine applies when the testator would not have revoked his original will or bequest but for the mistaken belief that another will they prepared would be valid.
Courts apply only when there is sufficiently close identity to the revoked bequest and the bequest in the invalid subsequent will.
Revival of a Will
MED
Common Law: An earlier will was automatically revived if a subsequent wil lwas revoked.
Modern View: Revival of revoked wills permitted in specific circumstances:
* a will revoked by physical act will be revived if a testator shows intent for its revival OR
* a will revoked by subsquent intstrument can be revived if the testator republishes the will by a subsequent will or codicil that complies with the will execution formalities
Probate Code: If a will is only partially revoked by a subsequetn instrument, the revoked provisions will automacially be revived unless testator did not intend their revival.
Contractual Wills
MED
In most states, contracts to execute mutual wills are enforceable.
Elements:
- Agreement must expressly state that te parties intend their wills to be a binding contract between them
- There must be a specific reference to the contract upon which the joing wills are based and
- there must be pecific, express intent that the parties desire the contract.
If a party breaches the agreement to execute mutual wills, a court will probate the new will and then impose a constructive trust in favor of the original intended beneficiares under the contractual will.
The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke a will.
Some states recognize revocation of contractual wills if there is sufficient notice before one of the parties dies.
Will takes Effect at the Time of Death
MED
A wil ltakes effect and is construed at the time of testator’s death.
For distribution prposes, a will is treated as if it was executed immediately before the testator’s death and the estate is comprised of the property owned by the testator at the time of death.
A beneficiary listed in a person’s will does not have any interest in the estate property prior to that person’s death.
