Wills & Estates

Question 1

When does property pass intestate?

Answer 1

(1) A decedent dies without having made a will,
(2) A decedent’s will is denied probate, or
(3) A decedent’s will does not dispose of all of his property.

Question 2

What do surviving spouses take?

Answer 2

1/2 of the net estate.

If the surviving spouse is a 2nd+ spouse and the kids are not of the surviving spouse, the surviving spouse takes 1/4 of the FMV of the decedent’s real property AND 1/2 of the net personal property.

If there are no parents are descendants, the surviving spouse takes all.

Question 3

What share if decedent is survived by a spouse and one/both parents?

Answer 3

The surviving spouse takes 3/4 of the net estate.

Question 4

How do descendants take?

Answer 4

Per capita w/ representation.

The property is divided into equal shares at the 1st generational level at which there are living takers. The share of each deceased person at that level passes to his issue.

Question 5

If a decedent is not survived by a spouse or descendants, in what order is his estate distributed?

Answer 5

(1) Parents, siblings, and issue of deceased siblings,
(2) Nieces, nephews, and their descendants,
(3) Surviving grandparents,
(4) Aunts, uncles, and their descendants, and
(5) If none, the estate escheats to the state.

Question 6

How are adopted children treated?

Answer 6

The same as natural children of the adopting parents.

Question 7

How are stepchildren and foster children treated?

Answer 7

They have no inheritance rights.

Question 8

How are nonmarital children treated?

Answer 8

Nonmarital children always inherit from the mother.

Nonmarital children will inherit from their father if rules regarding establishing paternity were followed.

Question 9

Is there a distinction between half bloods and whole bloods?

Answer 9

No, they inherit equally.

Question 10

What is the Uniform Simultaneous Death Act (“USDA”)?

Answer 10

When disposition of property depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if he had survived the other.

Question 11

What are the requirements for a disclaimer?

Answer 11

(1) Must be in writing,
(2) State that it is a disclaimer,
(3) Describe the interest being disclaimed,
(4) Be signed, and
(5) Be delivered.

Question 12

What is the effect of a disclaimer?

Answer 12

The interest passes as though the disclaiming party predeceased the decedent.

Question 13

What is the “slayer” statute?

Answer 13

If an heir or beneficiary is found guilty or guilty but mentally ill of murder, voluntary manslaughter, or causing the suicide of the decedent, he forfeits any interest in the decedent’s estate and a constructive trust is created.

Question 14

What is an advancement?

Answer 14

It is a lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate.

Question 15

What is the presumption re: an advancement?

Answer 15

A lifetime gift is presumptively not an advancement unless show to be intended as such.

Question 16

How is an advancement demonstrated?

Answer 16

A gift is an advancement only if it is:

(1) Declared as such in a writing by the donor,
(2) Acknowledged as such by the heir, or
(3) Evidenced by a writing that indicates the gift is to be taken into account in computing the decedent’s intestate estate.

Question 17

Is an advancement binding on the advancee’s successors?

Answer 17

Yes.

Question 18

What is a satisfaction of legacies?

Answer 18

When a testator makes a lifetime gift to a will beneficiary and it is deemed to be in partial or total satisfaction of the bequest made in the will.

Question 19

A beneficiary of a will has what type of interest?

Answer 19

An expectancy (not a property interest).

Question 20

How is testamentary intent shown?

Answer 20

(1) The testator intended to dispose of the property,
(2) Intended the disposition to occur upon his death, and
(3) Intended that the instrument in question accomplish the disposition.

Question 21

How is testamentary capacity achieved?

Answer 21

18+ and of sound mind at the time he makes the will.

Question 22

What is required in Indiana for a will to be valid?

Answer 22

(1) Signed by the testator,
(2) Two attesting witnesses,
(3) The testator signs the will in each of the witnesses’ presence,
(4) The witnesses sign in the testator’s presence,
(5) The testator “publish” the will, and
(6) The witnesses sign in the presence of each other.

Question 23

What are the requirements for a signature?

Answer 23

Any mark affixed by the testator with the intent it operate as her signature is valid. A signature anywhere on the document is acceptable.

Question 24

What is the “conscious presence” test?

Answer 24

The presence requirement is satisfied if each party was conscious of where the other parties were and what they were doing, and the act of signing took place within the general awareness and cognizance of the other parties.

Question 25

In Indiana, what happens if a will is signed by an interested witness?

Answer 25

The will is still valid, but the bequest to the interested witness is void unless she is supernumerary or would have taken a share if the will had not been probated.

Question 26

What is a holographic will and is it recognized in Indiana?

Answer 26

It is one that is entirely in the testator’s handwriting and has no witnesses. It is not recognized in Indiana.

Question 27

What are the parameters for oral wills in Indiana?

Answer 27

They must be made while the testator was in imminent peril of death and ultimately died from that peril.

Limited to $1,000.

Must be declared by the testator before 2 disinterested witnesses, reduced to writing within 30 days, and submitted for probate within 6 months of death.

It cannot revoke an existing written will.

Question 28

In Indiana, how do extraneous papers become part of a will?

Answer 28

They must be incorporated by reference.

Question 29

What is a codicil?

Answer 29

Modifies a previously executed will and must itself be executed with the same formalities.

Question 30

Will an addition, alteration, or deletion made after a will has been signed and attested be effective?

Answer 30

No, unless the will is reexecuted with proper formalities.

Question 31

How is a document incorporated by reference?

Answer 31

(1) It is in existence at the time of execution,
(2) It is clearly identified in the will, and
(3) The will manifests an intent to incorporate the document.

**If the incorporated writing is amended at any time after the will’s execution, the amendments are disregarded.

Question 32

What are acts of independent significance?

Answer 32

The acts must have significance apart from their effect on dispositions made by the will.

Ex. A bequest “to each person in my employ at the time of my death” is valid because it is assumed the testator would not make employment decisions solely for the purpose of disposing of her property.

Question 33

How may a will be revoked?

Answer 33

(1) Operation of law,
(2) Subsequent instrument, or
(3) Physical act.

Question 34

What are the rules re: a pretermitted child?

Answer 34

If the testator fails to provide in his will for any child born or adopted after the execution of the will, the child takes an INTESTATE share.

Question 35

If a subsequent instrument does not expressly revoke the earlier will, what happens?

Answer 35

The two are read together, with the later instrument revoking the earlier only to the extent of inconsistent provisions.

Question 36

How is revocation by physical act achieved?

Answer 36

Mutilating or destroying an essential part of the will with the concurrent intent to revoke.

The act may be done by another if done at the testator’s direction and in his presence.

Question 37

What is the presumption re: revocation?

Answer 37

If a will last seen in the testator’s possession/control cannot be found after his death or is found in a mutilated condition, a rebuttable presumption arises that the testator revoked it.

Extrinsic evidence is admissible to overcome the presumption.

Question 38

What is dependent relative revocation (“DRR”)?

Answer 38

It applies when a testator revokes his will under the mistaken belief that another disposition of his property would be effective, and but for this mistaken belief, he would not have revoked the will.

Question 39

What is a joint will?

Answer 39

It is a single instrument executed by 2+ testators and intended to be the will of each.

Question 40

What are reciprocal wills?

Answer 40

They are separate wills executed by 2+ testators that contain substantially similar provisions.

Question 41

When does a gift lapse? What is Indiana’s law regarding this?

Answer 41

If the beneficiary predeceases the testator.

Descendants take by substitution.

Question 42

What is ademption?

Answer 42

The failure of a gift because the property is no longer in the testator’s estate at the time of her death.

Question 43

To what does ademption apply?

Answer 43

Only to specific devises and bequests.

If specifically bequeathed property is not in the testator’s estate at death, the bequest is adeemed and the beneficiary takes nothing.

Question 44

What is an elective share statute?

Answer 44

It gives the spouse an election to take a statutory share of the decedent’s estate in lieu of taking under the decedent’s will.

Question 45

Under the elective share statute, what would a surviving spouse take?

Answer 45

1/2 of the net estate.

If the surviving descendants are not descendants of the surviving spouse, the elective share is 1/3 of the net personal estate, plus 1/4 of the FMV of the real property.

Question 46

What is a family allowance?

Answer 46

The surviving spouse is entitled to $25,000 to be satisfied out of the personal or real property (or both) from the decedent’s estate. If no spouse, the allowance goes to the decedent’s minor children.

Question 47

What are the grounds for a challenge of the will?

Answer 47

(1) Defective execution,
(2) Revocation,
(3) Lack of testamentary capacity,
(4) Lack of testamentary intent,
(5) Undue influence,
(6) Fraud, and
(7) Mistake.

Question 48

How is mental capacity determined?

Answer 48

A testator must have the capacity to understand:

(1) The value and extent of her property,
(2) The people who are the natural objects of her bounty, and
(3) The nature of the disposition she is making.

Question 49

How is undue influence established?

Answer 49

Contestants must establish that:

(1) Influence was exerted,
(2) The effect of the undue influence was to overpower the mind and free will of the testator, and
(3) The resulting testamentary disposition would not have been executed but for the influence.

Question 50

When does a presumption of undue influence arise?

Answer 50

When:

(1) There was a confidential relationship between the testator and the beneficiary, and
(2) The will provisions unnaturally favor that beneficiary.

Question 51

What constitutes successful grounds of fraud?

Answer 51

The testator was willfully deceived as to:

(1) The character and content of the instrument,
(2) Extrinsic facts that would induce the will or a particular disposition, or
(3) Facts material to a disposition.

Question 52

What is a latent ambiguity?

Answer 52

A latent ambiguity arises if a will’s language is clear on its face but results in a misdescription as applied.

Question 53

What is a patent ambiguity?

Answer 53

A patent ambiguity exists if the uncertainty appears on the face of the will.

Question 54

Can extrinsic evidence be admitted to resolve a patent or latent ambiguity?

Answer 54

Yes.

Question 55

What is a no-contest clause and is it valid?

Answer 55

It provides that a beneficiary who contests a will forfeits his interest under the will.

These clauses are void in Indiana.

Question 56

What is the difference between an executor and an administrator?

Answer 56

An executor is the personal representative named in the will. If not named, he is an administrator.

Question 57

What are a personal representative’s duties?

Answer 57

(1) Give notice to devisees,
(2) Discover and collect the decedent’s assets and file an inventory,
(3) Manage the assets of the estate during administration,
(4) Pay expenses of administration, and
(5) Distribute property.

Question 58

In what order are claims distributed?

Answer 58

(1) Administration expenses,
(2) Funeral expenses and expenses of the last illness,
(3) Family allowance,
(4) Debts given preference under federal law,
(5) Secured claims,
(6) Judgments entered against the decedent during his lifetime, and
(7) All other claims.