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Rocking the Bar Exam > Wills & Estates (Essay Only) > Flashcards

Wills & Estates (Essay Only) Flashcards

1
Q

terms

decedent

A

someone who has died

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2
Q

terms

testate

A

decedent dies WITH a will

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3
Q

terms

intestate

A

decedent dies WITHOUT a will

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4
Q

terms

probate

A

judicial process for administering and settling a decedent’s estate

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5
Q

terms

intestate succession

A

default estate plan, developed by legislature, or distributing property when decedent dies intestate
decedent’s actual intent is irrelevant

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6
Q

terms

heirs

A

individuals entitled to receive property by intestate succession

living people do not have heirs

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7
Q

terms

issue

A

decedent’s lineal line
descendants
decedent’s kids, their grandkids, etc.

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8
Q

terms

anestors

A

decedent’s parental line
parents, grandparents, etc.

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9
Q

terms

collaterals

A

decedent’s relatives through an ancestor
siblings, cousins, aunts, etc.

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10
Q

simultaneous death - what happens?

decedent + heir die at same time

A

Uniform Probate Code follows Uniform Simultaneous Death Act

if insufficient evidence to determine who died first, property will pass as though each had predeceased the other
heir must be proven by clear and convincing evidence to have survived the decedent by 120 hours

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11
Q

what is needed to take from a decedent?

A

individual must survive the decedent

but note simultaneous death

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12
Q

calculate surviving spouse’s share

option 1: spouse + shared descendants

A

surviving spouse gets entire estate (100%)

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13
Q

calculate surviving spouse’s share

option 2: spouse + parent

A

surviving spouse gets $300k + 75% of remainder of estate

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14
Q

calculate surviving spouse’s share

option 3: spouse + shared descendants + spouse’s kids

A

surviving spouse gets $225k + 50% remaining property

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15
Q

calculate surviving spouse’s share

option 4: spouse + non-spousal kids

A

surviving spouse gets $150k + 50% remaining property

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16
Q

calculate surviving spouse’s share

option 5: spouse only (no descendants or parents)

A

surviving spouse gets 100%

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17
Q

what happens if dependent dies without heirs?

A

property will escheat to the state

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18
Q

intestacy

who qualifies as an issue

A
  • must be parent/child relationship
  • stepparent adoption - creates parent/child relationship, adoption doesn’t prevent adoptee from inheriting from other genetic parent
  • if child is conceived before parent dies but born within 280 days of husband’s death, there is rebuttable presumption that child is the husband’s and can inherit (otherwise, they would need to prove parentage)
  • Uniform Parentage Act increases to 300 days
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19
Q

calculating the issue’s share

method 1: per stirpes

A
  • divide shares equally according to decedent’s lineal line
  • divide shares into total number of kids who survive or leave issue who survive, then divide by representation
  • surviving kid can stand in the place of their deceased parent
  • issue takes in equal shares regardless of whether anyone in that generation survived
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20
Q

calculating the issue’s share

method 2: per capita with representation

A
  • divide the property equally at first generation where a member survives the decedent
  • if deceased members at first generation, their shares drop down to their surviving issue at the next generation
  • if deceased member is not survived by living issue, then that member doesn’t take a share
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21
Q

calculating the issue’s share

method 3: per capita at each generation (Uniform Probate Code)

A
  • divide property into equal shares at first generation where there is a surviving member
  • pool the remaining shares after each generation –> divide equally at next generation
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22
Q

tip

how to do problems with surviving spouses + decedents

A

start with surviving spouse first
then do the kids

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23
Q

execution of wills

what are the formal execution requirements for a will

A
  1. signed writing
  2. witnesses
  3. testamentary intent - present intent to make a testamentary transfer
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24
Q

execution of wills

what is required for the signed writing by testator?

A
  • entire will must be signed by testator
  • Uniform Probate Code does NOT allow oral (including video) wills
  • some states: signature must be at end of document
  • other states (and UPC): signature can be on any part of the doc, important part is whether testator intended their name to be a signature; if signature is not at bottom, any words after signature are not given effect
  • capacity: must be 18 years old + of sound mind (measured at time of signing)
  • formal signature is not required, must indicate testator’s desire to sign
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25
Q

execution of wills

what is required for attestation (witnesses)

A

presence

  • signed in presence of at least two witnesses
  • witnesses must sign the doc (not necessarily at same time)
  • most juris: testator must sign or acknowledge the will in presence of witnesses + witnesses must sign in the presence of testator
  • UPC: witnesses must sign within a reasonable time of the original signature by testator
  • line of sight approach to presence (traditional): witness and testator must observe or have oppy to observe signing of the will (same room)
  • conscious presence approach (modern): witness or testator must be aware the act is being performed, even if they can’t see it

interested witnesses (has a direct financial interest in the will)

  • common law: interested witnesses are not competent to witness the will
  • UPC: abolished this doctrine, just go after problematic witness via undue influence or fraud
  • purge theory (many states): direct financial interest does not affect validity of will
  • BUT probate court will purge any gain in excess of what the witness would take under intestate succession
  • do NOT purge gain IF there were 2 other disinterested witnesses OR interested witness would take share under intestate succession + interested witness takes the lesser to eh intestate share or bequest
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26
Q

execution of wills

what happens if there’s a failure to satisfy the formalities?

A
  • common law (majority): strict compliance with will formation formalities
  • modern view (UPC, minority): substantial compliance
  • clear and convincing evidence that descendent intended the doc to serve as their will
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27
Q

execution of wills

holographic will

A
  • informal, handwritten will
  • does not need witnesses
  • must be signed to be valid
  • some jurisdictions: any markings not in testator’s handwriting invalidate the will
  • UPC: only requires that material provisions are in testator’s handwriting
  • look for words or phrases that suggest intent
  • UPC expressly authorizes looking to extrinsic evidence to establish intent

words that express intent: “bequeath” “inherit”

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28
Q

tip

person is handwriting something about their property –> what is this a flag for

A

holographic analysis
focus on intent!

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29
Q

execution of wills

codicils

A
  • supplements (does not replace) a will
  • must be executed with same formalities as a will
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30
Q

execution of wills

examples of will substitutes (non-probate transfers)

A
  • joint tenancy - avoids probate b/c right of survivorship
  • revocable trust - b/c inter vivos transfer
  • pour-over will - b/c distributes property under a trust
  • payable on death contract - b/c distributes by inter vivos transfer
  • deeds - b/c inter vivos transfer
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31
Q

what happens with beneficiaries of life insurance policies

Essay 1984

A
  • beneficiary of a life insurance policy takes by virtue of the insurance contract
  • proceeds are not part of the decedent’s estate, unless they are payable to the estate as beneficiary
  • need to change beneficiary via form with insurance company
  • some courts have upheld a beneficiary change by will if the insurance company does not object
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32
Q

how are gifts abated if there isn’t enough money to satisfy in full?

Essay 1984

A

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

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33
Q

revocation of a will

timeline to revoke or alter a will

A

wills can be altered or revoked at any time up until testator’s death (ambulatory will)
can be revoked in full or part

34
Q

revocation of a will

ways to revoke a will

A
  1. subsequent instrument
  2. physical act
  3. operation of law
35
Q

revocation of a will

subsequent instrument

A

express revocation
later writing expressly revokes a prior will

implied revocation (inconsistency)
later writing is inconsistent with prior will
so long as it is validly executed, later will controls

36
Q

tip

distinguish between codicil vs. new will

A

look at residuary gift

original will has residuary gift + later writing does not –> later writing is probs a codicil

original will does NOT have a residuary gift + later writing does –> later writing is probs a will

37
Q

revocation of a will

physical act

A

testator may revoke a will be engaging in a physical act of destruction (tearing, burning, crossing stuff out)
must intend for physical act to revoke the will

destroying specific language

  • majority: particular language in question must be destroyed
  • UPC: only requires that destructive act affect some part of the will

lost wills (lost at time of testator’s death)

  • creates a rebuttable presumption that testator revoked will by physical act
  • burden is on proponent to show will’s existence by clear and convincing evidence
  • duplicate originals can be admitted, but not copies
38
Q

revocation of a will

operation of law

A
  • most jurisdictions: divorce revokes all will provisions in favor of the former spouse
  • EXCEPT if there is evidence that testator wanted will to survive
  • UPC also invalidates gifts to ex’s relatives
  • subsequent marriage does not revoke a will
39
Q

revocation of a will

3p revocation

A

3p can revoke on behalf of a tester IF
1. at testator’s direction AND
2. in testator’s conscious presence (phone call isn’t enough)

40
Q

revocation of a will

revoking codicils

A

by revoking a will, testator also revokes any codicil attached to the will

BUT if revoke a codicil, the underlying will is revived in its original form

41
Q

revocation of a will

revival of a will

A
  • UPC (majority) does not recognize automatic revival of a revoked will
  • Dependent Relative Revocation - safety valve for testators who revoke a will based on a mistake, mistake can be grounded in law or fact
  • DRR invalidates the mistaken revocation and revives the earlier revoked will
42
Q

tip

revocation based on a mistake –> what analysis should I do?

buzzwords: revocation, mistake, causation, safety valve

A

Dependent Relative Revocation (DRR)

focus on the idea that but for the mistake, testator would not have revoked the first will

43
Q

interpretation (construction) of wills

plain meaning doctrine

A

courts give words in will their plain meaning

except: will states otherwise (defined terms)

44
Q

interpretation (construction) of wills

incorporation by reference (will refers to a document outside the will itself that doesn’t meet testamentary formalities)

A

other writing must meet three requirements:
1. it existed at the time the will was executed (UPC waives if doc disposes only of personal property)
2. the testator intended the writing to be incorporated into the will
AND
3. the writing is described in the will with sufficient certainty so as to permit its identification

45
Q

interpretation (construction) of wills

acts of independent significance

A

testator can dispose of property based on some act or event that is unrelated to the execution of the will

applies to acts in the future (after execution of the will)

46
Q

interpretation (construction) of wills

lapse and anti-lapse statute

also covered in Real Property, but less detail

A
  • common law: testamentary gift would lapse (fail) if an intended beneficiary didn’t survive testator, failed gifts would be dumped into residuary gift
  • anti-lapse statutes provide an alternative disposition for lapsed gifts, prevents certain gifts from lapsing
  • (1) protected relationship (intended for relative) + (2) survived by issue –> issue gets the gift
  • if elements not met, common law rule applies (gift goes to residuary)
47
Q

interpretation (construction) of wills

class gifts + lapses

A
  • common law: if a member’s gift lapses, rest of class share that member’s gift
  • if lapsed member is covered by anti-lapse statue, that rule controls
  • not covered by anti-lapse statute, rest of class members are that member’s gift
48
Q

interpretation (construction) of wills

abatement (including hierarchy)

A

if estate doesn’t have sufficient funds to pay debts or make gifts, gifts will be abated in a specific order

  1. asset property
  2. residuary gift - left over
  3. general gifts - gift of property satisfied from general assets of estate (like $ generally)
  4. specific gifts (last to be reduced, most protection) - gift of a particular piece of property

demonstrative gift - gift from a particular source (like money from BAC account)
if demonstrative gift can be satisfied, treated as specific gifts; otherwise, treated as general gifts

49
Q

interpretation (construction) of wills

ademption

A

ademption by extinction
* will makes specific devise of property, but the property is no longe run the estate
* traditional rule (identity theory): device is extinct, devisee takes nothing
* UPC (intent theory): look at testator’s intent at time they disposed of property, look for facts that suggest the testator intended the ademption, trying to avoid ademption

ademption by satisfaction
* testator satisfies a specific or demonstrative gift (in whole or part) via inter vivos transfer
* (1) testator must have intended for the gift to deem + (2) intent must be supported by a writing

50
Q

ambiguities in a will - how do you deal with them?

A
  • latent ambiguity - can’t see the problem on the face of the will, need context
  • patent ambiguity - problem appears on the face of the document

rules:

  • traditional rule: patent ambiguities have to be resolved w/o looking at extrinsic evidence, can use extrinsic evidence for latent ambiguities
  • modern rule (majority): both ambiguities can be resolved with extrinsic evidence
51
Q

mistakes in a will - how do cts deal with them?

A

courts aren’t very forgiving

52
Q

limits on power to transfer

rights of surviving spouse

A

elective share

  • surviving spouse can elect to take a forced share (they get their share first so it reduced the gifts to other beneficiaries)
  • UPC: forced share is 50% of decedent’s augmented estate
  • augmented estate (UPC) = property acquired before + during marriage (vs. community property share - during only)

waiver

  • can waive right to elective share IF
  • (1) waiver in writing after a fair discourse of its contents AND (2) spouse is represented by independent legal counsel

surviving spouse has lots of means of support

  • social security + pensions
  • homestead exemption (keep the house)
  • personal property set asides
  • family allowance for reasonable living expenses during probate
  • elective share
53
Q

limits on power to transfer

gifts to testator’s children - advancements

advancements - lifetime gift to kid that is treated as satisfying all/part of kid’s intestate share

A

common law
any lifetime gift is presumed to be an advancement
child has burden to show it was an outright gift

hotchpot analysis
add value of advancements back into intestate estate
divide resulting estate by number of children taking
deduct child’s advancement from their interstate share

UPC
gift is advancement only if
(1) decedent declared in a contemporaneous writing that gift was an advancement OR
(2) writing indicates gift should be taken into account in computing the division of property of decedent’s estate

54
Q

limits on power to transfer

gifts to testator’s children - omitted children

A
  • intentional disinheritance - allowed (ofc)
  • unintentional disinheritance (like forgetting to update your will when you have another kid)
  • if testator had no other children when will was executed, omitted child takes their intestate share
  • if tester had at least one child at execution + will devised property to at least one child, then omitted child takes equal share from portion of property already devised to the other child
55
Q

limits on power to transfer

bars to succession: slayer statutes

A
  • beneficiary who murders the decedent is barred from taking under decedent’s will
  • murderer is treated as if they predeceased the testator
  • only murder-murder, not involuntary manslaughter or self defense
  • UPC allows killer’s issue to take when relevant

sidenote (not part of slayer statute): someone convinced of financial exploitation, abuse, or neglect of a person under their care (like elder abuse) is prohibited from inheriting from that person

56
Q

limits on power to transfer

bars to succession: disclaimer

A

person may disclaim a testamentary gift (probs b/c taxes)

disclaimer must be
(1a) in writing, signed, filed with court OR
(1b) declared to the person in charge of distributing the estate
AND
(2) identify the decedent, describe the interest being disclaimed, and define the extent of the disclaimer

must disclaim within 9 months of death

57
Q

limits on power to transfer

categories

A

limits on testator’s ability to transfer property

  • rights of testator’s spouse
  • gifts to testator’s children
  • bars to succession: slayer statutes + disclaimer
58
Q

tip

difference between ademption by satisfaction and advancements

A

ademption by satisfaction is for testate
advancements deal with intestate succession

59
Q

will contests

general info about will contests

A
  • objections the validity of a will
  • only an interested party has standing to challenge
  • interested party: (1) receive a financial benefit under the will OR (2) take under intestate succession but not under the will
  • interested party must file a contest claim within 6 months after will is admitted to probate
60
Q

will contests / testamentary capacity

general testamentary capacity

A
  • when: person challenging the will (contestant) bears burden of providing the testator lacked the requisite mental capacity at time of execution of the will

whether testator had ability to know (NOT actual knowledge)

  • why: nature of the act
  • what: nature and character of their property
  • who: natural objects of their bounty (like their kids)
  • how: plan of the attempted disposition
61
Q

will contests / testamentary capacity

insane delusion

A
  • false belief to which testator adheres in spite of all reason and evidence to the contrary
  • testator has general capacity, but insane delusion as to some belief
  • objective test: (1) measure testator’s insane delusion against actions of a rational person in testator’s person and (2) belief is an insane delusion if rational person could not have reached the same conclusion
  • causation - insane delusion was a but for cause of the testamentary disposition

ex. testator is convinced spouse is cheating on them (even though no evidence) so will leaves nothing to spouse

62
Q

will contests

undue influence

A
  • coercive relationship
  • contestant alleges that a 3p effectively controlled the testator’s decision making process

contestant bears initial burden of showing
1. beneficiary received a substantial benefit under the will
2. beneficiary had a confidential relationship with the testator (frequently lawyer, doctor, therapist)
AND
3. testator had a weakened intellect at time of execution

if contestant meets burden, there is presumption of undue influence
burden shifts to proponent (3p) to show by a preponderance of evidence that there was no undue influence

beneficiary is treated as if they predeceased testator to the extend that the gift is in excess of beneficiary’s intestate share

causation is v important

like a whisper in the ear

63
Q

will contests

fraud

A

contestant bears burden of showing that the beneficiary engaged in an unlawful misrepresentation at time of conveyance

beneficiary made misrepresentation with
1. intent to deceive the testator AND
2. for purpose of influencing the testamentary disposition

  • fraud in the inducement
  • fraud in the execution

remedy - constructive trust

64
Q

tip

difference between undue influence and fraud vs. insane delusion

A

undue influence and fraud require act by 3p

insane delusion is in mind of testator

65
Q

will contests

forfeiture clauses

A
  • in terrorem - no-contest clause designed to dissuade a beneficiary from suing about their share
  • UPC: clause is unenforceable if beneficiary had probably cause to challenge
  • so if beneficiary did NOT have probably cause (claim is groundless, the forfeiture clause is enforceable
66
Q

tip

how to analyze probate question

A
  1. ID each piece of property as probate or non-probate
  • if non-probate: figure out who takes it
  • everything else is probate –> testate or intestate succession
  1. if there a will? is it valid? who are the intended beneficiaries?
  • any property not specifically devised will pass via intestate succession
  1. if no will, all property goes through intestate succession
67
Q

probate process

how does non-probate property transfer?

A

instrument other than a will

examples:
deed
trust
joint tenancy with right of survivorship
payable on death contract

68
Q

probate process

purpose of probate process

A

orderly administration of a decedent’s estate
protects and satisfies creditors
quiets contested titles, transfers titles to rightful holder
protects tester’s interest
efficient

remember: only those who stand to benefit financially under a will have standing to contest a will

69
Q

probate process

filing under UPC

A

probate proceedings must be brought within 3 years of death, then there s a presumption of intestacy
party requesting probate can have it occur through informal (ex party) or formal probate (notice)

70
Q

probate process

creditors

A
  • non-claim statute prevents a creditor form making a claim on the decedent’s estate after a certain time period has elapsed (barred if not brought within that window)
  • personal representative must provide notice to creditors of the state

classes of creditors
1. administrative expenses (most important)
2. medical and funeral expenses
3. family allowances (children and spouses)
4. taxes
5. secured claims
6. judgments against decedent
7. all other claims

71
Q

probate process

personal representative

A
  • person who acts on behalf of estate during probate process
  • if appointed by court - administrator
  • if named in will - executor
  • fiduciary owing duties of loyalty and care
  • cannot engage in self-dealing
  • gets paid from the estate
72
Q

probate process

if no named personal representative in will, who will serve?

A

in order of priority

  1. surviving spouse who is devisee
  2. other surviving devisee
  3. surviving spouse (if not devisee)
  4. other heirs of decedent
  5. any creditor (after 45 days of decedent’s death)
73
Q

power of appointment

what is power of appointment (generally)

A

describes ability of decedent (donor) to select an individual (donee) to dispose of certain property under the will

power is personal to the donee (only the donee can appoint)

general and special

74
Q

power of appointment

general power of appointment

A

no conditions or restrictions on donee’s power
if donee fails to exercise the power, property reverts back to donor’s estate

75
Q

power of appointment

special power of appointment

A

donor can specific certain individuals or groups as objects of the power
donor lists the donee’s power

76
Q

powers of attorney

what is needed for a power of attorney to be valid

A

authority to act on another’s behalf in a legal or business matter
principal / agent relationship

  1. must be in writing
  2. signed AND
  3. dated
77
Q

powers of attorney

types of powers of attorney

A

general: covers all affairs during a person’s period of incapacitation

special: limits authority to specific subject matters (like resolving a certain deal)

advance health care directives:
* living will - dictates care individual wants in teh event they cannot make those wishes known, agent needs to make sure directive is enforced
* durable POA for health care - appoints agent in event principal becomes incapacitated and is unable to make medical decisions, allows agent to stand in principal’s shoes and make decisions for them

78
Q

community property rules

A

don’t apply unless exam question says to

surviving spouse is entitled to 100% of community property

79
Q

tip

witnesses - presence requirement

A

make sure to discuss both majority view and UPC view

80
Q

tip

codicils

A

explain how codicil is changing the terms of original will + whether codicil was executed property

81
Q

what laws are used to determine the validity of a will?

Essay 5315

A
  • common law: state where the testator was domiciled at the time of his death
  • 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.
82
Q

can a will be conditioned on an event?

Essay 5315

A

yes, validity of a will can be conditional on a particular event or circumstance

ct will try to construe express language as a mere explanation or instruction, rather than stopping admittance of the will

ct will consider whether the event is an express condition or only a statement of motive for executing the will

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