Wills for Bar

Question 1

When are Intestacy rules applied?

1. _____________
2. _____________
3. _____________
4. _____________

Answer 1

Apply Intestacy Rules When:

1. No will;
2. Will fails (denied probate);
3. Will does not dispose of all probate property (i.e., undisposed-of property is subject to intestacy rules); or
4. Will specifies intestate distribution

Question 2

How is the surviving spouse’s share determined under Intestacy rules?

1. In all states, surviving spouse takes the entire estate if….
2. Some states and UPC provide for a dollar amount plus….
3. UPC – Surviving spouse takes __________ if all the surviving descendants are surviving spouse’s descendants.

Answer 2

How is the surviving spouse’s share determined under Intestacy rules?

1. In all states, surviving spouse takes the entire intestate estate if no descendants survive and, in most states, one-half or one-third of the estate if descendants survive
2. Some states and UPC provide for a dollar amount plus one-half or one-third if descendants survive
3. UPC—surviving spouse takes entire estate if all surviving descendants are surviving spouse’s descendants

Question 3

What happens to a Decedent’s property rights if that Decedent owned property as a part of Tenancy in Common?

Answer 3

The Decedent’s share passes via their will or under intestacy.

There is no right of survivorship, and so normal probate rules apply.

Question 4

What happens to a Decedent’s property rights if that Decedent owned property as part of Joint Tenancy ?

Answer 4

The Decedent’s share passes to the surviving joint tenant, and not via intestacy or under the decedent’s will.

Question 5

Per principles of Marital Rights, how will a court determine what state’s law applies to property in the intestacy proceedings of a spouse?

And what is the rationale for this method?

Answer 5

The law of the couple’s Domicile state at the time the property was acquired will apply to the intestacy proceedings.

The law and rights that apply to the land do not change as the couple moves from one state to another, so the outcome is more predictable as the law is fixed.

Question 6

Per principles of Succession Rights, which state’s intestacy law applies to:

Personal Property

Real Property

Answer 6

Per Succession Rights:

Personal Property has the law of Intestate’s Domicile at Death applied.

Real Property has the Law of the State in which the Property is located applied.

Question 7

Under modern law, what property share does a a surviving spouse receive?

A) Spouse is made ___________
B) Dower and curtesy ___________
C) Share of surviving spouse depends on factors such as ____________________________.

Answer 7

Under modern law, what property share does a a surviving spouse receive?

A) Spouse is made an heir
B) Dower and curtesy eliminated (or greatly altered)
C) Share of surviving spouse depends on factors such as number of children, whether surviving spouse is the other parent of the deceased spouse’s children.

Question 8

Shares of descendants

If all children survive the intestate, each child receives _______________.

Younger generation descendants receive _______________.

Answer 8

Shares of descendants

If all children survive the intestate, each child receives an equal/per capita share.

Younger generation descendants (decedent’s grandchildren) receive nothing if the older generation (decedent’s children) are still alive.

Question 9

Methods of computing shares:

How will property shares be divided via ‘Per Stirpes’ law?

Answer 9

• Property interests are divided into shares at the first generation below decedent, even if there are no survivors.
• One share is allocated to each surviving child, and one share is allocated to each deceased child who left descendants who survive the intestate.
• Each surviving child receives one share and the share of each deceased child passes to that child’s descendants.

Question 10

Methods of computing shares:

How will property shares be divided via ‘Per Capita with Representation’ law?

Answer 10

• Property interests are divided into shares at first generation with survivors.
• if all children are deceased and all property is allocated to the grandchildren, each grandchild will take an equal share, rather than dividing the share the parent would have taken had the parent survived.

Question 11

Methods of computing shares:

How will property shares be divided via ‘Per Capita at Each Generation’ law?

Answer 11

• Property interests are divided into shares at first generation with survivors, but then all equally related persons are given the same share.
• If same children are alive, and others dead, each child will take an equal share (as per capita, by representation) but the remaining property is pooled and each grandchild will receive an equal share.

Question 12

Under intestacy laws, if a decedent dies with no heirs, the property passes to _________________.

Answer 12

Under intestacy laws, if a decedent dies with no heirs, the property passes to the government, via escheatment.

Question 13

A decedent dies without a will, survived by his spouse, his brother, his niece, and his mother. In most states, to whom will the decedent’s estate be distributed?

A His spouse.

B His spouse and his mother.

C His spouse, his mother, and his brother.

D His spouse, his mother, his brother, and his niece.

Answer 13

A. His Spouse

In most states, if a decedent is survived by a spouse but no descendants, the surviving spouse takes the entire estate. Under the Uniform Probate Code (“UPC”), however, the decedent’s parents would also share the estate.

Question 14

If a decedent dies without a will and is not survived by a spouse or by descendants, the estate passes in which order?

A Parents, descendants of parents, grandparents, descendants of grandparents, nearest kin.

B Parents, grandparents, descendants of parents, descendants of grandparents, nearest kin.

C Parents, grandparents, nearest kin.

D Siblings, parents, grandparents, descendants of grandparents, nearest kin.

Answer 14

A Parents, descendants of parents, grandparents, descendants of grandparents, nearest kin.

In most states, if a decedent dies without a will and is not survived by a spouse or by descendants, the estate passes in the following order: parents, descendants of parents (siblings and descendants of deceased siblings), grandparents, descendants of grandparents, nearest kin.

That is, if an intestate decedent is not survived by a spouse or descendants, the estate passes to the decedent’s parents (one-half each) or surviving parent (all). If neither parent survives, the estate passes to the descendants of the decedent’s parents, i.e., the decedent’s brothers and sisters or their descendants. If no descendants of parents survive, the estate passes one-half to the decedent’s maternal grandparents or their descendants and one-half to the decedent’s paternal grandparents or their descendants.

If no grandparents or descendants of grandparents survive, the estate is divided into maternal and paternal shares and one-half goes to the nearest kin on each side, no matter how remotely related to the decedent.

Question 15

Which of following CANNOT inherit from or through a decedent?

A The adoptive parents of the decedent.

B A child born to the decedent’s wife six months after the decedent’s death.

C The decedent’s half-sister.

D The decedent’s stepchild who has been treated as the decedent’s child since birth.

Answer 15

D The decedent’s stepchild who has been treated as the decedent’s child since birth.

Stepchildren and foster children have no inheritance rights, no matter how close the relationship. The only exception is when the stepparent or foster parent gains custody of the child under an agreement with the natural parent that he will adopt the child.

Question 16

The entirety of a testator’s will provides, “I do not want my daughter to take any of my estate.” If the testator is survived by only the daughter and a son, how will the testator’s estate be distributed?

A All to the son.

B Half to the son and half to the daughter.

C All to the daughter.

D All to the state.

Answer 16

B Half to the son and half to the daughter.

If the entirety of a testator’s will provides, “I do not want my daughter to take any of my estate,” and the testator is survived only by the daughter and a son, the testator’s estate will be distributed one-half to the son and one-half to the daughter.
A will provision that expressly disinherits an heir is ineffective if the testator dies partially intestate.

Here, the testator’s will provides that the daughter is not to share in the estate but does not make any disposition of his property.

Thus, the testator’s estate will pass pursuant to the intestacy statutes; his intent as to any property that passes under the statutes is irrelevant. If a decedent dies intestate and is survived only by children, the children take equal shares of the estate. An estate escheats to the state only if the decedent is not survived by any relative capable of taking the estate.

Question 17

The decedent and her only child were involved in a plane crash. Neither was alive when the emergency team reached them. The child, who died without a will, is survived by a spouse.

The decedent is survived by only a brother.

The decedent left a sizeable intestate estate and a life insurance policy naming the child the sole beneficiary.

Who will share in the decedent’s estate, and who will take the insurance proceeds?

A The decedent’s brother will take the estate, but the child’s spouse will take the insurance proceeds.

B The child’s spouse will take the estate and the insurance proceeds.

C The decedent’s brother will take the estate and the insurance proceeds.

D The child’s spouse will take the estate, but the decedent’s brother will take the insurance proceeds.

Answer 17

C The decedent’s brother will take the estate and the insurance proceeds.

Under the Uniform Simultaneous Death Act (“USDA”), when the title to property or its devolution depends on priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person is disposed of as if he had survived.

Here, both parties were dead when help arrived; thus, there is no sufficient evidence that one survived the other. Therefore, the decedent’s estate will be distributed as though she survived the child. If the child predeceased the decedent, the decedent’s brother is her only intestate heir and will take the estate. The USDA also applies to life insurance, so the insurance proceeds will be paid to the decedent’s estate and also pass to the brother.

Question 18

A testator’s child born or adopted after the will was executed and not mentioned in the will is generally entitled to share in the estate under the pretermitted child statute. Which of the following does NOT represent an exception to the application of the pretermitted child statute?

A The testator had children when the will was executed and devised substantially all of the estate to the other parent of the omitted child.

B Extrinsic evidence shows that the omission of the child was intentional.

C The testator provided for the child by naming the child beneficiary of a life insurance policy.

D
The testator provided for the child by making the child the beneficiary of a revocable trust.

Answer 18

B Extrinsic evidence shows that the omission of the child was intentional.

A pretermitted child will not take a share if it appears from the will that the omission was intentional. Extrinsic evidence is not admissible to show that the omission was intentional. If the testator had children when the will was executed and devised substantially all of the estate to the other parent of the omitted child, the statute does not apply.

Question 19

To execute a valid attested will, the testator must sign the will in the presence of two attesting witnesses who must:

A Sign in the presence of each other.

B Sign within 30 days of each other.

C Sign in the presence of the testator and a notary public.

D Sign in the presence of the testator.

Answer 19

D Sign in the presence of the testator.

There must be two attesting witnesses who must sign in the testator’s presence.

Question 20

When a specifically bequeathed item is not in the testator’s estate at his death, the court will consider which of the following in determining whether the bequest is adeemed?

A The testator’s expressions of intent.

B Whether the testator used proceeds from the item to purchase replacement property.

C Whether proceeds from the sale of the item were kept in a separate account.

D Whether the property was disposed of by a guardian.

Answer 20

D Whether the property was disposed of by a guardian.

Ademption is generally decided based on the objective test of whether the item is a part of the testator’s estate at death (the identity theory). If the item is not in the estate, the bequest is adeemed. The testator’s intent is irrelevant.

There is an exception to the ademption rule if the specifically devised property is sold by a guardian or a conservator.

Question 21

A testator signs his will in front of two witnesses. Immediately after the witnesses sign, the testator remembers that he wanted to include a legacy of $5,000 to his friend Fred. After explaining this to the witnesses and while still in their presence, the testator handwrites the legacy directly under his signature. The witnesses both give the testator the thumbs up. In most states, the effect of the additional legacy is:

A Both the will and the legacy are void.

B The will is valid, but the legacy is void.

C Both the will and the legacy are valid.

D The legacy is a valid holograph, but the will is void because it is not subscribed.

Answer 21

B The will is valid, but the legacy is void.

A will is valid as long as the testator signs somewhere on the instrument (e.g., on the margin, or in the first clause). Clauses added after the will is signed and witnessed are unattested words regardless of whether they appear before or after the testator’s signature.

Only the words present on the will at the time it was signed are part of the duly executed will. The added legacy is not a valid holographic codicil because it was not signed by the testator.

Question 22

A testator executes a valid holographic will, which leaves $10,000 to Ben and the residue to Rhonda. Two years later, the testator crosses out the bequest to Ben and writes above it “$20,000 to Beth.” If the will remains the same at the testator’s death, what is the effect of the testator’s action?

A Beth will take $20,000, and Rhonda will take the residue.

B The entire will is revoked.

C The legacy to Ben is revoked, and Rhonda will take the entire estate.

D Ben will take $10,000, and Rhonda will take the residue.

Answer 22

A Beth will take $20,000, and Rhonda will take the residue.

Most states that recognize holographic wills give effect to handwritten changes made by the testator after the holographic will is completed. Thus, the testator’s changes here will be given effect. These types of interlineations are not given effect if made to an attested will unless they constitute a holographic codicil. While the additional material would not be given effect, the crossing out of Ben’s legacy would likely revoke it if made to an attested will–leaving Rhonda with the entire estate.

Question 23

Which of the following acts occurring subsequent to a will’s execution does NOT revoke all or part of the will by operation of law?

A Birth of children.

B Divorce.

C Annulment.

D Marriage.

Answer 23

D Marriage.

Marriage subsequent to a will’s execution does not revoke the will by operation of law; the new spouse is protected by the elective share statute.

Under the pretermitted child statute, a child born or adopted after the will’s execution is entitled to his intestate share, revoking the will to that extent.

Divorce or annulment following execution of a will revokes all gifts and fiduciary appointments in favor of the former spouse. The remainder of the will is valid and read as if the former spouse predeceased the testator.

Question 24

Divorce revokes all of the provisions in favor of a former spouse in each of the following EXCEPT:

A Life insurance policies.

B Will bequests.

C Revocable trusts.

D Fiduciary appointments.

Answer 24

Divorce revokes all will bequests, revocable trusts, and fiduciary appointments in favor of the former spouse.

The remainder of the will or revocable trust is valid and read as if the former spouse predeceased the testator. (The UPC extends the rule to also disqualify the former spouse’s relatives who are not relatives of the testator.)

In contrast, divorce does not revoke life insurance policies in favor of the former spouse. Disposition of the proceeds is governed by the contract with the life insurance company. Thus, if the decedent fails to change the named beneficiary from his former spouse subsequent to their divorce but prior to his death, the former spouse takes the proceeds.

Question 25

If a decedent dies intestate and has no living heirs, the decedent’s property passes to _____________ via __________.

Answer 25

The government; escheatment.

If a decedent dies intestate and has no living heirs, the decedent’s property passes to the government via escheatment.

Question 26

The only way to avoid intestacy is to __________________________.

Answer 26

The only way to avoid intestacy is to leave a valid will disposing of all probate property.

Question 27

The requirements for a will to be valid are:

1. _____________
2. _____________
3. _____________
4. _____________

Answer 27

The requirements for a will to be valid are:

1. Legal Capacity
2. Testamentary Capacity
3. Testamentary Intent
4. Formalities

Question 28

An item that is specifically gifted in a testator’s will, but is no longer in the testator’s estate upon the testator’s death is said to “_____”.

Even if the proceeds of the item are identifiable, the beneficiary of the item ________________________.

Answer 28

An item that is specifically gifted in a testator’s will, but is no longer in the testator’s estate upon the testator’s death is said to “adeem”.

Even if the proceeds of the item are identifiable, the beneficiary of the item will receive nothing. The beneficiary does not take a substitute gift nor the value of the gift.

Question 29

Exceptions to Ademption

1. _____________
2. _____________
3. _____________
4. _____________

Answer 29

Exceptions to Ademption

1. Replacement Property- Testator replaced gifted item with similar item
2. Balance of Purchase Price - Testator sold gifted item, but the purchaser still owes testator money for the gifted item. The purchaser’s outstanding balance goes to the beneficiary.
3. Proceeds of Condemnation/Insurance- go to the beneficiary.
4. Proceeds from a Sale by a Guardian or Conservator- the beneficiary will receive proceeds from specifically given property if the proceeds are traceable.

Question 30

If there is an increase in number of stocks and bonds because of stock splits, the beneficiary will take ____________.

A. The original amount
B. The increased amount

Answer 30

B. The increased amount

If there is an increase in the number of stocks and bonds because of stock splits or dividends, the beneficiary will take the increased amount.

Question 31

Instead of writing out something in the will, Testator may incorporate the extraneous document into the will by ___________.

Answer 31

Reference.

Instead of writing out something in the will, Testator may incorporate the extraneous document into the will by Reference.

Question 32

What is the effect of incorporation (via referencing an extraneous document) on the referenced document?

Answer 32

The incorporated material is now treated as if it were actually written out in full in the will.

It does not matter that the referenced document is not “legal” otherwise (i.e., lacked witnesses, not signed, etc.).

Question 33

Elements of Incorporation

1. _____________
2. _____________
3. _____________

Answer 33

Elements of Incorporation

1. Intent to Incorporate
2. Writing in Existence When Will Executed
3. Writing Clearly Identified in Will

Question 34

Republication by Codicil

What is the effect of a codicil that is in inconsistent with a prior executed will?

Answer 34

A codicil acts to republish the prior executed will, except for the parts of the will that are inconsistent with the codicil.

Wills and codicils are treated as one instrument speaking from the date of the codicil.

Question 35

Republication by Codicil

What is the effect of a codicil that if there is no prior validly executed will, but only a will that was not properly validated?

Answer 35

Wills and codicils are treated as one instrument speaking from the date of the codicil.

Even if the prior will was not valid, proof of the codicil acts as proof of the will and thus a valid codicil may validate an otherwise invalid will.

Question 36

Spouse A validly executes a will leaving all Spouse A’s property to Spouse B.

Unfortunately, 3 years later, Spouse A and Spouse B divorce. A few months after the Divorce, Spouse A dies without amending the will.

How will Spouse A’s estate be distributed and why?

Answer 36

Spouse A’s estate will pass via intestacy.

Divorce will revoke gifts to a former spouse. The estate will then pass as if the former spouse (now divorced) predeceased.

Thus, Spouse A’s property will pass as though Spouse B predeceased Spouse A, via intestacy.

Question 37

In most states, intestate property is distributed according to a method known as ________________.

This means that property is divided and distributed ________________________________.

Answer 37

In most states, intestate property is distributed according to a method known as Per Capita with Representation.

This means that property is divided and distributed at the first generational level with living takers.