Wills & Intestate Succession Flashcards
Intestate Succession
Intestate succession explains how property is divided when a person dies without a will.
Share of the Surviving Spouse
Intestate Succession
The spouse will get everything if the decedent’s parents are deceased, and the decedent did not have children outside of their relationship.
Share of the Children
Intestate Succession - If no surviving spouse or parents
- Per capita at each generation: those in the same generation inherit the same amount.
- Per capita with representation (modern per stirpes): heirs receive the representative shares of their parents.
Requirements to Execute a Will
- Writing
- Signed by testator
- 2 Witnesses
- Testator must be 18 yrs+ & have intent that document be their will
Holographic Wills
About half the states recognize, holographic (unwitnessed) wills. To be valid, the unwitnessed will must be signed (according to the UPC and some states) and the material portions of the will must be in the testator’s handwriting.
Codicil
A codicil is a supplement to a will that modifies, adds, explains, or revokes it.
Generally, a codicil must be executed in the same manner as a will (writing, signed, 2 witnesses, testator 18+, testator’s intent to create)
A codicil republishes the will and controls to the extent that it is inconsistent with the will.
Incorporation by Reference
A writing that is not valid as a will may be incorporated into a will if:
* the will manifests an intent to incorporate the writing;
* the writing is identified with reasonable certainty
* the writing existed at the time the will is executed
Revocation
A will may be revoked by executing a new will or by a physical act including words of cancellation.
Construction Problems
Deceased Beneficiary
A beneficiary cannot take a devised gift if they have deceased, so if the beneficiary dies before the testatory, the gift lapses and is returned to the estate.
However, all states have anti-lapse statutes. Anti-lapse statutes take effect if
* the beneficiary is deased
* the beneficiary is related by blood to testator
* the beneficiary has an issue
* that issue survives the testator
In this situation, the deased beneficiary’s testator will take.
Construction Problems
Ademption
The construction issue of ademption arises when the specifically devised property no longer exists.
In these cases, modern statutes entitle the beneficiary to substitute property if the testator intended for the beneficiary to take the substitute property.
* this may include insurance proceeds
* or conservator will gift the pecunary value
In common law jurisdictions, the gift fails and the testator’s intentions are irrelevant.
Will Contests
Grounds & Standing
A will’s validity or its admission into probate may be contested on the following grounds:
* age
* testamentary intent
* mental capacity
* undue influence
* fraud
* mistake
The willl may only be contested by someone who is better off if the will is not admitted into probate.
Non-Probate Transfers Include
Non-probate transfers include:
* gifts
* joint tenancy
* tentative trusts and payable-on-death accounts
* insurance
* joint bank accounts
Family Protections Relating to Wills
- A spouse may elect against the will if they do not like what they are given. The spouse will receive a fraction of the estate, the size of which is calculated by certain factors, including the size of the augmented estate.
- Pretermitted spouse - will written before marriage - spouse gets intestate share
- Pretermitted child - will written before child was born - child gets intestate share
Abatement
When an estate’s assets are not sufficient to pay all claims and satisfyall bequests and devises, gifts abate (are reduced).
Unless the testator specifies an order of abatement, gifts abate in the following order:
- intestate property
- residuary property
- general legacies
- specific devises and bequests
Undue Influence
**Will contestants have burden of proof. **
To establish undue influence, the contestant must show:
1. influence was exerted on testator
2. effect of influence was to overpower the free will of testator
3. the product of the influence was a will that would not have been executed but for the influence
A presumption of undue influence arises when:
1. there is a confidential relationship between the testator and beneficiary-influencer
2. the beneficiary participating in procuring or drafting the will
3. the provisions of the will appear to be unnatural and favor the person who allegely exercised undue influnce
If elements of presumption are show, burden shifts to proponent of the will.
