Wills LAST PUSH Flashcards
Property May Pass by Intestate Succession
(a) a decedent dies without having made a will or their will is denied probate
(b) a decedent’s will does not dispose of all of the decedent’s property - either because a gift has failed or because the will contains no residuary clause
Classic (Strict) Per Stirpes
one share is created for each child and one share for each deceased child who has at least one surviving descendant
Per Capita with Representation (Majority)
a decedent’s descendants take their shares per capita with representation, which means the property is divided into equal shares at the first generational level at which there are takers
Per Capita At Each Generation
(growing number of states and UPC) initial division of shares at the first generational level at which there are living takers but the shares of deceased persons at the level or combined and then divided equally among the takes at the next generational level
Shares of Other Heirs
(1) parents or surviving parent
(2) brothers and sisters and their descendants
(3) one-half to paternal grandparents and one-half to maternal grandparents and their descendants
(4) one-half to nearest kin on maternal side and one-half to nearest kin on paternal side
Advancement Only If
(1) declared as such in a contemporaneous writing by the donor OR
(2) acknowledged as such in a writing by the heir
Requirements of Disclaimer
a disclaimer must be written, signed by the disclaimant, acknowledged before a notary, and filed with the appropriate court within nine months of death
Out of State and Foreign Wills
a will is permitted to probate in a jurisdiction if the will has been executed in accordance with the law of:
(1) that jurisdiction
(2) the state where the will was executed
(3) the testators domicile at the time of wills execution or
(4) the testators domicile at death
Testamentary Capacity
a testator simply must have the capacity to understand:
(1) nature of their act
(2) nature and extent of their property
(3) persons who are the natural objects other bounty
(4) above factors and be able to formulate an orderly scheme of disposition
Testamentary Intent
found only if:
(1) the testator intended to dispose of the property
(2) intended the disposition to occur only upon his death
(3) intended that the instrument in question accomplish the disposition
Formalities for an Attested Will
(1) the will or codicil must be in writing
(2) will or codicil must be signed by the testator, or by another at the testator’s direction and their presence
(3) there be two attesting witnesses
(4) testator sign the in each of the witnesses presence and
(5) the witness sign in the testaor’s presence
Additional Formalities for Attested Will
(a) testator must sign at the end
(b) must be published
(c) witnesses sign in the presence of each other
Oral Wills
most states and the UPC do not recognize wills - small number for the disposition of personal property and only if it made by:
(1) soldiers and sailors
(2) any person during their last sickness or in contemplation of imminent death
Residuary Estate
consists of the balance of the testators property after paying (1) debts, expenses, and taxes and (2) specific, general, and demonstrative gifts
Abatement
abates in the following order:
(1) property passing by intestacy
(2) residuary estate
(3) general legacies
(4) demonstrative legacies
(5) specific bequests and devises