WILLS LAW Flashcards
Intestate Succession
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Rule Statement:
All property that does not pass by a valid will or by operation of law is governed by a state’s intestacy rules.
Generally, although not always, state intestacy rules are as follows:
If there is a surviving spouse and no issue, the spouse receives the entire estate.
If there is a surviving spouse and issue, the majority rule is that the spouse and the issue will each receive a percentage of the estate.
Under the Uniform Probate Code, the entire estate goes to the spouse.
If there is no surviving spouse, decedent’s issue receives the entire estate.
If there is no surviving spouse and no issue, the entire estate goes to the parents of the decedent.
If there is no surviving spouse, no issue, and no surviving parents, the entire estate goes to the issue of the decedent’s parents.
The majority rule is that assets pass per capita at each generation.
Mnemonic: “SPICE-UP” (Spouse, Parents, Issue, Children of parents, Each generation, Uniform Probate Code, Per capita)
Memorization techniques:
Visualization: Picture a family tree with branches labeled in order of intestate succession priority: spouse at the top, then issue, then parents, then siblings (issue of parents).
Acronym expansion: INTESTATE
I - Issue receive if no spouse
N - No spouse? Check for issue
T - Then parents inherit
E - Estate goes to siblings if no parents
S - Spouse gets all under UPC
T - Typically spouse and issue share
A - Assets divide per capita each generation
T - Treat state rules as controlling
E - Everything follows statutory order
Rhyme: “Spouse alone, all their own. Spouse and seed, share in need. No spouse in sight, issue take outright. No kids to see, parents’ property. No parents living, siblings are giving. Each gen splits fair, per capita share.”
Common ways this rule is tested:
Fact patterns involving complex family situations
Questions comparing different states’ approaches
Scenarios testing understanding of per capita at each generation distribution
Cases involving half-siblings or adopted children
Common ways students are tricked:
Forgetting that intestacy rules vary by state
Assuming the Uniform Probate Code applies everywhere
Overlooking the difference between per stirpes and per capita at each generation
Confusing the order of succession when multiple categories are absent
Misunderstanding how half-siblings are treated in intestacy
Key points to emphasize:
State laws control and can vary significantly
Spouse generally has priority, but share may depend on presence of issue
UPC gives more to spouse than many traditional state laws
Issue take entire estate if no spouse
Parents are next in line after issue
Siblings (and their descendants) come after parents
Per capita at each generation is now the majority rule for distribution among same degree relatives
Remember, intestacy laws are designed to approximate what most people would want if they had made a will. They prioritize close family relationships, with variations in different jurisdictions reflecting different policy choices. The trend in modern law (exemplified by the UPC) is to favor the spouse more heavily. Always check the specific state’s rules, as they can differ in important ways from the general principles outlined here.
Class Gifts
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Rule Statement:
A class gift is a gift to a group of persons described collectively.
A class generally closes when the testator dies.
Under the rule of convenience, a class is closed when any member of the class is entitled to possession of the gift.
When used in a will, the terms “children” or “issue” are interpreted in accordance with intestate succession rules.
Adopted children inherit the same as natural children.
Mnemonic: “CAGED” (Class gifts, Adopted children, Group described, Entitled to possession, Dies - testator)
Memorization techniques:
Visualization: Picture a cage (representing the class) closing when a clock strikes (testator’s death), but with a convenience door that opens when one bird (class member) is ready to fly out (take possession).
Acronym expansion: CLASS
C - Collective group description
L - Lasts until testator’s death generally
A - Any member’s possession closes it
S - Succession rules interpret “children”/”issue”
S - Same treatment for adopted children
Rhyme: “Group described, that’s a class, closes when the testator passed. But convenience says ‘not quite,’ class closes at first flight. Children and issue follow intestate’s tissue, adopted kids get an equal issue.”
Common ways this rule is tested:
Fact patterns involving gifts to “children” or “issue” with subsequent adoptions or births
Questions about when exactly a class closes in various scenarios
Scenarios testing understanding of the rule of convenience
Cases involving adopted children’s rights in class gifts
Common ways students are tricked:
Forgetting that the general rule (closing at testator’s death) has exceptions
Confusing class closing with vesting of interests
Assuming “children” always excludes adopted children
Overlooking the importance of intestate succession rules in interpreting terms
Misunderstanding how the rule of convenience operates
Key points to emphasize:
Class gifts are to a group, not named individuals
The class usually closes at testator’s death, but not always
Rule of convenience can close the class earlier than testator’s death
Terms like “children” and “issue” follow intestate succession interpretations
Adopted children are treated the same as biological children unless the will clearly states otherwise
Remember, class gifts are a way to make a gift flexible, allowing for changes in family composition. However, there needs to be a point where the class is “closed” for practical reasons, hence the general rule and the rule of convenience. The treatment of adopted children as equal to biological children reflects modern family law principles. Always consider the specific language of the will and the applicable state laws when analyzing class gift issues.
Incorporation by Reference
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Rule Statement:
A bequest made through an unattested memorandum is valid if it meets requirement of incorporation by reference.
In order for an unattested memorandum to be incorporated by reference into a valid will, the majority rule is that the document will be incorporated if:
It existed at the time the will was executed;
It is sufficiently described in the will; and
The testator intended to incorporate it into the will.
Under the Uniform Probate Code, a bequest of tangible personal property other than money will be incorporated if (1) it is signed, and (2) the item and devisees are described with reasonable certainty.
Concise version:
“Incorporation by Reference: Existed, Described, Intended; UPC: Signed, Items/Devisees Described”
Memorization techniques:
Mnemonic: “EDI-SID” (Existed, Described, Intended; Signed, Items/Devisees)
Acronym: IBRM (Incorporation By Reference Majority)
Visualization: Picture a will (main document) with a smaller document (memorandum) being stapled to it (incorporation), with “EDI” written on the stapler and “SID” on the smaller document.
Rhyme: “Existed when signed, described just fine, intended to combine; For UPC to apply, sign and describe, no need to subscribe.”
Common ways this rule is tested:
Fact patterns involving wills referencing external documents.
Scenarios testing the timing of document creation relative to will execution.
Questions about the sufficiency of description in the will.
Issues related to testator’s intent to incorporate.
Comparison between majority rule and UPC requirements.
Common tricks/mistakes:
Assuming a document created after will execution can be incorporated.
Forgetting the “sufficiently described” requirement.
Overlooking the testator’s intent requirement.
Applying UPC rules to non-tangible personal property.
Confusing UPC requirements with majority rule requirements.
To reinforce your memory:
Create a timeline showing the document’s existence before will execution.
Practice explaining the “EDI-SID” mnemonic, giving examples for each letter.
Write out scenarios with various documents and evaluate if they meet incorporation requirements.
Remember, this rule emphasizes the strict requirements for incorporating external documents into a will, while also highlighting the more lenient UPC approach for tangible personal property.
Will Execution Formalities (Most States)
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Rule Statement:
For a will to be valid under common law, it must meet the following requirements:
The will must be in writing.
The will must be signed by the testator.
The will must be witnessed by at least two competent witnesses who:
a) Must be present at the same time
b) Must see the testator sign or acknowledge the will
c) Must sign the will themselves
Concise version:
“Will Execution: Writing, Signed, Two Witnesses Present, See, Sign”
Memorization techniques:
Mnemonic: “W-S-TWO PS” (Writing, Signed, Two Witnesses, Present, See, Sign)
Acronym: WSTW (Writing, Signed, Two Witnesses)
Visualization: Picture a person (testator) writing on a paper, then signing it, with two people (witnesses) standing nearby, watching, and then signing themselves.
Rhyme: “Write it down, sign your name, two must watch the same; They see you sign, then add their line, that’s the will game!”
Common ways this rule is tested:
Fact patterns involving unconventional will signing scenarios.
Questions about witness competency and presence.
Scenarios testing the “present at the same time” requirement.
Issues related to acknowledgment of signature by testator.
Problems involving partially completed execution formalities.
Common tricks/mistakes:
Assuming one witness is sufficient.
Forgetting that witnesses must be present simultaneously.
Overlooking the requirement for witnesses to see the testator sign or acknowledge.
Confusing acknowledgment with actual signing by the testator.
Assuming witnesses don’t need to sign the will themselves.
To reinforce your memory:
Create a flowchart of the will execution process, emphasizing each step.
Practice explaining the “W-S-TWO PS” mnemonic, giving examples for each letter.
Write out scenarios with various will execution situations and evaluate their validity.
Remember, this rule emphasizes the formal nature of will execution and the importance of having reliable evidence of the testator’s intent. The witness requirements are particularly crucial as they provide safeguards against fraud and undue influence.
Key points to remember:
The will must be in writing (oral wills are generally not valid).
The testator must sign, but an acknowledgment of a previous signature can suffice.
Two witnesses are required, and they must be present together.
Witnesses must see the testator sign or acknowledge the signature.
Witnesses must sign the will themselves.
Understanding these formalities is crucial for drafting valid wills and for contesting potentially invalid wills. It’s also important to note that many jurisdictions have modified these common law requirements, so always check the specific laws of the relevant jurisdiction.
Will Execution Formalities (Common Law)
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Rule Statement:
Under the common law approach, a will must be witnessed by two disinterested witnesses. In some states, a will is valid even if witnessed by an interested witness so long as (a) the interested witness is an heir, and any gift that the interested witness/heir receives is reduced to their intestate share, or (b) another disinterested witness was present so that there were two disinterested witnesses.
Concise version:
“Common Law: Two Disinterested Witnesses; Exception: Interested Heir (Gift Reduced to Intestate Share) or Additional Disinterested Witness”
Memorization techniques:
Mnemonic: “TWID-HEIR” (Two Witnesses, Interest Disqualifies; Heir Exception, Intestate Reduction)
Acronym: DIWR (Disinterested, Interested Witness Reduction)
Visualization: Picture two neutral figures (disinterested witnesses) next to a will. Then imagine a person with a gift (interested witness) being pushed away, but coming back as an heir with a smaller gift or accompanied by another neutral figure.
Rhyme: “Two without interest must attest, or the will may not be blessed; But heirs can sign and still be fine, if their share’s reduced or another’s in line.”
Common ways this rule is tested:
Fact patterns involving witnesses who are also beneficiaries.
Scenarios testing the validity of wills with interested witnesses.
Questions about the reduction of gifts to intestate shares.
Issues related to the presence of additional disinterested witnesses.
Comparing outcomes under different state approaches.
Common tricks/mistakes:
Assuming any interested witness automatically invalidates the will.
Forgetting that the interested witness must be an heir for the exception to apply.
Overlooking the option of having an additional disinterested witness.
Confusing the reduced share (intestate share) with the original bequest.
Assuming the exception applies in all jurisdictions.
To reinforce your memory:
Create a decision tree for determining witness validity in different scenarios.
Practice explaining the “TWID-HEIR” mnemonic, giving examples for each part.
Write out scenarios with various witness situations and evaluate their impact on will validity.
Remember, this rule balances the need for unbiased witnesses with practical considerations, allowing for some flexibility in witness selection while maintaining safeguards against undue influence.
Key points to remember:
The general rule requires two disinterested witnesses.
Exceptions exist in some states for interested witnesses who are heirs.
An interested witness/heir’s gift may be reduced to their intestate share.
An additional disinterested witness can validate the will despite an interested witness.
This rule underscores the law’s attempt to balance strict formalities with practical realities in will execution. It’s crucial to understand these nuances when advising clients on will drafting or when challenging will validity.
Will Execution Formalities (Uniform Probate Code)
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Rule Statement:
For a will to be valid under the Uniform Probate Code, the will must be (1) in writing, (2) signed by the testator or by someone in the testator’s presence and under the testator’s direction, and (3) either signed by at least two witnesses or notarized.
Concise version:
“UPC Will Validity: Writing, Signed (Testator/Designee), Two Witnesses or Notarized”
Memorization techniques:
Mnemonic: “WiST-WN” (Writing, Signed by Testator, Witnesses or Notary)
Acronym: WSTWN (Writing, Signed, Testator, Witnesses/Notary)
Visualization: Picture a person writing a will, then signing it (or directing someone else to sign). Then imagine two figures signing it or a notary stamp appearing on the document.
Rhyme: “Write it down, sign your name (or have someone do the same); Two can witness, that’s just fine, or a notary’s stamp will do in time.”
Common ways this rule is tested:
Fact patterns involving unconventional signing scenarios (e.g., testator unable to sign).
Questions about the validity of wills signed by a designee.
Scenarios comparing witnessed wills vs. notarized wills.
Issues related to the number of witnesses required.
Problems involving partially completed execution formalities.
Common tricks/mistakes:
Forgetting that the will must be in writing (no oral wills under UPC).
Assuming the testator must always sign personally.
Overlooking the option of notarization instead of witnesses.
Confusing UPC requirements with stricter common law requirements.
Assuming that both witnesses and notarization are required.
To reinforce your memory:
Create a flowchart of the UPC will execution process, showing the two paths (witnesses or notary).
Practice explaining the “WiST-WN” mnemonic, giving examples for each letter.
Write out scenarios with various will execution situations under UPC and evaluate their validity.
Remember, this rule represents a more flexible approach compared to common law, allowing for notarization as an alternative to witnesses and permitting signature by a designee.
Key points to remember:
The will must be in writing.
The testator can sign personally or direct someone else to sign in their presence.
Two witnesses OR notarization is sufficient (don’t need both).
This is generally more lenient than common law requirements.
Understanding these UPC requirements is crucial for drafting valid wills in jurisdictions that have adopted the UPC. It’s important to note the differences between UPC and common law approaches, as this can significantly affect will validity in different jurisdictions.
Will Execution Formalities (Majority Rule)
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Rule Statement:
Under the majority rule and the Uniform Probate Code, a person is “within the testator’s presence” if he or she is within the range of the testator’s senses.
Concise version:
“‘Within Testator’s Presence’: Within Range of Testator’s Senses”
Memorization techniques:
Mnemonic: “WRTS” (Within Range, Testator’s Senses)
Acronym: SRPT (Senses Range Presence Test)
Visualization: Picture a testator at the center of a circle, with their senses (eyes, ears) extending out like radar, defining the “presence” area.
Rhyme: “If you can see or hear them near, the presence test is crystal clear.”
Common ways this rule is tested:
Fact patterns involving witnesses or signers in different rooms or locations.
Scenarios testing the limits of sensory perception (e.g., visual vs. auditory presence).
Questions about modern technology and its impact on “presence” (e.g., video calls).
Issues related to testators with sensory impairments.
Common tricks/mistakes:
Assuming “presence” always requires physical proximity.
Forgetting that different senses (not just sight) can establish presence.
Overlooking the possibility of presence through hearing alone.
Applying an overly strict interpretation of “presence” that doesn’t align with the rule.
Failing to consider the testator’s individual sensory capabilities.
To reinforce your memory:
Draw a diagram showing a testator and various positions of witnesses/signers, indicating which would be “present” based on sensory range.
Practice explaining the “WRTS” mnemonic, giving examples for different sensory scenarios.
Write out scenarios with various “presence” situations and evaluate them using this rule.
Remember, this rule provides a flexible, sensory-based definition of “presence” that can accommodate various situations and individual testator capabilities.
Key points to remember:
“Presence” is defined by the range of the testator’s senses.
This can include sight, hearing, and potentially other senses.
The rule is the same under both majority common law and the UPC.
Individual testator’s sensory capabilities should be considered.
This interpretation of “presence” balances the need for the testator to be aware of and able to supervise the will execution process with practical considerations of various execution scenarios. It’s crucial to understand this concept when advising on will execution or challenging will validity based on the presence requirement.
Codicil
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Rule Statement:
A codicil is an instrument made after a will is executed that modifies, amends, or revokes a will. To be valid, a codicil must satisfy the same execution requirements as a will.
Concise version:
“Codicil: Post-Will Instrument Modifying/Amending/Revoking Will; Requires Same Execution as Will”
Memorization techniques:
Mnemonic: “PIMMAR-SER” (Post-Instrument Modifies/Amends/Revokes - Same Execution Required)
Acronym: CMARSE (Codicil Modifies Amends Revokes Same Execution)
Visualization: Picture a will document, then imagine a smaller document (codicil) being attached to it with arrows showing changes, and both documents having identical official seals.
Rhyme: “After the will, a change you’d like? A codicil’s what you should write. But remember, as you revise, the rules for wills still apply.”
Common ways this rule is tested:
Fact patterns involving changes to existing wills.
Questions about the formalities required for codicils.
Scenarios testing the scope of modifications possible through codicils.
Issues related to partial revocation or amendment of wills.
Problems involving improperly executed codicils.
Common tricks/mistakes:
Assuming codicils have less stringent execution requirements than wills.
Forgetting that a codicil can revoke parts of a will, not just modify or amend.
Overlooking the timing requirement (must be made after the will).
Confusing codicils with other types of testamentary documents.
Assuming a codicil automatically revokes the entire original will.
To reinforce your memory:
Create a flowchart showing the process of creating and executing a codicil.
Practice explaining the “PIMMAR-SER” mnemonic, giving examples for each part.
Write out scenarios with various codicil situations and evaluate their validity and effects.
Remember, this rule emphasizes that codicils, despite being supplementary documents, carry the same legal weight as wills and thus require the same level of formality in execution.
Key points to remember:
A codicil is made after the original will.
It can modify, amend, or revoke parts of the will.
Execution requirements are identical to those for wills.
Codicils allow for changes without rewriting the entire will.
Understanding codicils is crucial for estate planning, as they provide a flexible tool for updating wills without starting from scratch. However, the strict execution requirements underscore the importance of treating codicils with the same care and formality as original wills.
Holographic Wills
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Rule Statement:
A holographic will is a handwritten will or will alteration that is not witnessed. Holographic wills are recognized in only a few states. In those states that recognize holographic wills, the holographic will must be signed by the testator.
Concise version:
“Holographic Will: Handwritten, Unwitnessed, Testator-Signed; Limited State Recognition”
Memorization techniques:
Mnemonic: “HUTS-L” (Handwritten, Unwitnessed, Testator-Signed, Limited recognition)
Acronym: HWNS (Handwritten Will No Witnesses Signed)
Visualization: Picture a person writing a will by hand, with no witnesses around, then signing it. Imagine this scene only appearing in a few spots on a U.S. map.
Rhyme: “With your own hand, write it down, no witnesses required in town. Sign your name to make it true, but only some states will let it through.”
Common ways this rule is tested:
Fact patterns involving handwritten wills without witnesses.
Questions about the validity of holographic wills in different jurisdictions.
Scenarios testing the requirements for holographic will validity.
Issues related to partially typed, partially handwritten documents.
Problems involving unsigned handwritten wills.
Common tricks/mistakes:
Assuming holographic wills are valid in all jurisdictions.
Forgetting that the testator’s signature is still required.
Confusing holographic wills with nuncupative (oral) wills.
Assuming that any handwritten document qualifies as a holographic will.
Overlooking the possibility of holographic alterations to formal wills.
To reinforce your memory:
Create a comparison chart of holographic will requirements vs. formal will requirements.
Practice explaining the “HUTS-L” mnemonic, giving examples for each letter.
Write out scenarios with various handwritten will situations and evaluate their validity in different states.
Remember, this rule represents an exception to the usual witnessing requirements for wills, but is only applicable in jurisdictions that recognize holographic wills.
Key points to remember:
Holographic wills are entirely handwritten.
They do not require witnesses.
The testator must sign the will.
Only some states recognize holographic wills.
Can apply to entire wills or alterations to existing wills.
Understanding holographic wills is important for estate planning, especially in jurisdictions that recognize them. They can provide a simpler alternative to formal wills, but their limited recognition and specific requirements mean they should be used cautiously. Always check the specific laws of the relevant jurisdiction when dealing with holographic wills.
Revocation by Physical Act
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Rule Statement:
A will is revoked by physical act if (1) the testator intended to revoke the will, and (2) the will is destroyed, torn, burned, or canceled by the testator or someone at the testator’s direction.
Under the common law, words of cancellation are valid only if they are written over the text of the will. Under the Uniform Probate Code, words of cancellation are valid if written anywhere on the will.
Concise version:
“Revocation by Physical Act: Testator’s Intent + Destruction/Tearing/Burning/Cancellation by Testator or Designee. Common Law: Cancellation over text. UPC: Cancellation anywhere.”
Memorization techniques:
Mnemonic: “ITDTBC-TD” (Intent, Torn/Destroyed/Burned/Canceled - Testator/Designee)
Acronym: RIPA (Revocation Intent Physical Act)
Visualization: Picture a testator tearing, burning, or writing “VOID” on a will document, then imagine this happening by someone else with the testator pointing at them.
Rhyme: “To revoke by act, intend it so, then tear, burn, or let destruction show. By your hand or at your call, the physical act must befall.”
Common ways this rule is tested:
Fact patterns involving partial destruction of wills.
Questions about the validity of revocation by someone other than the testator.
Scenarios testing the requirement of testator’s intent.
Issues related to accidental damage to wills.
Problems involving cancellation words in different locations on the will.
Common tricks/mistakes:
Forgetting that both intent and physical act are required.
Assuming any damage to a will automatically revokes it.
Overlooking the possibility of revocation by someone other than the testator.
Confusing common law and UPC rules on cancellation word placement.
Assuming that unsuccessful attempts at destruction (e.g., failed burning) are sufficient for revocation.
To reinforce your memory:
Create a flowchart of the revocation by physical act process, emphasizing both intent and action.
Practice explaining the “ITDTBC-TD” mnemonic, giving examples for each letter.
Write out scenarios with various physical act situations and evaluate their effectiveness in revoking a will.
Remember, this rule emphasizes both the mental element (intent) and the physical element (act) required for revocation. The distinction between common law and UPC regarding cancellation words is also crucial.
Key points to remember:
Testator’s intent to revoke is essential.
Physical acts include destroying, tearing, burning, or canceling.
The act can be done by the testator or someone directed by the testator.
Common law requires cancellation words over the text.
UPC allows cancellation words anywhere on the will.
Understanding these rules is crucial for determining whether a will has been effectively revoked, which can significantly impact estate distribution. Always consider both the testator’s intent and the specific physical acts taken when evaluating potential revocation by physical act.
Ademption
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Rule Statement:
Under the common law approach, a specific gift adeems if it cannot be identified or is not owned at the time of the testator’s death.
Under the laws of most states, a specific gift is adeemed only if the testator intended the gift to fail. If the testator did not intend the gift to fail, the beneficiary is entitled to either any property that was acquired as a replacement for the specific gift or a monetary devise equal in value to the gift.
Concise version:
“Ademption: Common Law - Not Identifiable/Owned at Death. Most States - Testator’s Intent; Otherwise, Replacement Property or Monetary Equivalent.”
Memorization techniques:
Mnemonic: “NIDO-TIR” (Not Identifiable/Death Owned - Testator Intent Replacement)
Acronym: AICM (Ademption Intent Common Modern)
Visualization: Picture a will with a gift crossed out (common law), then imagine a thought bubble above a testator with a gift transforming into either a similar item or money (modern approach).
Rhyme: “If at death it’s gone or changed, common law says it’s estranged. But modern view seeks intent true, replacement or cash may still come through.”
Common ways this rule is tested:
Fact patterns involving gifts of specific property that has been sold or changed.
Questions comparing common law and modern approaches to ademption.
Scenarios testing the determination of testator’s intent.
Issues related to partial ademption or transformations of gifted property.
Problems involving replacement property or monetary equivalents.
Common tricks/mistakes:
Confusing common law and modern approaches.
Forgetting that the common law focuses on the status at death, not intent.
Overlooking the possibility of replacement property under modern law.
Assuming ademption always results in the gift failing completely.
Forgetting that the modern approach allows for a monetary equivalent.
To reinforce your memory:
Create a comparison chart of common law vs. modern approaches to ademption.
Practice explaining the “NIDO-TIR” mnemonic, giving examples for each part.
Write out scenarios with various ademption situations and evaluate them under both approaches.
Remember, this rule highlights a significant shift from the rigid common law approach to a more flexible, intent-based modern approach in most states.
Key points to remember:
Common law: Focus on identification and ownership at death.
Modern approach: Primarily concerned with testator’s intent.
Modern alternatives: Replacement property or monetary equivalent.
The modern approach aims to better fulfill the testator’s wishes.
Understanding ademption is crucial for interpreting wills and distributing estates, especially when specific bequests have changed or disappeared. The modern approach provides more flexibility in honoring the testator’s intentions, even when circumstances have changed since the will was written.
Disclaimers
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Rule Statement:
In order for a disclaimer to be effective, it must
(1) be declared in writing;
(2) describe the interest or power disclaimed;
(3) be signed by the person making the disclaimer; and
(4) be filed or delivered.
Under the common law approach, disclaimers must be made within a reasonable time. Under the Uniform Probate Code approach, disclaimers may be made at any time before a person accepts or the interest is transferred.
Disclaimed property passes according to the terms of the will or trust if the will or trust includes a provision on disclaimed property, or as if the person disclaiming predeceased the testator.
Concise version:
“Disclaimer Requirements: Written, Described, Signed, Filed/Delivered. Common Law: Reasonable Time; UPC: Before Acceptance/Transfer. Property Passes: Per Will/Trust Provision or As If Disclaimant Predeceased.”
Memorization techniques:
Mnemonic: “WDSF-RT/BA-PP” (Written, Described, Signed, Filed - Reasonable Time/Before Acceptance - Property Passes)
Acronym: DEWS (Describe, Effective, Writing, Signed)
Visualization: Picture someone writing a disclaimer, describing the property, signing it, then filing it in a cabinet or handing it to someone. Then imagine a clock ticking (common law) or a person reaching for but not touching a gift (UPC).
Rhyme: “Write it down, describe with care, sign your name and file it there. Act in time or before you take, then let the will new plans make.”
Common ways this rule is tested:
Fact patterns involving attempted disclaimers with missing elements.
Questions comparing common law and UPC approaches to timing.
Scenarios testing the effectiveness of disclaimers made at different times.
Issues related to the passage of disclaimed property.
Problems involving partial disclaimers or disclaimers with conditions.
Common tricks/mistakes:
Forgetting one of the four requirements for an effective disclaimer.
Confusing common law and UPC approaches to timing.
Assuming disclaimed property always passes as if the disclaimant predeceased.
Overlooking the possibility of specific provisions in the will/trust for disclaimed property.
Forgetting that the disclaimer must be delivered or filed, not just written and signed.
To reinforce your memory:
Create a checklist of the four requirements for an effective disclaimer.
Practice explaining the “WDSF-RT/BA-PP” mnemonic, giving examples for each part.
Write out scenarios with various disclaimer situations and evaluate their effectiveness under both common law and UPC approaches.
Remember, this rule emphasizes both the formal requirements for disclaimers and the different approaches to timing under common law and the UPC.
Key points to remember:
Four requirements: Written, Described, Signed, Filed/Delivered.
Common law requires reasonable time; UPC allows until acceptance/transfer.
Property passes per will/trust provision if exists, otherwise as if disclaimant predeceased.
Timing rules differ significantly between common law and UPC.
Understanding disclaimers is crucial for estate planning and administration, as they provide flexibility for beneficiaries to refuse inheritances, which can have significant tax and personal implications. The formal requirements ensure clarity and prevent disputes, while the timing rules (especially under UPC) provide extended opportunities for estate planning.
Advancements (Common Law)
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CASS DFD
Rule Statement:
Under the common law approach, a gift to an heir during the testator’s lifetime was considered an advancement on that heir’s intestate share of the estate and would be deducted from the heir’s share.
Concise version:
“Common Law Advancements: Lifetime Gifts to Heirs Deducted from Intestate Share”
Memorization techniques:
Mnemonic: “GASH-DD” (Gift Advancement Share Heir - Deducted from Distribution)
Acronym: LAID (Lifetime Advancement Intestate Deduction)
Visualization: Picture a testator handing a gift to an heir, then imagine that gift being subtracted from a pie chart representing the estate.
Rhyme: “In common law, a gift in life, cuts the heir’s share when you die.”
Common ways this rule is tested:
Fact patterns involving gifts given to potential heirs before death.
Questions about the automatic nature of advancements under common law.
Scenarios testing the calculation of intestate shares with advancements.
Issues related to unequal gifts to different heirs.
Problems involving the intention behind lifetime gifts.
Common tricks/mistakes:
Forgetting that this rule applies only to intestate succession under common law.
Assuming modern law follows the same presumption as common law.
Confusing advancements (intestate) with satisfaction of bequests (testate).
Overlooking that the rule applied regardless of the testator’s intent under common law.
Assuming the rule applies to all gifts, not just those to potential heirs.
To reinforce your memory:
Create a flowchart showing how a lifetime gift affects intestate distribution under common law.
Practice explaining the “GASH-DD” mnemonic, giving examples for each letter.
Write out scenarios with various lifetime gift situations and calculate their effect on intestate shares.
Remember, this rule represents the historical common law approach, which has been modified in many modern jurisdictions.
Key points to remember:
Applies to intestate succession under common law.
Lifetime gifts to heirs are presumed to be advancements.
The gift amount is deducted from the heir’s intestate share.
The rule applied automatically, regardless of intent.
Modern laws often take a different approach.
Understanding the common law rule on advancements is important for historical context and for jurisdictions that may still follow this approach. However, it’s crucial to note that many modern jurisdictions have moved away from this presumption, often requiring clear evidence of intent for a gift to be treated as an advancement. This shift reflects a more nuanced approach to interpreting a decedent’s wishes regarding lifetime gifts and their impact on inheritance.
Advancements (Uniform Probate Code)
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Rule Statement:
Under the Uniform Probate Code, gifts during the testator’s lifetime are not advancements unless the will contains a provision deducting the gift or if a writing indicates that the property was in satisfaction of a devise or that its value will be deducted from the value of the devise.
Concise version:
“UPC: Lifetime Gifts Not Advancements Unless Will Provision or Writing Indicates Deduction/Satisfaction”
Memorization techniques:
Mnemonic: “NAWI-WID” (Not Advancement Without Indication - Will or Writing Indicates Deduction)
Acronym: PWSD (Presumption Written Satisfaction Deduction)
Visualization: Picture a gift with a “Not an Advancement” label, which only changes if a will or document is attached to it specifying otherwise.
Rhyme: “In UPC’s realm, a gift’s just that, unless in writing, we state it flat: ‘This gift’s a part of what you’ll get, when I’m gone, don’t you forget.’”
Common ways this rule is tested:
Fact patterns involving lifetime gifts without accompanying documentation.
Questions about the presumption against advancements under UPC.
Scenarios testing the sufficiency of various writings to indicate advancement.
Issues related to partial satisfaction or deduction of gifts.
Problems involving ambiguous language in wills or accompanying writings.
Common tricks/mistakes:
Confusing the UPC approach with the common law presumption.
Forgetting that both will provisions and separate writings can indicate advancements.
Assuming any mention of a gift in a will makes it an advancement.
Overlooking the need for specific language about satisfaction or deduction.
Confusing this rule (which applies to both testate and intestate succession) with rules specific to intestate succession.
To reinforce your memory:
Create a decision tree for determining whether a gift is an advancement under UPC.
Practice explaining the “NAWI-WID” mnemonic, giving examples for each part.
Write out scenarios with various gift situations and evaluate whether they would be considered advancements under UPC.
Remember, this rule represents a significant shift from the common law approach, placing the burden on the testator to explicitly indicate advancement intent.
Key points to remember:
Default presumption: Gifts are not advancements.
Two ways to overcome presumption: Will provision or separate writing.
Writing must indicate satisfaction of devise or value deduction.
Applies to both testate and intestate succession.
Reflects a more intent-focused approach than common law.
Understanding the UPC approach to advancements is crucial for modern estate planning and administration. It emphasizes the importance of clear documentation of the testator’s intentions regarding lifetime gifts and their impact on inheritance. This approach provides more flexibility and respect for the testator’s wishes, while also potentially reducing disputes by requiring explicit indications of advancement intent.
Lapsed Gifts and Anti-Lapse Statutes
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LIPSG GISCTI
Rule Statement:
Under the common law approach, if the beneficiary of a will does not survive the testator, the gift lapses.
Under an anti-lapse statute, a lapsed gift will vest in the issue of a predeceased beneficiary if
(1) that beneficiary is a specified descendant of the testator, and
(2) the beneficiary leaves issue who survives the testator.
Under the Uniform Probate Code, the anti-lapse rule applies to gifts to grandparents, issue, stepchildren, and grandparents’ issue.
Concise version:
“Common Law: Gift Lapses if Beneficiary Predeceases. Anti-Lapse Statute: Gift to Issue of Predeceased Specified Descendant. UPC: Applies to Grandparents, Issue, Stepchildren, Grandparents’ Issue.”
Memorization techniques:
Mnemonic: “LIPS-GISt” (Lapse If Predeceased, Specified - Grandparents, Issue, Stepchildren, their issue)
Acronym: ALSD (Anti-Lapse Specified Descendants)
Visualization: Picture a gift floating away (lapsing), then being caught by a family tree (anti-lapse). For UPC, imagine a family portrait with grandparents, children, stepchildren, and grandchildren all catching gifts.
Rhyme: “If they’re gone when you depart, common law says gifts won’t start. But anti-lapse keeps gifts alive, for specified kin to survive. UPC spreads the net so wide, grands, steps, and issue all abide.”
Common ways this rule is tested:
Fact patterns involving predeceased beneficiaries of various relationships to the testator.
Questions comparing common law lapse with anti-lapse statutes.
Scenarios testing the application of anti-lapse to different family relationships.
Issues related to partial survival of beneficiaries or their issue.
Problems involving the interaction of anti-lapse rules with other will provisions.
Common tricks/mistakes:
Forgetting that common law default is lapse.
Assuming anti-lapse applies to all predeceased beneficiaries.
Confusing the scope of “specified descendants” in different anti-lapse statutes.
Overlooking the requirement that the predeceased beneficiary must leave surviving issue.
Forgetting that UPC includes stepchildren in its anti-lapse coverage.
To reinforce your memory:
Create a flowchart for determining whether a gift lapses under common law, typical anti-lapse statutes, and UPC.
Practice explaining the “LIPS-GISt” mnemonic, giving examples for each part.
Write out scenarios with various predeceased beneficiary situations and evaluate them under different rules.
Remember, this rule highlights the evolution from a strict common law approach to more flexible modern approaches aimed at preserving testamentary intent.
Key points to remember:
Common law: Gift lapses if beneficiary predeceases testator.
Anti-lapse statutes: Preserve gifts for issue of certain predeceased beneficiaries.
Anti-lapse typically applies only to specified descendants of testator.
UPC expands anti-lapse to include stepchildren and more distant relatives.
Beneficiary must leave surviving issue for anti-lapse to apply.
Understanding lapse and anti-lapse rules is crucial for estate planning and will interpretation. These rules can significantly affect the distribution of an estate when beneficiaries predecease the testator, potentially preserving gifts for younger generations that the testator may have intended to benefit.
