Wills (Main Deck)* Flashcards
WHAT ARE THE 5 STEPS TO APPROACHING A WILLS & SUCCESSION QUESTION?
STEP 1: DETERMINE IF THE WILL IS VALID
STEP 2: DETERMINE IF ISSUES OF INTERPRETATION ARE PRESENT
STEP 3: DETERMINE IF THE WILL HAS BEEN REVOKED AND, IF SO, CAN BE REVIVED
STEP 4: DETERMINE HOW THE ESTATE SHOULD BE DISTRIBUTED
STEP 5: DETERMINE IF AN ADVANCED HEALTHCARE DIRECTIVE IS AT ISSUE (IF THE TESTATOR IS STILL ALIVE)
STEP 1 -
VALIDITY OF WILLS:
WHAT LAW GOVERNS THE CREATION OF WILLS?
Rule: The creation of wills is governed by state statute.
Note:
1) Most states require strict compliance with statutory requirements to create a valid will.
2) A minority of states have adopted the UPC’s substantial compliance standard. In these states, minor errors will not invalidate a will if there is clear and convincing evidence of the Testator’s intent.
WHAT IS REQUIRED TO CREATE A VALID WILL?
Rule: Four requirements must be met to create a valid will:
1) Procedural formalities,
2) Legal capacity,
3) Testamentary intent, AND
4) Testamentary capacity.
LIST 3 TYPES OF WILLS
1) Attested Wills
2) Holographic Wills
3) Nuncupative Wills
ATTESTED WILLS
(Define & State the Rule)
Definition: An attested will is a written and witnessed will.
Rule: To be valid, an attested will must be:
1) In writing,
2) Signed by the Testator, AND
3) Signed by at least two competent witnesses who have witnessed the Testator:
a) Sign the will, OR
b) Acknowledge his signature or the will.
Note:
1) The signature can be by proxy if the proxy signs:
a) In the Testator’s presence, AND
b) At the Testator’s direction.
2) The signature can be a mark or symbol.
3) The signature:
a) Majority: Can be placed anywhere on the instrument.
b) Minority: Must be at the end of the instrument.
SELF-PROVING AFFIDAVIT
(Define & State the Rule)
Definition: A self-proving affidavit is a notarized statement in which the Testator and the witnesses certify that the parties have properly signed the will.
Rule: A self-proving affidavit attached to a will can be substituted for the testimony of the signatory witnesses in probate court.
Note: The vast majority of states permit self-proving wills.
INTERESTED WITNESS
(Define & State the Rule)
Definition: An interested witness is one who will benefit from the will.
Rule: The signing of a will by an interested witness may:
1) Invalidate the entire will,
2) Invalidate the interested witness’ gift, OR
3) Have no effect.
Note:
1) A minority of states and the UPC hold that the signing of a will by an interested witness has no effect.
2) Depending on the state, an otherwise voided gift may be preserved if:
a) The interested witness is an heir to the estate,
b) Two or more uninterested parties also serve as witnesses,
c) An uninterested witness can corroborate the interested witness’ testimony, OR
d) The interested witness can provide clear and convincing evidence the gift was not the result of fraud or undue influence.
HOLOGRAPHIC WILLS
(Define & State the Rule)
Definition: A holographic will is a handwritten will that is signed by the Testator.
Rule: To be valid, a holographic will must be:
1) In the Testator’s handwriting, AND
a) Note: Most states require only that the material provisions are in the Testator’s handwriting.
2) Signed by the Testator.
a) Note: Signing by proxy generally is not accepted due to fraud concerns.
Note: Some states also require that the will be found among the Testator’s possessions and/or that multiple witnesses testify that the will is in the Testator’s handwriting.
NUNCUPATIVE WILLS
(Define & State the Rule)
Definition: A nuncupative will is an oral will.
Common Law: Nuncupative wills were allowed to bequeath personal property.
Modern Approach: A minority of states allow nuncupative wills under limited circumstances and with certain restrictions, such as:
1) Limiting the value of property that can
be passed through the will,
2) Allowing only personal property to pass through the will,
3) Requiring at least three witnesses to the Testator’s statement,
4) Restricting the places a nuncupative will may be made (e.g., home or in the hospital), AND/OR
5) Requiring the Testator’s statement be written within a specified period of time.
Note:
1) Nuncupative wills are usually used only in emergency situations (e.g., deathbeds).
2) A minority of states provide the option to active duty military personnel
WHAT IS ALWAYS REQUIRED OF THE TESTATOR, REGARDLESS OF THE TYPE OF WILL?
Rule: In addition to meeting procedural formalities, the Testator must have:
1) Legal capacity,
2) Testamentary intent, AND
3) Testamentary capacity.
LEGAL CAPACITY
(State the Rule)
Rule: A Testator must be at least the statutorily defined minimum age to have legal capacity.
Note: Most states and the UPC specify 18 as the minimum age at which a person has legal capacity.
TESTAMENTARY INTENT
(State the Rule)
Rule: A Testator must intend that the instrument she signed function as her last will and testament to dispose of her property at death.
Note: Sham wills (i.e., wills made as a joke) lack the requisite testamentary intent.
TESTAMENTARY CAPACITY
(State the Rule)
Rule: A Testator has testamentary capacity if he is of sound mind. To be of sound mind, the Testator, at the moment of execution, must:
1) Understand the nature of his act (i.e., that he is executing a will),
2) Understand the nature and extent of his property,
3) Understand the natural objects of his bounty (i.e., his presumptive heirs), AND
4) Based on this understanding, make a reasoned decision about the distribution of his property.
Note: Adults are presumed to have testamentary capacity.
LIST 4 WAYS A WILL MAY BE INVALIDATED
1) Insane Delusion
2) Undue Influence
3) Fraud
4) Mistake
INSANE DELUSION
(Define & State the Rule)
Definition: An insane delusion is a belief in facts that do not exist and in which no rational person would believe.
Rule: A will may be invalidated if the Testator suffered from an insane delusion at the moment of execution. To invalidate a will due to insane delusion, a court must find that the:
1) Testator suffered from a false belief,
2) Belief had no basis in reason,
3) Belief was the product of a defect in the brain or functional disorder of the mind, AND
4) Belief materially affected the terms of the will.
UNDUE INFLUENCE
(Define & State the Rule)
Definition: Undue influence is the subjugation of the Testator’s free agency and will and the substitution of another’s purpose for that of the Testator, resulting in a bequest that would not otherwise have been made.
Rule: A will, or part of a will, may be invalidated due to undue influence if:
1) An unnatural disposition of property is made (e.g., a gift to a stranger),
2) The Beneficiary had the opportunity to exert undue influence,
3) The Testator’s mental or physical condition left him susceptible to being overpowered, AND
4) The Beneficiary actively participated in:
a) Creating the will,
b) Isolating the Testator from her family, AND/OR
c) Preventing the Testator from seeking independent legal advice.
WHEN WILL A PRESUMPTION OF UNDUE INFLUENCE ARISE?
Rule: A presumption of undue influence will arise if:
1) A close relationship existed between the Testator and Beneficiary, AND
a) Note: Some states require a confidential or fiduciary relationship.
2) The Beneficiary actively participated inthe creation of the will.
Note:
1) Some states also require that the gift
be of an unexpected nature.
2) If the presumption is triggered, the Beneficiary carries the burden to establish the absence of undue influence by clear and convincing evidence.
FRAUD
(Define & State the Rule)
Definition: Fraud is the intentional misrepresentation of a material fact for the purpose of inducing action or inaction.
Rule: A will, or part of a will, maybe invalidated due to fraud if:
1) A false representation was made to the Testator,
2) The person making the false representation knew of its falsity,
3) The Testator reasonably believed the false statement, AND
4) The false representation affected the contents or execution of the will.
FRAUD IN THE EXECUTION
(Define & State the Rule)
Definition: Fraud in the execution involves deceiving the Testator as to the nature of the document that the Testator is signing (i.e., telling the Testator that the document is not a will).
Rule: Fraud in the execution renders the entire will invalid.
FRAUD IN THE INDUCEMENT
(Define & State the Rule)
Definition: Fraud in the inducement involves misrepresentation as to the contents of the Testator’s will.
Rule: Fraud in the inducement renders only the part of the will affected by the fraud invalid.
MISTAKE IN CONTENT
(Define & State the Rule)
Definition: A mistake in content occurs when the Testator makes a mistake regarding Beneficiaries or gifts devised by the will.
Mistake in Omission: Courts will not supply words mistakenly omitted because to do so would be to rewrite the will.
Mistake in Addition: Courts may strike out mistakenly included words because doing so is not rewriting the will, only excising part of it to further the Testator’s intent.
MISTAKE IN EXECUTION
(Define & State the Rule)
Definition: A mistake in execution occurs when a Testator signs the wrong document.
Belief in Non-Testamentary Nature: If a Testator signs a will with the belief that it is a non-testamentary document, the will cannot be probated because the Testator did not intend to create a will.
Wrong Will: If a Testator signs the wrong will, the court may reform the will to further the Testator’s intent (i.e., the intent to create a will).
MISTAKE IN INDUCEMENT
(Define & State the Rule)
Definition: A mistake in inducement occurs when a gift is, or is not, made on the basis of the Testator’s erroneous beliefs.
Rule: A court will provide relief if both the mistaken belief and what the Testator would have done but for the mistaken belief appear on the face of the will.
WHAT IS THE CONSEQUENCE OF FINDING A WILL OR PART OF A WILL INVALID?
Entire Will Invalid: If an entire will is found invalid, the estate passes by intestate succession, unless Dependent Relative Revocation can be invoked to revive a prior will.
Part of the Will Invalid: If only part of a will is found invalid:
1) The affected portion of the estate will pass to residuary devisees if any, then to intestate heirs, OR
2) The court can decree the wrongdoer as a constructive trustee of that portion of the estate.
INTEGRATION
(Define & State the Rule)
Definition: Integration is the act of bringing together the pages that together form a coherent will.
Rule: Two elements are required to integrate a will:
1) Intent, AND
a) The Testator must have intended for all the papers in question to be part of the will.
2) Presence.
a) The papers must have been physically present at the time of execution.
HOW IS INTEGRATION OF A WILL DEMONSTRATED?
Rule: To demonstrate integration of a will, the proponent must establish:
1) A physical connection among the pages, OR
2) A logical connection among the pages.
INCORPORATION BY REFERENCE
(Define & State the Rule)
Definition: Incorporation by reference is the process through which a non-integrated document is given testamentary effect and becomes part of a will.
Rule: To properly incorporate a document by reference:
1) The document must have been in existence when the will was executed,
2) The document must be clearly identified in the will, AND
3) The Testator must have intended to incorporate the document into the will.
POUR-OVER WILL
(Define & State the Rule)
Definition: A pour-over provision provides for the transference of a Testator’s estate through devise to the trustee of an inter vivos trust upon the death of the Testator.
Rule: Under UTATA, a pour-over provision is valid if:
1) The trust is identified in the Testator’s will,
2) The trust’s terms are set forth in a written instrument other than the will, AND
3) The trust document was executed before or concurrently with the execution of the Testator’s will.
CODICIL
(Define & State the Rule)
Definition: A codicil is a testamentary instrument used to modify, revoke, or republish an existing will.
Rule: A codicil republishes a will from the date of the codicil.
Note: A codicil must be executed with the same formalities as a formal or holographic will.
GIFT CAUSA MORTIS
(Define & State the Rule)
Definition: A gift causa mortis is a gift made in contemplation of imminent death.
Rule: The gift must be private property, and the donor must deliver the gift to the donee. If the donor does not die, the gift is revoked.
Note: Delivery may be accomplished by:
1) Actual Delivery: The corpus is manually transferred to the donee.
2) Symbolic Delivery: A representative item of the corpus is given to the donee.
3) Constructive Delivery:
a) Common Law: The donee is provided access to the place where the corpus is located.
b) Modern View: The donor has done everything possible to effectuate a delivery, and no issue of fraud or mistake exists.
STEP 2 -
INTERPRETATION OF WILLS:
WHAT SHOULD YOU CONSIDER WHEN THINKING ABOUT THE INTERPRETATION OF WILLS?
1) Admission of Extrinsic Evidence
2) Facts of Independent Significance
3) Ambiguity
4) Class Gifts
ADMISSION OF EXTRINSIC EVIDENCE
(State the Rule)
Rule: Extrinsic evidence may be admitted:
1) To clarify patent or latent ambiguities in a will,
2) To determine the Testator’s intent, OR
3) When the extrinsic evidence is a fact of independent significance.
FACTS OF INDEPENDENT SIGNIFICANCE
(Define & State the Rule)
Definition: A fact is of independent significance if the fact exists in its own right, independent and regardless of the existence of the will.
Rule: When a Beneficiary or devise cannot be determined from the four corners of a will, courts may look to facts of independent significance to determine the meaning of the will.
PATENT AMBIGUITY
(Define & State the Rule)
Definition: A patent ambiguity is an ambiguity that is apparent on the face of the will.
Common Law: Parol evidence was not permitted to clarify patent ambiguities.
Modern Approach: Parol evidence will be admitted to resolve patent ambiguities.
LATENT AMBIGUITY
(Define & State the Rule)
Definition: A latent ambiguity is not apparent on the face of the will, but the interpretation of words or terms in the
will is unclear.
Rule: Both at common law and modernly, courts will admit parol evidence to resolve latent ambiguities:
1) To establish the ambiguity. AND
2) To determine the Testator’s intent.
CLASS GIFTS
(Define & State the Rule)
Definition: A class gift is a gift made by the Testator to a group of unspecified or generically identified people.
Rule: Class membership is determined by the earlier of:
1) The natural closing of the class, OR
a) Rule: Class membership is cut off when it is physically impossible to add anyone else.
2) The Rule of Convenience.
a) Rule: Class membership is cut off when any member of the existing class is entitled to collect his share of the glass gift.
Note: If a Testator states the time that class membership is to be determined (e.g., at my death’), then the time specified by the Testator will be used.
STEP 3 -
REVOCATION & REVIVAL OF WILLS:
HOW MAY A TESTATOR REVOKE A WILL?
Rule: A Testator may revoke her will in whole or in part by:
1) Subsequent will,
2) Revocatory act, OR
3) Change in circumstances.
REVOCATION BY SUBSEQUENT WILL
(State the Rule)
Rule: A will may be revoked by a subsequent will through:
1) Express Revocation (i.e., the second will expressly revokes the first), OR
2) Implied Revocation (i.e., the second will disposes of the Testator’s entire estate).
REVOCATION BY PHYSICAL ACT
(State the Rule)
Rule: To revoke a will by physical act:
1) The will must be burned, torn, cancelled, destroyed or obliterated.
2) The Testator must have had the simultaneous intent to revoke the will, AND
3) The destructive act must be committed by:
a) The Testator. OR
b) A person in the Testator’s presence and at her direction.
REVOCATION BY PHYSICAL ACT:
DUPLICATE & MUTILATED WILLS
(State the Rule)
**Duplicate Original Wills **
Rule: If a Testator, or a person in the Testator’s presence and at her direction, revokes by physical act one of duplicate originals, all originals are also revoked as a matter of law.
**Mutilated Wills **
Rule: If at a Testator’s death a will is found in a mutilated condition that when last seen was in the Testator’s possession, a presumption arises that the Testator mutilated the will with the intent to revoke it.
REVOCATION BY CHANGE IN CIRCUMSTANCES:
DISSOLUTION OF MARRIAGE
(State the Rule)
Rule: The dissolution of a Testator’s marriage automatically revokes any provision in the Testator’s will in favor of the Testator’s former spouse unless the will expressly provides otherwise.
Note:
1) Any property bequeathed to the former spouse passes as if the spouse predeceased the Testator.
2) If the former spouses remarry, the provisions in the spouse’s favor are revived.
REVIVAL OF WILLS:
DEPENDENT RELATIVE REVOCATION
(Define & State the Rule)
Definition: Dependant Relative Revocation (DRR) allows a court to disregard the revocation of a will caused by mistake.
Rule: If a Testator revokes her will, or a portion of it, with the mistaken belief that a substantially identical will or codicil effectuates her testamentary intent, the revocation of the first will is deemed conditional, dependent, and relative to the second will effectuating the Testator’s intent. Thus, if the second will or codicil is invalid, DRR provides that the first will was never revoked and may be used to probate the Testator’s estate.
REVIVAL OF WILLS:
WHEN MAY DEPENDANT RELATIVE REVOCATION BE APPLIED?
**Revocation by Physical Act **
Rule: If a subsequent will explicitly or implicitly revokes an earlier will, and the Testator then destroys the subsequent will by physical act, the earlier will can be revived through DRR if the Testator manifests an intent to revive the earlier will.
Note: Oral statements made by the Testator at the time he revoked the subsequent will are admissible to determine the Testator’s intent.
Revocation by Subsequent Instrument
Rule: If a subsequent will explicitly or implicitly revokes an earlier will, and the subsequent will is then revoked by codicil, the earlier will can be revived through DRR if it appears on the face of the codicil that the Testator intended to revive the earlier
will.
REVIVAL OF WILLS:
LOST WILLS
(State the Rule)
Rule: If a will once known to exist cannot be found after the death of the Testator, a presumption arises that it was destroyed by the maker with the intent to revoke it.
Note:
1) In most states, the presumption can be overcome by methods provided in a lost will statute.
2) Lost will statutes generally require that:
a) The disappearance of the will be explained, AND
b) The contents of the will be proven (usually by a copy of the will or witness testimony).
REVIVAL OF WILLS:
REPUBLICATION BY CODICIL
(State the Rule)
Rule: Because a validly executed codicil allows a will to
speak from the date of the codicil, a codicil may serve to republish a formerly revoked will.
STEP 4 -
DISTRIBUTION OF THE ESTATE:
HOW WILL THE ESTATE BE DISTRIBUTED IF A VALID WILL EXISTS & HOW WILL IT BE DISTRIBUTED IF A VALID WILL DOES NOT EXIST?
Valid Will: If a valid will exists, the estate will be distributed according to the will, subject to statutory and public policy restrictions.
No Will: If no valid will exists, the estate will be distributed through intestacy.
WHAT 3 QUESTIONS MUST BE EXAMINED WHEN DISTRIBUTING ACCORDING TO A VALID WILL?
1) Can the will be probated?
2) Who will take under the will?
3) What will the Beneficiaries take?
PROBATE:
STANDING TO CHALLENGE A WILL
(State the Rule)
Rule: To have standing to challenge a will, the challenger must have a direct pecuniary interest in the outcome of the will.
Note: Two categories of individuals have standing to contest a will:
1) Beneficiaries who are named in the will, AND
2) Those who are not named but would inherit if the will were not valid
PROBATE:
NO-CONTEST CLAUSES
(Define & State the Rule)
Definition: A no-contest clause is a clause included in a will stating that a Beneficiary who contests the instrument will take nothing under the instrument.
Rule: Most states will enforce no-contest clauses unless the will is challenged in good faith and with probable cause.
PROBATE:
CONDITIONAL WILLS
(Define & State the Rule)
Definition: A conditional will is made conditional by its own terms.
Rule: If a will is made conditional by its own terms, the will shall be executed in conformity with the condition.
Note: Conditional wills can be attested or holographic.
WHAT ROLE DOES A PERSONAL REPRESENTATIVE PLAY IN THE ADMINISTRATION OF AN ESTATE?
Rule: A personal representative must preserve the property of the estate and manage it in a fiduciary capacity to:
1) Repay the decedent’s creditors, AND
2) Distribute the remaining property to the decedent’s heirs or Beneficiaries.
WHAT CAN BE DISPOSED OF THROUGH A WILL?
Rule: A Testator can dispose of all the property he owns through his will.
Note: If married, the property owned by the decedent depends on whether his property is governed by a common law or community property system.
EXPLAIN THE DIFFERENCE BETWEEN COMMON LAW & COMMUNITY PROPERTY SYSTEMS FOR PURPOSES OF DETERMINING PROPERTY OWNERSHIP
Common Law: Under common law systems, each spouse owns:
1) His or her income earned during marriage,
2) Property acquired before marriage, AND
3) Property acquired during marriage by gift or inheritance.
Community Property: Under community property systems, each spouse owns:
1) One-half of his or her income earned during marriage,
a) Note: The other half is owned by the spouse.
2) Property acquired before marriage,
3) Property acquired during marriage by gift or inheritance.
Note: Under community property systems, a married individual can only dispose of one-half of community property holdings but may dispose of all separate property through a will.
ELECTION AGAINST THE WILL
(State the Rule)
Rule: The surviving spouse may:
1) Take under the will. OR
a) Definition: To take under the will is to accept the bequest left to the widow in the Testator’s will.
2) Take against the will.
a) Definition: To take against the will is to refuse the property left in the will and instead demand the statutory share of the deceased spouse’s property.
OMITTED CHILD
(Define & State the Rule)
Definition: An omitted child is a child born or adopted after all testamentary instruments were executed who is not provided for in any testamentary instrument.
Rule: An omitted child takes an intestate share of the estate.
Exception: An omitted child will not take an intestate share if:
1) The Testator’s failure to provide for the child was intentional and that intention appears in the will,
2) At the time of execution of the will, the Testator had one or more children and devised substantially all of her estate to the parent of the omitted child, OR
3) The Testator provided for the child by transfer outside of the will with the intention that the transfer be in lieu of a testamentary gift.
OMITTED SPOUSE
(Define & State the Rule)
Definition: A surviving spouse who married the Testator after the execution of all of the decedent’s testamentary
instruments.
Rule: An omitted spouse will take the statutory share of the Testator’s estate.
Exception: The omitted spouse will not take if:
1) The Testator’s failure to provide for the spouse was intentional and that intention appears from the will,
2) The Testator provided for the spouse by transfer outside of the will with the intent that the transfer be in lieu of a testamentary transfer, OR
a) Note: Parol evidence will be admitted to determine the Testator’s intent.
3) The omitted spouse signed a valid waiver of his right to share in the Testator’s estate.
SPOUSAL WAIVER
(Define & State the Rule)
Definition: A spousal waiver is a voluntary relinquishment of a known right, made before or during marriage.
Rule: All probate rights can be waived by either spouse. To be valid:
1) The waiver must be in writing,
2) The waiver must be signed by the waiving spouse,
3) The waiver must be signed after full disclosure of the Testator’s finances, AND
4) The waiving spouse must have been represented by independent counsel before signing.
Exception: In the absence of full disclosure or independent counsel, a waiver may still be enforceable if:
1) The waiving spouse had or should have had knowledge of the Testator’s finances, OR
2) The waiver was in fact fair.
WHAT HAPPENS WHEN A TESTATOR & BENEFICIARY DIE SIMULTANEOUSLY OR NEAR-SIMULTANEOUSLY?
Rule: Under the USDA, it must be established that an intended Beneficiary survived the Testator by 120 hours for the Beneficiary’s estate to take. If survival by 120 hours cannot be established by clear and convincing evidence, the intended Beneficiary is considered to have predeceased the Testator.
Exception: The 120-hour survival requirement does not apply if it would result in the escheat of property to the state.
DISTRIBUTION OF THE ESTATE:
LIST 3 COMMON BARS TO SUCCESSION
1) Homicide
2) Elder Abuse
3) Disclaimer
BARS TO SUCCESSION:
HOMICIDE
(State the Rule)
Rule: A person who feloniously and intentionally kills a person is not entitled to any benefit from the decedent’s estate by will, trust, intestacy, life insurance, or joint tenancy. The killer is deemed to have predeceased the decedent, and the Anti-Lapse statute does not apply. Thus, neither the killer nor her issue will take.
Note: In the absence of a conviction, a probate court may determine a person is responsible for killing the decedent by a preponderance of the evidence.
BARS TO SUCCESSION:
ELDER ABUSE
(State the Rule)
Rule: A person found liable of elder abuse by clear and
convincing evidence will be treated as if he predeceased the decedent.
Note: Elder abuse includes physical abuse, neglect, and fiduciary abuse.
BARS TO SUCCESSION:
DISCLAIMER
(Define & State the Rule)
Definition: A disclaimer is a writing that declines, refuses, renounces or disclaims any interest that would otherwise betaken by a Beneficiary.
Rule: A Beneficiary may disclaim any interest, in whole or in part, by filing with the Superior Court a written disclaimer that:
1) Identifies the creator of the interest to be disclaimed (i.e., the Testator),
2) Describes the interest to be disclaimed, AND
3) States the disclaimer and the extent of the disclaimer.
Note:
1) A disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within 9 months of the Testator’s death.
2) A disclaimer, when effective, is irrevocable and binding upon the Beneficiary and all persons claiming by, through, or under the Beneficiary, including creditors ofthe Beneficiary.
DISTRIBUTION OF THE ESTATE:
LIST 4 WAYS A DEVISE CAN BE CLASSIFIED
1) Specific Devise
2) General Devise
3) Demonstrative Devise
4) Residuary Devise
SPECIFIC DEVISE
(Define)
Definition: A specific devise is a gift of a particular, unique item that the Testator specifically intended the Beneficiary to take.
GENERAL DEVISE
(Define)
Definition: A general devise is intended to confer a general benefit rather than transfer a specific asset.
Note: The Beneficiary may receive the stated gift or the fair market value of the gift.
DEMONSTRATIVE DEVISE
(Define)
Definition: A demonstrative devise is intended to confer a general benefit from a specific asset or fund.
RESIDUARY DEVISE
(Define)
Definition: A residuary devise is a gift made from the residuary estate.
Note: The residuary estate is all property not expressly disposed of in the will.
DISTRIBUTION OF THE ESTATE:
LIST 6 CONCEPTS THAT MAY ARISE WHEN DETERMINING WHAT THE BENEFICIARY WILL TAKE
1) After-Acquired Property
2) Abatement
3) Exoneration
4) Ademption
5) Lapse
6) Anti-Lapse
AFTER-ACQUIRED PROPERTY
(Define & State the Rule)
Definition: After-acquired property is property acquired by the decedent after the will was executed and before her death.
Rule: A will passes all property owned by the Testator at death, including after-acquired property.
ABATEMENT
(Define & State the Rule)
Definition: Abatement is the order in which gifts will be reduced to satisfy the estate’s obligations.
Rule: The executor ofthe estate will abate devisees’ shares to provide omitted children or spouses with their statutory share.
IN WHAT ORDER SHOULD AN ESTATE BE ABATED?
Rule: An estate should be abated in the following order:
1) Property not disposed of by the will,
2) Residuary gifts,
3) General devises to non-relatives,
4) General devises to relatives,
5) Specific devises to non-relatives,
6) Specific devises to relatives.
EXONERATION
(Define & State the Rule)
Definition: Exoneration is the act of paying off the debt owed on a specific gift so that the Beneficiary will take the gift free of encumbrance.
Rule: There is no statutory right to exoneration. A specific gift will pass subject to any encumbrance existing at the date of death unless the Testator’s will specifically states that the gift is to be exonerated.
Note: A general directive in the will to pay the Testator’s debts is not sufficient.
ADEMPTION BY EXTINCTION
(Define & State the Rule)
Definition: Ademption by extinction occurs when the Testator no longer owns a specific devise disposed of in her will at the time of her death.
Rule: Specific devises no longer owned at the death of the Testator generally will adeem by extinction and the devise will fail.
Note: If the proceeds from the Testator’s sale of the property can be traced to a bank account, the Beneficiary may argue the Testator intended the Beneficiary to take the proceeds.
ADEMPTION BY SATISFACTION
(State the Rule)
Rule: An inter vivos payment on a devise made by the Testator to a Beneficiary is treated as a satisfaction of a testamentary transfer if:
1) The will provides for the deduction of the inter vivos gift from the testamentary transfer,
2) The Testator declares in a contemporaneous writing that the inter vivos gift is in satisfaction of the testamentary transfer,
3) The Beneficiary acknowledges in writing (at any time) that the inter vivos gift is in satisfaction ofthe testamentary transfer, OR
4) The property given by inter vivos transfer is the same property identified as a specific devise to the Beneficiary in the Testator’s will.
WHAT HAPPENS IF A BENEFICIARY RECEIVES SATISFACTION, BUT DIES BEFORE THE TESTATOR?
Rule: If the Beneficiary’s issue would otherwise take under Anti-Lapse, the Beneficiary’s issue are treated as if they had received the satisfaction unless the Testator’s will states otherwise.
HOW IS A SATISFACTION VALUED IF IT IS NOT MADE IN CASH?
Rule: The value provided in the contemporaneous writing of the Testator or the Beneficiary will be determinative. If no value was provided or no writing is available, the property’s value will be determined by its fair market value at the time the Beneficiary came into possession ofthe property.
LAPSE
(Define & State the Rule)
Definition: For a gift to lapse means the gift has failed due to the death of a Beneficiary before the Testator
Rule: Unless a contrary intent is expressed in the will, the lapsed gift falls into the residuary estate, if one exists. Otherwise, the gift will pass by intestacy.
Exception: The gift will not fail if the Anti-Lapse statute applies.
ANTI-LAPSE
(Define & State the Rule)
Definition: The Anti-Lapse statute prevents a gift from lapsing if a Beneficiary predeceases the Testator by giving the gift to the Beneficiary’s issue.
Rule: Anti-Lapse applies only if the devisee who predeceased the Testator was:
1) A kindred (i.e., a blood relative) of the Testator, OR
2) A kindred ofthe Testator’s surviving, deceased, or former spouse.
INTESTATE SUCCESSION:
IF A DECEDENT DIES WITHOUT A WILL, WHAT WILL THE SURVIVING SPOUSE TAKE?
Rule: The surviving spouse will take a statutorily determined share of the decedent’s estate.
Note: In most states, the following rules apply:
1) If the decedent leaves no issue, parents, siblings, or children of siblings, the surviving spouse will take all of the decedent’s property.
2) If the decedent is survived by one child, or issue of a predeceased child, the surviving spouse will take one-half of the decedent’s property.
3) If the decedent is survived by a parent or parent’s issue, the surviving spouse will take one-half ofthe decedent’s property.
4) If the decedent is survived by two or more children or issue of predeceased children, the surviving spouse will take one-third of the decedent’s property.
INTESTATE SUCCESSION:
IN WHAT ORDER WILL THE ESTATE OF A SINGLE OR WIDOWED PERSON WHO DIED INTESTATE BE DISTRIBUTED?
1) Issue
2) Parents
3) Issue of Parents
4) Grandparents
5) Issue of Grandparents
6) Issue of Predeceased Spouse
7) Next of Kin
8) Parents of Predeceased Spouse
9) Issue of Parents of Predeceased Spouse
10) Escheat
INTESTATE SUCCESSION:
PER CAPITA REPRESENTATION
(State the Rule)
Rule: If issue take by intestacy, or if a will provides for them to take without specifying the manner, they will take per capita:
1) Distribute at the first level in which someone is alive and allocate equal shares among all living people in that generation and all predeceased members of that generation who have left issue.
2) Divide the shares of first-generation predeceased members equally among her issue.
3) Apply the same formula down through the generations (e.g., if an issue of a first-generation predeceased member is also dead, allocate equally among her issue).
INTESTATE SUCCESSION:
PER STIRPES REPRESENTATION
(State the Rule)
Rule: If a will calls for per stirpes, by right of representation, or representation distribution:
1) Distribute equally among the first level of issue, even if every member of that generation is deceased as long as they left issue.
2) Divide the share of a predeceased member equally among his issue.
INTESTATE SUCCESSION:
ADVANCEMENT
(Define & State the Rule)
Definition: An advancement is an inter vivos payment made by an intestate to an heir apparent in satisfaction of the heir’s intestate share.
Rule: Advancement can be established in two ways:
1) The intestate declares in a contemporaneous writing that the gift is an advancement, OR
2) The heir acknowledges in writing (at any time) that the gift is an advancement.
INTESTATE SUCCESSION:
WHAT IF AN HEIR APPARENT RECEIVES AN ADVANCEMENT, BUT DIES BEFORE THE INTESTATE?
Rule: The issue of the heir apparent are not treated as
having received an advancement, unless a writing contemporaneous to the advancement states otherwise.
INTESTATE SUCCESSION:
HOW IS AN ADVANCEMENT VALUED IF IT IS NOT MADE IN CASH?
Rule: The value provided in the contemporaneous writing of the Testator, if provided, will be determinative. If no value or writing was provided, the property’s value will be determined by its fair market value at the time the heir apparent came into possession of the property.
INTESTATE SUCCESSION:
ADOPTED CHILDREN
(State the Rule)
Rule: An adopted child is treated as a natural child ofthe adoptive parents, and the adoption severs the relationship between the adopted child and the child’s natural parents
Exception: If the adoption is by the spouse ofthe natural parent, or after the death of either of the natural parents, the child can inherit from both the natural and adopted parents.
INTESTATE SUCCESSION:
STEPCHILDREN & FOSTER CHILDREN
(State the Rule)
Rule: Stepchildren and foster children will be treated as adopted if:
1) The relationship began during the child’s minority,
2) It continued through the deceased party’s lifetime, AND
3) It is established by clear and convincing evidence that the stepparent or foster parent would have adopted the child but for a legal barrier (e.g., the biological parent refused to consent to the adoption).
INTESTATE SUCCESSION:
ARTIFICIAL INSEMINATION
(State the Rule)
Rule: The husband of a woman who is artificially inseminated is treated as the natural father for intestate succession purposes if the procedure was undertaken:
1) Under the supervision of a licensed physician, AND
2) With the husband’s consent.
INTESTATE SUCCESSION:
NON-MARITAL CHILDREN
(State the Rule)
Rule: Nonmarital children cannot be excluded from inheritance rights based on their status.
INTESTATE SUCCESSION:
HALF-BLOODS
(Define & State the Rule)
Definition: Half-bloods are siblings with only one common parent.
Rule: Half-bloods inherit the same as whole-bloods.
STEP 5:
ADVANCED HEALTHCARE DIRECTIVES
LIST 2 TYPES OF ADVANCED HEALTHCARE DIRECTIVES
1) Living Wills
2) Durable Medical Powers of Attorney
LIVING WILL
(Define)
Definition: A living will is a document that, in the event a person becomes terminally ill or is unable to make healthcare decisions, provides specific directives regarding whether to:
1) Provide pain relief medication or treatment,
2) Administer life-sustaining treatments (e.g., feeding tubes),
3) Administer non-traditional or experimental treatment, AND/OR
4) Resuscitate in the event of heart failure.
DURABLE MEDICAL POWER OF ATTORNEY
(Define)
Definition: A durable medical power of attorney is a document in which a principal designates an agent to make healthcare decisions on his behalf.
Note:
1) A durable power of attorney does not become effective until the principal becomes incapacitated or unable to make healthcare decisions for himself.
2) Once effective, the agent has the authority to make all healthcare decisions on behalf of the principal.
WHO CAN BE APPOINTED AS AGENT OF A DURABLE MEDICAL POWER OF ATTORNEY?
Rule: Any adult except the owner, operator, or employee of a healthcare facility that is treating the principal can be appointed as agent.
Note: If a principal appoints her spouse as agent, the medical power of attorney is automatically revoked upon divorce or, in a minority of states, upon legal separation.
WHAT IS REQUIRED TO CREATE A VALID LIVING WILL OR POWER OF ATTORNEY?
Rule: To create a valid will or durable medical power of attorney, the document must be:
1) In writing,
2) Signed by the Testator,
a) Note: Proxy signatures are permitted.
3) Witnessed by at least two legally competent adults.
Note: As with wills, creation of living wills or powers of attorney require that the Testator have legal capacity and be of sound mind.
HOW CAN A LIVING WILL OR DURABLE MEDICAL POWER OF ATTORNEY BE REVOKED?
Rule: A living will or durable medical power of attorney can be revoked by:
1) Written revocation,
2) Oral revocation, OR
3) Revocatory act.
Note:
1) The revocation of a living will takes effect when the Testator’s primary care provider is notified of the revocation.
2) The revocation of a durable medical power is effective when either the primary care provider or the Testator’s agent is notified ofthe revocation.
