Wills MEE Flashcards
What do anti-lapse stattutes do?
They operate to save the gift and give the predeceasing beneficiary’s gifts to their descendants (only applies if they were a relative).
Note - This is only allowed if there are no contrary provisions in the will.
How does property pass by intestate succession?
When the decedent dies without a will, or the will is denied probate (total intestacy)
or
A decedent’s will does not dispose of all the decedent’s property (partial intestacy)
Who does property pass to in intestate succession?
Intestate’s heirs (people society views as proper)
Describe classic per stirpes
One share for each child and deceased child if they had descendants (common law)
What are the 3 methods of computing intestate?
1) Classic per stirpes (minority)
2) Per Capita with Representation (majority)
3) Per Capita at Each Generational Level (modern trend)
What is the only way to avoid intestacy?
To leave a valid will disposing of all probate property
How does per capita at each generational level work?
Initial division of shares at the first generational level but shares of deceased combine and divide up for next.
What is an advancement of intestate shares?
A lifetime gift to an heir with intent to be applied against any share the heir inherit from the donor’s estate.
Does advancement need to be in writing?
Yes, in UPC and some non-UPC states, advancement is not usually binding if not in writing.
How long must one survive the descendent to take?
120 hours
What is it called when one does not want their interest in a will? What are the requirements to do this?
Disclaiming the will
Disclaimer must be 1) written, 2) signed, 3) notarized, 4) filed with the court.
Note: Time period varies for disclaiming
What is the effect of disclaiming?
The disclaimed property passes as if the disclaiment had predeceased the decedent.
What is a slayer statute? And what is the legal standard for it?
Forfeit your interest by bringing about the decedent’s death.
Preponderance of evidence.
With respect to real property, the validity and effect of a will is determined by the law of the state …
Where the property is located
With respect to personal property, the validity and effect of a will is determined by the law of the state …
Testator’s domicile at the time of death
What is a “savings statute,” and what are its requirements?
A savings statute, in most states, makes a will admissible 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 testator’s domicile at the time of the will’s execution, or 4) the testator’s domicile at death.
*Note - these rules apply ONLY to determine whether the will is admissible to probate
How old must a testator normally be to create a will?
18 years old
Though a testator need not have the higher level of capacity required by contract, what must the testator be able to understand?
1) their act and effect of what they are doing
2) the nature and extend of their property
3) family members
4) formulate and orderly scheme of disposition
What is the intent state that a testator must have to make a valid will?
Present intent - a promise to make a will in the future does not give effect as a will.
What are the formal requirements for a proper will?
1) a writing
2) signed by the testator
3) two attesting witnesses
4) The testator sign the will in the witnesses’ presence
5) Witnesses must sign in the testators presence
(other states additional requirements - sign at the end, publish the will, witnesses sign in the presence of others, a notary sign)
What is a holographic will?
A holographic will is one that is entirely in the testator’s handwriting and has no attesting witnesses.
Do most states and UPC accept oral wills?
No. They do not recognize oral wills.
What is a devise?
A gift of real property
Who is the recipient of a devise?
A devisee
