Wills MEE

Question 1

What do anti-lapse stattutes do?

Answer 1

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.

Question 2

How does property pass by intestate succession?

Answer 2

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)

Question 3

Who does property pass to in intestate succession?

Answer 3

Intestate’s heirs (people society views as proper)

Question 3

Describe classic per stirpes

Answer 3

One share for each child and deceased child if they had descendants (common law)

Question 4

What are the 3 methods of computing intestate?

Answer 4

1) Classic per stirpes (minority)
2) Per Capita with Representation (majority)
3) Per Capita at Each Generational Level (modern trend)

Question 5

What is the only way to avoid intestacy?

Answer 5

To leave a valid will disposing of all probate property

Question 6

How does per capita at each generational level work?

Answer 6

Initial division of shares at the first generational level but shares of deceased combine and divide up for next.

Question 7

What is an advancement of intestate shares?

Answer 7

A lifetime gift to an heir with intent to be applied against any share the heir inherit from the donor’s estate.

Question 8

Does advancement need to be in writing?

Answer 8

Yes, in UPC and some non-UPC states, advancement is not usually binding if not in writing.

Question 9

How long must one survive the descendent to take?

Answer 9

120 hours

Question 10

What is it called when one does not want their interest in a will? What are the requirements to do this?

Answer 10

Disclaiming the will

Disclaimer must be 1) written, 2) signed, 3) notarized, 4) filed with the court.

Note: Time period varies for disclaiming

Question 11

What is the effect of disclaiming?

Answer 11

The disclaimed property passes as if the disclaiment had predeceased the decedent.

Question 12

What is a slayer statute? And what is the legal standard for it?

Answer 12

Forfeit your interest by bringing about the decedent’s death.

Preponderance of evidence.

Question 13

With respect to real property, the validity and effect of a will is determined by the law of the state …

Answer 13

Where the property is located

Question 14

With respect to personal property, the validity and effect of a will is determined by the law of the state …

Answer 14

Testator’s domicile at the time of death

Question 15

What is a “savings statute,” and what are its requirements?

Answer 15

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

Question 16

How old must a testator normally be to create a will?

Answer 16

18 years old

Question 17

Though a testator need not have the higher level of capacity required by contract, what must the testator be able to understand?

Answer 17

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

Question 18

What is the intent state that a testator must have to make a valid will?

Answer 18

Present intent - a promise to make a will in the future does not give effect as a will.

Question 19

What are the formal requirements for a proper will?

Answer 19

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)

Question 20

What is a holographic will?

Answer 20

A holographic will is one that is entirely in the testator’s handwriting and has no attesting witnesses.

Question 21

Do most states and UPC accept oral wills?

Answer 21

No. They do not recognize oral wills.

Question 22

What is a devise?

Answer 22

A gift of real property

Question 23

Who is the recipient of a devise?

Answer 23

A devisee

Question 24

What is a bequest?

Answer 24

A gift of personal property

Question 25

What is a general legacy?

Answer 25

A gift of a general economic benefit (often a dollar amount) payable out of the general assets of the estate without requiring any particular source of payment.

Question 26

What is a demonstrative legacy?

Answer 26

A gift of a general amount that is to be paid from a particular source or fund.

Question 27

A gift of real property

Answer 27

Devise

Question 28

A gift of personal property

Answer 28

Bequest

Question 29

What is a gift of a general economic benefit (often a dollar amount) payable out of the general assets of the estate without requiring any particular source of payment.

Answer 29

A general legacy

Question 30

What is a gift of a general amount that is to be paid from a particular source or fund.

Answer 30

Demonstrative legacy

Question 31

What is the residuary estate and what does is consist of?

Answer 31

The residuary estate, consistst of the balance of the testator’s proeprty after paying 1) debts, expenses, and taxes; and 2) specific, general, and demonstratve gifts

Question 32

What is ademption and what does it apply to?

Answer 32

Ademption refers to the failure of a gift because the property is no longer in the testator’s estate at the time of their death.

Ademption applies only to specific devises and bequests.

Question 33

The process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises?

Answer 33

Abatment

Question 34

How does a gift lapse?

Answer 34

If the beneficiary predeceases the testator or if the beneficiary is treated as not surviving the testator because, for example, the beneficiary disclaimed or did not survive long enough.