Wills - Ramsey Flashcards
What does it take for a will to be valid?
T must meet the formal requirements of due execution imposed by the statutes of the state. Most states require that the will be signed by the T and two witnesses, who must sign in the T’s presence.
The UPC and a majority of states also recognize holographic wills, requiring that all or most of the will be in the T’s handwriting and signed by the T.
What is a codicil?
A later testamentary instrument that amends, alters, or modifies a previously executed will. A will is treated as having been executed (republished) on the date of the last validly executed codicil.
But note, to be republished, the will must have been validly executed. When it wasn’t validly executed, the second document is valid as a partial will rather than a codicil.
What is incorporation by reference and how do you do it?
In most states, a document that is not present when a will is executed may be incorporated into the will by reference so that it is considered part of the will.
To incorporate a document by reference:
(1) the document must be in existence at the time the will was executed;
(2) the language of the will must sufficiently describe the writing to permit its identification; and
(3) the will must manifest an intention to incorporate the document.
What’s the slayer statute?
One who feloniously and intentionally brings about the death of the decedent forfeits any interest in the decedent’s estate. The property passes as though the killer predeceased the decedent.
These slayer statutes only apply when the heir kills the decedent whose estate is at issue.
What is ademption?
When specifically bequeathed property is not owned by the T at death, the bequest is adeemed (it fails).
Most courts apply the identity theory of ademption, which is an objective test that does not take into account the T’s probable intent. If the property is not in the estate at T’s death, it’s adeemed, and the reason it’s not in the estate is immaterial.
Note that some courts allow the beneficiary to take substitute property if he can show that the T intended the beneficiary to take that property.
Exception to ademption doctrine: If a guardian or conservator is appointed for the T after the will is executed and the bequeathed property is sold by the guardian, the beneficiary is entitled to the sale proceeds to the extent they have not been used for the T’s care.
How do specific bequests of stock pass?
Under CL, a specific bequest of stock includes any additional shares produced by a stock split but not those produced by a stock dividend.
Under the UPC, it doesn’t matter. A specific bequest of stock includes both stock dividends and stock splits.
What happens when a T gets divorced after making a will?
All gifts to the former spouse are revoked, and the will takes effect as though the former spouse predeceased the T.
Under the UPC, a divorce revokes bequests not only to the former spouse but also to the relatives of the former spouse.
Intestate succession when a D is not survived by a spouse or descendants:
The intestate property passes to her parents and/or siblings (and children of deceased siblings).
What is per capita with representation?
Majority. The residue is split evenly so the property is divided at the first generational level at which there are living takers.
One share for each line of descent, but grandchildren can take different shares.
What is strict per stirpes?
Only a few states use this method of distribution. The shares are always determined at the first generational level regardless of whether there are living takers.
