Wills Rule Language

Question 1

Intestate Succession

Answer 1

“Intestate succession explained how property is divided if a person dies without a will (or if the will is invalidated in part or in whole or does not make a total disposition).”

Question 2

Per Capita at Each Generation

Answer 2

The initial division of shares at the first generational level at which there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level.

Persons in the same degree of kinship to the decedent always take equal shares.

(Where all cousins will be treated alike)

Question 3

Per Capita with Representation (Modern Per Stirpes)

Answer 3

In most states, a decedent’s descendants take their shares per capita with representation, which means the property is divided into equal shares at the first generational level at which there are living takers.

(Where a child will simply take his parent’s share)

Question 4

Advancements (Common and Majority Law)

Answer 4

“This is when the decedent dies WITHOUT A WILL but gave a child a gift during her lifetime.”

“The issue is would the gift be deducted from what the child would inherit under the laws of intestate succession.”

Common Law: Treated as a down payment and thus is taken into account. Only applied to a gift to a child.

Majority Law: A lifetime transfer is presumed to be a GIFT and is ignored in computing the heir’s intestate share (unless evidence to suggest otherwise).

Question 5

Ademption by Satisfaction
3 Requirements by UPC

Answer 5

This doctrine deals with lifetime gifts when the decedent HAS a will (contrasted to advancements).

The UPC states that a lifetime gift is not prepayment unless:
1. The will says so,
2. The testator declares in a contemporaneous writing that the gift is to be deducted from the will, OR
3. the devisee acknowledges in writing that the gift is in satisfaction of the bequest.

Question 6

General Requirement for Valid Will

Answer 6

Many state laws require that the will is in writing, signed by the testator, and witnessed by two witnesses.

Question 7

Holographic Wills

Answer 7

Holographic wills are UNWITNESSED wills and are valid if signed and if the material portions are in the testator’s handwriting.

NOTE: The fact that a will is handwritten does NOT mean that it is a holographic will.

Question 8

Revocation of a Will by Physical Act

Answer 8

A will can be revoked by execution of a new will or by some other physical act, such as cancellation or other writings on the will.

This must be done with the intent to revoke the will.

Question 9

Dependent Relative Revocation of a Will

Answer 9

Under this doctrine, a first will is not revoked if a later will is found invalid.

Essentially, if a testator revokes a will or bequest based on a mistaken assumption of law or fact, the revocation of the will is ineffective if it appears that the testator wouldn’t have revoked the bequest had the testator had accurate information.

The doctrine of dependent relative revocation applies when a
testator revokes their will under the mistaken belief that another
disposition of their property would be effective, and but for this
mistaken belief, the testator would not have revoked the will. If the
other disposition fails, the revocation also fails and the will remains
in force.

Question 10

When a Gift Fails because the Beneficiary is not Alive

Answer 10

The general rule is that if a beneficiary does not survive the testator, the gift will LAPSE or fail and fall into the residuary.

Question 11

Lapse

Answer 11

“At common law, lapse occurs when the beneficiary or the devisee under the will predeceases the testator, invalidating the gift.”

“The gift would instead revert to the residuary estate or be granted under the law of intestate succession.”

Question 12

Anti Lapse Statutes

Answer 12

Under a typical anti lapse statute, if a beneficiary dies before the testator and was both related by blood to the testator within a certain degree of relationship and had issue who survived, the gift to the deceased beneficiary is saved and the beneficiary’s issue will take in lieu of the beneficiary.

Question 13

Slayer Statute

Answer 13

An individual who feloniously and intentionally kills the decedent, or who is convicted of committing abuse, neglect, or exploitation with respect to the dependent, forfeits all benefits within respect to the decedent’s estate.

Question 14

Ademption

Answer 14

If specifically devised property (i.e., property that is specifically described in the will) is not in the testator’s estate when the testator dies, the bequest deems–i.e., the gift fails.

Question 15

Disclaimers

Answer 15

Disclaimed property (property that a beneficiary does not want) will pass as if the person disclaiming had failed to survive the testator.

An anti lapse statute may apply; otherwise the gift will fall into the residuary.

Question 16

Abatement

Answer 16

Abatement occurs when the assets of an estate are insufficient to satisfy all the gifts made by someone’s will, then the gifts to the beneficiaries will be reduced (abated) in the following order: intestate property, residuary gifts, general gifts, and specific gifts.

Question 17

Testator’s Mental capacity

Answer 17

A testator must have capacity to execute a will. A testator meets this requirement if the testator knows:
1. the nature and extent of his property,
2. the persons who are the natural objects of the testator’s bounty (ie family members),
3. the nature of the instrument that the testator is signing, and
4. the disposition that is being made in the will.

Question 18

Elements to Establish Undue Influence on the Testator during Will Execution

Answer 18

SODA
1. testator was susceptible to UI
2. the alleged influence hard the opportunity to exert UI
3. the alleged influence had a disposition to exert UI
4. the will appears to be a product of UI

Question 19

Codicils

Answer 19

“A codicil is a later testamentary instrument that amends, alters, or modifies a previously executed will.”

Question 20

Incorporation by Reference (DIE)

Answer 20

“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:
(i) the document must be in existence at the time the will was executed,
(ii) the language of the will must sufficiently describe the writing to permit its identification, and
(iii) the will must manifest an intention to incorporate the document.”

Question 21

Disposition of Stock Dividends

Answer 21

“Under the common law rule, 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 and the statutes of nearly all states, a specific bequest of stock includes stock dividends.”

Question 22

Will Substitutes

Answer 22

Will substitutes include:
- life insurance
-joint tenancies or tenancies by entirety
-inter vivos trusts
-bank account trusts
-deeds
-contracts
-inter vivos gifts, including gifts causa mortis.

Will substitutes may enable individuals to avoid taxes and eliminate the cost and inconvenience of probate.

Property governed by a probate avoidance technique DOES NOT PASS THROUGH PROBATE and thus is not governed by the testator’s will or by intestacy.

These assets must be removed from the decedent’s estate before distributing property under a will or via intestacy.

Question 23

Revival (After Revocation)

Answer 23

Under the UPC and in many states, if a will that wholly revoked a
previous will is thereafter revoked, the previous will remains revoked
unless it is evident from the circumstances or the testator’s statements
that the testator intended to revive (that is, restore to effectiveness)
the previous will.

If the original will was only partly revoked, the
revoked provisions are revived unless it is evident from the circumstances or the testator’s statements that the testator did not intend to revive the provisions.

Question 24

Durable Powers of Attorney

Answer 24

A POA empowers a designated agent to make health care decisions for the principal in the event of the principal’s incapacity.

Unless it states otherwise, a designated agent is empowered to make healthcare decisions for the principal whenever the principal lacks capacity.