Wills & Trusts Flashcards
What is probate? What is not included
Judicial proceeding to
1) Determine decedent’s will is valid or intestate procedures apply
2) Appoint personal rep to wind up estate and distribute estate.
3) Contract distributions like 401k, IRAs, life insurance, and employment death benefits; joint bank accounts w/ ROS, J/T and T/E w/ ROS; property held in trust; property over which decedent held a power of appointment are all considered non-probate assets.
Under what circumstances might the intestate statute come into play?
1) No will
2) Will fails to make a complete disposition
3) Omitted spouse or omitted child.
How do you determine a spouse’s share in intestacy?
1) Spouse gets the entire estate if decedent had no kids or parents or all decedent’s kids were born from the spouse and she has no other kids. [Nuclear family]
2) Spouse gets the first 100k plus 1/2 of everything else if one or more of the decedent’s kids are not the spouse’s kids or the spouse has kids who are not the decedent’s. [Divided family]
3) Spouse takes the first 200k plus 3/4 of what remains if there are no kids, but decedent is survived by a parent.
Notes
- Stepchildren do not inherit by intestate statutes.
- *Adopted kids count as natural kids.
- **Adopted kids do not inherit from natural parents unless child is adopted by the spouse of natural parent.
- ***Child in gestation at time of death takes if it survives 120 hours.
- ***Artificial insemination baby takes if husband consented to a posthumous pregnancy and agreed to support the child.
- **Equitable adoption is enforced if there was an agreement to adopt, but it had not been performed yet.
If property passes to a spouse through the intestate statute, what other rights might the spouse have?
1) Family allowance (18k, if more or longer than a year, the court must approve).
2) Exempt personal property up to 10k, or, if no spouse, decedent’s children. Includes furniture, furnishings, personal effects, and automobiles.
3) Right to occupy residence for 6 months.
How does inheritance pass to descendants of deceased children in MA?
Per capita at each generation.
Careful not to give to spouses of predeceased descendants or members of a class if their parents took their share.
Who takes if decedent is not survived by a spouse or descendants?
Parents Then siblings Then nephews and nieces And so on... No limit in MA.
Does MA follow the Uniform Simultaneous Death Act?
Partly. If there is no sufficient evidence as to whether a party survived, the property of each passes as though each party survived the other.
However, in MA, if there is sufficient evidence that one party survived longer than the other for any length of time, then the party who survived longer is treated as a survivor. (No 120 hour rule.)
What is the effect of a lifetime gift to an heir or will beneficiary?
Common law treats it presumptively as an advancement.
In MA, it is only an advancement if the donor declares it as an advancement in a contemporaneous writing or the donee acknowledges it as such in a writing.
May a beneficiary disclaim his share?
Yes, but once he does, it is irrevocable.
To be valid, it must be:
1) In writing and signed; and
2) Filed with probate within 9 months after decedent’s death.
Disclaiming treats the person who disclaimed as though he or she predeceased the donor.
Notes
- Disclaimer can be partial
- Personal rep can disclaim for deceased beneficiary or heir, and a guardian can disclaim for an incapacitated beneficiary or heir if it is in the best interest of the beneficiary’s or heir’s estate.
- ** For irrevocable inter vivos trusts, the beneficiary must disclaim within 9 months of the trust being created.
- *** Disclaiming avoids taxes.
What are the requirements to validly execute a will?
1) 18 years old at time of creation
2) Two Ws
3) Witnessed either T signing, T acknowledging his earlier signature, or T acknowledging the will.
Notes
- Codicils require the same thing.
- Signing anywhere on the will is fine.
- ** Witness knowing they were witnessing a will does not matter.
- *** Witnesses do not need to sign in one another’s presence or T’s presence.
- ** In MA, T does not have to be alive if the witnesses saw him sign it before he died.
How may wills be proven valid in probate?
1) Court may if it appears to be validly executed and no contest.
2) Notice given to parties, unopposed, and court does so on the strength of the pleadings.
3) Self proving affidavit
a) Notary swears in parties
b) T signs a statement saying he signs of his own free will.
c) Ws sign a statements saying that they saw T sign, he was over 18, and appeared of sound mind.
d) Can be done on the will or in an attached affidavit. If done on the affidavit, must sign both the will and the affidavit.
Can a witness be an interested party?
A will can be both admitted to probate and valid even if an interested party is a witness.
Even though it will always be admitted, the gift to the interested party will be void unless:
1) there were two disinterested witnesses; OR
2) the interested witness can establish that the bequest and will were not due to the fraud or undue influence of the witness.
That is, the interested witness has the burden of proof.
Does MA recognize holographs?
No. Eve though about 30 states recognize holographs, in MA, if a will is handwritten or typed, it still requires the same formalities.
Exception: If the holograph was executed in a state that recognizes holographs, but the will is admitted to probate in MA, it will be recognized.
Will MA recognize a foreign will?
Yes if:
1) It would be valid in MA.
2) It would be valid where executed.
3) It would be valid where T was domiciled either when will was signed or at T’s death.
What is a conditional will? Valid?
E.G. If something happens to me on my trip to Everest, leave my estate to the kid who played McLovin.
Discuss:
1) Was this meant to be a conditional will?
2) Was the seemingly conditional language just a motive for making the will.
3) Did T destroy it after his trip? Why not?
How can I revoke my will?
1) A properly executed subsequent testamentary instrument that either expressly revokes previous wills or does so by inconsistency.
2) A revocatory act with appropriate intent to revoke the will. Can be done by you or another at your direction and in your presence. Must be done on the will itself, not a copy.
If your will is destroyed improperly and needs to be admitted to probate, how is that possible?
Proof of Lost Will Statute
Requirements:
1) Proof of due execution (Testimony or other evidence);
2) Cause of will’s non-production proved;
and
3) Proof of will’s contents with evidence that is strong, positive, and free from doubt. (Xerox or oral testimony.)
What are some presumptions with revocation?
1) If will last seen in T’s possession and not found at death, presumed revoked by physical act.
2) If last seen in T’s control and found mutilated, it is presumed T did the mutilating.
3) Neither is presumed if will last seen in possession of someone adversely affected by its contents.
4) Presumptions can be rebutted with evidence.
How may a will be revived?
Majority of states say no revivals.
MA does not revive a will UNLESS:
1) The will is still in existence; and
2) There is evidence that T intended that it be revived.
What is dependent relative revocation?
If T revoked his will premised upon a mistake of law or fact as to the validity of another disposition (e.g. a mistaken belief that a new will was valid), then the court may disregard the revocation of the revoked will and admit it to probate.
In order to do this, the previously revoked will must better accomplish T’s failed distribution goals than an intestate distribution.
This may require the application of the proof of lost wills statute.
Can T make changes on the face of the will after it has been executed?
T can cross out a provision to revoke it, but cannot write something new in because it would have to be signed and witnessed.
What is the MA Anti-Lapse Statute?
In MA, if a beneficiary pre-deceases T, the anti-lapse statute will save a gift if:
1) The beneficiary was a grandparent or a descendant of a grandparent of T; and
2) The beneficiary is survived by descendants who survived T (not a spouse).
If no descendants, then the gift lapses into the residuary estate.
Anti-Lapse Statute does not apply if surviving T is an express condition of the bequest.
If a residuary estate is devised to 2+ persons and a gift to one lapses or fails for some reason, the surviving residuary beneficiaries rule states that the other beneficiaries take the residuary estate in proportion to their interests.
Same as above if a gift is made to a specific class. If a class member pre-deceases T, the remaining class members take.
However, class gift rules give way if:
1) It looks like a class but the members are specifically named; and/or
2) The class members are grandparents or descendants of a grandparent of T, in which case anti-lapse governs.
When does a class close?
Rule of Convenience:
When some member is entitled to distribution, but if a member is in gestation at that time then he or she is included (Common Law Presumption that there will be no more than 280 days from conception to birth).
Does the Anti-Lapse statute apply to non-probate transfers? NEW RULE - RIPE FOR TESTING
Unlike most states, in MA, the anti-lapse statute can apply to non-probate transfers and certain future interests in trust.
e.g. Life insurance policy names, brother X, and there’s no alternate beneficiary. X pre-deceases insured, but X has two kids. The policy can pass to the kids.
e.g. Trustee shall pay all trust income to my brother Barton for life, and on Barton’s death, the remainder shall pass to my sister Gladys. Gladys dies but leaves two kids.
See page 16-17 of outline.
What is the omitted spouse statute?
If T marries after he executes his will, Spouse takes intestate share of what is left after the property left to his children before the marriage is paid. UNLESS
1) It appears from the will (no extrinsice evidence) that the will was in contemplation of marriage;
2) The will states that it is to stand notwithstanding subsequent marriage; or
3) Provisions were made for the spouse in transfers outside the will, and it is shown that the transfer were intended to be in lieu of the testamentary gifts by amount or other evidence.
Don’t forget about her statutory rights.
What effect does divorce have on a will?
In MA, final decree of divorce or annulment revokes all gifts and fiduciary appointments in favor or former spouse and relatives of the former spouse who are not relatives of the testator. Estate is distributed and fiduciaries are named as though former spouse and her relatives pre-deceased the testator.
Divorce rule also applies to revocable distributions such as revocable trusts, life insurance policies, IRAs, joint bank accounts, but not to ERISA retirement plans.
The provisions are revived if they remarry.
Applies only for divorce, NOT SEPARATION.
J/T and T/E property converted to T in C.
What is the omitted child statute? COMMONLY TESTED BUT DID NOT TEST ON IT LAST YEAR. RED FLAG
Only applies to children born or adopted after the will’s execution.
1) If T did not have other kids,
Omitted child takes intestate share, unless the will devised substantially all of the estate to the other parent of the omitted child.
2) If T had other kids, and those kids were in the will,
Omitted child takes what the other kids took, and the other kids shares abate proportionately.
NOTE***
The omitted child statute does not apply if:
1) It appears from the will (no extrinsice evidence) that the omission was intentional;
2) Provision was made for the child by transfers outside the will and it is shown that those transfers were intended in lieu of testamentary gifts by T’s declarations, by the amount of the transfer, or by other evidence.
What happens when there are too many claims to satisfy both the testamentary gifts and the claims?
Testamentary gifts abate in the following order
- Intestate property
- Residuary gift
- General Legacies
- Demonstrative Legacies
- Specific Bequests
What is unique about demonstrative legacies?
It is an amount of money from a specific source. If the source is no longer sufficient to pay that gift, then the portion from the specific source is treated as a specific bequest and the difference is a general legacy.
What happens if T gifts BA or some other specific piece of property to a donee, but T no longer owned that property at death?
The gift is subject to ademption.
Note***Ademption only applies to specific bequests.
There are statutory exceptions to the ademption problem.
1) Specific beneficiary takes any of the remaining specifically devised property and
(a) any unpaid balance of the purchase price (together with any security interest) by reason sale of the property to the extent paid after T’s death.
(b) any amount of condemnation award for taking, to the extent unpaid at T’s death.
(c) Any amount of fire or casualty insurance proceeds unpaid at T’s death.
2) Will executed before T became incapacitated and guardian or conservator, or by an agent acting under durable power of attorney, or if condemnation award or insurance proceeds are paid to the guardian because of fire or casualty, specific devisee has a right to a general legacy in the amount equal to the sale price, award, or proceeds.
What specific rules apply to bequests of stock?
A specific bequest of stock includes additional stock of that entity or another entity produced by a stock split or stock dividend, and also stock resulting from a reorganization, merger, etc., after will was executed BUT NOT stock acquired by exercise of a stock option.
If T gives you BA, do you take subject to the mortgage?
At common law no.
In MA, yes because the exoneration of liens doctrine has been abolished by statute. That is, unless, the will provides for exoneration.
A general provision in the will to pay debts does not count.
Can T incorporate a list in his will?
Yes, an extrinsic document may be incorporated by reference if:
1) Writing is in existence when the will was executed.
2) Will manifests an intent to incorporate the writing.
3) Will describes the writing sufficiently to permit identification.
Exception: Will may refer to a written state or list that disposes of tangible personal property only (no money, stocks, bonds, etc.) not specifically disposed of in the will. Must be in T’s handwriting and signed by T at the end. Must describe property with reasonable certainty. This list may be made before or after will.
If T does something that substantially changes a gift, does the gift fail?
e.g. “Gary Busey takes my car.” I currently drive an ‘93 Ford Tempo. At death, I drove Audi A8.
or
“Ralph Macchio takes everything in my living room.” Currently, the most valuable thing in my living room is my TV. At death, my living room has the crystal egg from Risky Business.
No. The change is an act of independent significance, not made with the purpose of making the testamentary gifts more substantial.
What if I left my old chest to Brett Michaels, but there is a deed to a house in it? Does Brett take the deed?
No, he only takes tangible personal property within the chest.
What types of ambiguity might we encounter in a will? What are the remedies?
1) No ambiguity on face, but extrinsic evidence suggests there might be. E.g. 200 shares when there are 300.
Apply the plain meaning. No extrinsic evidence admitted.
2) Latent ambiguity. E.g. “Gift to my good friend Jed Mosley.” I have a friend named Ted Mosbey, and I have a friend named Jen Rosely. Here, extrinsic evidence is allowed to find out who I was talking about. If can’t be figured out, then the gift fails.
3) Patent ambiguity. E.g. “$25,000 ($25) to Carl Weathers.” Here, it’s complicated because old MA common law says that extrinsic evidence is not allowed, but the modern trend says otherwise.
4) Blanks. E.g. “$25,000 to my friend ___________.”
Gift fails. Courts will not fill in the blanks.
What if I was good friends with Patrick Swayze when he died. My parents, thinking the Swayz left me a goddamn fortune, cut me out of their will. As it turns out, that bastard Swayze didn’t leave me shit! Then, on top of it all, my parents die before they realize that Swayze left me out in the cold. What can I do?
Nothing absent evidence of fraud.
What if I was good friends with Patrick Swayze when he died. My brother told my parents that Swayze left me a goddamn fortune, but, in fact that bastard Swayze didn’t leave me shit! Thinking that he did leave me $$$, my folks cut me out of their will. They never realize that Swayze left me out in the cold, and that my bro lied to them. What can I do?
That is fraud in the inducement and the court will create a constructive trust in my favor.
What are contracts related to wills? Permissible?
A contract to make a will or not to revoke a will is permissible and can be established by:
1) provisions in the will stating the material provisions of the k; OR
2) Express reference in the will to the K and extrinsic evidence prove the terms; OR
3) A writing signed by T evidencing the contract.
Usually these arise out of services like when I took care of Harry Carey before he died. He told me that I would be put in his will as payment. That son of a bitch did nothing though. Since, none of the three above apply, I’m SOL.
May be able to recover under unjust enrichment though for my reasonable services. (Must expect payment to recover under this theory.)
Can you disinherit someone in your will?
Yes, words of disinheritance are given full effect. Remember though, if Goldie Hawn cuts out Kate Hudson for making “How to Lose a Guy in Ten Days” her kids can still take.
To whom is an estate attorney liable for negligence?
In a testamentary trust where the trustee hires the lawyer, only the trustee can sue him because the attorney’s duty is to the trustee who hired him. See Spinner v. Nutt. No duty to beneficiaries because that would conflict with duty to trustee.
If the attorney prepares a will, the minority rule says that beneficiaries may not sue because there is no privity of K.
The majority rule says that beneficiaries may sue the drafter if he was negligent.
MA has not decided, but Spinner v. Nutt indicated that MA is going to join the majority because there are no conflicting duties in preparing a will like with the trust situation.
Bottom line, mention both sides.
A decedent dies without a will and is survived by his spouse, his brother, his predeceased sister’s only daughter, and his mother. In most states, to whom will the decedent’s estate be distributed?
A His brother.
B His spouse and his mother.
C His spouse, his mother, and his brother.
D His spouse, his mother, his brother, and his niece.
B His spouse and his mother.
A decedent dies intestate, survived by a spouse with whom he had two children, and two children from a previous marriage. What is the surviving spouse’s share of the estate?
A The entire estate.
B One-half of the estate.
C The first $200,000 plus three-fourths of the balance of the estate.
D The first $100,000 plus one-half the balance of the estate.
D The first $100,000 plus one-half the balance of the estate.
How are the intestate shares of descendants distributed?
A Equally.
B Strict per stirpes.
C Per capita at each generation.
D Per capita with representation.
C Per capita at each generation.
An adopted child has which of the following rights under intestate succession laws?
A The same rights as a natural child of the adopting parents.
B The right to inherit from both his adopting and natural parents.
C The right to inherit from and through his natural parents.
D The right to inherit from his adopting parents but not their kin.
A The same rights as a natural child of the adopting parents.
The decedent and her only child were involved in a plane crash. Neither was alive when the emergency team reached them.The child, who died without a will, is survived by a spouse. The decedent is survived by only a brother. The decedent left a sizeable intestate estate and a life insurance policy naming the child as the sole beneficiary. Who will share in the decedent’s estate, and who will take the insurance proceeds?
A The decedent’s brother will take the estate, but the child’s spouse will take the insurance proceeds.
B The child’s spouse will take the estate and the insurance proceeds.
C The decedent’s brother will take the estate and the insurance proceeds.
D The child’s spouse will take the estate, but the decedent’s brother will take the insurance proceeds.
C The decedent’s brother will take the estate and the insurance proceeds.
The entirety of a testator’s will provides, “I do not want my daughter to take any of my estate.” If the testator is survived by only the daughter and a son, how will the testator’s estate be distributed?
A All to the son.
B One half to the son and one half to the daughter.
C All to the daughter.
D All to the state.
A All to the son.
Assuming the requisite intent, the testator has validly signed the will in each of the following circumstances EXCEPT:
A The testator places his initial in the margin.
B The testator’s lawyer reads the will to the testator over the phone and then signs for the testator at the testator’s request.
C The testator places his fingerprint on the will.
D The testator forgets to sign the signature line at the end of the will but signs the integrated self-proving affidavit.
B The testator’s lawyer reads the will to the testator over the phone and then signs for the testator at the testator’s request. This is assuming the self-proving affidavit is part of the will.
A testator signs his will in front of two witnesses. Immediately after the witnesses sign, the testator remembers that he wanted to include a legacy of $5,000 to a friend. After explaining this to the witnesses and while still in their presence, the testator handwrites the legacy directly under his signature. The witnesses witness but do not sign the legacy. The effect of the additional legacy is:
A Both the will and the legacy are void.
B The will is valid, but the legacy is void.
C Both the will and the legacy are valid.
D The legacy is a valid holograph, but the will is void because it is not subscribed.
B The will is valid, but the legacy is void.
If an attesting witness is also a beneficiary under a will:
A The will can be probated, and the gift is valid.
B The will is valid but the devise to the subscribing witness is void.
C The will has not been properly executed and cannot be probated.
D The gift is valid if the attesting witness would have been an intestate heir.
B The will is valid but the devise to the subscribing witness is void.
Which of the following wills is valid?
A A handwritten will signed by the testator and attested to by two witnesses.
B A handwritten, unattested will signed by the testator.
C A typewritten will signed by the testator and attested to by at least one witness.
D A typewritten, unattested will signed by the testator.
A A handwritten will signed by the testator and attested to by two witnesses.
Republication by codicil has what effect on an earlier will?
A It revokes the will.
B It redates the will as of the date of the codicil.
C It dates the codicil as of the date of the will.
D It has no effect.
B It redates the will as of the date of the codicil.
The order of priority for naming a personal representative begins as follows:
A Executor, surviving spouse who is a devisee, other devisees.
B Surviving spouse who is a devisee, other devisees, other heirs.
C Public administrator, executor, surviving spouse who is a devisee.
D Executor, public administrator, surviving spouse who is a devisee.
A Executor, surviving spouse who is a devisee, other devisees.
The order of priority for naming a personal representative is as follows: executor, surviving spouse who is a devisee, other devisees, surviving spouse, other heirs, public administrator.
A no-contest clause will have the following effect:
A A beneficiary contesting the will forfeits his interests.
B A beneficiary contesting the will forfeits his interests, unless there is probable cause.
C A beneficiary bringing suit to construe a will’s provision forfeits his interest.
D A beneficiary contesting the will forfeits his interests, unless he is claiming fraud or undue influence.
A A beneficiary contesting the will forfeits his interests.
Which of the following are two elements that must be proven to establish undue influence?
A The testator was threatened and the resulting disposition would not have been executed but for the influence exerted.
B The testator’s mind and free will were overpowered, and the resulting disposition would not have been made but for the influence exerted.
C The testator was defrauded, and the resulting disposition is one that he may not have made but for the fraud.
D The testator was threatened, and his mind and free will were overpowered.
B The testator’s mind and free will were overpowered, and the resulting disposition would not have been made but for the influence exerted.
To establish undue influence, there are three requirements: (i) that influence was exerted over the testator, (ii) the effect of the influence was to overpower the testator’s mind and free will, and (iii) the product of the influence was a disposition that would not have been made but for the influence. Merely threatening a testator does not constitute undue influence; his free will must be destroyed. The resulting disposition must reflect the desire of the influencing party, not the testator, and so would not have been made but for the influence.
At the time the testator executes his will, the testator and his spouse have one child, a son. The will leaves all of the testator’s property to his spouse. Subsequently, the testator and his spouse adopt a daughter. If the testator dies without having revised his will and survived by his spouse, son, and daughter, how should the estate be distributed?
A One-third each to the spouse, the son, and the daughter.
B One-half each to the spouse and the daughter.
C All to the spouse.
D All to the daughter.
C All to the spouse.
When a specifically-bequeathed item is not in a testator’s estate at his death, the court will consider which of the following in determining whether the bequest is adeemed?
A The testator’s expressions of intent.
B Whether the testator used proceeds from the item to purchase replacement property.
C Whether the property was disposed of by a conservator.
D Whether proceeds from the sale of the item were kept in a separate account.
C Whether the property was disposed of by a conservator.
There is an exception to the ademption rule if the specifically devised property is sold by a conservator. In that case, the devisee is entitled to a general pecuniary legacy equal to the amount of the proceeds. Ademption is decided based on the objective test of whether the item is a part of the testator’s estate at death. If it is not, and no statutory exception applies, the bequest is adeemed. The testator’s intent is irrelevant.
All of the following statements about a spouse’s elective share are true EXCEPT:
A Assets placed in a revocable trust during marriage are subject to the surviving spouse’s elective share.
B The amount of the surviving spouse’s elective share depends on which other relatives also survived the decedent.
C If the decedent was survived by issue or kindred, the share passing outright to the spouse is satisfied first out of personal property.
D The elective share applies to the augmented estate, which includes nonprobate transfers if the decedent retained economic control and benefits.
D The elective share applies to the augmented estate, which includes nonprobate transfers if the decedent retained economic control and benefits.
If a testator makes a specific bequest of stock, the devisee is entitled to additional securities, including ____________________, but not ____________________.
A Shares produced by a dividend; shares produced by a split.
B Shares produced by a dividend; cash dividends.
C Securities acquired by exercising a purchase option; shares produced by a split.
D Shares produced by a split; securities acquired by exercising a purchase option.
D Shares produced by a split; securities acquired by exercising a purchase option.
