Wills & Trusts (Estates)

Question 1

When do the intestacy rules apply?

Answer 1

1. No will
2. Will fails (denied probate)
3. Will doesn’t dispose of all probate property or
4. Will specifies intestate distribution

Question 2

Surviving Spouse’s Share

Answer 2

They will take the entire intestate estate if no descendants survive and 1/2 or 1/3 of the estate if the descendants survive

Question 3

Surviving Spouse’s Share (UPC)

Answer 3

• Provide for a dollar amount + 1/2 or 1/3 if descendants survive
• Surviving spouse takes entire estate if all surviving descendants are survivng spouse’s descendants

Question 4

Per Capita w/ Representation

Answer 4

Divided at first generation with living takers—estate divided into equal shares at the first generation at which there are living takers. Each living person takes a share and each share of a deceased person at that level passes to her descendants

Question 5

Per Capita at Each Generation

Answer 5

“By the head”; Divide at first generation with living takers, but shares of deceased are combined and divded equally among takers at the next level

Question 6

If no descendants survive, the intestate estate passes to who?

Answer 6

• to parents
• if the parents are dead, to siblings (descendants of parents)
• if the siblings are dead to grandparents or their kids (uncles, aunts)
• if grandparents or their kids are dead, divided into maternal and paternal shares and passes to nearest kin
• if no relative is capable of taking, the estate passes to the state (escheat)

Question 7

Adopted Children

Answer 7

Treated the same as natural child in adopting family; all inheritance rights cut off in family of natural parents
* Cuts off adoptee’s inheritance rights from his natural parents
* Exception: adoption by spouse of a natural parent; it doesn’t cut off adoptee’s inheritance rights with respect to the natural parent whose spouse adopted the child

Question 8

Stepchildren & Foster Children

Answer 8

No inheritance rights unless adopted, but may be exception for adoption by estoppel
* Adoption by estoppel: stephchild or foster child can inherit from or through a step/ foster parent as though they were legally adopted where step/ foster parent gains custody under an agreement with natural parents to adopt the child

Question 9

Posthumous Children

Answer 9

Child in gestation at decedent’s death inherits as if born in decedent’s lifetime (if someone is pregnant by the time the testator dies, they will still inherit)

Question 10

Nonmarital Children

Answer 10

They can inherit from their father if:
* Father and mother married after child’s birth
* The man is adjudicated the father in a paternity suit or
* after the man’s death, he is proved to be the father of the child

All states permit inheritance from the mother

Question 11

Siblings of the half blood and the whole blood

Answer 11

They inherit equally

Question 12

Problems Common to Intestacy and Wills

Answer 12

1. Simultaneous Death
2. Disclaimers
3. Decedent’s Death Caused by Heir or Beneficiary (Slayer Rule)
4. Advancements and Satisfactions of Legacies

Question 13

Simultaneous Death

Answer 13

One cannot take as an heir or beneficiary unless she survives decedent

If a decedent and heir/ beneficiary pass at or about the same time:

• Under the Uniform Simultaneous Death Act (USDA) the property of each person passes as though he survived the other person
• Applies to probate and nonprobate transfers (wills, trusts, insurance)
• 120 hour rule: must survive by 120 hours (5 days) to take as a beneficiary, heir, etc. and avoid the USDA application
• Governing instrument can make a different provision

Question 14

Disclaimers

Answer 14

One may disclaim an interest that otherwise would pass to them from a decedent or decedent’s estate
* Disclaimed property passes as though disclaimant precedeased decedent
* Estoppel of disclaimer if benefits are accepted

Requirements:
* Must be in writing
* Irrevocable and
* Filed within 9 months of decedent’s death

Question 15

Slayer Rule

Answer 15

One who wrongly brings about the death of a decedent forfeits an interest in decedent’s estate
* Property will pass as though the killer predeceased the decedent
* Severes joint tenancy

Question 16

Advancement

Answer 16

Gifts made during the testator or decedent’s life with the intent that the gift be applied against any share the heir or beneficiary inherits from decedent testator’s estate

Requirement:
1. Decedent declared her intent to make the gift an advancement in a contemporaneous writing or
2. Beneficiary/ heir acknowledged the gift to be an advancement in writing

Question 17

What is a Will?

Answer 17

An instrument that directs the disposition of a person’s property when they die
* No legal effect before testator’s death—operative upon death
* May be revoked or amended until testator’s death; named beneficiaries have only an expectancy interest

Question 18

Requirements for a Valid Will

Answer 18

1. In writing
2. Signed by the testator (any mark intended to be a signatue suffices)
3. Signed by at least 2 witnesses (must see testator sign the will and must sign as witnesses in testator’s presence in a reasonable time)
4. Testamentary capacity (18+ and sound mind)
5. Testamentary intent (present intent to make a will)

Question 19

Attestation Clause

Answer 19

Clause included immediately between testator and witness signatures in a will, which sets forth the above required elements and that they were satisfied

Question 20

Testamentary Capacity

Answer 20

For a will to be valid, the person executing the will must be 18+ and have mental capacity
* Age: determined at the time the will is executed
* Mental capacity: at the time of execution the testator must understand 1) act, 2) property, 3) people
* Rebuttable presumption exists that the testator had mental capacity
* Physical ailments, drug addiction do not raise presumption of incapacity

Question 21

Testamentary Intent

Answer 21

Testator must intend that the instrument operates as his will
* Usually established by provision in the will
* Extrinsic evidence is allowed to prove requisite intent or lack thereof
* Present intent is required

Question 22

Interested Witnesses

Answer 22

Common law: entire will could not be probated
Modern rule: will is valid but gift to witness-beneficiary is void

Exception:
1. There were 2 other witnesses who were disinterested or
2. Interested witness would take if there was no will

UPC: presence of interested witness doesn’t invalidate a will or any part of it

Question 23

Holographic Wills

Answer 23

Handwritten, unwitnessed will
Requirements:
1. Be in the testator’s writing
2. Be signed
3. Reflect testator’s intent to make a will

Replaces and revokes any prior valid will

Question 24

Codicil

Answer 24

Amendment, modification, or lateration to a previously executed will

Requirements:
1. In writing
2. Signed by the testator
3. Sufficient witnesses
4. Republished will

Revocation of will revokes codicils

Revocation of codicil revokes only the codicil not the will

Question 25

Integration

Answer 25

Pages present at execution are part of will if so intended
Test to determine if a document will be integrated into a will
1. Physical presence: document was physically present at the time of the will’s execution and
2. Intent of inclusion: testator inteded the document to be part of the will

Extrinsic evidence may be used to establish that the requirements have been satisfied

Requirements are presumed where there is a physical connection of pages or when there is some internal coherance

Question 26

Acts of Indepedent Significance

Answer 26

Will can dispose of property by reference to acts or events occurring after testator executes the will

Will may ID beneficiaries or property by reference to acts or events that have significance apart from the will

Valid as long as the act or event has some independent significance during the testator’s lifetime other than providing a gift in her will

Question 27

Important

Incorporation by Reference

Answer 27

Documents extrinsic to the will may be incorporated by reference into the will

Document will be incorporated by reference where
1. Intent to incorporate (will manifests testator’s intent to incorporate document)
2. Authenticated document (sufficiently described in the will) and
3. In existence at the time the will was executed

Tangible property exception: will may incorporate by reference of a document that disposes of testator’s tangible personal property
* Document can be prepared before or after execution of the will and can be changed before the testator’s death
* Requirements: 1) signed by testator and 2) describe items and to whom they are devised with reasonable certainty

Question 28

Power of Appointment

Answer 28

Authority granted to a person (donee) enabling donee to desginate a new owner of property and how they take it

Appontive property not subject to elective share or creditors

Contract to exercise testamentary power is invalid

Question 29

General v. Special Powers for Power of Appointment

Answer 29

General power: donee can exercise her power in favor of anyone, including herself, her estate, her creditors, etc. (favor of donee)

Special power: power is exercisable in favor of a limited class of appointees (cannot include donee, her estate, creditors, etc.)

Question 30

Exercise of Power of Appointment

Answer 30

Residuary clause doesn’t, by itself, exercise testamentary power, the power must be mentioned

Blanket exercise of power is permissible (including all property over which I have a POA)

Question 31

Present v. Testamentary Power under Power of Appointment

Answer 31

Appointment power may be exercised during donee’s life or only exercisable by donee’s will

Presently exercisable: 1 exercisable by donee during her life

Testamentary power: exercisable only by the donee’s will

Question 32

Revocation of Wills

Answer 32

1. Operation of law
2. Written instrument
3. Physical Act

Question 33

Revocation by Operation of Law

Answer 33

Will and or its provisions can be revoked by operation of law upon the happening of certain events, usually involving changes in marital status or children

Marriage usually has no effect on the will, but if there is an omitted spouse statute, the will is revoked to extent of spouse’s share
* Variation (UPC) where a person marries after executing a will and spouse survives testator, omitted spouse will take a share of decedent’s estate equivalent to what their intestate share would be
* Not applicable if the will provides for the omitted spouse, was made in contemplation of marriage, or otherwise makes clear that the omission was intentional

Divorce or annulment revokes all provisions in favor of former spouse unless the will expressly provides otherwise
* Remainder of the will remains valid
* Will is treated as if the former spouse predeceased testator