WT&E Flashcards
What comprises an intestate estate?
UPC: Any part of the D’s estate that has not been disposed of by a will passes by intestate succession.
What comprises an estate?
An estate includes:
· Money
· Personal Property
· Real Property
· Any Related Interests
· Anything else that may be the subject of ownership
What is the GENERAL distribution scheme under the LAW OF INTESTATE?
The surviving spouse, and any descendants (or issues) will receive shares of the intestate estate.
Under INTESTATE, how is an estate distributed if the decedent was NOT survived by any spouse OR issue?
The shares are distributed to collateral relatives (parents, grandparents, their descendants).
Under INTESTATE, how is an estate distributed if the decedent was not survived by any identifiable heirs?
Transferred to the state under the DOCTRINE OF ESCHEAT.
DOCTRINE OF ESCHEAT
Doctrine that transfers the ownership of unclaimed property to the state IF OWNERS OR HEIRS FAIL TO CLAIM THAT PROPERTY. This Doctrine refers to the power a state holds over an unclaimed property IF NO HEIR OR OWNER MAKES A CLAIM.
Bars to succession that MAY prevent an heir from receiving a share of an intestate estate
· Survival Requirement –> 120 Hour Rule
· Slayer Rule
· Disclaimed by Heir
120 Hour Rule
An heir who fails to survive the D by 120 hours OR 5 days is considered to have PREDECEASED the decedent THEREFORE may NOT INHERIT an Intestate Share.
· Clear & Convincing E
Slayer Rule
An heir who murders the D CANNOT inherit from his intestate estate.
· MUST HAVE killed D:
–> Wrongfully
–> OR feloniously AND intentionally
· May be established by EITHER:
–> Criminal conviction
–> OR Finding of a PROBATE COURT based on a PREPONDERANCE of E
Intestate Share DISCLAIMED BY HEIR
May do IN WHOLE OR IN PART.
· Disclaimed in whole:
–> the heir is treated as PREDECEASING the D
Doctrine of Advancement
UPC: An inter vivos gift may reduce or even eliminate an heir’s intestate share when the decedent intended for the gift to serve as an advancement of that share.
· REQUIRES EITHER:
–> Contemporaneous writing made by the decedent at the time of the inter vivos gift DECLARING THE GIFT TO BE AN ADVANCEMENT
–> OR a writing made by the HEIR AT ANY TIME acknowledging the gift to be an advancement
Inter Vivos Gifts
Gift made by the D during the decedent’s lifetime.
Hotchpot
Method used to calculate the reduction in an intestate share due to advancement.
· Add advancements into intestate estate
· Divide appropriately into intestate shares
· Intestate share is reduced by advancement to individual.
Who is a surviving spouse?
Anyone who is married to the D at the time of his death.
· In states that recognize CIVIL UNIONS & DOMESTIC PARTNERSHIPS
–> Decedent’s partner MAY be considered a surviving spouse
· Surviving Spouse has obtained DIVORCE, ANNULLED MARRIAGE, or LEGALLY SEPARATED
–> Considered to have PREDECEASED the decedent
· Spouse who DESERTS or ABANDONS decedent
–> Barred from intestate succession
Intestate Share to Surviving Spouse (SS); GENERAL
UPC: Based on whether the decedent has any surviving descendants together.
Intestate Share to Surviving Spouse (SS); Issues TOGETHER w/ NO OTHER ISSUES
SS inherits the entire intestate estate
Intestate Share to Surviving Spouse (SS); Issues Together & SS has other Issue
SS inherits $225k, AS WELL AS half of the remaining balance of intestate estate.
Intestate Share to Surviving Spouse (SS): Issues Together & D has other Issue
SS inherits $150k AS WELL AS half of the remaining balance of the intestate estate.
Intestate Share to Surviving Spouse (SS): NO ISSUES
UPC: SS intestate share is based on whether the D has a SURVIVING PARENT
· NONE: SS gets ALL
· One surviving parent = SS gets $300k & 3/4th’s remaining intestate estate w/ 1/4th to surviving parent
Who is considered a descendant?
· All issues
· Grandchildren
· Adopted children
–> No longer considered descendants of genetic parents
· Stepchild if adopted
–> If D adopts the child of his spouse, adopted child is considered a descendant of both genetic and adopts.
· Non-martial children (MOTHER ONLY)
–> For Father, Paternity MUST be proven under Uniform Parentage Act
Uniform Paternity Act
Paternity may be proven by establishing a presumption of paternity
Uniform Paternity Act: D and Child’s Mother were MARRIED
The child MUST have been born during the marriage
· OR within 300 days AFTER their divorce
Uniform Paternity Act: D Married Child’s Mother AFTER BIRTH
D MUST HAVE also VOLUNTARILY asserted his paternity AND agreed to be named as the father on the child’s BIRTH CERT.
· OR promised IN A RECORD to pay child support
Uniform Paternity Act: D and Child’s Mother were UNMARRIED
· D MUST have RESIDED with the child for the FIRST TWO YEARS of the child’s life
· AND Openly held out the child to be his own.
Uniform Paternity Act: Other ways to prove paternity
· D’s acknowledgment of his paternity (typically by affidavit)
· AND by a Court’s ADJUDICATION of D’s paternity.
Intestate Share; AFTER SS
Issues inherit the remaining portion of the intestate estate AFTER the SS has taken their share.
· Two possible ways of distribution
1) Per stirpes
2) Per capita at each generation
Per Stirpes
Each branch of issues receives an equal share.
Per Capita at Each Generation
Each generation of issues receives an equal share.
UPC: Collateral Relatives - HALF BLOODS
Kindred of the half blood who only share ONE PARENT with the D MAY inherit the SAME AMOUNT as kindred of the whole blood.
UPC: Collateral Relatives - D Adopted
ONLY his adoptive parents are considered collateral relatives.
· If adopted by STEPPARENT
–> the genetic parent who IS MARRIED to the stepparent IS A COLLATERAL RELATIVE
–> the genetic parent who is NOT married to the stepparent is NOT a collateral relative.
UPC: Collateral Relatives - Deserting Parent
MAY NOT inherit a share from D’s intestate estate.
Ways to show desertion of a parent
1) Parent’s parental rights were ALREADY TERMINATED
2) Shown by CLEAR AND CONVINCING E that the child DIED before the AGE OF 18
· AND that the parent’s rights COULD HAVE BEEN TERMINATED immediately before the child’s death for reasons SUCH AS:
–> Lack of CS
–> Abandonment
–> Abuse
–> Neglect
Three categories of COLLATERAL RELATIVES
1) Parents and their issues
2) Grandparents and their issues
3) Issues of a DECEASED spouse
Laughing Heir Statute
A distant relative of an intestate D who takes under the applicable intestacy statutes BUT WHO DID NOT EXPECT TO INHERIT.
· May restrict the categories of collateral relatives who may inherit from D’s intestate estate
· Based on the principle that the degree of relation should be close enough to justify inheritance
WILLS; Extrinsic Evidence (EE) –> Admissible
EE is ONLY ADMISSIBLE for the purpose of interpreting or constructing a will:
· To prove that a will is VALID, INVALID, OR REVOKED
· To correct an erroneous description WITHIN a will
· To clarify an AMBIGUITY in a will
WILLS; EE –> Inadmissible
· NOT admissible for any purpose other than interpretation
WILLS; EE –> Scrivener’s Error
EE ADMISSIBLE to correct a mistake that results from a scrivener’s error. MUST BE:
· Clear and Convincing E (CCE) of an error made by a scrivener
· AND CCE that T’s will WAS AFFECTED by the scrivener’s error
Terrorem Clause
AKA: No Contest Clause. Penalizes anyone who attempts to contest a will.
· UNENFORCEABLE if PC exists for contesting the will.
Doctrine of Ademption by Extinction
T’s will makes a specific gift that is no longer in his estate at the time of his death.
· CL: Beneficiary loses her gift entirely.
· Modern Trend: May be a statute that prevents a gift from being addeemed by offering several alternative methods of receiving the gift.
Doctrine of Ademption by Extinction: Alternative Methods for Receiving Gift
1) Right to any outstanding balance from the transfer of the gift
· Proceeds from a sale
2) Right to any of the T’s REAL OR PERSONAL property that was acquired as a replacement for the gift.
· New car = old car
3) Right to the V of the gift IF any outstanding balance or replacement property is available
· ONLY IF T did NOT intend for the gift to be addeemed.
- MAY BE OVERRIDEN by T’s intent
Doctrine of Ademption by Satisfaction
T makes an INTER VIVOS gift to a beneficiary that WHOLLY OR PARTIALLY satisfies a testamentary gift made by his will.
- MAY BE OVERRIDEN BY T’S INTENT
Doctrine of Ademption by Satisfaction; SATISFIES A TESTAMENTARY GIFT
The will provides for the deduction of the inter vivos gift:
· When the T declares the satisfaction in writing contemporaneous w/ the inter vivos gift, OR
· When the Beneficiary acknowledges the satisfaction in a writing at any time.
Doctrine of Abatement
When the T gives away more property in his will than he has in his estate.
- MAY BE OVERRIDEN BY T’S INTENT
Doctrine of Abatement; ORDER OF ABATEMENT
1) Intestate Property
2) Residuary Estate
3) General devises of property for which the source of the gift is irrelevant.
4) Specific devises of property for which the source of the gift is irrelevant
· Typically Real Property or Tangible Personal Property
Doctrine of Exoneration of Liens
T’s will makes a specific gift that is SUBJECT TO A LIEN.
· Specific gift passes subject to a lien w/o any right of exoneration
–> Beneficiary is responsible for the lien.
· Applies even if the T’s will contains a general provision that all his debts should be paid.
- MAY BE OVERRIDEN BY T’S INTENT
Last Will & Testament
Final statement on how a person’s estate should be disposed of after death.
Methods of Revocation
- Revocation by Act
- Revocation by Writing
- Revocation by Presumption
Methods of Revocation; REVOCATION BY ACT
Requires a revocatory destructive act.
· MUST BE performed w/ the intent and purpose of revocation
· AS WELL AS by the T personally
–> OR by an individual in the T’s CONSCIOUS PRESENCE AND AT HIS DIRECTION
Methods of Revocation; REVOCATION BY WRITING
Requires the execution of a subsequent will.
· May expressly revoke the previous will
· OR it MAY implicitly revoke the previous will by INCONSISTENCY
Methods of Revocation; REVOCATION BY PRESUMPTION
Presumes that the T has revoked his will
· T’s will was last in his possession AND the will cannot be found after his death
Revival
A previous will that has been revoked by writing MAY BE REVIVED AND MADE VALID AGAIN
· T MUST revoke the subsequent will by act
· AND indicate his intent for revival:
–> by his declarations
–> OR by the circumstances of the present revocation.
Testamentary Capacity
A person MUST have testamentary capacity in order to a will to be valid.
UPC §2-501: Testamentary Capacity
An individual 18 or more years of age who is of sound mind MAY make a will.
Four-Part Test to Determine Whether an Individual HAS Testamentary Capacity
A T is of sound mine and HAS testamentary capacity based on his ability to know AT THE TIME OF EXECUTION, the elements of a four part test.
1. T knows that NATURE AND EXTENT of his own property;
2. Natural objects of his bounty in terms of WHO IS RECEIVING HIS PROPERTY;
3. The nature of the testamentary act being performed; AND
4. How everything above relates together to constitute an orderly plan of disposing his property.
Defects in Testamentary Capacity
BOP: Contestant MUST PROVE EITHER:
· T did not fulfill the four-part test
-OR-
· T suffered from one of the 3 defects in capacity
What are the 3 defects in testamentary capacity?
- Insane delusion;
- Undue Influence; OR
- Fraud
Testamentary Capacity; INSANE DELUSION
T adheres to a persistent belief in a nonexistent state of facts against all the E
· MUST HAVE MATERIALLY affected the T’s disposition of property
Testamentary Capacity; UNDUE INFLUENCE
T has been unduly influenced when ANOTHER PERSON exercises control over T’s mind
· MUST OVERCOME T’s free agency
· Difficult to prove
–> T4: Courts accept a PRESUMPTION of undue influence by proving 3 elements
Testamentary Capacity; FRAUD
An INTENTIONAL misrepresentation.
· MUST be made with the purpose of causing the T to dispose of his property in a way he would not have BUT FOR THE MISRESPRESENTATION
Testamentary Capacity; Undue Influence; THREE ELEMENTS
- T and OP MUST have been in a CONFIDENTIAL RELATIONSHIP;
- MUST have been SUSPICIOUS CIRCUMSTANCES surrounding the execution of the will; AND
- MUST make an UNNATURAL DISPOSITION of T’s property
–> No reasonable basis for the disposition
Attested Wills
Require T to acknowledge his will in the presence of others.
· Witnessed Wills; OR
· Notarized Wills
Nonattested Wills
Do not require the T to acknowledge his will in anyone’s presence.
· Holographic Wills
Witnessed Wills: 3 Requirements
· MUST be in writing;
· MUST be signed by the T,
–> Personally -OR- by another individual in the T’s conscious presence AND at his direction; AND
· MUST be signed by:
–> AT LEAST TWO PEOPLE within a REAONSBLE TIME after witnessing the T’s signature, OR
–> T’s acknowledgement of the signature or will.
UPC & the Interested W Doctrine
Eliminated the doctrine.
· Allows ANY person to W a will who is GENERALLY COMPETENT
Notarized Will: 3 Requirements
- MUST be in writing;
- MUST be signed by the T
· EITHER personally OR by another individual in the T’s conscious presence AND at his direction; AND - MUST acknowledge the will as his own before a NOTARY PUBLIC.
Holographic Will
A non-attested will.
Holographic Will; 3 Requirements
- MUST be in writing;
2.MUST have handwritten the material portions of the will; AND - MUST have personally signed the will.
UPC §2-503
Harmless Error Rule:
· Although a doc was not executed in compliance, it is treated as if it had been IF the proponent establishes that the D intended it to constitute the D’s will
· BOP: Clear and Convincing E
Proving Execution
The execution of a will MUST BE PROVEN in order to establish that the will is VALID.
· W testimony NOT REQUIRED IF the T makes his will SELF-PROVING BEFORE his death
Proving Execution; SELF-PROVING
To make a will self-proving, T MUST acknowledge his executed will; AND
· Attesting Ws MUST create affidavits
–> Each before a NOTARY PUBLIC
Doctrine of Integration
A legal theory that says that since wills are multi-page documents, they do not have to be signed or initialed on every page.
Doctrine of Integration; Amending Will
T MUST either create a new will entirely OR republish the will BY CODICIL
Codicil
Doc that amends a will
· Formally executed, it REEXECUTES OR REPUBLISHES a will AND is also considered PART OF THE WILL.
Referenced Writing; DOCTRINE OF INCORPORATION BY REFERENCE
Allows a will to incorporate another writing by mere reference.
· Language of the will MUST:
–> Express the T’s intent to incorporate the writing;
–> Describe the writing w/ REASONABLE CERTAINTY such that it is identifiable; AND
–> Refer to a writing that is ALREADY IN EXISTENCE at the TIME OF EXECUTION
UPC: List of Tangible Personal Property
ALLOWS a will to incorporate a list of TANGIBLE PERSONAL PROPERTY by reference.
· MUST BE SIGNED by the T; AND
· Describe the items AND beneficiaries w/ reasonable certainty.
–> DOES NOT have to be in existence at the time of execution.
Doctrine of Acts of Independent Significance
A will MAY dispose of property be ref to acts and events that have significance, whether they occur BEFORE OR AFTER the execution of the will or the T’s death.
Referenced Act or Event:
· MUST NOT be testamentary in nature; AND
· Occur for reasons UNRELATED to the T’s disposition of property in the will.
–> Useful when the T wishes to leave property to a category of beneficiaries OR to leave a category of property to a specific beneficiary.
Doctrine of Lapse
When a beneficiary fails to survive the T by 120 hrs., or 5 days, the gift lapses and fails, becoming part of the residuary estate.
Doctrine of Lapse: PREVENTION OF GIFT LAPSING
Two ways:
(1) The T MAY indicate his intent AGAINST laps in the will; OR
(2) An ANTI-LAPSE statute MAY apply.
Anti-Lapse
Prevents a testamentary gift from lapsing by presuming that the T intended for the beneficiary and HIS OR HER RELATIVES to enjoy the benefit of the gift.
Anti-Lapse: GENERAL
Must be a relative.
· Then a substitute beneficiate takes the gift
· Per capita at each generation
Anti-Lapse: ALTERNATIVE BENEFICIARY
An alternative beneficiary specified in the will MAY supersede ANY surviving descendant to take the gift IF ENTITLED TO DO SO.
Anti-Lapse: Primary and Alternate DECEASED
When both are deceased, the gift goes to the SURVIVING descendants of the PRIMARY beneficiary UNLESS:
· Alterative beneficiary is a DSCENDANT of the primary beneficiary
–> THEN the alternative beneficiary’s surviving descendants take.
Anti-Lapse: CLASS GIFT
Anti-Lapse MAY also apply to class gifts when a member of the class PREDECEASES the T.
· Passes per capita at each generation.
· HOWEVER an alternative class specified in the will MAY supersede any surviving descendants to take.
Class
A group of persons w/ common characteristics
· T’s children (for example)
