WTE Terms

Question 1

Most Important Factor determining the validity and enforceability of a Will

Answer 1

Testator’s Intent.

Question 2

Probate (Definition)

Answer 2

The official proving of a Will

Question 3

Cultural Capital

Answer 3

Refers to what one needs to know to function as a member of the various groups to which one belongs.

Question 4

Social Capital

Answer 4

Refers to the Value of whom you know

Question 5

Personal Representative (PR)

Answer 5

Usually the executor or executrix:

Is the Estates “Fiduciary”

Question 6

Heirs (What they are)

Answer 6

Intestate Successors

Question 7

Devisees

Answer 7

Those named in a will in which assets are devised

Question 8

Beneficiaries

Answer 8

Those who benefit from a will through devising.

Question 9

Probate Property

Answer 9

Property that passes under a decedent’s will or by intestacy

Question 10

Non-Probate Property

Answer 10

Property that passes by will substitute outside of probate

Question 11

First Step in Probate

Answer 11

The appointment of a personal representative to close affairs.

Question 12

Fiduciary

Answer 12

Person who collects and inventories the property of the decedent; manages and protects the property during the administration of the estate; processes the claims of creditors and files federal and state tax returns; and distributes the property to those entitled.

Question 13

How Does Property held in a testamentary trust created under the decedent’s will pass?

Answer 13

Through Probate

Question 14

Three Core Functions of Probate

Answer 14

1. Provides evidence of transfer of title to the new owners, (making property marketable and allowing owner to fend off rival claimants)(Clean Title)
2. Protects creditors by providing a procedure for payment for the decedent’s debts
3. It distributes the decedent’s property to those intended after the decedent’s creditors are paid.

Question 15

Formal Probate

Answer 15

One you file when there are contentions or issues with the probate

Question 16

Informal Probate

Answer 16

One you file in which you simply jump through hoops to get it done.

o Requires you have the original Will and Testament. Without the original Will, probate must be filed formally.

Question 17

Supervised Probate

Answer 17

Appear when someone of the estate ASKS for it to be supervised

Question 18

Opening Probate

Answer 18

Generally, the law of the state where decedent was domiciled at death governs the disposition of personal property,

and the law of the state where the decedent’s real property is located governs the disposition of real property.

Question 19

Ancillary Probate

Answer 19

Required If the real property is located in another jurisdiction.

Ancillary means it is additionally required to primary probate proceedings.

Question 20

Supervised Administration (UPC §3-501)

Answer 20

The personal representative is subject to the continuing authority of the probate court while administering the estate.

Question 21

Un-Supervised Administration (UPC § 3-715)

Answer 21

The personal representative administers the estate without going back into court;

The representative has broad powers of a trustee in dealing with the estate property and may collect:
assets,
clear titles,
sell property,
invest in other assets,
pay creditors,
continue any business of the decedent, and distribute the estate—all without court approval.

Question 22

Barring Creditors

Answer 22

Non-claim statutes come in two basic forms:

1. They bar claims not filed within a relatively short period after notice of probate proceedings have commenced, (2-6 months); or
2. They bar claims not filed within a longer period after the decedent’s death, generally one to five years.

Question 23

Informal/Unsupervised Probate Steps

Answer 23

• Petition Filed
• Court Approves and Appoints PR
• Notice to Heirs and Devisees
• Notice to Creditors
• Inventory Estate
• Wait, Rejecting or Paying Claims
• Distribute
• Closing:
o File Accounting (Wait 6 months from the file of accounting date)
o File Statement ( I did all the things I was supposed to)
o Wait One Year (If you aren’t sued, your fiduciary duties are over and you’re clear).

Question 24

Shortcuts out of Probate

Answer 24

1. Surviving Spouse
   i. Anything not community property is separate unless it’s devised or in a will
   ii. Surviving Spouse Probates are those which allow the surviving spouse to recover assets that may be separate property.
2. Small Estate
   i. $100,000 is the value. If decedent dies with less than $100,000 in assets, you can file a small estate affidavit (If you don’t have real property) and get the stuff from the Court.

Question 25

Attorney’s Standard of Care for Drafting a Will:

Answer 25

An attorney who drafts a testator’s will owes a duty of reasonable care to intended beneficiaries.

The principal task of the probate court is to determine the testator’s intent.

Question 26

Primary Objective of Intestacy Statute

Answer 26

Carry out the probable intent of the typical intestate decedent and provide majoritarian rules for property succession at death.

Question 27

Heirs Apparent

Answer 27

Those who would inherit through intestacy if the Decedent passes intestate

Question 28

In Most States, intestacy favors only:

Answer 28

spouses and blood relatives, with the blood relations encompassing adopted persons and persons born through assisted Reproductive technology.

Question 29

English Per Stirpes

Answer 29

A system of representation which treats each line of descent equally. The property is divided into as many shares as there are living children of the designated person and deceased children who have descendants living. (1/3 of States follow)

Question 30

Modern Per Stirpes

Answer 30

One looks first to see whether any children survived the decedent. If so, the distribution is identical to English per Stirpes… If not, the estate is divided equally (per capita) at the first generation in which there are living takers, which is usually the generation of the decedent’s grandchildren.

Question 31

Per Capita at Each Generation (1990 UPC)

Answer 31

A decedent’s intestate estate or part thereof passes “by representation” to the decedent’s descendants, the estate or part thereof is divided into as many equal shares as there are (i) surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants and (ii) deceased descendants in the same generation who left surviving descendants, if any

Question 32

Per Capita at Each Generation (How it Works)

Answer 32

Each surviving descendant in the generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had pre-deceased the decedent.

Question 33

Parentelic System

Answer 33

The intestate estate passes to grandparents and their descendants, and if none to great-grandparents and their descendants, and so on down each line descended from an ancestor until an heir is found.

Question 34

Negative Wills UPC § 2-101(b)

Answer 34

authorizes a negative will by way of an express disinheritance provision. The barred heir is treated as if he disclaimed his share, which means he is treated as having predeceased the decedent.

Works by devising to all other members everything except for the one being disinherited.

Question 35

UPC § 2-503

Answer 35

Harmless Error Rule.

Although not in formal compliance subject to 2-502, the document or writing will be as if it had been executed in compliance if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute:

(1) the Decedent’s will
(2) a partial or complete revocation of the will;
(3) an addition to or an alteration of the will, or
(4) a partial or complete revival of his/her formerly revoked will or formerly revoked portion of the will.

Question 36

UPC § 2-502

Answer 36

Presence of the Will signing is no longer required.

Question 37

Substantial Compliance Doctrine

Answer 37

The key question under the doctrine is whether the manner in which an instrument was executed satisfied the purposes of the Wills Act formalities. If so, the instrument should be deemed in substantial compliance with the Wills Act and admitted to probate.

Question 38

The meaning of “Presence”

Answer 38

Line of Sight – Could actually see the signing if looking in the general direction.

Conscious Presence – Comprehends that witness is in the act of signing

UPC – Presence not required! 2-502

McGurrin: Must be near enough to sense each others’ presence.

Question 39

The main function of the Wills Act formalities

Answer 39

to enable a court to decide, without the benefit of live testimony from the testator, whether a purported will is authentic

Question 40

Formalities serve 3 secondary functions:

Answer 40

1. They standardize the form of wills;
2. They impress upon the testator the significant of making a will;
3. They protect the testator from manipulative imposition.

Question 41

This main function and three secondary functions are known as

Answer 41

evidentiary, channeling, cautionary or ritual, and protective functions.

Question 42

Evidentiary Function

Answer 42

Virtually all formalities serve as “probative safeguards.”

• Writing requirement assures “evidence of testamentary intent [will] be cast in reliable and permanent form.”
• Attestation requirement is the distinguishing feature of the formal will and assures that the actual signing is witnessed and sworn to by disinterested bystanders.

Question 43

Channeling Function

Answer 43

Has both social and individual aspects . . . which results in considerable uniformity in the organization, language, and content of most wills. This ensures the intent of the will.

• Standardization of testation achieved under the Wills Act no longer requires the testator to devise for himself a mode of communicating his testamentary wishes to the court.
• Holographic wills also serve the channeling function because the requirement for formalities are less likely to resolve whether the document was meant as a will.

Question 44

Cautionary Function

Answer 44

Wills are revocable and ambulatory, meaning it only becomes operative on death.
The requirements of writing and signature have major evidentiary significance and are the primary cautionary formalities.
The signature tends to show that the instrument was finally adopted by the testator as his final will and was intended to be the final draft.
It also shows that the statements of the testator were deliberately intended to effectuate a transfer.

Question 45

Protective Function

Answer 45

Courts have traditionally attributed to the Wills Act the object of “protecting the testator against imposition at the time of execution.”
The requirement that attestation be made in the presence of the testator is meant to “prevent the substitution of surreptitious will.
Another common protective requirement is the rule that witnesses should be disinterested, hence not motivated to coerce or deceive the testator.

Question 46

UPC § 2-505(b)

Answer 46

Does not require any witnesses to be disinterested; an interested witness is not purged of his devise. Irrespective, use of an interested witness may invite litigation and is not, to put it mildly, a sound practice.

Question 47

UPC § 2-506

Answer 47

recognizes as valid a will executed with the formalities of the Wills Act, by the state where the will was executed or by the state where the testator was domiciled when the will was executed.

Question 48

UPC § 3-406

Answer 48

Provides that, if a will is self-proved, questions of due execution may not be contested “unless there is evidence of fraud or forgery affecting the acknowledgement or affidavit.” Id. does not limit contests on other grounds, such as undue influence or lack of capacity.

Question 49

UPC 2-502(b) - Holographic Wills

Answer 49

Holographic wills are those written in a testator’s hand and is signed by the testator, with or without witnesses if the substance content and the signature are in the Testator’s handwriting.