Decedents' Estates

Question 1

What are the two ways to divide property among a decedent’s children?

Answer 1

1. Per capita at each generation: Where all cousins will be treated alike
2. Per capita with representation: Where a child will simply take his parent’s share (modern per stirpes)

Question 2

How do you determine share distribution under “per capita at each generation”?

Answer 2

1. Find the first generation where there are issue living
2. Give one share for each such living issue and one share for each person in that generation who predeceased the decedent but left issue surviving
3. Combine the shares belonging to the deceased persons and distribute them equally at the next generational level (cousins are treated alike)

Look at graph in textbook

Question 3

How do you determine share distribution under per capita with representation?

Answer 3

Look at chart in textbook

Question 4

A decedent has no spouse or children. How do you determine heirship?

Answer 4

• *Consanguinity Method (civil law)**: Heirship is determined by degree of relationship: all persons of the same degree of relationship to the decedent take equal shares
• e.g., an uncle and a niece are in the third degree of consanguinity and would be heirs entitled to equal shares*
• *Parentelic Method (UPC)**: Descendants of the decedent’s parents take to the exclusion of descendants of the decedent’s grandparents
• e.g.,* a niece would be an heir but an uncle would not

Question 5

True or False: Stepchildren are not considered true children for purposes of intestate succession

Answer 5

True.

A child includes adopted children, children born out of wedlock, and half-bloods.

Question 6

What is an advancement?

Answer 6

This is an issue when the decedent dies without a will but gave a child a gift during her lifetime. The question is: Should the gift be deducted from what the child would inherit under the laws of intestate succession?

Question 7

Should a gift to a child be deducted from what the child would inherit under the laws of intestate succession?

Answer 7

Common law: A lifetime transfer to an heir was presumptively treated as a down payment on the heir’s intestate share and thus is taken into account when computing the heir’s intestate share. At common law, this only applied to a gift to a child (e.g., not a sibling), but most states have broadened it to include any heir.

Majority law: A lifetime transfer is presumed to be a gift and is ignored in computing the heir’s intestate share unless there is evidence to show that the decedent intended to gift to be an advancement.

Question 8

Ademption by Satisfaction Doctrine

Answer 8

Applies when there is a will.

Under UPC, a lifetime gift is not a 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 9

Components of a Valid Will

Answer 9

1. In writing;
2. Signed by the testator; AND
3. Witnessed by two witnesses

(majority rule)

Question 10

What is the general rule for who is a valid testator?

Answer 10

1. 18 or older; AND
2. Intends that the document is his will

(majority rule)

Question 11

Define: Holographic Will

Answer 11

A holographic will is an unwitnessed will.

Valid if:

1. Signed; AND
2. The material portions are in the testator’s handwriting

Recognized by about half the states

***Mention this doctrine if you see an unwitnessed will on the MEE

Question 12

Define: Dispensing Power

Answer 12

The UPC adopts the dispensing power under which a court can validate a will so long as there is clear and convincing evidence that the decedent intended the document to be her will.

Question 13

Define: Incorporation by Reference

Answer 13

A writing that is not valid as a will may be incorporated by reference into a will if the will manifests an intent to incorporate the writing and the writing is identified with reasonable certainty. The writing must exist at the time the will is executed.

Question 14

What are three ways to revoke a will?

Answer 14

1. Revocation by physical act
2. Dependent relative revocation
3. Divorce

Question 15

Revocation by Physical Act

Answer 15

E.g., by execution of a new will, cancellation, other writings on the will, etc.

This must be done with the intent to revoke the will. The testator or someone acting at the testator’s direction and in his “conscious presence” may revoke the will.

Question 16

Dependent Relative Revocation

Answer 16

Under this doctrine, a first will isn’t 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.

Question 17

Revocation by Divorce

Answer 17

Divorce revokes gifts in favor of a spouse.

Note: there actually needs to be a divorce (or annulment)–not just a filing of divorce.

Question 18

What happens when a gift fails because the beneficiary is not alive?

Answer 18

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

However, all states have antilapse statutes (which keep gifts in the family). Under a typical antilapse 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 19

Define: Slayer Statute

Answer 19

An individual who feloniously and intentionally kills the decedent, or who is convicted of committing abuse, neglect, or exploitation with respect to the decedent, forfeits all benefits with respect to the decedent’s estate (including an intestate share, an elective share, an omitted spouse’s or child’s share, etc.).

Voluntary manslaughter is a form of felonious and intentional killing.

Note that if a beneficiary accidentally kills the decedent (even if it rises to involuntary manslaughter), the slayer rule does not bar a gift. Nor does it apply if the slayer murdered someone other than the decedent. ***

Question 20

What happens when a gift fails because the property no longer exists?

Answer 20

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 adeems–i.e., the gift fails.

Under many statutes, if the testator replaced the property, or if there were insurance proceeds unpaid at death, then the beneficiary would receive that in place of the property.

Question 21

Define: Disclaimers

Answer 21

Disclaimed property (property that a beneficiary does not want) will pass as if the person disclaiming had failed to survive the testator. An antilapse statute may apply; otherwise, the gift will fail into the residuary.

Question 22

Define: Abatement

Answer 22

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:

1. Intestate property
2. Residuary gifts
3. General gifts
4. Specific acts

Question 23

What is the relevance of a decedent’s mental capacity to their estate?

Answer 23

A testator must have the capacity to execute a will. The burden of proving that the testator lacks mental capacity rests on the contestant.

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 (i.e. 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 24

Define: Undue Influence

Answer 24

This is present when the wrongdoer exerts such influence over the testator that it overcomes the testator’s free will and causes the testator to make a gift he would otherwise not have made.

Question 25

On whom does the burden of demonstrating undue influence fall, and what must they show?

Answer 25

The burden of establishing undue influence generally is on the will contestant who must show the following:

1. Susceptible: The testator was susceptible to undue influence,
2. Opportunity: The alleged influencer had the opportunity to exert undue influence
3. Disposition: The alleged influenced had a disposition to exert undue influence, AND
4. Appears: The will appears to be a product of undue influence.

(Mnemonic: SODA)

Note: Most courts only invalidate portions that are infected by undue influence.