Wills

Question 1

When is something passed intestate?

Answer 1

when there is no will, the will fails, the will doesn’t dispose of property, or the will specifies intestate distribution

Question 2

Surviving Spouse Share

Answer 2

Surviving spouse takes the entire estate if no descendants or if the surviving descendants are surviving spouses’ descendants. If there are descendant either 1/2 or 1/3, or a dollar amount +1/2 or 1/3, dependent on the state.

Question 3

English Per Stirpes

Answer 3

start at first-generation

Question 4

Modern Per Stirpes

Answer 4

starts at the first living generation

Question 5

Per Capita at Each Generation

Answer 5

start at the first living generation, then everything goes into the hotchpot and gets divided equally at each generation

Question 6

Where do things go if no spouse or children?

Answer 6

Parents, Brothers, Sisters, grandparents, aunts, uncles, then nearest kin (laughing heirs). If no family, it escheats the state. Brothers, Sisters, Aunts, and Uncles don’t inherit if closer relatives like children survive the testator.

Question 7

How do adopted children inherit?

Answer 7

they are treated the same as a natural child, they can’t inherit from bio family unless adopted as a stepchild.

Question 8

How do step children and foster children inherit?

Answer 8

there are no inheritance rights unless adopted but there may be an adoption by estoppel option

Question 9

Adoption by estoppel

Answer 9

Allows a child to inherit from a step-parent or foster parent when legal custody is gained through an unfulfilled agreement to adopt. However, step-parents can’t inherit from their stepchildren.

Question 10

Posthumous Children

Answer 10

Child in gestation at or after decent death inherits if born in decedent lifetime

Question 11

When can a nonmarital child inherit from the father?

Answer 11

If the parents marry after birth, the man is determined to be a father in a paternity suit, or if the man is proven to be a father after death. Half children will inherit equally with full-blood siblings. However, some states only let them inherit half or none.

Question 12

Disinheritance Clause

Answer 12

In a majority of states, they are ineffective when it leads to the will being partially intestate, under a minor and UPC they are given full effect, and the heir is treated if they disclaimed.

Question 13

Simultaneous Death

Answer 13

Applies to probate and non-probate transfers. Under UPC, Half the states implement 120 hours, and the other spouse must live 120 hours after the other to take as a beneficiary. Under this, each spouse takes as if the other predeceased.

Under the USDA, there is no 120-hour rule, if there is any evidence that one person outlived the other they are treated as living at the time of the other’s death.

Question 14

Disclaimers

Answer 14

Treat claimant as deceased, must describe the property in writing, sign it, and file within 9 months (or 9 months after you turn 21), to properly disclaim. There is an estoppel of the disclaimer if any benefits are accepted. Can’t disclaim to avoid federal tax.

Question 15

Slayer Rule

Answer 15

Applies to probate and non-probate transfers. If one feloniously and intentionally causes the death of a decedent, the property passes as though the killer predeceased the decedent. Also, it will sever the joint tenancy.

Question 16

Advancement

Answer 16

For intestacy, a lifetime gift is treated as part of the heirs share of the estate when intent is shown by a contemporaneous writing by donor and there is a written acknowledgement by the donee

Question 17

Satisfaction

Answer 17

For Wills, a lifetime gift is treated as part of the heirs’ share of the estate when the intent is shown by contemporaneous writing by the donor and there is a written acknowledgment by the donee

Question 18

Will formalities

Answer 18

Testator has the capacity (age and sound mind), there is intent to make a will, there is a writing, and signature by the testator, two attesting witnesses who saw the witness’s presence, and the witness signed in the testator’s presence.

Being on the phone does not = presence.

Heirs only have an expectancy to inherit, not a property interest until the testator dies.

Question 19

Purging Shares

Answer 19

When a witness is also a beneficiary unless the witness is supernumerary, the witness would still take without the will, and under the minority view it just isn’t purged.

Question 20

Will Harmless Error Rule

Answer 20

Under the UPC, a defectively executed will be given effect if clear and convincing evidence that the testator intended for this to be his will. Also applies to defective revocations.

Question 21

Holographic WIll

Answer 21

Testator must of be a sound mind a capacity, writing must be in handwriting, and the testator must sign. Some jurisdictions require entire things in handwriting, some only require material portions.

Question 22

Integration of a Will

Answer 22

All pages present at execution are part of the will

Question 23

Codicil

Answer 23

an amendment to a will must be executed with all the will formalities, it can republish a will, and a revocation of a will revokes all the codicils. A properly executed codicil can validate a defectively executed will. This happened if there was an intent for the original document to be a will.

If a will is republished by codicil, it can result in a change in the child’s status, if the child is born before the republication is not considered pretermitted and can’t be protected under the permitted state.

Question 24

Incorporation by Reference

Answer 24

If incorporating a document it must be in existence at the time the will was executed, sufficiently described, and the will must show intent to incorporate. A signed list of tangible personal property is valid even if made or altered after the will’s signed execution.

Under the UPC, for the disposition of personal items, the document must be signed and dated by the testator and the items are described within reasonable certainty.

Question 25

Acts of Independent Significance

Answer 25

Can identify beneficiaries or property by reference to acts or events that have significance apart from the will. Joey leaves the contents of his bank account “to my employees.” If Joey then fires some of the old employees and hires new ones, the new employees will inherit the contents of the bank account under this provision

Question 26

Pour Over Will

Answer 26

All assets pour into a trust upon the testator’s death. It is valid even if trust is amended after the will execution. The trust does not need to be in existence at the will execution.

Question 27

General Power of Appointment

Answer 27

can be exercised in favor of donee, appointed property not subject to an elective share or creditors

Question 28

Special Power of Appointment

Answer 28

Can’t be exercised in favor of donee, appointive property not subject to an elective share or creditors

Question 29

How to exercise appointment powers

Answer 29

A residuary clause doesn’t give a power of appointment unless in a minority jurisdiction. Blanket powers of appointments are allowed

Question 30

Nonprobate Assets

Answer 30

Can’t be disposed of by will, this is life insurance, property passing by right of survivorship, property in a trust.

Insurance is considered a contract and the beneficiary is who is named not who is named in the will. Disposition is governed by the policy of the contract.

Question 31

How to revoke a will?

Answer 31

By operation of law, written instrument, Revocation by implication (written), or physical act

Question 32

Revocation by Operation of Law

Answer 32

Usually doesn’t affect, unless omitted spouse statute. Divorce or annulment revokes all provisions in favor of the former spouse. Can add in omitted children when there is an omitted child statute and the child was born after the execution of the will.

Question 33

Revocation by Written Instrument

Answer 33

Must be executed with the same formalities as a will, inconsistent provisions in later instruments revoke prior ones by implication

Question 34

Revocation by Physical Act

Answer 34

Burning, tearing, obliterating, or canceling with intent to revoke. Can’t partially revoke by physical act, and a will not found at testator death is considered revoked. Must be done in the person’s presence.

Question 35

Revival of a Revoke Will

Answer 35

A will is revived when it is executed with formalities, republished by codicil, or the Destruction of a revoking instrument revoked the will unless the testator did no so intend.

Question 36

Dependent Relative Revocation

Answer 36

Revocation is disregarded when a will was revoked on a mistake of law or fact and would not have occurred but for the mistaken belief and the results from disregarding the revocation come closer to the testator’s intent

Question 37

Contract to make a gift by will

Answer 37

This is established when the provision in the will states the terms of the contract, there is express reference to the contract and the writing is signed by the decedent as evidence of the contract. If there is a breach, damages are awarded or a constructive trust.

Question 38

Joint (single will for two people) and Mutual (2 wills that contain the same provisions) Wills

Answer 38

Mutual wills are not presumed contractual and joint wills are not presumed contractual but courts treat them as contractual. If there is a contract not to revoke wills, one cannot revoke their will once one party dies in compliance. If revoked a constructive trust will be put into place for the beneficiaries of the will.

Question 39

Anti Lapse Statute

Answer 39

Usually only applies to wills and UPC Applies to trusts and life insurance. Words of survivorship can negate anti-lapse but not under the UPC.

Usually, if a beneficiary dies before the testator, the gift lapses and goes to the residual of the will. However, if there is an antilapse statute, A gift that should lapse is saved by statute if the predeceasing beneficiary is within the specified relationship to the testator and leaves surviving descendant.

UPC saves gifts for stepchildren, grandparents, or descendants of grandparents.

Most states don’t save a lapsed statute to a predeceasing spouse.

Remember to look at the degree of relationship between the beneficiary to the testator, gifts for friends won’t lapse but for children, they will. Also, look if there are any descendants, the beneficiary had no children it won’t be saved.

Question 40

Adepmtion

Answer 40

When a specific devise or bequest fails, the gift fails and the testator gets nothing. There can be partial ademption. Bequests of securities are seen as general unless my is used.

When there is not enough money in the estate the gifts abate. Abatement reduces the amount of the gift the beneficiary takes.

Unless something is noted by the testator gifts abate in this order: intestate property, residual, general legacies (gift of money or personal property), then specific devises and bequests.

Question 41

Exceptions to Ademption

Answer 41

a. Insurance proceeds and condemnation awards paid after death
b. Property subject to the executory contract (testator’s rights pass)
c. Securities owned as a result of merger, consolidation, etc.
d. Property sold by a guardian

Question 42

Elective Share Statute

Answer 42

A spouse may take a statutory share instead of a share in a will. In most states its 1/3 with kids or 1/2 with none.

Question 43

Pretermitted Child Statutes

Answer 43

Afterborn or after-adopted children take an intestate share unless the omission appears as intentional, the testator had other children after execution and left all of his estates to the other parent of the omitted child, or the testator provided for the omitted child outside of the will. Limited to the same bequest as to other children under UPC.

Question 44

Homestead

Answer 44

Protects the family homestead or farm from creditors

Question 45

Family Allowance

Answer 45

Provide support to the family during probate

Question 46

Exempt Personal Property

Answer 46

A surviving spouse is entitled to petition over certain items

Question 47

Standing to Contest a Will

Answer 47

any person whose interest would be directly affected by the will’s admission to probate

Question 48

Grounds to contest a will

Answer 48

a. Defective execution
b. Will offered has been revoked
c. Testator lacked testamentary intent or capacity
d. The will or gift is a product of undue influence
e. The will or gift was procured by fraud
f. The document was executed or a gift made because of a mistake

Question 49

Testatroy Capacity to make a will

Answer 49

18 years old+ at the date of execution and the testator understood the nature of the act, the nature and extent of her property, people who are natural objects of testator bounty, and the nature of disposition. Insurance delusions can only be invalided to the extent of the delusion-caused disposition.

Question 50

Undue Influence

Answer 50

When a will is executed in undue influence the whole will be invalidated if it affects the entire will. If the undue influence only affects part of the will, such as giving shares to the undue influencer, only that part of the will be invalidated.

Undue influence is presumed when there is a confidential relationship, they participated in drafting the will, and the provision of the will are unnatural like in devising to people outside the family.

When elements of presumption are shown, the burden shifts to the proponent of the will to prove it was not induced by undue influence.

To show undue influence there must have been influence, the influence exerted was to overpower the mind and free will of the tester, and the product of the influence was that a will was executed that would not have been but for the influence.

Free will of the testator must be destroyed.

Question 51

Fraud

Answer 51

Willful deceit as to character or content of a will as to a material fact. Will or gift as a result of fraud is invalid.

Question 52

Fraud in the execution

Answer 52

There is a misrepresentation as to the identity of the contracts of the instrument. The testator didn’t know they were signing a will or what it contained. If there is fraudulent prevention of execution there is a possible constructive trust remedy.

Question 53

Fraud in the Inducement

Answer 53

Testator knows they are singing a will and what it contains but is deceived about a fact and makes the will based on that fact.

Question 54

Mistake as to Instrument

Answer 54

If the person was to mistaken that the the document they signed was a will, extrinsic evidence can be admitted to show it was a mistake

Question 55

Mistake in Inducement

Answer 55

The testator is mistaken as to some fact and makes a will based on that mistake. There is no relief unless a mistake appears on the face of the will

Question 56

Mistake in contents

Answer 56

a. No relief for mistaken omission
b. Evidence not admitted to contradict plain meaning
c. Latent ambiguity (ambiguous as applied)—evidence admissible
d. Patent ambiguity (on the face of will)—gift fails under traditional view, but modern
view allows evidence of intent

Question 57

Reformation of Will

Answer 57

The UPC permits the court to reform will terms to conform to testator intent if clean and convincing evidence of fraud or mistake

Question 58

No contest clause

Answer 58

A will is enforce unless contestant had probable cause to challenge the will

Question 59

Personal Representative

Answer 59

In order: the person named, the spouse named as a beneficiary, a beneficiary, the spouse if not named, any other heir, or a creditor

Question 60

Duties of a Personal Representative

Answer 60

GIve notice, collect assets, manage assets, pay expenses and distribute the property

Question 61

Creditors Claims

Answer 61

Must be filed within the time specified statute or are barred. In order for debts to be paid: admin expenses, funeral, and last illness expenses, family allowance, tax claims, secured claims, judgment, and everything else

Question 62

Abatement

Answer 62

When assets are insufficient, gifts are reduced in the order of: property passing through intestacy, residue, general legacies, and specific devices and bequests

Question 63

Ambiguous Terms in A Will

Answer 63

look at extrinsic evidence, Favor intestate heirs, Favor construction avoiding intestacy, Favor construction consistent with the perceived plan, Every portion of will give effect if possible, Between completely inconsistent provisions, one most recently added is favored

Question 64

Savings Statute

Answer 64

Will is admissible in another jurisdiction if it was executed within the law of the jurisdiction, the state where the will was executed, the testator’s domicile at the time of the will’s execution to the testator’s death.