Wills

Question 1

Holographic will

Answer 1

A holographic will is in a testator’s handwriting, signed by the testator, and need not be witnessed.

Question 2

Beneficiary of life insurance contract

Answer 2

A beneficiary of a life insurance contract takes by virtue of the insurance contract. The proceeds are not part of the decedent’s estate, unles they are payable to the estate as beneficiary.

Question 3

Who gets proceeds of life insurance policy

Answer 3

Life insurance policies typically provide that proceeds will only be payable to the etsate as a beneficiary named on an appropriate form filed with the insurance company. Other possible methods of changing a beneficiary are thus viewed as being excluded by the insurance contract.

Question 4

Beneficiary change outside of filing the appropriate form

Answer 4

Some courts have upheld a beneficiary change by will if the insurance company does not object.

Question 5

Incorporation by reference

Answer 5

A will may incorporate by reference another writing not executed with testamentary formalities, provided the other writing meets three requirements: (i) it existed at the time the will was executed; (ii) the testator intended the writing to be incorporated; and (iii) the writing is described in the will with sufficient certainty so as to permit its identification.

Question 6

What if a beneficiary dies before the testator at CL

Answer 6

Under common law, if a beneficiary died before the testator or before a point in time by which he was required to survive under the will, the gift failed and went to the residue unless the will provided for an alternate disposition.

Question 7

Anti-lapse statutes

Answer 7

Today, amost all states have anti-lapse statutes that provide for the alternate disposition of lapsed gifts. Under the majority of statutes, if the gift was made to a relation of the testator within a specific degree, and the relation predeceased the testator but left issue, then the issue succeeds to the gift, unless the will expressly states otherwise

Question 8

Abating gifts

Answer 8

Gifts by will are abated, i.e., reduced, when the assets of the estate are insufficient to pay all debts and legacies.

Question 9

Order of abatement

Answer 9

If not otherwise specified in the will, gifts are abated in the following order: (i) intestate property, (ii) residuary bequests, (iii) general bequests, and (iv) specific bequests. Abatement within each category is pro rata.

Question 10

What if a JDX doesn’t allow for holographic wills but the facts say the T handwrote their will and then had people sign it

[not a rule statement, but an essay note]

Answer 10

Don’t get tricked by this – a holographic will is both handwritten AND unwitnessed. So a handwritten will that is witnessed is a valid normal will, even though the jurisdiction says no holographic wills. What that kind of statute means is no TRUE holographic wills. So if the T had a handwritten will + no witnesses, it would be invalid, as opposed to handwritten will + witenesses, which woudl be valid.

Question 11

Revocation methods

Answer 11

A will may be revoked wholly or partially in three ways: subsequent writings, physical destruction, or operation of law

Question 12

Physical destruction of the will

Answer 12

Physical destruction may take the form of burning any portion of the will or canceling, tearing, obliterating, or destroying a material portion of the will with the intent to revoke it.

Question 13

intent requirement for revocation by physical act

Answer 13

Both the act and a simultaneous intent to revoke must be proven to yield a valid revocation

Question 14

Pretermitted heir statutes

Answer 14

Pretermitted heir statutes permit children of a T, under certain circumstances, to claim a share of the estate even though they were omitted from the T’s will

Question 15

When are children pretermitted

Answer 15

While the birth or adoption of a child after the execution of a will does not invalidate the will, such children are omitted from the will.

Question 16

What if T dies before including children born/adopted after will is executed

Answer 16

If the testator then dies without revising the will, a presumption is created that the omission of the child was accidental

Question 17

When does an omitted child statute NOT apply

Answer 17

An omitted child statute does not apply if (i) it appears that the omission of the child was intentional; (ii) the testator had other children at the time the will was executed and left substantially all of his estate to the other parent of the pretermitted child; or (iii) the testator provided for the child outside of the will and intended this to be in lieu of a provision in the will

Question 18

What happens when a trust fails

Answer 18

When a trust fails, a court may create a resulting trust requiring the holder of the property to return it to the settlor’s estate

Question 19

CL approach to bequests of stock (when T gets more stock)

Answer 19

Under common law, a bequest of stock owned by a T when the T’s will was signed excluded subsequently acquired shares of the same stock. This is because many states held that a stock dividend is a property interest distinct from stock given by the specific bequest

Question 20

UPC approach to stock dividends

Answer 20

Under the modern UPC approach, a stock dividend is treated like a stock split instead of a cash dividend.

Question 21

CL approach to ademption

Answer 21

Under the common law, if the subject matter of a specific bequest is missing or destroyed, the beneficiary takes nothing, not even the equivalent in cash

Question 22

Ademption

Answer 22

If specifically bequeathed items are not part of the estate at the testator’s death, it is adeemed

Question 23

UPC presumption against ademption

Answer 23

The UPC creates a mild presumption against ademption. The UPC allows a beneficiary of a specific extinct gift to inherit the property acquired by the testator as replacement property, or, if they owed money related to the extinction, the outstanding balance

Question 24

When does a will speak

Answer 24

A will speaks at the time of the testator’s death, meaning a bequest of generically described property applies to property that meets the generic description at the testator’s death

Question 25

Effect of a disclaimer statute

Answer 25

Under disclaimer statutes, a disclaiming party is treated as if she had predeceased the decedent. When they are deemed to have predeceased the testator, the bequest passes to the next eligible taker

Question 26

Typical anti lapse statute

Answer 26

The typical anti lapse statute provides for alternate dispositions of lapsed bequests. Under the majority of these statutes, if the gift was made to a relation of the testator within a specific statutory degree, and the relation predeceased T but left issue, the issue succeeds to the gift unless the will says otherwise

Question 27

Residual legacy

Answer 27

A residual legacy is a legacy of the estate remaining when all claims against the estate and all specific, general, and demonstrative legacies have been satisfied

Question 28

Power of attorney

Answer 28

A power of attorney is an authorization to act on someone else’s behalf in a legal or business matter.

Question 29

P/A aspect of POAs

Answer 29

The person authorizing the other to act is the principal, and the one authorized to act is the agent

Question 30

Healthcare POA

Answer 30

A healthcare POA appoints an agent to make healthcare decisions on behalf of the principal if they become unconscious, incompetent, or otherwise unable to make decisions

Question 31

When does a healthcare POA become effective

Answer 31

Unlike other powers of attorney, a healthcare power of attorney becomes effective upon incapacitation of the principal

Question 32

Making decisions under a healthcare POA

Answer 32

An agent must make healthcare decisions in accord with the principal’s instructions or other known wishes. If such instructions don’t exist, they must make decisions in accordance with the agent’s determination of the principal’s best interests

Question 33

Liability shield for POA agent

Answer 33

A typical durable healthcare POA statute shields the agent from civil liability for healthcare decisions that are made in good faith. Generally, an agent is held responsible only for intentional misconduct, not for unknowingly doing something wrong.

Question 34

Acting within the scope of a POA statute

Answer 34

An agent acts within the scope of the statute when they act pursuant to a properly executed durable healthcare POA.

Question 35

Can a person take property if they killed the decedent

Answer 35

In general, a party cannot take property from a decedent when the party was responsible for the decedent’s death. The killing must be intentional and felonious to bar the killer from taking.