WILLS

Question 1

What is intestate succession?

Answer 1

Intestate succession explains how property is divided if a person dies without a will (or if the will is invalidated in part or in whole or does not make a total disposition).

Question 2

What happens If the decedent’s spouse and parents do not survive the testator?

Answer 2

If the decedent’s spouse and parents do not survive the testator, there are two available schemes to divide property among the decedent’s children: per capita at each generation (where all cousins will be treated alike) or per capita with representation (modern per stirpes) (where a child will simply take his parent’s share).

Question 3

In intestacy, what is the spouse share if the decedent is survived by: Just spouse

Answer 3

The spouse takes everything.

Question 4

Per Stirpes is when

Answer 4

Surviving child stands in place of deceased parent

Question 5

Per capita with representation is when?

Answer 5

In most states, the intestate property is distributed per capita with representation, meaning the property is divided at the first generational level at which there are living takers, with the share of each deceased person at the level passing to his issue by representation.

Question 6

Per capita at each generation is?

Answer 6

Some states follow a per capita at each generation level type of distribution. Estate divided at first level with a surviving member then remaining is pooled and redivided to issue at next level.

Question 7

If there is no spouse and no children, there are two methods of determining heirship

Answer 7

he civil law consanguinity method and the parentelic method adopted by the UPC. Under the consanguinity method, heirship is determined by degree of relationship: all persons of the same degree of relationship to the decedent take equal shares (so an uncle and a niece are in the third degree of consanguinity and would-be heirs entitled to equal shares). Under the parentelic method, descendants of the decedent’s parents take to the exclusion of descendants of the decedent’s grandparents (so a niece would be an heir but an uncle would not).

Question 8

Who is a Child for purpose of intestate succesion?

Answer 8

A child for purposes of intestate succession includes adopted children, children born out of wedlock, and half-bloods (but not stepchildren!). (

Question 9

Can you disinherit a child?

Answer 9

Yes in a properly executed will.

Question 10

In intestacy, what is the spouses share if the decedent is survived by: Just spouse

Answer 10

The spouse takes everything.

Question 11

What is required to execute a will?

Answer 11

Capacity (over 18), signed writing, witnesses, and testamentary intent.

Question 12

What types of presence is acceptable for witnesses?

Answer 12

Most require line of sight presence, others allow conscious presence.

Question 13

Interested Witnesses

Answer 13

Under the common law, the signing of the will must be witnessed by two disinterested witnesses (individuals who are not receiving a benefit under the will).

Question 14

Advancements

Answer 14

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 15

Ademption-Common law:

Answer 15

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 (not, say, a gift to a sibling), but most states have broadened it to include any heir.

Question 16

Ademption- Majority law:

Answer 16

Majority law: most states today say that 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 the gift to be an advancement.

Question 17

Ademption by satisfaction:

Answer 17

Ademption by satisfaction: This doctrine applies when there is a will (unlike the advancements doctrine). The Uniform Probate Code (UPC) states that a lifetime gift is not a prepayment unless: (1) the will says so, (2) the testator declares in 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 18

What is required to execute a will?

Answer 18

Capacity (over 18), signed writing, witnesses, and testamentary intent.

Question 19

What types of presence is acceptable for witnesses?

Answer 19

Most require line of sight presence, others allow conscious presence.

Question 20

What happens if there is a failure to satisfy formalities of will execution?

Answer 20

At common law the will is invalid, the modern view allows substantial compliance, i.e. if there is clear and convincing evidence that the document was intended to be a will it will be admitted to probate.

Question 21

What is a holographic will?

Answer 21

An informal, unwitnessed will. Must be signed to be valid. At common law, any non-testator marking invalidates, at UPC the material provisions must be written by the testator. There must be intent!

Question 22

Dispensing Power

Answer 22

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 23

Incorporation by reference

Answer 23

A writing that is not valid as a will may be incorporated by reference into a will manifests an intent to incorporate the writing and the writing is identified with reasonable certainty. This writing must exist at the time the will is executed. (The UPC and some states recognize the right of a testator to dispose of tangible personal property by a signed memorandum, whether it is prepared before or after the execution of the will, even if it does not comply with the formalities of a will.)

Question 24

How can a will be revoked?

Answer 24

Any time until death by subsequent instruments that are inconsistent or expressly revoke the prior will, physical acts with intent to revoke, or operation of law (divorce revokes provisions in favor of former spouse).

Question 25

Revocation by physical act

Answer 25

(e.g., by execution of a new will or by some other physical act, such as cancellation or other writings on the will): 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 26

Dependent relative revocation

Answer 26

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 27

Divorce

Answer 27

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 28

When a gift fails because the beneficiary is not alive:

Answer 28

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 29

Slayer statute

Answer 29

Slayer statute: 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. Note: when this is tested on the MEE, generally this doctrine does not bar a gift to the slayer (usually because the killing is not felonious and intentional!).

Question 30

When a gift fails because the property no longer exists—ademption

Answer 30

ademption: 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 31

Disclaimers

Answer 31

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 fall into the residuary.

Question 32

Abatement

Answer 32

Abatement: 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: intestate property, residuary gifts, general gifts, and specific gifts.

Question 33

Mental Capacity

Answer 33

A testator must have the mental 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 34

Undue influence

Answer 34

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. The burden of establishing undue influence generally is on the will contestant who must show the following (mnemonic=SODA): (1) the testator was susceptible to undue influence, (2) the alleged influencer had the opportunity to exert undue influence, (3) the alleged influencer had the disposition to exert undue influence, and (4) the will appears to be a product of undue influence. Most courts only invalidate portions that are infected by undue influence.