Wills Flashcards
(33 cards)
Testate
Decedent dies with a will
Intestate
Decedent dies without a will
Codicil
Effect of Codicil
A supplement that either amends or revokes a decedent’s will in whole or in part. Generally, must be executed with the same formalities of a will (can be attested or holographic)
Republishes will at the date it was executed
A valid codicil executed after the original will may cure problems that existed at the execution of the will, such as an insufficient number of witnesses.
probate
Judicial process for administrating and settling a decedent’s estate
Intestate Sucession
A default estate plan, developed by the legislature, for distributing property when the decedent dies intestate.
Spouse + Shared Descendants
Surviving spouse takes entire estate
Spouse + Parent, No Descendants
SS takes $300,000 and 75% of the remainder of the estate
Spouse + Shared Descendants + Surviving Spouse’s Kids
SS takes $225,000 and 1/2 of remaining property
Spouse + Non-Spousal Kids (issue not related to SS)
SS takes $150,000 and 1/2 of remaining property
Spouse, No Descendents or Parents
SS takes entire estates
Without Heirs
Property escheats to the state
How is community property handled intestacy? (only a thing in some jurisdiction, don’t talk about unless told to)
Community Property (all property acquired during the marriage is jointly owned by both spouses unless it is a gift, inheritance, or devisee given to only one spouse).
At death, the surviving spouse is entitled to 1/2 of the Community Property (CP). The surviving spouse of an intestate decedent is also entitled to the decedent’s 1/2 CP and quasi-CP. Therefore, the surviving spouse will take 100% of the CP.
SS Survival Requirement under CL and USDA
SS must survive D to inherit (or take under a will)
Common-Law – must have survived D by any length of time
Uniform Simultaneous Death Act–Must have survived D by 120 hours
Under USDA what happens if there is insufficient evidence of order or spouses’ death?
Insufficient evidence of other of death–the property of each individual passes as though the other individual predeceased him
Issue
All lineal descendants, including children, grandchildren, great grandchildren etc
Posthumously born children
Rebuttable presumption that the child is the child of the deceased husband if the child is born within 280 days of his death
Children born out of wedlock. Modern trend vs. UPA Vs. Common Law
Common-Law: a child was born out of wedlock, then she could not inherit from her natural father.
Modern Trend: An out-of-wedlock child cannot
inherit from her natural father unless:
• The father subsequently married the natural mother; or
• The father held the child out as his own and either
received the child into his home or provided support; or
• Paternity was proven by clear and convincing
evidence after the father’s death; or
• Paternity was adjudicated during the lifetime of the
father by a preponderance of the evidence.
UPA: Requires Proof of Paternity for a child to inherit
• When a father holds a child out as his own presumption of paternity; the child can bring an action to establish paternity at any time
• Otherwise—no presumption of paternity; the child must bring an action within 3-years of reaching the age of majority
Posthumously-conceived child
not recognized as a child of the deceased parent
When is SS entitled to take intestacy
(1) The be entitled to take under an intestacy statute, the SS must have been legally married to the decedent.
(2) Putative Spouses–Even if a marriage is not valid, as long as long party believes in goof faith in its validity, the spouses are terms putative and qualify as spouses for inheritance purposes.
(3) UPC 120 hour rule
Intestacy and Adoption
(1) Adoption curtails all inheritance rights between the natural parents and the child
(2) Adopted children take the same as a natural child.
3 Approaches to Intestacy
(1) Per Stirpes
(2) Per Capita with Representation
(3) Per Capital at Each Generation (UPC)
Per Stirpes
(1) The estate is first divided into the total number of children of the ancestor who survive or leave issue who survive
(2) Issue equally share the portion that the deceased ancestor would have taken if living
- Divided based on how many children D had (regardless of if they are alive) and pass down their lines to their issue. So if D had 3 dead children all with children, then estate divided into 1/3s and passed to D’s children’s issue
- Issue take in equal shares regardless of whether anyone in that generation survives
Per capita with representation
(1) Property is divided equally among the first generation with at least one living member
(2) The share of a non-living member of that generation passes to the living issue of that member
(3) Non-living member with no living issue does not take a share
Per capita at each generation
Property is divided into as many equal shares as there are living members of the nearest generation of issue and deceased members of that generation with living issue
(1) Divide property into equal shares at the 1st generation where there is a surviving member
(2) Each surviving heir of that generation gets a share.
(3) The remainder is then equally divided among the next-generation descendants of the deceased descendants in the same manner. aka Pools the remaining shares after each generation, instead of passing the deceased member’s share by representation.
