Wills Flashcards
A valid will requires
A writing
Attestation (witnessing) by at least 2
Signature
The testator must have capacity and present testamentary intent.
Or holographic will…
What does a holographic will require
A writing in teststor’s handwriting
Signature
When is there intestacy?
No valid will, will revoked, will successfully challenged (capacity, fraud, duress, mistake)
Revocation of wills requires
Physical act or subsequent writing. Some courts might look at intention.
What law controls the descent of an estate and/or the probate a will?
- Personal property= Decedents domicile
- Real property= Where property is located
Inheritance rights of children
Legally adopted children have the same rights as marital children.
Non-marital children have the same rights as marital children but in some cases there are questions of parentage that must be proved.
Posthumously conceived children are treated the same as marital children but deceased must have intended pregnancy.
Omitted child rights-There is a presumption in favor of inheritance if a child is born after the will was made.
Elective share
For spouses not for children
The general rule is that a change of circumstances does not revoke a will any part of it. There are two exceptions:
Sawyer statutes and subsequent divorce
Ademption by extinction
Ademption by extinction occurs when the testator has devised a specifically described item of real or personal property but the item is no longer owned by the testator at her death.
Under Identity theory, if the item is no longer in the estate, the gift is extinguished.
Under intent theory (UPC), If the item is no longer in estate, devisee may be entitled to either cash value or substitute property if she can show that the testator did not intend to gift to fail.
Ademption by satisfaction
Under the UPC, ademption by satisfaction occurs when a testator makes an inter vivos gift to the beneficiary with the intention that this gift replace or decrease the device under the testamentary instrument.
