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Wills Flashcards

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1
Q

Intestate Succession

A

how property is divided if person dies without will or will is invalidated

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2
Q

Heir

A

individual who takes share of decedent’s probate estate when dies intestate

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3
Q

Testamentary Beneficiary

A

takes bequest from will that wouldn’t inherit if died intestate

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4
Q

Share of Surviving Spouse

A

spouse gets everything if no children and no parents alive

if parents alive they get a share of estate spouse gets remaining

children from previous spouse- children will receive significant portion

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5
Q

Share of Children Schemes

A

per Capita at each generation

per capita with representation (per strpes)

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6
Q

Per capita at each generation

A

same generation always inherit same amount

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7
Q

Per Capita with representation

A

heirs receive representative shares of their parents- get what parents get q

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8
Q

Adopted Children

A

CL- only blood could inherit

Modern- inheritance rights but doesn’t receive from bio parents unless stepparent adopts

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9
Q

Adoption by Estoppel

A

finiding of express or implied promise to adopt child and child stood from an age in position to exactly = to formally adopted child

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10
Q

Child born out of wedlock

A

CL- nonmarital child couldn’t inherit from either parent

Modern- children have right to inherit from mothers and inherit from dads when paternity has been established

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11
Q

half bloods

A

same share as whole blood under UPC

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12
Q

Stepchildrent

A

not children for intestate succession

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13
Q

Intestacy distribution when no spouse and kids

A

parents
decedents of parents (siblings)
more remote ancestors

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14
Q

paretelic Method

A

majority/UPC

nearest common ancestor will take before more distant ancestor
niece>uncle b/c realtion b/c parents in common

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15
Q

Consagguninity method

A

minority blood realtion method

1st Degree- children/parents of decedent
2n Degree- children of decedent’s parents, grandchildren, and grandparents
3rd Degree- children of grandparents. nieces and nephews, great grandparents, grand children
4thh Degree- great nephews, great nieces, first cousins, great aunts and uncles

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16
Q

Advancements

A

intestate but gave child gift during life

CL- gift treated as part of their shire and taken into accounting when computing share- bordened to include all heirs ntot just children

Majority- treated as gift and ignored unless decdent meant it as advancement

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17
Q

UPC Approach to Ademption by Satisfaction

A

lifetime gift not prepayment unless
will says so, testator declares in writing that it is to be deducted
devisee ackonwledges in writing gift is in satisfaction

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18
Q

Executing a will

A 
comply w/ state law
in wriitng
signed by testator
witnessed by 2 witnesses
18+ 
intent that document is will
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19
Q

Signing a will

A

signature must be any mark made w/ intent to adopt the will

Proxy Signer- another person can sign in testator’s place

  1. UPC/Majority- proxy must be in concious presnece (see/hear) of testator and at his direction
  2. line of sight- testator must see proxy and witnesses sign will
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20
Q

Substantial Complaince Rule

A

some states say if will susbtantiallt complied w/ law valdi

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21
Q

Dispensing Power

A

UPC has rul,e that court can validate will so long as clear and convincing evidence that decedent intended document to be will

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22
Q

Holographic wills

A

unwitnessed wills
must be signed and material portions must be in decedent’s handwriting
1/2 states recongize

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23
Q

Interested witness

A

receives property

CL- must be signed by uninterested witness to be valid
Modern Law- will valid but person may not take bequest unless 3 witnesses and 2 disinterested, republished by codicil signed by uninterested party, heir only what exceeds intestate share
UPC- no ban

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24
Q

Multi Page Wills

A

valid even if last page is only executed so long as person trying to prove validity can show all pages physically present and together when testator signed, last page of wilol, each page inteded by testator to be part of his will

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25
Codicil
supplement to will that modifies it must be executed same manner as will republishes will to be executed same day as codicil Can't republish an invalid will revoking a will revokes codicil but revoking codicil doesn't revoke will
26
Incorporation by reference
invlaid writing may be inorporated by reference into will if will manifests intent to incorpoate writing and writing identified w/ reasonable certainity and must exisit at time will is execute.d memo of property but not $ b/c need formalitites
27
Contractual Wills
K to make will must be in writing UPC- existence of joint will doesn't establish K to dispose of property in certain way, established by provisions of will stating material portion of K, express reference in will to a K and extrinsic evidence proving terms of K, writing signed by dedecent evidence K
28
Effect of Contractual Wills
revoke during life if notice given to other of intent to revoke UPC has no provision dealing w/ revocation
29
Conditional Will
will valid only if upon happening of event and testator fails to return or survivie *where will kept, other odcuments, setting aside would result in intestacy, inequitable distribution
30
Dependent relative Revocation
1st will not revoked if later will is invalid
31
Revocation
physical act or execution of new will w/ intent to revoke CL- words of cancellation had to touch the words of the will UPC/Majority- words do not need touch so on back of will can write
32
Who can revoke a will
testator or someone acting at their discretaion in concious presence
33
Burden of revoking will
party seeking to establish will revoked
34
Divorce
bars fromer spouse from taking gift udner will that was executed before divorce (divorce needs to actually occur not enough to file) exception- divorce decree specfies property before divorce final and spouse dies or gets remarried
35
Partial revocation
physical act by crossing out certain parts of will presumption that testator wanted to revoke but can be overcome
36
Revival
Will 1 revoked by will 2 by then revokes will 2 dies CL- Will 1 revived Majority- doesn't revive UPC- doesn't revive unless evident of intent
37
Gift to dead person
cant' give gift to dead person | falls into residuray estate
38
Antilapse statute
gift saved from lapse and deceased's issue will take gift doesnt' save spouse gift UPC "if he survives me language" not enough to overcome antilapse
39
Failure of Residurary Bequest
CL- invalid share passes to heirs | UPC- failed gift goes to residuary
40
Ademption
specific property bequest fails b/c decedent didn't own property @ death Modern law- beneficiary entitled to subsitute property that was owned by testator at death UPC- entitled to any property owned by decedent proceeds from damage paid to beneficiary as subsitrute
41
Accretions
increase in value due to stock splits CL- not entitled to additional shares Modern law- entitled to all shares
42
exoneration
CL- mortgage paid from estate as debt of decedent | Majority- beneficiary of property takes subject to morgage
43
Slayer statute
som1 who kills, abuse, neglects, or exploitation with respect to decedent forfeits all rights to estate Accidental- slayer rule doesn't bar gift Turns JT to TIC, revokes power to serve as personal representative preponderance of evidence
44
Disclaimer
pass if personwhi disclaimed failed to survive 9 months of death- UPC doesn't impose timeline
45
simultaneous death
CL- 1 second sufficient | Uniform Simultaneous Death Act/UPC- 120 hours
46
Abatement
assets of estate are insuffiecnt to give all gifts under will; gifts must be reduced
47
Abatement order (IRGDS)
``` intestate proeprty residuary gifts general gifts demonstaritve gifts specfic giftts ```
48
Class Gifts
CL- implied survivorship | UPC- gift not lapse if beneficiary is related to testator and leaves issue
49
Gift to children include
bio adopted nonamrital if paternity established
50
Testator competent if knows
nature extent property person who are natural object of testators bounty (family) nature of instrument that testator is signing disposition in will
51
Undue Influence
invalidates will all or portion present when wrongdoer exerts influence over testator that it overcomes testator's free will and cuases testator to make a gift that he wouldn't have made burden is on contestant (SODA
52
Contestsnt must show this to show undue influence
testator suspectible to undue influence (age, personality, health) alleged influence had opportunity to exert undue influence alledge influencer had disposition to exert undue influrnce will appears to be product of undue influence
53
Fraud
invalidates will all or portion tesator deceived by misrepsentation and is led to execute will he wouldn't have
54
Mistake
allows extrinsic evidence for ambuguity but if will clear do not allow to correct mistake minority- moved away from formal approach and can fix will if clear and convicting evidence of mistake and intent
55
Contesting a will
challenge validity or admission to probate Standing- better off financially if denied probate than they would be if will were admitted
56
non contest clauses
contests will won't take under will UPC- enforcebale unless probale cause exists for challenging will
57
non probate
intervivos gifts, causa mortis gifts, JT, totten trust bank accounts, joint bank accounts, insurance,
58
Inter Vivos gift
requires donative intent, delivery, and acceptance (presumed when value) delivery can be constructive or symbolic if item can't be transferred at time of gift completion
59
Gift Causa Mortis
intent delivery acceptance immediate apprehension of death revocable until death
60
Totten Trust Bank Accounts
POD transfer $ to beneficiary sole owner if beneficiary dies first then regular bank account
61
Creditors and joint account
CL- can't reach joint account unless opened for convenience and no survivorship feature added UPC- creditors have higher priority then surviving
62
Personal Representative
priority to recieve letters issued by court overseeing administration of estate, court will appoint if will silent post bond unless bank, inventories property, publishes notice to creditors, sells peroprty w/ court permission
63
Spousal Elective Share
elect against will get fraction of estate 1/3-1/2 UPC- bases amount of length of marriage, net estate, non probate assets to others & spouse must be made within 6 months of death
64
Waiver of elective share
can waive if prenuptial agreement exists and was informed of all assets can waive homestead allowance, exempt property and family allowance
65
pretermitted Spouse & child
will before marriage and spouse not included spouse gets intestate share unless purposefully omitted, express not withstanding later marriages, provided for outside of will Doesn't protect children born before and not included
66
Living Will
written statement that describes adult's desire regarding medical treatement when they can't give consent Pain control, artificial nutrition
67
DPOA
appoints attorney in fact to make healthcare decisions that withhold or withdraw life sustaining treatment including food and hydration must act in good faith and immunizes agent from ciivl oliability if decision i in good faith
68
execution + revocation of healthcare docs
signed writing necessary & most states require 2 witnesses Witness can't be agent but under UHCDA it can be and no witnesses are even req Revocation- manifestion of intent to revoke
69
Personal proeperty
govrned by law of state decedent was domiciled
70
real property
governed by law of situs where property is
71
inter vivos trust
governed by chosen state or law that has most signficant relationship to trust

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