Wills Flashcards
1
Q
When to apply intestacy rules
A
- no will
- will fails
- will does not dispose of all probate prop
- will specifies intestate distribution
2
Q
surviving spouse share under intestate succession
A
- in all states, surviving spouse takes the entire estate if no descendants survive and in most states 1/2 or 1/3 of estate if descendants survive.
- some states and UPC provide for a dollar amount plus 1/2 or 1/3 if descendants survive
- UPC = surviving spouse takes entire estate if all surviving descendants are surviving spouse’s descendants
3
Q
descendants share not passing to surviving spouse
A
- majority = per capita with rep
- modern = per capita at each generation
- minority = strict per capita stripes (division always at child level)
4
Q
in no descendants survive the intestate estate passes
A
- to parents
- in no parents, to descendants of parents
- if no then to grandparents or their descendants
- if no then divided into maternal and paternal shares and pass to nearest kin
- if no relative capable of taking, the estate passes to the estate (escheat)
5
Q
special cases of intestate succession
A
- adopted children = treated same as natural child and cutoff from natural parent
- stepchildren and foster = no inheritance rights unless adopted but may be exception for adoption by estoppel
- posthumous children = child in gestation at decedent’s death inherits as if born in lifetime
- nonmarital children = can inherit from father if: father and mother married after child’s birth, adjudicated father in paternity suit, and after man’s death he is proved to be the father of the child
- siblings of half blood and whole blood inherit equally
6
Q
disinheritance clause
A
- majority = ineffective if partial intestacy
2. minority and UPC = given full effect; heir treated as though he had disclaimed his intestate share
7
Q
simultaneous death
A
- property of each person passes as though he survived the other person
- applies to probate and nonprobate transfers
- about half of the states have adopted 120 house rule - must survive by 120 hours to take as a beneficiary/heir/etc
- governing instrument can make different provision
8
Q
disclaimers
A
- disclaimed property passes as though disclaimant predeceased decedent
- disclaimer must describe the property and must be in writing, signed by the disclaimant, and filed within 9 months
- estoppel of disclaimer if benefits accepted
9
Q
decedent’s death caused by heir or beneficiary (slayer)
A
- if one feloniously and intentionally causes death of a decedent, property passes as though killer predeceased decedent
- applies to probate and non probate
- severs joint tenancy
10
Q
advancements and satisfaction of legacies
A
- lifetime gift presumptively not advancement of intestate share or in satisfaction of gift under will unless:
- intent is shown by a contemporaneous writing by donor or
- there is a written acknowledgment by the donee
11
Q
requirements for all wills
A
- testator age 18 and of sounds mind
- testamentary intent - present intent to make a will
- writing
- signature of testator
12
Q
requirements for formal attested wills
A
- age, intent, writing, signature of testator plus…
- two attesting witnesses (or signed by notary under UPC)
-testator must acknowledge will or sign in witnesses’
presence
-witnesses must sign in testator’s presence
-if witness is also a beneficiary, will is valid but gift to
interested witness is purged unless:
a. witness is supernumerary
b. witness would take without the will
c. UPC provision allows interested witness to keep
gift - UPC harmless error; defectively executed will can be given effect if clear and convincing evidence testator intended it to be his will
13
Q
requirements for holographic wills
A
- age, intent, writing, signature of testator plus….
- will must be in testator’s handwriting
- witnesses not needed
14
Q
integration
A
pages present at execution are part of will if so intended
15
Q
codicil
A
- must be executed with same formalities as a ill
- republishes will
- revocation of will revokes codicils; revocation of codicil revokes only codicil
16
Q
incorporation by reference
A
- the document must be:
- in existence at time the will was executed
- sufficiently described in the will and
- the will must show intent to incorporate
- signed list of tangible personal property is valid even if made or altered after will’s execution
17
Q
acts of independent significance
A
will may identify beneficiaries or property by reference to acts or events that have significance apart from the will
18
Q
pour over to inter vivos trust
A
- valid even if trust amended after will execution
2. under uniform testamentary additions to trusts act, trust need not be in existence at will execution
19
Q
powers of appointment
A
- general v. special power = general power can be exercised in favor of donee; special cannot
- appointive property not subject to elective share or creditors
- exercise:
- residuary clause does not by itself exercise testamentary power; must mention power
- blanket exercise power permissible
- contract to exercise testamentary power invalid
20
Q
non probate assets
A
- cannot be disposed by wil
- includes life insurance, property passing by right of survivorship
- property in trust
21
Q
revocation by operation of law
A
- marriage usually has no effect on will, but if there is an omitted spouse statute, the will is revoked to extent of spouses share
- divorce or annulment revokes all provisions in favor of former spouse (and under UPC former spouse’s relatives)
22
Q
revocation by written instrument
A
- revoking instrument must be executed with same formalities as will
- inconsistent provisions in later instrument revoke prior ones by implication
23
Q
revocation by physical act
A
- burning, tearing, or canceling with intent to revoke
- may partially revoke will
- will not found at testator’s death is resumed revoked
- contents of accidentally lost or destroyed will may be proven
24
Q
revival or revoked wills
A
- in majority, destruction of revoking instrument presumptively revives revoked will unless testator did not so intend. will always revived if re executed with formalities or republished by codicil
- dependent relative revocation - a court may disregard revocation if premised on a mistake of law or fact, would not have occurr but for the mistaken belief that another disposition was valid, and the results from disregarding revocation come closer to testator’s intent
25
contract to make a gift by will
1. a contract to make a will, not to revoke a will, or to die intestate can be established by:
- provisions in the will stating terms of contract
- express reference in will to contract, plus evidence of contract terms, or
- writing signed by decedent evidencing the contract
2. remedies or breach are damages or constructive trust after decedent's death; there is no remedy during the promisor's lifetime.
26
joint and mutual wills
1. mutual wills are not presumed contractual
| 2. majority rule that joint wills are not presumed contractual but many courts treat them as such
27
anti lapse statutes
1. lapsed gift is saved by statute if predeceasing beneficiary within specified degree of relationship to the testator and left surviving descendants (UPC saves if predeceasing beneficiary is testator's stepchild, grandparent, or a descendant of grandparent)
2. statute usually applies only to wills, but UPC applies it to trusts, life insurance,etc.
3. does not apply if contrary will provision:
- most states; words of survivorship constitute contrary provision
- UPC; words of survivorship are not enough to negate application of anti-lapse statute
28
ademption - property not in estate
1. gift fails
2. applies only specific devises and bequests
3. bequest of securities is general; bequest (no adempton) unless "my" is used
4. ademption may be partial
5. testator's intent is irrelevant
29
exceptions to ademption
1. insurance proceeds and condemnation awards paid after death
2. property subject to executory contract (testator's rights pass)
3. securities owned as a result of merger, consolidation, etc
4. property sold by guardian
30
increases to property after execution of will (accretions)
1. increases before testator's death; income goes to general estate, but improvements to real property go to devisee
2. increases after testator's death pass to specific beneficiary
3. specific bequests include stock splits and stock dividends
31
elective share statute
1. spouse may take a statutory share instead of share if any in will
2. amount - in most states, 1/3 of net probate estate if surviving descendants and 1/2 without
3. share paid in manner causing least disruption
32
permitted child statutes
1. in most states, afterborn or after adopted children take an intestate share
2. exceptions; omission appears intentional, at execution testator had other children and left nearly all of his estate to other parent of omitted child, and testator provided for omitted child outside of the will
3. under UPC omitted children may be limited to same bequest as to other children
33
standing and grounds to contest will
1. contest may be brought by an person whose interest would be directly affected by the will's admission to probate
2. grounds;
- defective execution
- will offered ha been revoked
- testator lacked intent or capacity
- the will or gift is a product of undue influence
- the will or gift was procured by fraud
- the document was executed or gift made because of mistake
34
contest will based on testamentary capacity
1. testator must be at least 18 yo on date of execution
2. contestant must prove that testator could not understand
- nature of act
- nature and extent of property
- people who are the natural objects of testator's bounty
- nature of disposition
3. capacity determined at time of will execution
4. insane delusion invalidates will only to extent delusion caused disposition
35
contest will based on undue influence
requirements:
-influence exerted on testator
-overpowered the mind and free will of testator
-product was will that would not have been made but for the influence
presumption of undue influence arises when:
-there is a confidential relationship between the testator and beneficiary and
-the beneficiary participated in a significant activity related to execution of the will
36
contest will based on fraud
willful deceit as to character or content of will or as to material fact
-fraud in execution - contents of instrument misrep
-fraud in inducement
-fraudulent prevention of execution - possible constructive trust remedy
will or gift as result of fraud is invalid
37
contest will based on mistake
1. mistake as to instrument(did not know it was a will) - extrinsic evidence admissible
2. mistake in inducement - no relief unless mistake appears on face of will
3. mistake in contents
- no relief for mistaken omission
- evidence not admitted to contradict plain meaning
- latent ambiguity(ambiguous as applied) - evidence admissible
- patent ambiguity(on face of will)- gift fails under traditional view, but modern view allows extrinsic evidence
4. reformation - UPC and restatement permit court to reform will terms, even if ambiguous) to conform to testator's intent if clear and convincing evidence that testator's intent or will terms were affected by fraud or mistake
38
contest will based on no contest clauses
will be enforced unless contestant had probable cause to challenge will
39
personal representative
1. order of preference- person named in will, surviving spouse (will beneficiary), any will beneficiary, surviving spouse, any heir, a creditor
2. duties - give notice, collect assets, manage assets, pay expenses, distribute
40
creditor's claims
1. must be filed within time specified in statute or are barred
2. priority- administration expenses, funeral and last illness expenses, family allowance, tax claims, secured claims, judgents, all other claims
41
abatement
when assets insufficient, gifts reduced in this order:
1. property passing by intestacy
2. residue
3. general legacies - pro rata
4. specific devises and bequests
42
interpreting ambiguous will provisions
1. evidence of surrounding circumstances permitted
2. testator's declarations inadmissible
3. rules of construction
- favor intestate heirs
- favor construction avoiding intestacy
- favor construction consistent with perceived plan
- every portion of will given effect if possible
- between completely inconsistent provisions, one most recently added is favored
