Wills

Question 1

choice of law for joint property when married in intestate

Answer 1

look at the law of the couple where they were domiciled at the time the property was acquired

Question 2

married descedents share

Answer 2

if kids: 1/3 or 1/2 (varies by state)

if no kids: the entire estate

Question 3

per capita with representation (intestate distribution method)

Answer 3

first generation recieves a share, next generation splits that share amongst common decedents

Question 4

per capita at each generational level

Answer 4

pool shares of lower generation, then split into even shares

Question 5

order of decedndency

Answer 5

parents
siblings and their decedents
half/half to maternal/praternal gparents
half/half to next of kin on maternal/paternal

Question 6

adopted kids and nonmarital kids

Answer 6

adopted: treated as biological kids
nonmarital: always from mother, father if mariied after birth, declared father in court, if proved to be father by clear convinincg evidence

Question 7

disinheritance clause

Answer 7

upc: good

common law: no, must dispose of all property in will to exclude an intestate recipient

Question 8

what is an advacnement

Answer 8

when a beneficicary receives a gift intended by will during life of testator

Question 9

procedures for measuring shares

Answer 9

the gifts value is added back in to the estate for purppse of calculating shares, and then subtracted from the recipients share

Question 10

uniform simulaneous death act

Answer 10

so A and B, A’s prperty goes to B’s heirs and B’s proeprty at issue goes to A’s heirs

Question 11

disclaiming an inheritance

Answer 11

signed writing
notarized
filed in appropriate court
9 months of death of testator

estopped if disclaimer recieved the benefit

Question 12

is a will revocable?

Answer 12

revocable during life and operative (self executing) at death

Question 13

choice of law for wills

Answer 13

real property: where the property situs

personal: domicile of testator at time of death

Question 14

testamentary capcity

Answer 14

must understand:
nature of the act
nautre of their property
beneficiaries/intestates
use this info to form an orderly scheme of dispostion

Question 15

when is capacity determined

Answer 15

at time of will execution (when will is deemed the effective will)

Question 16

does being too old mean you lack capacity

Answer 16

no, neither beign drunk or on drugs, as long as they meet the four steps

Question 17

for intent on making will

Answer 17

testator must have present intent; no future wills

1. intent to dispose of property
2. intent of disposal upon death
3. intended that will to accomplish disposal

Question 18

formalities of will execution

Answer 18

vary by state, but generally:

1. writing (some states allow electronic)
2. signed by testator (or another in presence of testator)
3. 2 witnesses
4. signed in 2 wintesses presecnes (or single notray for UPC)

Some state may add:
sign at the end of the will
publish the will
witnesses sign in presecnce of each other

Question 19

testators signature

Answer 19

any mark works with intent

Question 20

holographic will

Answer 20

entirely in the testators handwriting and no witnesses
testator signed
-most states recognize
-most states recognize handwritten changes after will is completed

Question 21

devise

Answer 21

gift of rear property

Question 22

bequest

Answer 22

gift of personal property

Question 23

legacy

Answer 23

gift of personal proeprty in a will, usually money

legatee

Question 24

general legacy

Answer 24

general gift of personal property

Question 25

demonstartive legacy

Answer 25

general gift to be paid from a specific source pay X from the W trust fund

Question 26

ademption

Answer 26

failure of a gift bc the property no longer belongs to the testator applies only to specifc devise and bequests

Question 27

partial ademption

Answer 27

when a beneficiary takes only part of a devise or bequest bc other part is no longer property of testator

Question 28

ademption by satisfaction

Answer 28

transfering an entire gift to beneficiary inter vivos req writing or specific instruction in most states

Question 29

accessions

Answer 29

increase in property before testator death -income of proeprty: goes to general estate -improvements to real propety: specifc devisee after death -specific devisee

Question 30

exoneration of existing liens on property

Answer 30

states vary, but UPC says liens not provided for by estate unless the will says so (exonerated)

Question 31

abatment

Answer 31

reducing gifts to accoont for all debts/gifts of estate. order of abatment if not already determingd ``` intestate residue general legacy demonstrative legacy specific bequests/devise ```

Question 32

what happens when a gift lapses

Answer 32

beneficiary predeceases the testator

Question 33

anit lapse sattute

Answer 33

close intestate recipeints protected from gift lapsing; will go to thier heirs

Question 34

do wills mean the testator wants to avoid intestacy

Answer 34

yes

Question 35

what if will contradicts

Answer 35

last one prevails

Question 36

extrinsic evidence for will ambiguuity

Answer 36

modern rule: yes for patent ambiguity AND latent ambiguity AND mistake traditional rule: NO for patent ambiguity and mistake YES for latent

Question 37

incorporation by reference

Answer 37

good so long as - will maifests intent to - doc exists at time will executed - doc is sufficeintly described in will

Question 38

codicil

Answer 38

moidifcaiton to a will ``` -must follow same steps for execution: wirting signed two witenss there (or notary) must be in presence of two witness ```

Question 39

can a coidcil incorporate a defective or ineffective will?

Answer 39

yes, can incorporate by refernce

Question 40

must the person probating the will prove integration?

Answer 40

yes, evidence includes - physical attachment - internal cohencsion of docs - orderly plan

Question 41

powers of appointment

Answer 41

A power of appointment is an authority granted to a person, enabling that person (the donee of the power) to designate, within the limits prescribed by the creator of the power, the persons who shall take the property and the manner in which they shall take it.

Question 42

donee of an appontment power

Answer 42

someone who is given the power of appointment

Question 43

can power of appointment pass through will

Answer 43

if it specifically does: yes in a residual clause: varies by jurisdcition, some yes, some no

Question 44

can a person revoke their will

Answer 44

yes, anytime during life

Question 45

marriage follwoing will execution

Answer 45

new rule: new wirfe take intestate interest share as ommitted spouse unless: - will makes provision for new spouse - omission was intnetional OR - will was mad ein contemplation of marriage

Question 46

revocation by phsyical act

Answer 46

burning, tearing, cancelling, obliterating will WITH intent to revoke -intent must be concurrent with act -usually has to be testator -

Question 47

can someone partially revoke will by physcial act

Answer 47

yes, can use exxtrinsic evidcence to decide

Question 48

does revocation of will revoke all codicils

Answer 48

yes BUT revoke of codicil doesnt revoke will

Question 49

revocation by written instrument

Answer 49

- req the same formalities as will execution - can revoke - -expressly - -by inconsistency (complete or partial)

Question 50

if will can't be found or is found in mutilated state AFTER will was last seen in testators control

Answer 50

assumed to be revoked

Question 51

normal assupmtion of revocation of a will?

Answer 51

assumed not revoked unless evidence otherwise or will last in testro possession and sub found destroyed or not found

Question 52

revivial of a revoked will

Answer 52

Under the UPC and in many states, if a will that wholly revoked a previous will is thereafter revoked, the previous will remains revoked unless it is evident from the circumstances or the testator’s statements that the testator intended to revive 8.7.2 Automatic Revival Approach In other states, revival is automatic under the theory that the revoking will did not take effect because it was revoked prior to the testator’s death. 8.7.3 No Revival Approach In some other states, a will, once revoked, is not revived when the subsequent will is itself revoked. The revocation clause is effective when executed just like a revocation by physical act. The earlier will can be revived only if it is re-executed (that is, re-signed and witnessed) or republished by a validly executed codicil.

Question 53

conditional revocation

Answer 53

express or implied

Question 54

implied revocation and doctrine of dependent relattive revocation

Answer 54

The doctrine of dependent relative revocation applies when a testator revokes their will under the mistaken belief that another disposition of their property would be effective, and but for this mistaken belief, the testator would not have revoked the will. If the other disposition fails, the revocation also fails and the will remains in force. To determine whether DRR applies, we ask the following questions: • Was the revocation of Will 1 impliedly conditioned on the validity of Will 2? • Would Testator have preferred Will 1 over intestacy? the more similar the provisions are, more likely to revive the will, and vice versa

Question 55

can spouse elect to take statutory share of estate instead of devised estate by will

Answer 55

yes, if authroized by statute from net estate (after expesnes) with notice

Question 56

homestead, family allowance, exempt personal proerpty

Answer 56

all three usually protected from creditors

Question 57

contesting a will

Answer 57

only interested party has standing time to file varies burden of proof on contestor grounds for contest: defective execution, revocation, lack of capccity, lack of intent, undue influence, fraud, mistake

Question 58

undue influence

Answer 58

The influence existed and was exerted • The effect of the influence was to overpower the mind and free will of the testator (so that the will reflects the desires of the person exerting the influence instead of the testator); and • The resulting testamentary disposition would not have been executed but for the influence (causation)

Question 59

duress

Answer 59

same as undue infleunce but with violence

Question 60

fraud

Answer 60

False representation made to the testator • Knowledge of falsity by person making the statement • The testator reasonably believed the statement • The statement caused the testator to execute a will or make a particular disposition that the testator would not have made but for the misrepresentation

Question 61

mistake in execution of will (works)

Answer 61

In the case of mistake in the execution, the testator is in error regarding the identity or contents of the instrument and thus lacks testamentary intent.

Question 62

mistake in inducement of will (doesn't work)

Answer 62

In the case of mistake in inducement, the testator is mistaken as to some extrinsic fact and makes their will based on that erroneous fact.

Question 63

executor

Answer 63

personal rep to carry out the will ``` notice to devisees discover/collect the assets manage the assets pay expenses of admin distribute property ```