1
Q
Non-probate property
A
Gratuitous transfers that may impact where property passes upon death but are NOT governed by will or intestacy.
- Will pass to heirs if there is no will
- No evidence can be admitted to rebut intestacy scheme
2
Q
Inter vivos Gift
A
Property given while decedent was alive (outright gifts; living/inter vivos trust)
3
Q
Intestate Succession (two types)
A
As to the:
- Person (total intestacy) - decedent had no will at all
- Property (partial intestacy) - will doesn’t indicate what to do with particular property
Remove spouses share first, descendants, ancestors, and collateral follow → escheat. Roughly, lower generation cannot take unless higher generation is not alive.
4
Q
Inception of Title (intestate succession)
A
Law of the domicile determines who owns the property
- Personal property - domicile at death
- Real property - situs of the land
5
Q
Determining Shares of Lower & Multiple Generations (3 ways)
A
- Per stirpes “right of representation” (CL, minority)
- Per capita w/representation (modern per stirpes, majority)
- Per capita at each generation (modern approach, growing trend)
6
Q
Per Stirpes
A
- Divide property into shares, creating one for each child who survived the decedent and each child who has at least one surviving descendant
- Each child receives one share and one share passes to a deceased child’s descendants by representation
This method divides at the child generation even if no child survives the intestate. Possibility of takers of the same generation not receiving the same amount.
7
Q
Per Capita w/ Representation (Modern Per Stirpes)
A
- Divide property into shares at first generational level with living takers
- Each living person at that level takes a share
- Share of each deceased person at that level passes to their issue by representation
E.g., If all children are deceased and all property is going to grandchildren, each grandchild takes an equal share rather than the share (or part of a share) the parent would have received had the parent survived.
8
Q
Per Capita at Each Generation
A
- Divide property into shares at first generational level with living takers
- Combine shares of deceased persons at that level
- Divide combined shares equally among takers at the next generational level
Persons of the same degree of kinship always take equal shares.
9
Q
Adoption by Estoppel/Equitable Adoption
A
Allows children who are not formally adopted but have a sufficient relationship and an unperformed agreement to adopt. Allows stepchildren and foster children to inherit.
10
Q
Inheritance Rights of Children and Heirs with Special Circumstances
A
- Adoption: No adoption at CL. Adoptive children take from and through adoptive parents and vice versa. States vary as to whether adoptive children may take from bio. parents.
- Child of unmarried parents: No barrier to inheriting from the mother; may require DNA test, paternity acknowledgment from father
- Half-Siblings: CL - no share, Min - half-share, Maj - no different from full
- Posthumous child - varies by state
11
Q
Advancement
A
Irrevocable gift intended by the donor as a prepayment of an intestate share.
- Most states req. a writing
- Recipient must “go into hotchpot” - calculate estate as though advancement were still there and then determine remaining share.
- Comparable practice in wills (“satisfaction”) when a testamentary gift is given ahead of time
12
Q
Survival
A
A person cannot inherit if they do not survive the decedent.
- Uniform Simultaneous Death Act disposes of the property as if each decedent survived the other
- Cannot be invoked if any evidence at all that one person outlived the other, even by seconds
- Uniform Probate Code reqs. heir to outlive decedent by 5 days (120 hrs)
13
Q
Disclaimer
A
An heir can disclaim a gift:
- in a notarized writing
- filed with appropriate court within 9 mos. of decedent’s death
For federal tax purposes, disclaimer must be irrevocable, in writing, w/in 9 mos. of decedent’s death or beneficiary’s 21st birthday
14
Q
Slayer Statutes and Constructive Trusts
A
Protect against would-be heirs who killed the testator
15
Q
Savings Statute
A
Most states req. exact compliance with will statutes. Others allow substantial compliance.
Savings statutes allow will that complies with the law (1) of the state where it was executed or (2) where the decedent was domiciled at death to survive.
16
Q
Will Validity
A
Requires:
- Legal capacity
- Testamentary capacity
- Intent
- Formalities
17
Q
Legal Capacity
A
Usu. 18, but some states allow married minors or service members to have a valid will.
18
Q
Testamentary Capacity (5 Elements)
A
Testator must:
- Understand that they are creating a will
- Understand the effect of the will
- Understand the nature and extent of their property (need not be exact)
- Recognize the natural objects of their bounty (e.g., heirs)
- Meet the four above reqs. simultaneously
This is a very low bar, less than contractual capacity.
- Mentally challenged person can properly execute.
- Person deemed incompetent can’t, but rebuttable.
- Intoxicated person may lack capacity.
19
Q
Testamentary Intent
A
Testator intended the instrument to be their will.
20
Q
Will Formalities
A
- Written (usu. a loose requirement)
- Signed by testator (proxy allowed to sign if testator is present or directing them)
- Two witnesses (in most states, in testator’s conscious presence)
- States vary w/r/t whether they need to know it is a will being signed, i.e., “publication.”
- States vary w/r/t whether the witnesses sign in each other’s presence
- No state reqs. witness to know the content of a will
- Attestation clause not req.
- Notarization can substitute for a witness in some states.
21
Q
Will Formalities
A
- Written (usu. a loose requirement)
- Signed by testator (proxy allowed to sign if testator is present or directing them)
- Two witnesses (in most states, in testator’s conscious presence)
- States vary w/r/t whether they need to know it is a will being signed, i.e., “publication.”
- States vary w/r/t whether the witnesses sign in each other’s presence
- No state reqs. witness to know the content of a will
- Attestation clause not req.
- Notarization can substitute for a witness in some states.
22
Q
Hologrpahic Will
A
- Testator wrote by hand
- Can dispense with witness req.
- At least material parts of the will must be handwritten (fill-in-the-blank forms may be ok)
23
Q
Hologrpahic Will
A
- Testator wrote by hand
- Can dispense with witness req.
- At least material parts of the will must be handwritten (fill-in-the-blank forms may be ok)
24
Q
Nuncupative Will
A
- Oral will
- Very uncommon and rarely available (UPC and most states do NOT recognize)
- Limited circumstances
- soldiers or sailors (some states req. armed conflict)
- any person during their las sickness or in contemplation of immediate death
- Only for personal property
25
Exoneration (some states)
Lower-level and residual gifts pay debts. Other beneficiaries take their gifts subject to testator's debts being paid.
26
Abatement
Process of reducing testamentary gifts when estate is insufficient to satisfy them and/or the testator's debts. Generally, order in which property is first abates is:
* Property passing by intestacy
* Residuary estate
* General legacies
* Demonstrative legacies
* Specific bequests and devise
27
Classification of Testamentary Gifts
1. Devise - real property
2. Bequest - personal property
3. Legacy - personal property in a will, usually money
28
Specific Devise or Legacy
Particular item of property distinct from all other objects in the testator's estate (e.g., computer with specific barcode number)
29
General Devise Legacy
General economic benefit (often a $ amount) payable out of the general asests of the estate w/o requiring any particular source of payment.
30
Demonstrative Legacy
Gift of a general amount that is to be paid from a particular source or fund
31
Residuary Estate
Balance of the testator's estate after paying (1) debts, expenses, and taxes and (2) specific, general, and demonstrative gifts
32
Ademption by Extinction
Failure of a gift b/c the property in will is no longer in testator's estate. Applies to **specific devises and bequest only**. Does NOT apply to general or demonstrative legacies.
1. By extinction: specific gift no longer part of the estate. Typically, would-be recipient gets nothing (identity approach).
1. Some states have a replacement property rule or allow the beneficiary to receive proceeds
2. By satisfaction: Recipient received property before decedent's death. Usually,
1. only an issue w/money
2. there must be a writing
3. intent for ademption must be **at the time gift was made**
33
Partial Ademption
Testator devises large tract of land and conveys a portion during their lifetime. Beneficiary takes the remaining portion.
34
Lapse
Beneficiary predeceased testator (or is treated as such). In order, look to:
1. Will itself
2. State anti-lapse statute
1. Most states save the gift for predeceased beneficiary's descendants, who take by **substitution**.
2. Most state recognize words of survivorship as a *contrary* provision, but the UPC does not.
3. E.g. “I leave $20k to my brother, Bruce, if he survives me, and the rest of my estate to my best friend, Perry.” Most states would not allow Bruce's children to take.
3. Residuary clause
4. Intestacy - very few states allow application to non-relatives
If a beneficiary was dead at the time the will was executed, the gift is void.
35
Lapse in Class Gifts
Only members who survive testator may take unless will provides otherwise and anti-lapse reqs. are met.
36
Lapse in Residuary Gifts
Cl: No residue of a residue → deceased beneficiary's residue passes by intestacy, i.e., surviving residuary beneficiaries may NOT divide a deceased beneficiary's residuary share among them (unless will permits otherwise).
Maj: Residuary beneficiaries may divide the share of a deceased beneficiary in proportion to their interests in the residue.
37
General Rules of Will Construction
1. In the case of conflicting provisions, use more **recent** one
2. Construe will as a **whole** rather than isolated parts
3. Give ordinary words ordinary meaning
4. Give technical words technical meaning
5. Give effect to ALL the language of the will
38
Ambiguity
1. Patent: ambiguity is obvious
1. Cts. will look to extrinsic evidence, but will NOT fill in blanks
2. Latent: provision makes literal sense but can't be carried out (e.g., “I leave my car to my sister, Pat” when decedent has only a brother named Pat and a sister named Deb)
3. No apparent ambiguity BUT extrinsic evidence:
1. Traditional rule: Plain meaning
2. Modern/liberal rule: Extrinsic evidence allowed w/ **clear and convincing evidence** (usually pertains to a scrivenor's error)
39
Incorporation by Reference
Allows incorporation of another document into the will. Requires:
1. **Intent** to incorporate
2. Document was **in existence when the will was executed**
3. Document is **clearly identifiable** so that executor can be reasonably certain the correct document is being used
1. Tangible personal property document - some states allow a list which was not in existence at the time of execution to be used
39
Incorporation by Reference
Allows incorporation of another document into the will. Requires:
1. **Intent** to incorporate
2. Document was **in existence when the will was executed**
3. Document is **clearly identifiable** so that executor can be reasonably certain the correct document is being used
1. Tangible personal property document - some states allow a list which was not in existence at the time of execution to be used
40
Conditional Will
Will that purports to be operative only in certain circumstances. Generally, NOT effective. However, can be given effect if “condition” is interpreted as merely expressing a motive for making the will. Parol evidence **inadmissible*****.***
41
Acts or Facts of Independent Significance
Something outside the will that purports to dispose of property at death. Allows the court to look outside the four corners of the will. Acts of 3Ps in addition to the testator may be considered. Certain items may req. title.
Examples:
* Specific gifts o a general nature
* Class gift designations
* Gifts to “my spouse” (imagine there has been a change of spouse since the execution of the will → have to determine which spouse is intended)
* Gifts of contents (e.g., “contents of my safe deposit box,” which may change over time)
41
Acts or Facts of Independent Significance
Something outside the will that purports to dispose of property at death. Allows the court to look outside the four corners of the will. Acts of 3Ps in addition to the testator may be considered. Certain items may req. title.
Examples:
* Specific gifts o a general nature
* Class gift designations
* Gifts to “my spouse” (imagine there has been a change of spouse since the execution of the will → have to determine which spouse is intended)
* Gifts of contents (e.g., “contents of my safe deposit box,” which may change over time)
42
Codicil
Amendment to an earlier will
43
Republication by Codicil
Date and terms of will w/ latest codicil govern. Codicil republishes the will except for the inconsistent parts. Properly executed codicil may salvage problematic will.
44
Pour-Over Provision
Leaves property in an inter vivos trust
45
Internal Integration
Showing that all the pages of a will are accounted for
Methods of proof:
* pages fastened together
* sentences flow from page to page
* Ex toto pagination, e.g., “page x of y”
* Avoidance of blank spaces
* Testator and witness initialing of each page
46
Combination Wills
* Joint will - single instrument executed by two of more testators as the will of each
* not a good idea
* Reciprocal will - separate wills executed by two or more testators that mirror each other/ have substantially similar provisions
* Contractual will - will that is executed or not revoked as consideration for a contract
* CL: Any extrinsic evidence ok
* Modern: need writing
47
Power of Appointment
Enables a person (donee) to designate which person will take the property and the manner in which they will take. Power of appointment may be property.
Power is:
* General - donee can self-appoint
* Special/specific/limited - donee CANNOT self-appoint
48
Revocation (three types)
The recalling of a will. Testator w/ testamentary capacity may revoke their will at any time. Three types, by:
1. Operation of law (divorce usually voids gifts to ex and in-laws; beneficiary who murdered testator will not take)
2. Physical act, reqs:
1. Intent
2. Mental capacity
3. Actual phys. act (proxy revocation must be done in testator's presence)
3. Subsequent valid will or codicil (express or by inconsistency
49
Challenges to Will Revocation
* Person who wants old will to be enforced has burden
* Presumption on non-revocation is will is found in normal location and there are no suspicious circumstances
* If will proponent doesn't have original will, rebuttable presumption that it was properly destroyed → revoked
50
Marriage Following Execution of Will
* Most states: new marriage has no effect on earlier will
* UPC and some states: new spouse takes an intestate share as an “omitted spouse” UNLESS:
* will makes provision for them,
* omission was intentional, OR
* will was made in contemplation of the marriage
51
Pretermitted Child Statutes
Most states have, though they vary in contents. Purpose is to proved a share to a left out child on the assumption that the omission was unintentional.
Child takes share based on statutory formula. In many states, if the entire estate is left to the pretermitted child's parent, the child receives nothing.
General rules of abatement apply → child's share usually comes out of the residue
52
Revival (three approaches)
Giving effect to a revoked will. Three approaches:
1. Testator's intent (UPC)
2. Automatic revival
3. No revival (will can only be revived if it is re-executed, i.e., signed and witnessed) or republished by validly executed codicil
52
Revival (three approaches)
Giving effect to a revoked will. Three approaches:
1. Testator's intent (UPC)
2. Automatic revival
3. No revival (will can only be revived if it is re-executed, i.e., signed and witnessed) or republished by validly executed codicil
53
Conditional Revocation (three types)
Will is to be revoked upon occurrence of particular event.
1. Express - very rare
2. Implied (Dependent relative revocation) - testator revokes under mistaken belief that another disposition of their property (second will, codicil) would be effective yet BUT FOR the mistaken belief, would not have revoked. “Romeo and Juliet revocation”
1. Was the revocation of will 1 impliedly conditioned on validity of will 2?
2. Would testator have preferred will 1 to intestacy?
3. More similar the wills, more likely revocation is to be set aside. More different, more likely → intestacy.
54
Will Contests
Person who wants to contest bears burden. Grounds for contesting:
1. Lack of proper execution (esp. testamentary intent and formalities)
2. Revocation
3. Insane delusion of testator (may invalidate entire will or just gift)
4. Undue influence or duress
5. Mistake
6. Fraud
55
Undue Influence
Must show:
1. influence existed and was exerted
2. testator's free will and mind were overpowered
3. resulting testamentary distribution would not have occurred BUT for the influence
Circumstantial Evidence:
* unnatural dispositions, e.g., cutting out close family
* person w/opportunity or access
* confidential relationship btw parties
* ability of testator to resist (or not)
* beneficiary's involvement w/ the drafting or executing of the will
55
Undue Influence
Must show:
1. influence existed and was exerted
2. testator's free will and mind were overpowered
3. resulting testamentary distribution would not have occurred BUT for the influence
Circumstantial Evidence:
* unnatural dispositions, e.g., cutting out close family
* person w/opportunity or access
* confidential relationship btw parties
* ability of testator to resist (or not)
* beneficiary's involvement w/ the drafting or executing of the will
56
Fraud
1. False misrepresentation made to the testator
2. Knowledge or falsity by person making the statement
3. Testator **reasonably** believed
4. BUT FOR causation
If testator is fraudulently prevented from making a will, some courts impose a constructive trust
57
Fraud in the Factum (Execution)
Testator doesn't know they were signing a will - lack of testamentary intent
58
Fraud in the Inducement
Will itself or gift(s) therein based on some fraudulent fact
59
Mistake in the factum (execution)
* Benign error caused testator to create a will (e.g., testator confuses other documents with will draft and mistakenly signs)
* Fixable where mistake is obvious, extrinsic evidence permitted
60
Mistake in the Inducement
Mistaken belief cause testator to draft will in a certain way - not fixable
E.g., Parent believes child has died in combat so doesn't include them
61
No contest clause (in terrorem or forfeiture provision)
Valid and will be enforced UNLESS the beneficiary had probable cause and acts in good faith
62
Advance Healthcare Directives
Typically in writing, signed by the principal (or their agent), and witnessed by two adults. Vary a lot by state.
* Medical power of atty
* Interested parties generally ineligible to act (e.g., doctor)
* Family consent/Statutory surrogacy
* Living will
* Act in best interests of the principal and in good faith
63
Personal Representative
* Anyone with contractual capacity may serve.
* If named in the will → executor, if not → administrator
* Must file a bond unless not req. by testator or state law
* Has fiduciary duties (must have ct. approval to borrow money, operate a business, or sell property)
* Entitled to reasonable compensation. Gift in the will may suffice.
* Fraudulent, dishonest, or neglectful conduct may → forfeiture of compensation
64
Powers and Duties of Personal Representative
1. Give notice to relevant parties against estate (devisees, heirs, claimants)
2. Discover and collect decedent's probate assets
3. File inventory
4. Manage assets during administration
5. Pay expenses of administration, claims, and taxes
6. Distribute property
65
Creditor's Claims
After receiving notice from administrator, creditor must file their claims w/in a specified period of time. Claims are generally paid in the following order:
1. Administration expenses
2. Funeral expenses and expenses of the last illness
3. Family allowance
4. Debts given preference under law
5. Secured claims
6. Judgments entered against the decedent in their lifetime
7. All others
UBE Prep
flashcards
Decks in class (4)
# Cards
