Wills

Question 1

When is intestate succession used?

Answer 1

if a person dies without a will (or if the will is invalidated in part or in whole or does not make a total disposition)

Question 2

If the decedent’s spouse and parents do not survive the testator, what are the two available schemes to divide property among the decedent’s children?

Answer 2

per capita at each generation (where all cousins will be treated alike) or per capita with representation (modern per stirpes) (where a child will simply take his parent’s share).

Question 3

What is per capita at each generation?

Answer 3

where all cousins will be treated alike

Question 4

What is per capita at each generation?

Answer 4

where all cousins will be treated alike

Question 5

What is per capita with representation?

Answer 5

(modern per stirpes) (where a child will simply take his parent’s share)

Question 6

How do you do per capita at each generation?

Answer 6

To decide who gets the shares of the estate, find the first generation where there are issue living. Give one share for each such living issue and one share for each person in that generation who predeceased the decedent but left issue surviving. Combine the shares belonging to the deceased persons and distribute them equally at the next generational level. (Cousins are treated alike.)

Question 7

How do you do per capita with representation?

Answer 7

(modern per stirpes): this is the same as above except instead of combining all shares and dividing them equally, simply pass each deceased person’s share on to her issue(s). (Cousins are not treated alike.)

Question 8

If there is no spouse and no children, what are two methods of determining heirship?

Answer 8

The civil law consanguinity method and the parentelic method adopted by the UPC

Question 9

What is the consanguinity method?

Answer 9

Under the consanguinity method, heirship is determined by degree of relationship: all persons of the same degree of relationship to the decedent take equal shares (so an uncle and a niece are in the third degree of consanguinity and would be heirs entitled to equal shares).

Question 10

What is the parentelic method?

Answer 10

Under the parentelic method, descendants of the decedent’s parents take to the exclusion of descendants of the decedent’s grandparents (so a niece would be an heir but an uncle would not).

Question 11

What is a child for purposes of intestate succession?

Answer 11

child for purposes of intestate succession includes adopted children, children born out of wedlock, and half-bloods (but not stepchildren!).

Question 12

What is an advancement and when does it arise?

Answer 12

This is an issue when the decedent dies without a will but gave a child a gift during her lifetime. The question is: Should the gift be deducted from what the child would inherit under the laws of intestate succession?

Question 13

What is the common law advancement rule?

Answer 13

Al ifetime transfer to an heir was presumptively treated as a down payment on the heir’s intestate share and thus is taken into account when computing the heir’s intestate share. At common law, this only applied to a gift to a child (not, say, a gift to a sibling), but most states have broadened it to include any heir.

Question 14

What is the majority law for advancement?

Answer 14

Most states today say that a lifetime transfer is presumed to be a gift and is ignored in computing the heir’s intestate share unless there is evidence to show that the decedent intended the gift to be an advancement.

Question 15

When there is a will, what law applies to advancements?

Answer 15

Ademption by satisfaction

Question 16

What is ademption by satisfaction?

Answer 16

This doctrine applies when there is a will (unlike the advancements doctrine). ‘

The Uniform Probate Code (UPC) states that a lifetime gift is not a prepayment unless: (1) the will says so, (2) the testator declares in a contemporaneous writing that the gift is to be deducted from the will, or (3) the devisee acknowledges in writing that the gift is in satisfaction of the bequest. (J2000)

Question 17

What is required for a valid will?

Answer 17

Many state laws require that the will is in writing, signed by the testator, and witnessed by two witnesses.

They also require that the testator is 18 or older and intend that the document is his will.

Note: generally, any mark that is made with intent to adopt the will counts as a signature.

Question 18

What is required for a holographic will?

Answer 18

Holographic wills are unwitnessed wills. Holographic wills are valid if signed and (according to the UPC and some states) if the material portions are in the testator’s handwriting. Holographic wills are recognized by about half the states. Mention this doctrine if you see an unwitnessed will on the MEE.

Question 19

What is the dispensing power?

Answer 19

The UPC adopts the dispensing power under which a court can validate a will so long as there is clear and convincing evidence that the decedent intended the document to be her will.

Question 20

What is incoporation by reference?

Answer 20

A writing that is not valid as a will may be incorporated by reference into a will if the will manifests an intent to incorporate the writing and the writing is identified with reasonable certainty.

This writing must exist at the time the will is executed. (The UPC and some states recognize the right of a testator to dispose of tangible personal property by a signed memorandum, whether it is prepared before or after the execution of the will, even if it does not comply with the formalities of a will.)

Question 21

What is revocation by a physical act?

Answer 21

e.g., by execution of a new will or by some other physical act, such as
cancellation or other writings on the will): This must be done with the intent to revoke the will. The testator or someone acting at the testator’s direction and in his “conscious presence” may revoke the will.

Question 22

What is dependent relative revocation?

Answer 22

Under this doctrine, a first will isn’t revoked if a later will is found invalid. Essentially, if a testator revokes a will or bequest based on a mistaken assumption of law or fact, the revocation of the will is ineffective if it appears that the testator wouldn’t have revoked the bequest had the testator had accurate information

Question 23

What happens with a will in a divorce?

Answer 23

Divorce revokes gifts in favor of a spouse. Note: there actually needs to be a divorce (or annulment)—not just a filing of divorce.

Question 24

What happens to a gift if the beneficiary does not survive the testator?

Answer 24

The general rule is that if a beneficiary does not survive the testator, the gift will lapse or fail and fall into the residuary.

However, all states have antilapse statutes (which keep gifts in the family).

Under a typical antilapse statute, if a beneficiary dies before the testator and was both related by blood to the testator within a certain degree of relationship and had issue who survived, the gift to the deceased beneficiary is saved and the beneficiary’s issue will take in lieu of the beneficiary.

Question 25

What is a slayer statute?

Answer 25

An individual who feloniously and intentionally kills the decedent, or who is convicted of committing abuse, neglect, or exploitation with respect to the decedent, forfeits all benefits with respect to the decedent's estate (including an intestate share, an elective share, an omitted spouse's or child's share, etc.). Voluntary manslaughter is a form of a felonious and intentional killing. Note that if a beneficiary accidentally kills the decedent (even if it rises to involuntary manslaughter), the slayer rule does not bar a gift. Nor does it apply if the slayer murdered someone other than the decedent. Note: when this is tested on the MEE, generally this doctrine does not bar a gift to the slayer (usually because the killing is not felonious and intentional!).

Question 26

What happens when a gift fails because the property no longer exists?

Answer 26

If specifically devised property (i.e., property that is specifically described in the will) is not in the testator’s estate when the testator dies, the bequest adeems—i.e., the gift fails. Under many statutes, if the testator replaced the property, or if there were insurance proceeds unpaid at death, then the beneficiary would receive that in place of the property.

Question 27

What is a disclaimer?

Answer 27

Disclaimed property (property that a beneficiary does not want) will pass as if the person disclaiming had failed to survive the testator. An antilapse statute may apply; otherwise, the gift will fall into the residuary.

Question 28

What is abatement?

Answer 28

when the assets of an estate are insufficient to satisfy all the gifts made by someone’s will, then the gifts to the beneficiaries will be reduced (abated) in the following order: intestate property, residuary gifts, general gifts, and specific gifts.

Question 29

What has been the pattern with mental capacity and undue influence?

Answer 29

Virtually every time that mental capacity or undue influence has been tested, the best answer is that the testator did have capacity and there was not undue influence present to invalidate the gift. However, remember that this is very fact-specific.

Question 30

What is the mental capacity requirement?

Answer 30

A testator must have capacity to execute a will. The burden of proving that the testator lacks mental capacity rests on the contestant. A testator meets this requirement if the testator knows (1) the nature and extent of his property, (2) the persons who are the natural objects of the testator’s bounty (i.e., family members), (3) the nature of the instrument that the testator is signing, and (4) the disposition that is being made in the will.

Question 31

What is undue influence?

Answer 31

This is present when the wrongdoer exerts such influence over the testator that it overcomes the testator’s free will and causes the testator to make a gift he would otherwise not have made. The burden of establishing undue influence generally is on the will contestant who must show the following (mnemonic=SODA): (1) the testator was susceptible to undue influence, (2) the alleged influencer had the opportunity to exert undue influence, (3) the alleged influencer had a disposition to exert undue influence, and (4) the will appears to be a product of undue influence. Most courts only invalidate portions that are infected by undue influence.