Wills

Question 1

Nonprobate Property

Answer 1

Property that does not pass through probate and is not governed by will or intestacy.

Question 2

Co-Ownership of Property

Answer 2

In a tenancy in common the decedents share passes through estate

In a joint tenancy the decendants share passes to surviving joint tenant

Question 3

When Intestacy Occurs

Answer 3

• Person died without a will (total intestacy)
• Will did not dispose of all property (partial intestacy)

Question 4

Heirs

Answer 4

Persons who take by intestacy (not just children).

Question 5

Applicable Law for Intestacy

Answer 5

_Marital Rights:_Law of domicile when property acquired

Succession Rights:
• Personal property: Law of domicile at death
• Real property: Law of situs (location of land)

Question 6

Spouse’s Intestate Share

Answer 6

Varies by state
• May be percentage like one-third or one-half of estate
• Share may vary depending on number of children or length of marriage

Question 7

Descendants

Answer 7

Persons related to decedent in descending lineal line such as children and grandchildren

Question 8

Per Stirpes Distribution

Answer 8

• Divide estate into shares at first generation below decedent
• Create one share for each surviving child and one share for each predeceased child who left living descendants
• Give each surviving child one share
• Give share created for predeceased child to child’s descendants

Question 9

Per Capita With Representation Distribution

Answer 9

• Divide estate at first generation with surviving members
• Each living person at that level takes a share
• Share of deceased person at that level passes to issue

Question 10

Per Capita at Each Generational Level Distribution

Answer 10

• Divide estate into shares at first generation with survivors
• Pool shares of lower generation, so each person recieves equal share

Question 11

Ancestors

Answer 11

Persons related in ascending lineal line such as parents and grandparents

Question 12

Collaterals

Answer 12

Persons related but not in a lineal line such as siblings, aunts, and uncles

Question 13

Estate Passes in Following Order:

Answer 13

1. Parents
2. Siblings
   • If one parent and at least one sibling survive, some states give entire estate to parent
   • Other states give one-half to parent and one-half to siblings
3. Grandparents and their descendants

Question 14

Adoption

Answer 14

• Adopted child inherits from adoptive parents
• Whether adopted child inherits from biological parents varies by state
• Adoptive parents inherit from adopted child
• Biological parents do not inherit from adopted child
• Adoption by estoppel may permit child to inherit
• Generally stepchildren have no inheritance rights
• In most states, age when person was adopted does not matter

Question 15

Nonmarital Children

Answer 15

• Always inherit from mother
• Inherit from father if state requirements met (such as determination of paternity)

Question 16

Half Blood Siblings

Answer 16

Siblings with one common parent.
Most states do not distinguish between half bloods and whole bloods

Question 17

Posthumous Child

Answer 17

Child born after death of a parent

Question 18

Advancement

Answer 18

Irrevocable lifetime gift intended by donor as prepayment of intestate share

Question 19

Survival

Answer 19

How long must an heir outlive the intestate.
• Some states: Heir can survive for any amount of time
• UPC: Heir must survive by 120 hours (5 days)
• No survival —> Heir treated as predeceased

Question 20

Requirements of Disclaimer

Answer 20

• In writing
• Signed by person disclaiming
• Acknowledge in front of notary
• Timely filed
• Modern view: can disclaim at any time as long as no acceptance or use of benefits from gift

Question 21

Effect of Disclaimer

Answer 21

Effect of disclaimer is to treat person who disclaimed as dying first.

Question 22

What Happens if Heir/Beneficiary Kille Decedent

Answer 22

• Slayer statute precludes killer from inheriting or being beneficiary
• Court can impose constructive trust (in states without slayer statutes). Which is an equitable remedy to prevent unjust enrichment

Question 23

Applicable Law

Answer 23

• Real property: law of situs
• Personal property: law of domicile at death
• Savings statute: will valid if it complies with local law, law where it was executed, or law of decedent’s domicile at death or will execution

Question 24

Requirements of Will Validity

Answer 24

• Legal capacity
• Testamentary capacity
• Testamentary intent
• Formalities

Question 25

Legal Capacity

Answer 25

In most states, person must be at least 18 years old

Question 26

Testamentary Capacity

Answer 26

o Understand what testator is doing o Understand effect of what testator is doing o Understand nature and extent of property o Recognize natural objects of testator’s bounty o Ability to do the above at the same time

Question 27

Adjudication of Incompetence

Answer 27

Rebuttable presumption of lack of capacity

Question 28

Testamentary Intent

Answer 28

Testator intended instrument to be will

Question 29

Formalities of Attested Will

Answer 29

o In writing o Signed by testator or proxy § Signature = any mark made with present intent to authenticate the will § Proxy = in testators’ presence and by testator’s direction § Most states don’t mandate location of the signature o Two witnesses § Credible (can testify in court) § States vary whether interested witness loses gift § Usually must witness in testator’s conscious presence

Question 30

Attestation Clause

Answer 30

Recites elements of execution and is prima facie evidence of proper execution

Question 31

Self-Proving Affidavit

Answer 31

o Testator and witnesses swear in affidavit to things they would swear to during probate proceeding o Can substitute for in-court testimony of witnesses

Question 32

Holographic Wills

Answer 32

o Written in testator’s handwriting o No need for witnesses in some states o How much must be in testator’s handwriting varies by state § Majority rule: virtually everything § Minority rule: Only material provisions o To be valid: § Material portions must be in T’s handwriting AND § Must be signed and dated

Question 33

Nuncupative or Oral Wills

Answer 33

o Abolished in most states

Question 34

Classification of Gifts

Answer 34

o Devise: Gift of real property o Bequest: Gift of personal property § Specific bequest: Property distinguishable from rest of testator’s estate § Specific bequest of general nature is not distinguishable from rest of estate o Legacy: Gift of personal property not sufficiently described to be specific (usually money) o Demonstrative Legacy: Gift of specific sum of money payable out of designated funds

Question 35

Residuary Gift

Answer 35

Gift of remainder of estate after all debts and other gifts are paid

Question 36

Ademption

Answer 36

Gift fails because property is no longer in testator’s estate

Question 37

Common Exceptions to Ademption

Answer 37

o Replacement property o Balance of purchase price o Condemnation or insurance proceeds o Proceeds from sale by guardian

Question 38

Ademption by Satisfaction

Answer 38

o Beneficiary receives gifted property before testator’s death o Most states require a writing

Question 39

Exoneration of liens

Answer 39

o Some states: Liens exonerated (paid off with estate funds) o UPC and other states: No exoneration unless will provides for it

Question 40

Abatement

Answer 40

Process of reducing gifts when estate property is inadequate to satisfy gifts and debts

Question 41

Abatement Order

Answer 41

o Property passing by intestacy o Residual Gifts o General gifts o Demonstrative gifts o Specific gifts

Question 42

Lapse

Answer 42

Gift fails because beneficiary fails to survive testator or is legally treated as not surviving testator

Question 43

How to Distribute Lapsed Property

Answer 43

o Will’s terms o Anti-lapse statute may apply o Residuary clause o Intestacy

Question 44

Anti-Lapse Statutes

Answer 44

o Prevent lapse by substituting descendants of predeceased beneficiary for predeceased beneficiary o Relationship needed between testator and predeceased beneficiary varies by state

Question 45

Lapse in Residuary Gift

Answer 45

o Common law rule: Deceased beneficiary’s share passes by intestacy o Modern Rule: Surviving residuary beneficiaries divide the deceased beneficiary’s share

Question 46

Basic Rules of Construction

Answer 46

o Will  Intent not to die intestate o Conflicting provisions  use one closer to testator’s death o Construe will as a whole o Give ordinary words their ordinary meaning o Give technical words their technical meaning o Give effect to all language in will

Question 47

Patent Ambiguity

Answer 47

Ambiguity is obvious o Court looks at extrinsic evidence

Question 48

Latent Ambiguity

Answer 48

Language is clear on its face but cannot be carried out without further clarification o Court looks at extrinsic evidence

Question 49

No Apparent Ambiguity

Answer 49

Language is clear on its face and can be carried out, but someone thinks testator made a mistake o Traditional/plain meaning rule: Cannot disturb plain meaning of will o Modern rule: Extrinsic evidence permitted

Question 50

Requirements for incorporation by reference

Answer 50

o Intent to incorporate writing o Writing must be in existence when will is executed o Writing must be clearly identified in will

Question 51

Fact of Independent Significance

Answer 51

Something that has a legal reason for existing other than the disposition of property at death

Question 52

Conditional Will

Answer 52

Will that is to operate if certain event occurs or does not occur o Courts construe will as general, not conditional, if possible (law presumes against conditional wills)

Question 53

Codicil

Answer 53

Amendment to Existing Will

Question 54

Republication by Codicil

Answer 54

o Will and codicil treated as one document speaking from date of codicil o Proof of codicil = proof of will o Codicil can incorporate defective will by reference

Question 55

Pour-Over Provision

Answer 55

Provision in will that leaves property to inter vivos trust o Trust can be created before or after testator executes will o Trust does not have to be previously funded

Question 56

Integration

Answer 56

Must be able to show that all pages present at time of will execution are the same as pages present at time of probate

Question 57

Joint Will

Answer 57

Single testamentary document containing the wills of 2 or more persons

Question 58

Reciprocal Wills

Answer 58

Separate wills with parallel dispositive provisions

Question 59

Contractual Will: Will executed pursuant to a contract § Common law: extrinsic evidence can establish contractual nature of will § Modern law: writing required § Can be revoked by agreement of parties while both alive § Revoked by one person while both alive  other person can change will § Revoked by one person after other dies  Injured beneficiaries may sue to impose constructive trust on property they should have received

Answer 59

Will executed pursuant to a contract § Common law: extrinsic evidence can establish contractual nature of will § Modern law: writing required § Can be revoked by agreement of parties while both alive § Revoked by one person while both alive  other person can change will § Revoked by one person after other dies  Injured beneficiaries may sue to impose constructive trust on property they should have received

Question 60

Power of Appointment

Answer 60

Owner of property (donor) transfers to the done the power to appoint the new owner of the property

Question 61

General Power of Appointment

Answer 61

Power exercisable in favor of done, their estate, their creditors, or creditors of estate

Question 62

Special Power of Appointment

Answer 62

Power exercisable in favor of limited class of appointees, not including donee, their estate, their creditors, or creditors of estate

Question 63

Presently Exercisable Power

Answer 63

Exercisable by done during lifetime

Question 64

Testamentary Power

Answer 64

Exercisable only by donee’s will

Question 65

Marriage after Will Execution

Answer 65

§ In most states, marriage has no effect on prior will § Some states and UPC: Spouse receives intestate share unless · Will provides for spouse · Omission was intentional OR · Testator executed will in contemplation of marriage

Question 66

Divorce After Will Execution

Answer 66

§ All provisions in favor of ex-spouse are void § Voiding occurs automatically upon final divorce (not pending) § Property that would have gone to ex-spouse passes under terms of will as if ex-spouse had died first

Question 67

Requirements for Revocation by Physical Act

Answer 67

§ Intent § Mental capacity § Physical act: burning, tearing, ripping, writing “void” across will, etc.

Question 68

Proxy Revocation

Answer 68

Permitted if done at testator’s request and in testator’s presence

Question 69

Revocation by Subsequent Will or Codicil

Answer 69

§ Will or codicil must meet formal requirements § Revocation can be express § If new will completely disposes of testator’s property  old will completely revoked. § New will partially disposes of testator’s property  old will revoked only as to inconsistent parts

Question 70

Presumption of no Revocation

Answer 70

If will is found in normal location and there are no suspicious circumstances

Question 71

Will was in testator’s possession or control but can’t be produced after testator’s death

Answer 71

Presumption that testator revoked will

Question 72

Revival of Revoked Wills

Answer 72

o UPC/Intent approach: look at testators intent o Automatic Revival Approach: Revoking will never took effect because it was revoked o No Revival Approach: Revocation by subsequent writing takes effect immediately when signed

Question 73

Dependent Relative Revocation (DRR)

Answer 73

o Testator executes Will 1 o Testator validly revokes will 1 o Testator executes Will 2 but will 2 is invalid o Does will 1 remain? § DRR: Will 1’s revocation was impliedly conditioned on validity of Will 2. If Will 2 is invalid, Will 1 remains.

Question 74

Spouse’s Elective Share

Answer 74

o Surviving spouse has right to portion of estate regardless of what will says o Amount may be percentage or vary with number of children or length of marriage o Some states give spouse share of augmented estate, which includes nonprobate assets

Question 75

Community Property States

Answer 75

o No elective share because spouse is protected by owning half of community property o Deceased spouse can give away only separate property and their half of community property.

Question 76

Pretermitted Child Statutes

Answer 76

o Purpose is to carry out testator’s presumed intent to provide for children o Typically applies to children born or adopted after will execution o Situations where pretermitted Child does not receive forced share: § Entire estate left to pretermitted child’s other parent § Proof that omission was intentional § Testator provided for pretermitted child

Question 77

Other protections for minor children and surviving spouse

Answer 77

o Homestead (family residence) o Family allowance o Exempt personal property

Question 78

Grounds for Will Contest

Answer 78

o Does not meet requirements of valid will (defective execution) o Lack of legal capacity o Lack of testamentary capacity o Lack of testamentary intent

Question 79

Insane Delusion

Answer 79

o Persistent belief in facts that are against all evidence o Must have a connection between insane delusion and property disposition to be grounds for will contest

Question 80

Undue influence

Answer 80

o Influence existed and was exerted o Influence overpowered testator’s mind and free will o Influence caused testator to execute will with different terms

Question 81

Evidence of Undue Influence

Answer 81

o Unnatural disposition o Opportunity to exert undue influence o Confidential or fiduciary relationship o Ability of testator to resist o Beneficiary’s involvement in drafting will

Question 82

Elements of Fraud

Answer 82

o False representation made to testator o Knowledge of falsity by person making statement o Testator reasonably believed statement o Statement caused testator to execute will testator otherwise would not have executed

Question 83

Fraud in the Execution/ Factum

Answer 83

Testator deceived as to identity or contents of instrument

Question 84

Fraud in the inducement

Answer 84

Testator knows identity and contents of will but is deceived as to extrinsic fact and makes gift based on that fact

Question 85

Mistake in the Execution/Factum

Answer 85

Testator is in error regarding contents or identity of instrument

Question 86

Mistake in the Inducement

Answer 86

Testator mistaken as to some extrinsic fact and makes will based on that fact o Courts generally will not grant relief

Question 87

No Contest Clause

Answer 87

Beneficiary forfeits interest in estate if they contest the will and lose o Most states enforce clause unless contest was in good faith and with probable cause

Question 88

Personal Representative

Answer 88

Person appointed to carry out estate administration § Called administrator if person died intestate § Called executor if named in will § Duties of Personal Representative · Give notice to heirs and beneficiaries · Give notice to creditors · Collect and manage all probate assets · Pay estate expenses and creditors · Distribute property to heirs or beneficiaries

Question 89

Priority of Creditors’ Claims

Answer 89

§ Administration expenses § Funeral expenses and expenses of last illness § Family allowance § Federal Claims § Secured claims § Unsecured Claims § (then finally the heirs and beneficiaries get to collect)

Question 90

Advance Healthcare Directives

Answer 90

o Medical Power of Attorney/Durable Healthcare Power § Principal names agent to make medical decisions when principal cannot o Living Will § State’s individual’s desires regarding life-sustaining procedures