Wills Flashcards
(100 cards)
1
Q
What is Non-Probate property?
A
Property that does not pass through probate and is not governed by Will or intestacy.
2
Q
What is Total Intestacy?
A
A person dies without a will, so all of their property is passed via intestacy.
3
Q
What is Partial Intestacy?
A
A person dies with a will, but not all of their property is disposed of in the will.
4
Q
Who are heirs?
A
The persons who take by intestacy.
5
Q
What law applies to property for purposes of marital rights?
A
The law of the domicile when the property was acquired.
6
Q
What state’s laws are applied to personal property?
A
The law of the person’s domicile at death.
7
Q
What state’s laws are applied to real property?
A
The law of the situs (the location of the land).
8
Q
Who are Descendants?
A
Persons related to the decedent in descending lineal line (such as children and grandchildren).
9
Q
What are the methods of computing shares to descendants?
A
3 Methods:
- Per Stirpes
- Per Capita with Representation
- Per Capita at Each Generational Level
10
Q
How does Per Stirpes distribution work?
A
Under the classic (or strict) per stirpes distribution of the common law, one share is created for each child and one share for each deceased 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 into shares at the child generation even if no child survives the intestate. This method is used in a small minority of states.
11
Q
How does Per Capita with Representation distribution work?
A
In most states, a decedent’s descendants take their shares per capita with representation, which means the property is divided into equal shares at the first generational level at which there are living takers. Each living person at that level takes a share, and the share of each deceased person at that level passes to their issue by right of representation.
If all children are deceased and all property is going to the grandchildren, each grandchild takes an equal share rather than the share (or part of the share) the parent would have taken had the parent survived.
12
Q
How does Per Capita at Each Generational Level distribution work?
A
A growing number of states and the UPC make the initial division of shares at the first generational level at which there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level. Persons in the same degree of kinship to the decedent always take equal shares.
Thus, if some children are alive and others dead, each child will take an equal share (as with per capita by representation), but the remaining property is pooled and each grandchild will receive an equal share.
13
Q
Who are Ancestors?
A
People related in an ascending lineal line such as parents and grandparents.
14
Q
Who are Collaterals?
A
Persons related but not in a lineal line such as siblings, aunts, and uncles.
15
Q
How does an intestate estate pass if the decedent has no descendants?
A
(1) Parents; (2) Siblings (multiple methods dividing among surviving parent and siblings); (3) Grandparents and their descendants.
16
Q
How do adopted children inherit?
A
Adopted children inherit from adopted parents.
17
Q
Do adopted children inherit from their biological parents? What about biological parents from the now-adopted children?
A
Whether the children inherit varies state to state.
The bio parents never inherit.
18
Q
What is adoption by estoppel?
A
A child can inherit from or through a stepparent or foster parent when legal custody of a child is gained under an (unfulfilled) agreement to adopt them.
19
Q
When can children inherit from their non-marital parents?
A
- Can always inherit from the mother.
- Can inherit from the father if the state requirements are met (such as the determination of paternity).
20
Q
What are Half Blood Siblings (Half Blood Collateral Heirs)? What are their inheritance rights as to each other?
A
Siblings with only one common parent.
Most states do not distinguish between half bloods and whole bloods.
21
Q
What are Posthumous Children?
A
Children born after the death of a parent.
22
Q
What is an Advancement?
A
A Lifetime gift intended by the donor as a prepayment of an intestate share.
23
Q
What is the procedure when an Advancement applies to an intestacy distribution?
A
If found to be an advancement, the gift’s value when given is added back into the estate for purposes of calculating shares, and then subtracted from the recipient’s share.
- The advancement goes into the “hotchpot.”
24
Q
What is Satisfaction?
A
A testamentary gift is given ahead of time to a Will beneficiary.
25
How long must an heir outlive a decedent to inherit?
- Some states: heir can survive for any amount of time.
- UPC: Heir must survive by 120 hours.
NOTE: If the survival requirements are not met, the would-be heir is treated as if they predeceased.
26
What is a Disclaimer? What are its requirements?
A person can disclaim/renounce an interest in property that a decedent seeks to grant to that person.
Generally, a Disclaimer must be (1) in writing, (2) signed by a person disclaiming, (3) acknowledged in front of a notary, and (4) timely filed (moder view is that you can disclaim at any time as long as you have not accepted or used the benefits of the gift).
27
What is the effect of a disclaimer?
The person is disclaimed is treated as having died first.
28
What effect when an heir or beneficiary kills the decedent?
2 Ways:
- Slayer Statute: The murder is precluded from inheriting or being a beneficiary.
- Equitable Trust: Murder will hold the property for the benefit of others.
29
What is a savings statute?
If adopted, a Will is to be considered valid if it complied with the local law, law where it was executed, or the law of the decedent's domicile at death or will execution.
- NOTE: This is only for validity. All other issues are dealt with under the state's law.
30
What are the general requirements for a will?
(1) Legal capacity, (2) Testamentary capacity, (3) Testamentary intent, and (4) Formalities.
31
What is Legal Capacity?
Being old enough. In most states, a person must be at least 18 years old.
32
What is Testamentary capacity?
In order to execute a valid Will, a testator must be able to:
(1) Understand the action (making a will);
(2) Understand the effect of what you're doing (disposing of property at death);
(3) Understand the nature and extent of their property (generally);
(4) Recognize the natural objects of their bounty; and
(5) Ability to do the previous 4 simultaneously.
33
What effect for testamentary capacity when someone has been adjudicated incompetent?
This forms a rebuttable presumption that the person lacks capacity (not absolutely determinative).
34
What is Testamentary Intent?
A person has testamentary intent when they intended the instrument to be a Will.
35
What are the Will formalities?
A valid Will must be:
(1) In Writing;
(2) Signed by the testator (or by a proxy);
(3) Attested by two witnesses (usually must witness in the testator's conscious presence).
36
What is the value of an Attestation Clause?
In many states, this provides prima facie evidence of proper execution.
37
What is a Self-Proving Affidavit?
The testator and witnesses swear in an affidavit (under oath) to the things that they would swear to during a probate proceeding.
- Can substitute for in-court testimony of witnesses (saves time and money).
38
What is a Holographic Will? How much of the will needs to be in the testator’s handwriting?
A Will that is written in the testator's handwriting.
- No need for witnesses in some states.
- Majority Rule: Virtually everything needs to be in the testator's handwriting.
- Minority Rule: Only that material provisions need to be in the testator's handwriting.
39
What is a Nuncupative/Oral Will?
Wills stated in an oral format. These are abolished in most states.
40
What is a Devise in the Wills context?
A gift of real property.
41
What is a Bequest in the Wills context? What are specific vs general bequests?
A gift of personal property.
- A specific bequest is property distinguishable from the rest of the testator's estate (EX: "I leave my account #1234 to X").
- A general bequest is of a general nature and is not distinguishable from the rest of the estate (EX: "I leave my car to X").
42
What is a Legacy in the Wills context?
A gift of personal property not sufficiently described to be specific (usually money).
43
What is a demonstrative legacy?
A gift of a specific sum of money payable out of a designated fund.
44
What is a Residuary Gift?
The gift of the remainder of the estate after all debts and other gifts are paid.
45
What is Ademption?
A gift fails because the property is no longer in the testator's estate.
46
What are the common exceptions to Ademption?
- Replacement property (if the testator replaced the item with something else, the beneficiary will get that replacement item).
- Balance of the purchase price (of the item).
- Condemnation or insurance proceeds.
- Proceeds from the sale by a guardian.
47
What is Ademption by Satisfaction?
The beneficiary receives gifted property before the testator's death.
- Under modern law, most states require a writing.
- The intent for the gift to adeem must be present at the time the gift is made.
48
What is Exoneration of liens in the Wills context?
This is a doctrine that says that encumbrances of a property converted by will are discharged with funds from the estate, not the property itself.
- Some states: Liens are automatically exonerated.
- UPC and other states: No exoneration unless the Will provides for it.
49
What is Abatement?
The process of reducing gifts when estate property is inadequate to satisfy gifts or debts.
- ORDER: (1) Property passing by intestacy (in partial intestacy situation); (2) Residual Gifts; (3) General Gifts; (4) Demonstrative Gifts; (5) Specific Gifts.
50
What is a Lapse?
A gift fails because the beneficiary fails to survive the testator or is legally treated as not surviving the testator.
51
What are Anti-Lapse statutes?
Statutes that prevent a Lapse by substituting descendants of predeceased beneficiary for a predeceased beneficiary.
- The relationship needed between the testator and the predeceased beneficiary varies by state.
52
What happens to a lapse in a residuary gift?
- Common Law: Deceased beneficiary's share passes by intestacy.
- Modern Rule: Surviving Residuary beneficiaries divide the deceased beneficiary's share.
53
What presumption does a Will create regarding intestacy?
That the decedent had an intent not to die intestate.
54
When there are conflicting provisions in a testator's will, what provisions are favored?
The one(s) closer to the testator's death is/are used.
55
Are Will provisions generally construed as a whole or analyzed as individual parts.
As a whole. However, when possible, it is the aim to give effect to all of the language in a Will.
56
How is the meaning of ordinary and technical words determined in Will interpretation?
Ordinary words are given their ordinary meaning.
Technical words are given their technical meaning (unless there's some context that says otherwise).
57
What is Patent Ambiguity? How is this dealt with?
The ambiguity is obvious. In these cases, the court will look at extrinsic evidence.
58
What is Latent Ambiguity? How is it dealt with?
The language in the Will is clear on its face but cannot be carried out without further clarification (EX: two beneficiaries with the same name).
In these cases, the court looks at extrinsic evidence to resolve the ambiguity.
59
What is a case of No Apparent Ambiguity? How will courts handle this?
The language in the will is clear on its face and can be carried out, but someone thinks the testator made a mistake (EX: scrivener error in dollar amount).
- Traditional / Plain Meaning Rule: Cannot disturb the plain meaning of the Will.
- Modern Rule: Extrinsic evidence permitted (clear and convincing evidence needed).
60
What is Incorporation by reference? What are its requirements?
Instead of writing something in the will, a testator may incorporate an extraneous document into the will by reference.
Incorporation by reference requires:
(1) Intent to incorporate the writing; (2) the writing was in existence when the will was executed; and (3) the writing must be clearly identified in the will.
61
What are facts of independent significance?
Something that has a legal reason for existing other than the disposition of property at death.
62
What are conditional wills? What presumptions apply here?
A conditional will is one that provides that it is to be operative only if a certain event occurs or does not occur.
- Courts construe wills as general, not conditional, if possible.
63
What is a codicil? What is Republication by Codicil?
A codicil is an amendment to an existing will.
Republication by codicil means that the will and codicil are treated as one document that speaks from the date of the codicil.
64
Can a properly executed codicil cure the defects of an improperly executed will?
Yes, proof of a codicil will constitute proof of a will. A codicil can incorporate a defective will by reference.
65
What is a Pour-Over Provision? When must the trust be created for the Pour-Over Provision to work? What funding must the trust have?
A provision in a will that leaves property inter vivos to a trust.
- The trust can be created before or after the testator executes their will.
- The trust does not need to be previously funded.
66
What is Integration?
This is a legal theory that says that a will can be made up of multiple pages, as long as all the pages are present and the person who made the will intended for all the pages to be part of the same document.
- It must be able to be shown that all the pages present at the time of will execution are the same pages present at the time of probate.
67
What is a Joint Will?
A single testamentary document containing the wills of two or more persons.
- Bad idea to use in practice.
68
What is a Reciprocal Will?
Separate wills with parallel dispositive provisions.
69
What are Contractual Wills? How is it proved?
Will executed pursuant to a contract.
- Proving Under Common Law: Extrinsic evidence can establish the contractual nature of a will.
- Providing Under Modern Law: Writing is required.
70
Can Contractual Wills be revoked?
They can be revoked by agreement of the parties while both alive.
- If revoked by one person while both alive, the other person can change the will.
- If revoked by one person after the other dies, the injured beneficiaries may sue to impose a constructive trust on the property they should have received.
71
What is a Power of Appointment? What are the types?
The owner of property (donor) transfers to the donee the power to appoint the new owner of the property.
- General Power of Appointment: Power exercisable in favor of the donee, their estate, their creditors, or the creditors of their estate.
- Special Power of Appointment: Power exercisable in favor of a limited class of appointees, not including the donee, their estate, their creditors, or the creditors of their estate.
72
What are the ways in which GPOAs and SPOAs are exercisable?
During life or upon their death (testamentary).
73
Are Powers of Appointment considered property that passes under the residual clause of the power holder's will?
Differs by state :)
74
What effect does marriage have on a prior will?
Generally, this has no effect on a prior will.
In some states and under the UPC, the new spouse received an intestate share unless (1) the will provides for the spouse, (2) the omission was intentional, OR (3) the testator executed the will in contemplation of marriage.
75
What effect does divorce have on a prior will? When does the voiding actually occur?
All provisions in favor of the ex-spouse are void. The property that would have gone to the ex-spouse passes under the terms of the will as if the ex-spouse had died first. The voiding occurs upon final divorce (not while the divorce is pending).
76
What are the requirements for Revocation by Physical Act?
(1) Intent; (2) Mental Capacity; (3) Physical Act (EX: burning, tearing, ripping, writing "void," etc.).
77
Is proxy revocation permitted?
Yes, so long as it is (1) at the testator's request and (2) in the testator's presence.
78
What general rule(s) apply for actions of partial revocations of a will?
Varies by state!
- Could be any act of destruction.
- If recognizes holographic wills or just normal will formalities, consider whether those were used.
79
What presumptions apply to the absence of a revocation?
There is a presumption that there was no revocation if the will is found in a normal location and there are no suspicious circumstances.
80
What presumption applies when the will can't be found?
If the will was in the testator's possession or control but can't be produced after the testator's death, then there is a presumption that the testator revoked the will.
81
What is Revival? What are the different approaches?
It is the reapplication of a previously revoked will by the revocation of the next will (that revoked that original will).
- UPC/Intent Approach: Look at the testator's intent.
- Automatic Revival Approach: Revoking will never took effect because it was revoked.
- No Revival Approach: Revocation by a subsequent writing takes effect immediately when signed.
82
What is Dependent Relevant Revocation (DRR)?
When a testator executes a will and then revokes it and executed a later invalid will, the first will is revived because its revocation was conditioned upon a later will being created (the testator assumed that the later will would be good but it wasn't).
- This hinges upon determining the testator's intent.
- If the will provisions are more similar, then it is more likely that a court will apply DRR.
83
At common law, what protections do a spouse have from disinheritance?
The surviving spouse has the right to a portion of the estate regardless of what the will says.
- The amount may be a percentage or a number or percentage that varies with the number of children or length of marriage.
84
What is an augmented estate?
Some states grant a surviving spouse a share (protecting from disinheritance) based on an augmented estate, which includes non-probate assets.
85
What spousal shares apply to protect from disinheritance in community property states.
There is no elective share because the surviving spouse is protected by owning half of the community property (the deceased spouse can give away only separate property and their own half of the community property!).
86
What are Pretermitted Child Statutes?
This provides a share to children born or adopted after will execution.
- The purpose is to carry out the testator's intent to provide for children.
87
When will a pretermitted child not receive a forced share?
- The entire estate is left to the pretermitted child's other parent.
- The omission was intentional.
- The testator provided for the pretermitted child outside of the will.
88
What are the grounds of a will contest?
- Not meeting will requirements
- Lack of legal capacity
- Lack of testamentary capacity
- Lack of testamentary intent
- Undue Influence
- Duress
- Fraud
- Mistake
89
What is an Insane Delusion?
The persistent belief in facts that are against all evidence.
There must be a connection between the insane delusion and property disposition for there to be grounds for a will contest.
90
What are the elements of undue influence?
(1) The influence existed and was exerted; (2) influence overpowered the testator's mind and free will; and (3) the influence caused the testator to execute a will with different terms than he otherwise would have.
- Testator's free will must be destroyed.
91
By what evidence is Undue Influence proved?
Factors:
- An unnatural disposition (cutting out kids)
- Opportunity to exert undue influence.
- Confidential or fiduciary relationship
- Ability of the testator to resist
- Beneficiary's involvement in drafting the will
92
What are the elements of Fraud for Wills purposes?
(1) A false representation was made to the testator; (2) knowledge of falsity by the person making the statement; (3) the testator reasonably believed the statement; and (4) the statement caused the testator to execute a will that the testator otherwise would not have executed.
93
What are the types of fraud in the Wills context?
- Fraud in the Execution/Factum: The testator was deceived as to the identity or contents of the instrument.
- Fraud in the Inducement: The testator knows the identity and contents of the will, but is deceived as to extrinsic fact(s) and makes a gift based on that/those erroneous fact(s).
94
What are the types of Mistake in the Wills context? What kinds of relief are granted when a mistake is made?
- Mistake in the Execution/Factum: The testator is in error regarding the contents or identity of the instrument. Here, some courts will deny relief, but the better view is that the court will grant relief where the nature of the mistake is obvious.
- Mistake in the Inducement: The testator is mistaken as to some extrinsic fact and makes a will based on that fact. A court will usually not grant relief for these.
95
What is a No-Contest Clause? When is it enforceable?
The beneficiary forfeits their interest in the estate if they contest the will and lose.
- Most states enforce these UNLESS the contest was in good faith and with probable cause.
- Some states give the clause full effect even if the contest was in good faith.
96
Who is a Personal Representative?
The person appointed to carry out the estate administration.
- Called administrator if the person died intestate.
- Called executor if named in the will.
97
What are the duties of a Personal Representative?
- Give notice to the heirs, beneficiaries, and creditors.
- Collect and manage all probate assets.
- Pay the estate expenses and creditors.
- Distribute the property to the heirs and beneficiaries.
98
What is the order of priority for creditors' claims?
Generally, the order goes as follows: administrative expenses, funeral expenses and expenses of last illness, family allowance, federal claims, secured claims, unsecured claims.
99
When decedents leaving property to each other die near the same time, how is the situation analyzed under the USDA?
The USDA provides that when disposition of property (by will, intestacy, joint tenancy, etc.) depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if they had survived the other.
- In the case of a tenancy with right of survivorship, half the property passes through the estate of each party.
100
How are words of survivorship generally treated? What about under the UPC?
In most states, words of survivorship are considered a contrary will provision, and the anti-lapse statute will not be applied.
Under the UPC, however, mere words of survivorship are not sufficient to negate application of the anti-lapse statute.
