Wills Flashcards
(37 cards)
Intestate succession: only surviving spouse
Spouse takes entire estate.
UPC: Certain portion given to decedent’s parents and their issue.
Intestate succession: surviving spouse and issue
Most states: each receive certain %.
UPC: surviving spouse receives entire estate if all issue are issue of spouse.
Intestate succession: no surviving spouse, but issue
Entire estate to issue.
Intestate succession: no surviving spouse or issue
Estate passes in following order:
1. Surviving parents equally (one if only surviving)
2. Siblings and their issue
3. More remote ancestors
4. Issue of more remote ancestors
What distribution approach do most states and UPC use for intestate assets?
Per Capita at Each Generation:
1. Estate divided into as many equal shares as surviving descendants in same generation and deceased descendants in generation who left issue.
2. Surviving each get share. Deceased shares combined and divided in same manner among descendants in next generation.
3. Continues until all assets distributed.
Law applicable for valid execution of will under UPC
Execution complies with law of place where
- executed; OR
- testator’s domicile, abode, or nationality at time of either death or signing will.
Valid will requires testator intent, which can be proved by ______.
Extrinsic evidence
Interested witness
CL: not permitted; must have 2 disinterested. Since abolished by all states.
Now: valid, BUT
1. Gift deemed void/purged unless
a. Still 2 disinterested witnesses present. OR
b. Interested witness is heir. Any gift to wit/heir will be lesser of
i. Intestate share or gift under prior will; OR
ii. Gift under current probated will.
Codicil: cure and limit
Cures interested witness issues with original will/doc, as long as codicil witnessed by 2 disinterested.
Cannot republish invalid will.
Acts of independent significance
Those with significance outside will-making process. Example: gift to employees at time of death - usually hire/fire for business purposes, not to designate beneficiary.
May be used to fill in any gaps in will.
Substitute gift in will revoked by physical act
Substitute gift cannot be created by words of cancellation (crossing out and writing in). Revocation by cancellation may be valid, but substitution is not.
Revival of will: UPC
If will only partially revoked by subsequent instruments, revoked provisions will automatically revive unless testator did not intend that.
Breach of contractual will
Court will probate new will and impose constructive trust in favor of original intended Bs under contractual will.
Modern Per Stirpes (Per Capita by Representation) Distribution
- Estate divided into as many equal shares as surviving descendants in same generation and deceased descendants in generation who left issue.
- Surviving each get share. Remaining drop down and divided in same manner among then-living issue of deceased descendants.
(Diff from Per Capita by Generation: only living descendants in 2nd generation take; does not continue to 3rd)
Per Stirpes Distribution
- Assets divided at first generation (surviving and deceased w/ issue). Each receives one share.
- Deceased beneficiary share drops directly to their issue. Each (surviving and deceased w/ issue) receives one share.
- Continues until all shares taken.
(Diff from Per Capita by Generation: deceased share goes only to issue, not entire generation)
Heirship: Parentelic v. Civil Law Consanguinity Method
Used to determine heirship.
Civil Law Consanguinity - all persons in same degree of relationship of decedent take equal shares (e.g., uncle and niece are both at 3rd degree so take same).
Parentelic/UPC - assets pass in order:
1. spouse
2. descendants
3. parents
4. siblings
5. nieces/nephews
6. continue down line of descendants from ancestors (e.g., niece but not uncle)
What is a residuary clause? What happens if there is not one or the clause fails?
Provision in will/trust instructing transfer of remaining assets not specifically mentioned in will/trust (undisposed-of property), and gifts that fail.
If no clause or it fails, that property passes by intestate succession to heirs.
Heir v. issue
Heir: receives assets is T dies intestate
Issue: lineal descendants (kid, grandkid, etc.)
How is ambiguity in will resolved?
Through extrinsic evidence that bears on T’s actual or probable intent.
Generally not allowed to correct T’s mistake of fact/law. BUT UPC and 3rd Restatement allow reformation if established by clear and convincing evidence:
- T’s intent; AND
- that mistake affected specific terms of will.
When does residue of a residue rule apply?
Only if anti-lapse statute does not provide substitute taker for predeceased B.
Will provisions re: death with/without issue
If T includes provision re: dying without issue, but fails to include one re: dying with issue, some court infer gift to issue. Other groups hold gift fails and passes to estate.
Under ademption, B is entitled to ___ for destroyed/damaged specific gift.
- Unpaid insurance proceeds or other recovery for injury to property; AND
- Damaged item itself
Exoneration of real property
CL: specific gift of real property did not pass subject to mortgage; mortgage paid from estate.
Modern/UPC: specific gift of real property assumes mortgage unless explicitly stated otherwise, regardless of will’s general directive to pay debts
Under UPC, when can disclaimer of inheritance rights be made?
At any time, so long as not barred (i.e., accepted or transferred interest).
