Wills Flashcards
1
Q
Uniform Probate Code vs. state intestacy laws re surviving spouse
A
UPC considerably more generous to surviving spouse
2
Q
UPC: If spouse + shared descendants survive
A
Spouse takes ENTIRE estate
3
Q
UPC: If spouse and parent survive decedent
A
Spouse takes 300k + 75% of remainder
4
Q
UPC: If spouse + shared descendants + spouse’s other kids survive decedent
A
Spouse takes 225k + 1/2 of remaining property
5
Q
UPC: If spouse + non-spousal kids survive decedent
A
Spouse takes 150k + 1/2 of remaining property
6
Q
UPC: If decedent only survived by spouse
A
Surviving spouse takes ENTIRE estate
7
Q
Codicil
A
Supplement that amends or revokes will in whole or in part
8
Q
Probate
A
Judicial process for administering and settling decedent’s estate
9
Q
Do living people have heirs?
A
NO
10
Q
Issue/Descendants
A
Decedent’s lineal line (kids/grandkids, going DOWN)
11
Q
Ancestors
A
Decedent’s parental lines (going UP)
12
Q
Collateral relatives
A
Decedent’s relatives through ancestor (siblings, cousins, etc) – going side to side
13
Q
Is decedent’s actual intent relevant to legislative default estate plan?
A
NO
14
Q
Uniform Simultaneous Death Act
A
If unclear who survived whom (e.g. car crash), property will pass as if each had predeceased the other.
Heir must be proven by 1) clear + convincing evidence and 2) must have survived decedent by 120 hours
15
Q
Must a lineal line member have a parent-child relationship to receive from decedent?
A
YES
16
Q
Adoptive children inheritence
A
Inherit from decedent like biological children
Adoption SEVERS right to inherit from adoptee’s natural parents
17
Q
Stepparent Adoption
A
Creates parent/child relationship with stepparent for purposes of inheritance
This type of adoption does NOT prevent adoptee from inheriting from other genetic parent
18
Q
Posthumously-Born Children
A
If conceived before, but born after, death of mother’s husband
CL: If child born within 280 days of death, rebuttable presumption of parentage and child will inherit
UPA: increases rebuttable presumption period to 300 days
19
Q
Per Stirpes Method
A
Divides shares equally according to decedent’s lineal line
1) Divide shares into total number of children who survive OR leave issue to survive
2) Then divide by representation
20
Q
Per Capita with Representation
A
1) Divide property equally at generation where a member first survives decedent
2) If deceased member NOT survived by issue, that member does not take a share
21
Q
Three will execution requirements
A
1) signed by testator
2) presence of witnesses
3) testamentory intent
21
Q
Per Capita at each Generation (UPC!!)
A
1) Divide property into equal shares at first generation where there is surviving member (same first step as other per capita)
2) THEN pass to next generation by pooling
3) Divide pooled shares equally at next generation
22
Q
Can will be oral?
A
NO, under UPC, must be written
23
Q
Must signature be at end of will?
A
In some states, YES
Other states/UPC: signature can be anywhere and will is still valid, BUT any words after signature are INVALID
24
Capacity to sign will
Must be at least 18 and of sound mind
Formal signature not required
25
Presence of witnesses: UPC vs. most jdx
Most jdx require at least two witnesses
Most jdx: Testatory and witnesses must sign in presence of one another
UPC: Witnesses must sign within reasonable time of signature by testator
26
Traditional vs. modern approach of "in the presence" for will signing
Traditional: "line of sight" (must be in same room)
Modern: "conscious presence" (must be aware, even if cannot directly see)
*UPC adopts modern view ONLY if will is signed by another person on testator's behalf
27
Interested witness CL vs. Purge
An interested witness has a financial interest in the will
CL: Interested witnesses not competent
Purge theory (many states): interested witnesses do not invalidate will, BUT probate court will purge any gains in excess of intestate succession baseline.
Purge exceptions: Do not purge gain if 1) if two other disinterested witnesses OR 2) interested witness would take share under intestate AND takes lesser of intestate share
28
Does UPC observe interested witness doctrine?
No, abolished
29
Must testamentory intent be present?
YES, at time of signing
30
Failure to satisfy formalities (CL v. UPC)
CL (majority): Strict compliance required
UPC (minority): substantial compliance required, CCE for intent can establish formality
31
Holographic Wills requirements for legitimacy
TO be valid, must be SIGNED
Does NOT need to be dated
32
Must codicil be in same form as will?
NO
Same formalities required, but a formal will can be amended with holographic codicil, and vice versa
33
Types of Will Substitutes (5)
Joint Tenancy
Revocable Trust
Pour-Over Will (clause that 'pours over' some assets into inter vivos trust)
POD (Payable On Death) Contract
Deed (requires present intent to convey to qualify as will)
34
Is a will ambulatory?
Yes! Can be altered or revoked any time until testator's death
In whole OR in part
35
Three ways to revoke a will
1) subsequent instrument
2) physical act
3) operation of law
CANNOT be oral
CAN be partial or entire
36
Subsequent instrument
Express revocation: later writing expressly revokes prior will
Implied revocation: later writing inconsistent with prior will. If it is VALIDLY EXECUTED, the later document controls
37
Distinguish codicil from new will?
If original will has residual gift and later writing does not --> probably a CODICIL
If original will has no residuary gift and later writing does --> probably a NEW WILL
38
Physical act
A testator may revoke by burning, tearing, or crossing things out
Majority: words, including signature, must be destroyed to invalidate
UPC: Destructive act only needs to affect some part of will (corner is fine)
*Destruction of signed original or duplicate presumptively destroys all copies
39
Lost wills
When we know a will exists but cannot find it when testator dies (or is found mutilated), creates REBUTTABLE PRESUMPTION of destruction by physical act
Burden on proponent to show will's existence by CCE
40
Can duplicate originals or copies of wills be admitted if original will is lost?
Duplicate original (another version that is signed and attested): YES
Copy: NO
41
Operation of law
In most jdx, divorce revokes all will provisions in favor of former spouse UNLESS evidence that testator wanted divorced spouse to take share
UPC invalidates gifts not just to ex-spouse, but to ex-spouse's relatives
42
Does re-marriage revoke a will?
No, subsequent marriage does not revoke will because surviving spouse can take elective share
43
Third-party revocation
Okay if 1) at testator's direction and 2) in testator's conscious presence
44
What happens to codicils when WILL revoked
What happens to will when CODICILS revoked
If will revoked, attached codicils ALSO revoked
If codicils revoked, underlying will REVIVED in its original form
45
Republication
UPC Majority rule does NOT recognize automatic revival of a revoked will
If second will revoked, testator needs to re-execute first will
Revival occurs if new will shows testator INTENDED previous will to take effect
Extrinsic evidence to revive admissible for physical act destruction
46
Dependent Relative Revocation
Safety valve for testators who revoke on basis of a mistake in law or fact
This invalidates mistaken revocation and DOES revive earlier will
Analysis: but for mistake, testator would NOT have revoked original will
47
Plain Meaning Doctrine
Courts give words in wills plain meaning UNLESS will states otherwise by defining terms
48
Incorporation by reference
Will may incorporate document outside will itself if
1) document exists at time of execution
2) testator intends for document to be incorporated
3) document is described with sufficient certainty to be identified
UPC exception: does not need to exist at time of execution if only DISPOSES OF tangible personal property
49
Acts of independent Significance
Testator can dispose of property based on act or event unrelated to will
This applies to all acts occurring in the future (e.g. possible births/deaths/marriages)
50
Lapse at CL
CL: Testamentory gifts lapse (fail) if beneficiary dies. They would be dumped into residuary gifts
51
Anti-lapse statutes
Provide alternative for lapsed gifts
Must be 1) protected relationship (relative) and 2) survived by issue
If these requirements are NOT met, CL applies and gifts go to residuary
52
Class gift member death rules
CL: If member's gift lapses, only surviving members (rest of class) shares that member's gift
UPC: If anti-lapse statute applies, then ISSUE of pre-deceased member will take
If lapsed member NOT covered by anti-lapse statute, CL rule controls and rest of class members share gift
53
Abatement
If estate doesn't have sufficient funds, gifts will be abated in specific order
Hierarchy (from first to last to go):
Intestate
Residuary gift
General Gift (gift satisfied from general assets)
Specific Gift (particular piece of property)
Note: demonstrative gift (general gift from particular source) is treated as specific when enough info provided
54
Ademption by extinction
When will makes devise of property, but piece of property no longer in estate at time of death
Traditional (identity theory): extinct, devisee takes nothing
UPC (intent theory): If testator's intent suggests ademption was intentional, you can take specific property that is substitute OR monetary value
55
Ademption by satisfaction
Applies when specific or demonstrative gift given in whole or part through inter-vivos transfer
Testator must 1) intend for gift to adeem and 2) intent must be supported by writing
56
Types of ambiguities
Latent: NOT visible on face of will (e.g. "my brother" but not clarifying which one)
Patent: Visible on face of will (e.g. typos/inconsistencies in address number)
57
Traditional vs. modern treatment of ambiguities
Traditional: extrinsic evidence only admissible for latent ambiguities, not patent
Modern: Most courts allow latent AND patent ambiguities to be resolved with extrinsic evidence
58
Mistakes in will writing
Courts are unforgiving if you e.g. accidentally write wrong cousin's name
NOTE: this is not mistake of fact or law, this is just error
59
Rights of surviving spouse ( money property etc)
Social security + pension
Homestead exemption
Personal property set asides
Family allowance (for expenses during probate)
Elective share
60
Spousal elective share
Forced share that a surviving spouse may elect to take, which will change gifts to other beneficiaries
UPC: Forced share is 50% of decedent's AUGMENTED estate (property from before marriage + property acquired during marriage) which is greater than community property
61
Waiver by surviving spouse
Surviving spouse can waive right to elective share if 1) in writing 2) after fair disclosure of contents and 3) represented by independent counsel
62
Advancements
Lifetime gift to child that is treated as satisfying part or all of intestate share
CL: lifetime gift PRESUMED to be advancement, child has burden of showing it was outright gift
UPC: gift is advancement only if 1) declared by decedent in contemporaneous writing or 2) writing indicates gift should be taken into account in computing
63
Hotchpot analysis
How to calculate advancement
1) ADD value of advancement BACK into intestate estate
2) DIVIDE resulting estate by number of children taking
3) DEDUCT child's advancement from his intestate share
64
May a person intentionally disinherit his children?
Yes lmao
65
Unintentional disinheritance
When testator has a child after executing a will and does not amend
1) If testator had NO children when will was executed, omitted child takes her INTESTATE share
2) if testator had children when will was executed, and property given to at least one of those children, omitted child takes EQUAL SHARE from portion of property already devised to other kid(s)
66
Slayer rule
Beneficiary who murders decedent is BARRED from taking under decedent's will and is treated as if he PREDECEASED testator
Does not apply for involuntary manslaughter or self-defense--only intentional murder
Does NOT apply if you kill decedent's spouse/family
UPC: allows killer's ISSUE to take, if relevant
67
Disclaimer of gift by heir
A person may disclaim a gift if
1) in writing, signed, and filed with court
OR
2) declared to person in charge AND identifies decedent, interest being disclaimed, and extent of disclaimer
TIMING: Must disclaim within 9 months of decedent's death
68
Elder Abuse
Someone convicted of financial exploitation, abuse, or neglect of elder under her care cannot inherit from that person
69
Who has standing to challenge validity of will? + SOL
Only interested party (one who would receive financial benefit under will OR would take under intestate succession but doesn't under will)
Must file a contest claim within 6 months after will is admitted to probate
70
General testamentory capacity: what must be shown to challenge
Person challenging will (contestant) bears burden of proving that the testator lacked capacity at time of EXECUTION (the 'when')
Can show that testator lacked ability to know:
why: the nature of the act
what: nature of property
who: objects of his bounty (people)
how: plan of disposition
71
Insane delusion
False belief that testator adheres to in spite of reason and evidence to contrary, when he DOES have general capacity but is delusional in some belief
Objective test:
Measure the delusion against actions of RATIONAL PERSON in same position
If belief is insane delusion, rational person could not agree
Causation: must show but-for causation that delusion caused the testamentory disposition
72
Undue influence
A coerced relationship + allegations that third party controlled testator's decisionmaking
Causation matters!
Elements: 1) susceptibility 2) motive 3) opportunity 4) causation
73
Proof of undue influence
Contestant bears initial burden of showing:
1) beneficiary received substantial benefit
2) beneficiary had CONFIDENTIAL professional relationship (e.g. attorney/physician/priest) with testator
3) Testator had WEAKENED intellect
Upon this showing, presumption of undue influence created, and burden shifts to third party to show by preponderance that no undue influence existed
If undue influenced--treated as if predeceased
74
Beneficiary Fraud elements
Beneficiary made misrepresentation with
1) intent to deceive testator
2) with purpose of influencing testamentory disposition
Contestant bears burden
75
Fraud in the inducement
Misrepresentation causes testator to make different will (e.g. beneficiary promises to give money to testator's child)
76
Fraud in the execution
Misrepresentation as to character or contents of the will (e.g. telling a blind person that the will says a different name)
77
Remedy for fraud
Constructive trust
78
Forfeiture clauses
In terrorem: no-contest clause to dissuade party from suing about his share
UPC: Clause unenforceable if beneficiary had probable cause to challenge
So, if NO probable cause, forfeiture clause IS enforceable
79
Probate vs. non-probate property
Probate: passes by will or intestate succession
Non-probate property transfers by instrument OTHER THAN will, including
Deed
Trust
Joint tenancy
POD Contract
80
Probate purpose/role
-Protecting and satisfying creditors
-Quieting contested titles and transferring titles
-Protect testator's interests against fraud/undue influence
-efficiently handling will contests
81
Probate filing under UPC - statute of limitations and notice
Must be brought within 3 years of death (afterward, presumption of intestacy)
Party requesting probate can choose formal or informal notice
82
Creditor Non-claim statute
Bars creditor from making claim on estate after certain period of time elapses, after which point claim is BARRED
Personal representative must provide notice to creditors of estate
83
Seven classes of creditors (most to least important)
1) Administrative expenses
2) medical and funeral expenses
3) family allowances
4) taxes
5) secured claims
6) judgments against decedent
7) all other claims
84
Personal representative
Person who acts on behalf of estate during probate
If appointed by court: administrator
If named in will: executor
85
Duties of personal representative
-inventory and appraise estate
-locate and contact interested parties, including creditors
-satisfy debts, including taxes, burial expenses, and support
-close estate
Obligations: loyalty and care, CANNOT engage in self-dealing (but gets paid from estate)
86
Priority of choice for personal representative
If not named, priority is:
1) surviving spouse who is devisee
2) other surviving devisee
3) surviving spouse (if not devisee)
4) other heirs
5) 45 days after death: any creditor
87
Power of appointment
ability of decedent (donor) to select individual (donee) to dispose of certain property under the will
Power is personal to donee
Types: General and special
88
General power of appointment re donee power
No conditions or restrictions on donee's power
Donee can appoint herself or one of her creditors as owner of property
If she fails to exercise power --> property reverts back to owner's estate
89
Special power of appointment
Donor can specify certain groups or individuals as objects of donee's power to LIMIT the power
90
Power of attorney
Authority to act on another's behalf in legal or business matter
must be 1) in writing 2) signed 3) dated
91
General POA
covers all affairs during period of incapacitation
92
Special POA
limits authority to specific subject matters or business details
93
Advance health care directives v healthcare POA
Living will: dictates the care that individual wants, agent must see that directive is enforced
Durable POA for healthcare: appoints agent to stand in principal's shoes and make medical choices for them
94
May putative spouses collect inheritence?
Yes, if marriage is not valid but one party believes it is valid in good faith, the spouses are putative and qualify for inheritance
95
When may non-marital child collect from father?
CL: Never
Modern: Cannot inherit unless
1) father married mother
2) father held child out as own
3) paternity proven CCE after father's death
4) paternity proven during father's life by preponderance
96
When no surviving spouse or issue exists, who is property distributed to?
Decedent's ancestory (parents, grandparents, etc) or more remote collateral relatives (cousins, aunts, etc.)
97
Handwriting in holographic wills: CL v UPC
All mateiral provisions MUST be handwritten
CL: Any markings invalidate the will
UPC: only material provisions must be in testator’s handwriting
98
Holographic wills requirement for showing intent
CL: Look for words suggesting intent
UPC: Extrinsic evidence to establish intent allowed
99
Republication by codicil
A codicil republishes a will as of the date of codicil
Valid codicil MAY correct initially invalid will
100
Conditional will
Testator may write a will that says will is to take effect only if certain condition occurs
Courts do NOT look favorably at conditional wills
101
Conflict of laws: validity determined by which jdx ?
CL: determined under law of state where testator domiciled at time of death
UPC: Determined 1) under law of place executed or 2) if valid wher etestator domiciled, has residence, or is a national
102
Conflict of laws: Personal Property
Law of place where testator was domiciled at time of death governs
103
Real property
Law of the place where property is located governs
104
Integration
Under doctrine of integration, will consists of all pages 1) present at execution and 2) intended to be part (shown by physical connection/staples or ongoing nature of language)
105
Stocks in will: are shares after wills execution included ? Are dividends included ?
UPC: stocks given in will include additional shares obtained since time of execution
Beneficiary will also receive dividends
106
Life insurance Ks
Policy proceeds payable to beneficiary upon death
Usually owner can change beneficiary name without their consent, so long as aligned with K policy
Change of beneficiary by will almost NEVER permitted
107
Survivorship clause: UPC v. CL
CL: If beneficiary who is supposed to survive testator dies first, anti-lapse does NOT apply
UPC: Even if express survivor requirement, courts may still give gift to beneficiary's issue unless extrinsic evidence of contrary desire
108
Where is the executor of an estate domiciled?
NOT his actual domicile--the same state where the DECEDENT is domiciled
