Wills Flashcards
1
Q
What is the first step in the general approach to wills?
A
Determine whether there is any non-probate property
Non-probate property includes items like deeds, trusts, joint tenancy property, or payable on death accounts.
2
Q
What happens if there is no valid will?
A
Apply the rules of intestate succession
3
Q
Define heirs in the context of intestacy.
A
Heirs are persons entitled to property who take by descent (inherit) from the intestate decedent
4
Q
What is meant by ‘issue’ in intestacy?
A
Lineal descendants, including children, grandchildren, and great-grandchildren
5
Q
What share does a spouse receive if there are shared descendants and issue of spouse?
A
$225k + 50%
6
Q
What is the definition of ‘after-born children’ under intestacy laws?
A
Children conceived before but born within 280 days of the husband’s death are presumed to be his issue
7
Q
What does ‘per stirpes’ mean in calculating shares?
A
Divide the property into the total number of children who survive or leave issue who survive
8
Q
What occurs if a decedent dies without heirs?
A
The property will escheat to the state
9
Q
What is the 120-hour rule regarding survival?
A
Requires clear and convincing evidence the heir survived the decedent by 120 hours if heir dies at or near the same time as the testator.
Without sufficient proof, heir will be deemed to have predeceased D.
10
Q
What is a testator?
A
A decedent who dies with a will
11
Q
What is required for a formal will to be valid?
A
Intent + writing + signature + witnesses
12
Q
What constitutes an interested witness in will execution?
A
One of the witnesses is also a beneficiary
13
Q
True or False: A handwritten will can qualify as an attested will.
A
True
14
Q
What is a holographic will?
A
A will that must be entirely in the testator’s handwriting and signed
15
Q
What is a codicil?
A
A testamentary addition to a will, executed with the same formalities as a will
16
Q
What is substantial compliance in the context of wills?
A
A document that substantially complies with formality requirements will be recognized as valid
17
Q
What types of property transfers avoid probate?
A
- Deed
- Trust
- Insurance policy
- Payable on death (POD) account
18
Q
What is the time limit for filing a will contest?
A
Within six months after a will is admitted to probate
19
Q
What are the grounds for contesting a will?
A
- Lacked capacity
- Insane delusion
- Undue influence
- Fraud
20
Q
What is the effect of proving undue influence in a will contest?
A
The influencer will be treated as having predeceased the testator
21
Q
What is the rule regarding revocation of a will?
A
A will may be revoked in whole or in part
22
Q
What is the method of revocation by physical act?
A
The testator commits a physical act with intent to revoke
23
Q
What does dependent relative revocation (DRR) entail?
A
A will or portion revoked on a mistaken basis of law or fact can be revived
24
Q
What is the purpose of incorporating by reference in a will?
A
To include an extrinsic document that existed at the time the will was executed
25
What happens when a beneficiary dies before the testator?
The gift may lapse unless anti-lapse statutes apply
26
What is the effect of anti-lapse statutes?
They save the gift if the predeceased beneficiary is a relative of the testator who leaves issue
27
What is the UPC's stance on anti-lapse statutes?
It applies the statute to non-probate transfers as well
28
What is the definition of a class gift?
A gift to a group, where if one member predeceases, the surviving members take
29
What do Anti-Lapse Statutes do?
They save the gift when a beneficiary dies before T.
## Footnote
Most states require the predeceasing beneficiary to be a relative of T, such as a grandparent, descendant of a grandparent, or a stepchild.
30
What is a Class Gift?
A gift to a class where the surviving members take if a class member predeceases the testator, unless the anti-lapse statute applies.
## Footnote
This ensures that the issue of the deceased class member may inherit.
31
Define a Specific Devise.
A gift of a specific item of property satisfied only with that item (e.g., 'my coin collection to A').
32
What is a General Devise?
A gift of property, usually cash, satisfied from general assets (e.g., '$10,000 to A').
33
Describe a Demonstrative Devise.
A gift of property or money to be paid from a designated fund (e.g., '$10,000 to be paid from the USA bank account').
34
What is a **Residuary** Devise?
A gift of the **leftover assets** in the estate (e.g., '…and the rest and residue of my property to A').
35
What does Ademption refer to?
A specific bequest of property that is no longer part of T's estate at death adeems.
36
Explain the Identity Theory in Ademption.
The gift is extinct, and the specific beneficiary takes nothing.
37
What is the Intent Theory in Ademption?
A specific bequest will adeem only if consistent with T's intent.
38
What are the beneficiary entitlements upon Ademption?
Beneficiaries are entitled to:
* Whatever is left of the specifically devised property
* The balance of the purchase price owing from the purchaser
* Any amount of condemnation award for the taking, to the extent unpaid upon death
* Property acquired from the foreclosure of a security interest on a specifically devised note.
39
What is the rule regarding liens and specific devises?
The specific devisee of encumbered property takes subject to the mortgage unless T specifically directs otherwise.
40
What does Satisfaction in the context of a devise mean?
T satisfies a devise in whole or part by an inter vivos transfer.
41
What is required for Satisfaction to be valid under UPC?
T's intent must be evidenced in a contemporaneous writing or the devisee must acknowledge the gift in writing.
42
What is the effect of an increase in securities upon a specific bequest?
Entitlement to the increase depends on whether it occurred before or after death and if the bequest was general or specific.
43
Do beneficiaries of general and specific bequests have different rights to dividends?
Yes, under Common Law, specific beneficiaries may receive additional shares from stock splits but not cash dividends, while general beneficiaries receive nothing before death.
44
What is the spousal support entitlement?
A spouse is entitled to Social Security, pension plans, personal property, homestead exemption, and family allowance.
45
In Community Property states, what does a spouse receive if there is no will?
The spouse gets the other half of the Community Property.
46
What is the Elective Share in non-Community Property states?
A spouse may elect to take a share (often 1/3) of the net probate estate in lieu of any gift under the will.
47
What is the Augmented Estate under UPC for a spouse?
The spouse may take a 50% share of the marital property portion of the augmented estate.
48
What are Omitted Children statutes?
They provide for children born or adopted after the will is executed who are not provided for in the will.
49
What is the effect of a disclaimer on succession?
One who disclaims a gift will be treated as having predeceased the testator.
50
What is required to establish the existence of a will contract?
The will must state the material provisions of the contract, the terms must be in a signed written contract, or the will must refer to the contract with extrinsic evidence proving the terms.
51
What are Joint Wills?
A single will intended to serve as the will for two or more individuals.
52
What is the purpose of probate?
To provide an orderly administration of a decedent's estate.
53
Who has jurisdiction over probate?
The county in which D was domiciled at death.
54
What is the order of abatement for gifts?
1. Intestate property
2. Residuary bequests
3. General bequests
4. Specific bequests.
55
Define Power of Appointment.
The authority given to a person (donee) by the testator (donor) to dispose of certain property.
56
What is a General Power of Appointment?
Not restricted; can be exercised in favor of the donee, their estate, or creditors.
57
What is a Special Power of Appointment?
Restricted to certain persons or groups; creditors cannot reach it absent fraud.
58
What is a Durable Power of Attorney for Healthcare?
Appoints an agent to make healthcare decisions in the event the principal becomes incapacitated.
59
What is the trigger fact for an increase in securities?
The trigger facts include stock splits, cash dividends, or stock dividends.
60
What is the issue regarding increases in securities?
The issue is whether the devisee is entitled to the increase in securities (dividends or distributions).
61
What is the analytical approach to determine entitlement to increases in securities?
Consider when the shares were distributed, whether the bequest is general or specific, and the nature of the increase.
62
What determines entitlement to increases in securities before death under Common Law?
A beneficiary of a general bequest is not entitled to dividends or shares issued before death; a specific bequest beneficiary is entitled to additional shares from a stock split or merger but not cash or stock dividends.
63
What is the UPC's stance on increases in securities before death?
Under UPC, both specific and general beneficiaries are entitled to additional shares from stock dividends or stock splits but not cash dividends.
64
What happens to increases in securities after death?
Any increase post-death goes to the specific beneficiary; a general beneficiary will only receive earned interest beginning one year after the testator's death.
65
What is the time limit for filing a will contest?
A will contest must be filed within six months after a will is admitted to probate.
66
Who has standing to contest a will?
Beneficiaries under the current or prior will have standing to contest the will.
## Footnote
Creditors, spouses of beneficiaries under prior wills, and pretermitted heirs cannot contest a will.
67
Are no contest clauses enforceable?
Yes, no contest clauses are enforceable unless the claimant has probable cause to contest.
68
What are the grounds for contesting a will?
Grounds include lack of capacity, insane delusion, undue influence, and fraud.
69
What must a claimant show to prove lack of capacity?
Claimant must show that at the time the will was made, the testator lacked the ability to know the nature of the act, the nature and character of his property, the natural objects of his bounty, and the plan of the attempted disposition.
70
What is an insane delusion in the context of will contests?
An insane delusion is when the testator operated under a belief not based in fact or reason.
## Footnote
A rational person in the testator's situation could not have reached the same conclusion.
71
What is required to prove undue influence?
The claimant must show exertion of influence, its effect on the testator's mind and will, and that but for the influence, the testator would not have made the will.
72
What presumption arises in cases of undue influence?
A presumption arises when someone in a confidential relationship with the testator participates in the will's execution and receives an unnatural gift.
73
What elements must be proven for undue influence?
Elements include susceptibility, motive, opportunity, and causation.
74
What happens if undue influence is proven?
The influencer will be treated as having predeceased the testator.
75
What must be proven to contest a will based on fraud?
Must prove misrepresentation by the beneficiary with intent to deceive, causation, and that the fraud occurred in the inducement or in the execution.
76
What is the rule regarding abatement of gifts in an estate?
When the assets of an estate are insufficient to pay its debts and satisfy the devises, the gifts abate in a specified order, unless the testator otherwise indicates.
77
What is the order in which assets abate?
1. Intestate property
2. Residuary bequests
3. General bequests
4. Specific bequests
78
What are the priorities for abatement within a category?
1. Abatement within a category is pro-rata.
2. Favor the spouse and relatives over other gifts in the same category.
79
Does non-probate property abate?
No, non-probate property (e.g., insurance policy, payable on death account) does not abate.
80
What is a Power of Attorney?
A legal document allowing one person to act on behalf of another.
81
What is the principal/agent relationship in Power of Attorney?
The principal (P) selects an agent to act on their behalf.
82
What are the types of Power of Attorney?
1. General: covers all affairs if the principal becomes incapacitated.
2. Special: limited to a specific function and duration.
3. Advanced Healthcare Directive: effective if the principal becomes incapacitated.
83
What is a Living Will?
A document dictating healthcare to be provided if the principal cannot make decisions.
## Footnote
The agent ensures the directive is enforced.
84
What is a Durable Power of Attorney for Healthcare?
It appoints an agent to make healthcare decisions if the principal is incapacitated.
85
What is the effect of a lifetime gift by D on a child's intestate share?
A lifetime gift by D advances the child's intestate share in whole or part.
## Footnote
Under common law, a lifetime gift is treated as satisfying all or part of the child's intestate share.
86
What does the UPC require for a lifetime gift to affect intestate share?
The UPC requires a contemporaneous writing by D or an acknowledgment by the donee indicating the gift was to be considered when determining the heir's intestate share.
87
What do omitted children statutes provide for?
Omitted children statutes provide for accidentally omitted heirs, allowing a child born or adopted after the will is executed to take an intestate share.
88
What is the presumption regarding omitted children?
The presumption is that a child born or adopted after the will is executed who is not provided for in the will may take an intestate share because the omission is presumed accidental.
89
What are the exceptions to the omitted child statute?
The omitted child statute does not apply if:
1. It appears from the will that the omission was intentional;
2. The testator had other children when the will was executed and left most or all of the estate to the other parent;
3. The testator otherwise provided for the child outside the will with intent it be in lieu of a testamentary gift.
90
What is a decedent who dies with a will called?
The decedent is called the testator (T).
91
What does a testator do?
A testator devises (disposes of real property) to a devisee and bequests (disposes of personal property) to a legatee.
92
What is the formula for an attested will?
Intent + writing + signature + witnesses = attested will.
93
Can a handwritten will qualify as an attested will?
Yes, if the formalities are met.
94
What is required for a signed writing to be valid?
It must be signed with intent by the testator (T) or by someone in his presence and at his direction.
95
Where must the signature be located to be valid?
The signature must be at the end to be valid in some states, or can be anywhere on the instrument under UPC.
96
What must the testator intend for the instrument?
The testator must intend the instrument to function as her will.
97
What are the capacity requirements for a testator?
The testator must be 18 or older and of sound mind.
98
How many witnesses are required for a will?
At least two witnesses are required.
99
What is the 'conscious presence' rule?
Presence is either 'line of sight' or 'conscious presence'; UPC applies this rule only when someone signs on behalf of T.
100
What happens if one of the witnesses is also a beneficiary?
At common law, the will was invalid; under UPC/majority, the will is valid.
101
What is the effect of having two disinterested witnesses?
If there are two other disinterested witnesses, the gift to the interested witness is not affected.
102
What occurs if there are not two disinterested witnesses in non-UPC states?
The gift will stand if the witness is an intestate heir; if not, the gift will be purged beyond the amount of her intestate share.
103
What presumption arises if a will is contested on grounds of fraud or undue influence?
The existence of an interested witness creates a rebuttable presumption that the testator was subject to undue influence.
104
What has the UPC done regarding the interested witness doctrine?
The UPC has abolished the interested witness doctrine.
