Flashcards in Wills Deck (153):
Three most common ways in which property of a GA decedent passes upon death:
2. Testate: Will
3. Non-probate transfers
No valid will or non-probate device: Property passes to:
D's heirs at law.
No valid will or non-probate device: Probate court appoints:
the administrator of the estate.
No valid will or non-probate device: Administrator is selected by:
No valid will or non-probate device: If the heirs cannot reach a unanimous agreement on the administrator:
Probate ct appoints as administrator the person who best serves the estate's interests.
No valid will or non-probate device: An order for 'No Administration Necessary' may be issued if : (3 factors met)
1. Consent is given by all heirs.
2. There are no debts of the estate or any creditors consent to the order; and
3. The heirs sign and have notarized an agreement as to the distribution of property (which is attached to the petition.)
Testate Administration: Decedent's Will: Probate ct appoints:
the executor who is named in T's will.
Testate Administration: Decedent's Will: If no executor is named in the will the ct will appoint:
an administrator with will annexed.
Testate Administration: Decedent's Will: Executor, Administrators, etc. are referred to generally as:
Forms of probate: (2)
1. Common form
2. Solemn form
Probate in common form may be:
granted immediately, without notice, but is not conclusive for 4 years.
Probate in solemn form requires:
notice to heirs, propounders, and beneficiaries of other wills, etc.
Probate in solemn form is effective:
A will must be probated within:
five years of the time that any other petition is filed concerning the estate. (e.g. the petition for appt of an administrator or petition for year's support, etc.)
If an individual is in possession of a decedent's will it must be:
filed in the probate ct. Even if it is not probated.
A Year's Support: Available to the decedent's:
SURVIVING spouse and.or the MINOR children OF THE DECEDENT.
A Year's Support: Available in both cases of:
Intestacy and when there is a will.
An award of A Year's Support takes precedence over:
ALL DEBTS OF THE ESTATE
Support property passes in:
fee simple. Spouse/kids don't have to give back any portion that is not used up at the end of the year.
Spouse/Minor Children are awarded the amount that they request in their petition unless:
an objection is filed.
If an objection against the spouse/minor children's request for a year's support is filed then:
a hearing is held and the amount of the award is determined by the PROBATE JUDGE and is based on the spouse/kids standard of living and any other available means of support they may have.
A Year's Support: Separate awards may be granted to the spouse and children and separate awards are required when:
the surviving spouse is not the parent of the surviving minor children.
All personal representatives are under the jurisdiction of:
the Probate ct of the county in which D was domiciled on the date of death. Alternatively for a D who was domiciled outside of GA, the county in which real property owned by D is located.
Powers and duties of personal representatives: (6)
Distribute the estate to heirs and beneficiaries
Inventory - file w/ court and heirs or beneficiaries
Permission to sell estate property
File annual and final return
Assemble estate's assets (and post bond)
Notice to creditors and pay off debts after 6 mo.
Steps for distributing estate to heirs and beneficiaries:
1. Executor takes TITLE to D's property when appointed.
2. Executor transfers title to the beneficiaries with an EXECUTOR'S DEED.
3. If an individual dies intestate, title to RP descends to the D's heirs subject to being divested by the appointment of an ADMINISTRATOR.
Intestate share of surviving spouse and lineal descendants: If D is survived by spouse but no lineal descendants then:
Surviving spouse takes the entire estate.
Children, grandchildren, great-grandchildren.
Intestate share of surviving spouse and lineal descendants: If D is survived by spouse and lineal descendants then:
The spouse takes equally with the children, but never less than 1/3 of the estate.
Intestate share of surviving spouse and lineal descendants: If D has no surviving spouse but has surviving lineal descendants then:
the lineal descendants take PER CAPITA and PER STIRPES
Intestate share of surviving spouse and lineal descendants: If D dies with no surviving spouse or lineal descendants then:
D's parents share equally. No surviving parents? D's siblings share the estate with the issue of deceased siblings taking that sibling's share per stirpes.
Intestate share of surviving spouse and lineal descendants: SPECIAL RULE: If D's siblings are set to take from D, but they have all predeceased D, then:
D's estate is divided EQUALLY among any surviving nieces and nephews.
Non-Marital Children: A child can always inherit from:
his mother, unless parental rights have been terminated.
Non-Marital Children: A child born out of wedlock can only inherit from his biological father if:
C M A C G GC Cam
Genetic testing - 97% probability (rebuttable presumption)
Court Order entered that recognizes paternity
Clear and convincing evidence that he is the father
Affidavit, Sworn - signed by father (or if he willingly signed birth certificate)
Marriage - if the parents marry later - automatically legit.
Non-Marital Children: If there is no other way of procuring genetic material a court may order:
an exhumation of D's remains.
Non-Marital Children: Can step-children inherit from step-parents?
Who can adopted children inherit from intestate?
Adoptive parents but NOT from biological parents that were still living when the adoption took place.
Equitable adoption (virtual adoption): Occurs if there is:
an unperformed K to adopt. For example if adoption proceedings had begun by D died before adoption was formalized, then child may claim virtual adoption.
Is the mere existence of a de facto parent child relationship enough to find a virtual adoption?
No. There must be an agreement to adopt b/t parents and the one who plans to adopt.
Order of intestate distribution: Go down the list until you find someone who can take.
1. Surviving spouse and lineal descendants.
2. Parents or surviving parent.
3. Siblings and their descendants.
6. First cousins
7. Nearest kin.
Advancement of intestate share:
any LIFETIME transfer of money or property by a donor to someone who is expected to be that donor's heir, given with the intent that the five be applied against any share that person inherits from the donor's estate.
A lifetime gift will be treated as an advancement only if there is:
1. Writing signed by the donor w/i 30 days of making the transfer, or
2. A written acknowledgement by the recipient signed at any time.
Procedure if an advancement is found:
The gift's value when given is added back into the estate for purposes of calculating shares
THEN subtracted from the recipient's share.
The heir need not return the advancement if it is in EXCESS of the value of her intestate share.
Doctrine of advancements only applies to:
Similar doctrine called Ademption by Satisfaction apples to wills.
Simultaneous death: When passage of title to property depends on priority of death and there is INSUFFICIENT EVIDENCE that the persons have died other than simultaneously then:
the property of each decedent is disposed as if he had survived the other, absent a contrary provision.
Georgia has ______ adopted the 120 hour rule.
Simultaneous death: Wills:
A's will is treated as if A survived B. B's will is treated as if B survived A.
Simultaneous death: Intestacy:
For A's property A is presumed to have outlived B. For B's property B is presumed to have outlived A.
Simultaneous death: Life insurance: If A is named as primary beneficiary on life insurance policy insuring B's life and A's children are named as secondary beneficiaries. Then under simultaneous death:
A is deemed to die before B (the insured) , so the life insurance proceeds are paid to A's children (the secondary beneficiaries.)
Simultaneous death: Joint tenancy w/ right of survivorship: If A and B own property as JT with Right of SS, one half of the property passes as though A survived (as part of A's estate) and the other half passes as though B survived (as part of B's estate) They are treated as:
tenants in common.
Simultaneous death: Survivorship clauses: Example: "To my husband J PROVIDED HE SURVIVES ME BY 30 DAYS." If wife had this provision, then:
J WOULD NOT be deemed to have survived wife unless he survived by 30 days.
Public policy restrictions on inheritance: When an person kills another FELONIOUSLY AND INTENTIONALLY; the slayer shall not take from the victim's estate; rather, the slayer is treated as if:
she predeceased the victim. With the slayer's descendants taking the portion that would have gone to the killer.
For the purposes of probate law a killing is felonious and intentional if:
it would constitute murder, felony murder, or voluntary manslaughter under GA law.
For the purposes of probate law in the absence of a conviction in a criminal court - or a guilty plea - the nature of the killing may be established by:
clear and convincing evidence.
A heir or beneficiary may renounce his interest provided the renunciation does three things:
1. Is accomplished BEFORE the acceptance of property,
2. is accomplished in writing, and
3. is filed with the ct. or the personal representative w/i 9 months of the death of the decedent.
Renunciation may be:
in whole or in part.
Renunciation results in property passing as if the renouncing party:
predeceased D unless the will provides otherwise.
The renunciation of a life estate:
accelerates the remainder.
A CONTRACT to make a will, not to revoke a will, or to die intestate must be:
in writing, signed by the party against whom the action is being taken.
Remedies on breach of K to make a will, not to revoke a will, or to die intestate:
2. Specific performance
3. Quantum Meruit
Note: Breach does not occur until promisor's death, therefore SOL doesn't begin to run until promisor's death.
Single instrument executed on the SAME PIECE OF PAPER by two or more testators and intended to be the will of each.
Probate of joint will:
Goes to probate for the first time when the first testator dies and then is probated again upon the death of the second testator.
Joint wills are usually executed to:
make testamentary dispositions of joint property.
Mutual wills are:
separate wills of two or more testators that make reciprocal ("mirror") dispositions of each testator's property.
Joint and mutual wills are not considered wills in which the survivor has promised not to revoke unless:
they are based on a written express K that is signed by the party against whom the action is brought.
GA Will Executions Requirements: (3)
1. Will must be in writing.
2. T must SIGN the will with a FULL INTENDED SIGNATURE.
--Proxy signatures acceptable if it's at T's request AND in T's presence.
3. T must sign in the presence of two attesting witnesses OR T must acknowledge his or her signature to the witnesses.
--Witnesses must sign in T's presence but are not required to sign in the presence of each other.
What is a full intended signature for the purpose of a will?
Any mark, initials, or 'X' will serve as a signature if so intended.
Are holographic (unwitnessed) wills recognized in GA?
No. Not even handwritten wills.
Where another person signs for T at T's request and in T's presence.
Witnesses must sign in:
T's presence - but not necessarily the presence of each other.
Execution of GA Will:
1. In writing
2. Signed by T, and
3. Attested by 2 or more competent witnesses
Interested witnesses rule:
If a witness to the will is also a beneficiary under the will, he is still competent to be a witness, but may not take the gift under the will unless there are at least two other subscribing witnesses who are not interested.
Six Grounds for Will Contest:
1. Defective execution
2. Valid revocation
3. Lack of Testamentary Capacity
4. Undue influence
Grounds for Will Contest: Defective Execution:
One or more of the requirements for execution is missing.
Valid revocation: (3 ways)
1. operation of law,
2. subsequent instrument, or
3. physical act.
Grounds for Will Contest: Lack of testamentary capacity:
T was under the age of 14 or lacked the mental capacity req'd at the time of execution.
What does it take to have mental capacity to make a will:
T must understand the nature of her act, the extent of her property, who the natural objects of her bounty are, and the effect of the will.
Grounds for Will Contest: Undue influence:
1. Influence was exerted on T that
2. overpowered the mind and free will of T, and
3. resulted in a testamentary disposition that
4. would not have been executed but for the influence.
The burden is shifted to the will proponent if the beneficiary was in a confidential relationship with T and was active in procuring the will.
Grounds for Will Contest: Fraud:
1. A misrepresentation made as to the nature of the contents of the instrument (fraud in the factum), or
2. T is induced into making a will or gift by misrepresentations of fact that influence her motivation (fraudulent inducement)
Grounds for Will Contest: Mistake:
1. T is mistaken as to the nature of the instrument (e.g. thought it was a POA), or in some cases,
2. T is induced into making a will on the mistaken belief that a child is dead.
Attestation clauses are not required but provide a rebuttable presumption that:
all of the formalities recited were performed. Presumption can be rebutted by clear proof to the contrary.
Self proving wills: Created: When and How
At the time of its execution or at any subsequent date during the lifetime of T. Separate affidavit signed by T and the witnesses and notarized.
Self proving wills eliminates:
the need to produce the witnesses in court years later when the will goes to probate.
Three types of revocation:
1. Valid subsequent instrument
2. Physical act
3. Operation of law.
Revocation: Physical act:
Requires an act of destruction with the intent to revoke.
NO PARTIAL revocation in GA. The physical act must affect the material portion (the writing) of the will.
Revocation: Operation of Law: (3 ways)
1. Birth or adoption of child
2. Subsequent marriage
3. Divorce or annulment
Revocation: Operation of Law: Birth or adoption of child:
If a child is born to or adopted by T AFTER THE EXECUTION OF THE WILL, and the will makes no reference to the child, then the child receives her intestate portion of the decedent's estate.
Revocation: Operation of Law: Subsequent marriage:
If T marries AFTER THE EXECUTION OF THE WILL, the new surviving spouse is entitled to an intestate portion from the decedent spouse's estate.
Any provision in the will for the new spouse will be counted against his intestate share. If the will bequeaths property greater than the intestate share the spouse may take only the property left to her under the will. The intestate share will be paid from the residue of the estate.
Revocation: Operation of Law: Subsequent marriage: AVOIDING revocation:
it must appear in CLEAR AND UNMISTAKABLE LANGUAGE that T contemplated the event of a future marriage.
Revocation: Operation of Law: Divorce or annulment:
If T's marriage ends in divorce or annulment AFTER the will is executed, all provisions in favor of the former spouse are revoked. The former spouse is treated as having predeceased.
Lost wills: If the will is traced to the possession of T and cannot be found at T's death then:
a rebuttable presumption arises that the will was revoked by T through physical act.
Presumption must be rebutted by a preponderance of the evidence.
To probate a lost will where the presumption of revocation has been rebutted the proponent must prove:
proper execution and CONTENTS.
Partial physical act revocation:
Partial revocations may only be made:
by formal writing in the form of a codicil or subsequent will. Not by a physical act.
Proxy revocations by physical act are proper when: (3 elements)
1. At T's direction,
2. In T's presence, and
3. W/ T's INTENT to revoke.
Occurs when a codicil or valid subsequent will does not EXPRESSLY revoke an earlier will, but nonetheless contains inconsistent provisions.
What happens when there is implied revocation with inconsistent provisions?
To the extent possible the provisions in both wills are read together and both provisions given effect. If there is a complete inconsistency, the later document's provisions are given effect.
If T destroys the revoking instrument wishing to reinstate the old will is there automatic revival?
No. First will shall only be revived if all the SURROUNDING CIRCUMSTANCES indicate that T intended , by revoking the revoking instrument to revive the first will.
Dependent relative revocation:
allows the ct to disregard a physical act of revocation if that revocation was based on a mistake of law or fact.
What's the point of dependent relative revocation?
To fix a mistake that, if allowed to continue, would result in intestacy, something T would not have wanted.
Two ways to republish revoked will:
1. By a codicil properly executed and annexed to revoke a will, or
2. by any writing executed with all of the formalities required for a will.
Mistake appears on the will itself.
More than one item meets the description in the will allowed for probate.
When there are patent and latent ambiguities:
extrinsic evidence is allowed
Courts will _____ admit evidence to correct plain language.
Cts. WILL admit evidence of a mistaken omission by a parent in the parent's will if the parent believed:
the child to be dead and hence does not provide for the child in the will.
In GA if a child is omitted from a will b/c her parent thinks her dead what is her share if there are no other children?
Her intestate portion.
In GA if a child is omitted from a will b/c her parent thinks her dead what is her share if there are other children?
Omitted child will receive a share in proportion to what the other children have received
Intent of omitted dead child statute is to treat the children of T:
To incorporate extrinsic documents into a will by reference: (3 things)
1. The writing must have been in EXISTENCE at the time the will was EXECUTED.
2. The will must manifest intent to incorporate the document.
3. The will must describe the doc sufficiently to permit its identification.
Acts of independent significance:
If there is an event that has a lifetime significance other than that recited in the will, it may allow for a valid transfer under the will even though not specified.
Ex. "The car that I own at my death to Tim." Car may continue to change since it has independent significance.
If T leaves a valid will that will bequeath property to a beneficiary who dies during T's lifetime, the anti-lapse statute will distribute that property to the pre-deceasing beneficiary's issue instead, thereby preventing lapse.
Does the pre-deceasing beneficiary have to be a blood relative of T for the anti-lapse statute to apply?
Anti-lapse only applies to:
GA anti-lapse statue is applicable if: (2 things)
1. The pre-deceased beneficiary is SURVIVED BY ISSUE and these issue ALSO SURVIVE THE TESTATOR.; and
2. There is no contingency language in the will preventing application of the statute, such as: "Blackacre to B *if* she survives me."
What if the GA anti-lapse statute is inapplicable?
1. The lapsed property becomes part of the residuary estate.
If the lapsed gift is the gift of residue and there are no other surviving residuary beneficiaries then:
the property passes to T's intestate heirs.
In GA, lapse of residuary gift passes to:
the other residuary beneficiaries. (Under CL it would pass to intestate heirs.)
Anti-lapse: In case of a felonious or intentional killing, or divorce the issue of the beneficiary who is treated as having predeceased may take under anti-lapse only if:
that issue is also an issue of the testator.
The process of reducing testamentary gifts in cases where estate assets are not enough to pay all claims against the estate and satisfy all bequests and devises.
In GA, T's intent to the order of abatement:
In GA, absent an expressed intent by the T, gifts abate in the following order:
1. Debts by the terms of the will
2. The residuary estate
3. General testamentary gifts, which abate pro rata
4. Demonstrative testamentary gifts, which abate pro rata, and
5. Specific legacies.
Legacies and devises:
also known as testamentary gifts. Fall into four categories depending upon the estate source from which T intends the gift in question to be satisfied.
Classes of legacies and devises: (4)
Legacies and devises: Specific:
A gift of SPECIFICALLY DESCRIBED PROPERTY that can be satisfied only by receipt of the particular property described.
Legacies and devises: Demonstrative:
A gift of a GENERAL AMOUNT that identifies a particular asset as the primary source of payment.
Legacies and devises: General:
One that does not direct delivery of any particular property, is not limited to any particular asset, and may be satisfied out of any property of the same general character belonging to T's estate.
Usually a bequest of a dollar amount payable out of the general assets of the estate, not from a particular source.
Legacies and devises: Residuary:
A gift of the estate remaining after the expenses and the other gifts have been paid.
Ademption by extinction:
Generally where property is the subject of a specific legacy has been given away, lost, sold, or destroyed during T's lifetime the gift is 'adeemed by extinction'. (It fails.) T's intent is immaterial.
Ademption by extinction: Interest in property: If the bequest is in T's interest in property rather than the property itself the gift may not be adeemed if:
T still retains some interest at death.
Partial ademption applies when:
e.g. T executes a will that devises a large tract of land and later sells a portion of that tract. Ademption applies to the portion of the property not in the estate, but the remaining portion owned by T at death passes to the beneficiary.
Ademption may not apply when property can be substituted for other of like character, so long as the substance:
remains the same and only the form has changed the the gift may not fail.
Ademption by satisfaction: If T so intends, a testamentary gift may be satisfied in part or whole by a lifetime transfer from T to B after will is executed. A gift will not be treated as a satisfaction unless:
1. T provides so in the will or a separate writing signed w/i 30 days of the transfer, or
2. The recipient acknowledges it in writing.
increases or additions to the property described in the will that occur after the will is executed.
Accessions to specific gifts that occur AFTER T's death go to:
Accessions to specific gifts that occur BEFORE T's death are distributed as follows: Income collected from property goes:
into the general estate.
Accessions to specific gifts that occur BEFORE T's death are distributed as follows: Cash dividends on stock go:
into the general estate.
Accessions to specific gifts that occur BEFORE T's death are distributed as follows: Stock acquired by stock dividends goes:
into the general estate.
Accessions to specific gifts that occur BEFORE T's death are distributed as follows: Stock acquired by a stock split goes:
to the specific legatee, because the property has merely changed form.
Accessions to specific gifts that occur BEFORE T's death are distributed as follows: Improvements to real property go:
to the devisee.
Ademption may not apply to certain transactions w.i 6 months of T's death:
If the property is lost, stolen, destroyed, or damaged and was covered by insurance, the beneficiary is entitled to the remaining unpaid insurance proceeds, if any, as well as a pecuniary gift equal to the amount of proceeds already paid.
Exoneration: Absent T intent to the contrary GA follows the rule that RP and personal property SPECIFICALLY BEQUEATHED carries a REBUTTABLE PRESUMPTION that:
T intended the beneficiary to take the property free of any encumbrances.
Where does money for exoneration come from?
The intestate or residuary estate.
Evidence for T's capacity or incapacity must relate to the circumstances:
at the time the will was EXECUTED or shortly before or shortly thereafter.
Can insane people have testamentary capacity.
Yes. Lucid moments.
Fraud voids the will and a:
constructive trust should be imposed.
No contest clauses: (In Terrorem Clauses)
A clause that states that if a person who takes under the will subsequently contests the will, then this person loses the bequest.
Are no contest clauses valid in GA?
Yes. As long as there is a direction in the will as to where the property will go in the event of the contest.
How do cts feel about no contest clauses?
They generally don't favor them and will attempt to avoid them by characterizing the challenge as something other than a "contest"
What issues are administrative and not considered contests?
Appointments, omitted spouses and children.
An individual is presumed dead for probate purposes after:
An individual is PROVED dead for probate purposes after:
Death may be proved at any time if an individual has been exposed to:
a specific peril that likely resulted in death (WTC)