Wills

Question 1

Intestate

Answer 1

Decedent dies without a will
Decedent’s will denied probate
Deceden’ts will doesn’t dispose of all property

Question 2

Intestate share of surviving spouse w/ Descendants

Answer 2

It’s one half or one third, rest to descendants. But UPC says all to spouse if all the decsdendents from the same dude.

Question 3

Intestate share of surviving spouse w/o desscendants

Answer 3

Entire Estate

Question 4

Intestate distribution MAJORITY RULE - Per Capita with Representation

Answer 4

Property divided into equal shares at next generational level (unless all dead). That person then takes their equal share. For dead people at that level, it will pass equally to their issues at the next generational level

Question 5

Intestate distribution UPC AND MODERN TREND - Per Capita at Each Generation

Answer 5

Divide whatever is left among each generational level. Once it’s equally divided among and live and dead, then add back up whats left and divide it equally among the next generational level

Question 6

Distribution if no spouse or descendents

Answer 6

(1) Parents or surviving parent
(2) Brothers and sisters and their descendants
(3) 1/2 to paternal grandparents and 1/2 to maternal grandparents and their descendants (both to one side if no takers on one)
(4) 1/2 to nearest kin on maternal side and 1/2 to nearest kin on paternal side (both to one side if no takers on one)

Question 7

Nonmarital children in inheritancy cases

Answer 7

Always inherit from mother
Inherit from father if (1) marries mother, (2) man adjudicated to be father, (3) after death proved by clear and convincing evidence he’s the father

Question 8

Uniform Simultaneous Death Act - Not UPC

Answer 8

Property disposed of as if he had survived the other if it cannot be determined who died first. Will not apply if you can show who survived longer - even by minutes!!!!

Question 9

Revised USDA and UPC model

Answer 9

Applies 120 hour rule. Must survive other by at least 120 hours in order to take any distribution of the decedent’s property

Question 10

Disclaimers

Answer 10

Beneficiary disclaims their interest. It must be

(1) in writing
(2) irrevocable
(3) filed within nine months of decedent’s death

Can’t disclaim once accepted

Question 11

Advancement of Intestate Share

Answer 11

Lifetime gift intended to be applied against beneficiaries share of donor’s estate.

UPC requires:

(1) must be declared as an advancement
(2) acknowledged by heir in writing

Question 12

Will definition

Answer 12

instrument executed under formalities that directs disposition of a person’s property at death.

Question 13

Codicil definition

Answer 13

supplement to a will that modifies it. Must go through all the same requirements as will formation. Will gets new date of last codicil execution.

Question 14

Elements to make a will (and codicil)

Answer 14

(1) Present intent
(2) capacity
(3) Signed by testator in witnesses presence (conscious presence test)
(4) two writtnesses (UPC: notary only OK)
(5) witnesses sign in testator’s presence

And sometimes

(6) sign at the end of will
(7) publish the will
(8) witnesses sign in presence of each other

Question 15

UPC - Ignore Harmless Errors

Answer 15

If will not executed properly, UPC allows court to ignore harmless errors.

Question 16

Holographic Wills

Answer 16

Will entirely in testator’s handwriting without witnesses. UPC acknowledges these.

Question 17

Does UPC recognize oral wills?

Answer 17

NO

Question 18

Conflict of law issue - real property, personal property, foreign wills

Answer 18

Real property - law of state where property is located
Personal property - law of testator’s domicile at time of death
Foreign will - admissible if executed according to laws of that jurisdiction, state where will was executed

Question 19

Can beneficiaries sue attorney for negligence?

Answer 19

YES - SOL begins on testator’s death not creation of will

Question 20

Interested witnesses

Answer 20

Doesn’t void the will - ok if she isn’t supernumerary or would have taken a similar share had it not been probated. If no excdption that it merely voids the gift to her, but doesn’t void the will

Question 21

What happens if testator alters will?

Answer 21

ineffective unless testator reexecutes the will with proper formalities

Question 22

Incorporation by Reference

Answer 22

Will can incorporate a document into it provided

(1) document in existence at time of execution (UPC going away with this rule)
(2) sufficiently described in the will
(3) will manifests an intent to incorporate it

Question 23

Pour Over Gifts

Answer 23

Testamentary gifts in a will made to an existing revocable trust. Can be changed in lifteime of settlor without changing a will which avoids will formalities

Question 24

Conditional Wills

Answer 24

Conditions must give rise in order for will to be executed. Argue both sides: Should be denied because condition didn’t occur. Shouldn’t be denied because it still shows how testator would have distributed their property had they died

Question 25

Will substitutes - Nonprobate assets that cannot be disposed of by will

Answer 25

``` life insurance death benefit plans property passing by right of survivorship property held in trust deeds contracts inter vivos gifts bank accounts ```

Question 26

How do you revoke a will?

Answer 26

(1) operation of law (2) subsequent instrument (3) physical act

Question 27

Marriage following execution of will

Answer 27

UPC: new spouse takes intestate share unless (1) will makes provision for new spouse (2) ommission was intentional (3) will made in contemplation of marriage

Question 28

Divorce following execution of will

Answer 28

All provisions of former spouse revoked as if they died before testator - even appointments.

Question 29

Child born following execution of will - Pretermitted child

Answer 29

child takes an intestate share

Question 30

Revoking will be new will

Answer 30

Must exercise formalities of will formation. If the subsequent will does not revoke prior, then they are read together and any inconsistent terms later will prevails

Question 31

Revoking by physical act

Answer 31

burn, tear, shread, WITH INTENT to revoke and it is made concurrently

Question 32

Is partial revocation ok?

Answer 32

YES - extrinsic evidence allowed to determine whether its partial or full revocation

Question 33

Revocation of Codicil

Answer 33

Does not revoke entire will - but revocation of will revokes all codicils.

Question 34

Lost or Destroyed Wills

Answer 34

Allowed in if (1) valid execution (2) cause of nonproduction (3) contents of the will

Question 35

Revival of revoked wills

Answer 35

Can revive unless shown that testator did not intend to revive

Question 36

Dependent Relative Revocation

Answer 36

applies when testator revokes will under mistaken belief that another disposition of his property would be effective, and if he never had the mistaken belief, he wouldn't have revoked his will. Allows the revocation to fail and will to come back in.

Question 37

UPC - Harmless Error Statute

Answer 37

Same as applied to execution applies to revocation. Propoent can establish by clear and convincing evidence that decedent intended doc to be partial or complete revocation

Question 38

Contract to make a gift in a will

Answer 38

Valid - must have (1) provisions in the will stating provision of K (2) express refrence in a will to K (3) writing signed by decedent

Question 39

Anti-Lapse Statutes

Answer 39

Beneficiary dies before testator. Statute allows gift to pass beyond deceased to their descendants. Does not apply if will provides otherwise - must be specific as to survivorship under UPC

Question 40

Ademption

Answer 40

Failure of gift because it's no longer in testator's estate at time of death. ONLY applies to specific devises - that is gift or property that can only be satisfied by receipt of that particular property (ex. rolex watch).

Question 41

General vs. demonstrative legacy

Answer 41

This property is NOT adeemed (ie - if it's no longer there, there will be a forced sale to make up for it) General legacy - gift of specific dollar amount paid out of general assets. Demonstrative legacy - gives a dollar amount but from a specific source If not enough there it will be satisified by selling other assets - it is not adeemed.

Question 42

Abatement

Answer 42

Court will abate assets in the following order in cases where estate assets are not sufficient to pay all CLAIMS against the estate and satisfy general or demonstrative legacys: Property passing by intestacy then residual assets then general legacies then specific bequests

Question 43

Elective share statute

Answer 43

Spouse can elect to take a statutory share of estate versus a taking under the will if they are being fucked over file notice

Question 44

Permitted Child Statutes

Answer 44

Testator can disinherit children. Permitted child statutes protect against accidential ommission. Children will inherit their intestate share unless it can be shown (1) omission intentional (2) did something else for that child outside of the will

Question 45

How to contest a will

Answer 45

Attack: (1) defective execution (2) revocation (3) lack of capacity (4) Lack of intent (5) undue influence (6) fraud (7) mistake

Question 46

How much of will defective if contestant successful?

Answer 46

Just the parts that were subject to the problem (minus some exceptions)

Question 47

Capacity requirements for will

Answer 47

(1) must be 18 (2) mental capacity (3) Insane delusion

Question 48

What is mental capacity for purposes of capacity requirements?

Answer 48

Testator understands (1) nature of her acts (2) nature of her property (3) her bounty (4) formulate scheme for disposition

Question 49

Undue influence requirements

Answer 49

(1) influence exerted (2) overpower mind and free will (3) resulting disposition product of undue influence

Question 50

Undue influence presumed in certain relationships

Answer 50

confidential relationships | beneficiary involved in drafting and provisions unnaturally favor beneficiary

Question 51

Fraud requirements

Answer 51

Testator willfully deceived as to (1) character or content (2) facts

Question 52

Mistake in Execution

Answer 52

Admit extinsic evidence

Question 53

Mistake in inducement

Answer 53

alleged mistake involves reasons that led testator to make the will - no relief granted (Testator thought son was dead and created will, after testator died son returned alive - no relief for son).

Question 54

Mistake as to Conents

Answer 54

Mistaken omission - no relief granted Mistaken in describing beneficiary or property - no relief Latent or patent ambiguity - extrinsic evidence admissible

Question 55

No contest clauses

Answer 55

Valid unless beneficiary had probable cause for bringing the contest

Question 56

Personal representative to administer the will

Answer 56

Named in will - executor | Not named in will - administrator

Question 57

Healthcare power of attorney

Answer 57

Creation: In writing signed witnessed - but UHCDA does not require witnesses Agent must act in P's best interest and good faith. Revoke by oral or writing.

Question 58

Latent Ambuigty

Answer 58

Language in will is clear, but results in a misdecription when applied. EXTRNISIC EVIDENCE ALLOWED (all my shit to my cousin nellie - testator has two cousin nellies)

Question 59

Patent Ambuity

Answer 59

Language in will is not clear - EXTRINSIC EVIDENCE ALLOWED (all of my shit to A and/or B. Not clear)