Wills Flashcards
When may property pass through intestate succession?
- The decedent dies without having made a will,
- A decedent’s will is denied probate, or
- A decedent’s will does not dispose of all of his property, either because a gift failed or because the will contains no residuary clause.
In most states, if the decedent leaves descendants as well as a surviving spouse, the spouse takes how much?
Either one-third or one-half
In states adopting the Uniform Probate Code, if the decedent leaves descendants, all of whom are the surviving spouses’ descendants, as well as a surviving spouse, the spouse takes how much?
The entire estate
In most states, if no descendants survive, but the decedent is survived by a spouse, the surviving spouse will take how much of the estate?
The entire estate.
In a UPC state, if the decedent leaves behind no descendants, when will a surviving spouse take the entire estate?
Only if the decedent is not survived by descendants or parents.
What is the majority rule for division of property in intestate succession?
Per capita with representation.
What is the classic/minority rule for division of property in intestate succession?
Per stirpes
What is the modern trend/UPC for division of property in intestate succession?
Per capita at each generational level.
How is property divided per capita with representation?
Property is divided into equal shares at the first generational level at which there are living takers. Each living person at that level takes a share, and the share of each deceased person at that level passes to his issue by right of representation.
How is property divided per stirpes?
One share passes to each child of the decedent, regardless of whether there are living takers at that level. A deceased child’s descendants take the child’s share by representation.
How is property divided per capita at each generational level?
Shares are initially distributed amongst the first generational level at which there are living takers, then the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level (persons in the same degree of kinship always take equal shares.)
What is the priority of intestate succession?
- Passes to spouse and/or descendants,
- If none, then to parents;
- If none, then to descendants of parents (siblings of the decedent);
- If none, then to maternal and/or paternal grandparents or descendants;
- If none, then to nearest kin;
6 If none, then to the state
For purposes of intestate succession, are adopted children treated the same as natural children of the adopting parents?
Yes.
Is there inheritance in either direction between an adopted child and their biological parent?
No, except where one biological parent marries an adopting parent or the child is adopted by a close relative.
Generally, do stepchildren have inheritance rights?
No, unless they are adopted by the stepparent.
May a child in gestation at the time of the decedent’s death inherit?
Yes
When will nonmarital children inherit from their mother?
Always.
When will nonmarital children inherit from their father?
- If the father married the mother after the child’s birth,
- The man was adjudicated to be the father in a paternity suit, or
- after his death and during probate proceedings, the man is proved by clear and convincing evidence to be the father.
Does the UPC make a distinction between half bloods and whole bloods?
No - they inherit equally.
At common law, is a provision in a will expressly disinheriting an heir effective as to any property passing by intestacy?
No - must dispose of everything effectively to disinherit an heir.
Under the UPC, may a testator exclude the right of an individual to succeed to property passing by intestate succession?
Yes - if the person survives the decedent, his intestate shares pass as though he had disclaimed it.
Under the Uniform Simultaneous Death Act, when the order of death cannot be established, how is the property of each decedent disposed of?
As if he had survived the other.
When does the Uniform Simultaneous Death Act apply?
Only if there is NO sufficient evidence of surivial - if there is evidence that an heir or beneficiary survived the decedent even by minutes, the USDA does not apply.
How do many states and the UPC approach simultaneous deaths?
They each require a person survive the decedent by 120 hours in order to take any distribution of the decedent’s property.
Will the USDA or 120-hour rule apply if a will or other instrument makes a different provision regarding simultaneous death?
No - will or other instrument will prevail.
For a disclaimer to be effective, what must be true?
It must be in writing, irrevocable, and filed within nine months of the decedent’s death or he beneficiary’s 21st birthday.
For disclaimer of a joint tenant’s interest, when may a surviving joint tenant disclaim her interest?
Only within nine months from the other joint tenant’s death.
When may a holder of a future interest disclaim her interest?
Only within nine months after the interest within nine months after the interest was created.
When may a disclaimer be made by a guardian on behalf of an infant or incompetent person?
If the court finds that it is in the best interests of those interested in the estate of the beneficiary and is not detrimental to the best interests of the beneficiary.
When may a disclaimer be made on behalf of a decedent by a personal representative?
If the court finds that it is in the best interests of those interested in the estate of the beneficiary and is not detrimental to the best interests of the beneficiary.
May an interest be disclaimed if the heri or beneficiary has accepted property or any of its benefits?
No.
Can a disclaimer be used to defeat creditor’s claims?
Yes - the disclaimant has no interest that can be reached by creditors.
Can a disclaimer be used to defeat a federal tax lien?
No.
What is the effect of a disclaimer of a life estate?
It accelerates the remainder.
May a person who feloniously and intentionaly brings about the death of a decedent claim any interest in the decedent’s estate?
No - they forfeit their interest.
If a person feloniously or intentionally brings about the death of a decedent, how is property passed?
As though the killer predeceased the victim, usually through the operation of a “slayer statute” or by imposition of a constructive trust.
How is the felonious or intentional killing of a decedent proved?
By a conviction of murder in any degree, or by a preponderance of the evidence if no conviction before applying this forfeiture rule.
What is an advancement?
A lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate.
At common law, what is a substantial lifetime gift to one of the decedent’s children presumed to be?
An advancement.
When does the UPC find an advancement exists?
Only if it is:
- declared as such in a contemporaneous writing by the donor, or
- Acknowledged as such in a writing by the heir (which need not be contemporaneous)
What is the procedure if a gift is found to be an advancement?
The gift’s value when given is added back into the estate for purposes of calculating shares, and then subtracted from the recipient’s share.
Must an heir return the amount of an advancement in excess of the value in her intestate share?
No
How may a testamentary gift be satisfied?
By an inter vivos transfer from the testator to the beneficiary subsequent to the execution of the will if the testator intends to transfer to have that effect.
In UPC states, how may a testamentary gift be satisfied?
By an inter vivos transfer from the testator to the beneficiary subsequent to the execution of the will if the testator intends to transfer to have that effect
AND
the testator provides for satisfaction in the will or a contemporaneous writing, or the devisee acknowledges, in writing, the gift as one in the satisfaction.
If a testator gives specifically described property to the beneficiary, there is both a ___________ and __________.
satisfaction; ademption.
What is a will?
An instrument executed with certain formalities that usually directs the disposition of a person’s property at death.
Is a will revocable during the testator’s lifetime?
Yes.
When does a will become operative?
At the testator’s death.
What is a codicil?
A supplement to a will that modifies it.
Must a testator have present intent that an instrument operate his will?
Yes.
Are promises to make a will in the future effective?
No.
Parol evidence is admissible to show that an instrument [was/was not] meant to have effect.
Was not (e.g., a sham will)
Testamentary intent will only be found if it is shown that the testator:
- Intended to dispose of the property,
- intended disposition to occur only upon his death, and
- Intended that the instrument in question accomplish the disposition.
What is a conditional will?
A will that provides it is to be operative only if a stated condition is satisfied.
Is parol evidence is not admissible to show that a will absolute on its face was intended to be conditional?
No.
What must be true for a testator to have testamentary capacity?
(1) 18 years of age and (2) of sound mind at the time he makes the will (must understand (a) the nature of her act, (b) the nature and extent of her property, (c) who are natural objects of her bounty, and (d) be able to formulate an orderly scheme of disposition.)
What are the formal requirements of due execution of a will?
- The will or codicil is signed by the testator (or another at the testator’s direction in her presence)
- Two attesting witnesses,
- Testator signs the will (or acknowledges a previous signature or acknowledge the will) in each of the witness’s presence,
- The witnesses sign in the testator’s presence.
SOME STATES ALSO REQUIRE: - The testator sign at the END of the will,
- The testator must publish the will, and
- The witnesses must sign in the presence of each other.
What qualifies as a testator’s signature?
any mark affixed by the testator with the intent that it operate as her signature.
If a proxy signer signs his own name as well, may he be counted as an attesting witness?
Yes.
What is the majority test used to determine if a person is in another’s presence?
The “conscious presence” test.
What is the conscious presence test?
The presence requirement for executing a will is satisfied if each party was conscious of where the other parties were and what they were doing, and the act of signing took place within the general awareness and cognizance of the other parties.
What is the minority test used to determine if a person is in another’s presence?
“scope of vision test” which requires the person was in such close proximity that he could have seen the signing had he looked.
Most states require that the will be attested by two __________ witnesses.
competent
Who is a competent witness?
A person that, at the time the will is executed, is mature enough and of sufficient mental capacity that she could testify in court on these matters.
Is a will still valid if a witness who is still a beneficiary is one of the two witnesses?
Yes, but the bequest to the interested witness may be void unless she is supernumerary (there are at least two other witnesses) or would have taken a share if the will had not been probated.
What is an attestation clause?
It recites that all the elements of the due execution were performed and is sworn to by the testator and witness before a notary.
What is a self-proving affidavit?
An affidavit that recites that all the elements of due execution were performed and is sworn by the testator and witnesses before a notary.
May signatures on a self-proving affidavit serve as the signature on the will itself?
Yes.
If a will is not executed in accordance with all of the required statutory formalities, what kind of error does the UPC give the court the authority to ignore?
harmless error.
What is a holographic will?
A will that is entirely in the testator’s handwriting and has no attesting witnesses.
Must a holographic will contain the testator’s signature?
Yes.
Do most states that recognize holographic wills give effect to handwritten changes made by the testator after the will is completed?
Yes.
Does the UPC recognize oral wills?
No
Do most states recognize oral wills?
No
In states that allow oral wills, what kind of property may they be used to dispose of?
ONLY personal property made by soldiers or sailors (some states requiring an armed conflict in progress) OR any person during his last sickness or in contemplation of immediate death AND there must be two witnesses
The validity and effect of a will with respect to real property are determined by the law of which state?
Where the property is located.
The validity and effect of a will concerning personal property is determined by the law of which state?
The testator’s domicile at the time of death.
Under the law of many states and the UPC, a will is admissible to probate in a jurisdiction if the will has been executed in accordance with which law?
- That jurisdiction,
- The state where the will was executed,
- The testator’s domicile at the time of the will’s execution, or
- The testator’s domicile at the time of death.
In most states, to whom does an attorney owe a duty?
To the client AND the intended beneficiaries of the attorney’s services.
Who can sue an attorney for negligence?
The client and the intended beneificiaries of the attorney’s services.
May an intended beneficiary of a will sue an attorney for negligent preparation or execution for a will?
Yes.
What raises a presumption that pages were present and intended to be part of the will when it was executed?
Physical attachment, internal coherence of pages, or an orderly dispositional plan.
May proof of integration be proved by extrinsic evidence?
Yes.
Under the doctrine of republication by codicil, a will is treated as having been executed on what date?
On the date of the last codicil.
What may be generally viewed as impliedly incorporating a defective will by reference, thus validating the will?
A validly executed codicil.
How may a document be incorporated by reference into a will?
If the document is
- In existence at the time of the execution*,
- it is sufficiently described in the will, and
- The will manifests an intent to incorporate the document.
*Many states and the UPC carve out an exception and allow a testator to refer in her will a list specifying the distribution of items of tangible property and to write or alter that list after executing the will.
May a will dispose of property by reference to acts and events, even though they are in the future and unattested?
Yes, if they have significance apart from their effect on dispositions made by the will.
EXAMPLE: A bequest to “each person in my employ at the time of my death” is a valid because it is assumed that a testator would not make employment decisions solely for the purpose of disposing of her property.
May a testator make a bequest or devise to a trustee of an inter vivos trust notwithstanding the fact that the trust may be amended or revoked after execution of the will?
Yes, in states that have adopted the Uniform Testamentary Additions to Trusts Act. (most states have adopted)
What is a power of appointment?
An authority granted to a person which enables that person (done) to designate, within the limits prescribed by the creator of the power, the persons who shall take the property and the manner in which they shall take it.
What is a general power of appointment?
An appointment exercisable in favor of the donee himself, his estate, his creditors, or the creditors of his estate.
What is a special power of appointment?
An appointment exercisable in favor of a limited class of appointees, which does not include the donee, his estate, his creditors, or the creditors of his estate.
What is a presently exercisable power of appointment?
An appointment exercisable by the donee during her lifetime.
What is a testamentary power of appointment?
A power exercisable only by the donee’s will.
Does a surviving spouse’s elective share apply to property over which the deceased spouse held a power of appointment?
No.
May creditors reach appointative assets?
Generally no.
