Wills Flashcards
(144 cards)
1
Q
When do intestate succession rules apply?
A
- when D left no will
- When D’s will is denied probate
- When D left an incomplete disposition of his estate
2
Q
Surviving Spouse share: survived by kid shared with surviving spouse
A
SS inherits first $150k plus 1/2 any balance of the estate. Remaining 1/2 passes to D’s descendants
3
Q
Surviving Spouse share: none of D’s kids are also SS’s kids
A
SS inherits first $100k plus 1/2 any balance of the estate. Remaining half passes to D’s descendants
4
Q
Surviving Spouse share: no children, but parents
A
SS inherits first $150k plus 3/4 balance. Remaining 1/4 goes to the parents
5
Q
Surviving Spouse share: no children and no parents
A
SS gets the entire estate
6
Q
Can surviving spouse waive their right to the intestate share?
A
Yes. in whole or in part. either by written contract or waiver after full disclosure. Can be before or during the marriage
7
Q
People who are not considered Surviving Spouse
A
- divorced person
- person who has a divorce not recognized in MI
- if there was a defective divorce, and person remarries
- Person living in bigamous relationship at time of D’s death
- one who for more than one year before D’s death deserted D or was wilfully absent/ refused to support.
8
Q
Intestate share of descendants
A
Take per capita at each generation. Each living person at the 1 st generation takes a share. Shares of deceased persons at that level are combined and then divided equally among the takers at the next gen level.
9
Q
What if D has a surviving spouse and no children?
A
remainder of estate goes to parents.
10
Q
Natural parents inherit intestate only if
A
they openly treated child as their own and have not refused to support the child
11
Q
What if D has no surviving spouse, parent, or children?
A
Passes to siblings who take per capita at each generation
12
Q
What if D has no surviving spouse, no children, no parents and no sibling?
A
1/2 passes to maternal grandparents or their descendants and 1/2 passes to paternal grandparents or their descendants.
13
Q
What if D has no surviving grandparents or grand parents descendants?
A
The entire estate esheats to the state.
14
Q
Intestacy and adopted children
A
inherit through and from the adopting parents as though they were natural child.
15
Q
Intestacy and Step and foster children
A
Stepchildren and foster children have no inheritance rights from stepparent and foster parent
16
Q
Adoption by estoppel doctrine
A
if stepparent or foster parent obtained custody of child based on promise to adopt the child and didn’t do it, child is entitled to inherit as if they wer adopted
17
Q
Child conceived during marriage
A
both spouses are presumed to be the natural parents
18
Q
nonmarital child’s rights as to mother
A
full inheritance rights from his mother
19
Q
nonmarital child’s rights as to father
A
Nonmarital child inherits from natural father only if:
- Father married mother after birth
- F & M made a written and acknowledged statement of paternity
- F &M requested a birth certificate be changed to reflect father
- Father and child mutually acknowledged the relationship before child was 18 and continued until death of either
- Man was adjudicated to be father
- court determines he is father under Paternity act
20
Q
What state’s law governs whether child is entitled to inherit from father?
A
law of the situs of the property
21
Q
Reproductive technology kid
A
child conceived this way where W has consent of husband is the husband’s child. Consent of H is presumed
22
Q
Child born after death
A
Takes under the intestacy if lives for at least 120 hours
23
Q
Negative Bequest Rule
A
MI statute allows a will to expressly exclude or limit the right of a person or class to succeed to property that passes intestate.
24
Q
Common problems: 120 hours rule
A
A person must survive D by 120 hours to take under a will or by intestacy. Can have contrary will provision. If person doesnt survive the 120 hours treat as if predeceased D. Does not apply if the result would be escheat
25
Can you disclaim an interest?
Yes, under intestacy and under will.
26
What is the result if a person disclaims their interest?
Treat as if the person predeceased D. If disclaim a lifetime gift, interest passes as though disclaimant died at time transfer was made.
27
Can you disclaim a life estate or a survivorship?
yes.
28
Procedure to disclaim
must
1. be in writing
2. describe property or interest
3. be signed and delivered.
4. If real prop = record in register of deeds
29
Time limit to disclaim
There isn't one in MI. Right is barred if the B or heir has accepted property or any of its benefits, mortgaged or assigned the interest or signed a waiver of right to disclaim. Disclaimer that is filed is irrevocable.
30
Can a disclaimer be use to defeat creditor's claim
Yes. but cannot be used to defeat a federal tax lien.
31
Forfeiture of interest by mistreatment of D
An heir or B who feloniously and intentionally kills the D or is guilty of abuse, neglect or exploitation forfeits all interest in D's estate. Can sever the survivorship and estate turns into a tenancy in common
32
Proving forfeiture of interest by mistreatement
conviction is conclusive. Absent final judgment, Court may determine by POE
33
Advancement: definition
lifetime gift made to an heir with the intent that the gift be applied against any inherited share
34
Advancement: proof
No gift is considered an advancemnt unless the intetntion is declared in a competent writing by the donor and acknowledged by the donee
35
Advancement: procedure if advancement is found
Amount advanced is added to the net value of estate to compute intestate shares and advancee has his amount reduced. Look to time that granteee came into possession or D's death whichever is first. if donee dies before D the gift is non-binding.
36
Satisfaction of legacies
Lifetime gift to Beneficiary is not treated as satisfaction unless intention is in contemporaneous writing or will expressly states
37
Does a will need to dispose of property to be a will?
no
38
what is a codicil?
supplement to will that alters, amends or modifies the will
39
Testamentary intent
established by extrinsic evidence. T must PRESENTLY intend the instrument to operate as a will.
40
Formal requisites of a will: list them
1. signed by T
2. signed by 2 witnesses
3. witnesses signed within a reasonable time after witnessesing either T's signing or T's acknowledgement of signature or will
41
Formal requisites of a will: T's signature
T may be assisted. Any mark that T intends to be a signature will do. Order of signing not important
42
Formal requisites of a will: W must sign within a reasonable time
```
W must witness either
1. T signing
2. T acknowledging will
or
3. T acknowledging signature
```
43
Does an attested will need to be dated?
No. Holographic will does though
44
Attestation clause
Recites the reqs of a duly executed will. Can prove due execution instead of requiring W's testimony.
45
Self proved will by affidavit
Affidavit recites all of the elements of proof that Ws would testify to. T and w's swear to the affidavit in front a notary public
46
Self-proved will by unsworn written statement
written statement states the facts regarding formalities of the will (or references the attestation clause by incorporation) T and the witnesses sign the statement and date it. Statement must "certify by penalty of perjury" that the statement is true.
47
When will a Will from another JD be allowed into probate in MI?
if it is in writing and in accordance with
1. MI law
2. Law of the state where it was executed or
3. law of the place where T was domiciled when executed or when T died.
48
MI Dispensing Power Statute
Will that is not executed in full compliance will be treated as validly executed if the proponent establishes by clear and convincing evidence that the D intended it to be a will.
49
Validity of holographic wills
1. material portions must be in T's handwriting
| 2. must be signed and dated
50
Are oral wills recognized?
no
51
Attorney liability for negligent will preparation
duty extends to client and to Bs. Absent ambiguity or inconsistency in the will, extrinsic evi is not admissible to show that T's intent was different than the will says. an estate has no standing to bring cause of action for negligence
52
Revocation of wills
person with testamentary intent can revoke a will at any time. even if they contracted not to revoke the will.
53
Omitted spouse statute
If a person marries after executing a will and spouse survives the takes an intestate share of the estate other than the property devised to a child from before the marriage.
54
Omitted spouse statute: when is spouse not entitled to intestate share
1. if it appears the will was made in contemplation of marriage
2. the will expresses intent that it remains in effect despite the marriage
3. or T provided for spouse by transfer outside of the will
55
Omitted spouse statute: assets from which the share is satisfied
Abatement rules apply. Residue first, general gifts abate pro rata, specific devises abate last
56
Effect of divorce or annulment
Revokes all revocable dispositions and fiduciary appointments of former spouse and relatives. Read as if former spouse disclaimed. Does not effect beneficiary designation under ERISA. Severs survivorship rights so they become tenants in common
57
Omitted Child Statute: when applicable
Applies to children born after will. Does not apply if it appears from the will that omission was intentional or T provided for child with transfer outside the will. Applies if parent mistakenly thought child was dead.
58
Omitted child statute: no other children when executed
takes an intestate share unless the will transfered substantially all of the estate to that child's living parent.
59
Omitted spouse statute: other children when executed
Takes the amount the child would have received if had been included in the will if T gave an equal share to all children. Gifts abate ratably
60
Revocation of will by written instrument
writing must ahve the same formalities as wills.
61
What if T executes a second will that does not expresssly revoke the first?
read them together if you can. 2nd instrument revokes first to extent there are inconsistencies.
62
Revocation by physical act
Requires a physical act and intent to revoke. Does not need to touch words. Another person can do it for you if in T's presence and by T's direction.
63
Partial revocation by physical act
allowed in MI. you can cross out a line in a will.
64
Presumptions as to revocation
if will last seen in T's possession and cannot be found = presume revoked
No presumption where will was last with person adversely effected by contents.
65
What if T revokes one of two copies of the will
Its revokes the will. Can revoke either of the copies
66
what if T destroys an unexecuted copy of the will
does not revoke. Need to revoke the will itself
67
Revocation of wills and codicils
Revocation of will revokes codicils but not the other way around. revocation of codicil revives the changed provisions.
68
When can a revoked will be revived?
When the revocation instrument is revoked and it is evident from circusmtances or T's declarations that he intended the first will to take effect
69
How to probate a lost, destroyed will
must state will's contents and execution must be proved by one of the witnesses.
70
Alterations on the face of the will ---valid?
under the dispensing power statute, they will be given effect if it can be shown by clear and convincing evidence that T intended to modify the will
71
Dependant Relative Revocation doctrine
applies when T revokes will due to mistake of law or fact as to validity of another disposition and but for the mistake he would not have revoked the will. Revocation will fail and will remains in force.
72
Integration
If questioned, proponent must show that the pages were present when executed and were intended by T to be part of the will. Elements presumed when there is physical connection of pages or when there is internal coherence running from page to page.
73
Doctrine of Republication by codicil
will treated as being executed on the date of the last validly executed codicil.
74
Incorporation by reference
to incorporate a doc by reference
1. doc must be in existence at the time the will was executed
2. will must describe the document sufficientyl to allow for ID
3. language must manifest an intent to incorporate the doc
75
Incorporation by reference: exception
a will can refer to a wrtiten list to dispise of items of tangible personal property. writing must be in T's handwriting or signed by T at the end. Must describe items with some certianaty. Can be prepared before or after execution of the will and can be altered after.
76
Incorporation by reference: oral instructions
cannot be incorporated by reference. If T makes specific devise to B to dispose of propr as instructed, extrinsic evidence can be made to show fraud in the inducement and a constructive trust arises
77
Acts of independent significance
come back to this
78
Nonprobate assets
```
cannot be passed by will
includes
-property passing by contract (life inusrance proceeds, employee benefits)
-property passing by survivorship rights
-property held in trust
```
79
Power of appointment: definition
authority created in a person to designate within limits the perosn who shall take the property and manner in which they take it. Can be intervivos or testamentary
80
Power of appointment: takers in default of appointment
people who take if the donee fails to exercise appointemtn power
81
Power of appointment: general power
power exercisable in favor of the donee, her estate, her creditors
82
Power of appointment: Special power
exercisable in favor of a limited class that does not include the donee
83
Joint will
joint will = will of two or more people on the same piece of paper. Admissible to probate when one dies as if they were separate pieces of paper.
84
Mutual will
two separate wills containing reciprocal provisions
85
Revocation of joint and mutual wills
They are revocable by either T at any time. the contract to make a joint or mutual will is irrevocable by the survivor. it becomes a breach of contract. Effect is that Bs under the new will hold a constructive trust for the B of the contractual will.
86
proof to establish a "contractual will"
1. will provision stating material terms of the k
2. express reference in the will to a k and extrinsic evidence proving its terms
3. or writing signed by the D evidenceing the k.
87
When does a gift lapse?
When a B dies during T's lifetime.
88
What beneficiaries does the MI Anti-lapse statute protect?
predeceased Bs who are grandparents, lineal descendants of granparents or stepchildren who left descendants
89
MI Anti-lapse statute
When a B predeceases the T, the B's descendants take by substitution. Requirement that a B must survive the T in order to take does not prevent the application of the statute unless will make an alternative gift over.
90
Lapse in residuary gift
Residuary Bs take the deceased B's share in proportion to their own interest. But apply anti-lapse rule to those it applies to
91
Class gifts and predeceased Bs
Only class members that live take the gift. Gives way to the anti-lapse rule
92
Class gifts: adopted children
presumptively included. Include adopted children only if they lived as a child as regular member of the household
93
Class gifts: nonmarital children
gift to persons' children includes non-marital children if child would be an heir if the person died intestate and child, while minor lived as a regular member of person's household
94
Class gifts: gifts to collateral kin
Gift to nephew, uncle aunt etc includes relatives by blood or adoption only, not marriage
95
Class gifts: gift to heirs or relatives
passes to people who would have intestate share
96
What if a B is dead when the gift is made
gift is void but anti-lapse can save
97
Ademption: definition
specifically devised prop that is not in T's estate at death. Gift fails
98
Ademption: what does it apply to?
Specific devises only. Does not apply to general legacies (dollar amount payable out of general assets) or to demonstrative legacies (gift of amount that identifies which asset it comes out of)
99
Ademption: Presumption of Nonademption
in MI there is a presumption of non-ademption. Extrinsic evidence is admissible to show T's intent concerning ademption. If specifically devised prop is not in the estate, the donee gets a cash legacy unless circumstances indicate that ademption was intended
100
Ademption: actions taken by conservator or durable power of attorney
if specifically devised prop is sold by a guardian the specific B is entitled to a cash value devise. Does not apply if T's disability ceases and T lives one year beyond that
101
Ademption: certain proceeds unpaid at T's death
B has the right to specifically devised prop and the proceeds unpaid from it.
102
Ademption: specific devise of stock
If that particular stock is unavailable because of corp's actions like merger, B takes similar stock
103
Elective Share: definition
a surviving spouse is given the right to elect between terms of D's will and the share established by statute
104
Elective Share: Amount
1/2 intestate share minus
1. 1/2 value of shared property that passes outside of probate and intestate (life insurance proceeds, joint survivor)
2. 1/2 value of any gifts made in the preceding 2 years
does not apply to nonprobate transfers unless intent to defraud is shown.
105
Elective Share: and status as omitted spouse
If SS marries spouse after the will, SS can choose to take either the elective share or an intestate share
106
Elective Share: who make the election
it is personal to the SS Court can make it on behalf of an incompetent person
107
Elective Share: Procedure for electing
Notice of right is served on SS. Election must be made within 63 days after the presentment of claims or 63 days of filing proof of service of the inventory on SS whichever date is later.
108
Elective Share: If SS fails to elect can the time period be extended
yes if after administration is closed new estate assets are discovered and admin is reopened or before admin closes if she petitions the court and interested parties
109
Elective Share: can SS waive the right
Yes by written k before or after marriage
110
Elective Share: disqualification of spouse
not entitled to any protective shares if
1. divorced D (even if divorce not recognzied in MI)
2. participates in marriage with someone else
3. participated in any proceedings to end marriage
4. living in bigamous relationship when D died
5. for more than a year before D died, abandoned or neglected D.
111
Homestead Allowance
SS entitled to homestead allowance of $15k adjusted for inflation. has priority over all over claims against hte estate except admin fees
112
Family allowance
SS and minor children and dependent adult children are entiteld to allowance to support their maintenance during the admin period. Personal rep may pay up to $18k in lump sum or monthly installments for up to 12 months. Greater allowance may be approved by court. has priorty over all other claims against estate
113
Exempt personal property
SS entitled to household furnishing from estate up to $10k. takes priorty over all other benefits.
114
Uniform Disposition of Community Property Act
Applies to property acquired while couple was domiciled in a community prop state and was classified as community prop. Upon death, 1/2 of the property is the prop of the SS and no subject to testamentary dispstion
115
Will contests: who has standing
Only an interested party
116
Will contests: lack of testamentary capacity
To have testamentary capacity T must
1. understand he is providing for disposition of property upon death
2. know the nature and extent of property
3. know the natural objects of his bounty
4. understand the general nature and effect of signing his will.
Also must be 18
Burden of proof on contestants and must be shown by POE
117
Will contests: capacity and insane delusion
adjudication of insanity is admissible but not conclusive to show. An insane delusion may invalidate an entire will or a portion of it but only if it can be shown that the delusion caused the testamentary disposition
118
Will contests: Undue influence test
1. existence and exertion of influence
2. overpowering T's mind
3. WIll that would not have been executed but for the undue influence
119
Will contests: presumption of undue influence
created by showing that
2. a confidential/fiduciary relationship existed between T and person who influenced
2. party will benefit from transaction
3. the party had an opportunity to exert influence.
Marriage alone not enough of a confidential relationship
120
Will contests: Fraud
If execution of will or inclusion of gift is result of fraud it will be invalid.
1. material representations that the speaker knows is false
2. made with intent to deceive T
3. T's ignornace of the falsity
4. T's reliance on the representations resulitng in different will than he would have made
121
Will contests: Mistake in execution of the will
Extrinsic evidence is admissible to show that T was unaware of the nature of the instrument she signed.
122
Will contests: mistake in the inducement
Mistake involves reasons the T made the will and was not fraudelently induced there is no relief unless mistake appears on face of the will or mistake involves death of child
123
Will contests: Mistake as to contents of will
Absent evidence of fraud, duress, or suspicious circumstances evidence not admissible to show that a provision was mistakenly left out of will or not what T intended.
124
Will contests: Latent and patent ambiguities
Latent = ambiguity when applied
patent = ambiguous on its face
Extrinsic evidence admissible to cure both
125
Will contests: No-contest clauses
Unenforeceable if there is PC for challenge
| Suits to consture a will or contests filed by guardians or conservators do not trigger a no-contest clause
126
Probate Procedure:
Person having custody of the will must deliver it to court within reasonable time after T's death. Taking too long may result in estoppel to claim under the will. Interested parties must have notice of prbate.
127
Informal probate:
Procedure used when there is no likelihood that the will is going to be contested. Ex parte proceeding before court register. No prior notice given to interested parties but must give notice within 28 days of will being admitted. Cannot be used when T left a series of wills and the latest does not revoke the earlier
128
Informal probate: Informal proof of will
If will has required signature and attestation clause it is admitted without further proof.
129
Formal testacy proceeding
Held by probate court after ntoice to interested parties to determine whether D left a valid will. May be brought by any interested party
130
Formal testacy proceeding: proof of will
if petition is unapposed court may order porbate of a will on strength of pleadings. If evidence concerning will's execution is necessary and will is not self-proving, sworn statement or testimony from W is required.
131
Personal Representative: priority for appointment
1. person named in the will
2. SS if a devisee under the will
3. other devisees under the will
4. the SS
5. Other heirs of the decedent
6. after 42 days from the D's death the nominee of a creditor
132
Personal Representative: fiduciary bond required
in informal proceeding the PR is not required to give bond unless a devisee or creditor whose interest or claim is at least $2.5k in value demands that bond be given.
In a formal proceeding: if D's will waives the bond req the court may not order PR to give bond unless an interested person requests bond and the court deems it desireable.
133
PR: amount of bond required
equal value of PP in estate plus expected income from estate assets for one year
134
PR: inventory of estate assets
within 91 days of appt the PR must file an inventory that lists the estate assets, their value and encumberances
135
PR: duties
Prudent person standard
136
PR: powers
a PR can exercise without court order almost any power that an absolute owner could. ir 2 or more personal are named co-personal reps all must agree to any act connected with the estate's admin
137
Unsupervised administration
PR adminsiters and delivers without court supervision
138
Supervised administration
single proceeding to secure complete admin of estate under court supervision. All admins are unsupervised unless requested by PR or interested party. Court may direct supervised admin even if will says otherwise if court finds it necessary
139
Liability of PR
not invidually liable on k entered into on behalf of estate unless k provides otherwise
140
Creditor's claims to estate
PR must pubish notice advising creditors to present their claims within 4 months or barred. Claims not presented within 4 months after publication or one month after persoanl delivery of noitce are barred. IF there is no admin, all claims not filed within 3 years are barred
141
Priority for payment of claims
1. expenses of admin
2. funeral expenses
3. homestead allowance
4. family allowance
5. exempt personal property
6. debts and taxes with priority under federal tax law
7. expenses from D's last sickness
8. debt/taxes with priority under MI law
9. all other debts and claims
142
Abatement rules
```
Absent contrary provision, gifts abate in this order
1. property not disposed of by will
2. residuary
3. general devises
4. specific devises
within each category they abate pro rata
```
143
Devises of encumbered property
Liens on specifically devised prop are not exonerated unless will directs it
144
Small estates
if it is shown that D's estate is $15k or less court may order that estate be turned over to D's SS or to heirs
