Wills

Question 1

Who can execute a will?

Answer 1

Person 18+ (unless married or enlisted) w/ testamentary intent = testator

Question 2

When is will validly executed

Answer 2

Testator
Signed (marked) or marked with T’s direction in presence of 2 attesting witnesses
Need 2 attesting witnesses 14+, both must sign will in T’s presence

Question 3

Holographic will

Answer 3

Valid only if: WHOLLY in T’s handwriting and signed by T.

Must show testamentary intent: look to language or extrinsic evidence of intent is unclear. No date required on document.

Question 4

Venue for will actions

Answer 4

County where T resided

If T non-resident: county where property is or where T died

Question 5

Beneficiary dies in T’s lifetime analysis

Answer 5

1. Does anti-lapse statute apply (beneficiary related to T’s parents?)
2. Does surviving residuary beneficiary rule apply?

Question 6

Anti-Lapse Statute

Answer 6

WILLS ONLY
Prevents requests to dead Bs from lapsing by allowing B’s descendants to take B’s share. B’s will doesn’t dictate where bequest goes (b/c B’s will already probated.) If B has no descendants, gift lapses and goes into T’s residuary estate.

Question 7

Surviving Residuary Beneficiary Rule

Answer 7

When residuary estate devised to 2+ B’s, and 1 B’s gift lapses, surviving Bs take residuary estate in proportion to their interests.

Question 8

Nonprobate Assets

Answer 8

Assets that don’t pass by will or intestate, usually governed by K.
401k accounts go to named beneficiary, predeceasing spouse doesn’t get interest
CD, checking account, or assets w/ROS (valid only if signed by both spouses)

Question 9

Probate Assets

Answer 9

Homestead (mortgage passes with homestead), cash

Question 10

Intestate with Surviving Spouse (no descendants)

Answer 10

If no descendants –> SS gets all CP and 1/2 fee simple in all decedent’s separate real property. Decedent’s parents get other 1/2 interest.

Question 11

Intestate with SS and all children inside marriage

Answer 11

SS gets all CP, 1/3 PSP 1/3 life estate in RSP

Question 12

Intestate with SS and kids outside marriage

Answer 12

SS gets her half of CP, 1/3 PSP, 1/3 life estate in real SP

Question 13

Intestate (no spouse)

Answer 13

If deceased has descendants, they take whole estate per capita with representation.
If no descendants, parents take 1/2 each.
If one parent dead, H’s siblings take dead parent’s share.
If no parents, passes to H’s siblings and descendants.
If no siblings to H’s deceased aunts/uncles and their descendants.

Question 14

120 Hour Rule

Answer 14

To inherit by will or by intestate sucession, must survive deceased by 120 hours (unless will says otherwise). If don’t survive by 120 hours, treated like predeceased.

120 hr rule applies to rights of survivorship as well.

Question 15

Adopted Children’s Inheritance

Answer 15

Can inherit from biological parents unless rights were terminated in decree terminating parent-child relationship (silence means you can inherit)
Adoption establishes right to inherit from adoptive parents.
Adult adoptees can inherit from adoptive parents but not from bio parents.

Question 16

Kid w/out father (Inheritance)

Answer 16

Can inherit if child established paternity via paternity presumption, man’s sworn statement acknowledging paternity, paternity suit, or in probate court.

Question 17

Stepchildren inheritance

Answer 17

Generally don’t inherit from step-parents

Can if adoption by estoppel

Question 18

Advancement of Inheritance

Answer 18

If T gives lifetime gift to B, only counts as advance on inheritance if T says it’s an advance in a writing or B acknowledges it in a writing

Question 19

Disclaim Inheritance

Answer 19

Disclaimer must be in writing, signed, notarized, & filed w/ the probate ct and personal representative w/in 9 mos of T’s death (treat as if predeceased T)

Question 20

SS Claims Beyond Will

Answer 20

All taken from community estate
H - homestead
E - exempt personal property up to 60k or 30k in cash
F - family allowance of one year’s support for the family (must show that thye have inadequate SP for their support)

Question 21

SS Homestead

Answer 21

Right of occupancy as long as contineu to use residence
Must pay property taxes
Urban: 10 acres, rural: 200 acres

Question 22

Effect of Divorce

Answer 22

Revokes all gifts and fiduciary appointment in favor of ex-spouse; will not impated by T’s post-will marriage

Question 23

Pretermitted children (definition)

Answer 23

Child born after execution of a will who is not provided for by the will or other nonprobate transfer, but would be an heir if T died intestate
Only gets a share of probate assets

Question 24

Pretermitted children inheritance

Answer 24

If other kids got something under will, PC takes pro-rata interest (gets same share)
If no other kids, or other kids don’t get anything, kid takes his intestate share of all property not bequeathed to SS (but can’t reduce SS’s share of T’s CP by more than 1/2)

Question 25

Pretermitted child rule application

Answer 25

NOT when: child mentioned in will or "to all my children" child provided for in nonprobate asset republication of will by codicil after kid born

Question 26

Will Revocation

Answer 26

1. Revoke w/ a subsequent testamentary instrument executed w/ same formalities or physical act. 2. Where will last seen in T's possession and cannot be found, presumption that will destroyed w/ intent to revoke 3. Need intent to revoke + act of revocation at the same time

Question 27

Prove Lost Will

Answer 27

Prove that it was duly executed (affidavit, witness testify that T was 18, signed will, and signed and witnessed by 2 witnessed) proof of contents (copy or witness) proof of reason for non-production

Question 28

Prior Wills

Answer 28

May not be revived if newer one invalid (unless mistake of fact)

Question 29

Too Much Will, Not Enough Assets

Answer 29

Abatement order: (PP always abates before RP) 1. Intestate property 2. Residuary legacies 3. General legacies 4. Specific legacies

Question 30

Incorporate doc into will

Answer 30

Doc must exist when will executed, will must show intent to incorporate and clearly identify doc

Question 31

K Will

Answer 31

Not enforceable unless clear indication of contract in will or enforceable written agreement

Question 32

Challenge Will Validity

Answer 32

1. Defective execution 2. Valid revocation 3. Lack of capacity 4. Undue influence 5. Fraud 6. Mistake 7. T unaware of will's contents

Question 33

Stock Bequests

Answer 33

If "my 100 shares --> stock must be in estate or ademption applies (specific legacy) If "100 shares" --> can get date of death value for stocks if T already sold (general legacy)

Question 34

Lack of Testamentary Capacity

Answer 34

``` Must have had capacity to understand nature of act knoew the nature and value of property know the natural objects os his bounty understand disposition that he is making ```

Question 35

Undue Influence

Answer 35

Must prove existence and exertion of influence effect was to OVERPOWER mind and will will would not have been executed but for influence Inference of undue influence where will precured by one in confidential relationship who benefits from will

Question 36

No Contest Clause

Answer 36

Enforceable unless contest brought in GF and w/ just cause; strictly construed, not triggered by suit to construe will or contest filed by guardian

Question 37

Independent Administration

Answer 37

When will provides for one or all distributees agree on independent administration. Independent executor can do anything a dependent administration could do by a court order. If will allows sale, can sell real property. If doesn't allow, can sell only to pay debt.

Question 38

PR Closing Administration

Answer 38

File closing report w/ the county court records showing property received, debts paid, names/addressed of distributees

Question 39

PR Duties upon Appointment

Answer 39

Post bond w/in 20 days of appointment (unless will waives requirement) Publish notice of admin in newspaper w/in 1 month File estate inventory with ct in 90 days Give notice to beneficiaries w/in 60 days after will admitted to probate

Question 40

Removing Independent Administrator

Answer 40

Can remove for cause for 1. failure to file inventory in 90 days 2. failure to notify beneficiaries in 60 days 3. misapplied/embezzled estate property 4. fails to make accounting 5. guilty of gross misconduct or mismanagement 6. becomes incompetent or imprisoned

Question 41

JX over probate matters

Answer 41

If county has probate ct or county ct at law --> exclusive OJX Counties w/out either --> DC and county cts have concurrent JX

Question 42

Clear Title w/out Admin

Answer 42

File a muniment of title if will (can't have debts) | File for statutory heirship proceeding if not

Question 43

Probate Timing

Answer 43

Will must be admitted to probate w/in 4 years of T's death | But if person offering will not at fault for delay, must give notice to heirs and can probate as muniment of title

Question 44

Non-probate method of distributing debt-free estate

Answer 44

Small estate administration by affidavit as long as estate less than 50k (not counting homestead) and no debts other than mortgage

Question 45

Notice to Creditors

Answer 45

Notice must be given within 2 months to secured creditors, then have 4-6 mos to present claims. If don't present, secured only to value of collateral. Notice by publication all required for unsecured creditors, can give notice that triggers 4 mos SOL

Question 46

Dependent Admin & Creditors

Answer 46

Claim must be authenticated PR must allow/reject claim in 30 days Claimant must file suit on rejected claim w/in 90 days or claim barred

Question 47

Priority Claims in Insolvent Estate

Answer 47

1. Funeral and last illness costs (up to 15k) 2. Family allowance 3. Administration costs 4. Secured claims 5. Child support judgment 6. State taxes 7. Cost of decedent's confinement in prison 8. Medicaid reimbursements 9. All other costs