Flashcards in Wills Deck (50)
What is intestacy?
Default statutory scheme that applies if some dies without effectively disposing of their property through a will.
How is separate property distributed?
1. All SP goes to spouse if NO issue or parents.
2. 1/2 of SP if one issue or parent
3. 1/3 of SP if more than one descendent.
Can a putative spouse inherit?
Survival requirements (common law vs. USDA vs. CA)
CL: preponderance of evidence that heir survived
USDA: clear and convincing evidence that heir survived by 120 HOURS (by will or intestacy)
CA: if spouses die simultaneously, 1/2 of CP goes to each estate. 120 hour rule ONLY applies to intestacy.
How is death determined?
CL: cessation of heart and lungs
Modern: heart and lungs or brain function
What happens if joint tenants die simultaneously?
1/2 goes to each estate. Remember, joint tenants CANNOT devise their interest through will because of right of survivorship, but they can convey during lifetime and sever the joint tenancy.
What happens if an insured and beneficiary die simultaneously?
Proceeds go to INSURED’s estate (unless they are spouses, in which case, each gets 1/2).
What is “issue”?
All lineal descendants, but excluding descendants of living lineal descendants.
Creation of Valid Will
1. Be 18
2. Have capacity
3. Have Intent
4. Meet will formalities
WRITE THIS AT BEGINNING OF WILL ESSAYS!!!
Formal requirements of a will?
1. In writing with testamentary intent
2. Signed by testator, or at his direction AND in his presence
3. 2 uninterested witnesses (who must know it’s a will, but don’t need to read it), who can sign anytime after will execution, but need to be present with testator at time he signs.
What if testator doesn’t have 2 witnesses to sign?
Intent can be proven by clear and convincing evidence.
What is the presumption with “interested” witnesses? Exceptions?
That will was product of fraud, duress, or coercion.
1. If there are 2 other uninterested witnesses
2. If devise is made in fiduciary capacity.
What is a holographic will and what are the requirements?
A holographic will is one written in testator’s handwriting and signed. Does NOT need to meet formal witness requirements.
NOTE: if a date is not present and there is doubt whether another will controls, holographic will is invalid to extent of inconsistencies.
Compliance with will requirements (common law vs CA)
CL - strict compliance
CA - substantial compliance (but lack of signature is fatal)
Undue influence (common law)
1. Susceptible to influence
2. Opportunity by beneficiaries to influence
3. Unnatural disposition of property
4. Procured disposition.
Undue influence (CA)
Excessive persuasion that overcomes free will and results in inequity
When is fraud presumed?
If property transferred to:
1. Person who drafted will
2. Fiduciary who transcribed instrument
3. Caretaker during drafting or within 90 days
4. Cohabitant/employee of any of the above individuals.
Exceptions to presumption of fraud
1.If beneficiary is blood relative or cohabitant
2.Property is $5,000 or less
3. Independent attorney reviews instrument
Conflict of Laws
Will is valid if meets requirement in state where it’s EXECUTED or where testator is DOMICILED at time of will execution or death.
Integration (what is it?)
Is extrinsic evidence allowed?
Papers become party of will if:
1. Present at time of execution
2. Intended to be part of will
(E.g., stapled together, folded together)
Extrinsic evidence is permitted
Incorporation by reference
Writing OUTSIDE of will may be incorporated if:
1. Writing existed at time of will
2. Will shows intent to incorporate it
3. Sufficiently describes the writing
NOTE: outside doc does not need to be valid to incorporate
EX. If will says “I incorporate by reference a list of personal items in my safety deposit box”, but the list is dated AFTER the will, it CANNOT be incorporated (but see CA’s exceptions...)
Incorporation by reference - limited tangible property (CA)
In CA, even if paper cannot be incorporated by reference because the paper existed after the date of the will, they may be admitted into probate if:
1.Identifies property not exceeding $5,000 each, or $25,000 total (NOTE: no real property, $, bank accounts, etc)
2. Referred to in will
3. Dated and signed, or in handwriting
Acts of Independent Legal Significance
Will can dispose of property by referencing acts/events that have independent legal significance apart from will
Ex. paying employees based on performance, or paying unknown beneficiary based on marriage to kids (e.g., “to the man who is my niece’s spouse at time of my death”)
Amendment to existing will
MUST MEET SAME REQUIREMENTS AS WILL
Revocation of codicil vs. revocation of will
Revocation of codicil leaves the will intact.
Revocation of underlying will revokes BOTH will and codicil.
What is the effect of a codicil on a will?
It REPUBLISHES the will as of date of codicil execution.
NOTE: This could remedy prior issues with will that made it ineffective, like prior witness issues.
NOTE 2: A codicil can be holographic and avoid the need for witnesses.
What is a “pour-over” will?
A will which identifies a TRUST created by testator into which he can “pour over” his assets and avoid probate, IF LESS THAN $100,000.
1. Trust identified in will.
2. Trust terms exist outside will.
3. Trust executed before or at time of will.
How can a will be revoked?
1. Physical Act
2. Subsequent Will
3. Operation of Law
Revocation by physical act
Can include destroying, burning, tearing, etc.
Presumption: A destroyed will is presumed to be revoked.