Wills Flashcards
(123 cards)
1
Q
If there is no will, who appoints an administrator?
A
The probate court, unless all heirs unanimously choose an administrator.
2
Q
What if there is no valid will and no non-probate transfers?
A
Property passes through intestate succession to HEIRS AT LAW
3
Q
When can the court appoint a temporary administrator?
A
Before court has had time to give notice to all heirs and there is need for immediate action
4
Q
What is a “NO ADMINISTRATION NECESSARY” order?
A
When all heirs get together and divide up the property amicably so that no administrator is needed.
5
Q
When can a no administration necessary order be issued?
A
- consent by all heirs who are competent (and consent from guardian ad litem)
- there are no debts of the estate or ALL creditors have consented
- the heirs SIGN and NOTARIZE an agreement as to the distribution of property
6
Q
Who administers the will if named in the will?
A
Executor
7
Q
What if there is no executor named in the will?
A
Probate court appoints an Administrator “with the will annexed”
8
Q
What are administrators and executors commonly called?
A
Personal representatives
9
Q
What are the two forms of probate?
A
- probate in the common form
2. probate in the solemn form
10
Q
What is probate in the common form?
A
- may be granted immediately BUT
- not conclusive for 4 years
- no notice required
11
Q
What is probate in the solemn form?
A
- requires notice to heirs, beneficiaries
- effective immediately
12
Q
What is the statute of limitations for probating a will?
A
Within 5 years of any other petition filed concerning the estate
13
Q
Year’s Support: who is entitled to it?
A
Decedent’s surviving SPOUSE and/or
Decedent’s minor children
14
Q
When is a year’s support available?
A
In both intestacy and when there is a will.
15
Q
What does a year’s support take precedence over?
A
It takes precedence over all debts of the estate except SECURED DEBTS.
16
Q
How does the spouse and/or children get a year’s support?
A
Must file and request in a petition. They will get what they request unless an objection is filed.
17
Q
What if someone objects to the amount to be given for a year’s support?
A
A hearing will be held and the probate judge will determine based on standard of living and other available means of support.
18
Q
What if a spouse or child is given title to the house when the other spouse dies?
A
This divests any property taxes owed that year
19
Q
Jurisdiction: what court?
A
County where decedent was domiciled OR
if out of state resident: county where real property was located
20
Q
Can an Alabama court order an Alabama executor to sell a portion of a farm in GA?
A
No. Not without authorization from the probate court in GA
21
Q
Duties of personal representatives
A
- assemble the estate assets
- post a bond
- file an inventory with the court and with the heirs OR will beneficiaries
- give notice to creditors and pay off debts
- obtain permission to sell estate property
- distribute the estate to heirs or beneficiaries
22
Q
When will intestacy laws come into play?
A
- no will or will is invalid
- will is incomplete and disposes of only part of property
- residuary estate fails and there is a lapse
23
Q
Intestate succession: steps
A
- if spouse and no lineal descendants: spouse takes entire estate
BUT if spouse and lineal descendants survive: spouse takes equally but never less than 1/3 - If no spouse and no lineal descendants, parents
- Siblings
24
Q
If decedent’s children die, but there are grandchildren, how do they take?
A
The grandchildren take “per stirpes”
Decedent:
Son: 1 child (1/2)
Daughter: two children (1/4 each)
25
What if decedent had no spouse and no lineal descendants, and all of siblings died but there are surviving nieces and nephews. How do they take?
What if one sibling had survived?
No siblings: nieces and nephews take EQUALLY. They do not take per stirpes.
At least one sibling survives but at least one sibling dead: nieces and nephews take per stirpes
Example:
Decedent
Sister (dead): 1 child (1/2)
Brother: 2 children (1/4 each)
Decedent
Sister (dead): 1 child (1/3)
Brother (dead) 2 children (1/3 each)
26
Intestacy rights of nonmarital children - who can child inherit from?
- mother: always
- stepfather: NO unless adopted
- father: yes, if paternity can be established
27
How do you establish paternity?
- Clear and convincing evidence
- there is a court order recognizing paternity
- parents of child born out of wedlock later marry
- father signed sworn affidavit
- father willingly signed child's birth certificate
- genetic testing showing at least 97%
28
What if a stepfather adopts a nonmarital child?
Child will inherit from stepfather if he dies intestate.
| Child CANNOT inherit from biological father
29
Equitable adoption/virtual adoption
Use when there is NO WILL but there is an unperformed contract to adopt
Only recognized if an agreement existed between a "putative/potential adoptive parent" and a person who had the authority to consent to the child's adoption.
30
Advancements (advance payment of what an heir is entitled to through intestate succession)
treated as an advancement only if:
- transfer was accompanied by WRITTEN ACKNOWLEDGEMENT that the transfer was intended to be an advancement
Signed by transferor within 30 days of transfer or transferee at any time
31
Difference between advancement and ademption by satisfication
Advancement: intestate estates
Ademption: wills
32
For advancement or ademption: how do you calculate what each inherits?
Add amount that was already given out to the total amount left at death.
Example: $40,000 given to daughter as advancement + $100,000 estate = $140,000
If two children split equally, then daughter will only get $30,000 since she already got $40,000
33
Simultaneous death
Use only if there is insufficient evidence that the persons died other than at the same time
Applies to insurance, wills, intestacy, joint tenancy
34
Has GA adopted the 120 hour rule?
NO. This is unique to Georgia. If wife survives husband even for 1 hour (and you can prove it) then wife is treated as surviving husband.
35
What is the effect of simultaneous death?
Treat each person as having died before the other so that neither gets any of the inheritance (it passes through them)
36
What if A & B own property as joint tenants and they die simultaneously.
Divide in half - treat them as tenants in common.
| 1/2 will pass to A's estate and 1/2 though B's estate
37
What if the individual feloniously and intentionally kills the decedent?
Individual will be treated as predeceasing the decedent. The killer gets NOTHING. Killer's descendants take his portion IF they are also descendants of decedent.
38
What type of murder would cause the killer to get nothing from the decedent?
felony murder
murder
voluntary manslaughter
39
What if killer kills himself so there is no murder conviction?
Killer's estate gets nothing if murder is established by clear and convincing evidence
40
How do you renounce your right to an inheritance?
- renounce before you accept
- must renounce in writing
- file w/in 9 months of the death of decedent w/ court or personal rep
41
What happens if you renounce?
You are treated as predeceasing the decedent. Property will pass to your heirs
42
What if you renounce a life estate or a trust for life?
It accelerates automatically to the people who were supposed to get it after the life estate was over.
43
What if someone promises you that they will make a will and leave you $? Or promises that they will not revoke a will? Or promises that they will die intestate? When are these promises enforceable?
If the promise was made after Jan 1, 1998, it must be IN WRITING and SIGNED by the promisor
44
Can "joint" wills or mutual wills be revoked?
Yes, unless the promise not to revoke is signed in writing
45
When can a will be admitted to original probate in GA?
1. testator was domiciled in GA
2. testator was NOT domiciled in GA but the will has not been probated elsewhere and the will meets GA execution and attestation requirements
46
Ancillary probate: when can GA do this?
When it is properly probated in another jurisdiction
47
GA execution requirements to have a VALID WILL
1. must be in writing
2. testator must sign w/ his intended signature in front of the witnesses or must acknowledge his signature to the witnesses
3. at least 2 witnesses must sign
4. must be at least 14 years old
5. must have mental capacity
48
Does GA recognize holographic wills?
NO. All wills must have witnesses.
49
Can someone sign for testator (proxy signature)
Yes if he signs at testator's request and in testator's presence
50
What must be the testator's intent?
Intent to create a will presently and Intent to convey property in the future.
51
Must a will be "published" to the witnesses?
No. Even if witness later claims he didn't know he was witnessing a will, the will is validly executed.
52
Interested witness rule
If a witness is also a beneficiary in the will, the witness won't take UNLESS there are 2 other witnesses who are NOT interested
53
Self proving affidavit
This can be included in a will
| It is signed by testator and witnesses and NOTARIZED
54
What happens if a will is self-proved?
Rebuttable presumption that the will was properly executed and attested, so unless the will is contested there is no need for witnesses to come testify at probate
55
What are the 3 ways a will can be revoked?
1. valid subsequent will
2. physical act of destruction
3. operation of law (will doesn't contemplate marriage, divorce, or birth of children and one of these events occurs)
doesn't contemplate unless there is CLEAR AND CONVINCING EVIDENCE
56
How can a will be revoked by physical act of destruction?
It is ALL or nothing.
| Revoked if physical act affects a material portion
57
What happens if the testator has a child after the will is executed and the will doesn't reference a child?
The child receives an intestate portion of the estate. The will is still valid as to everything else.
58
What happens if the testator gets married after the will is executed and the will doesn't reference the future marriage by clear and convincing language?
Surviving spouse is entitled to an intestate portion
59
What happens if the testator gets divorced after the will is executed and the will doesn't reference this possibility?
All provisions in favor of the former spouse are revoked. The former spouse is treated as having predeceased. The child of the divorced spouse will take if he is also a child of the testator.
60
What if a will is lost?
It is presumed that the testator revoked the will by physical act. To rebut this, the person who wants the lost will to be effective must so that NO PHYSICAL ACT REVOCATION was intended by the testator (preponderance).
61
If the lost will presumption is rebutted, how do you figure out validity and contents?
1. proponent must prove validly executed and
| 2. contents (lawyer's notes, copies)
62
What are the only ways to partially revoke a will in GA?
1. codicil (amendment)
2. subsequent will
NO PARTIAL REVOCATION BY PHYSICAL ACT
63
Can testator have another destroy his will for him?
Yes. If testator directs the proxy and it is the testator's intent to destroy.
64
Implied revocation: when does this happen?
No express revocation, but a codicil or valid subsequent will contains an inconsistent provision
65
What do you do when there is an implied revocation?
Read the two provisions together as much as possible, but give effect to the later document if there is a complete inconsistency.
66
What if the testator destroys the subsequent will or codicil containing the inconsistent term, is the former provision revived?
Yes. Only automatically revived in IMPLIEDLY revoked wills
67
Revival of wills: what happens if you have 2 wills:
- first will
- second will that revokes the first will
and then you destroy the second will. Is the first will automatically revived?
No automatic revival of the revoked will by the destruction of the revoking instrument.
The first will is only revived if: all of the SURROUNDING CIRCUMSTANCES indicate that the testator intended by revoking the revoking instrument, to revive the first will.
68
Dependent Relative Revocation
Common law equitable doctrine
Allows the court to disregard a testator's physical act revocation if the testator's revocation was BASED ON MISTAKE OF LAW OR OF FACT.
69
What must be shown to use dependent relative revocation?
- but for the mistake, the testator would never have performed the revocation
- this will operate to undo the revocation (revive the revoked will)
Example: T writes a will in 1998. He revokes that will in his 1999 will. He later tears up his 1999 will because he would likes the 1998 one better and thinks that it will be revived based on his conduct. Court might consider reviving the 1999 will based on his mistaken belief that the 1998 will would be automatically revived.
70
Patent ambiguity
This is a mistake that appears on the FACE of the will
| * can use extrinsic evidence
71
Latent ambiguity
More than one item meets the description in the will allowed for probate
* can use extrinsic evidence
72
What about plain language in the will?
Court will not admit evidence to correct plain language.
73
Testator mistakenly believes child is dead
Evidence of a mistaken omission is admissible
Child will get:
- intestate portion if no other children
- if there are other child: will get equal to all other children
74
Incorporating a document by reference: when is this allowed
1. document to be incorporated must be in existence at the time the will is executed
2. will must manifest an intent to incorporate the document
3. will must describe the document sufficiently to permit identification
75
When can a will validly transfer property when it is not specified?
Example: I give to Kelli any car I possess at my death.
Act of independent significance
76
What happened under common law when the beneficiary predeceased the testator?
The gift to that beneficiary lapsed.
77
What happens under the GA anti-lapse statute if beneficiary predeceases the testator?
the living issue of the predeceased beneficiary get the beneficiary's share
78
What are the requirements for the anti-lapse statute to apply?
1. predeceased beneficiary must have been SURVIVED BY ISSUE
2. these issue must survive the testator
3. no contingency language
79
What if the anti-lapse statute doesn't apply?
| Ex: predeceased beneficiary dies without issue
Lapsed property becomes part of the residuary estate
If lapsed gift was the residue and there are no other residuary beneficiaries, then the residuary passes to testator's intestate heirs
80
What if a person who witnesses the testator's will later takes though the anti-lapse statute? Does this make the person an interested witness?
No, b/c he didn't take under the will.
81
What if there is a class gift? How does the anti-lapse statute apply if one member of the class predeceases the testator?
The surviving issue of the class member takes.
82
What if a testator devises all of the residuary to A & B, but A predeceases testator and has no surviving issue?
Common law: A's share would pass to intestate heirs
| GA RULE: A's portion of the residuary passes to the other residuary beneficiaries (B in this hypo)
83
Anti-lapse rule when testator leaves property to a person who murders testator or who divorces testator
Murder and ex-spouse are treated as having predeceased testator.
Surviving issue only take IF they are issue of testator!!!!
84
Specific legacy
Gift of specifically described property
Satisfy only be receipt of the particularly described property
"My house on Willivee"
85
Demonstrative legacy
Gift of general amount that identifies a particular asset as the primary source of payment.
I give $1,000 to Kelli to be paid from the proceeds of the sale of my Coca cola stock.
86
General legacy
Not limited to any particular asset and doesn't have to be paid out of a certain type of property.
Usually a dollar amount
I give Kelli $1,000.
87
Residuary legacy
A gift of all of the estate remaining after everything else (expenses and gifts) has been paid
88
Ademption by extinction: what types of gifts does this apply to?
ONLY SPECIFIC LEGACIES OR DEVISES
89
What is ademption by extinction?
When the property identified in the will as a specific legacy has been sold, given away, lost, or destroyed during the testator's lifetime, the GIFT FAILS (adeemed by extinction)
Exception: If the subject of a specific legacy is lost, stolen, or destroyed in the 6 months preceding the testator's death, the beneficiary is entitled to the insurance proceeds.
90
What if a testator leaves 1000 Blackacre to Kelli but sells off part of it before his death?
Kelli would take the remaining portion that testator still owned - partial ademption
91
What happens if the primary source to pay for a demonstrative legacy has been sold?
Sell other property to meet the gift (NO ADEMPTION BY EXTINCTION!)
92
Exception to ademption by extinction: property substituted for other of like character
If a testator exchanges property devised in a specific legacy for other property of like character, the legacy shall not fail.
"form substance rule"
93
Ademption by satisfaction
Only applies to wills
Triggered when testator makes a transfer to a person during life who is a beneficiary under the will.
Transfer must be accompanied by a WRITING that declares that the gift is IN SATISFACTION of the bequest in the will.
Writing must be w/in 30 days of transfer, or signed by recipient at any time.
94
What is an accession? What type of devises does the doctrine apply to?
Increases in or additions to property described in will that occur AFTER will is executed.
Applies only to specific legacies
Example: Will bequeaths 100 shares of Coca Cola but at death testator had 200.
95
Exoneration: what does this mean in the will context?
Discharging the property of any encumbrance
*requires the executor to pay off encumbrances from the estate from the intestate or residuary estate
96
When will exoneration apply?
In specific legacies there is a rebuttable presumption that the testator intended the specific devisee to take the property FREE of any encumbrances
97
what is the common law test for lack of testamentary capacity? (4 questions)
1. Did testator understand the NATURE of the act she was doing?
2. Did testator comprehend the character and extent of her property?
3. Did testator know the natural objects of her bounty?
4. Did testator understand the disposition she was making?
98
Who is the burden on when there is a contest as to testamentary capacity?
Although there is a a presumption that testamentary capacity exists, the proponent of the will (seeking to enforce the will) must establish that testator had sufficient mental capacity
99
What if a testator is really old when he executes the will?
Being old, feeble, or lacking intellect b/c of old age does not make a person mental incapacitated
100
What is abatement?
When the estate contains insufficient assets to pay all claims, taxes, etc and to satisfy all testamentary gifts, some of the gifts must be reduced or "abated."
101
What gets abated first?
1. property charged with debts
2. residuary estate
3. general testamentary gifts (abate pro rata)
4. demonstrative testamentary gifts (abate pro rata)
5. specific legacies
102
What if a will or a legacy in a will is the product of insane delusion (but testator was otherwise sane)?
A provision that has no rational basis for a statement is invalid.
103
Undue influence
1. must destroy the free will of the testator (overpower testator's free will)
2. testator is coerced or over-persuaded at the time he executes his will
3. but-for the coercion, the testator would have NEVER executed the will
104
Who must prove undue influence?
The person contesting the will has the burden UNLESS someone in a confidential relationship receives a substantial benefit under the will (except family).
105
What are examples of confidential relationships?
priest/penitent
attorney/client
guardian/ward
doctor/patient
106
When is there a rebuttable presumption of undue influence?
When someone who receives a substantial benefit under the will was in a confidential relationship with the testator AND that person participated in the drawing of the will.
107
What factors could be used to try to prove undue influence?
- opportunity to exert influence
- Testator's susceptibility to influence due to factors
- suspicious circumstances
- unnatural disposition (stranger takes everything to exclusion of testator's relatives)
108
Fraud in the inducement
Testator knows the contents of her will but makes the will or adds a provision based on reliance on a MISREPRESENTATION.
Ex: Testator leaves nothing to Bob b/c Joe tells testator that Bob is dead.
109
Fraud in the factum
When testator is deceived as to the nature of the instrument or its contents
Ex: Testator doesn't know that a paragraph of the will has been changed.
110
If the will was affected by fraud, what is a remedy?
Constructive trust in favor of people who would have been beneficiaries if there was no fraud.
111
Mistake during will execution: mistake in execution
If testator was mistaken as to the nature of the instrument he signed, the instrument is NOT a will.
112
Mistake during will execution: mistake in inducement
Generally, when a mistake in the will was self-induced, no relief (except if testator mistakenly believes child is dead)
113
What is an in terrorem clause?
It is a no contest clause. It punishes a person who challenges the validity of the will.
114
What must the in terrorem clause contain in order to be valid?
must contain a direction as to where the property will go if there is a contest
115
Are in terrorem clauses valid in GA?
Yes, but courts do not favor them and will try to characterize a challenge to a will as something other than a challenge.
116
Will construction: what is the most important thing?
complying with the testator's intent
117
What presumptions are there in construing a will?
1. presumption against intestacy
2. general rule is to give effect to a later provision if there is inconsistency
3. presumption in favor of devising the entire estate
118
Can people testify as to circumstances surrounding testator's execution of will?
Yes. But can't introduce evidence of testator's statements.
119
When is an individual presumed dead for purposes of wills and intestate succession?
If the person is missing and has NOT been heard from in 4 years.
120
How can you "prove" a person is dead?
If missing for 12 months and you go to court.
121
What if a person was exposed to a specific peril that likely resulted in death?
Individual's death may be proven at any time by clear and convincing evidence.
122
What if an intestate decedent's heirs cannot be found for 4 years?
The decedent's property escheats to the county board of education where decedent was domiciled at his death.
123
How would you advise a widow to maximize her interest in the estate?
1. petition for her year's support
2. if there is no will: get all heirs to file a "no administration necessary" action so as to preserve the estate and not have the added expense of appointing an administrator
