Wills And Estates

Question 1

What are non-probate assets?

Answer 1

Life transfers that pass outside of the will/intestacy process.

Question 2

What is required to make a will?

Answer 2

• testamentary capacity
• testamentary will
• appropriate formalities (vary based on type of will)

Question 3

What capacity is required to make a will?

Answer 3

• over 18
• of sound mind

Question 4

What is required to be of sound mind to make a will?

Answer 4

Must have the ability to understand:
1. The nature, condition, and extent of your property
2. The nature of the disposition that testator is making of your property
3. The names of and testator’s relationship to their descendants

Question 5

How does an insane delusion affect a will?

Answer 5

An irrational belief with no basis in fact or reality.

Doesn’t necessarily negate soundness of mind.

A particular gift or will is invalid to the extend it was the product of the insane delusion

Question 6

What is testamentary intent?

Answer 6

At execution, a testator must intend that the particular document under discussion be his or her will.

Question 7

What negates testamentary intent?

Answer 7

1. Undue influence
2. Fraud
3. Mistake

Question 8

When is undue influence sufficient to void a will?

Answer 8

The wrongdoer overcomes the testator’s free will, and the influence causes the testator to make a transfer that they would not have otherwise made

Question 9

When does a presumption of undue influence in the execution of a will arise?

Answer 9

The alleged wrongdoing was in a confidential relationship with the donor
There were suspicious circumstances surrounding the preparation, formulation, or execution of the will

Question 10

When does fraud invalidate the will?

Answer 10

Fraud in the execution - as to the nature or contents of the writing itself

Fraud in the inducement - as to intrinsic facts that induces the testator to make a gift that they wouldn’t have made if they knew the true facts

Question 11

When does mistake invalidate a will?

Answer 11

Mistake in the execution - as to the nature of the document

In the inducement - no affect on testamentary intent —> doesn’t invalidate a will

Question 12

What are the formalities required for a valid attested will?

Answer 12

1. In writing
2. Signed by the testator or in their name in the testators presence and direction
3. Witnessed by at least 2 people or public notary

Question 13

What is the harmless error rule for wills?

Answer 13

Even if the formalities are not met, the will is valid if the proponent proves by clear and convincing evidence that the testator intended the document to be their will.

Question 14

What is the integration rule for a will?

Answer 14

Any pieces of paper present at execution that are intended to the be a part of the will, will be part of the will.

Question 15

How does the signing of a will by an interested witness affect the will?

Answer 15

Doesn’t invalidate it - may purge the interested party’s share.

Under Uniform Probate Code - has no effect at all.

Question 16

What is a holographic will?

Answer 16

Written by the testator entirely in their own handwriting. UPC requires only the material portions to be in handwriting.

Does not require any witnesses

Question 17

What is a codicil?

Answer 17

An instrument executed after a will. Refers back to the earlier will but adding to, explaining, or deleting.

Republishes the will, so the will is treated as if it were first written and executed as of the date of the codicil.

Question 18

How can a will be revoked?

Answer 18

1. Physical act
2. Later valid will
3. Divorce

Question 19

How is a will revoked by physical act?

Answer 19

1. Revocatory act on the will - burning, tearing, canceling, obliterating, or destroying
2. With intent to revoke

Question 20

How does a divorce affect a will?

Answer 20

All provisions of the will relating to the now ex-spouse become ineffective for all purposes, unless it is apparent in the will that the provisions were intended to survive the divorce.

Question 21

When can a revoked will be revived?

Answer 21

Only if restated, re-executed, republished, or other clear evidence of intent to revive.

A codicil revives a will as of the date of the codicil.

Question 22

What happens to a lost will known to be in the testator’s possession?

Answer 22

It’s presumed to be destroyed by testator with the intent to revoke

Question 23

What happens to a lost will known to be in the testator’s possession?

Answer 23

It’s presumed to be destroyed by testator with the intent to revoke

Question 24

What’s the effect of an unsigned copy of a will?

Answer 24

It’s an unexecuted copy - no legal effect, revocation has no legal effect

Question 25

Who has standing to challenge a will?

Answer 25

Only someone who will have a beneficial interest if they succeed - heirs.

Question 26

What are the grounds for contests of a properly executed will?

Answer 26

1. Lack of testamentary capacity 2. Undue influence 3. Mistake 4. Fraud 5. Ambiguity

Question 27

What is a no-contest clause in a will?

Answer 27

Attempts to disqualify anyone who contests the will from taking anything. Construed narrowly - doesn’t apply to fraud or good faith/reasonable cause in contesting

Question 28

When can an unintegrated act/page become part of will?

Answer 28

1. Facts of independent significance 2. Incorporation by reference 3. Personal property list 4. Dispositions to inter vivos trusts

Question 29

When can a document be incorporated to a will by reference?

Answer 29

1. In existence at time of execution of the will 2. Will manifested intent to incorporate 3. Will described the writing enough to identify

Question 30

When is a personal property list incorporated into a will?

Answer 30

1. Must describe beneficiaries and property with reasonable certainty 2. Must be signed, even if not property attested 3. Can be created after the will is executed 4. Cannot give away real estate or money

Question 31

What is a spouse’s elective share in wills?

Answer 31

Can decline to take under a will or intestacy statute, and instead take an elective share - generally 50% of the marital property portion of the augmented estate.

Question 32

When can a beneficiary under a will not take property?

Answer 32

1. Disqualification - slayer statutes, divorce 2. Simultaneous death 3. Disclaimer - rejection of share

Question 33

What is required for a disclaimer of testate or intestate share to be valid?

Answer 33

- in writing - declare the disclaimer - describe the interest or power disclaimed - signed by the disclaiming party - delivered or filed Can’t occur when: - waiver - already received and accepted the property - rights already assigned

Question 34

What is ademption by extinction?

Answer 34

When a specific gift in a will is no longer in the testator’s estate at death.

Question 35

What is ademption by satisfaction?

Answer 35

When the testator makes an inter vivos gift of the property to a beneficiary with the intent that the provision or the will be thereby satisfied in whole or in part.

Question 36

What is abatement?

Answer 36

When the assets of the testator’s estate are insufficient to satisfy all bequests or devises to the beneficiaries after paying claims against the estate.

Question 37

What happens to the property in a will when a lapse occurs?

Answer 37

The beneficiary predeceases the testator - lapse in body falls to residuals - total lapse of residuary falls to intestacy - lapses in group gifts fall to remaining group takers (class or residuary)

Question 38

When does an anti-lapse statute save a gift?

Answer 38

- the predeceasing beneficiary was closely enough related to the testator And - the predeceasing beneficiary was survived by descendants Then, gift goes to those descendants

Question 39

What is the pure/strict per stirpes approach to intestate distribution when there is no surviving spouse?

Answer 39

Go to child level and count the number of live roots, then divide down as needed

Question 40

What is the modern/modified per stirpes approach of intestate division, when no surviving spouse?

Answer 40

Go the first generation with at least one living member and count the number of live roots in that generation. Divide down as needed.

Question 41

What is the UPC approach to intestate division when there’s no surviving spouse?

Answer 41

Go the first generation under the decedent with at least one surviving member. Count the number of live roots, not live members in that generation. Allocate a share to each living member in that generation. Count the remainder, if any, and repeat by distribution a share to any qualified takers at the next generation.

Question 42

When is property given in life treated as an advancement of an intestacy share?

Answer 42

It is specifically or generally declared in a contemporaneous writing by the decedent, or It is acknowledged in any writing by the heir as an advancement