Wills and Trusts Flashcards

Question

A valid attested will must be:

Answer 1

a. in writing (1) Any reasonably permanent record is sufficient. b. signed by the testator or by a proxy in their conscious presence and at the testators will. (1) Conscious presence includes within earshot. (2) Assisted signatures are permitted, whether or not the testator requested assistance, provided the testator was the motivating force of the signature (signifying intent). (a) Distinguish this from a directed or guided signature, whereby somebody grabs the testator’s wrist and moves the pen for him. There is no requirement that: (a) the signature is in the testator’s name; it can be anything which indicates the person’s intent that the document be that person’s will.

Answer 2

(1) signed by at least two individuals each of whom signed within a reasonable time after the individual witnessed either the signing of the will or the testator’s acknowledgement of that signature or acknowledgment of the will. (a) There is, however, no requirement that the witnesses sign before the testator’s death. In a particular case, the reasonable-time requirement could be satisfied even if the witnesses sign after the testator’s death. (b) The rule regarding contemporaneous acts says: if the witnesses sign the will before the testator, but all in the same event it is permissible. (c) There is no requirement that the witnesses who sign the will do so in each other’s presence; each can sign it separately if within a reasonable time. 1) But recall that the will is not formally executed: (2) OR acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments. (a) A will, whether or not it is properly witnessed, can also be acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments. (b) If a notary is involved in the process of making a will self-proving, this is a different role than having the notary attest to the will in lieu of or in addition to witness attestation. d. There is no requirement that the testator “publish” the document as his will, that he request the witnesses to sign, or that the witnesses sign in the presence of the testator or of each other. EXAMPLE: Alice signed her will across the front of the document after reading and folding it up. Is her signature valid? Yes, because there is no requirement that she sign any place specifically on the will.

Answer 3

Any attempt to make a will, notwithstanding its failure to meet these requirements, will be validated if: the proponent proves by clear and convincing evidence that the testator wanted the document to be a will

Answer 4

Any pieces of paper actually present at execution that are intended to be part of the will will in fact be part of the will. In other words, when the will consists of several sheets of paper, the testator need not sign each page if the sheets compose one instrument connected in composition. No state requires each sheet of paper of a multiple-page will to be separately executed

Answer 5

Generally, a witness is competent if he has the ability to observe the testator affix his signature: coupled with the ability to comprehend the nature of this act 2. Interested Witnesses (frequently tested topic) a. An interested witness is a witness who is also a beneficiary of the will to which they are witnessing. b. Under the Uniform Probate Code, an interested witness is perfectly fine; the will will be valid, and the gift to the witness will be valid. (1) Additionally under the Code, an interested proxy is permissible. c. If an interested witness is involved in the will, it may give rise to questions as to whether or not the witness had undue influence over the testator in writing the will. EXAMPLE: Arnold executes a will signed by two witnesses: his wife Maria and his attorney Wellington. The will’s primary beneficiaries are Maria, Arnold’s children, and several nonprofit organizations. Is this will valid? Assuming all other formalities met, the will is valid because an interested party can serve as a witness.

Answer 6

1. The “proving” of a will involves the process by which the testator’s signature is established.

Answer 7

a. If the will is self-proved, the will satisfies the requirements for execution without the testimony of any attesting witness, upon filing of the will, the acknowledgment, and affidavits, unless there is evidence of fraud or forgery affecting the acknowledgment or affidavit. Thus, execution of a self-proving will avoids problems with hostile or unavailable witnesses. b. A will may be made self-proved if it is simultaneously executed and attested by acknowledgment of the testator and affidavits of the attesting witnesses, each made before an officer authorized to administer oaths and evidenced by the officer’s certificate, under official seal. c. A will may also be made self-proved at any time after its execution by acknowledgment of the testator and affidavits of the attesting witnesses, each made before an officer authorized to administer oaths and evidenced by the officer’s certificate, under official seal.

Answer 8

A holographic will is one written by the testator, entirely in his own handwriting. b. In order to qualify as a valid will under the Uniform Probate Code: (1) the material portions (2) signed by testator c. Material portions are: those portions that distribute money or property d. The testator is still required to have: (1) testamentary capacity (2) testamentary intent

Answer 9

ANSWER: Wanda had capacity and seemed to have capacity. Nothing of undue influence here. Validly attested, witnessed, signed, this will seems valid. Not holographic will.

Answer 10

a. Conditional wills are permitted; a will can be conditioned upon some event.

Answer 11

ANSWER: Letter to friend not likely will and not testamentary intent. If true condition, then no will. Lack of condition upon which the will is premised, then will is invalid.

Answer 12

1. The UPC will uphold as valid a contract to dispose of by will all or part of a person’s property, whether real or personal. 2. A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, may be established only by: a. provisions of the decedent’s will stating material provisions of the contract; b. an express reference in the decedent’s will to a contract and extrinsic evidence proving the terms of the contract; or c. a writing signed by the decedent evidencing the contract. 3. In many states, when two persons execute a single document as their joint will, this gives rise to a presumption that the parties had contracted not to revoke the will except by consent of both. Under the UPC, however: this does not create a presumption of the contract. 4. Both joint and mutual wills: are revocable. EXAMPLE: A has three children from a previous marriage. A, who is penniless, marries B, who is very wealthy. A and B have one more child. A and B enter into a contract that the child of their marriage should get half of their property, and the other half should be split among A’s children from the previous marriage. A and B execute wills in line with the contract. After B dies, A wants to change her will so that all her children get equal shares of her estate. If the existence of the contractual agreement can be proven because it is stated in the will along with the contractual provisions, then the contract will be honored. However, it will be honored as follows: the changed will will be admitted to probate, but the beneficiary who was negatively affected can sue the estate for damages or for specific performance.

Answer 13

ANSWER: to the new boyfriend. Under UPC joint will does not make a contract

Answer 14

A codicil is an instrument that is executed subsequent to a will and may be holographic. 2. A codicil by its nature refers to another document, by adding to, explaining, or deleting from an earlier testamentary instrument. a. As to the original will, a codicil republishes the will to which it refers, which means that the will is treated as if it was written for the first time as of the date of the codicil. 3. A validly executed codicil cures: most defects in the original execution of the will. EXAMPLE: In 2012, A signs a typed will witnessed only by J. The will provides, among other things, that Blackacre should go to X. The will is not valid. It is typed, and thus not holographic. It has only one witness, and so fails to meet the attestation requirements, nor was it attested by a notary public. Four years later, A executes a codicil specifying it a codicil of A’s 2012 will, making additional dispositions, and specifically republishing the 2012 will in all other respects. If the 2016 codicil is valid—if it is signed by A and properly attested—the invalid 2012 will’s provisions will become valid through the formalities of the codicil. EXAMPLE: A executes a will in September 2013, at which point he has two children. He executes a codicil in December 2015, by which point he has a third child, unnamed in either the will or the codicil. Because the codicil republished the original will as of the date of the codicil, the left-out third child could not claim to be after-born and would be deemed intentionally disinherited.

Answer 15

a. the UPC sections relating to form and execution of a will (Sections 2-502 or 2-503); b. in compliance with the law at the time of execution of the place where the will is executed c. the law of the place where at the time of execution or at the time of his death the testator is domiciled, has a place of abode, or is a national.

Answer 16

a. physical act (1) A “revocatory act on the will” includes: burning, taring, obliteration, destroyed, etc. (2) The key is that: the physical act must be done with revocatory intent. (3) If the testator does not perform the revocatory act, but directs another to perform the act, the act is a sufficient revocatory act if the other individual performs it in: the testators conscious presence. EXAMPLE: A called her attorney, B, and told him to immediately destroy her will. He did so while she was on the line. The attempted revocation is invalid. EXAMPLE: T’s will leaves Cynthia $10,000. T becomes disenchanted with Cynthia and crosses out the final zero (0), seeking to reduce her bequest to $1,000. T’s reduction of Cynthia’s gift is valid because it is a partial revocation by physical act. Cynthia will get $1,000. b. the execution of a later will that either expressly or implicitly revokes the will. (1) A revocation by a subsequent will may be partial to the original will or revoke the will in its entirety. (2) A will, duly executed and proved, that contains an express clause of revocation revokes all former wills. (3) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will: by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will (4) The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked. EXAMPLE: Testator has a first will that says, “Blackacre to A, my car to B, residue of the estate to C.” Testator then writes and properly executes a second will that makes no reference to revoking the earlier will. The second will provides, “I give Blackacre to R, and my residue to X.” There is no mention of the car in the second will. A and C have clearly lost their bequests by inconsistencies between the wills. B will not receive the car, because the later will makes a total disposition of the estate. (5) If a subsequent will does not fully dispose of the testator’s estate, it will revoke the previous will: EXAMPLE: Testator executes a first will providing, “I give $500 to Sue, my art collection to John, and the residue of my estate to Carrie.” Testator later executes a second will providing, “I give $300 to Warren and my art collection to Hank.” The second will does not have a residuary clause. If the second will does not specifically revoke the first, all provisions that can be given effect will be followed. Read together, Sue will still get her $500, the art collection will go to Hank instead of John, Warren will get his $300, and the residuary will still go to Carrie. c. operation of law (1) If the testator is divorced after making a will, all provisions of the will in favor of or relating to the spouse so divorced: become ineffective for all purposes unless it is apparent in the will that the provisions were intended to survive the divorce.

Answer 17

ANSWER: the second will was not revoked because this was just a copy. So nothing to cousin.

Answer 18

Answer: Probably. Revocation by both physical act and subsequent will, possibly. X and no way may be revocation. Later instrument -- talk about will being valid. will no. 2 must be valid. total distribution here. healthcare workers may raise some red flags. undue influence. disinheriting children is not a problem.

Answer 19

1. The doctrine of dependent relative revocation is the law of second best, i.e., its application does not produce the result the testator actually intended, but is designed to come as close as possible to that intent. 2. Rule: DDR (conditional revocation) says if a revocation was based on a mistaken belief, lift the revocation if that's what testator would have wanted.

Answer 20

1. The general rule is that: once a will is revoked it cannot be brought back to life 2. However, it can be revived: if the will is restated, re-executed, there is actual republication, or other clear evidence of intent to revive. a. Republication can be made by: resigning the original will that was later revoked, along with having witnesses re-attest the will 3. A codicil to a will: revives a will, so if a codicil is made to a revoked will, it will revive the revoked will as of the date of the codicil. EXAMPLE: Bill writes Will 1, providing “Blackacre to A, $200 to B, the residue to C.” Bill then executes Will 2 sometime later, which expressly revokes Will 1 and provides “$200 to X, residue to Y.” Later still, Bill executes a codicil to Will 1, which provides “I give my car to Z, and hereby republish Will 1 in all other respects.” This codicil now revives Will 1 and makes it a valid will again, as if it were written for the first time as of the date of the codicil. Therefore, all of Will 1’s provisions become later provisions in relation to Will 2. When Bill dies, it will be as if his will stated, “I give Blackacre to A, $200 to B, my car to Z, and my residue to C.” The impact of the republication of Will 1 by the codicil on Will 2 is that Will 2 will be considered revoked in its entirety, as Will 1 makes a total disposition of Bill’s estate, unless some evidence can be brought showing that Bill did not intend for this complete revocation.

Answer 21

ANSWER: you have attempted revocation by, but you probably have DRR. so she would get 20k since the 40k failed.

Answer 22

1. If a will is traced to the testator’s possession and cannot be found after death: the law presumes that the testator destroyed the will with intent to revoke it. 2. If the will is not in possession of the testator: if the will is not in possession of the testator, the presumption is not raised.

Answer 23

ANSWER: he is intestate

Answer 24

a. If testator signs the copy of a will, it becomes an executed copy and functions as a will. b. Revocation of an executed copy is effective revocation.

Answer 25

a. Unexecuted copies have no legal effect. | b. The revocation of an unexecuted copy means nothing.

Answer 26

A. In General 1. In a will contest, a person interested in the distribution of the estate objects to the admission of the will to probate on the ground that the will is invalid for some reason

Answer 27

1. Only someone who will have a beneficial interest if he succeeds can challenge a will. Heirs always have an interest, even if not named in an earlier will.

Answer 28

1. Only someone who will have a beneficial interest if he succeeds can challenge a will. Heirs always have an interest, even if not named in an earlier will.

Answer 29

a. lack of testamentary capacity b. undue influence c. mistake d. fraud e. ambiguity

Answer 30

a. Patent ambiguities: appear on the face of the document b. Latent ambiguities: ambiguities arise within the language of the will when a gift can go to different parties due to lack of specificity. Ex. two cousins james. c. Once an ambiguity, patent or latent, is established, both direct and circumstantial evidence of the donor’s intention may be considered in resolving the ambiguity in accordance with the donor’s intention.

Answer 31

1. Generally, an in terrorem clause in a will attempts to disqualify anyone contesting the will from taking under it. 2. These clauses are permitted, but courts dislike them and tend to construe them narrowly. 3. If the challenge goes to some kind of fraud:the court will neber hold the in terrorem clause as valid against the challenging party. 4. Most states hold that the clause is ineffectual if the person affected: had reasonable cause to contest the will

Answer 32

A. In General 1. Wills are always to be construed in accordance with the discernible will of the testator.

Answer 33

However, if a question of integration does arise, the will proponent must show that the will offered for probate is actually the will that the testator intended to make, and that no insertions or removals of pages from the will have occurred.

Answer 34

1. The UPC recognizes the common-law doctrine of incorporation by reference, which permits the inclusion by reference of unattested documents as part of a will if: a. the writing was in existence at the time of execution of the will b. the language of the will manifests this intent; AND c. describes the writing sufficiently to permit its identification. EXAMPLE: Jane’s will provides, “I want the provisions in the letter written by me on August 10th, 2014, which is now in my desk in my home, to be given effect.” When Jane dies, if a letter is found in Jane’s desk with that date, it will be given effect and incorporated into the will.

Answer 35

1. Under the doctrine of facts of independent significance, a will may provide for the designation of a beneficiary or the amount of a disposition by reference to some future unattested act occurring after the execution of the will. EXAMPLE: The actual property disposed under a bequest of “all my household furnishings” will be dependent on what kinds of property the testator dies owning. These are facts of independent—i.e., non-testamentary—significance. Alternatively, a bequest to “such persons as I have named in a paper to be found in my desk marked ‘Last Instructions’” would require the application of the doctrine of incorporation by reference. 2. An example of this is a residuary clause, which provides for everything not otherwise disposed to go to a particular beneficiary—everything done in life will affect that residuary clause. 3. Personal Property List a. The UPC recognizes the ability of a testator to make a writing that lists personal property the decedent would like to see have passed to certain individuals, if: the writing describes the beneficiaries and the property to be given away with reasonably certainty. b. The writing will dispose of the property even if not properly attested and must be signed. c. This writing can be created: after the will is in existence. d. The statute makes clear that money: not considered personal property for this 4. Dispositions to Inter Vivos Trusts a. If a testator makes a gift to a trust in existence at the time of the decedent’s death, that gift will be a valid disposition: even if the trust is created after the will was executed

Answer 36

1. A will speaks at death, so the situation in existence at the time of death will carry the day—think about after-born children. 2. The UPC takes the position that the will controls all probate assets of the decedent’s estate at the time of death, even if: that property is purchased before death but after the execution of the will. 3. Property acquired by a decedent after death may also be controlled by the will, such as post-death bonuses. 4. After-acquired property will not be disposed of by a will if the will does not speak at all to that kind of property interest. EXAMPLE: Testator executes a will giving $500 to X and all real property to Y. After the will is written, Testator purchases a car. When Testator dies, the car will not pass under the will, because the only provisions in the will involve cash and real estate; neither of these gifts could possibly include a car. This is a case of partial intestacy.

Answer 37

1. A surviving spouse has the right to decline to: to take under the will and instead may elect to take against the will under the statutory share. a. The amount is generally equal to: usually 50% of the marital property of the augmented estate b. The right of election survives even where the testator specifically left the spouse out of the will and purposely left nothing to the spouse. c. If the election is not exercised by the surviving spouse personally, it may be exercised on the surviving spouse's behalf by his conservator, guardian, or agent under the authority of a power of attorney. d. In any case, the surviving spouse must: be alive when the election is made

Answer 38

a. The surviving spouse must make her election within: 9 months of the date of decedent's death, or within six months after the probate of the decedent's will, whichever expires later

Answer 39

ANSWER: yes, elect against the will within 9 month of death or 6 months of probate, whichever is later

Answer 40

a. The surviving spouse of a decedent has a right to an elective share amount equal to 50% of the value of the marital property portion of the augmented estate. b. The augmented estate consists of the sum of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute: (1) the decedent’s net probate estate; (2) the decedent’s non-probate transfers to persons other than the surviving spouse; (3) the decedent’s non-probate transfers to the surviving spouse; and (4) the value of the surviving spouse’s net assets at the decedent’s death, plus the surviving spouse’s non-probate transfers to others. c. Under the Uniform Probate Code, the amount of the surviving spouse’s elective share is calculated by applying a specified percentage to the augmented estate as listed in a chart in the UPC. (1) The percentage of the augmented estate that becomes marital property is 3% if the spouses have only been married for a few months. (2) For a marriage of 15 years or more, the percentage caps at 100%, at which point the spouse takes 50% of that. d. In satisfying the amount of the elective share, the decedent’s probate and non-probate transfers to the surviving spouse and the marital portion of the surviving spouse’s assets are applied first. (1) If the amount of the elective share is not satisfied from these items: the decedent's probate and non probate transfers to others are proportionally liable to satisfy the balance. e. The UPC also provides for an amount of a supplemental elective share, a special feature for small estates that is designed to bring the surviving spouse’s assets up to at least $75,000, or as close to that figure as the value of the assets permits.

Answer 41

a. The right of election of a surviving spouse may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse. (1) This often occurs in prenuptial agreements between couples. (2) The waiver will be valid provided there was full financial disclosure, and the agreement is essentially equitable. b. If a transfer was supported by adequate and full consideration, it will be excluded from the augmented estate, even if the purchaser is a relative

Answer 42

1. If a testator’s surviving spouse married the testator after he executed his will, the surviving spouse is entitled to receive: her intestate share unless: a. there is something in the will which indicates that clearly indicates that the spouse was not intended to take anything under the will; b. if inter vvios gifts are made to the spouse in satisfaction of the spouse's share

Answer 43

1. Omitted Heirs: Children Living at Time of Execution of Will a. Generally, under the UPC, a testator can disinherit a child intentionally. There is no forced or elective share for children as there is for a spouse. b. Omitted heirs are children of the testator, living at the time of execution of the testator’s last will, who are neither mentioned nor provided for in the will and would have inherited from the testator had he died intestate. c. Recall that the UPC allows: negative wills ot disinherit the heirs of the testator, provide it express or necessarily implied

Answer 44

If the testator fails to provide in his will for his child born or adopted after making his will, the UPC protects such child from unintentional disinheritance, unless it appears from the will that the failure was intentional. (1) If the testator had no child living when the will was executed, an omitted after-born or after-adopted child: receives an intestate share. (a) Exceptions 1) unless the will devised all or substantially all of the estate to the other parent of the omitted child 2) unless it appears from the face of the will that the testator intended not to provide for child under the will (2) If the testator had one or more children living when the will was executed, and the will made a devise to one or more of the then-living children, an omitted after-born or after-adopted child is entitled to: share in the portion of the testator's estate devised to the testator's then-living children as if the child had been given an equal share of the portion of the estate. EXAMPLE: Testator writes a will when two children are alive, giving each $7,500. After the will is executed, a third child is born. There is no indication that the third child was intentionally omitted or disinherited. The after-born child is entitled to receive under the will. The disposition to the first two children will be combined, and the amount will be distributed proportionally to all three children. In this case, the two $7,500 dispositions will combine for a total of $15,000, and each child will get $5,000. (3) If the testator had living children at the time of the will’s execution but the children receive nothing: the after-born child will get nothing, as the already living children get nothing.

Answer 45

(a) Non-marital after-born children are entitled to take under this statute from their mother’s estate and from their father’s estate, if the father and mother of the child marry, or the father holds the child out to be his during his lifetime, or if there is clear and convincing evidence of paternity. b. If a valid codicil is executed after the birth of the after-born child, the entire will is republished as of that date. Thus, the statute does not apply, and the child is not entitled to an intestate share. EXAMPLE: A will is executed in 2010. Testator has two children at that time. A third child is born in 2012. A codicil is executed in 2015. The codicil republished the will as of 2015. The third child is no longer an after-born child.

Answer 46

Any rule that a charitable devise is invalid if it exceeds a certain proportion of the testator’s estate or if it is contained in a will that was executed within a certain time before the testator’s death is abolished.

Answer 47

(a) Any person who participates, either as a principal, co-conspirator, or an accessory before the fact, in the felonious and intentional killing of any other person: may not inherit any property or receive a benefit as a result of the decedent's death. (1) This will most often arise with insurance proceeds, contracts, and pension plans. b. The slayer rule does not apply: if the killing was accidentally. EXAMPLE: Howard dies of gunshot wounds inflicted by his spouse, Charlotte, who is later convicted of voluntary manslaughter. He died intestate, leaving Charlotte and his parents, George and Diane. Who takes his property? Because it is a felonious intentional slaying by Charlotte, she cannot take as an heir. The parents will split the property equally. Distribution of Property (1) The slayer will be deemed: to have predeceased the decedent. (2) This applies to property that would have passed from the decedent or his estate to the slayer under the statutes of descent and distribution or by statutory right of the surviving spouse. (3) For joint tenancy property, the property is converted from joint tenancy to tenancy in common, and the interest of the slayer prior to the slaying will be kept, but the other half (which the slayer would otherwise have gotten) passes as tenancy in common property to probate estate. d. Proceeds of Insurance (1) If the slayer is the beneficiary or assignee of a policy insuring the life of the decedent, or is the survivor of a joint life policy, the proceeds will be paid to the decedent’s estate, or, if designated, to a contingent beneficiary, even if the contingent beneficiary is a relative of the slayer.

Answer 48

a) Refusal to support; Desertion: (1) UPC requires some definitive legal act in order to bar a surviving spouse. i.e. killing/marrying someone else/getting very close to divorce. b. Effect of divorce and remarriage upon wills (1) If there is a divorce and the testator dies, the spouse is no longer the surviving spouse because she is not a spouse anymore. (2) This ends heirship rights at a minimum. (3) There must be a final legal decree of divorce; separation is not sufficient.

Answer 49

1. Under the UPC, a person who cannot be established: a. b. is deemed to have predeceased the decedent. 2. If the time of death of the decedent or the heir, or both, cannot be determined so as to establish that the decedent survived the heir by 120 hours: EXAMPLE: A and Spouse, B, die together in a car crash. Witnesses report that B survived A by two hours. B is treated as having predeceased A for purposes of succession, despite sufficient evidence of B’s chronological survival. 3. For joint tenancy property, the 120-hour survivorship rule is still applied. EXAMPLE: A and B are sisters and joint tenants in Blackacre. A and B die together in a car crash within 24 hours of one another. They are survived by their brother, C, and a woman named Louise. Sister A died intestate; her closest relative is her brother, C, who is her heir. Sister B died testate, and had a will specifically bequeathing all of her estate to her sister, A, with the residual to her friend Louise. A’s share of the joint tenancy will pass to her brother C through intestacy. As to B’s half of the tenancy, it cannot go to A, because A failed to survive B. Therefore, B’s half of the tenancy will fall into the residual estate, which means Louise will take B’s half of Blackacre. The result is that Louise and C will be tenants-in-common of Blackacre. EXAMPLE: Same facts as above, but A, B, and Louise all own Blackacre in joint tenancy. Louise will take the property fully.

Answer 50

ANSWER: parents, next of kin after his wife.

Answer 51

1. For a devise to refuse a devise: the person files a formal disclaiming stating that they do not want it. 2. In order to be effective, a disclaimer must: a. be in writing or other record; b. declare the disclaimer; c. describe the interest or power disclaimed; d. be signed by the disclaiming party; and e. be delivered or filed. 3. It is permissible for a disclaimer to be only a partial disclaimer and disclaim less than the full bequest, as opposed to having to disclaim all of it. 4. It is impermissible to disclaim where: a. the person receiving the property has waived his right to disclaim the bequest; b. the person has already received the property and accepted it; c. the interest in the property to be disclaimed has been assigned or encumbered (i.e., by mortgage); or d. the property has been sold in a judicial sale.

Answer 52

A disclaimer relates back: to the date of the death of the decedent b. The disclaimant is treated as having: predeceased the testator, even when the disclaimer is made after the death of the testator c. Two reasons people disclaim are: (1) to defeat creditors, because they are treated as having predeceased and thus would not take at all under the will for that property; and (2) tax purposes. EXAMPLE: Father dies intestate, and is survived by Son. Son has two children—X and Y—who also survive the death of Father. Father also had a daughter, Daughter, who predeceased Father, and who had a child of her own, Z. In an intestacy proceeding, Father’s estate will pass by representation, and so half would go to Son and half would go to Z, Daughter’s only child. If Son disclaims his share, it will be as if he predeceased Father, so X, Y, and Z—all the living persons in the next generation—will share Father’s estate equally and take one-third each. This would give Son’s children two-thirds of the total estate, as opposed to the one-half Son normally would have taken. d. Under the UPC, a disclaimer cannot be used to alter distribution in this way. (1) As a result, a disclaiming party’s children will only take: the share the disclaiming party would have taken.

Answer 53

1) gift by will of a specific article or other real or personal property, which is identified and distinguished from all other things of the same king, and is satisfied only by delivery of the particular thing. The use of possessive words (e.g., “my”) indicates that a specific legacy was intended.

Answer 54

one payable out of the general assets of the decedent's estate and not in any way separated or distinguished from other things of the like kind

Answer 55

3) it is a bequest of a certain sum to be paid out of a particular fund a. If the fund is not in existence at the testator’s death or if it is insufficient: the legatee will be entitled to satisfaction out of the general estate EXAMPLE: “100 shares of ABC stock to B,” or “$100 to A.” Note that the 100 shares of stock are not a specific devise of “my 100 shares of ABC stock.” The executor could buy any 100 shares of ABC stock (assuming it is publicly traded) and satisfy the legacy.

Answer 56

Ademption is what happens when a gift under a will fails for whatever reason.

Answer 57

Ademption by extinction can only occur with: a specific request or devise (1) If it is a general gift: it cannot adem by extinction b. A testamentary gift is adeemed by extinction—i.e., it fails—when: property specifically bequeathed or devised is not in the testators estate at his death EXAMPLE: If the testator specifically devised Blackacre to X, and then exchanged Blackacre for Whiteacre prior to death, the devise of Blackacre would be said to be adeemed by extinction. They get nothing. c. The reason the property is not there is irrelevant; only the fact that it is not there at all matters.

Answer 58

(1) However, if specifically devised property is sold or mortgaged by a conservator or agent acting by a durable power of attorney for an incapacitated principal: the devise has a right to a general devise equal to the sale price, the unpaid loan amount, or the recovery.

Answer 59

testator’s estate at the testator’s death, and to: (a) any balance of the purchase price, together with any security agreement, owed by a purchaser at the testator’s death by reason of a sale of the property; (b) any amount due for the condemnation of the property and unpaid at the testator’s death; (c) any proceeds unpaid at the testator’s death on fire or casualty insurance on or other recovery for injury to the property; (d) any real property or tangible personal property owned by the testator at death which the testator acquired as a replacement for specifically devised real property or tangible personal property. EXAMPLE: R provides in his will, “I devise Orangeacre, my vacation property, to J.” Prior to his death, R sold Orangeacre and bought Greenacre, a property that he used until his death as a vacation property. Under the exception to the ademption rule, Greenacre will be considered a replacement of Orangeacre, as they are both vacation properties, and J will get Greenacre. EXAMPLE: Same facts as above, but Orangeacre was commercial property (and specified as such in the will). Greenacre, used as vacation property, will not be deemed a replacement to Orangeacre, which was commercial property, and the specific bequest to J will therefore adeem.

Answer 60

(a) Dispositions of stock are often troublesome because it is unclear whether the testator intended a general or a specific bequest. (b) If the will says “my fifty (50) shares of Wood stock to Jimmy,” the possessive pronoun makes this a specific disposition of the identified shares (i.e., those the testator owns); if she owns none at her death, the bequest is adeemed. (c) If the will says “fifty (50) shares of Vladivos stock to Leonid,” and the testator owned no such shares at her death, the court interprets this as a general bequest, and Leonid is entitled to the value of 50 shares of Vladivos stock as of the date of the testator’s death.

Answer 61

An ademption by satisfaction occurs when a testator makes an inter vivos gift of property to a beneficiary of a general or residuary disposition with the intent that the provision of the will be thereby satisfied. b. Property a testator gave in his lifetime to a person is treated as a satisfaction of a devise only if: (1) the will provides for deduction of the gift; or (2) the testator declared in a contemporaneous writing that the gift is in sanctification of the devise or that its value is to be deducted from the value of the devise; or (3) the devisee acknowledge in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise. c. An inter vivos gift may satisfy a will bequest partially or in total satisfaction. EXAMPLE: T’s will provides, “I leave $10,000 to J.” During T’s life, he makes a gift of $3,000 to J, and in writing at the same time states, “This gift reduces the amount of any gift J takes under my will.” This will be sufficient to find that the gift will satisfy the will bequest. It will not be total satisfaction, however, because the gift is below the value of the will’s bequest. J will therefore take $7,000 under the will. If there were no writing at all, it would not be a satisfaction, because a contemporaneous writing is absent.

Answer 62

Answer: Sara ends up with two cars. Since the gift was given then she keeps that car.

Answer 63

If a person is given property under a will, and the property is subject to a lien: the beneficiary takes the property subject to the obligation. 2. However, if the testator in the will specifies for the executor to pay the debt on the property, the executor will do so, and the devisee will take the property free of the mortgage. a. Exception: A direction to pay “all debts and expenses” is considered boilerplate and will not cover mortgages.

Answer 64

1. If the assets of the testator’s estate are insufficient, after payment of all claims against the estate, to satisfy all the bequests or devises, the beneficiaries’ shares will abate, or be reduced. 2. Order of abatement: a. property that would pass intestacy b. residuary bequests c. general bequests d. demonstrative bequests e. specific bequests 3. Accordingly, the estate will be distributed as follows: a. Specific devisees get first and get their full bequests. b. Then general devisees will take, but their shares will be reduced as necessary (and proportionally) due to abatement.

Answer 65

ANSWER: Normally this would adeem. But we could argue that this could be replacement property and she may get it.

Answer 66

residuary first. Jill will still get Blueacre in full.

Answer 67

A class gift exists when the testator makes a gift to a number of persons as a group, and the size of the group may either increase or decrease in size. The share of each depends upon the ultimate number in the class. 2. Closing of Class: Maximum Membership a. As a general rule: when the testator dies.

Answer 68

Under the common law, a lapse occurs when a disposition fails because the beneficiary predeceases the testator. 2. Unless saved by the anti-lapse statute: a. A lapse in the body of the will falls: into the residuary if there is one, or if not, to intestacy b. A total lapse in the residuary of the will falls to: intestacy c. A partial lapse in the residuary falls to: the other residuary takers d. A lapse in a class gift falls to: the other class memebers

Answer 69

Under this statute, a gift is saved if: (1) the predeceasing beneficiary was closely enough related to the testator; and (a) Narrow view: Any descendant. (b) Broader view: Any relative but a spouse. (c) Broadest view: Any beneficiary no matter the relation. (2) the predeceasing beneficiary was survived by descendants who also survived the testator, then (3) Those descendants will take by anti-lapse unless: the will clearly expresses a contrary intent (1) Examples of an expressed contrary intent include: (a) testators specifically says anti-lapse does not apply (b) by specifying survival as a requirement and standing lapse as a result of failure; or (c) by implication by naming contingent beneficiary

Answer 70

ANSWER: Bobs family

Answer 71

The UPC requires that words of survivorship for class gifts be explicit that they do not want the anti-lapse statute to apply; otherwise, there is a presumption that it should. EXAMPLE: T has three daughters, A, B, and C. A dies in 1977, leaving issue. T executes a will in 1978, leaving his entire estate “to my daughters.” B dies in 1979, leaving issue. T dies in 1980. The disposition lapses with regard to A, and her issue take nothing. The disposition to B is saved from lapse by the statute. Her issue take her one-half share of the estate per stirpes, and C takes the other half.

Answer 72

Read the will. Mary like not getting house.

Answer 73

A. In General 1. Property of the estate that, for some reason, does not pass under a will passes according to state statutes called intestacy laws, or more specifically, “statutes of descent and distribution.” a. Bar exam questions pertaining to intestate succession generally fall into three categories: (1) questions of scheme (2) questions of status (3) questions of alteration 2. A testacy proceeding refers to a proceeding to establish a will or determine intestacy. a. Intestacy is total if the person who dies either does not make a will or makes a will that is invalid in its entirety. b. Intestacy is partial when the testator makes a will, but part of the property in the estate does not pass under the will. EXAMPLE: A leaves an estate (after expenses, debts, and taxes) of $1,000. His will states only that C, D, and E are each to receive $300, and does not specify what is to be done with any excess property. The $100 not distributed under the will shall pass by intestacy and be distributed according to the laws of descent and distribution

Answer 74

1. General Rule: A surviving spouse will always take some portion of the decedent’s estate. How much of the estate is taken by the surviving spouse depends on what other relatives of the decedent also survive that decedent. a. If there is no surviving descendant or parents: the entire estate goes to the surviving spouse b. If there is a surviving spouse and all surviving descendants are of both the spouse and decedent, i.e., there are no step-children on either side, again: the surviving spouse will take the entire estate c. If there is no surviving descendant of the decedent, but he is survived by a parent or parents: the first $300,000 plus 3/4 of the balance of the intestate estate goes to the surviving spouse (1) The remainder of the property: goes to the surviving parent, or if both parents survive in equal shares to each d. If there are surviving descendants of the decedent, all of whom are issue of the surviving spouse, and the surviving spouse has one or more surviving descendants who are not descendants of the decedent: (1) the first $225,000 plus one-half of the balance of the intestate estate goes to the surviving spouse; and (2) the remaining portion of the estate is divided among the decedent’s descendants. e. If there are any surviving descendants of the decedent who are not also descendants of the surviving spouse: (1) the first $150,000 plus one-half of the balance of the intestate estate goes to the surviving spouse; and (2) the remaining portion of the estate is divided among the decedent’s descendants. f. Bottom line: The more it looks like the surviving spouse will take care of the relatives of the decedent fairly, the more likely that she will take everything. But add in in-laws and steps, and the amount she will take goes down.

Answer 75

1. General Rule: A surviving spouse will always take some portion of the decedent’s estate. How much of the estate is taken by the surviving spouse depends on what other relatives of the decedent also survive that decedent. a. If there is no surviving descendant or parents: the entire estate goes to the surviving spouse b. If there is a surviving spouse and all surviving descendants are of both the spouse and decedent, i.e., there are no step-children on either side, again: the surviving spouse will take the entire estate c. If there is no surviving descendant of the decedent, but he is survived by a parent or parents: the first $300,000 plus 3/4 of the balance of the intestate estate goes to the surviving spouse (1) The remainder of the property: goes to the surviving parent, or if both parents survive in equal shares to each d. If there are surviving descendants of the decedent, all of whom are issue of the surviving spouse, and the surviving spouse has one or more surviving descendants who are not descendants of the decedent: (1) the first $225,000 plus one-half of the balance of the intestate estate goes to the surviving spouse; and (2) the remaining portion of the estate is divided among the decedent’s descendants. e. If there are any surviving descendants of the decedent who are not also descendants of the surviving spouse: (1) the first $150,000 plus one-half of the balance of the intestate estate goes to the surviving spouse; and (2) the remaining portion of the estate is divided among the decedent’s descendants. f. Bottom line: The more it looks like the surviving spouse will take care of the relatives of the decedent fairly, the more likely that she will take everything. But add in in-laws and steps, and the amount she will take goes down.

Answer 76

a. The shares of the estate, if any, to which the surviving spouse is not entitled, and the entire estate if there is no surviving spouse, pass in the following order: (1) If the decedent’s spouse is not entitled to a share in the estate, or does not survive him, or if the decedent is unmarried: the descendants of the decedent take. (a) “Representation” is defined differently in different jurisdictions. 1) Pure/strict per stirpes 2) Modern/modified per stirpes 3) UPC approach: Per capita by representation at each generation. (b) All three schemes in play. (c) On the bar exam, look to see if they give you an intestacy statute. (d) By representation through the following steps: 1) Go to the first generation under the decedent with at least one surviving member. 2) Count the number of live roots, not live members, in that generation. 3) Allocate a share to each living member in that generation. 4) Combine the remainder, if any, and repeat by distributing a share to any qualified takers at the next generation. NOTE: If a descendant predeceases the decedent and does not have any descendants of his own to take his share, the share fails, and it is treated just as if that child had never been born. EXAMPLE: X has two children, A and B. A has one child, A Junior. B has twins: C and CeCe. If X died survived by everyone, only A and B would share in X’s estate, taking one-half each. If A predeceased X, Junior would take what would have been A’s share, or one-half. If B predeceases X, C and CeCe would similarly split what would have been B’s share, taking 1/4 each. But if both A and B predecease X, the answer turns on what form of representation the jurisdiction applies. Under a pure per stirpes approach, often referred to as “strict” or “classic,” X’s estate would be initially divided into shares at the child level, no matter what. Therefore, since there were initially two children or “roots,” both of which were still “alive” (i.e., could continue to grow), Junior would take A’s one-half, and C and CeCe would take B’s one-half, or 1/4 each. Under modified or modern per stirpes, the roots are instead counted at the first generation from the decedent with at least one living member. Here, that would be the grandchildren generation from X. Since there are 3 living roots there, the estate would be divided into thirds, and Junior, C, and CeCe would each take 1/3 of X’s estate. EXAMPLE: T has three children: A, B, and C. B and C predecease T, but A survives. A has three children: 1, 2, and 3. B had one child, X. C had two children, Y and Z. T is thus survived by one child and three grandchildren. The estate is divided first by thirds, and A takes a third. 1, 2, and 3 take nothing, because A survived T. X, Y, and Z are treated equally under the rules of representation, so B and C’s shares will be combined into one share totaling two-thirds of T’s estate, and X, Y, and Z will split that evenly. (2) If the decedent is survived by neither spouse nor descendant: the surviving parents of the decedent take in equal shares (a) If only one parent survives: the parent takes all (3) If the decedent is survived by neither spouse, descendant, nor parents: the decedents of the decedent's parents or either of them by representation take (4) If there are no descendants, parents, or descendants of parents, go to the grandparents; or if none, to their descendants (e.g., aunts, uncles, cousins). (5) If there is no one there either, the estate will either pass to the next closest relative, or will escheat to the state. (6) Bottom line: Picture the family tree as a series of expanding pyramids. Intestacy laws try to protect those in the closest pyramid to the decedent, based on the notion that those “close in blood” are presumably also “close in heart.” The farther away the relative, the less likely that relative will inherit.

Answer 77

1. Applies to intestate succession as well. | 2. Heir must survive decedent by 120 hours.

Answer 78

Adopted Children a. The UPC follows a transplantation theory with regard to adopted children. (1) The theory holds that an adopted child generally loses any relationship with his natural parents and is generally treated as the natural-born child of the adoptive parents, so that such child can inherit from and through his adoptive parents and their kindred, and the latter can inherit from and through the adopted child. b. However, if a natural parent dies, and the child is later adopted: (1) within the decedent's family or; (2) by the surviving parent's new spouse the child will still have inheritance rights through the deceased natural parent’s family estate. c. In addition, if the natural parent remarries and consents to the adoption of his child by his new spouse: (1) the right of the adopted child to inherit from both his natural parents is not affects (2) A parent-child relationship exists between an individual who is adopted by the spouse of either natural parent. EXAMPLE: Following her divorce, Mother M gets custody of Child A and then remarries. If the stepfather, with M’s consent, now adopts the child, A will not be cut off from his natural mother and can inherit from M, as well as inherit from his natural father.

Answer 79

Stepchildren have no inheritance rights unless they are adopted, or unless they can prove adoption by estoppel (which is essentially an unperformed contract to adopt).

Answer 80

Half-blood relatives are siblings of the decedent by only one of his parents: their representatives take equally with relatives of the whole blood and their representatives EXAMPLE: If the decedent is survived by a brother who shares the same mother and father, and by a half brother who only shares the same mother, both brothers are on an equal footing for inheritance purposes.

Answer 81

A child born out of wedlock is considered the child of his mother and her kindred for purposes of intestate inheritance. b. For purposes of descent, a child born out of wedlock is also considered to be the child of his father if paternity is sufficiently established, such as where: (1) parents marry each other (2) during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home

Answer 82

(a) Persons conceived before the decedent’s death but born alive thereafter, take as if they were born in his lifetime. b. If the child does not survive 120 hours after its birth: it is not deemed as having survived the parent EXAMPLE: While A was pregnant with B’s child, B dies. B’s will provides that each of B’s children will get $25,000 from his estate. X, the unborn child, was born three months after B’s death. As long as X survives 120 hours after his birth, he will get $25,000 from B’s estate.

Answer 83

In most jurisdictions, those children will take if they were implatned with 33 months within death or long longer than 48 months after death

Answer 84

1. Similar to ademption by satisfaction. 2. If a person dies intestate as to all or any part of his estate, property that he gave to an heir in his lifetime is treated as an advancement against the estate only if: a. it is specifically or generally declared in a contemporaneous writing by the decedent; or b. acknowledged in any writing by the heir as an advancement 3. If property given is an advancement, it will reduce the amount of the person’s intestate share by the value of the advancement. 4. If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent’s intestate estate, unless the decedent’s contemporaneous writing provides otherwise.

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