Wills and Trusts Flashcards
(38 cards)
Intestate Succession
o Survived by spouse with no descendants – surviving spouse inherits entire estate
o Survived by spouse and descendants – surviving spouse inherits 1/2 or 1/3 of decedent’s estate, with remainder to surviving descendants
—UPC – if decedent’s descendants are also surviving spouse’s descendants, entire estate goes to surviving spouse
o Not survived by spouse – decedent’s surviving descendants inherit entire estate
o Not survived by spouse or descendants – decedent’s surviving parents inherit entire estate
Per capita with rep (modern per stirpes)
Divided into equal shares at first generation with living takers. Each living person takes a share and each share of a deceased person at that level passes to her descendants
- Majority of states
Per capita at each generation
Divided at first generation with living takers, but shares of deceased are combined and divided equally among takers at the next level
- UPC and growing number of states
Surviving descendants - Simultaneous death
One cannot take as an heir or beneficiary unless she survives decedent.
—Uniform Simultaneous Death Act – property passes as though the beneficiary/heir died before the decedent unless there is sufficient evidence decedent died first
—120-hour rule – beneficiary/heir is only treated as having survived decedent if there is clear evidence that she survived by 120 hours or more
Disclaimers
For fed. tax purposes, disclaimer must be in writing, irrevocable, and filed within nine months of decedent’s death. The interest then passes as if the disclaiming party predeceased decedent
Advancements
Inter vivos gift with the intent that it be applied against inheritance/wills
o At CL, gifts were automatically deducted from beneficiary/heir’s remaining interest.
o Now, gifts are only advancements if decedent declared an intent to make the gift an advancement in writing, OR the beneficiary/heir acknowledged the gift to be an advancement in writing
Wills
Operative upon death. A will must be at least:
(1) In writing
(2) Signed by testator – any mark intended to be a signature suffices. Presence and direction needed for proxy
(3) Signed by at least two competent W – must see testator sign the will + sign as witnesses in testator’s presence in a reasonable time
—-Licensed notary satisfies this requirement in many states
(4) Testator has capacity (18+ and mental capacity) and testamentary intent
Interested Witness to a Will
—-CL - Where a W stands to benefit under the will, the will is valid but gift to W is void unless there were two other disinterested Ws or the interested W would take if there was no will
—-UPC – presence of interested W does not invalidate a will or any part of it
Testator capacity
Testator has capacity (18+ and mental capacity) and testamentary intent
- Mental capacity – testator must understand the nature of his act, his property, the persons, and the disposition > Rebuttable presumption exists that testator had mental capacity
- Testamentary intent – testator must have present intent for the instrument to operate as his will
Attestation clause
Clause between testator and witness signatures in a will, which sets forth that all elements were satisfied > prima facie evidence of the facts recited
Holographic will
Handwritten, unwitnessed will. Replaces/revokes any prior valid will. Are required to:
o Be in testator’s writing
o Be signed
o Reflect testator’s intent to make a will
Codicil
An amendment, modification, or alteration to a previously executed will
o To be valid, a codicil must be executed with the same formalities required for the will itself
Construction of Wills
Ambiguity – extrinsic evidence is admissible to resolve ambiguity. Can be patent or hidden (cannot be carried out without further clarification)
Integration – occurs if:
o Physical presence — at the time of the will’s execution; and
o Intent of inclusion
– Can be established by W testimony and other extrinsic evidence
o Requirements are presumed where there is a physical connection/internal coherence
Acts of independent significance – > valid as long as the act or event has some independent significance (ex: identifying beneficiaries or property)
Incorporation by reference – where:
o Intent to incorporate
o Authenticated document — the will sufficiently describes doc so that it can be authenticated; and
o In existence upon will execution (BUT tangible personal property exception)
Mistake – permits the use of extrinsic evidence. C&C std to prove the testator’s intent.
Revocation
- by written instrument, as long as there is:
o Intent — present intent to revoke; and
o Formalities — made with the same formalities required for will execution - by physical act
- by partial marking - marks of cancellation on the will
o Where such marks are found on a will known to have last been in testator’s possession, a presumption is created that the marks were made by testator with the requisite intent to revoke
Revocation by operation of law
Marriage following execution of a will (omitted spouse) – no effect in most states, but under the UPC the omitted spouse will take a share of decedent’s estate equivalent to what their intestate share would be
- Not applicable if will makes clear that the omission was intentional
Divorce following execution of a will — revokes all bequests made in favor of the former spouse, unless will expressly provides otherwise.
Pretermitted children — where testator’s will does not provide for children born or adopted after the will was executed, most states give the pretermitted child a share of testator’s estate equal to what they would have received through intestate succession
Revival
Where a will is revoked and the revoking instrument is subsequently revoked, the original will is presumptively revived
o Will is not revived if testator’s statements or other evidence make clear she did not intend to revive the prior will
Dependent Relative Revocation (DRR)
Revives the revoked will if doing so would come closer to giving effect to what testator tried, but failed, to do than would intestate succession. Applies where:
o Revocation was premised on some mistake of law or fact;
o Revocation would not have occurred absent testator’s mistaken belief that some other plan for disposition of property was valid; and
o The originally revoked will is closer to testator’s preference than would be intestate succession
Ademption
A gift of specific property in a will fails if it is no longer in testator’s estate at death
o Applies to specific devises only. Exceptions: replacement, balance of purchase, proceeds
o Where a general or demonstrative gift fails, estate generally must sell off other prop to satisfy the gift
o A minority of states apply the intent theory of ademption, under which an adeemed bequest is saved if evidence establishes that ademption would be inconsistent with testator’s intent
Abatement
Where an estate’s value is insufficient to pay its obligations and provide for disposition of property under a will, it must reduce (abate) gifts to pay the obligations and satisfy some bequests/devises
o Estate must always pay off obligations before distributing assets
o Most states abate estate property in the following order: (1) Property not disposed of by will, (2) residuary estate, (3) general devises – abate pro rata, and (4) specific devises and bequests
Anti-lapse statutes
A gift provided in a will lapses where the beneficiary predeceases testator, but the lapsed gift will be saved and vests in the predeceased beneficiary’s descendants if predeceased beneficiary was (1) A relative of testator (usually descendants only); and (2) had descendants
Ks Involving Wills
Valid Ks to make, not make, or revoke a will are enforceable
- Additional requirements — UPC and some states also require either:
o Provisions in the will state the material provisions of the K,
o Express reference in the will to the K and extrinsic evidence proving the K terms, or
o Writing signed by decedent/testator evidencing the K
- Remedy for breach — constructive trust in favor of the intended beneficiary under the K
- Joint wills are likely to be K for wills, but mutual wills are not
Will contest - No-contest clauses
States vary on how strictly they apply no-contest clauses
o Majority – no forfeiture of interest if beneficiary challenges in good faith and on the basis of PC
o Minority – no-contest clauses given full effect regardless of challenging
Wills contest - undue influence
A will is invalid if executed while testator was subject to undue influence that effectively overrode testator’s free will. Will contestant has burden of proof and must show:
o Influence was exerted on testator;
o Testator’s mind and free will were overpowered; and
o Testator’s will would not have been executed absent undue influence
Presumption of undue influence arises if:
(1) A confidential relationship (e.g., attorney-client) existed between testator and beneficiary, who exerted influence; and
(2) Beneficiary participated to a significant degree in executing, drafting, or procuring testator’s will
- Fraud – where a will or some of its provisions are the result of fraud, the will or the provision is invalid. Must be shown that:
o Testator has been intentionally deceived as to:
Character or content of the will or its provisions, and/or
Facts extrinsic to the will that would induce the will or a particular provision or disposition
o Testator acted in reliance on the misrepresentation
