Wills/Decedent's Estates Flashcards
(81 cards)
1
Q
will subsitutues/non probate assets
A
Will substitutes that avoid probate inlcude:
* life insurance
* joint tenancies
* tenancies by entirety
* inter vivos trusts
* bank account trusts
* deeds
* contracts
* inter vivos gifts
2
Q
When does property pass intestate? 2 ways
A
Property may pass by intestate succession when:
* A decedent dies without having made a will or their will is denied probate (“total intestacy”)
* A decedent’s will does not dispose of all of the decedent’s property, either because a gift has failed or because the will contains no residuary clause (“partial intestacy”)
3
Q
What law applies to property owned by married couples?
A
Use the law of the domicile at the time the property was aquired. The marital rights do not change as the couple moves from one state to another.
4
Q
Which state’s intestacy law applies?
A
For personal property, use the law of the decedent’s domicile at death.
For real property, use the law of the situs of the property.
5
Q
Intestate share of surviving spouse
A
- Under modern law, the spouse is an heir.
- In most states, if the decedent is survived by a spouse but no descendants, the surviving spouse takes the entire estate.
- The share of the surviving spouse where the decedent has descendants depends on factors such as the number of children and whether the surviving spouse is the other parent of the deceased spouse’s children
6
Q
Share of survivng spouse with children
A
- In most states, if the decedent leaves descendants as well as a surviving spouse, the spouse takes one-third or one-half of the estate.
- Under the UPC, the surviving spouse takes the entire estate if the decedent is survived by descendants, all of whom are descendants of the surviving spouse
7
Q
Intestate Share of Children
A
- If all of the decedent’s children survive the decedent each child receives an equal share.
- A descendant of a younger generation (such as a grandchild) cannot take if the older generation (the grandchild’s parent) is still alive.
There are three methods of computing shares when a decedents child predeceases them but the predeceased child also has children:
* Classic Per Stirpes (old/minority)
* Per Capita with Representation (majority)
* Per Capita at Each Generational Level (modern trend)
8
Q
Classic Per Stirpes (old/minority)
A
Shares are divided equally among first generation, even if no survivors. Any first generation descedents’ shares are then distributed evenly to their survivors
9
Q
Per Capita with Representation (majority) (modern per stirpes)
A
shares are divided equally among the first generation. If there are any first generation predecedents, their shares will be distributed evenly amongst all the living children of the first generation predecedents.
10
Q
Per Capita at Each Generational Level (modern trend)
A
shares are divided equally among the first generation. If there are any first generation predecedents, their shares will be distributed evenly amongst all members of the next generation, whether or not their parents are deceased. (All cousins are treated equally)
11
Q
Order of intestate takers if decedent has no spouse or children
A
The estate passes down this list until takers are found.
1) Surviving parent(s)
2) Brothers and sisters and their descendants
* Note that if one parent and at least one sibling survive, the UPC and some states give the entire estate to the surviving parent. Other states give one-half to the surviving parent and one-half to the sibling or siblings
3) One-half each to paternal/maternal grandparents (both halves to one side if there are no takers on the other side)
4) One-half to nearest kin on each side (all to one side if there are no kin on the other side)
5) estate escheats to the state
12
Q
How are adopted children considered in intestacy?
A
- adopted children are treated the same as the biological children of the adopting parents.
- adopted children have no succession with biological parents unless they were adopted by a step parent.
13
Q
How are step and foster children considered in intestacy? (adoption by estoppel)
A
- stepchildren and foster children have no inheritance rights unless adopted by the stepparent or foster parent.
- adoption by estoppel permits - foster or step child can inheret when legal custody of a child is gained under an (unfulfilled) agreement to adopt them.
14
Q
How are non-marital children considered in intestacy?
A
A nonmarital child always inherits from the mother.
Generally, the child will inherit from their father if:
(1) the father married the mother after the child’s birth;
(2) the man was adjudicated to be the father in a paternity suit; or
(3) after his death and during probate proceedings, the man is proved by clear and convincing evidence to be the father.
15
Q
How are posthumous children considered in intesacy?
A
If a person is in gestation at the time of the intestate’s death, most states
will allow that person to be an heir.
16
Q
How are half blooded children considered in intesacy?
A
The UPC and most states make no distinction between half bloods and whole bloods; they inherit equally.
17
Q
Disinheretance clauses and partial intestacy
A
- At common law and in most states, a will provision expressly disinheriting an heir is ineffective as to any property passing by intestacy.
- However, under the UPC and statutes in several non-UPC states, a testator may exclude the right of an individual to succeed to property passing by intestate succession (a “negative” will provision).
18
Q
Effect of lifetime gifts on intestacy/wills (advancement)
A
- An advancement is a lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate.
- Under moden law, for a gift to be considered an advancement there must be evidence of intent such by written or extrinsic evidence (declared by donor or aknowleged by donee).
- If found to be an advancement, the gift’s value when given is added back into the estate for purposes of calculating shares, and then subtracted from the recipient’s share.
19
Q
Effect of simultanous death on intestacy/wills
A
Provisions in will control. If no applicable will provision, there are two major approaches:
120-hour rule
* Many states and the UPC require that a person survive the decedent by 120 hours to take any distribution of the decedent’s property.
Uniform Simultaneous Death Act
* If order can be determined, even if difference in time of death is only minutes, regular rules apply.
* If order of death cannot be determined, the property of each decedent is disposed of as if they had survived the other.
20
Q
Disclaimer by heir or beneficiary
A
- Any heir or beneficiary can disclaim an interest.
- In most states, a disclaimer must be written, signed by the disclaimant, acknowledged before a notary, and filed with the appropriate court within nine months of death (although the time period may vary).
- An interest cannot be disclaimed if the heir or beneficiary has accepted the property or any of its benefits.
- The disclaimed property passes as if the disclaimant had predeceased the decedent.
21
Q
Slayer Statute
A
- person who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate.
- The property passes as though the killer predeceased the victim.
- In the absence of a murder conviction, the court must generally find that the killing was unlawful or intentional by a preponderance of the evidence
22
Q
What is a will and what are its effects?
A
- A will is an instrument that directs the disposition of a person’s property at death.
- The only way to avoid intestacy is to leave a valid will disposing of all probate property.
- A will is revocable during the testator’s lifetime and operative at their death.
- A codicil is a supplement to a will that modifies it.
- Most states require strict compliance with formalities, but UPC uses a subsantial compliance test, excusing minor harmless errors. This also applies to the attempted revocation or alteration of a will
23
Q
What is a “savings statute”
A
Most states and the UPC have a “savings statute,” that is, a will is admissible to probate in a jurisdiction if the will has been executed in accordance with the law of:
(1) that jurisdiction,
(2) the state where the will was executed,
(3) the testator’s domicile at the time of the will’s
execution, or
(4) the testator’s domicile at death
24
Q
4 elements of a valid will
A
1) legal capacity
2) testamentary capacity
3) testamentary intent
4) formalities
25
expectancy
Because a will is not operative until the testator’s death, a
beneficiary has merely an expectancy (not a property
interest) until that time.
26
Legal Capacity to make a will
testator must be
* 18 year old and
* of sound mind
27
Testamentary Capacity
A testator simply must have the capacity to understand:
* The nature of their act—that is, that the testator is executing a will
* The nature and extent of their property
* The persons who are the natural objects of their bounty (family members)
* The above factors and be able to formulate an orderly scheme of disposition
Remember:
* Capacity is determined at the time of the will's execution.
* Failing memory, age, or addition do not neceessarily invalidate a will.
* Even a person adjudicated incompetent may be able to execute a will during a “lucid interval.”
28
Testamentary Intent
* The testator must have **present** intent that the instrument operate as their will.
* testamentary intent will be found only if it is shown that the testator:
(1) intended to dispose of the property;
(2) intended the disposition to occur only upon his death; and
(3) intended that the instrument in question accomplish the disposition.
29
Will Formalities for an Attested Will
The formalities required vary from state to state, but most
states require that:
1) The will or codicil must be in **writing**. some states permit “e-wills”.
2) The will or codicil be **signed by the testator** (or an agent) **in the physical presence of two witnesses**
3) The **two witness sign in the physical presence of the testator**
Notes:
* Some states and the UPC allow notarization to substitute for the
attestation of witnesses.
* A signature is any mark with intent to authenticate).
* In some states a bequest to an interested witness who is also a beneficiary may be void under a “purging statute”
* Change made after the execution of an attested will are usually not given effect, unless a holographic will is allowed.
30
Holographic Will
* A holographic will is one that is entirely in the testator’s handwriting and has no attesting witnesses.
* A holographic will must contain the testator’s signature.
* Many states do not recognize holographic wills
* Most states that recognize holographic wills also give effect to handwritten changes made by the testator after the will is completed.
* In a jurisdiction that recognizes a holographic will, a modification to an attested will may be construed as a holographice will.
31
Oral Will
* Most states and the UPC do not recognize oral Wills
* Some states recognize them for personal property for soldiers and people in contemplation of immediate death if two witnesses are present.
32
devise/bequest/legatee
devise - gift of real property
bequest - gift of personal property
legacy - gift of personal property in a will (usually money)
33
Specific Devise or Legacy
A specific devise or legacy is a gift of a particular item of property distinct from all other objects in the testator’s estate (not money).
A will becomes effective at the time of death. Therefore, if a specific bequest is not detailed (i.e. "my automobile") ** the will should operate upon cirumstances and properties as they exist at the time of death**.
34
General Legacy
A general legacy is a gift of a general economic benefit (often a dollar amount) payable out of the general assets of the estate without requiring any particular source of payment. If the designated fund is insufficient, the balance will usually be paid from other assets of the estate.
35
Demonstrative Legacy
A demonstrative legacy is a gift of a dollar amount that is to be paid
from a particular source or fund.
36
Residuary estate
The residuary estate, and hence a gift of the residue, consists of the balance of the testator’s property after paying (1) debts, expenses, and taxes; and (2) specific, general, and demonstrative gifts
37
What is ademption
Ademption refers to the failure of a gift because the property is no longer in the testator’s estate at the time of their death.
38
The effect of Ademption in the case of specific bequests
Most states follow the **“identity” approach**: If secifically bequeathed property is not in the testator’s estate at death, the bequest is adeemed and the beneficiary takes nothing. No substitute or value.
Some states have an **"intent test"**: beneficiary will get a substitute if they can show that the testator intended them to take substitute property
Some states have **statutes modifying ademptions,** such as allowing the benefiary to take:
* a replacement item if the testator replaced the gifted item with a similar item
* the balance of the purchase price if the gift was sold
* the condemnation award or inusrance if loss occured after testators death
* the proceeds from sale if item was erroneous sold by guardian or conservator.
39
Ademption by satisfaction
* A testamentary gift may be satisfied in whole or in part by an intervivos transfer from the testator to the beneficiary after the execution of the will, if the testator intends the transfer to have that effect.
* **Most states require a writing or specific instructions in the will before the gift is deemed a satisfaction**.
* Anaglous to advancement in intestacy
40
changing value of gifts
Appreciation and depreciation of specifically gifted property between will execution and death is normally irrelevant.
41
Securities Acquired After Will Execution
**stocksplits/dividends:** At common law, a specific bequest of stock includes any additional shares produced by a stock split but does not include shares produced by a stock dividend. Today, the UPC and nearly all states also include stock dividends.
**DRIPs:**The beneficiary does not take new securities that have been purchased or acquired by the reinvestment of dividends.
42
Exoneration of liens
* The UPC and a large number of states provide that liens on specifically devised property are not exonerated (paid off with estate funds) unless the will so directs. This means the beneficiary takes the property subject to the debt.
* Under common law liens are exonerated first.
43
Abatement - not enough money
Abatement - reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims and satisfy all bequests and devises.
If the testator does not set out an order of abatement in the will, testamentary gifts will usually abate in the following order:
* Property passing by intestacy
* Residuary estate
* General legacies
* Demonstrative legacies
* Specific bequests and devises
44
Lapsed gifts and anti lapse statutes
A gift lapses if the beneficiary predeceases the testator or disclaims.
Who receives a lapsed gift is controlled by:
* The express terms of the will
* Rule of law (such as an anti-lapse statute)
* Residuary clause
* Intestacy
Notes
* Most states have anti-lapse statutes that prevent lapse by substituting the descendants of the predeceased beneficiary for the beneficary.
* Antilapse does not apply to non-blood-relatives (doesn't apply even to spouses!)
* In most states, words of survivorship in gifts to be split among a class are considered a contrary will provision, and the anti-lapse statute will not be applied.
* In many states, the rules that apply to lapsed gifts also apply to void gifts such as gifts to people who are deceased at execution.
45
Who can raise will interpretation and construction issues?
* personal representative of testator
* beneficiares/heirs who don't like the will as written
46
Basic rules of will construction if intent is not clear
* Avoid intestacy
* Among two or more contradictory provisions in a will, the later one prevails
* The will is construed as a whole, not from isolated parts out of context
* Words are given their ordinary meaning unless intended otherwise
* Technical words are given their technical meaning unless intended otherwise
* Attempt to give effect to all words the testator included in the will
47
Interpreting a facial ambiguity - can extrinsic evidence be used?
* Extrinisic evideince is admissible to address ambiguity but not blanks or omissions.
48
Interpreting a latent ambiguity - can extrinsic evidence be used?
The court will consider extrinsic evidence to resolve the ambiguity.
49
Interpreting an alleged mistake
Several schools:
* Plain meaning rule - no extrinsic evidence under any circumstances
* Modern rule - extrinsic evidence permitted if it speaks to testators intent, but only available in case of scriviners error
50
three recquirement for **Incorporation** of a document into a will **by reference**
A document may be incorporated by reference into a will, provided:
(i) The will manifests an intent to incorporate the document
(ii)The document is in existence at the time the will is executed; and
(iii)The document is sufficiently described in the will
Many states dispense with the existence requirement for personal property
51
Separate writings disposing of tangible personal property
Some states permit a testator to refer in their will to a list specifying the distribution of items of tangible personal property and to write or alter that
list after executing the will.
52
references in a will to acts or facts of independent significance (such as boxes)
* A will may reference the disposition of a certain box and its contents, even if the contents may change after the will is written.
* However, law may require certain items represented by title documents to be transferred in a particular manner such as real property, stock certificates, and bank accounts.
53
Conditional Wills
* A conditional will is one that provides that it is to be operative only if a certain event occurs or does not occur. Must very clear in the will itself.
* Courts will construe wills as general, not conditional, if possible.
* Parol evidence is not admissible to show that a will absolute on its face was intended to be conditional.
54
Codicil
* A codicil modifies a previously executed will and must itself be executed with the same formalities.
* Any addition, alteration, interlineation, or deletion made after the will has been signed and attested is ineffective to change the will, unless the will is reexecuted with proper formalities (or the changes qualify as a holographic codicil where such codicils are recognized).
* A validly executed codicil is generally viewed as impliedly incorporating a defective will by reference, thus validating the will.
55
the doctrine of republication by codicil
The will and codicil are treated as one instrument speaking from the date of the last codicil’s execution.
56
Pour over provision
* A pour-over provision is a provision in a will making a gift to an inter vivos trust.
* Despite the fact that the fact that the trust may be amended or revoked after execution of the will.
* The trust does not have to be funded prior to the testator’s death.
57
Integration of a will
* The pages present at the time of execution must be those present at the time of probate.
* Physical attachment, internal coherence of pages, or an orderly dispositional plan raise a presumption that the pages were present and intended to be part of the will when it was executed.
* Proof of integration can also be provided by testimony or other extrinsic evidence.
58
Reciprocal or Mutual Will
* Reciprocal or mutual wills are separate wills executed by two or more testators that contain substantially similar provisions. These are often called “sweetheart wills.” - they are totally fine and not problematic.
59
Contractual Wills
* A contractual will is a will executed or not revoked as the consideration for a contract. A contract to make, not to make, or not to revoke a will is valid.
* Contract law controls.
* Modern law requires a writing, and many states have enacted statutes requiring that these contracts be in writing or be specifically mentioned in the will.
* The contract becomes irrevocable upon the first testator’s death.
* If one testator repudiates the contract while alive after substantial performance by the promisee, the promisee may seek damages, quantum meruit, or equitable relief.
* If one party party dies in reliance on a contract not to revoke, the court will usually create a constructive trust in favor of the intended beneficiaries of the contractual wills.
60
Power of appointment
* A power of appointment is an authority granted to a person, enabling that person (the donee of the power) to designate, within the limits prescribed by the creator of the power, the persons who shall take the property and the manner in which they shall take it.
* **general power of appointment** - donee can give property to anyone, including themselves.
* **special power of appointment** - exercisable in favor of a limited class of appointees. Does not include the donee, their estate, their creditors, or the
creditors of their estate.
* power not subject to spouse's elect share or donee's creditors.
* power can be found by implication unless specifically mentioned elsewhere.
61
Revocation of wills
* A person with testamentary capacity may revoke their will at any time
prior to death.
* A will may be revoked by operation of law, by subsequent instrument, or by physical act.
* Even a will that the testator has contractually agreed not to revoke may be revoked, but the beneficiaries may then have a breach of contract action against the estate
62
Effect of marriage on a Will
Most states- no effect
UPC- new spouse takes an intestate share as an “omitted spouse” unless:
* The will makes provision for the new spouse
* The omission was intentional, or
* The will was made in contemplation of the marriage
63
effect of divorce on a will
* divorce or annulment following execution of a will revokes all gifts and fiduciary appointments in favor of the former spouse inlcuding appointments as executor, guardian, or trustee.
* UPC extends revocation to the former spouse’s relatives who are not relatives of the testator.
* remarraige un-revokes
64
Pretermitted Children Statute and child disinheretance.
* A testator may intentionally disinherit their children
* A petermitted children statute provides a statutoty share for a left out child on the assumption that the testator would have made provision for the child.
* Most states provide a forced share for a child who was born or adopted after the will was executed. Usually same calcuation as intestate, except the portion of the estate to which the pretermitted child is entitled is limited to the provisions made to the other children
* Not applicable if whole estate is left to pretermitted child's other parent
* An amendment of any sort after a child is born creates a presumption that the child was intended not to be in the will.
* Children mistaken to be dead will share in the estate as though they were an omitted afterborn child.
65
Revocation of a Will by Physical Act
Under a typical statute, a will or codicil can be revoked by
1) burning, tearing, canceling, or obliterating a material portion of the will
2) by the testator or by a proxy in the testator's presence
3) with the concurrent intent to revoke.
The revocation of a will revokes all codicils to it, but revocation of
a codicil to a will does not revoke the entire will.
Most states allow partial recovation (crossing out) but not additions without the proper formalities.
66
Revocation of a Will in Writing
All or part of a will may be revoked or altered by a subsequent instrument that is executed with the same formalities as a will.
The subsequent instrument may expressly revoke the earlier will (this is my last will - insufficient, but may revoke by inconsistency)
If the new instrument completely disposes of the testator’s property, the old will is completely revoked by inconsistency. If the new instrument partially disposes of the testator’s property, the old will is revoked only to the extent of the inconsistent provisions.
67
Presumptions as to revocation
If a will is found in a “normal location” and there are no suspicious circumstances, there is a presumption that the testator did not revoke it.
If a will last seen in the testator’s possession or under their control cannot be found after their death or is found in a mutilated condition, a rebuttable presumption arises that the testator revoked it.
68
Lost or destroyed Wills
If a will is lost or destroyed (and the presumption that the testator revoked it is overcome), it may be admitted to probate if the following can be proven:
(1) valid execution;
(2) the cause of nonproduction (that is, proof that the will was not revoked); and
(3) the contents of the will (2 witnesses or photcopy)
69
Approaches to Revial of Revoked Wills
UPC/Testators intent: A wholly revoked will remains revoked unless it is evident that the testator intended to revive (that is, restore to effectiveness) the previous will. If the original will was only partly revoked, the revoked provisions are revived unless it is evident that the testator did not intend to revive the provisions.
Automatic Revival:
No Revial: a new will acts as an indepent revocate and replacement.
70
Implied Conditional Revocation or **Dependent
Relative Revocation**
Testator excutes will 1, then revokes will 1 for will 2, but will 2 turns out to be invalid.
DDR applies to hold to the testators intent that the earlier will is preferable to intestacy.
The more similar the provisions of the two wills, the more likely the
court will apply DRR.
71
Spouses elective share statutes - override will
* Common law marital property states have elective share statutes that give the spouse an election to take a statutory share of the decedent’s estate in lieu of taking under the decedent’s will.
* Spouse gets option to have a statutory share regardless of the will.
* amounts vary widely
* usually calculated from the decedent’s net estate (probate estate minus expenses and creditors’ claims).
72
Homestead statutes
statutes that protect the family residence from creditors’ claims. Often allow decedent’s spouse or dependent children to occupy for life despite the disposition of the residence in the decedent’s will.
73
Family Allowance
Provide support for decedent's family during probate administration, and usually takes precedence over all claims other than funeral and administration expenses.
74
Exempt personal property for surviving spouse
A surviving spouse usually entitled to petition to set aside certain items of tangible personal property (ex. household furnishings, personal effects) as exempt from claims against the estate. These items are in addition to the amounts passing by will, intestacy, or elective share.
75
7 grounds for Will Contests
Only interested parties have standing
The will contestant has the burden to prove the will is invalid.
Grounds for challenge are:
(1) defective execution,
(2) revocation,
(3) lack of testamentary capacity,
(4) lack of testamentary intent,
(5) undue influence or duress,
(6) fraud, and
(7) mistake
76
Insane delusion challenge to testamentary capacity
Insane delusion destroys testamentary capacity only if there is a connection (nexus) between the insane delusion and the property disposition.
77
undue influence challange to will validity (high bar)
Requires more than badgering. Mere pleading, begging, nagging, cajoling, or even threatening do not constitute undue influence. Susceptibility is not sufficient to establish. **The free will of the testator must be destroyed.**
To establish undue influence, the contestants must establish that:
1) The influence existed and was exerted
2) The **effect of the influence was to overpower the mind and free will of the testator** (so that the will reflects the desires of the person exerting the influence instead of the testator); and
3) The resulting testamentary disposition would not have been executed but for the influence (causation)
Circumstantial evidence to prove undue influence includes:
* Unnatural dispositions, such as cutting out close family
* Opportunity or access to testator
* Confidential or fiduciary relationship between parties
* The ability of the testator to resist
* The beneficiary’s involvement with the drafting or execution of the will
Presumption of undue influence if
1) there was a confidential relationship between the testator and a beneficiary,
2) that beneficiary was active in procuring, drafting, or executing the will.
No automatic presumption between spouses.
Gifts to attorney-drafter-beneficiary are void.
78
duress challange to will validity
Connotes violent conduct
such as the threat of physical harm
79
Fraud challange to will validity
Elements of Fraud
1. False representation made to the testator
2. Knowledge of falsity by person making the statement
3. The testator reasonably believed the statement
4. The statement caused the testator to execute a will or make a particular disposition that the testator would not have made but for the misrepresentation
Fraud in the execution (Factum) - misrepresentation as to the identity or contents of the instrument. Fials testementary intent.
Fraud in the Inducement - misrepresentation as to extrinsic facts that would induce the will or a particular disposition. The will or the particular gifts affected by the fraud must be set aside.
If a testator is fraudulently prevented from making a will, some courts will impose a constructive trust against the intestate beneficiaries in favor of those
who would have taken had the will been made.
80
No-Contest Clause
A clause in a will providing that a beneficiary forfeits their interest in the
estate if they contest the will and lose.
Under majority rule will be enforced unless the beneficiary had probable cause for bringing the contest.
81
Mistake challange to will validity
A mistake is an error that was not caused by evil conduct.
**Mistake in Execution (factum):** testator is in error regarding the identity or contents of the instrument and thus lacks testamentary intent. Extrinsic evidence is admissible to prove. **Court will grant relief **where nature of the mistake is obvious.
**Mistake in inducement:** the testator is mistaken as to
some extrinsic fact and makes their will based on that erroneous fact. **No relief.**
