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MEE Wills, Trusts, & Estates (for UBE) > Wills & Estates > Flashcards

Wills & Estates Flashcards

1
Q

Intestate Succession

A

Any property not passing by a valid will or by operation of law is governed by a state’s applicable intestacy statute.

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2
Q

Distribution of Assets (most states)

A

Assets pass by the Per Capita at Each Generation approach.

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3
Q

Under typical intestate succession rules, what happens if a Decedent only has a surviving spouse and no issue?

A

Spouse will receive the entire estate

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4
Q

Under typical intestate succession rules, what happens if a Decedent leaves a surviving spouse and issue?

A

Most states > spouse and issue will each receive a certain % (by statute)

UPC > spouse receives the entire estate if ALL issue are from that spouse

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5
Q

Under typical intestate succession rules, what happens if Decedent does not leave a spouse?

A

Decedent’s issue will receive the entire estate

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6
Q

Under typical intestate succession rules, what happens when a Decedent does not leave a spouse or issue?

A

The surviving parents will take. If no surviving parents, the issue of the parents (siblings of decedent & siblings’ issue) will take.

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7
Q

Will Execution Formalities

A

Most states require a will to be > (1) in writing (2) signed by testator, and (3) witnessed by at least two individuals

UPC requires a will to be > (1) in writing (2) signed by testator (or someone in testator’s presence and by testator’s direction) and (3) either: signed by at least 2 witnesses (within a reasonable time after witnessing testator sign the will) or be notarized.

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8
Q

When witnesses sign “within testator’s presence,” what does that mean?

A

Majority view & UPC > if within the range of the testator’s senses

Minority view > if within the testator’s line of sight

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9
Q

Strict Compliance with Will Execution Formalities

A

Common law > will is invalid if it does not meet state law requirements

Strict compliance is required.

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10
Q

Substantial Compliance with Will Execution Formalities

A

Some states > Will is valid if decedent substantially complied with formalities

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11
Q

UPC Harmless Error Rule

A

An improperly executed Will is valid if:
1. proven by clear and convincing evidence; and
2. the decedent intended the writing to be his Will

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12
Q

Doctrine of Integration

A

Integrates a document into a Will if the testator:
1. intended it to be part of the Will; and
2. the document was physically present at the Will’s execution

May be proven by extrinsic evidence or witness testimony.

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13
Q

At common law, a will must be witnessed by 2 disinterested witnesses, but what is the Modern View (All States)?

A

A will is valid even if witnessed by an interested witness. However, the gift to that witness is purged unless:
1. the interested witness is an heir (gift reduced to lesser of intestate share or gift under prior will; or
2. if another disinterested witness was present so that there were still 2 disinterested witnesses.

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14
Q

Codicil

A

An instrument made after a will is executed that modifies, amends, or revokes a will

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15
Q

When is a codicil valid?

A

It must satisfy the same will execution formalities

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16
Q

When a Codicil republishes a Will

A

The Will is deemed executed on the same date as the Codicil.

However, a Codicil cannot republish an invalid will (but it can cure an interested witness issue).

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17
Q

Holographic Will

A

A handwritten will (or alteration of a will) that is not witnessed

Some states > recognize holographic wills, but writing must be subscribed by testator (signed at the end)

In those states, a valid holographic codicil revokes an earlier will to the extent it conflicts.

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18
Q

Incorporation by reference

A

A bequest through an unattested memorandum is valid if it meets requirements for incorporation by reference.

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19
Q

Elements of Incorporation by Reference (Most States)

A
  1. Writing was in existence at time will was executed;
  2. Sufficiently described in the will; and
  3. Testator intended to incorporate it into the will
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20
Q

Elements of Incorporation by Reference (UPC)

A

Bequest of tangible personal property (other than money) will be incorporated if:
1. signed by testator; and
2. item & devisees are described with reasonable certainty

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21
Q

Acts of Independent Significance

A

Acts or events with significance outside of the will-making process that can be used to fill any gaps in a will.

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22
Q

Revocation by Physical Act

A
  1. testator intended to revoke the will; and
  2. it is burned, torn, destroyed, or cancelled by the testator (or by someone at testator’s direction)
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23
Q

When are words of cancellation valid?

A

Common law > valid only if they come into physical contact with the cancelled words of the will (i.e., written over)

UPC > words are valid written anywhere on the will (no physical contact required)

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24
Q

Revocation by Subsequent Will or Codicil

A

The revocation is valid only to the extent that the previous will conflicts with the new will unless the new will expressly revokes the prior will in its entirety.

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25
Q

Dependent Relative Revocation Doctrine

A

Cancels a previous revocation made under mistake of law or fact and applies when testator would not have revoked the original will or bequest but for the mistaken belief that another will he prepared would be valid.

Courts typically apply this only when there is a sufficiently close identity to the revoked bequest and the bequest in the invalid subsequent will.

26
Q

Revival of an Earlier Will

A

Common law > automatically revived if subsequent will was revoked

Modern view > permitted only when (1) will is revoked by physical act and testator intended its revival or (2) will is revoked by subsequent instrument and that will is later republished by subsequent will or codicil

UPC > Automatically revived but only if the will was partially revoked by a subsequent instrument (unless no testator intent to revive)

27
Q

Contractual Wills

A

Contracts to execute mutual wills are enforceable so long as it expressly states that the parties intend their wills to be a binding contract and there is a specific reference to the contract on which the joint wills are based.

Execution of joint will or mutual wills does not create a presumption of a contract not to revoke a will.

28
Q

When does a will take effect?

A

Takes effect and is construed at time of testator’s death.

A beneficiary has no interest in estate property prior to testator’s death.

29
Q

Per Capita at Each Generation

A

See image below for explanation.

30
Q

Per Capital with Representation
(Modern Per Stirpes)

A

See image below for explanation.

31
Q

Generically described property in a will

A

The gift applies to whatever item is owned at the time of testator’s death regardless of the specific item owned when the will was executed, i.e. a gift of “my boat.”

32
Q

When a will is ambiguous…

A

courts allow extrinsic evidence to resolve the ambiguity and that bears on testator’s intent.

33
Q

Advancements/Satisfaction

A

Common law > gifts to heirs during testator’s lifetime were considered advancements on that heir’s instestate share and the amount would be deducted from the heir’s share of the estate.

UPC > not deemed an advancement unless (1) the will provides for a deduction; or
(2) a writing indicated that the property was in satisfaction of a devise or that its value will be deducted from the value of devise.

34
Q

Revised Uniform Simultaneous Death Act (RUSDA)

A

if no proof by clear and convincing evidence that one person survived the other by 120 hours (5 days), the the property is distributed as if that person predeceased the other person.

It’s presumed that each person outlived the other when distributing assets.

35
Q

Lapsed Gifts & Anti-Lapse Statute

A

Common law > all gifts in a will were conditioned on the beneficiary surviving the testator

Anti-lapse statute > lapsed gift will vest in the issue of a predeceased beneficiary if:
(1) that beneficiary is a specified descendant of the testator (per statute); and
(2) the beneficiary leaves issue who survive the testator

UPC > Anti-lapse rule applies to gifts to issue

36
Q

Ademption by Extinction

A

Common law > a specific gift adeems if it cannot be identified or is not owned at time of testator’s death (intent irrelevant)

Most states > a specific gift is adeemed only if the testator intented the gift to fail. If no intent, then beneficiary is entitled to:
(1) any property acquired in place of the specific gift; or
(2) a monetary devise equal to the value of the gift

37
Q

Abatement

A

When the debts of the estate are greater than the assets to cover all gifts made, the gifts will be reduced in a certain order but giving priority to creditors of the estate assets over beneficiaries.

38
Q

Order of Abatement

A
  1. Property passing by intestacy
  2. Residuary gifts
  3. General gifts
  4. Specific gifts

Each category must be fully abated before moving on to the next one.

Abatement within each category is in proportion to the amount of property each beneficiary would receive.

39
Q

Slayer Statute

A

If a beneficiary feloniously and intentionally kills the decedent, he/she forfeits all gifts, benefits, and entitlements under a will or intestacy.

Conviction on appeal is conclusive.
May be based on preponderance of evidence proven during probate or related court proceeding

40
Q

Disclaimer

A

renouncing a legal right to inheritance

41
Q

Elements of Effective Disclaimer

A
  1. declared in writing
  2. describe the interest or power disclaimed
  3. be signed by the person making the disclaimer; and
  4. be delivered or filed
42
Q

What is the permissible timing of a disclaimer?

A

Common law > must be made within reasonable time
Some states > must be made within 9 months
UPC > may be made at any time so long as not barred from making the disclaimer (by acceptance of the gift or transfer of the gift once received)

43
Q

If disclaimed, how does the property pass?

A
  1. according to terms of will/trust; or
  2. as if the person predeceased the testator (the gift lapses unless an anti-lapse statute applies)
44
Q

Divorce’s effect on will’s distribution?

A

All states > A final divorce decree revokes bequests or appointments of property to a former spouse.

Some states > revoked if divorce proceedings are pending

45
Q

What is a Conditional Will?

A

A will that takes effect only upon the occurence of some uncertain event. If not satisfied, the will is rendered inoperative or void. A mere statement of motive for making the will is not enough to show testator’s intent, which must be clear from the language of the will.

46
Q

Class gift

A

A gift to a group of persons described collectively.

Class generally closes when testator/settlor dies.

Rule of Convenience > class closes when any member of the class is entitled to possession of the gift.

47
Q

Inheritance Rights of Children

A

Generally, a child has NO inheritance rights if a parent leaves the child out of the will (except pretermitted children).

48
Q

Spouse’s Elective Share

A

Statute gives surviving spouse the right to take a statutory share of the estate instead of taking under the will. (Share is typically 1/3 of the net probate estate)

49
Q

Pretermitted Children

A

Children born or adopted after the execution of a will are entitled to an intestate share of the estate unless intentionally omitted from the will.

Some states > a child is not entitled to a share if decedent provided for the child outside the will or left all (or substantially all) of the estate to the child’s other parent.

50
Q

Testamentary Capacity

A

Testator must know and understand:
1. nature and extent of his property
2. natural objects of his bounty (relatives/friends)
3. disposition he is making; and
4. have the ability to connect the above elements into a coherent plan

Mental capacity is presumed unless proven otherwise. Appointment of conservator or guardian does not automatically establish a lack of testamentary capacity.

51
Q

Undue Influence

A

When a person exerts influence that overcomes a testator’s free will and judgment. The will is invalid to the extent of the undue influence.

52
Q

Undue Influence can be established when?

A
  1. testator had a weakness that made him susceptible to influence
  2. wrongdoer had access and opportunity to exert the influence
  3. wrongdoer actively participated in the drafting of the will; and
  4. an unnatural (unexpected) result occurred.
53
Q

Common Law Presumption of Undue Influence

A

When there is:
1. confidential relationship between testator and wrongdoer
2. wrongdoer actively participated in the drafting of the will; and
3. an unnatural result occurred

54
Q

Two types of Fraud against a testator in making the will

A

Fraud in the inducement > deceit regarding facts related to the instrument

Fraud in the execution > deceit regarding nature of the document being signed (testator didn’t know it was a will)

55
Q

Fraud (to contest the will)

A
  1. a person knowingly makes a material misrepresentation of fact;
  2. with intent to induce reliance; and
  3. induces reliance to the testator’s detriment

Invalidated to the extent affected by the fraud

56
Q

Standing to Challenge a Will

A

Exists if:
1. person is a beneficiary
2. should be a beneficiary; or
3. would be financially benefitted if the decedent died without a will

57
Q

What is a Totten Trust?
(Non-probate transfers)

A

A bank account with a named beneficiary.

58
Q

How is a valid inter vivos gift made?

A
  1. Donor with intent to make a gift;
  2. delivers the gift (may be constructive by giving means of control/ownership); and
  3. Donee accepts the gift.

Delivery of real property requires delivery of the Deed.

59
Q

Insulation of Agent’s liability
(Durable Healthcare P.O.A)

A

A person is insulated from civil & criminal liability for healthcare decisions made in good faith under Durable Healthcare P.O.A.

60
Q

To create a Durable Healthcare P.O.A or Advanced Directive (Living Will)

A

Must be:
1. in a signed writing; and
2. witnessed or notarized.

MEE Wills, Trusts, & Estates (for UBE) (2 decks)

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