Wills (JDA One Sheets) Flashcards
Intestate Succession
If the decedent’s spouse and parents to not survive the testator, there are two available schemes to divide property among the decedent’s children: per capita at each generation (where all cousins would be treated alike) or per capita with representation (modern per stirpes) (where a child will simply take his parent’s share)
Intestate Succession - Per capita at each generation
To decide who gets the shares of the estate, find the first generation where there are issue living. Give one share for each such living issue and one share for each person in that generation who predeceased the decedent, but left issue surviving. Then, combine the shares belonging to the deceased persons and distribute them equally at the next generational level. Cousins are treated alike.
Per capita with representation
To decide who gets the shares of the estate, find the first generation where there are issue living. Give one share for each such living issue and one share for each person in that generation who predeceased the decedent, but left issue surviving. Then, simply pass each deceased person share onto her issue. cousins are not treated.
Intestate Succession - If no spouse and no children
Two ways of determining heirship - the civil law consanguinity method and the parentelic method adopted by the UPC.
Under the consanguinity method, heirship is determined by the degree of relationship: all persons of the same degree of relationship to the decedent take equal shares (so an uncle and a niece are in the third degree of consanguinity and would be heirs entitled to equal shares).
Under the parentelic method, descendents of the decedent’s parents take to the exclusion of descendants of the decedent’s grandparents (so a niece would be an heir but an uncle would not)
Intestate Succession - Children
A child for purposes of intestate succesion includes adopted children, children born out of wedlock, and half-bloods (but not stepchildren!)
Intestate Succession - Advancements
Advancements are an issue when the decedent dies without a will but gave a child a gift during her lifetime. The question is: should the gift be deducted from from what the child would inherit under intestate succession?
CL - A lifetime transfer to an heir was presumptively treated as a downpayment on the heir’s intestate share and thus is taken into account when computing the heir’s intestate share. At common law this is only applied to a gift to a child, but must states have broadened it to include any heir.
Majority - Most states today say that a lifetime transfer is presumed to be a gift and is ignored in computing the heir’s intestate share unless there is evidence to show that the decedent intended the gift to be an advancement
When there is a will - Ademption by satisfaction - The Uniform Probate Code (UPC) states that a lifetime gift is not a prepayment unless: (1) the will says so, (2) the testator declares in a contemporaneous writing that the gift is to be deducted from the will, or (3) acknowledges in writing that the gift is in satisfaction of the bequest.
Will Execution - General Rule
Many state laws require that the will be in writing, signed by the testator, and witnessed by two witnesses. They also require that the testator is 18 years or older and intend that the document is his will.
Unwitnessed Will? - Holographic Wills
Holographic wills are unwitnessed wills. Holographic wills are valid if signed and (according to the UPC and some states) if the material portions are the testator’s handwriting. Holographic wills are recognized in about half of states.
Want to Validate Invalid Will? - UPC Dispensing Power
The UPC adopts the dispensing power underwhich a court can validate an otherwise invalid will so long as there is clear and convincing evidence that the decedent intended the document to be her will.
Writing that is not valid as a will? - Incorporation by reference
A writing that is not valid as a will may be incorporated by reference into the will if the will manifests an intent to incorporate the writing and the writing is identified with reasonable certainty. The writing must exist at the time the will is executing.
The UPC and some states recognize the right of a testator to dispose of tangible personal property by a signed memorandum, whether it is prepared before or after the execution of the will, even if it does not comply with the formalities of a will.
Revocation of a Will - Revocation by Physical Act
Examples: execution of a new will or cancellation or other writings on the will.
Revocation by physical act must be done witht he intent to revoke the will. The testator or someone acting at the testator’s direction and in his “conscious presence” may revoke the will.
Revocation of a Will - Dependent Releative Revocation
Under this doctrine, a first will isn’t revoked if a later will is found invalid. Essentially, if a testator revokes a will or bequest based on a mistaken assumption of law or fact, the revocation of the will is ineffective if it appears that the testator wouldn’t have revoked the bequest had the testator had accurate information.
However, courts typically apply DRR only when (1) there is an alternative plan of disposition in the document executed subsequent to the documents whose revocation the contestant seeks to set aside that fails; or (2) the mistake leading to the document’s revocation is recited in the revoking instrument itself
UPC approach - a donative document, though unambiguous, may be reformed to conform the text to the donor’s intention if it is established by clear and convincing evidence (1) that mistake of law or fact, whether in expression or inducement, affected specific terms of the document; and (2) what the donor’s intention was
Revocation of a Will - Divorce
Divorce (not just a filing) or annulment revokes gifts in favor of a spouse
Gift fails because beneficiary is not alive?
Lapse + Anti-Lapse Statutes
The general rule is that if a beneficiary does not survive the testator, the gifts will lapse (fail) and fall into the residuary. However, all states have antilapse statutes (which keep gifts in the family).
Under a typical antilapse statute, if a beneficiary dies before the testator and was both related by blood to the testator within a certain degree of relationship and had issue who survived, the gift to the deceased beneficiary is saved and the beneficiary’s issue will take in lieu of the beneficiary.
Someone kills decent?
Slayer Statute
An individual who feloniously and intentionally kills the decedent, or who is convicted of committing abuse, neglect, or exploitation with respect to the decedent, forfeits all benefits with respect to the decedent’s estate.
Voluntary manslaughter is a form of felonious and intentional killing.
However, if a beneficiary accidentally kills the decedent (even if it rises to the level of involuntary manslaughter), the slayer rule does not bar a gift. Nor does it apply if the slayer murdered someone other than the decedent. [this is usually the situation when tested on the MEE b/c killing not felonious or intended]
