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wills
| Term | Definition |
|---|---|
| non-probate property | deed, joint tenancy property, or payable on death (POD) account or policy |
| if there is no will, the will is invalid, or the will does not dispose of all property, then... | apply the intestate succession rules |
| is separation before divorce sufficient to change status | no, must be legally divorce to change marital status |
| if a spouse + shared descendants of spouse survive the D, then the intestate share is | spouse takes 100% |
| if a spouse + D's parent survives D, then the intestate share is | spouse takes $300K + 75% of estate |
| if a spouse + shared descendants + issue of D survive the D, then the intestate share is | spouse takes $225k + 50% of estate |
| if a spouse + issue of D survive the D, then the intestate share is | spouse takes $150k +50% of estate |
| adopted children | including stepchildren, are treated the same as biological children; UPC also allows adoptee to inherit from the other natural parent |
| after-born children | one conceived before but born within 280 days of husband's death is presumed to be the issue of husband; time limit is 300 days under the Uniform Parentage Act |
| children born out of wedlock | inherit if paternity is proven or adjudicated, the father subsequently married the mother, or the father held the child out as his own |
| per capita with representation | divide the property equally at the first generation with a living member who survived D; for those at that level who did not survive D, their share goes to their issue who survived D (if there is an issue) |
| per stirpes | divide the property into the total number of children who survive or leave issue who survive; the issue take in equal portions the share their deceased ancestor would have taken if living |
| per capita at each generation (UPC) | divide the property into as many equal shares as there are members of the nearest generation of issue who survive the decedent and include deceased members of that generation with issue who survive D |
| no spouse or issue (UPC)--intestate succession? | the estate will pass to parents who survive, or if none, to the descendant's of D's parents (e.g. siblings of D), or if none, to grandparents |
| no heirs ---intestate succession? | if the D dies without heirs, the property will escheat to the state |
| survival rule for near simultaneous death | there must be clear and convincing evidence the heir survived the D by 120 hours; without sufficient proof, the heir will be treated as having predeceased D |
| testator | decedent who dies with a will |
| devisee | recipient who is devised real property |
| legatee | recipient who is bequested personal property |
| requirements for an attested will | testamentary intent + writing +capacity + signature + witnesses |
| handwritten will | can qualify as an attested will if the formalities are met |
| signature for will | need not be formal so long as the mark is intended as a signature; can be signed by testator or someone else in his presence at his direction, |
| location of signature for will | must be at the end to be valid (some states), or can be anywhere on the instrument (UPC) but anything below signature will be invalid |
| testamentary intent | testator must intend the instrument to function as her will |
| capacity | testator must be 18 or older and of sound mind |
| witnesses for will | must be signed in joint presence of, and attested to by at least 2 witnesses; UPC does not require witnesses to be present when each other signs, but must sign within a reasonable time after witnessing Testator sign or acknowledge the will. |
| what does "presence" for witnesses mean | it is either "line of sight" or "conscious presence" |
| interested witness | when witness is also a beneficiary of will |
| effect of interested witness on validity of will | at C/L the will was invalid; under the UPC/majority, the will is valid |
| interested witness and the share from the will if there are 2 other disinterested witnesses or under the UPC | the gift is not affected, |
| interested witness and the share from the will if there are not 2 other disinterested witnesses in UPC states | (a) the gift will stand if the witness is an intestate heir, or (b) if the witness not an intestate heir, gift purged beyond the amount that would be her intestate share |
| if will contested on grounds of fraud or undue influence, existence of an interested witness | creates a rebuttable presumption the testator subject to undue influence; to rebut: would witness otherwise be entitled to an intestate share? |
| requirements for holographic will | testamentary intent + handwritten+ signature |
| handwriting requirements for holographic wills | must be entirely in T's handwriting, some states also require it to be dated; under the UPC only "material provisions" must be in handwriting |
| intent for holographic wills | must be clear document was intended as T's will (e.g. "I Bequeath"); under the UPC, words of intent need not be in T's handwriting and can be shown by extrinsic evidence |
| codicils | a testamentary addition to a will, executed with the same formalities as a will |
| effect of codicils | a valid codicil republishes the will as of the date of the codicil |
| holographic codicil | valid to an attested will as is an attested codicil to a holographic will |
| substantial compliance (harmless error doctrine) | under minority/UPC, a document that substantially complies with the formality requirements will be recognized as valid, if shown by clear and convincing evidence T intended to serve as his will. |
| substitutes (nonprobate transfers) | an inter vivos transfer of property (deed, trust, insurance policy, etc.) will avoid probate and therefore a will substitute |
| requirements for will contests | (1) must be within time limit, (2) claimant must have standing, (3) there must be a no contest clause, (4) must have sufficient grounds (lacked capacity, insane delusion, undue influence, fraud) |
| time limit for will contest | must be filed within six months after a will is admitted to probate |
| standing for will contest | beneficiaries under the current or prior will have standing; creditors, spouses of beneficiaries under prior wills, and pretermitted heirs do not |
| no contest clause in will | enforceable unless claimant has probable case to contest (majority/UPC) |
| lack of capacity (grounds for contesting will) | at time when T made will, T lacked ability to know: nature of act (why), nature & character of his property (what), natural objects of his bounty (who), and the plan of attempted disposition (how) |
| insane delusion (grounds for contesting will) | T operated under a belief not based in fact or reason; test = a rational person in T's situation could not have reached same conclusion; delusion must be a "but for" cause of disposition |
| undue influence (grounds for contesting will) --burden of proof | claimant must show the following with direct evidence: (1) exertion of influence by another, (2) the effect of which was to overpower the mind and will of T, (3) but for the influence, T would not have made the will |
| presumption for undue influence | arises when one who is in a confidential relationship with T participates in the will's execution and receives an unnatural gift; recipient must overcome presumption by proving the will was not a product of his influence |
| elements of undue influence | (1) T's susceptibility, (2) influencer's motive, (3) opportunity, and (4) causation |
| effect if undue influence proven | influencer will be treated as having predeceased T |
| fraud elements | misrepresentation (beneficiary intent to deceive), causation (but for), type (inducement or execution) |
| revocation of a will | can be revoked in whole or in part; revocation of a will revokes its codicils however revocation of a codicil does not revoke the underlying will |
| methods of revocation | subsequent instrument, physical act, or operation of law |
| subsequent instrument--revocation | a later will can expressly revoke a prior will or impliedly revoke a prior will by inconsistent terms; when multiple wills, the later will controls to extent it is inconsistent with prior will |
| physical act--revocation | T commits a physical act (tearing, burning, obliterating) with intent to revoke, or (by proxy) a third party acting on behalf of T does so at T's direction and in T's presence |
| physical act --revocation (lost wills) | jurisdictions split as to whether a will not found at T's death creates a presumption that it was revoked by physical act; burden on proponent to establish existence of will by C&C evidence, can use duplicate originals but not duplicate copies |
| physical act --revocation (destruction of a copy) | revocation of a duplicate original revokes all copies, but destruction of an unexecuted copy does not serve as a revocation of all copies |
| operation of law--revocation | a subsequent divorce revokes any provision in favor of prior spouse; UPC also invalidates any gift to the prior spouse's relatives |
| revival by republication | modern UPC approach: focus on T’s intent and applies a hybrid approach: (i) whether the 2nd will revoked by act or by another, later will; and (ii) if the 2nd will revoked by an act, whether the first will was wholly or partially revoked by that 2nd will |
| dependent relative revocation (DRR) | rule: a will or portion that is revoked on a mistaken basis of law or fact can be revived; test: but for the mistake, would T revoke? if no, revive; |
| DRR partial | Applied when (i) an alternative disposition stated in a subsequent document fails, or (ii) the mistake causing the document’s revocation is reiterated in the revoking instrument |
| interpretation of testator's intent | give the words their plain meaning unless the will states otherwise; the will consists of all pages present at the time of execution that are intended to make up the will |
| incorporation of an extrinsic doc by reference | The doc must have existed at the time the will was executed, was intended by T to be incorporated, and is sufficiently described in the will to permit its ID; |
| UPC exception to incorporation by reference | A list of tangible personal property can be made after the will’s execution |
| residue | if residue is left to 2 or more persons and one dies and anti-lapse does not apply, the remaining beneficiaries take in their proportionate shares (UPC) |
| interpretation of ambiguity | courts are reluctant to disturb the plain meaning of a will regardless of mistake; in the event of an ambiguity, most courts allow extrinsic evidence to clarify testator’s intent |
| interpretation of mistake --CL | Extrinsic evidence is allowed to show a mistake in will execution; if the wrong will is signed, courts are split as to whether relief should be granted; no extrinsic evidence allowed to show a mistake in T’s intent or that an omission was accidental |
| interpretation of mistake--UPC | More liberal approach—a court may reform a donative document, even if unambiguous, based on clear and convincing evidence of (i) a mistake of law or fact that affected specific terms of the document, and (ii) the donor’s intention. |
| lapse (beneficiary dies before testator) at CL | a gift in the will to a beneficiary who predeceases T will lapse and fall to the residue; if there is no residuary clause, the gift will pass through intestate succession |
| anti-lapse statutes | If the predeceasing beneficiary is a relative of T; Who dies leaving issue; The issue will take the predeceased beneficiary’s share; UPC: also applies statute to non-probate transfers |
| class gift | if there is a gift to a class and a class member predeceases the testator, the surviving class members will take unless the anti-lapse statute applies to save the share for the issue of the deceased class member |
| specific devise | a gift of a specific item of property satisfied only with the specific item of property (e.g.,“my coin collection to A”) |
| general devise | a gift of property (usually cash) satisfied from general assets (e.g., “$10,000 to A”) |
| demonstrative devise | a gift of property or money to be paid from a designated fund (e.g., “$10,000 to be paid from the USA bank account”) |
| residuary devise | a gift of the leftover assets in the estate (e.g., “…and the rest and residue of my property to A”) |
| ademption | a specific bequest of property that is no longer part of T's estate at death adeems (is revoked) |
| identity theory (CL) --ademption | the gift is extinct and the specific beneficiary takes nothing |
| intent theory (UPC) --ademption | a specific bequest will adeem only if consistent with T's intent |
| beneficiary entitlement --ademption | even if gift adeems, B is entitled to (i) whatever left of specifically devised property, (ii) the balance of the purchase $$ (iii) any amount of condemnation for the taking, extent unpaid upon death, or (iv) property acquired from the foreclosure of a SI |
| no exoneration of liens--ademption | the specific devisee of encumbered property takes subject to the mortgage unless T specifically directs otherwise; a general directive to pay debts will not suffice to exonerate a lien (UPC/maj.) |
| satisfaction | T satisfies a devise in whole or part by an inter vivos transfer ; T must intend for gift to adeem and be satisfied, under UPC T's intent must be evidenced by writing |
| B entitled to increase in securities pre-death? (CL) | B of a general bequest is not entitled to any dividends or shares issued before death; a beneficiary of a specific bequest (# of shares specified) is entitled to additional shares from a stock split or merger but not entitled to cash or stock dividends |
| B entitled to increase in securities pre-death? (UPC) | specific or general beneficiary is entitled to any additional shares paid as a stock dividend or resulting from a stock split but is not entitled to a cash dividend |
| B entitled to increase in securities post-death? | Any increase (cash or stock dividends, or shares produced by a stock split) post-death goes to the specific beneficiary; a general beneficiary will only receive earned interest beginning one year after T’s death |
| rights of surviving spouse | spousal support, community property (CP), non-CP states' elective share, protection for omitted spouse |
| spousal support | spouse is entitled to Social Security, pension plans, personal property, homestead exemption, and family allowance |
| community property (CP) | if there is no will, the spouse gets the other ½ (decedent’s share) of the CP; if there is a will, the ½ CP and all separate property of the decedent passes per the terms of the will |
| non-CP states' elective share | a spouse may elect to take a share (often 1/3) of the net probate estate (after expenses and allowances) in lieu of any gift under the will; if an election is made, the other devises may be abated |
| augmented estate (UPC) | spouse may take a 50% share of the value of the marital property portion of the augmented estate, defined as including property acquired before marriage (unlike CP states) as well as property transferred to the spouse and others |
| right to set aside transfers | many states allow the spouse to set aside qualifying inter vivos transfers made without spousal consent |
| waiver of elective share | the spouse may waive in writing the right to a forced or elective share only after fair disclosure of the assets/debts and consultation with independent counsel |
| omitted spouse rights | marriage after execution of W does not invalidate W, and S can take the elective/forced share; UPC states provide S automatically with an intestate share unless the terms of W indicate omission was intentional or the S was provided for outside of the W |
| advancements to children | D advances intestate share in whole or part by a lifetime gift; CL--lifetime gift treated as satisfying all/part of intestate share; UPC--requires contemporaneous writing indicating gift considered when determining intestate share |
| omitted children (pretermitted heir)--presumption | a child born or adopted after the will is executed who is not provided for in the will may take an intestate share, because the omission is presumed accidental |
| omitted children (pretermitted heir)--exceptions | (1) appears from the W omission was intentional; (2) T had other children when the W was executed and left most/all of the estate to the other parent; or (3) T otherwise provided for the child outside W with intent it be in lieu of a testamentary gift. |
| bars to sucession | (1) homicide (either b/c murder conviction or court determines by preponderance of the evidence); (2) disclaimer (B disclaims gift and treated as having predeceased T, must be signed and filed w/i period after D's death) |
| will contract | generally, contracts to make a will, to die intestate, or to revoke a will are recognized |
| required proof to establish will contract | (1) will states material provisions of the contract; (2) terms are contained in a signed written contract; or (3) will refers to the contract and extrinsic evidence proves the terms |
| joint wills | a single will intended to serve as the will for two or more individuals; remedy a breach through constructive trust |
| reciprocal wills | separate wills with identical provisions; not bound by contract, either party may modify |
| probate--jurisdiction | the county in which D was domiciled at death has jurisdiction over probate |
| probate--administration | UPC requires a proceeding be brought within 3 years of death |
| personal representative | either named in the will (executor) or appointed by the court (administrator) |
| qualifications of personal representative | must have capacity to contract and act as a fiduciary |
| priority of personal representative | person named in will, surviving spouse who is a devisee, other devisees, surviving spouse, other heirs, any creditor (45 days after decedent's death) |
| duties of personal representative | notify interested parties, appraise and inventory the assets, satisfy the debts, and distribute the assets/close the estate |
| abatement | when the assets of an estate are insufficient to pay its debts and satisfy the devises, the gifts abate in specified order, unless the testator otherwise indicates |
| order in which to abate assets | (1) intestate property; (2) residuary bequests; (3) general bequests; (4) specific bequests |
| priorities of abatement | abatement within a category is pro-rata; favor the spouse and relatives over other gifts in the same category; non-probate property does not abate |
| power of appointment | the T may select a person whom authority is given to dispose of certain property; the power may be presently exercisable during donee's lifetime or testamentary |
| general power of appointment | not restricted; can be exercised in favor of the donee, his estate, or his creditors |
| special power of appointment | restricted to certain persons or groups; creditors cannot reach absent fraud |
| power of attorney | the T may select a person to whom authority is given to act on T's behalf |
| general power of attorney | covers all affairs in event principal (P) becomes incapacitated |
| special power of attorney | limited to a specific function and duration |
| advanced healthcare directive | becomes effective when and if P becomes incapacitated; living will--dictates the healthcare to be provided, agent must make sure directive enforced; durable power of attorney for healthcare--appoints agent to make healthcare decisions |
Created by:
mrynna