Joint account with ROS?
JTWROS bank account doesn't pass through probate, isn't subject to law of intestate succession, and generally passes to JT. However, under law of CP, if such account is funded by earnings of spouse, account is CP and 1/2 owned by surviving spouse; other 1
Child born after execution of will?
Child born after parent's will executed is omitted child and is entitlted to an intestate share, unless evidence of T's contrary intent. Intestate share of children (if surviving spouse) is 1/2 of decedent parent's SP.
Marriage after execution of will?
New spouse is omitted spouse and is presumptively entitled to spousal intestate share: all CP and 1/2 SP. Presumption can be rebutted by showing evidence of T's contrary intent. Provision for spouse from nonprobate assets may reduce her share unless there
Effect of beneficiary designations of life insurance, retirement benefits?
Proceeds of life insurance and retirement plans passing according to beneficiary designation are nonprobate; they pass according to T's wishes. Proceeds are not subject to creditor's claims. Receipt of these proceeds may reduce spouse's share of estate.
Anti-lapse statute
Although bequests to deceased beneficiary generally lapse, anti-lapse statute provides that issued of deceased B inherit share by right of representation.
Spouse's other rights to receive portions of estate?
If no homestead protection from creditors is claimed, surviving spouse can claim an award in lieu of the homestead, equal to the amount allowed as a homestead exemption, from CP or SP.
Partial revocation permitted?
WA permits partial revocation by physical act unless it attempts a new disposition without attestation. Cancellation of a portion of the will appearing upon the face of the will, made w/ intent to revoke such portion, operates as revocation of that portio
Will separate writing w/out formalities amend or revoke will?
A separate writing made w/out formalities of execution can only be used to dispose of personal property if it references a will provision authorizing such a writing. Otherwise, a separate writing to amend will would have to meet the requirements for valid
Who will be personal representative?
The PR is usually nominated by decedent's will. However, a surviving spouse not nominated as executor has the right to administer CP if qualified and if application for appointment is made w/in 40 days after decedent's death.
Amendment of will?
Generally, a will may be amended or revoked by operation of law (death, marriage, birth), by subsequent instrument (codicil), or by act (burning, concealing, tearing).
Dependent Relative Revocation?
Provisions of prior will are revived if second will found invalid.
Valid will?
Valid formation of a will requires testamentary capacity and intent. Statute requires that wills be: (i) in writing, (ii) signed by testator, (iii) attested to by at least two competent witnesses who signed will or affidavit. Witnesses must see testator s
Can [spouse] claim in lieu of homestead?
If no homestead protection from creditors is claimed, the surviving spouse can claim an award in lieu of homestead, equal to the amount allowed as homestead exception, from CP or SP.
How are group term life insurance proceeds treated?
The character of group term life insurance proceeds is determined by the character of the last premium payment before death. If paid by employer during marriage, it is CP and 1/2 of proceeds will be property of surviving spouse.
Personal representative duties?
PR is a fiduciary and owes duty of complete honesty, loyalty, and due care to the estate, its heirs, and creditors.
Was attachment a codicil?
A codicil supersedes conflicting provisions of an original will. A codicil must be executed in the same manner as will.
Spouse entitled to homestead?
A surviving spouse is entitled to a homestead exemption of the lesser of (i) the total net value of homestead or (ii) $125,000 for land and any improvements.
Is X proper contestant of will?
A will may be contested in whole or in part. The petition to contest a will must be brought w/in 4 months immediately following probate or rejection of a will. Contestant must have direct, financial interest in the outcome to have standing to petition. (E
Ademption?
When will makes specific bequest of a particular item of property, and that item is not in the estate at the time of decedent's death, the bequest is adeemed; no substitutions. (Does not apply to uncollected proceeds in installment sales K.)
Was will invalid b/c of undue influence?
To prove undue influence, contestant must show: (i) T was subject to force, coercion, or persuasion that destroyed his free will; (ii) but for the undue influence, T wouldn't have made that will; and (iii) influence was more than mere persuasion.
Any bequests abated?
Abatement (process of reducing testamentary gifts) may occur if estate's assets are not sufficient to pay all claims against estate, its distributees and heirs, and its creditors.
Did [PR] need court approval before selling...?
Nonintervention powers are availabel to most PRs whether estate is testate or intestate; allow PR to settle estate w/out court intervention.
Was venue proper?
Probate proceedings may be commenced in the county in which: (i) decedent resided, (ii) died, or (iii) property of nonresident decedent is located.
Can will condition inheritance on...?
A will can validly condition the right to inheritance on the existence of some future fact. The will or clause is operative only if the specified fact exists when T dies.
Did will violate RAP?
RAP states that "no interest in property is valid unless it must vest, if at all, no later than 21 years after one or more lives in being at the creation of the interest.
Did Slayer Statute prevent X from taking under the will?
Slayer means any person who participates, either as principal or accessory before the fact, in the willful and unlawful killing of another.
Does Uniform Simultaneous Death Act apply?
USDA provides for disposition of property in cases where persons who would otherwise take from each other die simultaneously. Effect is that property of each person passes as if she had survived.
Was placing the X in trust a prepayment?
Where a lifetime transfer by a decedent was intended as prepayment of an expectancy, the prepayment will nullify the beneficiary's rights by intestacy or under the will.
Was a valid revocable trust created?
Elements necessary to create a trust are: (i) trustee, (ii) beneficiary, (iii) trust property, (iv) intention on part of settlor to create trust, and (v) valid purpose. Inter vivos trust can be created by transfer of property to another as trustee. Truste
Did X properly revoke trust?
Settlor has power to revoke a trust only if, and to extent, specifically provided by terms of trust. If no method is set out, any instrument showing settlor's intent will suffice.
To whom should payable on death account be distributed?
An account payable on death passes to the designated beneficiary outside of probate, unless a later executed will changes the beneficiary. The later-executed will would control via WA's "superwill" statute.
Did X take [property] subject to mortgage?
The taker of encumbered property takes subject to the encumbrances, unless the will provides otherwise.
To whom should residuary be distributed?
A residuary give disposes of all property not otherwise disposed of, e.g., a gift of "all the rest and residue of property I may own at death.
Fraud?
In order to show fraud, contestant must show there was: (i) a knowingly false statement, (ii) made with the intent to deceive the testator, (iii) on a material matter, (iv) which did deceive the testator, and (v) which caused the resulting testamentary di
Governing law
This question is governed by WA probate and intestacy law.