What is a codicil
supplement that amends or revokes a deed will in whole or in part
Intestacy
default plan if someone dies without a will
individuals entitled to take an interest are called heirs (though we are particularly concerned with the spouse and kids for purposes of distribution
What if both decedent and the heir die simultaneously?
intestate successor must prove by C&C that the decedent predated the heir by 120 hours
How much does the spouse get if spouse survives with only shared kids and no others?
Spouse takes entire thing
How much does the spouse get if she survives and the decedent had a parent still alive?
Spouse takes 300k and 75% of remaining estate
How much does a spouse get if she survives with shared kids and the decedent had other kids too?
Spouse takes 225k and 50% of remaining estate
How much does a spouse get if she survives with only non-spousal kids?
Spouse gets 150k and 50% of remaining estate
How much does a spouse get if spouse is the only one that survives? What about if no heirs at all to the decedent?
Spouse gets entire thing
No heirs = escheats back to the state
Does the fact that a person is adopted vs a biological child change the rules for awarding estate interest?
Nope all treated the same
Who can a child get inheritance from if the child is adopted by a stepparent?
Child is entitled to the stepparent inheritance and the inheritance of the biological parent
What happens if a couple conceives and the dad dies before the baby is born? Is the baby entitled to anything?
If the child is born within 280 days of the husbands death, there is a rebuttable presumption that the baby is the father's and entitled to inheritance
If after, child must prove parentage to inherit
How do do a per stripes issue share of an estate?
You divide shares into total number of children who survive, or leave issues that survive. The issues take in equal shares regardless of whether anyone survived
Basically, if a line of kids is still alive, just follow that down and give the shares accordi
What is the distribution in a per capita with representation?
You divide the property equally at the first generation to survive, then follow the linage down from there and give equal amounts to the surviving kids. If all the kids are dead, no shares drop down.
e.g., A dies, has three kids B, C, D. BCD are all dead.
How do you calculate the shares for a per capita at each generation? (what the uniform probate code suggests)
Use the same method as per capita with representation: divide the property at the first generation that has a surviving member. Only difference now, is that after you pool up remaining resources after each distribution and that's what the next generation
What are the requirements for the execution of a will?
That its signed, witnesses, and there's testamentary intent
What does the signed writing requirement for execution of wills entail? where must the signature be? Any capacity requirements? formal sig needed?
The entire will must be written or typed and signed by the testator
Does the location of the sig matter? Nope the signature must be at the end of the document. Under the UPC and other states, you can put it anywhere but anything below the signature will N
Does the uniform probate code permit oral wills
Nope, but be in writing or typed
What is the requirement for witnesses?
Most states require that the will be signed in the presence of at least 2 witnesses.
Most Jx: testator must sign or acknowledge the will in the presence of witnesses and witnesses must sign in the presence of testator
UPC: Witnesses must sign in a reasona
What are the two views for the "in the presence" requirement for witnesses to a will?
Traditional (line of sight approach). Witnesses and testator must observe or have opportunity to observe the signing of the will
Conscience presence (modern rule): Witness or testator must be aware that act is being performed, even if they cannot see it.
Under common law, are interested witnesses in the signing of the will competent to take interests under the will? how does the common law address this?
Nope
Through purge theory, if direct financial gain, the validity of the will is not affected, but the interested witness dow not take any gains over what the witness would receive through intestate succession
Exception to purge: Two other disinterested w
Does the UPC follow the interested witness doctrine?
Nope, abolished it.
Only look to see if there was undue influence or fraud for any suspect witness
Present testamentary intent requirements? competency requirements?
Testator must have present intent to make testamentary transfer
Testator must be at least 18 years old and of sound mind--you measure this at the time of signing, subsequent incompetence does not invalidate the will
What are the consequences of failing to satisfy strict formalities?
Common law: you need strict compliance
Under modern rule (UPC): You need substantial compliance with statutory requirements. Even if not met, court can admit will to probate if there is C&C evidence that the intended document serves as the will
What are holographic wills? how to invalidate?
These are informal, handwritten wills that do not be witnessed. To be valid, must be signed and contain the material provisions (beneficiaries and items to be received, dated)
Some Jx-> any handwriting not in testators handwriting invalidates the will
UPC
What type of evidence can you use to prove the "intent" aspect of a holographic will?
any extrinsic evidence, look for phrases like bequeath and inherit
Do codicils adhere to formal will requirements?
Yes, must contain same formalities. Formal wills can be amended by a holograph codicil and vice versa
What is a pour over will?
Avoids probate because it distributes property under a trust
What is a Payable on Death contract?
Avoids probate because it distributes an intervivos transfer (like a life insurance policy)
What is an ambulatory will?
this is a will that can be amended or revoked at any time leading to the testator's death
Later will always controls
What are the three ways to revoke a will?
subsequent instrument, physical act, or operation of law
How do you revoke a will through subsequent instrument?
Express revocation: a later will expressly revokes a prior one (oral not good enough to revoke)
Implied revocation: later writing is inconsistent with prior wills. So long as validly executed, later document controls
How do you determine if something is a subsequent instrument or codicil?
If residuary gift in OG will and not in the new one = codicil
How do you revoke a will through a physical act?
Engage in a physical act of destructions like tearing burning or crossing out statements. Testator must intend to physically act to revoke a will. THE INTENT TO DESTROY MUST OCCUR SIMULTANEOUSLY WITH THE DESTRUCTION
If language is crossed out, maj. jx thi
What happens if a will is lost?
If you know it exists, then it creates a rebuttable presumption that testator revoked by physical act
Burden is on the proponent to show will's existence by C&C evidence-->duplicates but not copies can be admitted
How does a divorce affect a will? what about just separation?
This will terminate a will under operation of law, unless there is evidence that the testator wanted the will to survive
Separation does not invalidate anything and surviving spouse still allowed to take an elective share (even if the decedent had subsequ
Can a third party revoke a will?
Yes, if done at the testator's direction and in his presence
Can you just revoke a codicil?
yup, if just codicil then the will survives. but if you revoke a will, you revoke it all
Can you revive a destroyed will?
Yup, under the Maj. and UPC, they do not recognize the automatic revival of revoked will. You need to reexecute a new will
What is a dependent relative revocation?
A doctrine of equity under which a court may disregard a revocation if it determines that:
1) the act of revocation was premised on a mistake of law or fact, and
2) would not have occurred but for the mistaken belief that another will was valid.
Can you incorporate extrinsic document into the will?
yes if the will is referring to a document outside the will itself (even if the documents is not testamentary in nature) If
Document is in existence at the time of execution (MPC doesn't require this; person can create the document later)
testator intends
At common law, what do you do with the interests that fail to go to an intended beneficiary? What do anti-lapse statutes do?
These lapse and go to the residuary to be paid out to the heirs.
Anti-lapse statutes prevent this so long as you have a protected relationship (this devise was intended for a relative) and survived by issue. If you don't meet this, your shit lapses
What is the special rule for class gifts for the lapse rule?
CL: exception, if a members gift lapses, the other members share.....Assuming the deceased member does not get covered in an anti lapse statute
What is abatement?
Process by which certain gifts decrease - e.g., when necessary to pay for omitted spouse or child OR for general debts
What is the hierarchy of funds distribution under abatement?
(1) intestate property; (2) residual gift; (3) general gifting (gift of property satisfied from OG funds); and (4) specific gift (give you "my" car)
What is ademption by extinction?
When a specific gift fails because T does not own the property at T's death, look to T's intent as to whether or not T intended the gift to fail if it did not exist.
UPC allows from devising whatever property I bought in replacement if my intent shows tha
What is ademption by satisfaction?
Applies when the testator satisfies a specific or demonstrative gift (in whole or part) by intervivos transfer
Requires that testator intended for gift to deem & intent must be supported by a writing
How do courts treat ambiguities on wills? types? and rules?
Two types of ambiguities: Patent and Latent. Latent, you cannot tell on the face of the will what the issue is. Patent: easy-to-spot mistake on face of document
Traditional rule: can only use extrinsic evidence to figure out latent ambiguities like in PER
How do courts treat mistakes to wills?
Way less forgiving and not likely to correct the issue
Is a surviving spouse entitled to future means of support from the decedent?
yes, through Social Security and Pension funds Can also get elective share
What is an elective share:
This is a forced share that changes the amount given to other beneficiaries.
Amount: UPC, forced share is 50% of the augmented estate(I.e. the property acquired before and during the marriage)
How does someone waive elective share rights?
Waiver is in writing after disclosure of contents and spouse is represented by independent legal counsel
What is an advancement?
A lifetime gift to children from parents of significant value that satisfies all or part of child's intestate share
How does common law view advancement?
Any lifetime gift is presumed to be an advancement of that child's intestate share--and if child is contesting, the child has the burden to show that the item was an outright gift
How does the UPC view advancements?
Gift is advancement only if decedent declares in contemporaneous writing that gift was advancement
OR
Writing indicates that gift should be taken into account when computing the division of property of decedents estate
How do calc advancements under the UPC?
Add value of advancements back into the state
Divide that number into equal shares per heir
Deduct the advancement from that number for each survivors share
What happens if a person has kids after making the will but never amended it (unintentionally)?
If no other kids, omitted kid takes intestate
If one other kid, omitted kid shares with the property devised to the non-omitted kid
Slayer rule? exceptions?
Beneficiary murders decedent cannot take under the will. We just treat that person as predeceasing the testator
Doesn't apply to involuntary manslaughter and self defense cases. Murder must be intentional and felonious
UPC: allows a murder's kid to take p
What is a disclaimer under estate law? timing?
A person can disclaim any testamentary gift:
Requires:
(1) in writing, signed, filed with court; or declared to the person in charge of distributing
AND
(2) ID's decedent, describes interest being disclaimed, and defines the extent of disclaimer
MUST DISC
Can someone inherit that is convicted of financial exploitation, abuse, neglect of an elder inherit stuff?
nope
What constitutes an interested party?
Someone who benefits under a will or would take under intestate succession (though maybe not under will)
Who may challenge a will? timing?
Only interested parties
Must file contest claim within 6 months that will is admitted to probate
What do you need to do to challenge a will under general testamentary capacity?
You bear burden of proving testator lacked requisite mental capacity at the time of the execution of the will.
You look to whether testator had the ABILITY to know nature of act, nature and character of property, natural objects of his bounty, plan of att
How do you challenge a will under insane delusion? test? What is the key here?
This is a false belief that testator adheres to despite all the reasonable evidence to the contrary
Objective test: measure the testator's insane delusion against the actions of a rational person in those shoes. An insane delusion is a belief that rationa
How do you challenge a will under undue influence?
you have to prove that 3rd party effectively controlled the testator's decision making. Proof required:
Contester must show:
Beneficiary recovered a substantial benefit under the will;
beneficiary had a confidential relationship with testator (often docto
How do you challenge a will under fraud? elements?
Contestant bears burden of showing
beneficiary engaged in an unlawful misrepresentation at the time of conveyance
Beneficiary made misrepresentation with intent to deceive testator
AND with the purpose of influencing testamentary disposition
What is fraud in the inducement
Misrepresentation cause testator to make different will than otherwise made
What is fraud in the execution?
misrepresentation to the character and contents of the will
What is remedy for fraud in the will?
a constructive trust
What is a forfeiture clause and how does it work?
This ia a no-contest clause distend to dissuade beneficiary from suing for his share
Under UPC, this is unenforceable if beneficiary had probable cause for challenge. If claim has no merit, the clause is enforceable
What's the first thing you should do in any estate problem?
Classify what property is probate and non probate
What is the difference between probate and non-probate?
Probate passes by will or intestate succession; non-probate transfers by instrument other than the will such as a deed, trust, etc.
How long do you have to file probate proceedings under the UPC?
Three years post death and after this there is a presumption of intestacy
What is the order you settle creditors of an estate:
(1) admin expenses
(2) medical and funeral expenses
(3) family allowances
(4) taxes
(5) secured claims
(6) judgments against decedent
(7) all other claims
How do you choose a personal representative to represent your estate if you didn't choose one before death?
If no one is named: surviving spouse; then serving devise; surviving spouse not devise; other her; or after 45 days after decedents death, any creditor
How is a power of attorney valid? types?
This must be in writing, signed, and dated
The types are special and general. General covers all affairs during period of incapacity. Special creates authority for specific subject matter
Durable power of attorney for health care?
Appoints an agent in event that principle is incapacitated and unable to make medical decisions
If the question ends on ambiguity of whether a will is valid, how should you argue you final answer?
If will is not valid, here what happens in intestate. If will is valid, here how the devise happens
Is a spouse that believes in good faith and validity that marriage is valid, can that spouse take under intestate? under UPC?
Yup, this is a putative spouse and qualifies
Under UPC: the surviving spouse must be legally married and produce C&C of surviving spouse by 120 hours
If a child is conceived under wedlock, can they take under intestate succession?
Under common law, no
Under Modern trend, not unless
Father subsequently married mom
Father held child out as his own and either received the child into his home or provided suppport
Paternity was proven by C&C evidence after fathers death
Paternity was ad
Who does the court look to if no serving issue or spouse?
first look to the ancestors (parents, grandparents, etc.) and then to remote collateral (those related to decedent through a common ancestor)
What is the UPC approach if no surviving spouse or descendant?
First it would got to decedents parents
Then to children of decedents parents
Then to grandparents, aunts, uncles of decedent
then to nearest maternal or paternal relative
No serving relative = escheats to state
Does a valid codicil change the publication date of the will?
Yes, the new publication date is from the valid date of the codicil
What governs the law of someone's personal property that is subject to intestacy when that person dies?
The domicile of the person who owns the personal property
What are the requirements for an omitted spouse to get entitled to an intestate share:
Omission was not intentional; or one of the following happens
Spouse was given property outside of the will
Spouse was given property outside of will in lieu of a disposition in the will
Spouse is party to a valid contract, waiving her right to a share in
When a testator leaves behind assets, how do you identify them?
Through classifying them as intestate; residuary; general; or specific gifts
If you want to change who gets a life insurance policy, is it enough to change the will?
Nope, need to actually rename the insurance policy