Term
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Definition
| Intestate Succession: when the decedent dies without a will or with an invalid will (these are Idaho laws). Note: a will must be probated (venue is in the county where decedent was domiciled at death; or any county where property of decedent is located at time of death, if not domiciled in Idaho) within 3 years or the presumption of intestacy is final. |
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Term
| Intestate Share of Surviving Spouse |
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Definition
Intestate share of surviving spouse:
1. Community Property (CP): the ½ of CP belonging to the decedent passes to the surviving spouse
2. Separate Property (SP): the intestate share of the surviving spouse is:
a. if no surviving issue or parents of the decedent, the entire intestate estate;
b. if no surviving issue but the decedent is survived by a parent(s), ½ of the intestate estate;
c. if there are surviving issue of the deceased spouse, ½ of the intestate estate
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Term
| Intestate Share of Surviving Children/Other Descendants |
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Definition
Intestate share of children and other descendants: the part of the estate not passing to the surviving spouse, or the entire estate if there is no surviving spouse, to the issue of the decedent equally if they are all of the same degree of kinship; otherwise, those of unequal or more remote degree by representation.
1. adopted children: an adopted child takes equally with natural children; stepchildren and foster children do not take
2. posthumous children: if conceived before decedent’s death, but born within 10 months thereafter, take as normal issue
3. half-bloods: relatives of the half-blood take equally with whole bloods
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Term
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Definition
| Shares of other heirs (an heir takes by intestate succession; a beneficiary (or devisee, or legatee) takes under will): if the decedent is not survived by a spouse or any issue, the estate passes to the decedent’s parents. If the decedent has no parents then the estate passes to the issue of the decedent’s parents by representation. If the decedent has no spouse, issue, parents, or issue of parents, then the estate passes to the decedent’s grandparents and then the issue of grandparents. If there is no relative to take the estate, the estate passes to the State. |
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Term
| Pretermitted Child Statute |
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Definition
Pretermitted Child Statute: if a testator fails to provide for any of the testator’s children, or issue of a deceased child, and the children (living or deceased) were born or adopted after the execution of the will, the omitted child or issue will receive the share he or she would have received through intestate succession. Exceptions: (the pretermitted child will not take a share if:)
1. it appears from the will that the omission was intentional;
2. when the will was executed, the testator had one or more children and devised substantially all of the estate to the other parent of the omitted child;
3. the testator provided for the child or issue outside the will
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Term
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Definition
Testamentary Intent: The test of the testamentary character of an instrument is not the testator’s realization that it is a will, but his intention to create a revocable disposition of property, to accrue and take effect only upon death, with no present interest
1. Capacity: at time of execution, testator must be (1) at least 18 years old; (2) able to understand the extent of his property; (3) know the natural objects of his bounty; and (4) understand the nature of the testamentary act (will void if no capacity) note: person contesting the will has burden of proof to show lack of testamentary capacity
2. Fraud: representation of a material fact for purposes of inducing action or inaction, known to be false by the wrongdoer which induces the action or inaction
a. fraud in the execution (entire will is invalid): (1) forgery; or (2) testator signs testamentary document believing it to be non-testamentary
b. fraud in the inducement (only affected part is invalid): wrongdoer’s misrepresentation affects disposition
3. Undue Influence: testator’s free agency is subjugated or dominated.
a. presumption of undue influence exists if: (1) there is a confidential relationship; (2) the wrongdoer had active participation; (3) there is an unnatural result; and (4) wrongdoer benefits directly or indirectly
b. prima facie case: (1) susceptible testator; (2) wrongdoer’s active participation; and (3) unnatural result
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Term
| Execution of Attested Wills |
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Definition
Execution of Attested Wills: a valid will must be—
1. In writing;
2. Signed by the testator or signed by some other person in the testator’s presence and at his direction; and
3. Attested by two witnesses who witness the signing or the testator’s acknowledgement of the signing or of the will (note: a witness may be a beneficiary of the will
Note: self proved will: a will may be simultaneously executed, attested, and made self-proved by acknowledgement of the will by the testator and the affidavits of the witnesses, each made before a notary public
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Term
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Definition
Holographic Wills: a handwritten will that does not comply with the formalities listed above, it is valid in Idaho. Elements:
1. signed anywhere (so it says, “I, Bob Gibson …” that will suffice for the signature—it doesn’t need signed at the bottom;
2. the material provisions are in the testator’s handwriting;
3. the testamentary intent can be in testator’s handwriting, preprinted, or shown by extrinsic evidence;
4. dates and witnesses are not necessary, but may be an issue with inconsistent wills and capacity problems
5. oral wills are not valid in Idaho
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Term
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Definition
| Codicil: basically just an addition or amendment to a will, it requires the same testamentary/execution formalities as a will |
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Term
| Incorporation by Reference |
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Definition
Incorporation by Reference: a document may be incorporated by reference into a will, provided: 1. the language of the will manifests an intent to incorporate; and 2. the will describes the writing sufficiently to permit its identification Note: the Idaho UPC provides that a will may refer to a written statement or list of items of tangible personal property if: a. it is in the handwriting of the testator or signed by him; and b. it describes the items and devisees with reasonable certainty (list from a revoked will is sufficient—Wilkins v Wilkins) |
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Term
| Pour Over Gift into Inter Vivos Trust |
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Definition
| Pour-Over gift to inter vivos trust: a will may devise property to the trustee of a trust established or to be established: 1. during the testator’s lifetime by the testator or by the testator and some other person or by some other person; or 2. at the testator’s death by the testator’s devise to the trustee if the trust is identified in the testator’s will and its terms are set forth in a written instrument, other than a will, executed before or after the execution of the testator’s will or in another individual’s will if that other individual has predeceased the testator |
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Term
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Definition
| Revocation of Wills: a person with testamentary capacity may revoke his will any time prior to death |
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Term
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Definition
Revocation by Law: automatic revocation occurs here, nothing required of the testator 1. marriage following execution of will—pretermitted spouse (note: for pretermitted child, see above): if testator fails to provide for his surviving spouse who he married after the execution of the will, the omitted spouse will receive the same share of the estate she would have received through intestate succession, unless: a. it appears from the will that the omission was intentional; or b. the testator provided for the spouse by transfer outside the will 2. Divorce: revokes all provisions in will in favor of former spouse (treat as though the ex-spouse predeceased the testator) |
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Term
| Revocation by Written Instrument |
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Definition
| Revocation by Written Instrument: all or part of will may be revoked or altered by writing with the same formalities as a will. |
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Term
| Revocation by Physical Act |
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Definition
| Revocation by Physical Act: a will or codicil can be revoked by burning, tearing, canceling, or obliterating, or destroying the will with the intent and for the purpose of revoking it. Intent must be concurrent with the act. |
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Term
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Definition
| Revival of Revocation: if will revoked by 2nd will, and 2nd will is later revoked by a physical act, the first will is revived if the testator intended for the first will to take effect as executed. |
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Term
| Dependant Relative Revocation |
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Definition
| Dependant Relative Revocation (DDR): applies when a testator revokes his will under the mistaken belief that another disposition of his property would be effective, and but for this mistaken belief, he would not have revoked the will (e.g. 1st will is revoked because testator makes 2nd will, but 2nd will is void because only 1 person witnessed it). If the 2nd disposition fails, the revocation also fails and the 1st will remains in force. DRR only applies if it comes closer to what the testator tried (but failed) to do than intestate distribution would. |
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Term
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Definition
Protection of Surviving Spouse (Elective Share Statutes): Idaho has an Elective Share Statute that gives the spouse an election to take a statutory share of the decedent’s estate in lieu of taking under the decedent’ will.
A. Right to Election is personal to spouse: the surviving spouse only may make the election
B. Notice must be filed: surviving spouse must make election within 9 months after decedent’s death or 6 months after filing petition for probate, whichever is later |
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Term
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Definition
Amount of Elective Share: the elective right of the surviving spouse is as follows:
1. ½ of the total augmented quasi-community property (all personal property, wherever located, and all real property in ID acquired by the decedent while domiciled elsewhere, which would have been community property if the decedent had resided in ID) estate, which shall include the following:
a. property received from the decedent and owned by the spouse at the time of the decedent’s death; and
b. value of quasi-community property transferred by the surviving spouse at any time during the marriage to someone other than the decedent which would have been in the surviving spouse’s quasi-community property estate if the spouse had predeceased the decedent to the extent the transferred property is derived from the decedent by any means other than testate or intestate succession without full consideration
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Term
| Lapsed Gifts and Anti-Lapse Statutes |
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Definition
Lapsed Gifts and Anti-Lapse Statutes: a gift lapses if the beneficiary predeceases the testator. Anti-lapse statutes operate to save the gift if the predeceasing beneficiary was in a specified degree of relationship to the testator (e.g. testator’s descendant, grandparent, or descendant of testator’s grandparents) and left descendants who survived the testator. These descendants will take by substitution. The statute applies unless a contrary provision appears in the will.
1. Lapse in residuary gift: if a will devises the residuary estate to two or more beneficiaries and one of them predeceases the testator, the majority of states allow the surviving residuary beneficiaries to divide the share in proportion to their interests in the residue; minority of states do not allow the surviving residuary beneficiaries to divide the deceased beneficiary’s share among them, and that share passes by intestacy.
2. Class gifts: only the members who survive the testator take a share of the gift, unless the will provides otherwise
3. Beneficiary dead when will executed: gift is void.
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Term
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Definition
| Ademption: refers to the failure of a gift because the property is no longer in the testator’s estate at time of death 1. Specificity: ademption only applies to specific devises and bequests (meaning a gift satisfied only by receipt of the particular property described). If specifically bequeathed property is not in the testator’s estate at death, the bequest is adeemed, and the beneficiary takes nothing. Most courts won’t inquire the reason the property is no longer in the estate. 2. Partial ademption: in partial ademption (e.g. testator devises 900 acres, then sells 400) beneficiary takes leftovers |
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Term
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Definition
| Abatement: the process of reducing testamentary gifts where estate assets are insufficient to satisfy all bequests and devises. The testator may set out an order of abatement, but if none is set forth, the following priority applies (set out from those which abate first to those which abate last): (1) property passing by intestacy; (2) the residuary estate; (3) general legacies; (4) specific bequests. Within each category, gifts abate pro rata; no distinction is made between real and personal property. |
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Term
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Definition
| Simultaneous Death: where the title to property depends on the priority of death and there is not sufficient evidence that the persons have died otherwise than simultaneously, the property of each person is distributed as if they had survived 1. 120 Hour Rule: a person must survive the decedent by 120 hours in order to take as a will beneficiary or intestate heir. |
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Term
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Definition
| Renunciation (disclaimer): a person who is an heir or beneficiary may renounce (disclaim) in whole or in part the right of succession to any property. This results in the interest passing as though the disclaiming party predeceased the decedent. |
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Term
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Definition
| Killer of Decedent: an heir or beneficiary who willfully and unlawfully kills the decedent is not entitled to any benefits under the will or through intestate succession. |
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Term
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Definition
| Advancements: property is treated as an advancement only if the decedent declared the advancement in a contemporaneous writing; or the heir beneficiary acknowledges the advancement in a writing |
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Term
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Definition
| Satisfaction of Devises: property which testator gave during his lifetime to a person is treated as a satisfaction of a devise to that person only if: (1) the will provides for deduction of the lifetime gift; (2) the testator declares in a contemporaneous writing that the gift is to be deducted from the devise, or is in satisfaction of the devise; or (3) devisee acknowledges in writing that the gift is in satisfaction. |
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