Term
| Property subject to intestate succession |
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Definition
| 1. A decedent dies without having made a will 2. a decedent's will is denied probate 3. a decedent's will does not dispose of all his property 4. will specifies that property should pass by intestate |
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Term
| Intestate share of surviving spouse |
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Definition
Majority: 1/3 or 1/2 of estate
Some states: 1/3 or 1/2 + amount
Entire state = all surviving descendants are descendants of surviving spouse |
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Term
| Per capita with representation |
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Definition
Property is divided into equal shares at the first generational level at which there are living takers.
Deceased, passes to issue. |
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Term
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Definition
| One share passes to each child of descendent, regardless of whether there are living takers at that level. |
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Term
| Per capita at each generational level |
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Definition
| Shares of deceased persons at that level are combined and then divided equally among the takers |
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Term
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Definition
Estate is distributed in following order:
1. Parents or surviving parent 2. brothers and sisters 3. paternal grandparents 4. nearest kin. |
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Term
| Intestate succession: adopted children |
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Definition
Treated same as natural children.
No inheritance between adopted children and natural parents, except where natural person marries adopted parent. |
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Term
| Stepchildren and foster children |
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Definition
| Have no inheritance rights. |
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Term
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Definition
Always inherits from the mother.
Father: 1. paternity 2. after child birth 3. proved to be father in probate |
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Term
| Half Bloods and Whole Bloods |
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Definition
| No distinction in treatment |
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Term
| Uniform Simultaneous Death Act |
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Definition
When a disposition of property depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if he had survived the other.
Applies absent contrary will provision. |
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Term
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Definition
USDA only applies if there is no sufficient evidence of survival.
Many states require that a decedent survive by 120 hours to take. |
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Term
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Definition
Interest passing as though disclaiming party predeceased the decedent.
To be effective, disclaimer must be in writing, irrevocable, and filed within 9 mos. of the decedent's death of the beneficiary's 21st birthday.
Disclaimer made on behalf of infant, incompetent, decedent = best interest |
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Term
| Decedent's death caused by heir or beneficiary |
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Definition
| Most courts hold that one who feloniously and intentionally brings about the death of the decedent forfeits any interest in the decedent's estate. |
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Term
| Advancement of intestate share |
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Definition
An advancement is a lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor's estate.
Common law = substantial gift to children was presumed advancement |
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Term
| Advancement of intestate share modern rule |
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Definition
Not presumed to be an advancement if:
i. declared as such in a contemporaneous writing ii. acknowledged as such in a writing by the heir. |
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Term
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Definition
A testamentary gift may be satisfied in whole or in part by an inter vivos transfer.
UPC, doctrine does not apply unless the testator provides for satisfaction in a contemporaneous writing or devisee acknowledges in writing. |
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Term
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Definition
| A will is an instrument executed with certain formalities that usually directs the disposition of a person's property at death. |
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Term
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Definition
Supplemental to a will and modifies it
Must be executed with same formalities |
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Term
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Definition
The testator must have present intent that the instrument operate as his will.
Unclear, look at: 1. intended to dispose of property 2. intended the disposition to occur upon death 3. intended document as plan of disposition |
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Term
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Definition
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Term
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Definition
| 18 years old and of sound mind |
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Term
| Execution of attested wills |
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Definition
1. Signed by testator 2. two attesting witnesses 3. testator signs or acknowledges serious in witnesses 4. witnesses sign in testator's presence
Optional: 1. sign at end 2. publish will 3. witnesses sign in presence of each other |
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Term
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Definition
Any mark affixed by the testator with the intent that it operate as her signature.
Can be made at testator's direction.
Order of signing is not improper, but must be part of a single contemporaneous requirement. |
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Term
| Signature: presence requirement |
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Definition
Conscious presence test
Line of sight |
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Term
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Definition
Competence
Interested? Common law = whole will is void
Modern: may be void depending on jurisdiction |
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Term
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Definition
| Recites the elements of due execution and is prima facie evidence of those elements. |
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Term
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Definition
| A self-proving affidavit recites that all the elements of due execution were performed and is sworn by the testator and witnesses before notary public. |
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Term
| Attorney liability for negligence in preparation of wills |
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Definition
| A growing number of statutes allow the beneficiaries to sue an attorney for negligence in preparing or executing a will. |
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Term
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Definition
| A holographic will is one that is entirely in the testator's handwriting and has no attesting witnesses. |
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Term
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Definition
Most states and the UPC do not recognize oral wills.
Small minority for personal property of soldiers/sailors/sick/or those about to die. |
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Term
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Definition
| A will is treated as having been executed on the date of the last codicil. |
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Term
| Incorporation by reference |
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Definition
| i. it is existence at the time of execution ii. it is sufficiently described in the will iii. the will manifests an intent to incorporate the document. |
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Term
| Acts of independent signficance |
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Definition
| A will may dispose of property by reference to acts and events, even though they are in the future and unattested, if they have significance apart from their effect on dispositions made by the will. |
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Term
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Definition
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Term
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Definition
| A person with testamentary capacity may revoke his will at any time prior to death. |
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Term
| Revocation by operation of law: Marriage following execution |
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Definition
Most states: no effect
UPC: intestate share unless i. will makes provision; ii. omission was intentional, or iii. made in contemplation of marriage. |
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Term
| Revocation by operation of law: divorce or annulment |
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Definition
In most states, divorce or annulment following execution of a will revokes all gifts and administrative appointments in favor of former spouse.
Read as predeceased. |
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Term
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Definition
Testator fails to provide in his will
Takes an intestate share |
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Term
| Revocation by written instrument |
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Definition
All or part of a will may be revoked or altered by a subsequent instrument executed with the same formalities as a will.
If the subsequent testamentary instrument does not expressly revoke the earlier will, the two are read together with the later instrument revoking the earlier only to the extent of inconsistent provisions. |
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Term
| Revocation by physical act |
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Definition
Under a typical statute, a will or codicil can be revoked by burning, tearing, or canceling, or obliterating a material portion of the will with intent to revoke.
Accidental destruction does not revoke. |
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Term
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Definition
| Most statutes authorize partial revocation by physical act |
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Term
| Presumptions as to revocation |
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Definition
| If a will is last seen in the testator's possession or control cannot be found after death or is found in mutilated condition, a rebuttable presumptions arises that the testator revoked it. |
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Term
| Effect of revocation on other testamentary instruments |
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Definition
| The revocation of a will revokes all codicils to it, but revocation of a codicil to a will does not revoke the entire will. |
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Term
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Definition
| If a will is lost or destroyed, it may be admitted to probate if the following can be proven: i. valid execution ii. the cause of non-production and iii. the contents of the will. |
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Term
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Definition
In most states, a will once revoked is not revived unless it is reexecuted or republished by codicil.
The UPC and a minority of states hold that the destruction of revoking instrument may revive a will if the testator's intent to do is established. |
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Term
| Dependent relative revocation |
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Definition
| DRR applies when a testator revokes his will under the mistaken belief that another disposition of his property would be effective, and but for the mistake belief, he would not have revoked the will. |
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Term
| Contract to make a gift by will |
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Definition
| A contract to make, not to make, or not to revoke a will is valid. Contract law, not wills law, governs these issues. |
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Term
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Definition
A joint will is a single instrument executed by two or more testators and intended to be the will of each.
Mutual wills are separate wills executed by two or more testators that contain substantially similar provisions.
No presumption of contract |
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Term
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Definition
| A gift lapses if the beneficiary predeceases the testator. |
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Term
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Definition
Nearly all states have anti-lapse statutes that operate to save the gift if the predeceasing beneficiary was in a specified degree of relationship to testator AND
left descendants who survived testator. |
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Term
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Definition
If a will devises the residuary estate to two or more beneficiaries and one of them predeceases the testator, and anti-lapse statute does not apply, some states follow the common law rule and do now allow the surviving residuary beneficiaries to divide the deceased beneficiaries share among them.
Modern: no residue of a residue rule. Allowing surviving residuary beneficiaries to divide the share in proportion to their interests. |
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Term
| Beneficiary dead when will executed |
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Definition
If a will makes a gift to a beneficiary who was dead at the time the will was executed, the gift is void.
In most states, the rules that apply to lapsed gifts also apply to void gifts. |
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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 the time of her death.
Applies only to specific devises. |
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Term
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Definition
A gift may be partially adeemed, as where the testator devises a large tract of land and then conveys a portion of the tract during his life.
Beneficiary takes remaining portion. |
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Term
| general or demonstrative legacies |
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Definition
A general legacy is a gift of a specific amount.
A demonstrative legacy gives a dollar amount but specifies a particular asset as the source of payment.
Look for my. |
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Term
| Exceptions to ademption doctrine |
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Definition
1. Proceeds from sale by estate
2. Executory at time at testator's death
3. Casualty insurance proceeds |
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Term
| Ademption: stock splits and dividends |
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Definition
At common law, a specific bequest of stock includes any additional shares produced by a stock split, but not a stock dividend.
UPC: also stock dividends. |
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Term
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Definition
Nearly all states have elective share statutes that give the spouse an election to take a statutory share of the decedent's estate in lieu of taking under the will.
Typical amount is 1/3 of the estate or 1/2 if not survived by issue |
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Term
| Elective share: property subject to election |
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Definition
decedent's net estate
apply the share fraction to the decedent's augmented estate
notice must be filed
right to election is personal to spouse |
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Term
| Permitted children statutes |
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Definition
A testator may disinherit children; pretermitted child statutes protect children from being accidentally omitted.
Child born or adopted after will unless: i. it appears from will that omission was intentional ii. testator had other children at the time will was executed iii. testator provided for the omitted child by a transfer outside of will
Watch for republication of codicil |
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Term
| Homestead/family allowance/exempt personal property |
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Definition
Homestead: most states have statutes that protect the family residence or farm from creditors
Family allowance: provide support during administration.
Exempt personal property: a surviving spouse is usually entitled to petition to set aside certain items of tangible personal property. |
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Term
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Definition
| 1. Defective execution 2. revocation 3. lack of testamentary capacity 4. lack of testamentary intent 5. undue influence 6. fraud 7. mistake |
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Term
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Definition
Within six months
Only interested parties |
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Term
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Definition
| Capacity to understand: i. nature of her act ii. nature and extent of her property iii. who are the natural objects of her bounty and iv. practical effect of the will. |
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Term
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Definition
i. influence was exerted
ii. the effect of the influence was to overpower mind of testator
iii. resulting testamentary disposition would not have been executed but for the influence.
More than circumstantial evidence |
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Term
| Presumption of undue influence |
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Definition
i there was a confidential relationship between testator and beneficiary ii. the beneficiary was active in producing, drafting, or executing will iii. will provisions unnaturally favor beneficiary.
No presumption for spouses |
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Term
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Definition
willfully deceived as:
i. the character or content of the instrument ii. extrinsic facts that would induce the will or a particular disposition or iii. facts material to disposition. |
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Term
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Definition
| Extrinsic evidence is admissible to show that a testator did not know that the instrument he was signing was a will because the existence of a testamentary intent is at issue. |
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Term
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Definition
extrinsic evidence is not admissible to show that a provision was omitted or is incorrect.
Similarly, under the plain meaning rule, evidence of mistake is not admissible to contradict the plain, unambiguous language of will. |
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Term
| Ambiguity- extrinsic evidence admissible |
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Definition
A latent ambiguity arises if a will's language is clear on its face but results in a misdescription as applied.
A patent ambiguity exits if the uncertainty appears on the face of the will.
Extrinsic evidence is admissible to cure latent ambiguities because it does not have the effect of rewriting the will. |
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Term
| Reformation for mistake under UPC |
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Definition
Even if the will is unambiguous
Proven by clear and convincing evidence |
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Term
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Definition
| refers to the proceeding in which an instrument is judicially determined to be the will of the decedent or in which a decedent's heirs are determined. |
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Term
| Personal representative vocab |
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Definition
appointed to carry out the estate administration.
Named in will = executor
Not named = administrator |
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Term
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Definition
| i. give notice to devisees and claimants against estate ii. discover and collect the decedent's assets and file an inventory iii. manage the assets of the estate; iv. pay expenses of administration; v. distribute property |
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Term
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Definition
| i. administration of expenses ii. funeral expenses and expenses of last illness iii. family allowance iv. debts given preference under federal law v. secured claims vi. judgments entered against the decedent during lifetime and vii. all other claims |
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Term
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Definition
Abatement is the process of reducing testatmentary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises.
Rule: i. property passing intestacy ii. residuary estate iii. general legacies iv. specific bequests and devises |
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Term
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Definition
| While the common law and some states follow the contrary view, the UPC and a large number of states provide that liens on specifically devised property are not exonerated unless the will so directs. |
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Term
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Definition
Include life insurance, joint tenancies, or tenancies by entirety, inter vivos trusts, bank account trusts, deeds, contracts, and inter vivos gifts, including gift causa mortis.
Will substitutes may enable individuals to avoid taxes and eliminate the cost and inconvenience of probate. |
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