Wills.txt

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Author:
nikizalez
ID:
103487
Filename:
Wills.txt
Updated:
2011-09-21 22:42:41
Tags:
JGB Wills Codicils Administration
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JGB - Wills Codicils Administration
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  1. Execution / Valid Wills
    • 1. T = 18
    • 2. signed by T' (or at his direction)
    • 3. 2 Witnesses
    • - Witnesses must sign in T's consciouse presence (one contemporaneous transaction)
    • - T doesn't have to sign in W's presence
    • - W doesn't have to sign in other W's presence and doesn't have to know signing a Will
  2. Without Self-proving affidavit
    • 1. 1 of the witnesses
    • 2. or 2 W's as to signature of T
  3. Venue (probate)
    • 1. residency; if no residency
    • 2. where property located or where died
  4. Safe Deposit Box
    • 1. can exmaine w/o court orer w/ bank official by SS, executor, or child over 18
    • 2. deliver Will to Executor or Court
  5. Interested Witness
    • Does not invalidate, but bequest is invalid, unless:
    • 1. W proved w/o interested W testimony;
    • 2. corroborated by T' of disinterested person; or
    • 3. if W is an heir under intestacy, takes lesser of bequest and intestacy amount
  6. Holographic Will (requirements)
    • 1. wholly in handwriting
    • 2. signed ("I, Joe" counts as signature)
    • 3. intent (evidence allowed to prove)
    • - can have holographic codicil to typed will
    • - intent must be to take effect at death
  7. Oral Will
    • 1. last sickness
    • 2. at home or if not at home, doesn't return home
    • 3. personal property only
    • 4. if more thatn $30, then need 3 Witnesses
  8. Anti-Lapse (specific gifts and residue)
    • Gift to predeceased beneficiary lapses, unless:
    • 1. B is descendant of T's parents; and
    • 2. descendant of parent survivies by 120 days...?
    • - "if X survives me" bypasses anti-L statute
    • - anti-L statute trumps "surviving B" rule in residue clause...?
  9. Anti-Lapse (class gifts)
    • 1. Surviving Members take, but anti-lapse statutes apply to appropriate class members (kin), unless kin was dead prior to execution
    • - ex: to "descendants of my bro"= class gift
    • - ex: to "A,B, C, the descendants of my bro" is not class gift (or inclusion of per capita?)
    • - class closes at T's death
  10. Disclaimer (probate)
    • 1. written, signed, notary
    • 2. w/in 9 months of death
    • 3. filed w/ court (copy to rep)
    • 4. can be partial
    • 5. executor/g' can disclaim; parent can not for minor
  11. Advancement
    • lifetime gift not advancement unless:
    • 1. declares at tiem of gift, in writing
    • 2. acknowledged by donee in writing
  12. Marital Status after Will Executed
    Later married: doesn't affect (b/c homestead, CP, allowance protects SS)

    Later divorced: ex-spouse treated as predeceased
  13. Pretermitted Child
    1. if no other children: takes intestate share, unless receives non-probate transfer

    • 2. other children provided for: limited to gifts to other children
    • 3. other children NOT provided for: intestate share
  14. Revocation
    • 1. by subsequent instrument
    • 2. physical act
    • 3. presumed revoked if in T's possession and can't find
    • 4. no "partial revocation" (can't cross out lines)
  15. Lost Will
    • 1. duly executed
    • 2. overcome presumption of revocation
    • 3. contests proved by someone who read or heard will
  16. Change on face of Will
    • 1. words added/changed = ignored
    • 2. if "I want X to take Z instead of A" + signed = valid
    • 3. "$5k, date, Mary" = not valid
    • 4. unless these changes are to holographic Will and 2 persons testify towards handwriting!
  17. Revival
    • 1. no revival by terminating subsequent Will
    • 2. unless: execute codicil to prior Will
  18. Types of Bequests:
    • 1. specific: my car to Y
    • 2. demonstrative: $25k from sale of exxon to X
    • 3. general: $25k to X
    • 4. residue
    • 5. intestacy
  19. Abatement (order)
    • 1. intestacy
    • 2. residue - personal property
    • 3. residue - real
    • 4. general - personal property
    • 5. general - real
    • 6. specific (demonstrative) - personal property
    • 7. specific (demonstrative) - real
    • (demonstrative not in statute; treated like specific. this is not example of I give exxon stock in estate to...)
  20. Pro-rate Estate Tax Apportionment
    from all of estate - probate and non-probate
  21. Ademption: Devised Property Not In Estate
    • 1. "Exxon stock to Joe" - if Exxon stock not in estate
    • = Joe gets nothing
    • 2. "proceeds of exxon stock" and no exxon stock in estate,
    • = if traceable at death, Joe gets proceeds (but not insurance proceeds)
    • 3. Demonstrative - "$25k from exxon stock"
    • = doesn't matter where exxon stock is; Joe gets $25K!
  22. Bequests of Stock (not in estate)

    "I give MY 100 shares of Exxon stock to X"
    - if not in estate = ademption (gets nada)

    • - if split and there are 200 since execution
    • = X gets all 200
  23. Bequests of Stock (not in estate)
    "I give 100 shares of Exxon stock to X"
    • It's not specific, so
    • = X gets value of 100 shares of stock!

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