Wills

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Author:
apgiering
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161126
Filename:
Wills
Updated:
2012-07-05 15:13:45
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  1. Intestate share of surviving spouse - original UPC
    • No kids or parents -- EVERYTHING
    • Kids that are descendants of surviving spouse -- first 50K plus 1/2 of the rest
    • Kids that are not descendants of surviving spouse -- one half
    • Parents -- first 50K plus 1/2 of the rest
  2. Intestate share of surviving spouse - revised UPC
    • No kids or parents -- EVERYTHING
    • Kids that are descendants of surviving spouse -- EVERYTHING
    • Kids that are not descendants of surviving spouse -- first 150K plus 1/2 of the rest
    • Kids that are descendants of surviving spouse, but surviving spouse has other kids too -- first 225K plus 1/2 of the rest
    • Survived by parent, no kids -- first 300K plus 3/4 of the rest
  3. Per stirpes (inheiritance)
    By representation, divided at first generational level.
  4. Modern per stirpes (inheiritance))
    Divided at first generational level with survivors, majority rule.
  5. Per capita at each generation (inheiritance)
    UPC
  6. Is a lifetime gift to heir or will beneficiary considered an advancement?
    • Under the common law, yes.
    • Modern rule and UPC -- not considered an advancement unless donor expressed that intent in a contemporaneous writing or donee acknowledged in a writing
  7. How do you disclaim a gift in a will?
    • Disclaimer must be within 9 months of the decedent's death
    • You avoid gift tax and
    • Avoid creditor's claims
  8. Simultaneous death rules
    • Simultaneous Death Act -- the person who would be inheiriting is considered to have predeceased
    • UPC and majority rule -- 120 hour rule, you need to live more than 120 hours
  9. What is the requirement for a validly-executed will?
    • Signed by the testator
    • Signed by two witnesses who observed testator sign or heard him acknowledged the signature as his own
    • Witnesses must sign within reasonable time (so OK if testator is dead)
    • Each witness must sign the will in the testator's presence (line of sight--testator must be able to see them if he wanted to; conscious presence--testator needs to be consciously aware)
  10. Does an interested witness invalidate the will?
    No.

    • Slight majority -- witness loses legacy
    • Some states and UPC -- witness can still inehrit
  11. Additional aspects of the rule that each witness must sign the rule in the testator's presence
    • Line of sight -- testator must be able to see them if he wanted to
    • Conscious presence -- testator needs to be consciously aware
  12. Attestation clause
    Prima facie evidence of the facts recited.
  13. Is the attorney who drafted a will liable to will beneficiaries?
    • Minority rule -- no
    • Majorty rule -- yes, privity rejected as a defense
  14. Holographic will
    Entirely handwritten and signed by the testator.

    In many jurisdictions,holographic wills that have not been witnessed are treated equally to witnessed wills and need only to meet minimal requirements in order to be probated.
  15. Are holographic wills recognized?
    About 30 states recognize holographic wills.
  16. Conditional wills
    • He meant it as a condition, or
    • He was merely pointing out the motive of inducement for making the will
    • MAKE SURE TO ARGUE IT BOTH WAYS
  17. How can a will be revoked?
    • Subsequent testamentary instrument
    • Physical act
    • Presumption of revocation
    • Dependent relevant revocation
  18. How can a will be revoked by subsequent testamentary instrument?
    If dispensing power is available in state, will also apply to will revocations.

    Need clear and convincing evidence that this was testator intent.
  19. How can a will be revoked by physical act?
    If by another, the physical act must be in testator's presence and at the testator's direction.
  20. When will there be a presumption that a will was revoked by physical act?
    • Where will was last seen in testator's possession or under his control and is not found after his death
    • Where will in testator's possession is found mutilated after testator's death
    • Where will is last seen with someone adversely affected by the contents, the presumption does NOT arise
  21. Does the presumption of revocation by physical act arise where the will was last seen with someone adversely affected by its contents?
    No.
  22. What happens if a beneficiary under a will predeceases the gift?
    The gift lapses (unless the anti-lapse statute applies).
  23. Antil-lapse statute
    • If the predeceasing beneficiary was a close relative (grandparent or desecndant of a grandparent) AND
    • Left descendants who survived the testator
    • THEN the bequst passes to them
  24. Surviving residuary beneficiaries rule
    Generally presumed that when residuary is left to several people if one predeceases the residuary is supposed to be split amongst those still alive.

    Trumped by anti-lapse statute.
  25. Omitted spouse statute
    If marriage follows execution of a will, the omitted spouse takes an intestate share UNLESS 1) it appears that omission was intentional; or 2) provision was made for the spouse by transfers outside the will and it is shown that the transfers were intended as in lieu of testamentary gifts by testator's declarations, by amount of the transfer, or otherwise.
  26. What effect does divorce have on testamentary gifts?
    A final decree of divorce or annulment revokes all gifts and fiduciary appointments in favor of former spouse.
  27. Does a pretermitted child get an intestate share?
    • Yes, unless it appears from the will that the omission was intentional
    • Some states say that if other children were alive at the time the will was executed, pretermitted child gets share of that
    • Also! Watch for repudiation by codicil
  28. Order of abatement
    When the equitable assets of a deceased person are not sufficient to satisfy fully all the creditors.

    • 1. Intestate property, if a partial intestacy for some reason
    • 2. Residuary assets
    • 3. General legacies
    • 4. Specific bequests
  29. Specific bequest (ademption)
    If there is a specific bequest where the item is no longer in the estate, the devisee gets nothing.

    • Specific devisee takes any remaining specifically devised property AND
    • 1) Any unpaid balance of purchase price by reason of sale
    • 2) Any amount of condemnation award for taking the property
    • 3) Any amount of fire or casualty insurance proceeds
  30. Stock and other securities (ademption)
    • If it says, "my X," then specific bequest
    • If it says, "1,000 shares of X," then considered general bequest of value of those shares
  31. What happens if a devisee is gifted encumbered property?
    • Common law -- was exonerated from the residuary
    • Majority rule -- no, you get exactly what the testator owned
  32. What is required for another writing to be incorporated by reference in a will?
    • Writing must be in existence when the will was executed (exception--writing disposing of tangible personal property can be written before or afterwards so long as signed by testator and describes property with reasonable certainty)
    • Will must show an intent to incorporate the writing
    • Will must describe the writing sufficiently to permit the identification
  33. Does a writing need to be in existence when the will was executed in order to be incorporated by reference?
    Yes.

    EXCEPTION: Writing disposing of tangible personal property can be written before or afterward so long as signed by testator and describes property with reasonable certainty.
  34. How do you deal with ambiguities in a will?
    • Plain Meaning Rule -- if there is a plain meaning for the words, then no ambiguity exists and no extrinsic evidence is admissible
    • Latent Ambiguity -- words appear unambiguous but there is a misdescription (extrinsic evidence is admissible)
    • Patent Ambiguity -- an ambiguity apparent on the face of the instrument (extrinsic evidence is admissible)
  35. Plain Meaning Rule
    If there is a plain meaning for the words, then no ambiguity exists and no extrinsic evidence is admissible.
  36. Latent Ambiguity
    Words appear unambiguous but there is a misdescription.

    Extrinsic evidence is admissible.
  37. Patent Ambiguity
    An ambiguity apparent on the face of the instrument.

    Extrinsic evidence is admissible.
  38. When is extrinsic evidence admissible to determine the meaning of a term of a will?
    When words appear unambiguous but there is a misdescription (latent ambiguity) and when an ambiguity is apparent on the face of the instrument (patent ambiguity).
  39. Elective share
    Proportion of an estate which the surviving spouse of the deceased may claim in place of what they were left in the decedent's will.
  40. What does the spouse get under elective share statutes?
    • Descendants -- 1/3
    • No descendants -- 1/2
    • Revised UPC -- accrual approach
    • Spouse must make election
  41. Testamentary capacity
    • Understand the nature of the act
    • Know the nature and approximate value of property
    • Know natural objects of bounty
    • Understand disposition
  42. How do you determine whether there was undue influence in drafting or executing a will?
    • Existence and exertion of the influence
    • Effect is to overpower the mind and will of the testator
    • Product is a will that would not have been made, but for the influence
    • Not enough: 1) opportunity; 2) susceptibility; or 3) unnatural disposition
    • Confidential relationships -- where there exists a confidential relationship between the testator and a party, and that party benefits from the will and that party had the opportunity to exert undue influence, there is an inference of undue influence which is strenghtened when there are suspicious circumstances
  43. What happens where there exists a confidential relationship between the testator and a party, and that party benefits from the will and that party had the opportunity to exert undue influence?
    There is an inference of undue influence which is strenghtened when there are suspicious circumstances.

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