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Intestate succession - When do you need it (4 situations)
- 1. Dies w/o will
- 2. Will denied probate
- 3. Will does not dispose all property
- 4. Will specifies property pass intestate
Intestate succession - Surviving Spouses Share of the estate
- 1. Descendants: W takes 1/3 or 1/2. Some States a dollar amount + 1/3 or 1/2
- 2. No Descendants: W takes all
Intestate succession - When no spouse what share to children and other descendants
- 1. Per Capita w/ representation: Majority. Estate divided into equal shares at first generational level living. Any deceased person at that level, his share passes to his Descendants.
- 2. Classic per stripes: Divided at his childrens level, living or not
- 3. Per Capita at each generation level: Modern trend. First to living children, then balance distributed equally to cousins.
Intestate succession - If no living descendants - what heirs take
- If any living descendants nothing will pass to other heirs. If no descendants will pass in order:
- 1. Parents
- 2. Siblings and their issue
- 3. 1/2 to each set grand parents
- 4. 1/2 to living Kin on each side
Intestate succession - Children (adopted, step, unborn, non-marital, half-blood)
- 1. Adopted Children: Gets same as other children. If child dies, nothing to natural parents, unless adopted by close relative
- 2. Stepchildren and foster kids. No inheritance rights. Adoption by estoppel where adoption is promised under a K
- 3. Posthumous child: same as living children
- 4. Non-marital children. always inherits from mother. Takes from father if determined father b4 death or by clear and convincing evidence after death
- 5. Half bloods - same as other children
Intestate succession - What is the result of Simultaneous death and 120 hr rule
- 1. If they die at exact time, treat as if both survived the other and pass through intestacy each persons own property.
- 2. Discuss 120 Hour rule if they do not meet rule, then treat as if did not survive other. Under USDA if it can be determined who died 1st, no 120 hour rule. Under UPS must survive 120 hours.
Intestate succession - Disclaimer your share
- You can disclaim your share. It will act as if you predeceased and pass to your descendants.
- 1. Tax purposes: In writing, irrevocable and filed w/in 9-months or on descendants 21 birthday
- 2. Estoppel: Cannot accept some gifts and disclaim other gifts
- 3. Creditors claim: can be used to defeat a creditor, but not IRS lien
- 4. Life Insurance. Will pass the whole principle and will loose interest payments
Intestate succession - Death Caused by heir or bene - How treated
If killed intentionally, will be treated as if killer pre-deceased descendant. Kids will still take. A conviction is conclusive, otherwise probate needs to determine by preponderance of evidence
Intestate succession - Advancement of intestate share - How is it treated, common vs modern
At common law, it was presummed gift was an advancement. Today, the presumption is opposite, was just a gift. Some states require a writing signed by the deceased and bene
If it is an advancement, the value will be added back to the will and then subtracted from his share
Intestate succession - Satisfaction of Legacies
If deceased makes a gift b4 his will (only general, not specific property) then lists the item in the will then is a satisfaction of the devise.
Wills - Testimentory Intent required
Testator must have the present intent that the device operate as a will. Parol evidence admissable to show intent or lack of.
Wills - Testimentary Capacity - what is required
Must be 18 and of sound mind when you make the will.
Wills - Execution of attested Wills (4 general and a few states require 3 more Formalities)
- 1. Will or codicile signed by testator: or in his prescence and direction - X will work, does not need to be at the end (most jurisdictions)
- 2. Two attesting witnesses:
- 3. Must sign her will or acknowledge signature in front of witnesses
- 4. Witnesses sign: in testators prescence (conciouse awareness)
- Some States require 1 or more following:
- 1. Testator must sign at bottom of will
- 2. Must publish the will by stating - declare to witnesses that it is her will
- 3. Witnesses sign in eachothers prescence
Wills - Execution of attested Wills - Attestation Clause what/why have one
Recites elements of due execution. Helpful if a witness forgets the facts of the execution
Wills - Execution of attested Wills - Self Proving Affidavit how diff from attestation clause
Recites the elements of due execution performed. Signed in fron tof a notary. Can be used in probate, dont need a witness
Wills - Execution of attested Wills - Attorney Liability
Some states allow bene to sue attorney for negligence in preparing a will. Amount of recovery is the amount they would have taken under intestacy
Wills - Holographic Will
- 1. Entirely in handwritting, no attesting witnesses. Can sign anywhere, even at begining. Most courts allow written modifications after will made
- 2. Some states, can have a holographic codicile to an attested will.
Will - Oral will - when can you have one
Most states do not recognize. Can only dispose of personal property, need two witnesses, soldier in war, person in last sickness
Conflict of Laws Issues - what state governs what and foreign wills (3)
- 1. Real Property: Validity of RP transfer governed by state law where property located
- 2. Personal Property: governed by state of testators domicile
- 3. Foreign Wills: Will be recognized if was executed correctly in the state it was attested, testators then or current domicile
Components of Will - when is there Integration of other documents
Physical attachment of other documents gives a presumption they are part of the will. Can use extrinsic evidence to show the documents were intigrated
Components of Will - How/what/effect of Codicile
- Modifies a previously executed will by using the same attestation formalities.
- Will treated as being executed on the date of the last codicile
- Any changes to a will not attested will have no effect on the will
Components of Will - Incorporation by referrence - what is required to be valid (3)
- A document can be incorporated if:
- 1. Existed at time of will
- 2. Sufficiently described in will
- 3. will manifests intent to incorporate it
Many states have an exception to document existed at the time and allow testator refer to a list of property gifts that she can add to or alter
Components of Will - Acts of Indepenant significance doctrine
Can make reference to acts, even though they are future and unattested. Like can leave a gift to "my employees, in my employ when I die". Or I give my car, he had a mercedes, he later trades for a Honda. A can get the Honda because it was an Independant of the will.
Non-testimentary acts must have significance apart from their effect on the will. Acts of testator and 3rd parties can be used.
Components of Will - Pour Over Gift from Trust
Most states allow testator to make a gift to a trustee (for trust) even though trust is revocable
Components of Will - What cannot be a probate assets
Cant make a gift of non-probate assets, like life insurance, death benefits, property held in trust. Those assets are passed by their own agreement
Revocation of Wills - 2 Ways to revoke and by 3rd party
- Only 2 ways to revoke:
- 1. Subsequent testimentary instrument
- 2. Physical destruction: burning, tearing, X's or void across the page works
- 3. By a third-party, needs to be at testators direction and in his prescence
Revocation of Will - Presumptions of revocation(2)
- 1. Where will last seen with deceased, if it cannot be found, presumption is that it was revoked
- 2. If found mutilated, presumption is that testator mutilated it
- 3. Neither presumption if will last seen with someone adversly affected by it
Evidence admissable to rebut presumptions
Revocation of Will - Subsequent Will - What is the effect on the first w/or w/o referrence? Impact on will if codicile revoked?
- If a second will and it makes no referrence to the first, then try to read them together. If wholly inconsistant, the second will governs
- Revocation of a codicile does not revoke the will
Revocation of Will - Dependant Relative Revocation (tear up old, write new)
- If you right a second will and destroy the first, but the second will is invalid then the court will apply the first will.
- Only use the rule if the result comes closer to the testators intent than if it goes to intestate succession
Revocation of Will - Effect of a Contract not to revoke a will
- It is enforceable under K law, not wills. Consideration and in writing required.
- Constructive trust is the usual remedy
Chages in Bene and Property after will executed - Lapsed Gifts
- Gifts lapse if you predecease testator- Most states have anti-lapse statutes to save the gift.
- Anti-lapse statutes only apply when deceased bene was a child or descendant of testator.
- Some statutes allow other relatives
Changes in Beneficiaries - Does 120 hour rule apply to wills
- Yes. A will bene who fails to survive by 120 hours is treated as if she predeceased T.
- A will can remedy with a provision.
Changes in Beneficiaries - What happens if 1 of 3 friends die no testator child? What happens if he does have an heir?
- If an anti-lapse statute does not protect a pre-deceased bene (like a friend) then his share passes to the residuary estate and divided among those taking from residuary.
- Anti-lapse statute trumps this rule
Changes in Beneficiaries - Class Gift, who takes
If a class gift, only class members who survive testator take, unless anti-lapse statute
Changes in Property - Ademption - what property does apply to/ what is result
- Failure of a gift because the property is no longer in testators estate.
- Applies only to specific devises, a gift satisfied only by receipt of a particular property.
- If property not there, bene takes nothing.
- If only partially adeemed he gets whatever is left of the specific property
Ademption - General legacies vs. Demonstrative legacies
- 1. General - gift of a specific dollar amount
- 2. Demonstrative is a dollar amount but specifies what asset it will come from "my stock.
- 3. Court will try to avoid Ademption of a demonstrative gift if they can change it to a general legacy without changing deceased intent.
Increase in property after the will - who gets the increase b4/after death
- 1. Increases b4 death: income on property goes to general estate. Improvements to RP go to the specific gift
- 2. Increases occuring after death: Any increase of specific property after death goes to specific devise because it is deemed his after death
- 3. Stock splits and dividends: Goes to the specific gift
Restrictions - Protection of family - Elective share - spouse (3 points)
- Most states allow the spouse to take the statutory share over the will.
- 1. Amount of Elective Share: Most states give spouse 1/3 if there is issue and 1/2 if there is no issue. Some base on length of marriage
- 2. Notice must be filed: Usually w/in 6-mo
- 3. Right is personal to spouse:
- 4. Life-time gifts: If H gave lifetime gifts to W in lieu of taking under will, then elective share does not apply
Restrictions on will - Protection of Children (3 points)
- 1. Testator can disinherit a child
- 2. Pre-termitted children statutes protect children not alive when will executed - unless it appears that was his intent
- 3. Rupublication of will after child born and does not include the child then the statute does not protect him
Homestead, Family allowance, Exempt personal property - What are they
- 1. Homestead: Even if H gave house away, W and children can live in it as long as they want
- 2. Family allowance: Allows family money, in addition to their gifts, while in probate.
- 3. Exempt Personal Property: W and minors can exempt personal property from estate, like car and furniture - in addition to amounts they get through will or intestacy
Gifts to charities - Mortmain statutes, what is it
Most states have no restrictions on gifts to charities. Some states limit when gift made close to death, Mortmain statute.
Will Contests - Grounds (7)
- 1. Defective execution
- 2. Revocation
- 3. Lack of testimentary capacity
- 4. Lack of testimentary intent
- 5. Undue influence
- 6. Fraud
- 7. Mistake
Will Contests - 4 ways not to have Testimentary capacity
- 1. Must be 18 when written
- 2. Mental capacity not as strict as K law. Simply must: know nature of act, extent of property, natural objects of her bounty, practical effect of will.
- 3. Drunk or drug addict does not mean they did not have capacity
- 4. Insane - adjudicated insane is evidence of lack of capacity but not conclusive
Will Contests - Undue influence (4 points)
- 1. The influence must be severe enough that it over-powers him. Free will must be destroyed
- 2. It is not enough to have nagging, begging or even threats.
- 3. There is a presumption of undue influence if a person has a great influence and trust, helps prepare the will, and the will un-naturally favors her.
- 4. Presumption does not arise between spouses, have to show he did not have free will.
Will Contests - What constitutes Fraud
Testator must have been wifully deceived as to: The character and content of will or deceived as to basic facts he used to construct the will
Will Contests - What Mistake does/does not give relief , how to prove
- 1. Mistake in execution: Did not know he was signing a will, or signing wrong will, courts might not care if he signs wrong will
- 2. Mistake in inducement: - No Relief. If he makes a mistake as to how he devised things, not fraud, then no relief.
- 3. Extrinsic evidence may be used to explain an ambiguity, but not to change the will
Will Contests - When can Court Reform Will
Court may reform a will to match testators intent, even if unambigous, if proven by clear and convincing evidence of a mistake
Will Contests - No Contest Clauses what is the effect on bene
Generally enforceable. But courts usually allow a contest if Bene has Probable Cause, not just a nuisance case.
Probate and Estate Administration - Terminology (probate, Personal Rep, Executor, Administrator)
- 1. Probate: Judicial proceeding to determine the will and heirs
- 2. Personal Representative: Appointed to carry out administration of will.
- 3. Executor: Pers Rep who is named in the will
- 4. Administrator: Personal Rep not named in will
Probate and Estate Administration - who/when Appointment
- Any person who has capacity to contract can be a personal rep. If no one named in will, or intestate, then administrator will be assigned, must post a bond.
- If family can agree on distribution, no administrator will be assigned
Probate and Estate Administration - Obligations of Personal Rep (5)
- Primarily a liquidator:
- 1. Give notice to devisee, claimants, heirs
- 2. Discover and collect assets, inventory
- 3. Manage assets durring administration
- 4. Pay expenses, debts
- 5. Distribute property.
Probate and Estate Administration - Compensation of personal rep
Often governed by statute, if not court has discretion to award reasonable fees
Probate and Estate Administration - Creditor's claims are paid in what order (7)
- After notice, creditors need to file claim in certain time period. Claims paid in following order:
- 1. Admin expenses
- 2. Funeral expenses, last illness expenses
- 3. Family allowance
- 4. Debts preference under fed law
- 5. Secured claims
- 6. Judgments during life
- 7. All other claims
Probate and Estate Administration - Order in which property is Abateted (4)
- Process of reducing gifts if unable to pay creditors. Following order:
- 1. Passing through intestacy
- 2. Residuary estate
- 3. General legacies (to the extent they can be satisfied through appointed source, they are treated like specific legacies)
- 4. Specific bequests/legacies
Probate and Estate Administration - Exoneration of liens
Unlike common law, liens attached to specific gifts are not exonerated from other assets
Probate and Estate Administration - Rules of Construction to determine intent of testator (5)
- 1. Favor those who would take intestate
- 2. Favor construction that avoids intestacy
- 3. Favor construction to further the perceived plan
- 4. Every portion of will should be given effect
- 5. Between totally inconsistant clauses, the later governs
Will Substitutes- What are not devisable in a will (5)
- These are not deviseable, not in Will:
- 1. Life Insurance:
- 2. Bank Arraingements: Totten Trust, Joint accounts, Payable on Death
- 3. Deed: Conditioned on death or in escrow
Exam Rule Statement: When a Will is subject of fraud
Fraud occurs when Testator does not know he is signing a Will or he relied on misrepresentation as to what was in the will. The whole Will or a particular gift will be invalidated.
Exam Rule Statement: When a Witness is given a gift in the Will
Generally, a W's gift under a Will is invalid. The exceptions are 1) there were two other Witnesses; or 2) W would take by intestacy without the Will, then he is entitled to the lesser of the gift or what he would have taken intestacy.
Exam Rule Statement: When there is a simultaneous death
When title of property depends on who died first, the property holder will be deemed to have out lived the taker.
Exam Rule Statement: The Rule of Dependant Relative Revocation (DRR) when a person crosses out an amount of a gift and gives a new gift or destroys an old will, thinking the new will is valid
A court will disregard a prior revocation if it is premised on the belief a new devise was valid, if by doing so it will come closer to testator's desires than intestate distribution
Exam Rule Statement: When a testator leaves a gift to an unknown person (pastor of my church - whoever it might be) the gift is valid under the Indepednet Significance Doctrine.
The fact that a person will be determined by some future event does not violate the gift, under the independant significance doctrine, if the event has nothing to do with the Will.
Exam Rule Statement: When a gift is named or to be named on another document
A will can refer to another document to dispose of a gift if the will is clear as to what document and the document is already in existance.