Wills

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Author:
mjabali
ID:
277144
Filename:
Wills
Updated:
2014-07-14 19:25:15
Tags:
wills
Folders:
wills
Description:
wills
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  1. Rules of intestacy apply when
    • someone dies without a will
    • someone attempts to draft a will but the will is found invalid
    • someone's will fails to dispose of the property of his or her estate
  2. 3 categories of intestate beneficiaries
    • surviving spouse
    • descendants
    • distant relatives (i.e. aunts, uncles, cousins)
  3. the intestate share of the surviving spouse is either:
    • everything, if the decedent has no issue OR
    • $50,000 plus 1/2 of the remaining amount if the decedent did have issue
  4. Who is a spouse and impact of divorce and separation
    spouse= actual marriage (includes same sex couples) and separation and being in divorce proceedings (with no actual divorce) does not eliminate rights of the surviving spouse

    • DOES NOT include 
    • - spouse who abandoned partner
    • - committed partners
  5. For spouse to not receive assets from divorce due to abandoment, abandonment must be:
    • - voluntary
    • - permanent
    • - non consensual on the part of the abandoned spouse
  6. Rule re. simultaneous death
    If spouses die within 120 hours of each other, they are presumed to have died simultaneously
  7. The intestate share of a decedent's issue is either:
    • - everything, if there is no surviving spouse, or
    • - the remaining 1/2 of the estate that the surviving spouse did not take, if there is a surviving spouse
  8. issue take by ______. which means ______ at each generation
    • - representation
    • - per capita
  9. goal in per capita/ representation
    - people related in the same way to the decedent take the same amount as each other
  10. if a decedent dies without a surviving spouse and without issue, then property passes to more remote collaterals in the following order:
    • - surviving parents
    • - issue of parents
    • - grandparents
    • - issue of grandparents (the decedent's aunts, uncles, cousins)
  11. Generally, for a will to be valid, these 3 requirements:
    • 1. in writing
    • 2. Signed by the testator in the presence of witnesses: at the and of the will, anything after will be ignored; can be just a mark, someone else can sign for the testator at his or her discretion
    • 3. signed by at least 2 competent witnesses-
    • witnesses do not need to be present with each other.
    • --competent = disinterested
    • -- In NY, the share of an interested witness is purged in excess of what the witness would have taken in intestacy. 

    * Note, no witness required if member of armed services writes holographic will (it's in his or hers own handwriting)

  12. Three doctrines modify Wills Act formality requirements:
    • 1. integration
    • 2. Acts of independent significance
    • 3. incorporation by reference
  13. A presumption of undue influence can arise from the combination of
    • 1. a confidential relationship b/w the testator and the beneficiary under the will PLUS
    • 2. suspicious circumstances: an unnatural disposition, a will that was prepared in secrecy or haste, or the weakened condition of the testator.

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