PA wills

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PA wills
2011-06-25 04:16:07
PA wills

PA wills
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  1. Governing statute
    In Pa, wills are generally governed by Title 20 of the Pa Consolidatd Statutes on Probate Estates and Fiduciareis

    *write this first on the essay
  2. Decendent
    The deceased person
  3. Estate
    The real and personal property
  4. Intestate
    When someone dies w/out a will
  5. Testate
    When someone dies w/ a will
  6. Family members
    *Children of D and other lineal descendants (grand kids/great grand kids)

    -Heirs= class of people entitled to real property when D dies intestate

    - Next of kin= class of people who inherit personal property of D
  7. Types of Dispositions
    1. Devise: dispo of real property by will

    2. Bequest: dispo of personal property by will

    3. Legacy: bequest of money

    *These strict definitions are disregarded, and a "devise" may refer to persoanalty or realty
  8. Probate
    Process of proving or validating a will

    *It also refers to admin estate regardless of existence of a will

    *Probate estate= property that passes under will or intestacy
  9. Intestacy: "Total"
    A person dies w/ out a will or dies w/ a will that is invalid
  10. Intestacy:"Partial"
    A person makes a will, but doesn't cover all his assets

    Ex: A leaves an estate (after expenses, debts, and taxes) of $1,000. His will states only that C, D, and E are each to receive $300, and does not specify what is to be done with any excess property. The $100 not distributed under the will passes by intestacy and will be distributed according to the laws of descent and distribution.
  11. ***Statutory Provisions: Spouse survives
    • 1. If there is no surviving issue or parents, the entire estate goes to spouse by INTESTACY, not will
    • *EXCEPTION: willful neglect/desertion (very narrow)

    2. If there is no surviving issue of decedent, but he is survived by a parent or parents:

    a. The 1st $30gs of estates + 1/2 balance goes to the surviving spouse(if partial intestacy, any prop received can satisfy $30gs)

    b. The rest goes to the parents (slight preference to SS)

    3. If there are surviving issues of the decedent, all of whom are issue of the SS, 1st $30gs + 1/2 balance goes to SS (rest goest to issue & divided)

    4. If there are surviving issue of the decedent, one or more of whom are not issue of the surviving spouse, 1/2 of estate goes to SS.(the rest divided among the issue)
  12. *****Statutory Provisions: No surviving spouse/ Spouse not entitled to take
    If the decedent's spouse isn't entitled to a share in the estate, or doesn't survive him, or the decedent is unmarried, the issue of the decedent tak in equal shares

    *The issue of a deceased child take through him, by representation, or "per stirpies" (by root), such estate as he would have taken had he survived the intestate (a childs share passes to his children if he dies)

    *When persons are entitled to take per capita, every person in same generation is entitled to equal shares (instead of sharing the entire estate, each kid gets their own equal shares)

    *If decedent is survived by neiter spouse nor issue, the surviving parent will take

    * If the decedent is not survived by anyone, collateral relatives will take (e.g. cousins, uncles, etc...)

    *If the decedent is not survived by spoues, issue or parents, then grandparents will take
  13. Limitations on Inheritance by relations beyond grandparents
    There is a cutoff-->child of grandparents and their children.

    *If no heir, then estate gets cut off- it escheats (property goes to state)

    *"Lauging heir" (e.g 5th cousin twice removed), doesn't get shit
  14. Degrees of Kinship
    • To determine degree of kinship:
    • 1. count the number of generations from the decedent

    2. back to the first ancestor the decedent has in common w/ his relative

    3. And add to that the number of generations from the common ancestor to the relative
  15. Escheat
    After the heir cutoff, and no heir if found, the property goes to the state (rarely happens)

    *Once kinship has been found on either side of the family (by the court) AND all possible efforts have been made to locate heirs on the other side, the Commonwealty and the US are no longer parties in interst of the intestate estate (neither may demand proof of geneology)
  16. How many days must an heir survive a decedent?
    Heir must survive decedent five days

    *Any person who fails to survive the decedent by 5 days is deemed to have predeceased the decedent for purposes (chronological surviving doesn't mean shit)
  17. Speacial problems of intestate distribution (not frequently tested): Adopted Children
    Pa follows the "transplantation theory"

    *An adopted kid loses any relationship w/ their natural parents & is treated as the natural kid of the adoptive parents and their kindred. (the latter can't inherit from and through the adoptive kid)

    *EXCEPTION: consent adoption to new spouse (i.e if step-dad adopts the kid, the kid's not cut off from natural parents, and can still inherit)
  18. Speacial problems of intestate distribution (not frequently tested): Step children
    Step kids have no inheritance rights unless they are adopted, or unless they can prove "adoption by estoppel (the adoption would have occurred except for some defect. OR some contract was formed w/ birth parents but never completed)
  19. Speacial problems of intestate distribution (not frequently tested): Half-blood
    Siblings of the decedent by only one parent, takes equally w/ relatives of the whole blood
  20. Speacial problems of intestate distribution (not frequently tested): Illegitimate/non-marital children
    A kid born out of wedlock is considered the kid of his mother & her kindred for purposes of intestage inheritance

    • *A child born out of wedlock is consdered to be the child of his father when identity of the father is determined by: (i.e can inherit when)
    • 1. the parents marry each other
    • 2. Openly hold child to be his
    • 3. CAC evidence that the man was the faher of the child
  21. Speacial problems of intestate distribution (not frequently tested): Posthumous kids
    Persons conceived before the decedent's death, but born after w/in a span of time id'ed by law, takes as if they were born in decedent's lifetime

    Absent of evidence contrary, a kid born to decedent's widon w/in 280 days of decedents death is presumed to be the child of the decedent (can be referred to as "en ventre sa mere")

    *Problems may arise w/in kids who are the product of in vitro fertilization (traditional law reject these claims) (PA don't help these folks)
  22. Advancements
    If a person dies intestate as to all or part of estate, property that he gave to an heir in his lifetime is treated as an advancement

    • *Recognized as an advancement if:
    • 1) in writing, OR
    • 2) acknowledgemet
  23. *****Form & Execution: Capacity to execute will
    Pa law considers a will to be a written instrument

    1. 18 or older (will be invalid if created when minor, but died as adult w/ no changes

    2. Mental compacity

    *A testator must be "of sound mind" in order to make a valid will

    • *testator must have the ability to understand:
    • 1. nature, condition and extent of his property

    2. nature of the disp that he's making

    3. names of and his relationship to the natural objects of his bounty

    *The fact that testaor may be eccentric or has unusual opinions or behavior doesn't render him mentally incapable of making a will

    *The crucial period during which the executor must have testamentary capacity is @ the time of creation
  24. *****Form & Execution: Formal Reqs of Wills
    • Pa requires the will to:
    • 1. be in writing (any language, but translation needed for probate)- oral wills haven't been permitted since 74

    2. signed by the testator @ the end of will (if testator uable to sign, a mark is permitted)

    3. needs to be 2 Ws in Pa, which doesn't refer to the signing, but to the necessity of proof of the will by 2 Ws (don't have to witness signing, but prefered)

    *The writing doesn't have to be labled "will" (form & writing only considered- look @ substance of writing)

    • *Check to see if writing is a mere promise to make a will
  25. *****Form & Execution: Qualifications of Ws
    • Generally, a W is competent if:
    • 1. observed testator mark his signature
    • 2. and comprehended the nature of T's actions

    *a person may even be competent Ws if he himself signed the will on behalf of the testator (very broad and generous)(a beneficiary can be a W and sign too)
  26. Types of Wills: Holographic Wills
    A handwritten will by T w/out Ws or other formalities

    *In order for a holographic will to be valid, the entire document must be hand written (doesn't have to be a perfect form, but must be signed @ the end w/ testamentary intent)
  27. Types of Wills: Conditional Wills
    A conditional will takes effect upon the happening (or not happening) of some event

    *Pa doesn't favor conditional wills, but they will be recognized (will be construed narrolwy)
  28. Codicils
    A codicil is an instrument executed after a will is created- meant to supplement, modify or eliminate provisions (usually due to changes in life, must be executes w/ same formalities as will)

    *when codicil to a will is executed, the will and all prior codicils are said to be republished/re-executed as of date of codicil.

    *A validly exeucted codicil cures any defects in the execution of the original will in PA
  29. Classification of testamentary distributions: Specific bequest/devise

    *know this shit
    • A gift by will of :
    • 1. a specific thing (real/personal prop)

    2. which is id'd & distinguished from all other things of the same kind

    3. and is satisfied only by delivery of the particular thing
  30. Classification of testamentary distributions: General Legacy

    *know this shit too
    One payable out of the general assets of the D's estate and is not in any way separated or distinguished from other things of the like kind
  31. Classification of testamentary distribution: Demonstrative bequest
    Bequest of a certain sum to be paid out of a particular fund
  32. Classification of testamentary distributions: General Legacy or specific legacy?
    *There's a presumption in favor of general legacies and AGAINST specific legacies (so some benefit to giving general legacies)
  33. Surviving Spouse's Elective Share
    Purpose of elective share law is to giver power to SS (who was cut out/given less value than stat min) to take expressed gift or statutory minimum. (Quality of marriage irrelevant)

    *The right of election of SS may be exercised in whole or part only during her lifetime

    *So if the chick gets shitted on in the will, she can get @ least the stat min
  34. Surviving Spouse's Elective Share: Procedure for Election
    • The spouse must:
    • 1. file a signed writing w/ the court in the county where D died

    2. w/in 6 months of D's death/probate (which ever later)
  35. Surviving Spouse's Elective Share: Property subject to election
    • when a married person domiciled in Pa dies, the SS has a right to an elective share of 1/3 OF THE AUGMENTED ESTATE which may include any property D has a right to sue to claim, etc (basically all his shit)
    • -
  36. Surviving Spouse's Elective Share: Property not subject to election
    • The elective share doesn't include any of the following property:
    • 1. irrevocable trust
    • 2. property already conveyed away
    • 3. property already conveyed w/ adequate consideration
  37. Surviving Spouse's Elective Share: Disclaimers
    • *If SS takes her elective share, she disclaims any interest in any of the following:
    • -property subject to S electioon but not awarded
    • -property appointed by decedent's exercise of general or special power of appointment
    • -property of any trust created by the decedent during his lifetime
    • -proceeds of life insurance
    • -any annuity K purchased by D
    • -ER benefits
    • -community property (to the extent of D's contributions or earnings)
    • -personal prop & real prop owned by D

    *Basically the chick waives all this shit, unless, she conveys the same to those ho would take HAD SHE DISCLAIMED (if she already accepted or can't disclaim)

    NOTE: the court will allow a widow to revoke her election w/in a reasonable time if she didn't have clear knowledge of the facts when she made her choice (can be arbitrary)
  38. Surviving Spouse's Elective Share: An elective share cannot be claimed by:
    SS that couldn't claim under intestacy (desertion, neglect, slayer)
  39. Surviving Spouse's Elective Share: Prenuptial agreements that waive an elective share:
    During the marriage or before is enforceable in PA so long as full financial disclosure, duress, inequitable bargaining power
  40. Children not mentioned in will: Omitted heirs- kids living @ the time of execution of will
    Generally, T can disinherit a kid (kid can't force a share/election)

    *express statement or necessary implication by leaving name out
  41. Children not mentioned in will: Kids born after execution/republication of will- Statutory protection
    There is a presumption of intent to include the kid, unless evidence of intentional omission

    *If T didn't distinguish btw the kids born prior and the one after he passed, the afterborn kid has the same status as the pre-born kids
  42. Restrictions on Charitable Dispositions (?)
    "Mortmain" statutes that place dead bed donations to charities are unconstn because uncontrolled collusion/persuasion
  43. Limitations on T's Powers
    1. T can't impose things against public policy against people

    *Typically, they try to to constrain or limit the behavior of beneficiaries (i.e. I'll give you $100gs by will if you walk up to mike tyson and slap him, then hog spit in his right eye) (probably will be set aside)

    *Some restrictions upheld if not unreasonable.
  44. Interpretaiton of Wills: Integration
    If a question of integaration arises, the proponent must show that the will offered tor probate is actually the will that the T intended to make
  45. Incorportaion by reference
    • Pa rcognizes "incorporation by reference", which permits the inclusion by reference of unattested documents as part of a will if:
    • 1. the writing was in existence @ the time of the execution of the will

    2. it was clearly id'd

    3. it was intended to be incorporated

    *i.e. a D's will saying it will be carried out according to how his wife says will fly

    *the shit has to be said in the will to be good w/ this
  46. Facts of independent significance
    Circumstances outside of the will may sometimes affect the dispo under the will

    *Ex: the property disposed is dependent on what kinds of propert T dies owning
  47. Facts of independent significance: Dispo to inter vivos trust (Pour-over wills)
    A will may pour over into an existing inter vivos trust (ma be justified on theory of incorp by reference or inter vivos trust has independent legal significance [amended])
  48. ********Disqualifications: Slayer's Act (heavily tested)
    • Any person who participates/accessory before the fact, in the willful and unlawful killing of any other person may not benefit as a result of the death.
    • *The findings of crim proceedings don't determine the issues invovled in a civil proceeding.
    • - record conviction of murder will conclusively establish willful/unlawful
    • -conviction of voluntary manslaughter will bar recovery

    *will function as if the slayer predeceased the V

    • *NOTE: also:
    • -refusal to support.disertion if for 1yr or more
    • -divorce/remarriage- ex spouse wiil not take unless experess that she takes, even after divorce
  49. Simultaneous Death (husband/wife)
    *In the context of a will, you're looking for sufficient evidence for survival (could be minuets, seconds)no 5 day rule

    *Most Pa wills will offer a survival clause which will estimate the time frame

    • *When there's a simultaneous death, the estate of each D is distributed as if he had survived his beneficiary (if owned in JT, an all parties die, estate will pass assuming)
  50. Disclaimer of Property Interest
    • Reasons why someone would want to disclaim:
    • -doesn't want the propety
    • -property encumbered
    • -person wants prop to be given to someone else

    • *Disclaimer must be:
    • 1. in writing
    • 2. signed
    • 3. filed w/ court which D is domiciled

    *a disclaimer may be made @ any time prior to acceptance (prior acceptance must be affirmatively proved)

    *The disclaimer relates back to the date of death & property will pass as if disclaimer predeceased D
  51. Changes in property & beneficiaries after execution of will: Ademption by extinction
    *The specific propety is no longer in estate

    1. ademption by extinction: the property a person leaves in his will may not be the same propety he owned when the will was executed (bene won't be able to receive prop unless it's apart of estate when D dies) (usually deal w/ specific gifts)
  52. Changes in property & beneficiaries after execution of will: Ademption by satisfaction
    Advancement: occurs whe T makes an inter vivous gift of propety to a bene of a general or residuary dispo w/ intent that the provoision of the will be satisfied
  53. Changes in property & beneficiaries after execution of will: Abatement
    If the assets of the T's estate are insufficient, after payment of all claims against the estate, to satisfy all the bequests or devises, the bene's shares will abate (i.e be reduced)

    • *Absent contrary directions in the will, the shares of the distibutees abate in the following order:
    • 1. residuary
    • 2. general bequest
    • 3. specific bequest
    • 4. specific bequests to issue
    • 5. specific bequest to SS

    • *Abatement may be caused by"
    • 1. SS elects against will
    • 2. unmentioned child makes election
    • 3. child/S claims family exemption
  54. Changes in property & beneficiaries after execution of will: Class gifts
    A class gift exists when the T makes a gift to a # of persons as a group, and the size of the group either increases or decreases in sized (shares depend on size)

    *In Pa, in order to establish a gift as a class gift, there must be a common relationship btw member of the class (if there's a serise of named peeps & would be impossible to name a class, the law will assume that the gift is to the peeps, not the class) (no common relationship- no gift)

    *Opening & clossing of Classes
    : there's a presumption that the T intended the class to consist of the individuals who were alive on the date of the execution of the will

    Vesting of Class gifts- minimum membership: although a class may increase after the T's death, membership in a class will not decrease after T's death
  55. Changes in property & beneficiaries after execution of will: Lapse
    Lapse occurs whe dispo fails bc bene predeceases b4 T

    *lapsed dispo: usually under residuary clause or intestacy

    *Anti-lapse statute: will change direction of transfer

    *If a devise or gift fails & is included in the residuary clause in the will, instead of goin to the residuary clause, the gift will go to the surviving issues of the intended bene per stirpes

    *Class gifts
    : lapse doesn't apply to class gifts (also, will not apply to circumstances where the T mandates survival in order to take under a will)
  56. ******Change or revocation of a will: Methods or revocation
    1. Cancellation or obliteration: by a physical act w/ intent by T (T intends to end it by ripping it up etc...)

    *requires some defacement of the words or signature, copule w/ intent to revoke (not just torn/wrinkled sides of paper)

    2. by execution of subsequent instrument (executed & proven in same manner of will - express or implicated)

    • 3. by operation of law
    • -divorce- all provisions relating or benefiting the ex spouse are ineffective unless apparent intent for gift to survive divorce

    -marriage because spouse become entitled to elective share
  57. ******Change or revocation of a will: Revival of revoked wills
    • If, after making will, T executes a later will that revokes the earlier one, the revocation of the later will does not revive the earlier will unless the revocation:
    • 1. is in writing, AND
    • 2. declared intention of T to revive the earlier will
  58. ******Contracts to make a will; joint or mutual wills
    • Pa will uphold as valid a K to dispose of by will all or part of a person's property (real or personal), so long as:
    • 1. contractual intent
    • 2. consideration
    • 3. K is demonstrated in the will
  59. Probate of wills
    Probate is the process of validating a will (generally by admin of estate)

  60. Probate of wills: Proof of wills
    Burden of proof is on the person arguing in favor of the will (making sure it meets formalities)

    *If the burden is met, a presumption is established & can only be rebutted by CAC evidence
  61. Probate of wills: Proof of lost wills
    Where a will in T's custody can't be found @ his death, it's presumed T destroyed it

    * Can be over come by the proponents lost of will (2 competent Ws must prove the contents & execution of will w/out the assitance of the other)
  62. Will Contests
    A will contest can only be mounted by a person w/ interest in the distribution

    * if the contesting party is successful, the estate will pass under intestacy
  63. Will Contests: In terrorem clause (no-contest clauses)
    Where bene's gift is eliminated if b contest the will (attempt by T to contol/grandstand)

    *In Pa, this in ineffective if person has a R cause to contest the will
  64. Will Contests: grounds for contest of a properly executed will are:
    1. lack of testamentary capacity

    2. Insane delusion (no rational person would believe)

    • 3. Undue influence (coerced etc...)
    • -Pa law reqs CAC evidence of this influence
    • -BOP on person asserting
  65. Will Contests: Mistake
    Mistake in the indcement, in Pa, courts will not set aside a will for mistake alone

    *Mistake in the factum
    : Pa courts will not set aside for this reason alone. Some courts will allow extrinsic evidence to show need for modification

    -if T signs the wrong will the court will not interven and probate of the will denied
  66. Will Contests: Fraud in ducement
    Established upon proof that bene made a knowingly false representation to T for the purpose of inducing the T to draw a will in his favor, and the T mad a different will than he would have made in the absence of that represenatation
  67. Will Contests: Fraud in execution
    Fraud as to the very nature of an instrument or its contents (when someone makes D think he's signing something else)- deied in probate, BOP on alleging party
  68. Will Contests: Ambiguity
    Ptent ambiguities appear on the face of the instrument. In Pa look @ the rest of the will to see T's intent (extrinsic evidence not permitted)