People
Heirs |
Individuals entitled to receive property by intestate succession |
Spouse |
Decedent's marital partner |
Issue/ Descendants |
Decedent's lineal line |
Ancestors |
Decedent's parental line |
Collaterals |
Decedent's relatives through an ancestor |
Intestacy
Intent |
irrelevent- follow legislatures guide |
heirs |
entitled to take an intestate share |
survival |
key factor in taking from the decedent |
Simultaneous death |
Uniform Probate Code (UPC)- an heir must be proven by clear and convincing evidence to have survived the decedent by 120 hours |
Without Heirs |
Property will escheat to the state |
Spouse's Share
who qualifies? |
Legally married partner |
Spouse + Shared Descendants |
surviving spouse takes the entirety |
Spouse + parent |
Surviving spouse takes $300,000 and 75% of remainder of estate |
Spouse+ shared descendants+ Spouse's kids |
Surviving spouse takes $225,000 and 50% of remainder of estate |
Spouse + non-spousal kids |
Surviving spouse takes $150,000 and 50% of remainder of estate |
Just spouse |
Surviving spouse takes the entire estate |
Issue
Lineal line |
must be a parent-child relationship |
Adoptive children |
inherit from decedent just like biological children |
Stepparent adoption |
Will not prevent adoptee from inheriting from other genetic parent |
Posthumously Born children |
If child is born 280 (or 300 under UPA) days of husband's death, there is a rebuttable presumption that the child is husbands and will inherit from the husband |
Calculating Issue's Share
Per Stirpes |
Divide shares into the total number of children who survive or leave issue who survive and then divide by representation |
Per capita by representation |
Divide property equally at the first generation where a member survives decedent; If a deceased member of a generation is not survived by living issue, then that member does not take a share |
Per capita at each generation (UPC) |
Divide property into equal shares at the first generation where there is a surviving member; pools the remainder share after each generation and divide equally |
Definitions
Decedent |
Someone who has died |
Will |
Legal document used to dispose of the decedent's property |
Testate |
Decedent dies with a will |
Intestate |
Decedent dies without a will |
Codicil |
Supplement that either amends or revokes a decedent's will in whole or in part |
Probate |
Judicial process for administering and settling decedent's estates |
Intestate Succession |
Default estate plan for distributing property |
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Will Substitutes
Joint tenancy |
Avoids probate because it has a right of survivorship |
Revocable Trust |
Avoids probate because it has an inter vivos transfer |
Pour-Over Will |
Avoids probate because it distributes property under a trust |
POD Contract |
Avoids probate because it distributes by inter vivos transfer |
Deed |
Avoids probate because it is an inter vivos transfer |
Revival
Republication |
UPC/ majority does not recognize automatic revival of a revoked will |
Dependent Relative Revocation (DRR) |
Safe valve for testators who revoke a will on the basis of mistake (of law or fact); invalidates the mistaken revocation and revives the earlier revoked will |
Revoking Codicils
by revoking a will |
testator also revokes any codicil attached to the will; revoking a codicil does not revoke the will |
Third Party Revocation
Third party can revoke on behalf of testator if |
at testator's direction and in testator's conscious presence |
Third Party Revocation
Third party can revoke on behalf of testator if |
at testator's direction and in testator's conscious presence |
Revocation of a Will
Ambulatory |
altered or revoked any time until the testator's death; can be revoked in whole or in part |
Subsequent Instrument |
express revocation; implied revocation/ inconsistency |
Physical act |
intent for physical act to revoke will; majority- particular language must be destroyed; UPC- destructive act affect some part of the will |
Lost will |
creates a rebuttable presumption that the testator revoked the will by physical act; burden on proponent to show will's existence by clear and convincing evidence |
Operation of Law |
divorce revokes all will provisions in favor of former spouse (UPC extends to ex's relatives); subsequent marriage does not revoke a will because of elective shares |
Codicils
Supplement |
Does not replace an underlying will |
Formalities |
executed with the same formalities as a will |
Holographic Wills
informal |
handwritten will |
requirements |
must be signed but doesn't need witnesses |
How much writing? |
some jurisdiction- anything not in handwriting will invalidate will; UPC- only requires material provisions be in handwriting |
Intent |
look for words or phrases suggesting intent; UPC authorizes looking to extrinsic evidence |
Execution of Wills
Three Formal Will Requirements |
signed writing, witnesses, and testamentary intent |
Signed Writing |
must be written, signed at end or anywhere under UPC- must show intended to be signature; nothing after signature will be valid; doesn't need to be formal signature |
Capacity |
must be at least 18 years of age and of sound mind at the time of signing |
Witness (Attestation) |
majority- presence of witnesses and testator; UPC- witnesses must sign within a reasonable time of original signature by testator |
"in the presence" |
Traditional- line of sight; Modern approach- conscious presence |
Interested witness |
Has a direct financial interest in the will- common law (not competent witness), UPC (abolished doctrine), and Purge theory |
Purge theory |
Interested witness does not affect the validity of a will BUT probate court will purge any gain in excess of what the witness would take under intestate succession |
Present Testamentary Intent |
must have the present intent |
Failure to Satisfy Formalities |
Common law/ majority- strive compliance; UPC- substantial compliance by clear and convincing evidence |
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Construction/ Interpretation
Plain Meaning |
assume the testator meant the plain meaning of what he said |
Incorporation by Reference |
Wil refers to document outside will can incorporate if: document exists at time of execution, testator intends incorporation, document described with sufficient certainty |
Acts of Independent Significance |
Testator can dispose of property based on some act or event that is unrelated to the execution of the will |
Lapse |
Common law: testamentary gift would lapse if intended beneficiary did not survive the testator; failed gift dumped into the residuary gift |
Anti-lapse |
Prevents certain gifts from lapsing. Requires protected relationship, survived by issue, |
Exception to lapsed gifts rule |
Class gifts- if member's gift lapses, the rest of the class share that member's gift unless anti-lapse controls |
Abatement |
If the estate does not have sufficient funds to pay debts or make gifts, the gifts will be abated, or reduced, in a specific order. |
Abatement hierarchy |
intestate property, residuary gift, general gifts, special gifts |
Ademption by Extinction |
specific piece of property no longer in estate. Traditional- devise is extinct; UPC- look at testator's intent at time she disposed of property (preference for replacement property) |
Ademption by Satisfaction |
testator satisfies a specific or demonstrative gift by inter vivos transfer. Testator must intend for gift to adeem and must be supported by writing |
Ambiguities |
traditional- can only use extrinsic evidence to resolve latent (not on face) ambiguities; modern rule- both can use extrinsic evidence |
Mistakes |
Courts are less forgiving when it comes to mistakes |
Power to Transfer
Rights of Surviving Spouse |
elective share (forced share- 50% under UPC); waiver to elective share must be in writing after fair disclosure and with representation |
Gifts to Children- Advancements |
lifetime gift that satisfies child's intestate share. Common law- lifetime gift is presumed to be advancement; UPC- only advancement if contemporaneous writing or writing that gift should be taken into account in computing division of estate |
Calculating effect of advancement: “Hotchpot” analysis |
Add the value of the advancements back into the intestate estate, Divide the resulting estate by the number of children taking, Deduct the child’s advancement from the child’s intestate share. |
Omitted Children |
intentional disinheritance; unintentional- takes intestate share or portion from what is devised to children |
Slayer Rule |
A beneficiary who murders the decedent is barred from taking under the decedent’s will; UPC allows killer's issue to take when relevant |
Disclaimer |
signed writing that is filed with court OR declared to estate distributor AND Identify the decedent, describe the interest being disclaimed; within 9 months of decedent's death |
Elder Abuse |
Someone who is convicted of financial exploitation, abuse, or neglect of a person under her care is prohibited from inheriting from that person. |
Will Contests
standing |
only an interested party |
time for filing |
6 months after will is admitted to probate |
Testamentary capacity |
burden on contester to show that when will was executed, testator lacked the ability to know: nature of act, nature and character of property, natural objects of bounty, plan of attempted disposition |
Insane Delusion |
testator has general capacity but has an insane delusion as to some belief. Measure against actions of a rational person (also need to prove but-for causation) |
Undue Influence |
contestant bears burden of showing: beneficiary received a substantial relationship, beneficiary had a confidential relationship with testator, and testator had weakened intellect. THEN burden shift to proponent to show no undue influence by preponderance of the evidence |
Fraud |
contestant bears burden of showing beneficiary made misrepresentation wit the intent to deceive the testator and the purpose of influencing the testamentary disposition. Remedied by constructive trust |
Forfeiture Clauses |
in terrorem: no-contest clause designed to dissuade a beneficiary from suing about his share; under UPC clause is unenforceable if probable cause to challenge |
Probate Process
classify |
each piece of property is probate or non-probate |
probate |
passes by will or intestate succession |
non-probate |
property is transferred by another document |
Primary purpose |
Orderly administration of a decedent’s estate |
Filing under UPC |
Probate proceedings must be brought within ______________________________ years of death, after which there is a presumption of intestacy. Can choose informal or formal probate |
Creditors |
Non-claim statutes: bar claims after time; must be given notice by personal representative |
Personal Representative |
person who acts on behalf of estate during probate process (administrator if by court or executor if by will) |
Duties of Personal Representative |
inventory and appraise estate, contact interested parties, satisfy debts, close the estate |
Duties owed by personal representative |
loyalty and care |
Choosing a personal representative |
surviving spouse who is devisee, other surviving devisee, surviving spouse, other heirs, any creditor (45 days after decedent's death) |
Power of Appointment |
Ability of decedent to select an individual to dispose of certain property under the will. General- no conditions; special- donor limits donee's power |
Powers of Attorney |
An authority to act on another’s behalf in a legal or business matter. Must be in writing, signed, and dated. Types: General, special, Advanced healthcare directive (living will or durable power of attorney for healthcare) |
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