PeopleHeirs | 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 |
IntestacyIntent | 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 Sharewho 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 |
IssueLineal 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 SharePer 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 |
DefinitionsDecedent | 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 |
| | Will SubstitutesJoint 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 |
RevivalRepublication | 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 Codicilsby revoking a will | testator also revokes any codicil attached to the will; revoking a codicil does not revoke the will |
Third Party RevocationThird party can revoke on behalf of testator if | at testator's direction and in testator's conscious presence |
Third Party RevocationThird party can revoke on behalf of testator if | at testator's direction and in testator's conscious presence |
Revocation of a WillAmbulatory | 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 |
CodicilsSupplement | Does not replace an underlying will | Formalities | executed with the same formalities as a will |
Holographic Willsinformal | 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 WillsThree 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 |
| | Construction/ InterpretationPlain 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 TransferRights 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 Contestsstanding | 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 Processclassify | 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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