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Decedent
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Someone who has died
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Will
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Legal document used to dispose of the decedent's property
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Testate
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Decedent dies with a will
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Intestate
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Decedent dies without a will
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Codicil
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Supplement that either amends or revokes a decedent's will in whole or in part
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Probate
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Judicial process for administering and settling decedent's estates
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Intestate Succession
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Default estate plan for distributing property
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Heirs
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Individuals entitled to receive property by intestate succession
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Spouse
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Decedent's marital partner
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Issue/ Descendants
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Decedent's lineal line
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Ancestors
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Decedent's parental line
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Collaterals
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Decedent's relatives through an ancestor
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Intent
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irrelevent- follow legislatures guide
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heirs
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entitled to take an intestate share
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survival
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key factor in taking from the decedent
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Simultaneous death
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Uniform Probate Code (UPC)- an heir must be proven by clear and convincing evidence to have survived the decedent by 120 hours
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Without Heirs
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Property will escheat to the state
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who qualifies?
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Legally married partner
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Spouse + Shared Descendants
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surviving spouse takes the entirety
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Spouse + parent
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Surviving spouse takes $300,000 and 75% of remainder of estate
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Spouse+ shared descendants+ Spouse's kids
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Surviving spouse takes $225,000 and 50% of remainder of estate
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Spouse + non-spousal kids
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Surviving spouse takes $150,000 and 50% of remainder of estate
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Just spouse
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Surviving spouse takes the entire estate
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Lineal line
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must be a parent-child relationship
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Adoptive children
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inherit from decedent just like biological children
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Stepparent adoption
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Will not prevent adoptee from inheriting from other genetic parent
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Posthumously Born children
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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
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Per Stirpes
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Divide shares into the total number of children who survive or leave issue who survive and then divide by representation
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Per capita by representation
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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
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Per capita at each generation (UPC)
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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
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Three Formal Will Requirements
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signed writing, witnesses, and testamentary intent
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Signed Writing
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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
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Capacity
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must be at least 18 years of age and of sound mind at the time of signing
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Witness (Attestation)
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majority- presence of witnesses and testator; UPC- witnesses must sign within a reasonable time of original signature by testator
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"in the presence"
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Traditional- line of sight; Modern approach- conscious presence
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Interested witness
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Has a direct financial interest in the will- common law (not competent witness), UPC (abolished doctrine), and Purge theory
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Purge theory
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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
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Present Testamentary Intent
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must have the present intent
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Failure to Satisfy Formalities
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Common law/ majority- strive compliance; UPC- substantial compliance by clear and convincing evidence
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informal
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handwritten will
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requirements
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must be signed but doesn't need witnesses
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How much writing?
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some jurisdiction- anything not in handwriting will invalidate will; UPC- only requires material provisions be in handwriting
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Intent
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look for words or phrases suggesting intent; UPC authorizes looking to extrinsic evidence
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Supplement
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Does not replace an underlying will
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Formalities
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executed with the same formalities as a will
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Joint tenancy
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Avoids probate because it has a right of survivorship
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Revocable Trust
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Avoids probate because it has an inter vivos transfer
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Pour-Over Will
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Avoids probate because it distributes property under a trust
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POD Contract
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Avoids probate because it distributes by inter vivos transfer
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Deed
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Avoids probate because it is an inter vivos transfer
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Ambulatory
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altered or revoked any time until the testator's death; can be revoked in whole or in part
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Subsequent Instrument
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express revocation; implied revocation/ inconsistency
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Physical act
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intent for physical act to revoke will; majority- particular language must be destroyed; UPC- destructive act affect some part of the will
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Lost will
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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
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Operation of Law
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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
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Third party can revoke on behalf of testator if
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at testator's direction and in testator's conscious presence
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Third party can revoke on behalf of testator if
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at testator's direction and in testator's conscious presence
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by revoking a will
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testator also revokes any codicil attached to the will; revoking a codicil does not revoke the will
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Republication
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UPC/ majority does not recognize automatic revival of a revoked will
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Dependent Relative Revocation (DRR)
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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
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Plain Meaning
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assume the testator meant the plain meaning of what he said
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Incorporation by Reference
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Wil refers to document outside will can incorporate if: document exists at time of execution, testator intends incorporation, document described with sufficient certainty
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Acts of Independent Significance
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Testator can dispose of property based on some act or event that is unrelated to the execution of the will
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Lapse
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Common law: testamentary gift would lapse if intended beneficiary did not survive the testator; failed gift dumped into the residuary gift
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Anti-lapse
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Prevents certain gifts from lapsing. Requires protected relationship, survived by issue,
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Exception to lapsed gifts rule
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Class gifts- if member's gift lapses, the rest of the class share that member's gift unless anti-lapse controls
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Abatement
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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.
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Abatement hierarchy
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intestate property, residuary gift, general gifts, special gifts
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Ademption by Extinction
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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)
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Ademption by Satisfaction
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testator satisfies a specific or demonstrative gift by inter vivos transfer. Testator must intend for gift to adeem and must be supported by writing
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Ambiguities
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traditional- can only use extrinsic evidence to resolve latent (not on face) ambiguities; modern rule- both can use extrinsic evidence
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Mistakes
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Courts are less forgiving when it comes to mistakes
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Rights of Surviving Spouse
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elective share (forced share- 50% under UPC); waiver to elective share must be in writing after fair disclosure and with representation
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Gifts to Children- Advancements
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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
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Calculating effect of advancement: “Hotchpot” analysis
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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.
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Omitted Children
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intentional disinheritance; unintentional- takes intestate share or portion from what is devised to children
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Slayer Rule
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A beneficiary who murders the decedent is barred from taking under the decedent’s will; UPC allows killer's issue to take when relevant
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Disclaimer
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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
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Elder Abuse
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Someone who is convicted of financial exploitation, abuse, or neglect of a person under her care is prohibited from inheriting from that person.
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standing
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only an interested party
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time for filing
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6 months after will is admitted to probate
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Testamentary capacity
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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
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Insane Delusion
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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)
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Undue Influence
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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
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Fraud
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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
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Forfeiture Clauses
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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
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classify
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each piece of property is probate or non-probate
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probate
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passes by will or intestate succession
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non-probate
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property is transferred by another document
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Primary purpose
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Orderly administration of a decedent’s estate
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Filing under UPC
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Probate proceedings must be brought within ______________________________ years of death, after which there is a presumption of intestacy. Can choose informal or formal probate
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Creditors
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Non-claim statutes: bar claims after time; must be given notice by personal representative
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Personal Representative
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person who acts on behalf of estate during probate process (administrator if by court or executor if by will)
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Duties of Personal Representative
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inventory and appraise estate, contact interested parties, satisfy debts, close the estate
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Duties owed by personal representative
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loyalty and care
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Choosing a personal representative
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surviving spouse who is devisee, other surviving devisee, surviving spouse, other heirs, any creditor (45 days after decedent's death)
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Power of Appointment
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Ability of decedent to select an individual to dispose of certain property under the will. General- no conditions; special- donor limits donee's power
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Powers of Attorney
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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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