Term
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Definition
1. signed
2. personal property (no$)
3. in existence before or after, as long as LW&T refers to it
4. will must refer to it |
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Term
| three things that enlarge the wording of the LW&T |
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Definition
1. incorporation by reference
2. legal list
3. Something of independent existence – UPC §2-512 |
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Term
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Definition
1. Physical Act
2. Subsequent Instrument
3. Revocation by Operation of Law |
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Term
| Revocation by Operation of Law |
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Definition
-Wills Act → will is revoked if you get married
-Common law → will is revoked if you get married or a child is born
-revocation only occurs w/ Final decree of divorce or annulment and not whole will – |
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Term
| 5 Methods of Revival of LW&T |
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Definition
1. new will
2. revoking the revoking instrument
3. dependent relative revocation (CL) and mistake (UPC)
4. Republication by Codicil
5. Re-execution of Will |
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Term
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Definition
| handwritten will or love letter or handwritten changes to typed will; O'B hates them but 13 states allow it |
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Term
| Facts of Independent Significance |
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Definition
UPC §2-512 → this may change b/w A and B line
-e.g., I want the trust code to apply as it exists upon my death
-**Includes “pour-over” trusts – Rather than rendering them invalid due to lack of corpus upon creation, will may allow pour over to happen at death |
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Term
| 5 Requirements for a Trust |
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Definition
• settlor=person who established the trust
• trustee=normally corporate trustee
• beneficiaries
• property
• intent |
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Term
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Definition
| a written statement that a will refers to and that disposes of items of tangible personal property, other than $ |
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Term
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Definition
more than 1 person meets description, when no apparent mistake
1. can always bring in extrinsic evidence |
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Term
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Definition
mistake appears on face of instrument itself
1. can always bring in extrinsic evidence to resolve mistake |
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Term
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Definition
| can't bring in extrinsic evidence to resolve this b/c no ambiguity |
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Term
| 3 Forms of Wealth Transfer |
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Definition
1. LW&T (probate transfer)
2. Will substitutes (non-probate transfer)
3. Intestate Succession (probate transfer) |
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Term
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Definition
-have to know when b/c then springing power of atty applies
-test is C&C evidence of whether person can manage property |
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Term
| 5 Situations in which Intestacy Can Occur |
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Definition
-When there is no LW&T and no non-probate transfer (WS) to pass property to named others
-There’s a LW&T, but terms of declaration do not make provisions for all property owned at death
-The LW&T is revoked or found to be invalid as a result of contest – and no other will is probated.
-The decedent directs property in a LW&T to pass according to intestacy statutes in effect in the state in which she is domiciled at the date of her death.
-A non-probate instrument (such as insurance policy or retirement account) that is “payable to heirs” (as compared to “estate”) → Language such as this means property would not pass according to terms of a valid LW&T, but according to the intestate statutes in effect at the date of her death |
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Term
| 12.1 of Restatement Reforming Donative Documents to Correct Mistakes |
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Definition
| Even if plain meaning, if there is C&C evidence of mistake, extrinsic evidence can come in to prove that |
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Term
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Definition
| more than 5 days unless will says different time |
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Term
| Which trumps--issue or parents? |
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Definition
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Term
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Definition
| children by adoption, children not yet born, stepchildren, children born outside marriage if paternity is proved/acknowledged |
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Term
| 5 Ways to Qualify as Surviving Spuse |
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Definition
1. Legal Marriage
2. Common Law Marriage
3. Domestic Partnership
4. Reciprocal Beneficiary (like dom part in HI)
5. Putative Spuse (when thought married but marriage invalid for some reason) |
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Term
| nonmarital relationships: does that "spouse" get to take? |
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Definition
oral Ks are enforceable if C&C evidence, equitable remedy
Byrne case, Marvin case |
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Term
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Definition
| some states only by final divorce decree so if you die before final treated as if married; other states living separate and apart for period of time is enough |
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Term
| If D dies w/ spouse but no children or parents who gets what? |
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Definition
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Term
| D dies w/ surviving spouse and parent |
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Definition
| spouse gets first $300k plus 3/4 of estate and any will substitutes that had her name on them, parent 1/4 estate |
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Term
| if D had spouse and child and parent |
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Definition
parent-0,
if all issue of both parents>spouse gets everything
if child of both but spouse had another kid before marriage> spouse gets $225k +1/2 AE, kids in common gets 1/2
if D had kid b/f marriage> spouse gets first $100k and 1/2 AE, kid of D gets other 1/2 AE |
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Term
| If D had kid before marriage and has surviving spouse and other kid in common w/ her |
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Definition
| spouse gets first $150k and 1/2 AE, kid of D gets other 1/2 AE |
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Term
| if D had one child w/ spouse and spouse had one child from previous marriage, what does spouse and kids get? |
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Definition
| spouse gets $225k +1/2 AE, kids in common gets 1/2 |
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Term
| if D dies w/ 2 children both from him and spouse who gets what? |
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Definition
| spouse gets everything b/c all issue of both parents |
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Term
| What happens if no heirs can be found? |
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Definition
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Term
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Definition
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Term
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Definition
| by representation (take through someone) |
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Term
| Old UPC intestate distribution method |
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Definition
first line w/ survivor>per cap distribution
second line> per stirpes |
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Term
| New UPC method of intestacy distribution |
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Definition
first line w/ survivor> per capita (i.e. 4 kids, 3 dead, living one gets 1/4)
succeeding lines>per capita too (i.e. grands split 3/4 evenly) |
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Term
| Next of Kin Intestacy Distribution Method |
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Definition
| first line w/ survivor> make per capita distribution to survivors, no one on 2nd line takes (grands get 0) |
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Term
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Definition
| Think horizontally H&W marry, W has son from previous marriage and H&W have 2 kids, no distinction made except in 6/7 states |
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Term
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Definition
1. statutory
2. step-parent
3. equitable |
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Term
| How does statutory adoption work? |
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Definition
| terminates rights of birth parents; treated like relative, children can inherit from and thru adoptive parents |
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Term
| How does stepparent adoption work? |
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Definition
| child treated as having three parents, biodad/mom doesn't lose rights |
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Term
| How does equitable adoption work? |
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Definition
| child taken into home and treated as child, child can take from adoptive parent but not through |
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Term
| requirements for equitable adoption |
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Definition
-express/implied agreement to adopt child
-Reliance on that agreement
-Performance by the natural parents of the child in giving up custody
-Performance by the child in living in home of foster parents and acting as their kid
-Partial performance by foster parents in taking child into home and treating as their own
-Intestacy of foster parents. |
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Term
| What is the presumption of paternity? |
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Definition
| if child born into valid marriage, those parents are presumed his |
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Term
| Can you be a parent by consent? |
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Definition
| Yes, surrogacy case, child wouldn't have been born but for consent of parents so child can inherit from and through |
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Term
| What do you do if heir and D die simultaneously? |
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Definition
| treat as if heir predeceased D but antilapse applies |
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Term
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Definition
-promising to give something you're going to win/inherit, etc.
-generally not valid unless there was consideration given for the promise to give the expectancy |
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Term
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Definition
1. Release
2. Renunciation |
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Term
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Definition
-Occurs during the lifetime of the person from whom you are to take.
-Must have consideration.
-Must be full and adequate disclosure.
-E.g., prenuptial agreements |
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Term
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Definition
-Occurs after the death of someone from whom you will take.
-Almost always takes place in the context of tax benefits
-No consideration requirement
-Must be done within the statute of limitations (IRS – 9 mo |
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Term
| UPC requirements for disclaimer |
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Definition
-Disclaimer be in writing
-Declare the disclaimer
-Description of interest or power disclaimed |
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Term
| Can disclaimer decide what to do w/ property he has disclaimed? |
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Definition
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Term
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Definition
| gift given during lifetime that counts as part of estate so receiver of gift gets less at time of distribution |
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Term
| presumption of advancement |
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Definition
-Contraction on common law doctrine – presumption of advancement ONLY occurs when there is a contemporaneous writing by the donor or the donee stating an advancement has occurred
-Expansion of CL doctrine – applies to any decedent and heir / nieces, nephews, grandkids, etc. not just parent-child like CL doctrine
-presumption is against advancement unless there is a writing stating it was advancement
-attorneys can avoid advancement, have client sign disclaimer
-hotchpot—ficticious amount of what princess daughter already got during life of dad |
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Term
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Definition
1. Notarized Will
2. Holographic Will
3. Noncupative Will
4. Witnessed Will |
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Term
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Definition
1. Presence
2. Signature
3. Witnesses |
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Term
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Definition
1. Ws saw T sign
2. T saw Ws sign
3. Ws saw each other (other Ws) sign |
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Term
| Conscious Presence Test (now UPC uses this) |
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Definition
-know what’s going on
-do not have to actually see
-if you wish, you could see what is going on
-NOTE – this does NOT include phone/webcam/etc! |
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Term
| UPC conscious presence req'ment |
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Definition
-If witnesses are so near at hand that they are within the range of any of his senses so that the testator is aware of what’s happening, then the presence requirement is met.
-No requirement that testator see witness sign, that witnesses see each other sign, or that witnesses see testator sign |
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Term
|
Definition
1. Ws must see T sign or
2. Hear T acknowledge that he signed
3. must be fully intended signature (not full name) |
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Term
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Definition
| under new UPC interested Ws are fine, In NY interested Ws get bumped down to intestate amount, some states need 2, 1 need 3, CA interested Ws create presumption of Undue Influence |
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Term
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Definition
| anyone taking more under LW&T than they would under intestate succession |
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Term
| What type of deficiencies can substantial compliance fix? |
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Definition
| formalities (not intentionalities) |
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Term
| What level of proof is needed to get something fixed under substantial compliance doctrine? |
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Definition
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Term
| What is the effect of an attestation clause? |
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Definition
| raises presumption that all formalities were met |
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Term
| What if you die in a state other than where you made will? |
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Definition
| • if valid where you were domiciled or where executed then valid where you die if state where you die has adopted 2-506 |
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Term
| what is testamentary intent? |
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Definition
| that at moment of execution T intends for that instrument to be her LW&T; if formalities are met raises presumption of intent |
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Term
| test for testamentary capacity |
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Definition
1) did the decedent understand he had children, know family,
2) did decedent understand extent of his wealth,
3) did decedent understand unique nature of executing a will,
4) can decedent interrelate the above three |
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Term
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Definition
| allow relatives' issue to still take even if your relative pre-deceases you |
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Term
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Definition
| gift to group of people capable of increasing or decreasing on their own |
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Term
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Definition
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Term
| What happens if you give money to nonrelatives and they predecease you? |
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Definition
| anti-lapse doesn't apply b/c nonrelatives so $ back to your estate |
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Term
| Does antilapse apply to nonprobate transfers? |
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Definition
| yes, b/c those are just will substitutes and applies to all things P.O.D. |
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Term
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Definition
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Term
| What public policy restraints on transfer of wealth have been recognized? |
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Definition
1. really specific conditions on who you marry or say you can't marry
2. waste: destroying house or papers |
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Term
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Definition
| kid you have after you made will, CL gives them intestate share, UPC gives equal w/ other kids |
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Term
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Definition
| under 2-201 gets (first 1K +50%) only what isn't given to decedent's kid |
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Term
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Definition
| protects trusting spouses |
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Term
| Who can exercise the right to elect? |
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Definition
| personal to the surviving spouse or guardian if the surviving spouse is incapacitated--$ would go into custodial account |
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Term
| community property states |
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Definition
| title doesn't matter, everything owned in common, split 50-50 |
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Term
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Definition
| title does matter, if will substitutes name some other woman they go to other woman (unless elect against AE) |
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Term
| What can you get an elective share of? |
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Definition
| in common law states you can elect against augmented estate, so can include will subs; in community prop get 1/2 of marital estate |
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Term
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Definition
| a judicial reform method whereby courts using equitable power can include will subs in elective share even if will subs name another woman |
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Term
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Definition
| intentional misrepresentation on which someone relies to their detriment |
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Term
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Definition
| mode of judicial reform that allows you to include will subs in probate estate so elective share will be bigger, the factors include: (1) powers of appointment, (2) ability to revoke, (3) change of beneficiary, and (4) income. |
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Term
| Rule Against Perpetuities |
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Definition
| o Look to individual standing at the creation of the interest → ask if there is any possibility that any interest may not vest within a life in being plus 21 years |
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Term
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Definition
| people alive at the A line when testator died |
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Term
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Definition
• “To be paid to X when he turns 50” – no condition to be met
• It is vested to him NOW but becomes possessory when he turns 50 |
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Term
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Definition
• “To be paid to X if he turns 50” – must turn 50 (conditional)
• This is vested to him and will become possessory when he turns 50
• X gets nothing unless he turns 50 |
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Term
| Vested Interest subject to defeasance |
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Definition
To be paid to X if he turns 50, otherwise, to Y” →
o Y has a vested interest, but will be defeased if X turns 50
o X still has contingent interest |
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Term
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Definition
presumption is early vesting
to rebut need C&C evidence |
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Term
| At what point do you determine the membership of a class called (intestate) heirs? |
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Definition
| under Cl when decedent dies (early), under UPC when the possessory interest results (late) |
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Term
| three basic analysis questions |
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Definition
1. Is the will valid?
2. Does it violate the RAP?
3. Who gets what? |
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Term
| doctrine of worthier title |
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Definition
| • E.g., “To Mark for life, then to my heirs at law” – when Mark dies, it goes to my estate (ELIMINATES INTEREST OF HEIRS AT LAW |
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Term
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Definition
| • E.g., “To Andrew, then to his heirs at law” – Andrew immediately gets fee simple interest (he can devise/sell it) – ELIMINATES INTEREST OF HIS HEIRS AT LAW |
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Term
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Definition
| donor gives property (most often real estate) to charity and gets a percentage of the income now, charity gets rest |
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Term
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Definition
| when other instruments (like LW&T or IRA) name your intervivos trust as the beneficiary; you only have to change one instrument if you want to change who gets your property |
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Term
| revocable intervivos trust |
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Definition
| you still control $ so not safe from your creditors |
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Term
| if irrevocable trust for corpus |
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Definition
| go back to A line, creation of interest |
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Term
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Definition
| when you go back to creation of interest of donor |
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Term
| once trust is vested where does it go when you die? |
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Definition
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Term
| does OERC exercise the power of appointment? |
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Definition
| majority rule no, minority yes |
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Term
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Definition
| clause that says i hereby bequeath, devise, etc. all rest and remainder of my estate to X (but doesn't specifically mention the PoA) |
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Term
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Definition
| where you direct trustee to use cy pres to fix stuff |
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Term
| can beneficiaries sue attorney who screws us? |
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Definition
majority--yes if foreseeable
minority--nope, must be in privity and you're not |
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Term
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Definition
| allows for 90 year period of wait and see, this is just wait and see codified |
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Term
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Definition
| allows for 90 year period of wait and see, this is just wait and see codified |
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Term
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Definition
| • Whenever any kind of POA given to donee, donee’s exercise becomes the focal point for purposes of the rule |
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Term
| Presumption of Advancement? |
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Definition
| In common law states yes, under UPC no |
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Term
| In a common law state, what can you take an elective share of? |
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Definition
only the probate estate, not will subs
but remember there are other numbers that include the AE for UPC stuff and its 1/2 marital prop in comm prop state |
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Term
| 5 confidential relationships |
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Definition
priest/penitent
doctor/patient
attorney/client
guardian/ward
relationship of trust (family) |
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Term
| If there is a confidential relationship, what is more likely? |
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Definition
|
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Term
| elements for tortious interference with an expectancy |
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Definition
valid expectancy
intentional interference
independently tortious
causation |
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