Probate

Court proceeding in which

1. Judicially determined that decedent left a valid executed will or without and intestate heirs determined

2. personal reprsentative (Executor or Administrator) appointed

Terms in Probate

Testator: Makes the will

Heirs: Take by intestate succession

Beneficiaries: Take under a will

Residuary Estate: Estate of testator that remains after all debts, taxes, and administration expenses have been paid, and all specific gifts and cash legacies satisfied

Requirements for a

Validly Executed Will

1. T is 18 years old
2. Signed by Testator (or proxy in presence)

Contemporaneous Transaction

3. Two Attesting Witnesses

Need not know its a will

4. Each witness must sign in T's presence

UCC: COnscious Presence Test

IL: Line of Sight, uninterrupted scope of t's vision: if he had looked

Negligent Preparation of a will

Minority Rule: No, bc no privity of K

IL & Majority: Yes, Privity rejected as a defense; Attorneys duty runs to intended beneficiaries of attorney's services

Will Beneficiary Also an 

Attesting Witness or

Executor

Interested Witness never afects validity of will, but beneficiary loses legacy unless:

1. there are two disinterested attesting witneses OR

2. Witness would have taken under probate, so will take lesser of bequest by will or intestate share

Executor

1. Majority: Executor can still take compensation and gift

2. Illinois: Compensation denied

Holographic Wills

Majority: handwritten, signed without witnesses OK

Illinois: No recognition, need two attesting witnesses: no oral wills

Exception: Execution of Foreign Wills Act

Conditional Will 

Argue both

1. Conditional will: Probate should be denied because the condition did not occur

2. Dangers of situation prompted testator to think of the possibility of death and the need for a will.

Revocation of a will

1. Later testamentary Instrument

- IL: signed by two witnesses

- no saying "I revoke past wills"- new will wil be treated as a codicil

2. Physical Act (burning, tearing, canceling, obliterating)

- Must be on will itself

- cancel: Write across words of the paper

- Anything done to signature is a decisive act of revocation

- By third party: Must be

- at T's Direction and T's Presence

Proof of Loss Wills Statute

To Prove a lost will:

1. Proof of Due Execution

2. Cause of will's nonproduction must be proved

- Presumption: Last seen in testators possession and not found after death: revoked by physical act unless

- last seen in adverse person's possession

Evidence is admissable to rebut preumption where will cannot be found (ex fire in the house)

3. Contents must be substantially proved by a copy or testimony of witnesses ho have read it or heard it read.

Dependent Relative Revocation

Permits a revocation to be disregarded when the act of revocation was premised upon, conditioned upon, dependent upon, a mistake of law or fact as to the validity of another disposition

DRR applied where distribution that results from disregarding the revocation IS the second best solution and comes closer to giving effect what testator tried but failed to do than would an intestate distirbution

Changes on Face of Will

After Execution

Illinois: No Effect

UPC and most states: Partial revocations by physical act are valid.

Beneficiary Dies During Testator's Lifetime

Anti-Lapse Statute

Illinois:

- Anti-Lapse statute applies only when the predeceasing beneficiary was a child or other descendent of the testator 

- Predeceasing Beneficiary

1. must have been the prescribed degree of relationship to the testator and

have left descendants who survived the testator

Beneficiaries Die Before Testator

Surviving Residuary Beneficiaries Rule 

IL: If residuary estate is devised to two or more persons and gift to one of them lapses, the surviving residuary beneficiaries take the entire residuary estate, in proportion to their interests in the residue 

- Trumped by Anti Lapse Statute 

Beneficiaries Die before Testator

Glass Gift 

In a gift by will to a class of persons, if a member of the class predeacases hte testator, class members who survive the testator take, subject to possible application of anti lapse statute 

Class Gift

Rule of Convenience

Class is closed, meaning later born class members do not share in gift, when some class member is entitled to a distribution

Subject to gestation principle: Common law presumption that 280 days from conception to birth

Uniform Simultaneous Death Act

IL (Majority): 

- when title to property depends n order of deaths and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each passes as though he or she survived

- six minutes: Sufficient for Survival

- UPC: 120 Hour Rule 

Changes in Family After Will's Execution

Testator Marries after will is executed

IL: No Effect on will bc of elective share statute

UPC: Omitted spouse takes an intestate share of testator's estate

IL: Final decree of divorce or annulment revokes all gifts and fiduciary appntmns in favor of former spouse

- as if spouse predeceased testator

- divorced AT testators death

Changes in Family After Will's Execution

Pretermitted Child

IL: Pretermitted child statute applies only to

- after born and adopted children 

- take intestate share

- unless from will (no extrisic) omission was intentional

Exception

- Will-Child Born-Republication by codicil

- Pretermitted not applicable

Types of Testamentary Gifts

Specific devise or bequest: I devise A to John

Demonstrative legacy: A to be paid from proceeds of sale to John

General Legacy: Bequeth $10K to John

Residuary Gift: Give all the rest and residue of estate to John

Intestate Property:will does not make a complete disosistion of the estate, eithr poorly drafted, resulting in partial intestacy

Changes After Will's Execution

Abatement of Legacies to Pay Claims

Debts and Admin expenses paid out of

1. intestate property

2. residuary assets

3. general legacies

4. specific bequests

Changes after Will's Execution

Ademption

Specific Property not in the estate

Where will makes a specific gift of property, and property is not owned by testator at death: ademption applies and get nothing.

- N/A to demonstrative or general legacies

- IL: Ademption prevents application of equitable conversion doctrine: if K not fully performed before death, then beneficiary gets remaining pmnts under K

Exceptions

Will executed before T became incapacitated 

Testator does not have opportunity to change his will under circumstances that there would be no intent to work an ademption (car bequest, car crash)

Changes  After Will's Execution

Ademption

Bequests of Stock or other securities

When is it specific?

"MY" 100 shares of IBM stock: Specific bequest

100 shares of IBM stock: No my: General Legacy

Stock split: take all because of specific request 

Changes After Will's Execution

Specific Bequest of Encumbered Property

Common Law: Absent contrary provision, liens on specif. devised property are exonerated from residuary estate

IL and UPC: Overturned doctrine: not entitled to have lien exonerated unless will expressly directs exoneration: take subject to lien

Reference to acts and events outside of the will

Incorporation by Reference Doctrine

An extrinsic document, not present when the will was executed and thus not part of the duly executed will, can be incorporated by reference into the will IF

1. Document must be in existence when will executed

2. Will must refer to document as being in existence

3. Will must describe the document sufficiently to permit its identification

UPC: Statutory Exception: Will may refer to list that disposes of tangible personal property but not money or intangibles if list signed by testatory and must describe property with reasonable certainty. May be written before or after will is executed

Lifetime act with a lifetime motive/purpose: Even though effects a will has full effect

Tangible items only

not title documents (deeds, bank passbooks, stock certificates)

Other Will's Doctrines

Mistake or ambiguity in will's terms

1. Absent supsicious circumstances: Conclusively presume Testator read will and its contents 

- plain meaning rule: no ambiguity extrinsic evidence inadmissable

Other issues: Negligence, Respondeat Superior

Latent Ambigiuty due to Missed Description

Allowed: Extrinsiv Evidence, Facts and Circumstances Evidence, Testator's statement to Attny prepared th will

Not Allowed: Testator's declarations of intent

Mistake appears on the face of the will 

Twenty Five ($25,000) Dollars. 

Joint Wills

UPC: Never contractual unless expressly states K exists

IL: 

Execution may be contractual if all or most of factors are present:

1. Will labelled "Joint and Mutual"

2. Will leaves entire estate to surviving spouse 

3. Will disposes of all their property in a unified disposition

4. There is a common dispositive scheme on the death of the survivor 

Reciprocal wills NEVER a K unless clear and convincing evidence of K

UPC:

Negative bequest rule: will can provide how property shall NOT be disposed of, estate distributed as though disinherited person predeceased testator

IL

When will doesn't make complete disposition of estate (partial intestacy), words of disinheritance are ineffective and passes pursuant to intestacy laws

Against Public Policy

a. Encourage Divorce

b. Total Restraint on Marriage

1. Partial restraints are valid (Feinberg)

IL Slayer Statute

- Killer forfeits interest in victim's estate of he intentionally and unjustifiably caused the death of another

- applies to all forms of transfers

-N/A for accidental deaths, negligence

-Cant use conviction from civil: preponderance of the evidence

- passes as though he predeceased the victim

Elderly or disabled abuse: forfeit interest in estate if convicted of criminal abuse/neglect or financial exploitation

Interests that are not subject to disposition by will or inheritance, and do not pass through a person's probate estate for purposes of administration

a. Property passing by right of survivorship

b. Property passing by K (insurance)

c. Property held in revocable trust

Intestate Succession

Application

Only applies where

a. decedent left no will

b. decedents will is denied probate or

c. decedent left a valid will but partial intestacy

d. pretermitted child

IL: Surviving spouse's share

1/2 if survived by descendants 

ALL if no surviving descendants

Allowed family allowance: during probate admin Min is $10K plus $5K for minor or disabled. trumps funeral and admin expenses

Per Stirpes

- One share for each line of living descendants

Each child and the descendants of deceased children take by representation the share their parent would have taken had she survived to be an heir 

Parents and siblings survive

Majority: Estate inherited by parents

IL: Equal portions to parents and siblings

Double to one parent if other dead

Parent disqualified if he neglected, deserted, or failed to support a child

Children adopted under age 18: and descendents have ful inheritence rights from adoptive family

No inheritence rights from natural parents or their kin

Exception: Child adopted by spouse of a natural parent (dead father)

Childred adopted OVER age 18: inherits from adopting parent but not adopting parent's kin 

Nonmarital Children may inherit in IL if: PAP

a. Paternity Suit

b.Acknowledged Paternity

c. Probate Proceedings with clear and convincing evidence

Advancements

Common Law: Lifetime gift presumptively an advancement of child's intestate share

IL and Majority:

Lifetime gift to an heir is not an advancement unless

a. declared as such in a writing by the donor, or

b. acknowledged as such in writing by the donee

What if there is a bequeth in will but then also a payment to beneficiary?

a. Satisfaction of legacies: a life time gift to a child named as a beneficiary in an earlier will is presumptively in partial satisfaction of hte legacy, but not a lifetime gift to any other beneficiary (unles contrary evidence)

b. UPC: no satisfaction of legacy unless declared in a contemporaneous writing by donor or acknowledged as such in writing by the donee

Treated as though he predeceased decedent

1. Must be in writing, signed, and delivered to decedent's personal rep. or trustee or person in possession of property

2. IL: No time limit , but for tax purposes: filed within 9 months after decedent's death

Distribution after effective disclaimer

a. Disclaimer

b. Apply anti lapse statute

Why disclaim

a. No gift tax

b. Avoid creditors claims

Elective Share Statute

Right of Renunciation

IL:

1. Amnt of elective share

a. 1/3 if descendants

b. 1/2 if None

2. Spouse's must file a notice of election to renounce will (7 months after will admitted to probate in IL)

3. Who may make the election

a. by guardian with court aproval to show necessary

b. NOT by dead spouse's estate

Property devised by this renunciation first

Revocable Trust Assets:

a. UPC and Majority: Yes: includes augmented estate

b. Illinois: NO, only probate, not non probate

Will Contests

Who can bring a case?

Will Contests

Lack of Testamentary Capacity 

Burden of proof is on will contestants 

Did testator have sufficient capacity to:

a. Understand the nature of the act he was doing?

b. Know the nature and approximate value of his property?

c. Know the natural objects of his bounty?

d. Understand the disposition he was making?

Adjudicated Incapacity

- N/A: Diff legal test and jury could find will was signed during a lucid interval

- admissable for evidence, but not to support a directed verdict

Will Contests

Existence of testamentary capacity subjected to and controlled by a dominant infleunce or power: Contestants have BOP to show:

a. Existence and exertion of the influence

b. Effect of which was to overpower the mind and will of testator

c. Product is a will that wouldnt have been made but for the influence

Not enough influence by itself:

a. Opportunity

b. Susceptibility

c. Unnatural disposition 

Attny benefits in Will

- where a person in a confidential or fiduciary relationship was active in procuring the will, and that party will receive a substantial benefit under will, presumption of undue influence only overcome by clear and convincing evidence

Will Contests

UPC: No contest clause are effective unless court finds contest was brought in good faith and with probable cause

IL: No contest clauses given full effect regardless of probable cuase