Term
| Incorporation by Reference |
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Definition
(1) the writing must be in existence
(2) the will must show intent to incorp.
(3)will must describe the writing with reasonable certainty |
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Term
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Definition
| A seperate list of personal property to pass items to named recipients. Only tangible personal property, must refer to a valid last will and be SIGNED by the testors. |
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Term
| Acts of Independent Significance |
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Definition
| I give the automobile that I own at my death to my nephew Norman. |
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Term
| Latent Ambiguity v. Patent Ambiguity |
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Definition
My favorite nephew v. I leave twenty-five thousand ($2,500) Erica
You can use extrinsic evidence to resolve both |
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Term
| What happens when the extrinsic evidence fails to cure the ambiguity? |
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Definition
| The gift fails for uncertainty. |
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Term
| Can the INTENDED beneficiaries sue the lawyer who prepares the will for negligence? |
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Definition
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Term
| a bequest of "all my personal property" includes... |
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Definition
| intangible property such as stacks, bonds, bank accounts |
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Term
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Definition
| Often a testor/settlor will give another person a life estate and ask that at the end of that life estate, that person "pick somone" to receive the remainder. |
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Term
| General v. Special Powers of Appointment |
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Definition
General: you can appoint yourself
Special: you cannot appoint yourself |
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Term
| What happens if the person with a testamentory power of appointment fails to "pick someone" for the life estate after she dies? |
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Definition
| It goes to her takers in default. |
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Term
| How do you exercise your power of appointment? |
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Definition
| SPECIFICALLY. But saying, "Any power of appointment I may possess..." is ok. |
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Term
| A will is a will, not a ________. |
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Definition
| Contract. Unless there is clear and convincing evidence of a K or agreement in the will, from extrinsic evidence, and by clear implication of circumstances. |
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Term
| What is a non-probate asset (a will substitute)? |
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Definition
One that is not subject to disposition by will or by intestacy.
Will substitutes trump wills. |
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Term
| Name four will substitutes. |
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Definition
| Survivorship accounts, payable on death transfers, inter vivos trusts, powers of appointment |
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Term
| Who can contest a will for her elective share? |
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Definition
| A surviving spouse who was alive when the will was made, and her husband leaves her nothing and everything to the woman he met on the bar stool at the Tune Inn. |
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Term
If you elective spouyse, you have statute rights to REF.
What does that stand for? |
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Definition
Residence
Exempt personal property up to $15k
Family allowance up to $18k, or more by approval |
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Term
| What amount of elective share does the surviving spouse receive? |
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Definition
| 1/3 if there are issue, 1/2 if not |
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Term
| What are the 4 primary statutory rights of a surviving spouse? (REFH) |
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Definition
Residence
Exempt personal property up to $15k
Family allowance of up to $18k
Homestead allowance of $15k |
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Term
| Advancment v. Ademption by Satisfaction? |
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Definition
Advancments = intestate parents
Ademption by Satisfaction = will |
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Term
| How to Discliam Your interest in a will |
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Definition
1) in writing
2) signed
3) delivery to payor/trustee/personal representative |
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Term
| Reqs for a Witnessed Will |
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Definition
testor must be 18 yrs old
must sign
presence: he must sign will in presence of 2 witnesses |
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Term
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Definition
same as witnessed will:
testor must be 18 yrs old
must sign
presence: he must sign will in presence of 2 witnesses |
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Term
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Definition
| Additionas to an earlier will and are used to complement them, NOT revoke them as a whole. |
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Term
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Definition
1. handwritten
2. signed by testator
3. wholly in testator's handwritting, and 2 witnesses testify to this
4. death talk: intention that the instrument be a will |
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Term
| SOL on contesting a will? |
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Definition
After it is admitted to probate, interested parties have 6 mos. to appeal to CC from order of clerk; OR
1 yr to fill bill in equity to impeach will |
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Term
| Fran died in ME where she resided, and her will was admitted to probate in ME. Fran owned property in VA, which by her will she devised to her nephew. What steps must be taken in VA to show that the nephew takes the VA real property under the will? |
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Definition
Ancillary probate.
Probate always begins where the decedent was domiciled at the time of her death. In this case, ME. PP passes according to this, but real property passes according to the laws os the situs. Thus the personal representative must begin probate in ME and file ancillary probate papers in VA to pass the land to the nephew. |
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Term
| What is a self-proved will? |
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Definition
| When, at the time of execution, or anytime thereafter the testator aknowledges the will, and the witnesses acknowledge the will before a notary. |
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Term
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Definition
| if a beneficiary predeceases a testaor, rather than have his gift lapse back to testaors estate, it will pass to the beneficiary's descedants. ****Only applies to relatives of the testator |
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Term
| What happens if you get a divorce after you execute your will? |
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Definition
| A valid decree of divorce or annulment after the will has the effect of a revocation to anything left to the spouse. |
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Term
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Definition
1. If no other children, he gets what he woudl under intestacy statute; or
2. If other children, he gets the lesser of intestacy or the equivalent to the largest bequest to another child |
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Term
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Definition
1. physical act of destruction;
2. valid subsequent willthat impliedly or expressly revokes previous;
3. divorce decree |
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Term
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Definition
| It is possible to have another person destroy by physical act for you, but it must be at your request AND in your presence |
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Term
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Definition
| It is possible to have another person destroy by physical act for you, but it must be at your request AND in your presence |
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Term
| Presumptions regarding physical act revocation |
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Definition
LOST WILL: if it can be traced back to the testor's presence or control at death
MUTILATION: when a will is foudn mutilated after testator's death |
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Term
| 4 Ways to Revive a Revoked will |
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Definition
1. write and properly execute a new will;
2. revoke any subsequent will revoking original;
3. republish the will by a seperate codicil;
4. Dependent relative revocation |
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Term
| Is there exoneration of liens for beneficiaries? |
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Definition
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