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Wills
Oregon State Bar 2013
79
Law
Graduate
07/09/2013

Additional Law Flashcards

 


 

Cards

Term
Property subject to intestate succession
Definition
1. A decedent dies without having made a will 2. a decedent's will is denied probate 3. a decedent's will does not dispose of all his property 4. will specifies that property should pass by intestate
Term
Intestate share of surviving spouse
Definition
Majority: 1/3 or 1/2 of estate

Some states: 1/3 or 1/2 + amount

Entire state = all surviving descendants are descendants of surviving spouse
Term
Per capita with representation
Definition
Property is divided into equal shares at the first generational level at which there are living takers.

Deceased, passes to issue.
Term
Classic per stirpes
Definition
One share passes to each child of descendent, regardless of whether there are living takers at that level.
Term
Per capita at each generational level
Definition
Shares of deceased persons at that level are combined and then divided equally among the takers
Term
Shares of other heirs
Definition
Estate is distributed in following order:
1. Parents or surviving parent 2. brothers and sisters 3. paternal grandparents 4. nearest kin.
Term
Intestate succession: adopted children
Definition
Treated same as natural children.

No inheritance between adopted children and natural parents, except where natural person marries adopted parent.
Term
Stepchildren and foster children
Definition
Have no inheritance rights.
Term
Nonmarital children
Definition
Always inherits from the mother.

Father: 1. paternity 2. after child birth 3. proved to be father in probate
Term
Half Bloods and Whole Bloods
Definition
No distinction in treatment
Term
Uniform Simultaneous Death Act
Definition
When a disposition of property depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if he had survived the other.

Applies absent contrary will provision.
Term
120 hour rule
Definition
USDA only applies if there is no sufficient evidence of survival.

Many states require that a decedent survive by 120 hours to take.
Term
Disclaimers
Definition
Interest passing as though disclaiming party predeceased the decedent.

To be effective, disclaimer must be in writing, irrevocable, and filed within 9 mos. of the decedent's death of the beneficiary's 21st birthday.

Disclaimer made on behalf of infant, incompetent, decedent = best interest
Term
Decedent's death caused by heir or beneficiary
Definition
Most courts hold that one who feloniously and intentionally brings about the death of the decedent forfeits any interest in the decedent's estate.
Term
Advancement of intestate share
Definition
An advancement is a lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor's estate.

Common law = substantial gift to children was presumed advancement
Term
Advancement of intestate share modern rule
Definition
Not presumed to be an advancement if:
i. declared as such in a contemporaneous writing ii. acknowledged as such in a writing by the heir.
Term
Satisfaction of leacies
Definition
A testamentary gift may be satisfied in whole or in part by an inter vivos transfer.

UPC, doctrine does not apply unless the testator provides for satisfaction in a contemporaneous writing or devisee acknowledges in writing.
Term
Will
Definition
A will is an instrument executed with certain formalities that usually directs the disposition of a person's property at death.
Term
Codicil
Definition
Supplemental to a will and modifies it

Must be executed with same formalities
Term
Testamentary intent
Definition
The testator must have present intent that the instrument operate as his will.

Unclear, look at: 1. intended to dispose of property 2. intended the disposition to occur upon death 3. intended document as plan of disposition
Term
Conditional wills
Definition
analyze motive
Term
Testamentary capacity
Definition
18 years old and of sound mind
Term
Execution of attested wills
Definition
1. Signed by testator 2. two attesting witnesses 3. testator signs or acknowledges serious in witnesses 4. witnesses sign in testator's presence

Optional: 1. sign at end 2. publish will 3. witnesses sign in presence of each other
Term
Testator's signature
Definition
Any mark affixed by the testator with the intent that it operate as her signature.

Can be made at testator's direction.

Order of signing is not improper, but must be part of a single contemporaneous requirement.
Term
Signature: presence requirement
Definition
Conscious presence test

Line of sight
Term
Witnesses
Definition
Competence

Interested? Common law = whole will is void

Modern: may be void depending on jurisdiction
Term
Attestation clause
Definition
Recites the elements of due execution and is prima facie evidence of those elements.
Term
Self proving affidavit
Definition
A self-proving affidavit recites that all the elements of due execution were performed and is sworn by the testator and witnesses before notary public.
Term
Attorney liability for negligence in preparation of wills
Definition
A growing number of statutes allow the beneficiaries to sue an attorney for negligence in preparing or executing a will.
Term
Holographic wills
Definition
A holographic will is one that is entirely in the testator's handwriting and has no attesting witnesses.
Term
Oral wills
Definition
Most states and the UPC do not recognize oral wills.

Small minority for personal property of soldiers/sailors/sick/or those about to die.
Term
Repubilcation of codicil
Definition
A will is treated as having been executed on the date of the last codicil.
Term
Incorporation by reference
Definition
i. it is existence at the time of execution ii. it is sufficiently described in the will iii. the will manifests an intent to incorporate the document.
Term
Acts of independent signficance
Definition
A will may dispose of property by reference to acts and events, even though they are in the future and unattested, if they have significance apart from their effect on dispositions made by the will.
Term
Nonprobate assets
Definition
ex. life insurance
Term
Revocation in wills
Definition
A person with testamentary capacity may revoke his will at any time prior to death.
Term
Revocation by operation of law: Marriage following execution
Definition
Most states: no effect

UPC: intestate share unless i. will makes provision; ii. omission was intentional, or iii. made in contemplation of marriage.
Term
Revocation by operation of law: divorce or annulment
Definition
In most states, divorce or annulment following execution of a will revokes all gifts and administrative appointments in favor of former spouse.

Read as predeceased.
Term
Pretermitted children
Definition
Testator fails to provide in his will

Takes an intestate share
Term
Revocation by written instrument
Definition
All or part of a will may be revoked or altered by a subsequent instrument executed with the same formalities as a will.

If the subsequent testamentary instrument does not expressly revoke the earlier will, the two are read together with the later instrument revoking the earlier only to the extent of inconsistent provisions.
Term
Revocation by physical act
Definition
Under a typical statute, a will or codicil can be revoked by burning, tearing, or canceling, or obliterating a material portion of the will with intent to revoke.

Accidental destruction does not revoke.
Term
Partial revocation
Definition
Most statutes authorize partial revocation by physical act
Term
Presumptions as to revocation
Definition
If a will is last seen in the testator's possession or control cannot be found after death or is found in mutilated condition, a rebuttable presumptions arises that the testator revoked it.
Term
Effect of revocation on other testamentary instruments
Definition
The revocation of a will revokes all codicils to it, but revocation of a codicil to a will does not revoke the entire will.
Term
Lost or destroyed wills
Definition
If a will is lost or destroyed, it may be admitted to probate if the following can be proven: i. valid execution ii. the cause of non-production and iii. the contents of the will.
Term
Revival of revoked wills
Definition
In most states, a will once revoked is not revived unless it is reexecuted or republished by codicil.

The UPC and a minority of states hold that the destruction of revoking instrument may revive a will if the testator's intent to do is established.
Term
Dependent relative revocation
Definition
DRR applies when a testator revokes his will under the mistaken belief that another disposition of his property would be effective, and but for the mistake belief, he would not have revoked the will.
Term
Contract to make a gift by will
Definition
A contract to make, not to make, or not to revoke a will is valid. Contract law, not wills law, governs these issues.
Term
Joint and mutual wills
Definition
A joint will is a single instrument executed by two or more testators and intended to be the will of each.

Mutual wills are separate wills executed by two or more testators that contain substantially similar provisions.

No presumption of contract
Term
Lapsed gifts
Definition
A gift lapses if the beneficiary predeceases the testator.
Term
Anti-lapse statute
Definition
Nearly all states have anti-lapse statutes that operate to save the gift if the predeceasing beneficiary was in a specified degree of relationship to testator AND

left descendants who survived testator.
Term
Lapse in residuary gift
Definition
If a will devises the residuary estate to two or more beneficiaries and one of them predeceases the testator, and anti-lapse statute does not apply, some states follow the common law rule and do now allow the surviving residuary beneficiaries to divide the deceased beneficiaries share among them.

Modern: no residue of a residue rule. Allowing surviving residuary beneficiaries to divide the share in proportion to their interests.
Term
Beneficiary dead when will executed
Definition
If a will makes a gift to a beneficiary who was dead at the time the will was executed, the gift is void.

In most states, the rules that apply to lapsed gifts also apply to void gifts.
Term
Ademption
Definition
Ademption refers to the failure of a gift because the property is no longer in the testator's estate at the time of her death.

Applies only to specific devises.
Term
Partial ademption
Definition
A gift may be partially adeemed, as where the testator devises a large tract of land and then conveys a portion of the tract during his life.

Beneficiary takes remaining portion.
Term
general or demonstrative legacies
Definition
A general legacy is a gift of a specific amount.

A demonstrative legacy gives a dollar amount but specifies a particular asset as the source of payment.

Look for my.
Term
Exceptions to ademption doctrine
Definition
1. Proceeds from sale by estate
2. Executory at time at testator's death
3. Casualty insurance proceeds
Term
Ademption: stock splits and dividends
Definition
At common law, a specific bequest of stock includes any additional shares produced by a stock split, but not a stock dividend.

UPC: also stock dividends.
Term
Elective share statutes
Definition
Nearly all states have elective share statutes that give the spouse an election to take a statutory share of the decedent's estate in lieu of taking under the will.

Typical amount is 1/3 of the estate or 1/2 if not survived by issue
Term
Elective share: property subject to election
Definition
decedent's net estate

apply the share fraction to the decedent's augmented estate

notice must be filed

right to election is personal to spouse
Term
Permitted children statutes
Definition
A testator may disinherit children; pretermitted child statutes protect children from being accidentally omitted.

Child born or adopted after will unless: i. it appears from will that omission was intentional ii. testator had other children at the time will was executed iii. testator provided for the omitted child by a transfer outside of will

Watch for republication of codicil
Term
Homestead/family allowance/exempt personal property
Definition
Homestead: most states have statutes that protect the family residence or farm from creditors

Family allowance: provide support during administration.

Exempt personal property: a surviving spouse is usually entitled to petition to set aside certain items of tangible personal property.
Term
Grounds for contest
Definition
1. Defective execution 2. revocation 3. lack of testamentary capacity 4. lack of testamentary intent 5. undue influence 6. fraud 7. mistake
Term
Contest: procedure
Definition
Within six months

Only interested parties
Term
Mental Capacity
Definition
Capacity to understand: i. nature of her act ii. nature and extent of her property iii. who are the natural objects of her bounty and iv. practical effect of the will.
Term
Undue influence
Definition
i. influence was exerted
ii. the effect of the influence was to overpower mind of testator
iii. resulting testamentary disposition would not have been executed but for the influence.

More than circumstantial evidence
Term
Presumption of undue influence
Definition
i there was a confidential relationship between testator and beneficiary ii. the beneficiary was active in producing, drafting, or executing will iii. will provisions unnaturally favor beneficiary.

No presumption for spouses
Term
Fraud
Definition
willfully deceived as:
i. the character or content of the instrument ii. extrinsic facts that would induce the will or a particular disposition or iii. facts material to disposition.
Term
Mistake
Definition
Extrinsic evidence is admissible to show that a testator did not know that the instrument he was signing was a will because the existence of a testamentary intent is at issue.
Term
Mistake as to contents
Definition
extrinsic evidence is not admissible to show that a provision was omitted or is incorrect.

Similarly, under the plain meaning rule, evidence of mistake is not admissible to contradict the plain, unambiguous language of will.
Term
Ambiguity- extrinsic evidence admissible
Definition
A latent ambiguity arises if a will's language is clear on its face but results in a misdescription as applied.

A patent ambiguity exits if the uncertainty appears on the face of the will.

Extrinsic evidence is admissible to cure latent ambiguities because it does not have the effect of rewriting the will.
Term
Reformation for mistake under UPC
Definition
Even if the will is unambiguous

Proven by clear and convincing evidence
Term
Probate
Definition
refers to the proceeding in which an instrument is judicially determined to be the will of the decedent or in which a decedent's heirs are determined.
Term
Personal representative vocab
Definition
appointed to carry out the estate administration.

Named in will = executor

Not named = administrator
Term
Personal representative
Definition
i. give notice to devisees and claimants against estate ii. discover and collect the decedent's assets and file an inventory iii. manage the assets of the estate; iv. pay expenses of administration; v. distribute property
Term
PR: creditors claims
Definition
i. administration of expenses ii. funeral expenses and expenses of last illness iii. family allowance iv. debts given preference under federal law v. secured claims vi. judgments entered against the decedent during lifetime and vii. all other claims
Term
Abatement
Definition
Abatement is the process of reducing testatmentary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises.

Rule: i. property passing intestacy ii. residuary estate iii. general legacies iv. specific bequests and devises
Term
Exonertation of liens
Definition
While the common law and some states follow the contrary view, the UPC and a large number of states provide that liens on specifically devised property are not exonerated unless the will so directs.
Term
Will substitutes
Definition
Include life insurance, joint tenancies, or tenancies by entirety, inter vivos trusts, bank account trusts, deeds, contracts, and inter vivos gifts, including gift causa mortis.

Will substitutes may enable individuals to avoid taxes and eliminate the cost and inconvenience of probate.
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