Decedents' Estates

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1. Intestate Succession the succession of an heir at law

to the property and estate of his
ancestor when the latter has died
without a will

state statute governs this

2. IF decedent is survived by ONLY a Spouse inherits entire estate

spouse
Minority: a portion will be given to
decedent's parents and parents'
issues

3. IF decedent is survived by spouse AND Majority: surviving spouse gets

descendants one-half OR one-third

Uniform Probate Code (UPC):

spouse gets ENTIRE estate IF
ALL descendants are descen-
dants of the surviving spouse as
well

4. IF decedent is NOT survived by a Descendants split the estate

spouse but IS survived by children equally

5. If decedent is survived by NEITHER decedent's surviving parents

spouse NOR descendants

6. If NO surviving parents, NO spouse, NO Descendants of the decedent's

descendants parents will inherit the estate
(their other children, grandchil-
dren, etc.)

7. What happens when a child PREDE- 1) Strict per stirpes

CEASES a parent who dies intestate?
2) Modern per stirpes

3) Per capita at each generation

8. Strict Per Stirpes

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CL: estate is divided by the num-
ber of members in the first gen-
eration of children who are either
alive or survived by descendants

Each living member takes her

share; shares of deceased per-
sons drop to the next generation

So on until every share is taken

9. Modern Per Stirpes Step one: what is the first genera-

tion that has a living taker?

Step two: estate is divided by the

number of members in that gen-
eration of children who are either
alive or survived by descendants

Each living member takes her

share; shares of deceased per-
sons drop to the next generation

So on until every share is taken

Example:

10. Per Capita at Each Generation a system for distributing property

in which distributees of the same
generation take equal portions of
a share determined by right of
representation at the generation
with living members closest to the
decedent

11. Equitable Adoption Factors 1) The parent's bestowal of love

and affection on the child

2) The parent's performance of

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parental duties toward child

3) Child's obedience and com-

panionship toward parent

4) Child's reliance on relationship

5) Parent's holding out the child

as their own

12. Common law advancements (historical) Gifts to heirs DURING a testa-

tor's lifetime were considered ad-
vancements on the heir's intes-
tate share of the estate, and were
automatically deducted from the
heir's share of the estate

13. Advancements (today) Gifts to heirs DURING a testator's

lifetime are NOT considered ad-
vancements on the heir's intes-
tate share of the estate UNLESS:

1) The decedent declared his IN-

TENT to make a gift an advance-
ment in a contemporaneous writ-
ing, OR

2) The heir acknowledged the gift

to be an advancement in writing

14. Uniform Simultaneous Death Act The USDA provides for disposi-
(USDA) tion of property in cases where
persons who would otherwise
take from each other die "simul-
taneously" (within 5 days). Evi-
dence of survivorship, no matter
how brief, is sufficient to establish
sequence of death

15.
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UPC and Revised Uniform Simultane- A beneficiary is only treated as
ous Death Act (RUSDA) having survived the testator if
there is CLEAR AND CONVINC-
ING evidence that the beneficiary
survived the testator by 120 hours
(5 days)

16. Which law governs the disposition of The law of the land where the
the decedent's REAL property? property is located (but he may
select otherwise via will)

17. Which law governs the disposition of The law of his domicile at death
the decedent's PERSONAL property? (but he may select otherwise via
will)

18. Under common law, what happens when It's invalid if it doesn't meet the
a will is NOT properly executed? state's specific requirements.

However, some states find a will

is valid if the decedent SUB-
STANTIALLY COMPLIED with
the state's reqs

19. Under the UPC, what happens when a
will is NOT properly executed?
It will still be valid IF the par-
ty seeking to have it validated
proves by CLEAR AND CON-
VINCING evidence that the dece-
dent INTENDED the writing to be
his will

20. What do states generally require out of 1) In writing

wills?
2) Signed by the testator

3) Signed by at least two witness-

es

21. What if the testator can't sign his will? He must have another sign his
name in his presence and by his
direction
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Any mark intended to validate the

will constitutes a valid signature

22. What are the rules on signing a will? 1) The witnesses must sign the
will in the testator's presence w/in
a reasonable amount of time after
witnessing the signing of the will

- Under the UPC, a valid notary

can satisfy the dual-witness req

2) Majority view: A witness signs

the will in the testator's presence
if she does so WITHIN the testa-
tor's LINE OF SIGHT

- Minority: A witness signs the

will in the testator's presence if
she does so within the testator's
RANGE OF SENSES (e.g., she
MAY be in another room down the
hall if she can still hear the wit-
ness)

23. What if the witness is an interested par- Common law (historical, mostly
ty? abolished): disinterested or bust!

Majority today: You can still wit-

ness even if you're interested

Minority today: You MUST have

TWO additional disinterested wit-
nesses or else you forfeit your in-
heritance

Minority minority today: An inter-

ested witness may only inherit her
intestate share of the estate

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24. Holographic Will A will written entirely by the testa-

tor with his own hand. It is NOT
witnessed. It MUST contain oper-
ative words that are legally suffi-
cient to validly devise the prop

- Majority: do NOT recognize this

type of will as valid

- Minority: this type of will is valid

IF the testator signs it personally
(NO proxy signatures)

25. Integration of Documents Usually arises when pages/por-

tions of a will become separated.
A document will be integrated into
the will if:

- The testator INTENDED the doc

to be part of the will AND

- The document was PHYSICAL-

LY PRESENT at the time of the
will's execution

26. Incorporation by Reference integration made by express ref-

erence in one document that
refers to and incorporates anoth-
er document within it

1) the testator INTENDED to in-

corporate the doc into the will

2) the doc was in existence AT

THE TIME the will was executed

3) the doc is SUFFICIENTLY DE-

SCRIBED in the will

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27. codicil - supplement to the body of a will;
later addition to a will

- MUST satisfy the same formali-

ties as a will in order to be valid

- At the time you execute a codi-

cil, your original will is treated as
REPUBLISHED to the date of the
codicil. However, MOST courts
hold that a codicil CANNOT re-
publish an invalid will as a whole

28. Holographic Codicils Revokes any earlier valid will to

the extent it conflicts with the
holographic codicil

In states that recognize holo-

graphic wills, a valid holograph-
ic (handwritten + not witnessed)
codicil can VALIDATE a will that
was originally INVALID bc it failed
to meet statutory reqs

29. What three physical acts can revoke a 1) subsequent written instrument
will?
2) cancellation

3) partial revocation

30. Subsequent Written Instrument - A document executed for the

sole purpose of revoking the prior
will

- A subsequent will/codicil con-

taining the revocation clause or
provisions that are inconsistent
with those of the prior will (only

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revokes to the extent it conflicts
with the prior will)

31. Cancellation OBLITERATE AND DESTROY

the will (with the intent to do so)

Common law: Words of cancella-

tion are valid ONLY IF they come
in physical contact with the words
of the will (e.g., words of cancel-
lation are written over the original
terms of the will)

UPC: The words need NOT touch

the words of the will, but must still
be located on the will

32. Partial Revocation E.g., a line through terms of a will

IF this version of the will is the

one known to last have been
in the testator's possession, a
PRESUMPTION arises that such
marks were made by the testator
with the intent to revoke

Burden: on the party claiming the

devise has NOT been revoked to
overcome this presumption

If a devise is revoked, that share

becomes part of the residuary es-
tate

Some states do NOT permit par-

tial revocations!

33. Revocation by Divorce CL: divorce did NOT revoke a tes-

tator's devise to a former spouse

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by operation of law

MODERN: a divorce revokes pro-

visions in a will that devise prop to
the testator's former spouse (and
usually her relatives) by operation
of law UNLESS the will/court EX-
PRESSLY provides otherwise

Devise may be revived if spouses

remarry

Devise passes as if the former

spouse predeceased testator

34. Dependent Relative Revocation (DRR)
The valid revocation of a will may
be IGNORED if the will was re-
voked under the testator's MIS-
TAKEN BELIEF OF LAW OR
FACT that she could revive an
earlier will or modify her disposi-
tion of property by codicil or new
will

EXAM NOTE: If you see an other-

wise valid revocation based upon
a mistake (whether of fact or law),
begin your analysis by stating the
DRR rule.

35. When does DRR apply? ONLY WHEN the court can deter-
mine that the testator would have
preferred the revoked will over the
situation that would result from if
he died intestate

Example: T creates a second will

and then writes on the first will,
"I am revoking this will because I

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made a new will." T did not realize
that the second will was not valid.
The revocation of the first will is
set aside, and the first will is given
effect.

36. Revival of an old will under common law Automatically occurs after the re-
vocation of a subsequent will. No
intent required. Minority.

37. Revival of an old will under modern view MOST states will permit it IF

- It is evident that the testator in-

tended the revoked will to take
effect as executed

- The testator republishes the re-

voked will with a subsequent will
or codicil that complies with the
statutory formalities for execution

38. If a beneficiary named in a will prede- Absent an alternate disposition,

ceases a testator, what happens? the devise lapses into the estate's
residue UNLESS an anti-lapse
statute preserves the devise for
the beneficiary's descendants

39. Under an anti-lapse statute, descen- 1) is a blood relative of the testator

dants of the predeceased beneficiary AND
will inherit IF the predeceased benefi-
ciary... 2) has descendant(s) who survive
the testator

Almost all states have one! So

just assume they do.

40. Ademption The extinction or withdrawal of

an inheritance because decedent
did not own the property at the
time of death.
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Adeems just means fails

At common law, the testator's in-

tentions were irrelevant

41. Modern ademption: a specific devise The testator intended the devise
will adeem (fail) ONLY IF... to fail

42. If the testator did NOT intend for a spe- 1) Any property in the testator's
cific devise to fail, the beneficiary is en- estate which the testator acquired
titled to... as a replacement for the specific
devise OR

2) A monetary devise equal to the

value of the specific devise

43. Generic descriptions Interpreted under the circum-

stances existing AT THE TIME OF
THE TESTATOR'S DEATH

Example: "my car" is his car at

his death, not at the time of will
execution

44. Slayer Statute law prohibiting a murderer from

inheriting from his or her victim

45. Disclaimer A beneficiary may DISCLAIM or

RENOUNCE her interest.

This causes the disclaimed prop-

erty to pass as though she prede-
ceased the testator.

46. A valid disclaimer must... 1) Be in writing and signed by the

person making the disclaimer

2) Describe the interest being dis-

claimed sufficiently AND
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3) Be delivered or filed

Time: CL: disclaimer must be

made within a reasonable amount
of time

Some states: within 9 months

UPC: ANY time

47. Three types of devises 1) Specific: e.g., a specific dia-

mond ring or parcel of land

2) General: e.g., a specific dollar

amount, because it can be funded
with cash or with other property of
equal value

3) Demonstrative: a general de-

vise that specifies a specific
source (e.g., a devise of a specific
dollar amount that is payable from
a designated bank account)

48. Abatement Beneficiaries are entitled only to

the NET VALUE of estate assets
(what remains of the estate after
debts, expenses, and taxes are
paid off)

IF there are more claims against

an estate from creditors that there
are assets to cover all of the de-
vises, the devises ABATE

49. Abatement Order The testator may indicate his in-

tended order of abatement, but
if he fails to do so, the law pre-

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scribes an order. If not otherwise
specified in the will, gifts are abat-
ed in the following order:

1. Property passing by intestacy

2. The residuary estate
3. General legacies, which abate
pro rata
4. Specific devises and bequests

These will be used to pay

for debts, expenses, and taxes.
Creditors ALWAYS have priority
over beneficiaries.

50. What to do about an unpaid mortgage? CL: the encumbered real property
was entitled to have the mortgage
paid from the estate as a debt of
the decedent

TODAY: the beneficiary always

assumes the mortgage (doesn't
matter if the will says otherwise)

51. What happens to stock dividends under The beneficiary does NOT re-
the CL minority approach? ceive the additional shares that
were obtained through stock div-
idends; they get only the stocks
specifically granted by the will

52. What happens to stock dividends under Beneficiaries are entitled to addi-
the modern majority approach? tional shares owned by the testa-
tor that were acquired as a result
of stock splits or dividends

53. Class gifts: A devise is to a group of IF the group constitutes a class

individuals. One (or more) die before the (e.g., all of Tom's children), THEN
testator. Who gets the devise?? the predeceased member's share
is split evenly among the remain-
ing members.
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- Example: $20K split between 5

children is now split between 4
($5K each)

IF the group does NOT constitute

a class, THEN the predeceased
member's share lapses into the
residue

- Example: Four separate devises

of $4K, and the $4K from the last
individual goes into the residue

BOTH should be discussed on an

exam

54. Pretermitted Children Born or adopted after execution of

T's will and no provision is made
for them in the will

Entitled to the share they

would've received if the testator
died intestate as long as the tes-
tator did NOT intend to omit them
from their will

55. How to construe "surviving" if used in a Beneficiary survives the date of

will? distribution

Minority: beneficiary need only

outlive the testator

56. Can you create a condition that pro- NO, void as against public policy
hibits a marriage?

57. Disinheritance CL: the only way for an individ-

ual to disinherit an heir was to
execute a will disposing of all of
his property, because any prop-
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erty not so disposed of could po-
tentially pass to that heir through
intestacy.

UPC: allows an individual to dis-

inherit an heir by properly execut-
ing a will expressing such intent,
even if not all property is disposed
of within the will. The barred heir
is then treated as having prede-
ceased the decedent. A general
disinheritance clause is generally
INSUFFICIENT to show intent to
remove a child from a will

58. Contractual wills requirements 1) normal k stuff: mutual assent

+ consideration + no defenses to
formation

2) Writing requirement. Even jurs

that don't explicitly address this
usually come to the same con-
clusion by applying the Statute of
Frauds

59. What happens if a party breaches a valid The court will usually probate the
contract to make a will? new will and impose a construc-
tive trust in favor of the original
intended beneficiaries under the
contractual agreement

60. Three ways to contest a will 1) Capacity

2) Undue Influence

3) Fraud

61. Capacity: to prove the testator lacked 1) The nature and extent of his
mental capacity when the will was ex- property
ecuted, the contestant must prove that
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the testator did NOT know or under- 2) The persons who are the natur-
stand... al objects of his bounty OR

3) the disposition he was making

of his property

BUT generally there is a rebut-

table presumption that the testa-
tor DID have the mental capacity

62. Undue influence: When is a will invalid A person exerts such control and
because it was executed under undue influence over teh mind of the tes-
influence?? tator as to overcome her free will

The contestant must prove that:

1) the testator was SUSCEPTI-

BLE to undue influence (bc of
health, finances, etc.)

2) the wrongdoer had the OPPTY

to exert undue influence over her

3) the wrongdoer ACTIVELY PAR-

TICIPATED in drafting the will
AND

4) the will evidences a result that

appears to be the effect of undue
influence

63. Undue influence: when is there a rebut- A confidential relationship exist-

table presumption of undue influence? ed between the alleged wrongdo-
er and the testator such that the
circumstances surrounding the
drafting of the will were SUSPI-
CIOUS

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Example: a close relative helped
draft the testator's will

64. Fraud: How can a contestant success- 1) A misrep of a material fact was
fully claim a will is invalid because it made to the testator
reflects a testator's false belief in info
arising from a person's fraudulent mis- 2) the misrep was made to induce
representation? reliance by the testator

3) the testator relied on the mis-

rep in disposing of his prop by will

65. fraud in the inducement A person misrepresents a fact re-

lated to the instrument

66. Fraud in the Execution a misrepresentation that deceives

the other party as to the nature or
contents of a document

67. What if you make a mistake in your will? Most courts: allow modification to
conform with testator's intent IF
there is CLEAR AND CONVINC-
ING evidence of a mistake

SOME COURTS: may modify an

unambiguous term to reflect the
testator's intent

MOST: will NOT admit extrinsic

evidence to figure out an ambigu-
ous term. Rather, intent MUST
be determined by the testator's
words and acts

68. No-contest clause (also called an in ter- An express clause within a will de-
rorem clause) signed to deter a beneficiary from
suing over his share by causing
him to lose his share entirely if he
does so.

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The majority of states and the
UPC have held no-contest claus-
es to be unenforceable against
claimants as long as the claimant
had probable cause to contest.

If the claim is spurious, then the

clause is enforceable. A minori-
ty of states give the no-contest
provision full effect, regardless of
whether probable cause to chal-
lenge existed.

69. Who has standing to contest a will? Any person who:

- Is a beneficiary of the will

- Should be a beneficiary of the

will

- Would benefit if the decedent

died without a will

70. Non-probate transfers: Inter Vivos Gift any transaction that takes place
between living persons and cre-
ates rights prior to the death of
any of them

71. Non-probate transfers: Inter vivos gift 1. Donative intent

elements 2. Acceptance of gift by donee
3. Valid delivery

- Actual or constructive/symbolic
(handing over the key to a safe)

72. Non-probate transfers: Who gets the 1) the surviving joint tenant UN-
money in a joint tenant bank account? LESS the account was ONLY set
up for convenience

2) Creditors. Under the UPC, if a

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73. Non-probate transfers: Totten Trust
74. How may a Totten trust be revoked?
75. Can you change the beneficiary under Usually no.
an insurance policy, as executed by
will?
76. Personal Representative
decedent's estate was insufficient
to pay creditors' claims, the cred-
itors have higher priority than the
surviving joint tenant
Under CL, the deceased joint ten-
ant's creditors have NO claim to
the account
A bank deposit of a person's mon-
ey in the name of the account
holder as trustee for another per-
son.
The trustee is the sole owner of
the account throughout his life-
time.
1) By will (must be expressly
clear)
2) During the trustee's lifetime IF
the trustee:
(i) withdraws all funds from the
account OR
(ii) delivers a signed revocation in
writing to the bank naming a new
beneficiary
Some courts allow a policyholder
to change a beneficiary by will if
his insurance company does not
object
administrator or executor who
represents decedents under UPC
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If nobody is named in the will, the
court will assign someone, usual-
ly a surviving spouse or heir

77. Living will A document that indicates

WHAT MEASURES/medical in-
tervention an individual wants if
he or she becomes incapable of
expressing those wishes.

78. Durable Power of Attorney a legal agreement that DESIG-

NATES AN AGENT or represen-
tative of the patient to act on be-
half of the patient

Generally this agent is immunized

from civil liability for health care
decisions made in GOOD FAITH

79. Execution requirements for both living 1) Signed

wills and durable power of attorney?
2) In writing

3) Witnessed by at least two per-

sons OR notarized

(just like executing a will)

80. Family consent laws The following become surrogate

decision makers for an incapaci-
tated patient IF there is no autho-
rized agent acting under durable
power of attorney:

1) spouse (unless legally separat-

ed)
2) adult child
3) parent
4) adult brother/sister

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NOTE: if there are multiple mem-
bers in the same class, they must
reach a majority

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