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59 Cards in this Set

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  • Back
What happens during a probate proceeding?
The Court (1) determines if the decedent left a validly executed will and (2) appoints a personal representative to administer the decedent's estate.
What is a residuary estate?
Whats left of an estate after all debts, taxes, and administration expenses have been paid; and after all specific gifts and cash legacies have been satisfied.
What is a codicil?
A later amendment or supplement to a will (in IL, must be executed with the same formalities as the will).
The requirements for a valid will in Illinois are...
The testator must be 18 years old and the will must be signed by the testator with two attesting witnesses who sign in the T's presence (T sign by proxy if the proxy is at T's direction and in T's presence).
In IL, what does the requirement for witnesses to sign "in T's presence" mean?
That the Ws are in T's line of sight (doesn't actually have to look at them, but T must be conscious). UPC (majority rule) - conscious presence (don't have to see, but be near enough that T knows Ws are there and what they are doing)
Are attorneys liable for negligence in the preparation of a will?
In IL (maj.), yes - attorney's duty runs to intended beneficiaries of his service.
Minority rule: No, just liable in privity of K - only runs with client.
What is the Interested Witness Statute and how is it applied?
It's an issue when a beneficiary is also an attesting witness. RULE: The will can be admitted to probate, but the beneficiary-witness LOSES LEGACY!
EXCEPTION: If there were two other disinterested attesting witnesses as well (supernumerary rule); OR If the witness-beneficiary would take a share of the estate if this will were not admitted to probate, in which case he takes the lesser of: (1) bequest given by the will, or (2) intestate share (or legacy under an earlier will revoked by this one).

Note: UPC has abolished the interested witness rule.
What about an executor who signs as a witness?
In IL: NO COMPENSATION for executor who signs as a witness.

Majority: still get compensated for serving. Note: UPC has abolished the interested witness rule.

IL doesn't apply their rule to banks/law firms whose employee/lawyer signs as a witness.
If a beneficiary also signs as a witness, does the witness-beneficiary's spouse lose their legacy as well?

UPC: Nope

NOTE: UPC has abolished the interested witness rule
What is a holographic will and does IL recognize holographic wills (no it doesn't involve any fancy machines or cool looking graphics...yet)?
A handwritten signed will but NO WITNESSES. IL (minority) does not recognize these (also IL won't recognize an oral will under any circumstances).

UPC (majority) - does accept these.

EXCEPTION IN IL: Execution of Foreign Wills Act - a valid holographic will written in a state that recognizes them is admissible to probate in IL.
Are "conditional wills" valid, even if the T survives the condition?
Example: "If I die on this trip, leave all my N'Sync bobble heads to Jack" which is signed and witnessed properly.
Depends on intent: look to facts of the question. If T keeps the conditional will around and doesn't destroy it, it could be valid. FACT SPECIFIC
What constitutes a valid will revocation?
Must revoke by either (1) later testamentary instrument, executed properly; or (2) physical act (burning, tearing, canceling, Xing out signature, etc.).

Revocation by proxy: done @ T's direction AND in T's presence!
What happens if the will is lost or destroyed in a house fire - how do we prove the contents of the will?
3 steps:
1 - Proof of due execution (testimony of attesting Ws)
2 - Cause of will's non-production must be proved
3 - Contents must be substantially proved by copy of will or testimony of witnesses.
If a will was last seen in possession of T, but T has died and the will can't be found or is found mutilated, what is the presumption?
It's presumed to be revoked by physical act - evidence is admissible to rebut the presumption.
What happens if a 2nd will is executed? Does it automatically wipe out the first?
NO, it doesn't automatically wipe out the first. The two wills should be read together and the 2nd will revokes the first to the extent of inconsistent provisions. IF the 2nd will is WHOLLY inconsistent - then the first will is revoked by implication.
What is the "Dependent Relative Revocation" doctrine (DRR)?
In a 2 will situation, where the 2nd will revoked the earlier will and the T decides to destroy the 2nd will (physical act) with INTENT to revive the earlier will: There is NO revival of revoked wills in IL (majority). SIDENOTE:If they wanted to "revive" they must properly re-execute the will or use a codicil to revive it (but with same formalities).
(back to the regular program) This is where DRR comes in play: it permits revocation to be disregarded when the act of revocation was dependent upon a mistake of law/fact about validity. Effect is to disregard the revocation of the 2nd will.
Can I write a change on the face of the will after it's been executed?

Ex: I scratch out "$5,000 to Beth" and put "$10,000 to Beth"
IL: this has NO EFFECT AT ALL - disregard the scratch out and Beth gets the original $5k (under DRR).

UPC (majority): partial revocations by physical act are valid (also, remember that UPC and majority allow holographic wills, so it would be valid change).
What happens when a beneficiary dies during the T's lifetime? Do they lose their inheritance?
When beneficiary predeceases T, the gift "lapses" unless it's saved by an "anti-lapse statute."

In IL: applies only: (1) when the predeceasing B was a child or other descendant of the T; AND (2) B left descendants who survived T.

If no descendants, then it lapses and goes to residuary (remember a spouse is not a descendant).

If will names a substitute taker, the anti-lapse statute won't apply.
What is a "void gift"?
This is when the B is dead at the time the will was EXECUTED. Despite the bad name, Void gifts are still subject to anti-lapse.
What happens when there is a lapse in the residuary gift?
Surviving residuary beneficiaries rule: IL (majority) - if residuary estate is devised to 2 or more persons and it lapses to one of them, the surviving residuary B takes the ENTIRE residuary estate in proportion to their interests in the residue. BUT Anti-lapse can be applied.
Remember class gifts? Tell me when the class "closes"
When some class member is entitled to a distribution (Rule of Convenience).

If a class member dies before the T does, there can be anti-lapse (remember only for descendants though!), their share just spreads to the rest of the class.
Super-speedy deaths: What is the rule in IL about handling estates when there are "deaths in quick succession"?
IL (majority): These deaths are governed by the USDA (Uniform Simultaneous Deaths Act). When title to property depends on order of deaths and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each passes though he/she survived.

Wills: As though T survived and B predeceased
Intestacy: As though intestate survived and heir predeceased
Insurance: As though insured survived and beneficiary predeceased.

UPC has "120 hour rule" that states if beneficiary/heir fails to survive the decedent by 120 hours, it is treated as if he/she predeceased
What happens if T marries after the will is executed?
IL (majority): nothing happens - Spouse can try to get "elective share"

UPC - omitted spouse takes an intestate share of T's estate.
What happens if T divorces after the will is executed?
IL (majority) - final decree of divorce/annulment revokes all gifts and fiduciary appointments in favor of former spouse (acts like they predeceased)

DOES NOT apply to insurance
What if T has a child after the will is executed?
IL (majority) - "pretermitted child" (whether born/adopted after executed) takes an intestate share

DOES NOT apply to insurance
What is a "specific bequest"?
Gift of a specifically described property
What is a demonstrative legacy?
A hybrid: gift of a general amount from a specific source.
What is a general legacy?
Gift from a general source. Ex: I gift $10,000 to Prof. Cavise.
What are the priorities if creditor's need to be paid from the estate?
1st - Intestate Property, 2nd - Residuary assets, 3rd - General legacies, and 4th Specific bequests/Demonstrative legacies
What happens if you were given a specific bequest, but the property isn't in the estate @ death?
Sorry, you get nothing - "ademption"

BUT: IL (majority) - if property sold by contract, but contract was not fully performed, then beneficiary would take the remaining payments under the contract.

NOTE: Ademption doesn't apply to demonstrative/general legacies
Are there any exceptions to ademption for specific bequests?
IL has adopted some UPC exceptions:
1 - Will executed b4 T became incapacitated: if the specifically devised property was sold by guardian for T, under UPC the B has a right to a general legacy = the net sale price, condemnation award, or insurance proceeds (in IL - only to the extent that they can be traced and haven't been spent for ward's care).
2 - IL courts have granted relief where T didn't have opportunity to change his will and there was no intent to work an ademption (ex: gives "my Ford Tempo" to Jack, crashes and dies in Tempo - Jack gets insurance)
What happens during bequests of stock/securities?
If it's specific: "my 100 shares" and sells stock: ademption applies

If it's general legacy: "give 100 shares of Jack's Cock Stock to SAO" and T sells the stock, SAO gets the date of death value of 100 shares of Jack's Cock Stock.

If before death, stock splits: IL (maj.) - specific bequest includes split BUT NOT DIVIDENDS. General legacy would then turn to specific bequest and would take full advantage.
What happens with specific gifts of encumbered property - can the B have the estate "exonerate" it?
Both UPC and IL - NO takes exactly what T owned

Common law - yes
What is the "Incorporation by Reference Doctrine"?

Ex: Execute a will which references a memo.
IL (maj.) - Can incorporate extrinsic document if: (1) document is in existence when will executed, (2) will refers to document as being in existence, and (3) will describes the document sufficiently to permit it's identification

UPC - will may refer to a written statement/list that disposes of tangible personal property - must be signed by T, describe the property, and may be written/altered at any time.
What is the "acts of independent significance doctrine?"
Ex: T devises "my automobile to B" - afterwards, T trades in a Pinto for a Delorean, what does B get? Answer: the Delorean!

It's a lifetime act with a lifetime purpose/motive

(note: it's a demonstrative legacy!)
Another note: won't work for documents/titles/instruments in a chest
What happens if there is a mistake/ambiguity in a will?

Ex: Instead of giving items to Bobby Paul Kline and Sara Bond Kline, devised to "Bobby Bond Kline" and "Sara Paul Kline"
If name is questionable: called a "latent ambiguity" (missed description) - use extrinsic evidence.

If dollar amount in question: Patent ambiguity (mistake on the face of will) - use extrinsic

The plain meaning rule is applied: If no ambiguity, extrinsic evidence is NOT admissible to overturn plain meaning of will's terms.
Can a married couple make a joint will and have it enforced if one changes it after the other dies?
Why Yes! In IL: execution of a joint will by H & W may be found CONTRACTUAL if all or most present:
1 - Will is labeled "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.

UPC: Wills are never contractual unless the will expressly states that a K exists.

If the will is held contractual then: Apply wills law (2nd will admitted to probate), then apply K law (revocation of 1st will was a breach of K - get "constructive trust" for the B's of the 1st will
Are words in a will like "I don't want that cunt daughter of mine to get anything!" effective?
IL (maj) - If will doesn't make a complete disposition, words of disinheritance mean NOTHING! She gets intestate share!

UPC: words are given effect
What about unlawful conditions such as: "I'll leave all my income to Beth if she divorces her husband Mike"?
Strike the condition and leave the rest (can't encourage divorce OR act as total restraint on marriage)
Is it cool if I kill my parents to get my inheritance?
NO! IL has slayer statutes: Killer forfeits interest in victim's estate if he intentionally and unjustifiably caused the death of another" - victim's estate is distributed like Killer predeceased victim (but keep in mind "anti-lapse" statutes)

Applies to everything including life insurance.
What happens if there is no will? Who gets the inheritance then?
Glad you asked stupid - these rules apply when (1) no valid will (either denied or didn't make one) or (2) when decedent left a will, but the will didn't make a complete disposition of the estate (partial intestacy or pretermitted child)

Intestate share for surviving spouse: 1/2 if survived by descendants and ALL if not.

NO SPOUSE: Inheritance by descendants: IL: ("per stirpes" = by the roots) - one share for each line of living descendants. Each child is a root and the descendants of deceased children (think: grandkid) each take "by representation" the share their parent would've had had he/she survived to be an heir.

IL: half-bro takes same share as whole blood bro
Does a surviving spouse get anything special?
They get a "family allowance" - whether there is a will or not - this is to provide support for the family during the period of probate administration. Min: $10,000 + $5,000 per child/disabled adult. Has priority over all claims except funeral and administration expenses.
What happens if a child dies intestate?
IL: Parents and siblings inherit equal shares (if only one parent, that parent gets double share).

Majority: Entire estate goes to parents

NOTE: Parent is disqualified if he neglected, deserted, or failed to support the child.
Do adopted kids get anything? Aren't they like "less of a human" because they are adopted?
You're ignorant. Adopted kids are people too!

If adopted under 18: full inheritance rights from adoptive family (if not adopted, cannot inherit). Loses inheritance rights from natural parents/kin UNLESS adopted by spouse of a natural parent: gets all inheritance rights).

If OVER 18: inherits from adopting parents, but not the adopting parent's kin
Do children born out of wedlock get anything?
IL: can inherit from natural father ONLY if (PAP): Paternity suit adjudicates father, acknowledged paternity, or probate proceedings proved him to be the daddy.
What happens with "lifetime gifts" given to an heir?
If dies intestate: IL: Lifetime gifts AREN'T advancement unless: (1) declared as such in writing by donor or (2) acknowledged as such in writing by donee. COMMON LAW: lifetime gift to child is presumptively an advancement.

If dies with a valid will: No IL statute governing: follow common law rule: "satisfaction of legacies." (unless it is lifetime gift to child named as a B in an ealier will - presumptively in partial satisfaction)
UPC: no satisfaction unless (1) declared such in contemporaneous writing by donor, (2) acknowledged as such in writing by donee, or (3) will provides for reduction by lifetime gifts
Can an heir/beneficiary "disclaim" interest?
Yes, (1) must be in writing, signed, and notarized AND (2) delivered to decedent's personal representative/trustee or person in possession of property.

In IL, no time limit on when must be made (must be filed w/in 9 months for tax purposes)

Treats like you predeceased - can go to kids under "anti-lapse."

Avoids gift tax and avoids creditor's claims
Can a spouse get more from a will than what is left to her?
Yes, she'd do so by filing for an elective share.

The amount in IL: if decedent has descendants spouse gets 1/3 net estate, no descendants: 1/2 net estate.

Must file notice of election to renounce will w/in 7 months (in IL) after will admitted to probate. Spouse makes election upon showing it's necessary to provide adequate support for spouse during probable life expectancy.

All will beneficiaries contribute "pro rata" but property devised outright to spouse by will is first applied.
Can an elective share reach a trust set up for son/daughter?
IL: No - only probate estate

UPC (majority) - Yes, applies to lifetime transfers in which the grantor retained the power to revoke, invade, consume, or dispose of.
Who can contest a will?
Only interested parties have standing to bring a will contest: Persons with an economic interest that would be adversely affected by the wills probate.
What two challenges can be brought when challenging a will?
Lack of testamentary capacity AND Undue influence
What is the test for "lack of testamentary capacity"
4 parts (burden of proof on contestants):
1 - T understood the nature of the act he was doing?
2 - Did T know the nature and approximate value of his property?
3 - Did T know the natural objects of his bounty?
4 - Did T understand the disposition he was making?

NOTE: Involves a different standard than the standard for determining "adjudicated incapacity" - could find will was signed during "lucid interval"
What is the test for undue influence?
This is where the "existence of a testamentary capacity subjected to and controlled by a dominant influence or power"

3 part test (burden on contestants)
1. Existence & exertion of influence
2. Effect of which was to overpower the mind and will of the testator
3. Product is a will that would not have been made BUT FOR the influence

Undue = free agency of testator is destroyed and will produced reflects the person exerting the influence.
Are there any presumptions involving undue influence?
Where person is (1) in an active confidential/fiduciary relationship in procuring the will and (2) that party will receive a substantial benefit under the will, there is a presumption of undue influence which can only be overcome by clear & convincing evidence that person didn't exude influence.
Are there any consequences of contesting a will?
IL - If will has a "no contest" clause and party challenges the will and loses the challenge, the party forfeits inheritance (even if he had probable cause for filing it)

UPC (majority) - forfeits, unless brought on good faith and had probable cause

EXCEPTIONS: (1) Contest filed by guardian on behalf of minor/incapacitated beneficiary; (2) Will construction lawsuit (seeks to determine what interests were created by will); and (3) Doesn't prevent surviving spouse from filing for elective share.
What are "powers of appointment?"
Permits the life beneficiary to designate the remaindermen.

Ex: "trust to daughter for life, on death, she can distribute the trust principal to anyone she appoints in will. If she appoints no one, then trustee distributes to her descendants"
What is the difference between "special testamentary power of appointment" and "general test...."?
Special: limited in the class of persons B can appoint.

General: Can appoint anyone!
If the trust provides that donee appoints in will "specifically refering to this power of appointment" what happens if the donee uses a blanket statement in will to convey powers of appointment?

Ex: "all my property...including any I may have a power of X"
Blanket statement won't cut it - must refer specifically or it'll go to "takers in default of appointment"
Can you transfer via contract the power of appointment?
No - it's not supposed to benefit you, it's to benefit others.