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132 Cards in this Set

  • Front
  • Back
What is a residuary estate?
The estate that remains after debts, taxes, and administration expenses have been paid, and after any specific and general legacies made by the will have been satisfied.
What is a non-probate transfer?
An interest that passes by the right of survivorship (e.g. joint and survivor bank account) or under the terms of a K (e.g. life insurance proceeds or employee death benefits).
What is probate?
A judicial proceeding in which the court:
a) determines that the decedent left a validity executed will (or intestate/heirs) AND

b) appoints a personal rep (executor or administrator)
Who is an executor?
Someone named in the will to be the personal representative in probate.
Who is an administrator?
Someone appointed by the probate court to be the personal representative in probate.
What happens when a decedent left no will or if the will was not validly executed?
Intestate distribution rules apply.
What happens if the will does not make a complete disposition of the estate (resulting in partial intestacy?)
Intestate distribution rules apply.
What happens if an heir successfully contests the will and the will is denied probate?
Intestate distribution rules apply.
What happens if the testator marries after the will's execution?
Intestate distribution rules apply.
What does 'issue' mean?
Same as descendants. Includes lineal descendants (children, grandchildren, etc) by blood or adoption.
What happens when the omitted child statute is involved?
Intestate distribution rules apply.
Review: 5 situations when intestate distribution applies.
1 - D has no will / not validly executed
2 - Will doesn't complete dispose of the estate
3 - Heir successfully contests
4 - D married after he executed the will (revocation)
5 - Omitted child statute
What is kindred?
ANY relative by blood or adoption - brothers, parents, sisters, etc. NO MATTER HOW DISTANT
Two additional statutory rights of a surviving spouse (these have super-priority)
1 - right to occupy residence for 6 months rent-free
2 - spouse's allowance for necessities while in transition (in the probate court's discretion to look at situation and determine amount)
What if intestate decedent not survived by spouse or issue?
All to parents (1/2 each if both alive)
What if intestate decedent not survived by spouse, issues, or parents?
All to brothers, sisters, and issues of deceased brothers and sisters who take per capita at each generation
What's the exception to the normal adoption rule? AKA when does an adoptive child have rights to the inheritance of their biological parent?
When child was adopted by spouse of a natural parent after other natural parent died.
Nonmarital child cannot inherit from biological father unless.... (4 possible things happen)
1 - bioparents married after child's birth and father acknowledged paternity
2 - father acknowledged to others that he was the father
3 - paternity was established via paternity suit
4 - paternity established in probate proceedings (must be one year after decedent's death)
What is adoption by estoppel?
When a step-parent or foster parent obtained custody of a child based on an agreement to adopt the child but didn't perform the agreement.
What is the BASIC RULE of the Uniform Simultaneous Death Act?
[When ___, then ____. ]
When title to property depends on order of deaths and there's NO SUFFICIENT EVIDENCE that the death wasn't simultaneous - property of each passes as though he or she survived
Lifetime gift to an heir is NOT an advancement UNLESS (2)
1 - declared as such in a contemporaneous writing OR
2 - acknowledged as such in writing by the donee
No satisfaction of legacy (aka paying some upfront) UNLESS (2)
1 - declared as such in contemporaneous writing by the donor
2 - acknowledged as such in writing by donee
How do you have a valid disclaimer in an interest in the will? (2 reqs)
1 - in writing and signed
2 - filed with the probate court within 9 months after decedent's death
When can a personal representative disclaim on behalf of a incapacitated beneficiary or heir?
If court finds a disclaimer is in the best interest of the beneficiary's / heir's estate
After making a valid disclaimer, can an heir/beneficiary revoke it?
No - it's irrevocable
Can a valid disclaimer be made for only part of the estate?
Yes - disclaimers can be partial
Disclaimers are not valid against who?
Creditors - cannot be used to defeat creditors' claims if disclaimant is insolvent
What are 4 major types of nonprobate assets?
property...
1 - passing by right of survivorship
2 - passing by K
3 - held in trust
4 - over which the decedent held a power of appointment
5 requirements for a validly executed will by a testator (T)
1 - T must be 18+
2 - Signed by T (or by proxy)
3 - 2 attesting witnesses (no age req but must have sufficient understanding)
4 - T must sign will (or acknowledge earlier signature) in each W's presence
5 - Each W must sign in the T's presence
How is a codicil validly executed by T?
Same way as a will - same 5 reqs
If T signs the will RIGHT AFTER (aka contemporaneously) a W does - is the will valid?
Maybe.
No - according to 1911 case
Yes - modern approach
Does the signature on the will need to be legible?
No - any mark intended as T's mark is sufficient
Does a witness need to know she was serving as a witness to a will?
No - not required
What is the standard for 'signing in the presence' of a T or W?
No requirement to SEE them sign - just need to be in each other's presence so that he is conscious that they are near and that they are signing.
Note: Old law says must be in line of sight
[Interested W Statute]
What happens when a beneficiary (or beneficiary's spouse) is an attesting witness to the will?
They lose legacy (goes to residuary) UNLESS there were two disinterested attesting witnesses
[Interested W Statute]
For devise to beneficiary's spouse, what if beneficiary's wife divorced beneficiary a year later at the time or D's death?
Doesn't matter - legacy still void because interest is determined at the time the will is signed.
[Interested W Statute]
Does it matter if the gift was direct or contingent in this rule?
Yes. Only direct gifts trigger the statute.
Under the Uniform Execution of Foreign Wills Act, when is a will executed in another state admissible to probate in MA?
If exectued with -
1 - MA law
2 - Execution law: law of place where the will was executed
3 - Domicile law: law of place where the T was domiciled (either when will signed or at death)
What effect does the Uniform Execution of Foreign Wills Act have on oral (holographic) wills?
If state of execution or state of domicile allows them then valid in MA
How do you revoke a will? (3 Ways)
1 - by a later testamentary instrument (properly executed)
2 - by physical act (destruction)
3 - by operation of law
How can you destroy a will by physical act? (4 ways)
1 - burning
2 - tearing
3 - canceling
4 - obliterating

*note: MUST be on the will itself - not a copy. intent not enough.
What can you do to a signature to destroy the will?
You can cross out the signature with an X or cross it out - anything you do to the signature shows intent to revoke.
What does it take to have valid revocation by physical act BY PROXY? (2 reqs)
must be:
1 - at T's direction AND
2 - in T's presence
You can still enforce your will if you lose it by satisfying the 'lost wills rule' - What are the 3 reqs?
1 - proof of execution (testimony of attesting Ws)

2 - cause of will's nonproduction must be proved (must overcome presumption of revocation)

3 - contents must be proven by secondary evidence (ex: copy). any oral testimony re: contents must be 'strong, positive, and free from doubt.'
What happens if people can't find a will that was last seen in possession and control by T?
Presumption is that T revoked it by a physical act.
What happens if a will that was last seen in possession and control by T is found mutilated or altered after T's death?
Presumption is that T did the mutilating or alterations - i.e. revocation by physical act or partial revocation.
What happens if there is a new will 2 years later? (without revocation)
You read them TOGETHER. If wholly inconsistent then the first will is revoked by implication.
A revoked will is not revived UNLESS (2 things)
1 - the will is still in existence (it hasn't been destroyed) AND

2 - there is evidence that testator intended to revive the earlier will
When should dependent relative revocation be used?
Applied ONLY if the distribution that results from disregarding the revocation comes closer to doing that the T tried (but FAILED) to do than an intestate distribution.
What happens with words added to a will after it has been signed and witnessed?
They are DISREGARDED as unattested words. They are NOT part of the duly executed will. Only words present when will is signed constitute the last will.
What happens when a will beneficiary predeceases the T?
The gift LAPSES/FAILS unless the anti-lapse statute saves it. This is because you can't make a gift to a dead person.
When does the anti-lapse statute apply? (2 reqs)
1 - the predeceasing beneficiary was A CHILD or OTHER RELATIVE of the T by blood or adoption (NOT by marriage)

2 - they left ISSUE who survived them (NOTE: WILL DOESN'T MATTER. ONLY ISSUE)
What happens if the anti-lapse statute turns out not to apply?
Gift falls into the residuary estate and passes under the will's residuary clause
What happens if the residuary estate is devised to 2+ ppl and gift to one of them lapses/fails?
The surviving residuary beneficiaries take the entire residuary estate in proportion to their interests in the residue.
What's the class gift rule of construction?
In a gift by will to a class of persons, if a class member predeceases the T, class members who survive the T take.
T gives Blackacre 'to kids of Agatha' and residuary to John. Agatha has kids - A, B, and has C after the will is executed. A dies and leaves A Jr. Then T dies.

Who owns Blackacre?
B and C - 1/2 each as surviving class members.

A Jr. gets nothing because not related by blood or adoption - thus no anti-lapse statute.
What is the rule of convenience, 'class closing' rule?
Class is closed when some class member is entitled to distribution

*subject to the gestation principle - 280 days from conception to birth
What effect does a marriage have following execution of a will? Two exceptions
Spouse takes an intestate share OTHER THAN PROPERTY DEVISED TO A CHILD (or descendants of that child) WHO WAS BORN BEFORE THE MARRIAGE AND WHO IS NOT SURVIVING SPOUSE'S CHILD.

Other shares under the will "abate" to satisfy her share
Exceptions
1 - if it appears from the will that it was made in contemplation thereof
2 - Does not apply to power of appointment
What happens if there's a final decree or annulment?
Revokes all gifts and fiduciary appointments in favor of former spouse. As if former spouse predeceased T.

note: separation agreement doesn't count
What is the omitted child statute?
Applies ONLY to children born or adopted AFTER will executed.

If there were no other children: take intestate share

If there were other children: take share equal to theirs (their shares abate to make share for other child)
--If they got nothing, he gets nothing
When does omitted child statute NOT apply?
Omitted child takes UNLESS:
1. Will devised all or substantially all of the estate to the other parent of the omitted child and the other parent survived.
2. It appears from the will (Not extrinsic evidence!) that omission was intentional; OR
3. Testator provided for child by transfer outside the will

re: real property - claim on behalf of child must be filed within one year
Vocab - What is a gift of specifically described property called?
Specific Devise
Vocab - What is a general amount from a specific source called?
Demonstrative Legacy
10,000 to my nephew Ned' called?
General Legacy
Vocab - What is 'I give all the rest and residue of my estate to Betty'?
Residuary Gift
Vocab - If the will, poorly drafted, does not contain a residuary clause... what happens to the property?
Becomes intestate property
What is an abatement problem?
When there are so many claims against the estate that there aren't enough assets to cover all of the gifts made by the will.
How are things prioritized in an abatement problem?
STEPS IN THIS ORDER
1 - intestate property (if partial intestacy)
2 - residuary assets
3 - general and demonstrative legacies
4 - specific bequests

EXCEPTION - Gifts to spouse and minor children are the LAST to abate - even if it is a residuary gift
What is ademption by extinction?
When specifically bequeathed property is not owned by the T at death (sold, destroyed, etc) - bequest FAILS.
What is the exception to ademption by extinction?
If specifically devised (gift of specifically described property) property is sold by a guardian or conservator (or agent acting under durable power of attorney), the beneficiary is entitled to proceeds of sale, IF TRACEABLE in the estate at T's death.
Bequests of stock - what is a specific devisee owed?
Entitled to any additional or other securities owned by the T because of action initiated by the entity, other than securities acquired by the exercise of a purchase option.
Bequests of stock - what is a specific devisee owed? What does this turn on?
Owed the value of the shares at the date of death, even if turned into something else.

BUT IF states 'my... shares' and they don't exist anymore - then GET NOTHING.
What happens if the stock split and multiplies? (if gift says 'my 100 shares' but then company turns it into 200 shares)
The additional stock is included
What happens when a beneficiary is given a specific bequest of encumbered property?
No exoneration of the lien - they take EXACTLY what the T owns - title IS SUBJECT to the mortgage.
An extrinsic document, not present when the will was executed and thus part of the duly executed will, can be incorporated by reference into the will IF (3 things)....
1 - Writing must be in existence when the will was executed

2 - will must show an intent to incorporate the writing

3 - will must describe the writing sufficiently to permit its identification
What is the exception for incorporation by reference doctrine?
For gifts of tangible personal property (but not money, or intangibles such as stocks and bonds). While the writing must be in existence when will is signed, the contents of the document can be altered or revised at ANY TIME.

Note: this is a way to make gifts of personal items of sentimental value without having to amend the will every time client changes his mind, or wants to add to the list.
What is the 'acts of independent significant' doctrine?
When a will gives property by referring to specific separate acts and events
What happens to lifetime acts given with a lifetime motive or purpose?
They are given full effect (tangible property and cash only)

Except NOT: title documents
What is the plain meaning rule?
When there's no ambiguity in the will - no extrinsic evidence is admissible to overturn the plain meaning of the will.

Thus, absent suspicious circumstances, it is conclusively presumed that T read the will and intended its contents.
What happens if there's latent ambiguity in the will? (aka misdescription)
Extrinsic evidence is admissible to find the meaning.
What happens if there's latent ambiguity but extrinsic evidence does not resolve it?
The gift fails - no ascertainable beneficiaries.
What happens if there's a blank in the will?
Nothing happens! Courts will not fill in the blanks. NO evidence allowed.
100,000 if she takes care of him but doesn't put it in his will?
N loses the money because the will is subject to the SOF.

N can pursue quantum meruit - reasonable value of services rendered - as long as they were performed with expectation of money.
Can an attorney be held liable to the beneficiaries of a will for negligence?
No because there was no duty. No attorney-client relationship. Duty is only to T.

Rationale: To find that the attorney owed a duty to beneficiaries would raise a conflict of interest.
Can attorney be held liable to beneficiaries under K law?
MA - No case so argue both ways

Common Law/Minority - No because no privity of K (MA seems to be leaning this way due to similar decision)

Emerging majority rule - Yes because they are intended beneficiaries.
Under the elective share statute, what happens if the life estate involves personal property?
It's held in trust
What is an important exam regarding the elective share statute?
In any question involving a surviving spouse - mention it!

For example: 'since Wendy takes ___ under the will, she'd not have reason to file for an elective share... which would only give her...'
Can the elective share statute TRUMP revocable trusts? Why /why not?
Yes.

Otherwise a husband or wife could defeat policy and purpose of the elective share statute by transferring the bulk of his/her property to a revocable trust.
Can the elective share statute TRUMP life insurance proceeds?
No.

Non-probate transfers that are not revocable are not subject to the elective share statute.
Procedurally issue re: ESS - when must the spouse file election?
Within 6 months after will is admitted to probate (unless extended by the court by motion)
Under ESS, who can make the election if spouse is incapacitated or dead?
If spouse incapacitated - Election can be made by guardian or conservator WITH court approval.

If spouse dies before election is made - election CANNOT be made by the spouse's personal representative.
What happens to devises in will to wife is she takes elective share?
She is estopped from taking anything under the will.

The will is read as though she predeceased
When is a surviving spouse disqualified from right to an elective share?
- if he deserted the decedent OR
- if the couple had been living apart for justifiable cause
Who can bring a will contest? What about creditors and non-marital children?
Persons with an economic interest that would be adversely affected by the will's probate.

- Creditors do NOT have standing
- Non-marital children only have standing if they would be an heir
What is the test (4 point test) for lack of testamentary capacity?

Who has the burden of proof?
To have the mental capacity to make a will, the testator must have sufficient capacity to:
1 - Understand the NATURE OF THE ACT he was doing? (writing a will)
2 - Know the NATURE CONDITION AND EXTENT of his property?
3 - Know the names of, and his relationship to, the NATURAL OBJECTS OF HIS BOUNTY; and
4 - Understand the SCOPE AND MEANING OF THE PROVISIONS OF HIS WILL.

Note: the closer in time the better chance to contest

Burden is on contestants.
Does the T having been adjudicated incapacitated mean that he lacked testamentary capacity?
No - it's a different legal test.

Jury could find the will was executed during a lucid interval.

Thus it's admissible as evidence but won't support a directed verdict.
What is the definition of undue influence?
Existance of a testamentary capacity subjected to and controlled by a dominant influence or power.

'Influence is not undue unless the free agency of the T was destroyed and a will produced that expresses the will, not of T, but of the one exerting the influence.'
What must contestants, who have the burden of proof, show to prove undue influence? (3 point test)
Must show:
1 - existence and exertion of the influence
2 - effect is to overpower the mind and will of T
3 - product is a will (or gift therein) that would not have been made BUT FOR the influence
What are 3 factors that, alone, are NOT enough to meet undue influence test?
1 - Mere opportunity to exert influence
2 - Mere susceptibility to influence due to illness, age.
3 - Mere fact of unnatural disposition

BUT ALL 3 MAY be sufficient.
When is there a presumption of undue influence?
When there is a fiduciary relationship (atty-client, agent-principal, financial advisor, etc.)
Fiduciary has the burden of proof to show what?
That the transaction was fair and that the principal was fully informed.

Met if fiduciary can show principal:
1 - made bequest with full knowledge and intent OR
2 - had independent counsel
What is the effect of no-contest clause if the person contesting loses?
Gets nothing. Even if there was probable cause to contest.
What is the effect of a will construction suit or action brought against executor alleging improper administration of estate?
Does NOT trigger a forfeiture because does not challenge validity of the will.
If the will is contested and denied probate - what happens?
Then there is no will and therefore no no-contest clause and have an intestate distribution
What is the statute of limitations for claims to a decedents' estates?
1 year - all claims must be filed within 1 year after decedent's death
What are the three exceptions to the normal statute of limitations?
1 - new assets discovered (creditors thought it would be pointless to file before

2 - claim was covered by insurance (but only to the extent of the liability insurance coverage)

3 - 'where justice and equity require it'
Can sale of estate real property be made without court approval by the administrator of an intestate estate?
Nope.
Can sale of estate real property be made without court approval by executor or trustee named in decendent's will?
No - UNLESS power of sale is granted in the will
Share of Surviving Spouse: All are only descendants of surviving spouse
Spouse takes whole estate
Share of Surviving Spouse: Some are not Descendants of the Surviving spouse or surviving spouse has other descendants
First 100K plus 1/2 of the balance.

Other 1/2 to decedent's descendants, per capita at each generation
Share of Surviving Spouse and Decedent Not Survived by Descendants but survived by Parent(s)
First 200,000 plus 3/4 of the estate.

If both parents are alive they split that 1/4
Share of Surviving Spouse and Decedent not survived by descendants or parents
Spouse takes entire estate
For Children: Massachusetts uses Per Capita at each Generation
Initial division made at level where there are living takers but shares of deceased persons at that level combined and then divided equally among the takers at the next generational level

Persons with same degree of kinship ALWAYS take equal shares
If decedent not survived by spouse, descendants or parents
Entire estate passes to descendants of decedent's parents (brothers and sisters and issue of deceased brothers and sisters)
If decedent not survived by a spouse, descendants, parents, or descendants of parents
Estate passes to next of kin (relatives with nearest degree of kinship)
If no relative capable of taking the estate
Escheat to estate
No-Contest Clauses
MBE: Most states hold that if a beneficiary has PROBABLE CAUSE for bringing the contest, then no-contest forfeiture clause will not be given effect.

Massachusetts: No-Contest Clauses given FULL EFFECT

But suits to CONSTRUE the will is not a contest (not challenging validity of the will)
Dead Man Statutes
Massachusetts has no Dead Man Statute

Interested witness may testify freely against estate concerning transactions or communications with decedent
Hearsay Exception for Statements Made by Decedents in Civil Actions
In ANY civil proceeding, any statement of a deceased person is ADMISSIBLE FOR ITS TRUTH if the statement:
1. was made in good faith; and
2. based on decedent's personal knowledge

"Good faith" interpreted liberally. (Would even been "good faith" if made about substance of pending litigation)
Exception Allowing Habit Evidence
Action against decedent's estate (After a plaintiff introduces evidence of a promise or statement made by the decedent, the estate may rebut with evidence of the decedent's "habits of dealing" if they tend to disprove the plaintiff's evidence)
Power of Elective Share to Reach Nonprobate Property
In Massachusetts the elective share statute does not apply to nonprobate transfers UNLESS the decedent made a lifetime transfer in which he retained the power to revoke the disposition or had a general power of appointment
Plain Meaning Rule
If there is no patent or latent ambiguity in the provisions of the will, the words used by testator are given their ordinary meaning and evidence not admissible (to show testator made mistake in describing beneficiary, or the property that was to be the subject of a gift, or that the testator used a word in other than its clear meaning).
Latent Ambiguity
When the language of the will, although clear on its face in describing a beneficiary or property, results in a description when applied to the fact to which it refers.

2 main types:
1. Clearly describe person or thing but 2+ people exactly fit that description
2. No person or thing exactly fits the description, but 2 or more partially fit

Extrinsic evidence will be ADMISSIBLE to cure the ambiguity (not re-writing will but giving meaning to the words the testator actually used)
Patent Ambiguity
When uncertainty appears on the face of the will because of defective, obscure, or insensible language
--ex: where will mentions 2 cousins, Mary Jones and Mary Smith, and then makes a gift to "my cousin Mary"

Modern view: Evidence admissible

Traditional view: evidence not admissible and gift fails
Heirs vs. Issue (as it pertains to adopted children)
Issue = children and grandchildren. Heirs = whatever the state says counts as default inheritors of your estate. Note- heirs are not known until after death.

If a gift is devised to "my children" or "heirs" or "issue" then look to intestacy statute to determine (adopted treated like natural children)

If grandparent leaves gift to "my grandchildren": most statutes apply only to children so adopted children not included
Nonmarital Children under Uniform Parentage Act
Father-child relationship established by:
1. An effective acknowledgement of paternity by the man unless the acknowledgement has been rescinded or successfully challenged;
2. An adjudication of the man's paternity; or
3. Adoption of the child by the man

Man presumed to be father of a child if:
1. He and the mother of the child are married to each other and the child is born during marriage;
2. He and the mother of the child were married to each other and the child is born within 300 days after the marriage is terminated;
3. Before the birth of the child, he and the mother of the child married each other in apparent compliance with the law, even if attempted marriage is or could be declared invalid, and child is born during invalid marriage or within 300 days after its termination
Elective Share of Spouse is no issue or Kindred (any relatives) survive.
The first $25,000 of property plus 1/2 of the balance.

The 25,000 satisfied out of personal property if possible, if not, real property can be mortgaged or sold.
Elective Share of Spouse if no issue but there are kindred
The first $25,000 of property plus life estate in half of the balance

To the extent that the life estate in 1/2 the balance involves personal property--it is held in trust for spouse for life

To extent that 1/2 balance involves real property--spouse takes a "legal" life estate (life estate without a trust)

The 25,000 satisfied out of personal property if possible, if not, real property can be mortgaged or sold.
Elective Share of Spouse if Decedent is survived by Issue
One third of the first $75,000 of property (up to $25,000) plus a life estate in 1/3 of the excess.

The 25,000 satisfied out of personal property if possible, if not, real property can be mortgaged or sold.
Contract to Make a Gift By Will
Can be established ONLY by:

1. Provisions in the will stating the material provisions of the contract

2. An express reference in the will to the contract and extrinsic evidence proving the terms of the contract; or

3. A writing signed by the decedent evidencing the contract.
Doctrine of Relative Revocation (DRR)
Under the doctrine of dependent relative revocation, a revocation can be deemed conditional on the validity of a subsequently executed will or codicil if that would accomplish the testator's intent

This one ignores the latest revocation if it appears the testator's intent would prefer to avoid intestacy (The revocation was "conditional" on another will being valid)
Revocation Reviving Prior Will
As opposed to DRR, this honors the latest revocation and revives the earlier revoked will.

Common Law: revocation of second will revives the first will (because wills only speak from death)

Modern statutes (UPC): revocation of second will does not revive the earlier will UNLESS it "is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator intended the previous will to take effect as executed."