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58 Cards in this Set
- Front
- Back
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what is needed for a will.
what about codicil. |
1. 18 yrs
2. two witnesses 3. each witness must sign within a reasonable time after witnessing. -----same formalities--- |
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what happens here:
T downloads the will form from the internet and carefully fills in the blank by typing in the name of the beneficiary, executors, ect. after she has competed the form. T asks norman, notary to assist her in the signing the will. T signs, then norman signs and T dies two yrs ater. Can T will be admitted to probate when it has been attesting by one witness. |
Yes--if the judge things this was T intent to commit to the will.
T estate must by Clear and Convincing evidence must prove this. |
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what power does the Mi judge have to make sure the will gets admitted.
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Dispensing power statute:
probate crt judge can excuse full compliance= if there is clear and convincing evid. |
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what is the test strategy for will.
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1. did testator sign
2. 18 3. two witnesses. -------if not---- probate crt can use dispensing power= proof = clear and convincing evid. |
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what is the informal probate proceedings.
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will is likely uncontested.
1. ex-parte ( no notice to anyone) 2. court register ( not probate judge) 3. admits will w/o further proof. if will appears to be valid. 4. proponent of the will must be given notice 28 days. |
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what is the rule for formal proceedings.
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1. personal notice to known parties.
2. publication to unknown parties(newspaper) ---if probate is unopposed the crt may submit the will on the strength of the pleadings. ---if contested--- testimony of sworn statement of one attesting witness is required.(if available) **other evid. maybe admitted** |
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what is self proving affidavit.
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1. sworn affidavit before public notary
or 2. unsworn statement " i certify under penalty of perjury that that will is true and testator signed under our presence. ----makes it unnecessary to track down witnesses----= serve same function as deposition or interrogatories. |
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what happens here.
Angie left will that gives 50k to her friend Nora Nokes, and the rest of her estate to her sister S. The will was signed by angie and Witness by her neighbor Nora Nokes. what happens. |
under most states interested witness = will invalid.
Mi = interested witness is ok |
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what is the rule for holographic will.
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1. large portions of it in testator handwriting.
2. singed 3. dated |
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T writes out a doc. In her own handwriting that reads " 2/1998. I, T T, declare this to be my last will. I leave all my prop. to my good friend, Hobie Gates, and i want him to serve as Executor of my estate."
is the will valid. |
valid will
1. large portion in testator handwriting 2. dated 3. signed. ---here all of it was in TT handwriting. ---the will was dated. ---the will was signed "I, TT, signature can be anywhere. |
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Does mi recognize oral wills.
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No
--all of the wills must be in writing. |
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what happens here:
handwritten, signed and dated letter send by client to attorney: "i have decided to make some changes in my will. I want niece J to take 10k instead of 5k. I want the farm in Hunt county to go to all to B instead of half to him and half to B as the will presently reads. Please make these changes; i will sign the necessary doc. when i come into town. " after T's death this letter is offered as a codicil to execute to the executed will. |
must show testamentary intent.
---not just preparation for another document.--- ---probably could have come in as extrinsic evid.--- |
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what happens:
Tom writes a will that is properly signed and witnessed. " i am about to lave on a mountain climbing trip and if anything should happen to me the i leave all of my prop. to the my good friend Alice Adams. T climbs Mt. everest that summer and comes back from the trip in july and dies years later. does ALice take. |
the will was
1. signed 2. dated 3. 2 witnesses 4. person making it was 18 yrs. = this was properly executed will but the will was conditional on T dying in a particular manner for it to come into play. ----- if it was conditional will why would he have not destroyed the will when he returned. crt have come out on both side of this. |
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what is the rule for intestate succession.
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1. person left no will
--or--- the will does not make compete disposition of the estate. --or-- 3. heir successfully contested the will = intestate succession. |
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H and Wendy are married and they have one child. C-this is the second marriage for each. H has 2 kids from the previous marriage. A-b. Wendy has two children M-N by her 1st marriage. H dies intestate, leaving an estate worth 300k.
H is survived by his wife Wendy and the five kids. what is the distribution. |
wife takes 150k (wife * bio kid) plus 1/2 of remaining.
the kids= take what is left over. 1. 25k a 2. 25k b 3. 25k c M and N take nothing because they did not est. relationship before 18. |
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H and W are married but no bio kid.
what is the distribution. |
W takes 100( no bio kids) + 1/2 of remaining.
wife gets 200k kids a. 50k b. 50k --step kids get nothing b/c was not adopted-- |
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what is the rule for
1. survival with bio kids. 2. no bio kids 3. no bio kids but parents |
1. 150k plus 1/2
2. 100k plus 1/2 3. 150k plus 3/4 |
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what happens here.
M dies, M leaves estate worth 350k. she is survived by her husband-H her mother and her sist. M and H never had kids. who gets what. ------------------ same facts but M is survived by only her spouse but not either parent. |
1. H gets 150k + 3/4 = 150k +150k = 300k
2. mom = 50k 3. sist gets nothing. ---------- H takes everything. |
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when is spouse disqualified inheritance.
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1. consented to invalid divorce.
2. married after defective divorce 3. bigamous relationship 4. abandoned or willfully left for more than 1 yr |
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what are surviving spouse rights
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1. homestead allowance=
immediately given 15k to keep the home running. 2. exempt personal prop. 10k max 3. family allowance=18k amount needed for support for 1 yr. --adult dependent child and --minor children. |
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what is the rule where intestate descent is not survived by spouse or descendants.
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1. if not survived by parents.
aunts and uncles= parents brother and sister. --if not then = 1/2 to mom side 1/2 to dad side. 3. if not then laughing statute = state of MI |
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what is the rule for adopted child.
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1. if adopted cant take from natural parents.
---unless---- spouse of one of the natural parents adopts you. can take from natural and deceased natural and adopted. |
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what is the rule for kids taking from out of wedlock.
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kids can take from mother.
can only take from father if: 1. dad marries mom after child is born. 2. DNA results dad was dad. 3. acknowledgement= mom and dad notarized that dad is dad. 4. adjudication= crt ordered. 5. birth certificate= dad and mom made written request to correct birth certificate of the kid. 6. continuing parenting= father and child had parenting relationship that began before the kids was 18yrs. |
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what is the 120 hr rule.
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to take from estate the taker must survives 120 hrs after decedant = 5days.
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what is the rule of a life time gift.
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common law= advancement
presumption is treat all the kids the same. MI=only advancement if 1. writing from person giving it or 2. writing from person taking it. |
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M gives Blackacre to her son Al on AL 35th, orally telling the other son that she will give them similar gifts on their 35th. but she dies before then leaving prop in the sum of 90k.
what happens. |
common law = the al's land was advancement.
mi--ad if 1. writing by giver said so 2. person taking it said so here there was non therefore. the remaining land gets split 1/3. among the 3 kids. |
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T executes a will that gives niece N 25k. Thereafter, T gives 10k to N, telling her this is an advancement from the will orally in front of witnesses. T dies later.
How much will N take. |
full share.
orally agreement are not recognized only writing by giver saying that this is advancement or writing by the person receiving it will be recognized. |
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what is the rule for disclaiming prop.
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1. must sign and in writing
2. filed with probate crt. --if real prop. must be filed with register of deeds. 3. can do partial interest disclaimed 4. disclaimed can be made for minors or disabled. 5. must do it before use of prop. or any benefit. |
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why would anyone what to disclaim a gift.
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1. avoid the taxes.
2. avoid creditor's claim. ---must be filed w/n 9months of after death of person = valid--- |
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T makes a will 1999
i give prop to my son Sam and my residuary estate to my sis M. --Sam dies in 2003 survived by his wife and son JR. --Sam gives all prop. to the wife. --TOm dies 3 wks ago who takes prop. -------------- what about Sam's will = giving everything to the wife. ------------ what if Sam is not survived by junior. |
1. to take must survives giver by 120hrs.
2. here taker did not. 3. gift lapses cause the will was not changed. 4. but here there is anti-lapse statute. 5. survivors of the taker-takes. gift passes through them. 6. here junior is alive and will take. ------------ Sam never survived the taker by 120 hrs and therefore never had the land in his estate to give. ------ after 1. funeral expenses 2. executor fees 3. admin fees 4. taxes the estate would stay in Sam estate and pass to wife. **residual estate** |
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What happens:
I give my residual estate in equal share to the my good friend H, B and my newphew C. H dies leaving Hjr. who takes. ------------ what if it was C who dies and he is survived by Cjr. |
B and C 1/2
H shares goes back to the estate is split between those who can take. anti statute does not apply to H because they are not related. **anti statute only applies to those who have the same grandparents** --------------- anti statute would come into play and Cjr would take his share. the share that would be split would be 1/3* 3 |
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what is the rule for the class gift.
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the class takes.
but if any person in that class dies before. --the anti statute does not apply because they are not related-- |
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what happens here.
1. T gives blackacre " to all the children of my good friend JB." and the rest to my wife. at time JB has 2 kids. A-B after the will is executed JB has C. A dies and is survived by his kids Ajr. T the die and his will is admitted to probate. what happens. |
1. A-B share 1/2 interest
2. anti-lapse statute does not apply for Ajr and his kids because they are not related to T. |
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what is the rule of convenience.
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if the class gift.
--the class closes at time the testator dies ------exceptions---- if the baby is child is conceived the child must live 120 outside the womb to take. |
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what is the rule for the omitted spouse.
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applicable unless.
1. will was written in contemplation of marriage. 2. the will was to stand even if remarries. 3. wife was provided for outside the will. -------- omitted wife will get. homestead= 15k family allowance= 18k personal prop. = 10k then if kids = 150k * 1/2 if no kids = 100k* 1/2 |
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what happens.
H marries W, who has a child (W) by her first marriage. Hank writes a will that devises Blueacre to W 50k t W, and the rest of his estate to his sist sue. The will names W as executor if she is able otherwise my brother Sam is to serve as executor. Two yrs H and W divorce H dies w/o will. who takes. |
H sister takes the prop.
once divorce everything is presumed to have not been related. ---------------- but they remarry b4 H dies = W takes everything. |
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what happens if marry couple have a legal decree of separation.
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the wife would still get everything under the will.
the divorce must be final--cant be separation. |
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what is the rule for omitted child.
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child takes unless the will devises the substantially all of the estate to other parent of the omitted child.
---child will takes intestate--- |
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what happens here.
T has not kid. executes the will that gives all the prop. to my wife W and my sist. S in equal share. 2 yrs later T and W has a kids. then T dies without having changed his will. Leaving 400k estate. he is survived by W C S ------------- what if instead T will devises 10k to my sist and all of the rest residue and remainder of my estate to my wife W. |
C will take intestate.
150 + 1/2 = wife kids takes 125k. the wife and Sist split 275k = 137k --------------- in this case the kid gets nothing. |
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what is the limitation of the omitted child.
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the omitted child share is limited by the gifts of other child.
------------- meaning if the child gets nothing the omitted child get nothing. |
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T had kid Billy when he signed the will. Which gives 20k to the son of billy, and all of the remainder of the estate to the wife.
what happens. |
This is a class gift.
Billy and omitted child must split the 20k. ------ if the kid get nothing then the omitted kid gets nothing. |
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what is needed before someone becomes a omitted child.
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1. the omission was not intentional
2. the kid was not provided for outside the will. |
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what is the rule for revocation of a will.
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can be revoked by.
1. subsequent testamentary trust. 2. physical act.( burning or tearing of the will) |
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what is the rule for revocation by physical act by another person.
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must be
1. testator request. --and-- 2. in testator conscious presence. (not valid if call her sist who has the will to tear it up but the requirement can be relaxed) |
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what is the rule for revival of revoked will
MI-rules. |
1. intent to revive it.
2. the will was reexecuted signed by testator and 2 witnesses. or 3. the doctrine was republicated by codicil. |
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T does a Will W1 and executes, now he wants to get ride of that will and places W2 in its place. but he does not like 2 so physically destroys it.
how does he put one back into play. |
resign it
2 witnesses or codicil republishes the first will. |
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what is the rule if 2 wills and either is revoked.
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the two wills are read together and any consistency will be cut and out and the last will take precedent.
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what is the rule for lost will statute.
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1. must prove that will was duly executed.
2. must est. will was not revoked. 3. must prove the contents of the alleged will, to the extent that it can be ascertained. |
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what happens here.
E decides to give. 10. i give the sum of 5k to my nephew. HG 11. i give the sum of 2k to my niece, SS. then using a pen She deletes clause 10 in its entirety and strikes 2k in clause 11. that happens. |
partial revocation is ok.
the correction with the pen is also ok. this was revocation by a physical act = valid in mI. ---------- under old will SS does not get the 5k but under new Mi law = dispensing power the SS will get the 5k. |
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what happens where there are so many bill and not enough to pay them out.
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1. intestate prop. 1st
2. residuary 3. general and demonstrative 4. out of specific bequest. |
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what is the rule for old ademption and new law.
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old law = if the prop. was not in the estate.
--then they dont get it. new law. presumption is the person who was suppose to get it will have burden of proof on the party contending that ademption should apply. Person is entitled to cash legacy to the value of the item. Unless testator manifested a plan for distribution indicating ademtption of the devise was intended. |
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what is the diff btwn.
1. specific gifts. 2. demonstrative gift. 3. general legacy. 4. residual gift. 5. intestate prop. |
1. can use ademption. (person and gift named.
2. hybrid gift of gen. amount from specific source. 3. general legacy= giving amount nonspecified where to a linage 4. name person of what is ever left over. 5. intestate prop.= will was not submitted or written poorly. |
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H will contains " i give the sum of 25k to be paid out of the proceeds of sale of my Shell stock to Sally. One yr before her death, henry sells all of her shell oil stock and uses the sale to buy exon.
Does ademption apply. On henry death what does Sally get. |
1. No ademption does not apply to gen.-demonstrative- gifts.
only specific devises. 2. 25k from exon= intent was to give her the proceeds from the stock. |
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what is the rule for statutory exceptions to ademption doctrine.
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1. take the money gotten from prop.
--even if sold by agent (incapacitation). 2. replacement prop. 3. taker has all rights to stock except stock options. |
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what is the rule for specific bequest of encumbered prop.
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under former MI law the person would take free of the lien.
now: person will take with the lien or as good as the giver has it. |
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what is the rule for reference to act and events outside of the will.
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can do it-if
1. writing must be existence when the will was executed (not made) 2. will must show intent to the incorporate the writing. 3. will must describe the writing (enough to permit ID) -------limitations----------- can do it with tangible personal prop. if not personal item. = must be 1. testator handwriting 2. signed by testator at the end must ID prop. with certainty. --can be written before or after the will is executed.-- |
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what happens here.
i devise my son to take my car at the time that i die. and my daughter to takes furniture and everything in the living room. trades honda for benz. put picassio in the living room. |
son= benz
daughter = picasso. acts of independent significance. --cant do it with titled documents-- |
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what is
1. latent ambiguity. 2. patent ambiguity. |
1. latent ambiguity= can bring in evidence to clear up the meaning
--if this doesnt clear it up the gift fails. 2. patent ambiguity = mistake on the face of the will. extrinsic evidence is ok to cure the will. --can include. 1. testator conversation with lawyer 2. facts and circumstances (relationship. ___NOT__intent from 3rd party. |
