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33 Cards in this Set
- Front
- Back
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spousal intestate share
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A. Entire estate if:
i. No descendents of D survives D, OR ii. All D’s surviving descendents are also the descendants of S B. First 50K + ½ of any remaining estate balance if i. One or more of D’s surviving descendants are not also the descendant of S |
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heirs intestate share
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A. Portion of estate not passed to spouse, or the entire estate if there is no spouse, passes to individuals in the following order:
i. Descendants (per capita at each generation) ii. Parents (equally) iii. Descendants of parents (PCG) 1. Half-blood siblings are treated as whole sibling 2-107 iv. Decedent’s grandparents (1/2 to paternal and 1/2 to maternal) v. Issue of grandparents (PCG) vi. Escheat |
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simultaneous deaths
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A. A person is deemed to have predeceased the decedent if they do not survive the decedent by 120 hours
i. Must prove by clear and convincing evidence that an individual who would be an heir survived the decedent by 120 hours |
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advancements
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A. Decedent declares in contemporaneous writing that the gift is an advancement and should be deducted OR
B. Heir acknowledges in writing that gift is an advancement and should be deducted from his share of intestate estate. |
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omitted spouse
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A. Spouse would get what they would have received under intestate distribution
i. Portion that is devised in the will to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse is automatically given to that child 1. The amount the surviving spouse takes is based off of what remains after the child takes their portion B. Exceptions: i. Does not apply if testator’s, in contemplation of the marriage, failed to provide for surviving spouse intentionally ii. The testator states the will is effective regardless of whether they subsequently marry iii. Does not apply if testator provided for the omitted spouse in another way, such as a trust |
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omitted child
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A. No children at will execution
i. If the testator had no child living when he executed the will, an omitted after-born or after-adopted child receives property as if the testator died intestate 1. Unless the will devised all or substantially all of the estate to the other parent of the omitted child B. One or more children living at will execution, the after-born/adopted child receives i. Split the portion that the will devises to the “children as a group” ii. Equal gifts to other children- aggregate gifts to each children and then split evenly 1. A= 75k, B= 75k, O=0 2. A=50k, B=50k, O=50k iii. Unequal gifts other children- aggregate the total amount, omitted child takes equal share, then other children get the pro rata share 1. A=120k, B=60k, O=0 2. A= 80k, B=40k, O= 60k C. Exceptions: i. The other parent was bequeathed substantially all of the estate ii. Does not apply if testator’s failure to provide for child was intentional iii. Does not apply if testator provided for the omitted child in another way, such as a trust |
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will execution
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i. Writing
ii. Signed by the testator iii. Signed by two witnesses |
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Extrinsic evidence
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i. Admissible to determine the validity of a will
ii. Admissible to interpret a will with a patent ambiguity |
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Holographic will execution
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i. Material portions are in the testator’s handwriting
ii. Testator’s signature |
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substantial compliance
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A. If the formalities were substantially complied with, except for nonmaterial details, state may still give the will effect if it is proved by clear and convincing evidence the testator intended the instrument to be their will
i. Validity as to 1. Creation of a will 2. A partial or complete revocation of the will, 3. An addition to or an alteration of the will, or 4. A partial or complete revival of a formerly revoked will or portion of a will |
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self proving will
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A. A will with an attached affidavit signed by a notary public stating that the will was properly signed and witnessed
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witness requirements
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A. A generally competent
B. Doesn't matter if the witness is an interested or disinterested in Utah to make the will valid |
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validity of a will executed in another state
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A. Will respect a will if it was executed in conformity with law of the state where:
i. The will was executed; ii. The testator lived when it was executed; OR iii. The testator lived when the testator died |
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revocation of a will
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A. 3 ways to revoke a will:
i. Execute a subsequent will which expressly revokes prior wills ii. Have inconsistent terms between the new will and the prior will iii. Destruction of the will- burning, tearing, canceling (write “void”) obliterating or destroying the will with the intent and for the purpose of revoking it, by (1) testator, or (2) another person in the testator’s presence and by the testator’s direction B. May revoke only a portion of a prior will i. Crossing something out |
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Subsequent wills
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i. A subsequent will that replaces a previous will wholly revokes the previous will
1. If a subsequent will makes a complete disposition of the estate, it completely replaces the previous will, which becomes revoked 2. If a subsequent will does not make a complete disposition of the estate, it supplements the previous will, which becomes revoked only to the inconsistent terms a. Each will is fully operative on the testator's death to the extent they are not inconsistent. |
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revival of a revoked will
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A. The revocation of a subsequent will that revoked a prior will does not revive the prior will
i. Unless it can be shown that it was the testator’s intent to revive the prior will ii. There is a presumption against revival B. Revocation of a subsequent will that partially revokes prior will does revive the prior will i. Unless it can be shown that it was against the testator’s intent C. If a subsequent will that revoked a previous will is revoked by a third will, the previous will remains revoked unless the terms of the third will state otherwise |
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incorporation by reference
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A. Testator can incorporate other existing documents into the will if testator clearly demonstrates the intention and the reference describes enough detail to permit its identification
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pour over will
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A. A will may dispose of all property left in the estate to a trust
B. Utah does not require a new pour-over will every time the trust is amended |
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tangible personal property
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A. The will may refer to a list that disposes of tangible personal property, not distributed by the will
B. The list must: i. Be signed by testator ii. Describe the property and devisees with reasonable certainty iii. Be tangible property (cash, stock, bonds, real estate, etc. cannot be included) iv. May be prepared before or after the execution of the will v. May be altered throughout life C. Utah does not have a dollar limit on a specific item or list total |
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contracts to make a will
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A. Contracts to make a will are valid only if:
i. There is a writing evidencing the contract whether in the will or a separate document B. Joint and mutual wills (parallel provisions b/w husband and wife) are not deemed to be a contract unless able to show there was an intent to enter a contract to make a will |
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no contest clause
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A. A no contest clause will be unenforceable if probable cause exists for instituting proceedings
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anti-lapse statute
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A. If beneficiary predeceases testator, and the governing instrument is silent, then the property that would’ve gone to B would go to B’s issue
B. Anti-lapse statute does not apply if the will or trust expresses to the contrary i. A survivorship clause (requirement that the beneficiary survives the testator) constitutes a contrary intention C. Questions to ask to determine if anti-lapse statue applies: i. Is the will silent as to the situation 1. No- follow wills instruction 2. Yes- next question ii. Is the beneficiary a close relative (CA- kindred) of the testator 1. No- gift lapses and is included in residue of estate 2. Yes- next question (grandparent, descendant of grandparent, or step-child of testator) iii. Is there survivorship language in the will 1. Yes- if he does not survive the testator then the gift lapses and becomes part of residue of estate (Simultaneous death statute applies to survivorship clause) 2. No- next question iv. Are there living descendants 1. Yes- descendents take according to per capita at each generation 2. No- becomes part of residue of estate |
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Stock splits
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beneficiary would get all the shares that are a result of the original stock unless the will provides otherwise
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ademption by extinction
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A. If property bequeathed to a devisee is not in the estate at the time of death the devisee gets
i. The full value of the property, if the testator did not intend the ademption of the property ii. Unpaid proceeds (including insurance) from the sale/taking of the property if testator sold property but has not yet received payment iii. The value of property sold by a conservator or agent with power of attorney iv. The new property if the testator buys replacement property B. If ademption of the devise was consistent with the distribution plan then the devisee will not receive anymore |
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mortgage
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beneficiary takes subject to the mortgage unless otherwise specified in will
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ademption by satisfaction
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A. A lifetime gift will be treated as satisfaction of a will only if:
i. The will provides for deduction of a gift ii. The testator declared in contemporaneous writing that the gift was in satisfaction of the will bequest iii. The devisee acknowledged in writing that the gift is in satisfaction of the will bequest |
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simultaneous death
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A. Joint tenancy, community property, and tenancy by the entirety distribution
i. If X and Y die simultaneously, ½ of the property is distributed as if X survived and ½ is distributed as if Y survived |
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adopted and half-bloods
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treated as full blood
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homicide
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A. Person who feloniously and intentionally kills D doesn’t get anything through:
i. Will, trust, community property, intestacy ii. Joint tenancy iii. Beneficiary interests (eg. insurance policies, bonds) iv. Extinguishes any fiduciary or representative capacity B. Treated as if predeceased the testator i. Anti-lapse statute 1. UPC- does not expressly say anti-lapse does not apply, so presumably it would apply 2. Issue of murderer can still get property that would have gone to the murderer |
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divorce
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A. Divorce revokes the following items (basically everything):
i. Any dispositions or appointment of property made by the will to the former spouse ii. Former S as trustee iii. Former S as executor iv. Former S has power of attorney B. Spouse is treated as if predeceased the testator i. Anti-lapse statute does not apply because divorced spouse is no longer kindred/relative |
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Relatives of former spouse
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i. Bequests to relatives of former spouse are revoked
1. Only if those relatives are not also relatives of the decedent- children, grandchildren, etc. |
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burden of proof
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A. Intestate petitioners or will proponents have the prima facie burden of proof to show death, venue, heirship, execution of the will
B. Contestants have the burden of proof for any contest |
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abatement
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A. If there’s not enough in the estate to cover all the bequests, then the estate must reduce some bequests
i. Look at the governing instrument to see which gift to reduce/abate first ii. If the governing instrument is silent, abate in the following order 1. First – the residue (b/c there’s nothing left over) 2. Second – pecuniary bequest- pro rata if multiple beneficiaries 3. Last – specific bequest |
