Wa Bar Wills

Front 1

Intestacy: Basic Definition

Back 1

no will, will not validly executed, or will doesn’t get rid of everything (partial intestacy)

Front 2

Intestacy: Community Property

Back 2

Surviving spouse takes 100% of CP, RDP takes same as spouse

Front 3

Intestacy: Separate Property - Where there is a surviving spouse

Back 3

a. Surviving Spouse/State Registered Domestic Partner
i. Surviving spouse and survived by issue – spouse takes 50%
ii. No issue, but parents or issue of parents survive – spouse takes 75%
iii. No Issue, parents or issue of parents – Spouse takes 100%
b. Share of others (what remains in estate after surviving spouses share)
i. If issue, gets 100%, less the surviving spouses share – if no surviving spouse, gets 100% of estate
ii. If no issue, then parents take 100%, less the surviving spouses share

Front 4

Intestacy: No surviving Spouse

Back 4

Order – issue, parents, brothers/sisters, grandparents, aunts/uncles, escheat
a. If Issue – receives 100%
b. If no issue – parents take 100%
c. If no issue or parents, then issue of parents takes 100%
d. If no issue or parent, or issue of parent, then grandparents take 100%, with 50% going to maternal side and 50% to paternal side (if each side has living grandparents)
e. If no issue or parent or issue of parent, or grandparents, then 100% to issue of grandparents – if surviving on both sides then 50% goes to each side
f. If none of the above relatives are surviving then estate escheats

Front 5

Intestacy: Modern Per Stirpes

Back 5

“Modern Per Stirpes” – You do not need to begin to divide the estate until you find a living member in a generation

Front 6

Intestacy: Determining Relationship

Back 6

Basic Rule - if any blood, or legal adoption then you take

Half-blood – Same as whole blood (except for ancestral property
Step Children – generally do not inherit, very limited exception where parent remarries, leaves everything to stepparent, who dies with no heirs and the prop would escheat, stepchild entiled to inherit what first parent left to stepparent
Non-marital children – marital status irrelevant
Posthumous children – if conceived before death but born after, still an issue of D
Adoption – generally same as biological, cannot inherit from biological parents or relatives though
Termination of Parental Rights – no inheritance of child
True relatives – not social relatives or in-laws (no people brought in through marriage may recover)

Front 7

Slayer of the decedent

Back 7

if person causes death of another or is an accessory before (could be an accessory after and still recover) the fact and the killing was willful and unlawful, the person cannot inherit from the decedent. Slayer does not forfeit property rights they had before the killing. Standard is preponderance of the evidence and criminal conviction not required

Front 8

Uniform Simultaneous Death Act

Back 8

when title to property depends on order of death and 2 persons have died within 120 hours of each other, the property of each passes as though he or she survived the others death. With JTwRoS ½ goes to each persons heirs

Front 9

Types of Wills

Back 9

A. Formal -
B. Nuncupative Wills – oral will, invalid in WA
C. Holographic Wiils – will made w/o witnesses invalid in WA
D. A will is valid if under the rules of the state where it was executed, where the testator lived at the time of execution, or where Testator lived at time of death

Front 10

Validity: Testator Issues - Capacity

Back 10

1. Capacity – presumed from proper execution. Capacity is measured at time of execution
a. 18 years, no ratifications permitted
b. Mental Capacity
i. Able to understand the extent and type of his property
ii. Must know natural objects of his bounty – cant forget you have a daughter
iii. Must understand the nature of the testamentary act
c. Current Testamentary Intent – intent to sign a will. Future promises not binding. Where there is a problem of ambiguous intent, ct prefers interpretation which upholds will rather than true condition which defeats it.

Front 11

Validity: Testator Issues - Execution Requirements

Back 11

(for formal or attested wills) writing, signature, witnesses
a. Writing – permanent writing required (handwriting OK), need not be dated
b. Signature of Testator – any mark sufficient to identify them as testator is sufficient. Must be personally signed. A proxy signature permitted if in testator’s presence, at testator’s direction and includes proxy’s own name
c. Witnesses –
i. 2 required,
ii. they must be competent to give testimony in court.
iii. Interested witnesses do not invalidate will, but create presumption that their portion was procured by fraud, undue influence, etc. If presumption not rebutted, then witness receives what he or she would have received if will not admitted
iv. Process/presence – must sign in presence of testator, a signature on a self-proving affidavit is sufficient. Publication not required, witness need not know it is a will

Front 12

Validity: Challenges to Testamentary intent - List

Back 12

Failure to comply with formalities, lack of testamentary capacity, insane delusion, fraud/duress, undue influence, mistake

Front 13

Validity: Challenges - failure to comply with formalities

Back 13

can point to any of the executory requirements

Front 14

Validity: Challenges - Lack of Testamentary capacity

Back 14

either age or insanity

Front 15

Validity: Challenges - Insane Delusion

Back 15

– A belief that is Unreasonable to all available evidence AND must affect terms of will

Front 16

Validity: Challenges - Fraud/Duress

Back 16

Two kinds
i. Fraud in the execution – provision put in the will that T didn’t know was there
ii. Fraud in the inducement – told person a lie to induce them to signing the will
iii. Need same elements as general fraud claim, requires a specific lie

Front 17

Validity: Challenges - Undue Influence

Back 17

susceptible, motive, ability, terms affected
i. Susceptible testator
ii. Person with disposition to influence
iii. Person with access to influence
iv. Must affect the terms
v. Where there is a confidential relationship between testator and drafter, burden shifts and it will raise rebuttable presumption of undue influence

Front 18

Validity: Challenges - Mistake

Back 18

(does not defeat intent) – generally does not cause a will to be thrown out

Front 19

Amendments/Revocation by Testator: Physical Act of Destruction

Back 19

must have Intent + Act. Partial revocation allowed (such as crossing off someone’s name) but only if change is not substantial. Jewelry ok, house is not. Proxy act permitted if in testator’s presence and at their direction

Front 20

Amendments/Revocation by Testator: Subsequent Instrument

Back 20

can revoke a prior will, has to meet same execution rules as for original will.
i. Revocation Instrument – either by a statement in a new will, or a statement in a document executed with Will formalities stating only that prior will is revoked.
ii. Subsequent will OR Codicil – revocation is implied even if no express terms, if provisions are inconsistent with prior will
iii. Republication of will by codicil – has the effect of re-dating will to date of codicil
iv. Increase vs. decrease of bequest – increase requires subsequent doc, not mere act of insertion. Decrease may be made by subsequent doc OR by physical act if not substantial

Front 21

Amendments/Revocation by Testator: Effect of Revocation

Back 21

revokes all codicils (unless contrary to Testator’s intent). Revocation of codicil revives underlying provisions in the will unless contrary to Testator’s intent

Front 22

Amendments/Revocation by Testator: Dependent Relative Revocation

Back 22

(DRR) – If first will revoked under a mistaken belief that doc 2 will be an effective will, and doc 2 is ineffective, AND will 1 is closer to testator’s intent than intestacy, the court will enforce revoked will 1.

Front 23

Amendments/Revocation by Testator: Missing Will

Back 23

presumed revoked if in possession of testator. If not in possession of testator, the lost will statute allows a lost will to be admitted to probate if its contents can be proven by clear and convincing evidence – must include witnesses testimony as to validity of content

Front 24

Amendments/Revocation by Testator: Prepayment of Expectancies

Back 24

i. Advancement- transfers during life presumed to be gifts unless there is proof of intent of advancement.
ii. Satisfaction – presumed to be gifts unless proof that Testator intended a satisfaction

Front 25

Amendments/Revocation by Operation of Law: Omitted Spouse

Back 25

applies to spouse acquired after execution of will, awards up to amount of intestate share. Does not apply if spouse is named or provided for in will. Defenses include waiver, substantial provision outside of will, or intentional omission evident in will

Front 26

Amendments/Revocation by Operation of Law: Omitted Children

Back 26

– applies to children born/adopted after execution of will, awards up to amount of intestate shares (or less). Does not apply if spouse is named or provided for in will. Same defenses, additional defense if substantially all of estate left to omitted child’s surviving parent

Front 27

Amendments/Revocation by Operation of Law: Dissolution/Annulment of Marriage

Back 27

Removal of spousal gifts automatic, gifts distributed as if spouse predeceased testator. Doesn’t apply to legal separation

Front 28

Amendments/Revocation by Operation of Law: Encumbrance of Property

Back 28

no automatic right to exoneration of liens. Property comes subject to encumbrances

Front 29

Amendments/Revocation by Operation of Law: Homestead and other family protections

Back 29

comes up when will is going to someone else besides family members, or person dies insolvent. Immediate family has a right to true homestead – up to 125K. Family support award - same amount as homestead and offset by it, and family allowance – these take priorities over creditors

Front 30

Contracts: Contracts Relating to Wills

Back 30

a. Contracts to make a will are enforceable
b. Oral contracts to make a will are enforceable, but standard of proof is very high
c. Family protection provisions (such as omitted spouse/child) will override

Front 31

Contracts: Will Substitutes

Back 31

a. Property distributed by substitutes do not pass by the will.
b. Anytime where there is a K on an asset that says “give it to X upon death” that will override a provision in the will

Front 32

Contracts: Superwill provisions

Back 32

RCW 11.11 allows a will provisions to change the disposition of certain non-probate assets (basically limited only to joint tenancy bank accounts

Front 33

Distribution: Classification of gifts

Back 33

a. Specific – Entitlement to a particular property. E.g. “I devise Blackacre to my son John
b. Demonstrative – Hybrid of specific/general. General amount from a specific source
c. General – pecuniary gift – may be a dollar amount or % of estate. $10K to my nephew Ned
d. Residuary – All else, includes all propery not transferred as specific or general gifts. “I give all the rest, residue, and remainder of my estate to X
e. Intestacy – any property not disposed of by valid will

Front 34

Distribution: Abatement

Back 34

(if assets are insufficient for all distributions)
a. Decedent’s wishes honored, if stated
b. If no abatement provisions are in will, then it goes in reverse distribution (intestacy gets penalized first)
c. Abate proportionally within category

Front 35

Distribution: Accretion

Back 35

Beneficiary entitled to increase value of property unless specifically limited to a fixed value or quantity

Front 36

Distribution: Ademption

Back 36

– If specific property given in Wills not available for distribution, No substituted property or value is allowed (traditional identity theory)

Front 37

Distribution: Lapse/Anti-lapse

Back 37

Where specific beneficiary is unavailable
a. General rule – must survive in order to take gift, otherwise goes to residue. If no residuary beneficiary then goes to intestacy.
b. Anti-lapse statute – allows a lineal descendent of predeceased beneficiary to take gift, only if pre-deceased beneficiary was the lineal descendant of the decedent.

Front 38

Distribution: Disclaimer

Back 38

if you don’t want the gift. Must be in writing, within 9 months of creation and the beneficiary must not have accepted the benefits. If disclaimed, the property is distributed based on if disclaimant had predeceased donor of disclaimed property.

Front 39

Wills Interpreted: Integration

Back 39

all written documents present at will execution are intended to be part of the will

Front 40

Will Interpreted: Incorporation by reference

Back 40

– e.g. If you have a separate doc which lists how certain items should be distributed at home. Requirements
1. Written documents
2. In existence when executed (but does not need to be present at signing
3. Must be referred to in will
4. Intended to be part of the will

Front 41

Will Interpreted: Separate list disposing of tangible property

Back 41

written doc can be made after will. Requirements
1. Written document
2. Does not have to be present or in existence when will executed
3. Must be referred to in the will
4. May be added/amended later
5. Must be signed by stator OR in testator’s handwriting
6. Applies only to Tangible personal property
7. Does not apply to cash

Front 42

Will Interpreted: Acts of independent Legal significance:

Back 42

“e.g. provision “I give the residence owned by me at time of death to X.” There is a concern that you could change your will by choosing to live in a different residence. However, the act has independent significance because it would be much easier to change will than houses.

Front 43

Wills Interpreted: Construction

Back 43

1. Plain Meaning Rule – no need for construction, except for personal usage (like nicknames)
2. Extrinsic Evidence – only used to resolve ambiguity, not to contradict plain meaning.
3. Evidentiary rules – Deadman statute – cant testify as to conversations with D where you have an interest

Front 44

Administration: Appointment of Personal Representative

Back 44

priority of appointment: spouse, principal beneficiaries, principal creditors. For Community Property, surviving spouse has right to be appointed co-representative

Front 45

Administration: Probate Process

Back 45

Two functions – settlement of decedent debts, and transfer of property out of decedent’s name into names of beneficiaries. Other duties include
1. Collection and maintenance of decedent’s assets
2. protection of creditors
3. Declaration of rights of beneficiaries
4. Payment of estate debts, including taxes and administration fees
5. Distribution of assets to beneficiaries
6. Non-intervention powers if estate is solvent
7. Filing of inventory not required.

Front 46

Administration: Creditors rights

Back 46

1. In probate if personal rep. publishes notice and gives actual notice to known creditors, then creditors must file a claim within four months
2. Otherwise claims must be made by creditors within 24 months of death
3. Life insurance and retirement benefits usually exempt from creditor claims

Front 47

Administration: Will Contest

Back 47

1. Statute of Limitations (4 months) – after admission of will to probate
2. Standing – persons with direct financial interest in outcome of will contest
3. Burden of proof on contestant
4. No-contest clauses – generally enforceable (provision in will that restricts gift if action brought
5. Remedy – invalidation of will

Front 48

Administration: Nonjudicial Dispute Resolution

Back 48

allows parties to reach agreement on issues involving wills and probate, and such agreements are given the force of a court order

Front 49

Administration: Small estates

Back 49

1. $100,000 maximum
2. for personalty only
3. transfer without probate, but no creditor protection
Streamlined administration