Wa Bar Wills

Front 1

How to answer a wills question

Back 1

1. Valid Will?
2. Community Property
3. Uniform Simultaneous Death act
4. Non probate assets (super-will)
5. Divorce
6. Ommited Spouse?
7. Ommitted child
8. Homestead
9. Condition on inheritance (RAP, Trust?)
10. Lapse (anti-lapse statute)
11. Slayer?
12. Partial Revocation, Codicil (DRR)
13. Dead Man's statute
14. Personal representative

Front 2

Distribution intestacy

Back 2

• First Pile To Surviving Spouse (all CP + 1/2 SP if surviving issue, 3/4 SP if parents or their issue, all SP otherwise)
• Second Pile (issue, parents + issue, grandparents + issue, else escheats)
• Distribution Among Issue (modern per stirpes i.e. divide the estate at the first generation with a living member)

Front 3

Relationship to Testator

Back 3

• State RDP (same rights as married, CIR doesn’t count),
• Posthumously Born (Conceived before, but born after are issue)
• Adoption (Same as blood, inherit through adopted fam, not bio)
• Non-marital children (parent’s marital status irrelevant).
• Involuntary Termination (no inheritance from child)
• Stepchildren (only if surviving spouse stepparent's estate would escheat
• Half-Blood (same as whole blood, except ancestral property)
• True Relatives (Not social relatives, not in-laws),

Front 4

Disinherited

Back 4

Slayers (if causes death, or an accessory after the fact, and killing is willful and unlawful. POE, criminal conviction not required. Applies to most property transfers. Financially abused a vulnerable adult.

Front 5

Uniform Simultaneous Death Act

Back 5

death within 120 hours of each other treated as though each survived the other

Front 6

Validity of Will decided by which state law?

Back 6

Comity Statute: Will valid if executed properly under the rules of state where executed or testator lived, at time of execution or time of death.

Front 7

Capacity to make a will

Back 7

• 18+ (no ratification)
• Mental Capacity (3 part test, must recognize: extent/nature of property owned, objects of their bounty and understand testamentary significance of will)
o Presumed from proper execution, measured at time of execution.
• Current Testamentary Intent (future promises & mere expectancies not binding; cond. intent & wills signed for other purposes usually upheld)

Front 8

Will Execution

Back 8

Valid formation requires testamentary capacity and intent. The statue requires wills be (i) in writing, (ii) signed by the testator, and (iii) attested to by two or more competent witnesses who sign the will or a self proving affidavit in the testator’s presence by direction or request. Each witness must either see the testator sign the will or receive the testator’s acknowledgement that it has been adopted by him as his own.
o An interested witness creates a rebuttable presumption that the gift under the will was procured by fraud, undue influence.

Front 9

Will Challanges

Back 9

Failure to comply with formalities
Lack of Testamentary Capacity
Insane Delusion (belief contrary to all available evid. affects terms of will)
Undue Influence (Subjected to and controlled by a dominant influence or power. Burden is on contestants who must show:
• (1) Existence and exertion of the influence, (2) effect is to overpower the mind and (3) will of the testator, product is a will that would not have been made, but for the influence.
• Confidential relationship raises rebuttable presumption of UI
Evidence = susceptibility, person with disposition to influence, Person with access to influence, unnatural disposition (one get getting everything).
Fraud/Duress (execution or inducement; same elements as general fraud claim; a specific lie)
Mistake (A Will will be enforced even if based on a mistake)

Front 10

Revocation of a will by phsycal act

Back 10

Physical act of destruction (intent plus act required). Partial Revocation by physical act ok, but only if change is not substantial (jewelry not house)

Front 11

Subsequent Testamentary instrument

Back 11

A testator may revoke or amend by a later document, but must be executed with same formalities.
• Revocation instrument (express): New will stating prior will revoked, or document executed with formalities stating prior will revoked.
• Subsequent Will or Codicil (implied): inconsistent with prior will
• Republication of will by codicil: unchanged terms, changes date of will

Front 12

Effect of Revocation

Back 12

Revocation
• Revocation of Will revokes all codicils, unless contrary to intent.
• Revocation of Codicils revives the underlying provisions of the will.
Revival
• Generally, prior will is not revived, Rebuttable presumption by evidence that T intended a different result, from document itself, or extrinsic evidence, including statements of the testator (think deadman)
Doctrine of Dependent Relative Revocation (DDR)
• If Will #1 is revoked under mistaken belief that Will #2 will be effective, but isn’t, court will enforce revoked Will #1. Will #1 must be closer to T’s intent than intestacy.

Front 13

Missing Will

Back 13

• Presumed Revoked if will was in possession of T at time of death.
• If not in possession of T, the Last Will statute allows a lost will to be admitted to probate if contents can be proven by clear and convincing evidence (must include witness testimony as to validity or content)

Front 14

Prepayment of Expectancies

Back 14

presumed gifts unless proof of other intent)
• Advancement (intestate decedent), Satisfaction (testate decedent

Front 15

Amendment/Revocation by operation of law

Back 15

Gifts to others revoked as needed to accommodate property/inheritance rights of others (spouse, child)
Dissolution/Divorce/Annulment
• Automatically removes all gifts to spouse under will, Gift is distributed as if spouse predeceased. Subsequent gifts to former spouses ok. Includes most non-probate assets. NOT separation.
Devise of Encumber property
• Property passes subject to encumbrances, no automatic right to exoneration of liens. Must honor contracts to sell.

Front 16

Omitted Spouse/Child

Back 16

• Acquired after execution of will, awards up to amount of intestate share. Does not apply if person is named or provided for in the will.
• Court can eliminate or reduce the share if there is C & C evidence that the deceased’s intent to leave less (shown by waiver, life insurance etc.)
• Only gives rights in the probate estate.

Front 17

Homestead + Other protection

Back 17

True homestead (125K interest in the family residence, exempt from creditor claims).
Family support award in lieu of homestead (125K offset by homestead)
• Spouse/RDP, Kids can petition. Paid out of probate. Award is discretionary looking at needs. Priority over creditors

Front 18

Contracts to make wills

Back 18

(written or oral) to make a Will are enforceable. "I'll make a will leaving everything to you, if you make a will leaving everything to X" Standard of proof very high. Omitted family provisions override contract claims.

Front 19

Will substitutes

Back 19

Nonprobate assets are interest in property that do not pass by will (e.g. trusts, gifts, sales, POD provisions, survivorship. Not subject to provate or the laws of intestate succession. Pass according to the beneficiary designation

Front 20

Super Will Provisions

Back 20

payable on death and JTWROS bank accounts, and transfer on death securities accounts can be controlled by will

Front 21

Will Integration

Back 21

must be written document, present at execution, intended to be party part of will

Front 22

Incorporation by reference

Back 22

only if: Written document, in existence when will executed (doesn’t need to be present), referred to in the will and intended to be part of the will

Front 23

Exception for gifts to trust

Back 23

valid if trust is identified in the will, and (2) trust terms are set out in a written agreement signed by the trustor before or concurrently with will or the trust was set up under the will of a person who died before the testator

Front 24

Separate List for Tangible property

Back 24

Written document, must be referred to in the will, may be added/amended later, must be signed by testator or in testator’s handwringing, applies only to tangible property, not cash. Doesn’t need to be present or in existence during execution

Front 25

Acts of independent significance

Back 25

If gift under Will can be changed by actions outside of will, & actions have independent significance, gift valid

Front 26

Construction of Will

Back 26

plain meaning governs, extrinsic evidence admitted to resolve ambiguity, Deadman Statute

Front 27

Order of Distribution/Abatement

Back 27

• Specific (entitlement to particular property)
• Demonstrative (A general amount from a specific source)
• General (pecuniary, may be dollar amount or percentage of estates)
• Residuary (all else)
• Intestacy (any property not disposed of by a valid will)
(reverse order for abatement, unless testator had other wishes

Front 28

Ademption

Back 28

If testator doesn’t own property, gift adems and beneficiary gets nothing. No substituted property or value allowed (extinction theory).

Front 29

Lapse of gifts

Back 29

Gifts lapse if beneficiary predeceases testator. Lapsed gift falls to residual. If residual dies, creates a shared gift among remaining residuary beneficiaries, if none remain, then partial intestacy.

Front 30

Anti-Lapse Statute

Back 30

(1) beneficiary was related to the testator (child, sibling, parent, aunt/uncle, cousin), and (2) beneficiary left issue. If yes, goes to issue. Applies to revocable living trusts. (Unless T has different intent.)

Front 31

Disclaimer

Back 31

A person can disclaim interest in inheritance, must be in writing, delivered to personal representative of estate, within 9 months of creation of the interest, without acceptance of any benefits. Can be a partial disclaimer.
Distributed as if disclaimant predeceased the donor of disclaimed property.

Front 32

Personal Representative of the estate

Back 32

priority spouse, principal beneficiaries, principal creditors; surviving spouse has right to be appointed co-representative as to community property)

Front 33

Probate Process

Back 33

to settle debts & transfer property, collect and maintain assets, protect creditors, declare beneficiary rights, pay estate debts, distribute assets; nonintervention powers available for solvent estates; filing of inventory not required)

Front 34

Creditor Rights

Back 34

4 months to file a claim if personal representative publishes notice & gives actual notice to known creditors, 24 months otherwise; non-probate assets subject to creditor claims except life insurance & retirement benefits

Front 35

Will contests

Back 35

• SOL (4 mo after admission to probate)
• Standing (persons with direct financial interest in the outcome)
• Burden of Proof (always on challenger)
• No Contest Clauses (generally enforceable unless good-faith challenge)
• Remedy (invalidation)

Front 36

Nonjudicial Dispute Resolution

Back 36

TEDRA agreements have the force of a court order