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125 Cards in this Set
- Front
- Back
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What is a testator?
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the person who makes a legally binding will.
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Beneficiary?
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the person entitled to the benefit of the will
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Execution?
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It's that point of time when the will is made valid.
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Probate?
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the judicial process dealing with wills
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What is determined in probate when you have a will?
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If you have a will - then you prove that it was validly executed
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What is determined in probate if you (the testator) does not have a will?
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Heirs will be judicially determined and a personal representator will be appointed.
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What is the personal representator called if he is named in the will?
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The executor
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What is the personal representator called if he is not named in the will, and appointed by the court?
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Administrator
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What is the role of the personal representator?
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He administers the decendent's estate.
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What are the elements of a valid will?
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1. Age
2. Mind 3. Intent 4.Properly executed (written, signed, witnessed) |
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How old can you be to write a will? What should the legal capacity be?
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18 +
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Can someone else sign for the testator? How?
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Yes, on T's direction and in his "conscious presence"
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What's the role of the witnesses?
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1. They need to see T sign or see him acknowledge the sign
2. W needs to sign in T's presence |
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Are promises to make a will in the future enforceable?
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NO.
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Are oral wills valid in NV?
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No
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Who can be a witness?
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Any competent person
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Can the notary be a witness
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ofcourse
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Is the order of the T and W signatures important?
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No - W can sign before T and vice versa. But signatures need to be CONTEMPORANEOUS.
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Does the witness need to know that what she is signing and witnessing is a will?
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No - the purpose of the witness is to just see the T sign - not determine the contents.
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Where can the testator sign on the will?
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Anywhere
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What kind of a signature is valid?
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Anything - any mark works. Intent is key.
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Stuff written underneath the signature and any other changes to the will are valid only _______ to execution
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prior (not after)
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Do handwritten wills need witnesses?
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No
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How is a holographic will valid without witnesses?
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1. Entirely in T's writing
2. Sign 3. Intent |
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Is the HW invalid if signed on a date different from that on the will?
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No
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Does T's signature in the HW need to be in the end?
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Yes, since his signature elsewhere (the body of the will) does not est. a prima facie case of a valid will
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Will form, with blanks that were filled out in T's handwriting are _______ forms of HW in NV
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valid
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When does NV give full faith& credit to wills executed in another state?
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If T was domiciled in that state AT THE TIME of execution, and the assets are in NV.
e.g. in PA typed unwitnessed wills are valid. So a will that would not be valid in NV will be given affect nevertheless. |
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When is a will admitted in probate?
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After it is proved valid by one of the witnesses - both if the will is contested. TWO disinterested 3rd persons to testify on the signature if all W are dead/unavailable.
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What's the attestation clause?
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A clause in the will that allows the will to be admitted to probate without affidavits from the attesting witnesses
" On the above date, T asked ask to witness, he signed, we were present..." - not required but helpful if W loses memory or becomes hostile. |
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What's the difference between an attestation clause and self proving affidavit?
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1. Can be executed at any time after the will is signed as long as T and W sign at the same time
2. Attestation clause corroborates W's testimony - the self proving affidavit, is a substitute for W's live testimony in court ( like an interrogatory) 3. In NV, self proving affidavit must be written on the will itself. |
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How do you address the issue of a conditional will and the condition does not occur?
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1. Argue both ways about enforcement if the condition does not occur.
e.g. I something happens to me on the trip then X gets my car. In argument if nothing happened: 1. Not valid anymore since condition not satisfied 2. Incident induced T to think about his will, since he has not thrown it away, it should be enforced. |
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What's a codicil?
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It's a modification to a will.
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Is codicil a new will?
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No - it only makes changes to an existing will.
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What are the formalities to ensure a valid codicil?
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You go through the same steps as that of a valid will: writing, intent, age (legal capacity), mind (testamentory capacity). - otherwise the codicil is invalid.
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Codicil does not referred to Will 1 and is slightly inconsistent as well. What result?
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The later document controls.
e.g. I leave blackacre to X, ring to Y, residue to Z later: I leave blackacre to X, ring to M, Y gets $5k, residue to Z. Later controls. |
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There are two WILLS. W2 does not expressly revoke W1. What result?
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W2 is treated as a codicil.
=> both read together, if inconsistencies, 2nd. controls |
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What happens to the codicils of a revoked will?
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They are revoked as well
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What happens to the will if the codicil is revoked?
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Nothing - the will is not revoked.
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T give 10K to X. After execution, he draws a line on 10k and writes 15K(plus signs), what result?
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1. This is revocation of the will by act.
2. 15K is invalid => since codicils of revoked wills are revoked. 3. To give effect, the will needs to be re-executed. |
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T give 10K to X. After execution, he draws a line on 10k and writes 15K(plus signs), what result in a Holographic Will?
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Valid - the sign shows testamentory intent
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What's a holographic codicil?
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Testator modified the will in writing - needs to have the elements of a codicil/will (6 elements)
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Testator crosses out gift of $10k and writes $15k. Valid holographic codicil?
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No. Need to show intent - T should have written " I leave 15K to X" + plus his signature.
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Testator crosses out gift of $10k and writes $15k. What result?
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B gets nothing.Cure: Dependent relative revocation
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What are the different ways you can revoke a will?
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1. By writing or act
2. By implication |
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How can you revoke a will by action? (elements)
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physical act + intent + T's presence (contemporaneous)
e.g. includes - executing a new will which expressly revokes W1. - crossing out signature - burning obliterating etc. Note: destroying W2 does not revive W1 unless intent |
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How can you revoke a will by implication?
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Executing a new will which makes a complete disposition of T's estate.
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What kind of presumptions exist regarding revocations?
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1. If last seen with T and not found with T => revoked
2. If last seen with T and found mutilated => revoked |
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How do you revive a revoked will?
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Previous will needs to be re-executed or use DRR.
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What is the dependent relative revocation? DRR
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Doctrine which disregards a revocation of W if the revocation was executed in error/improper and does not reflect T's intent. Result => W1 probated.
Another scenario: T revokes W2 w/o properly rexecuting W1. W2 is probated under DRR. |
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How does a court probate a lost will?
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1. Proof of execution (the 2 W)
2. Reasonable explanation for unavailablity 3. Substantial proof of contents (thru duplicates) |
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How do you divide the estate among devisees (beneficiary who gets real property) heirs?
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Per capita at each generation
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T gives to A, B, C. Each child gets 1/3. A & B dead. 10 grandkids. How is the property divided?
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C= 1/3. EAch grandkids 1/10 of their parent's share.
- per capita at each generation |
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What is an anti-lapse statute? Purpose?
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It prevents the CL effect of disinheriting the heirs of B if the B predeceases T.
Under CL: gift has lapsed because T can't make a gift to a dead person |
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What is the NV anti-lapse statute?
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1. B must be T's relative
2. B has issue that survive T |
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How is the gift distributed among (dead) B's issue under the anti-lapse statute?
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Under the following priority:
1. According to B's will for issue who are relatives of T 2. If B has a will but issue are not relatives of T (e.g. spouses), then to B's issue who ARE relatives of T 3. If there is no will, then again to B's issues who are relatives of T 4. If B has no issue, then back to T's estate. |
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What are the rules for class gifts?
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1. If B is T's relatives, and B dies before T, gift goes to B's heirs
2. If B is not a relative, and dies before T, the gift is divided among other members of the class 3. Class closes on T's death,except for kids born within 280 days of T's death. |
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What are the special issues w.r.t to spouses?
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1. Community property
2. Homestead and family allowance 3. Pretermitted Spouse (& children) 4. Divorce |
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How is the estate divided under CP?
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1. Spouse can do whatever they like with their share of CP
2. If one spouse dies intestate, then other spouse gets the deceased spouse's entire 1/2 CP. |
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What is the homestead exemption?
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1. Upon a homeowner's filing of a Homestead Declaration form with the County Recorder, the equity in a person's principal residence (including a mobile home) is protected from general creditor claims such as unpaid medical bills, charge card debts, business/personal loans, and accidents up to a maximum of $550,000.00.
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What is the purpose of the homestead exemption?
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The Homestead saves your principle residence from final process of any court or any forced sale or seizure by general creditors up to such maximum statutory amount.
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How many residences can a person claim as homestead?
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Only one - the principle residence
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When can the homestead declaration be filed?
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Anytime before the sheriff's sale.
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What does the homestead not protect home equity from?
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The Homestead exemption does not protect home equity from:
1. child support 2. alimony obligations 3. taxes 4. IRS liens 5. Repayment of Medicaid benefits, and 6. mechanic's liens 7. debts secured by a mortgage or deed of trust on the home. |
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Who is a pretermitted spouse?
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A surviving spouse not named in T's will
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What are the rights of pretermitted spouse?
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When the court finds a pretermitted spouse, it will award that spouse the intestate share of the estate.
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What are the exceptions to the rights of a pretermitted spouse?
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1. Marriage K
2. Specific intent to disinherit is in the will |
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What's a pretermitted heir?
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A pretermitted heir is an heir, usually a child, who is not mentioned in the will, but who would have inherited under a state law if there had been no will. => he gets his intestate share
Note: to disinherit specific intent in will. Also, if a codicil added after child's birth but child not provided for => disinherited. In NV if a hild is omitted it is presumed intentional but child can rebut using extrinsic evidence |
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What is family allowance?
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It allows the surviving spouse or minor kids to claim a fixed amount from decedent spouse or decedent parent's estate free from all creditor claims.
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Can you get the family allowance in addition to a will or if the will does not permit it (e.g. the will specifically does not give the wife anything)?
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Yes
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What is the effect of divorce on T's will for the ex-spouse?
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All gifts are automatically revoked
- divorce has to be complete - not be in the process. |
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What happens if the couple remarries?
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The will is revived.
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What is simulatenous death?
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When couple dies so close in time that it cannot be ascertained with certainty who died first.
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What is the effect of simultaneous death?
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When there is simultaneous death, each spouse's estate is distributed as though the other spouse has died first.
- NV has not adopted the Uniform Simultaneous Death Act's 120 hour rule ( i.e. two or more people die within 120 hours of one another, each is considered to have predeceased the others) |
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What happens if T and Beneficiary or heir die simulataneously?
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Beneficiary or heir is presumed to have died first.
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What happens if two Joint Tenants die simultaneously?
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Each gets the other's half => destroys right of survivorship and so half passes to each JT personal estate.
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What is an advancement?
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A lifetime gift made by T to child/heir, the value of which the person intends to be deducted from child/heir's eventual share in the estate after the giver's death.
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When does advancement apply?
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When there is no valid will - T dies intestate.
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What is the difference between lifetime gifts and advancements in NV?
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In NV a lifetime gift is NOT presumed to be an advancement unless specifically stated in writing by T or B.
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What is abatement?
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A situation when T includes more property in his will than he has.
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How is abatement resolved?
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By lowering or eliminating certain gifts in the will.
The determination of which gifts are reduced or eliminated is generally made on a priority basis. |
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What is the priority basis to resolve abatement situations?
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1. specific gifts ( all my law books)
2. general gifts (no specific source) 3. residuary gifts ( the rest to X). 4. property subject to intestacy statutes because it was not addressed |
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What is ademption?
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The situation when T gifted an item that he does not own anymore upon his death. The gift fails.
if I leave you my shares in Microsoft, but then sell that stock before I die, you would not be entitled to any gift during the probate of my will - applies only to specific bequests. |
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Is a lien allowed to be exonerated in NV?
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No - if T leaves house to B, and house has lien, money from estate will NOT Be used to pay off the lien UNLESS T directs.
=> B gets house subject to the mortgage. |
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What are the various methods of will interpretation?
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1. Incorporation by Reference
2. Acts of Independence Significance 3. Plain Meaning |
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What is incorporation by reference?
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The act of including a second document within another document by only mentioning the second document
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What are the elements of a valid incorporation by reference?
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1. Writing already in existence
2. Clear manifestation of Intent 3. description of the document w/ particularity |
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What is the NV personal property exception?`
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allows disposition of personal property based on a document that T states he will write inthe future (so not already in existence)
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Can holographic wills incorporate typed property by reference?
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Yes
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What is the doctrine of acts of independent significance?
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Permits T to effectively change the disposition of his property without changing a will, if acts or events changing the disposition have some significance beyond avoiding the requirements of the will.
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When does the doctrine of Acts of Indpe significance apply?
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The doctrine is frequently applied under the following two circumstances:
1.The testator devises assets to a class of beneficiaries where the testator controls membership. For example, Joey leaves the contents of his bank account "to my employees." If Joey then fires some of old employees and hires new ones, the new employees will inherit the contents of the bank account under this provision. 2.The testator devises a general type of property, and then changes the specific items of property within that category. For example, Joey writes in his will, "I leave my car to Rachel". Joey drives a 1974 AMC Gremlin at the time of the testamentary instrument, but later sells the Gremlin and purchases a 2009 Rolls-Royce Phantom Drophead Coupé with suicide doors and teak paneling. Because Joey bought a new car to get a more comfortable ride, rather than to change a will without going through the testamentary formalities, the gift to Rachel remains enforceable. |
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Do acts of indpt significance apply to intangible property?
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No - only to tangibles.
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What is the doctrine of the plain meaning rule?
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States that wills should be interpreted using the ordinary meaning of the language.
-applies when there is no ambiguity in a will |
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What is the effect ofthe plain meaning rule?
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The court refuses admission of extrinsic evidence to overturn the plain meaning of the Will
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What is a latent ambiguity?
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language is plain and clear on its face but when applied, created ambiguity.
- give estate to my nephew John. - however, nephew's name is Joe |
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What is a patent amibuity
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An ambiguity that appears on the face of the will
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How do you interpret the will if there are no ambiguities?>
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1. Court gives the word their plain meaning
2. No extrinsic evidence is allowed |
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How do you interpret wills if there are ambiguties?
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1. Extrinsic evidence is ok ( inlcudes statement by T to atty but not to 3rd person)
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What is the result when extrinsic evidence does not resolve the ambiguity in a will?
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Gift fails
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Are will contracts ( to make, not to make, not to revoke, to die intestate etc) valid?
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Yes. - K law applies.
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What is the negative bequest rule?
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Words of disinheritance - given full effect
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What are will subsitutes?
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Assets not passed & subject to probate, as expressed in the will
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What are the different types of will substitutes?
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1. Intervivos gift: delivery
2. Joint Tenant 3. beneficiary in insurance policy gets his proceeds even if will says otherwise. 4. Property in trust given in accordance to terms of the trust 5. Bank arrangments with rights of survivorship ( but extrinsic evidence allowed to show that it was a convenience account) |
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Can a murderer inherit?
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No - because he is treated as having predeceased T.
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When does propetry pass through intestate succession?
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1. T dies w/o a will
2. T's will is denied probate 3. T's will doesn't dispose all of his assets 4. T's will states that property should pass thru intestate succession |
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How are half brothers and sisters treated?
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The same as real ones except for ancestral property
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How are step children treated?
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Not as real or adopted ( note- adopted do not have any inheritance rights from birth parents).
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What are the rights of an illegtimate child?
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He inherits from his mother. Father only upon proof or from a man who is married to the mother.
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H & W have a child. Divorce. W marries H2. H2 adopts child. What result?
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Child inherits from both H1 and H2
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How do you disclaim (refuse) T's gift?
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1. Must be in writing
2. Signed by the disclaimant 3. Describe the property being disclaimed 4. Be filed within 9 mo of T's death - Notes: can't be disclaimed if already accepted. Can be partial. Can disclaim any gift. Cannot disclaim by requesting someone else gets the share. |
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What are elements of a valid will contest?
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1. Time: must be commenced within 3 mo will admitted to probate
2. Standing: any person whose share will increase if successful (=> creditorts and executors do not have standing) |
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What are the grounds of challenging a will?
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1. Defective execution
2. Revocation .3.Lack of testamentory capacity 4. Lack of intent 5. Undue influence 6. Mistake 7. Fraud |
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Who has the burden of proof in will contests?
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The one contesting
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How can X contest a will if there is a no contest clause?
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If X has probable cause for grounds to challenge the will
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What are the elements of undue influence?
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1. Undue influence which overpowered T's own mind
2. But for the undue influence the will would have been different |
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Can a will be contested under K law?
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Yes - if T promises something but does not include it in the will
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What are the other special types of wills?
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1. Living Wills
2. Foreign Wills |
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What's a living will?
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It states what needs to be done regarding:
1. Life sustaining treatment 2. Pain alleviating treatment |
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What is a durable health care power?
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Allows agent to make healthcare decisions on behalf of an incapacitated T.
Agent is not liable if he acts in good faith |
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When does a living will or durable healthcare power become effective
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when T is incapacitated!
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What is a foreign will?
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A will executed outside of NV
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How does NV treat foreign wills?
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As NV has adopted the Uniform Execution of For Wills Act - a for will is valid if:
Complies with the laws of the state where executed OR laws of the state where T is domiciled. |
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What are the rules regarding negligent will preparation?
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1. Privity of K determines whether an omitted heir can sue the atty
2. Maj rule (NV): privity is NOT required - atty's duty runs to the Beneficiaries |
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What are the conflict of law rules regarding wills?
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1. Real property: law of the state where the real property is
2. personal property: law of the state where T was domiciled at time of death |
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What is a pour over will?
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This kind of Will “pours” any property T still owned at the time of death into the Trust T set up during his or her life. - valid
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