Wills

Front 1

W1. What is joint industry property?

Back 1

Property acquired during marriage by the joint industry of the spouses such as earnings. Property is presumed to be joint industry.

Front 2

W2. What is non-joint industry property?

Back 2

Property acquired before marriage and during the marriage by gift, intestacy, or by will.

Front 3

W3. What is the distribution for surviving spouse if there is a surviving spouse but no descendants, no parent, and no sibling?

Back 3

Surviving spouse receives entire estate.

Front 4

W4. What is the distribution for surviving if there is no descendants but at least one parent or sibling?

Back 4

Surviving spouse receives all joint industry property and 1\3 of non-joint industry property.

Front 5

W5. What is the distribution for surviving spouse if there are descendants, all of whom are descendants of the surviving spouse?

Back 5

Surviving spouse receives ½ of entire of estate.

Front 6

W6. What is the distribution for descendants?

Back 6

All to descendants per capita with representation.

Front 7

W7. What is the distribution for no descendants but at least one parent?

Back 7

½ to each parent or all to the surviving parent with a 1\3 to the surviving spouse.

Front 8

W8. What is the distribution for no descendants and no parents?

Back 8

Then all to siblings and their descendants.

Front 9

W9. What is the inheritance right of adopted child?

Back 9

Children can inherit Vis-à-vis adoptive parents and biological parents

Front 10

W10. What are the inheritance rights of adoptive parents

Back 10

Parents can inherit from there adopted child but biological parents do not.

Front 11

W11. How are half-blood inheritance handled?

Back 11

Half-blooded heirs for ancestral property are not able to take only whole blooded relatives can acquire ancestral property.

Front 12

W12. What is an advancement?

Back 12

irrevocable gift intended by the donor as prepayment of an inheritance to a lineal descendant.

Front 13

W13. What is the proof needed for an advancement?

Back 13

Evidence of the advancement must be in writing

Front 14

W14. What is the applicable law for wills?

Back 14

Real property follows the law of Citus and person property follows the law of domicile.

Front 15

W15. What are the requirements of a valid will?

Back 15

(1) legal capacity (2) testamentary capacity (3) testamentary intent (4) formalities

Front 16

W16. What is legal capacity?

Back 16

18 years of age or older

Front 17

W17. What are the elements of testamentary capacity?

Back 17

(1) understand the action of making a will (2) comprehend effect of the action (3) know general nature and extent of property (4) recognize natural objects of bounty the family members (5) simultaneously hold elements in mind

Front 18

W18. What happens if there is an adjudication of incapacity?

Back 18

A rebuttable presumption of lack of testamentary capacity arises.

Front 19

W19. What is meant buy testamentary intent?

Back 19

Testator must intend the very instrument executed to be the will.

Front 20

W20. What are the will formalities?

Back 20

(1) in writing (2) signed by testator or proxy (3) testator or proxy subscribes (4) attestation [witnesses] in presence of testator

Front 21

W21. What are the requirements of attestation?

Back 21

witnesses must attest to the testators signature, there must be two uninterested witnesses whom sign in the presence of the testator and sign at the end of the will.

Front 22

W22. What is the ramification of using an interested witness?

Back 22

The general rule is that the beneficiary’s gift is void but otherwise will is valid.

Front 23

W23. What are the exception to the general rule on interested witnesses?

Back 23

(1) supernumerary witness to will, (b) beneficiary also an heir and receives smaller of intestate share and gift under the will.

Front 24

W24. Are attestation clauses required?

Back 24

No but may act as evidence that all wil formalities were satisfied.

Front 25

W25. What are the requirements of a holographic will?

Back 25

(1) entirely in testator’s handwriting (2) dated (3) signed

Front 26

W26. Can a holographic revoke an attested will?

Back 26

Yes.

Front 27

W27. What are the types of property in a will?

Back 27

Devised property is a gift of real property and bequeathed property is a gift of personal property.

Front 28

W28. What is the most common legacy?

Back 28

A gift of money.

Front 29

W29. What is the residuary gift?

Back 29

The remainder or forgotten property.

Front 30

W30. What is ademption?

Back 30

This is a failure of a gift because the gift of a specific gift is not in the estate at time of death.

Front 31

W31. What occurs in the case of a specific gift of a security that changes in value?

Back 31

If the gift is specific in nature then the increase goes to the beneficiary

Front 32

W32. What occurs to the security interest change in value for a general gift?

Back 32

If the gift of securities is general, the beneficiary receives only the number of shares stated.

Front 33

W33. What is the rule regarding exoneration of a debt for personal and real property upon death?

Back 33

Personal property can be exonerated while no exoneration exists in real property in equity.

Front 34

W34. What is a lapse?

Back 34

Lapse is where as if it fails because the beneficiary fails to survive the testator or is treated as if not surviving such as because of beneficiary disclaimed the property.

Front 35

W35. What are the general rules for distribution of a lapsed gift?

Back 35

If lapse occurs it proceeds under the express terms of will, gift saved by rule of law such as anti-lapse or cy pres, via residuary clause, via intestacy

Front 36

W36. What is the basic operation of the anti-lapse statutes?

Back 36

Prevents lapse by substituting the descendants of the predeceased beneficiary for the predeceased beneficiary must be a relative.

Front 37

W37. What is Cy Pres?

Back 37

Court must find that a testator had a general charitable intent broader than the charitable purpose which cannot now be carried out.

Front 38

W38. How is extrinsic evidence in a patent ambiguity treated?

Back 38

Provision is ambiguous on its face it fails to convey a sensible meaning then extrinsic evidence may not be used to fill in blank spaces or supply omitted gifts.

Front 39

W39. How is extrinsic evidence of latent ambiguity handled?

Back 39

Provision conveys a sensible meaning on its face but cannot be carried out without further clarification then extrinsic evidence may be used to resolve the ambiguity.

Front 40

W40. What is the forced share of surviving spouse?

Back 40

the suriving spouse can elect to take ½ of the joint industry property in the deceased spouse’s estate instead of the property left to the surviving spouse in the will. This is done through written election with probate.

Front 41

W41. What are the requirements for revocation?

Back 41

(1) intent to revoke (2) mental capacity (3) physical act

Front 42

W42. What is partial revocation by physical act?

Back 42

Partial revocation is allowed but cannot be done to create a new gift but incidental changes are permitted.

Front 43

W43. What other ways aside from physical destruction can a revocation occur?

Back 43

Revocation can also occur through express revocation in a will or codicil as well as revocation of inconsistent provisions in a second will or codicil.

Front 44

W44. What is the effect of a valid will that is revoked by will two that is then in turn revoked?

Back 44

the no revival by the general rule unless the terms of the revocation could demonstrate that testator intended to revive will one.

Front 45

W45. Who has standing to contest a will?

Back 45

heirs and beneficiary of prior wills

Front 46

W46. How long does a party have to contest a will?

Back 46

3 months

Front 47

W47. What are grounds to contest a will?

Back 47

Failure to meet elements of a valid will, insane delusions, undue influence, duress, fraud, mistake

Front 48

W48. What are the elements of undue influence?

Back 48

(1) belief has no basis in fact, (2) belief springs from a diseased mind, and (3) impacts the disposition made in the will.

Front 49

W49. What is the effect of insane delusion and ability to write a will?

Back 49

Insane delusion destroys capacity only if there is a connection between insane delusion and property disposition.

Front 50

W50. What are the elements of undue influence?

Back 50

(1) the influence must exist and be exerted, (2) overpower testator’s mind (3) causation the but\for test

Front 51

W51. What is duress?

Back 51

like undue influence but connotes influential conduct such as threat of physical harm.

Front 52

W52. What are the elements of fraud?

Back 52

(1) false representation made to testator (2) knowledge of falsity by person making statement (3) testator reasonably believed if statement (4) caused testator to execute a will testator would not have made but for the misrepresentation.

Front 53

W53. What are the types of fraud?

Back 53

(1) fraud in the factum\execution (2) fraud in the inducement

Front 54

W54. What is fraud in the factum?

Back 54

Testator deceived as to the identity or contents of instrument so that testator does not know it was a will or what it contained, lack of testamentary intent.

Front 55

W55. What is fraud in the inducement?

Back 55

testator knew testator was executing a will and what it contained but testator was decided as to some extrinsic fact and made will based on that erroneous fact.

Front 56

W56. What are the two types of mistake?

Back 56

Like fraud there is mistake in the factum and mistake in the inducement

Front 57

W57. What is mistake in the factum?

Back 57

testator is in error regarding identity or contest of instrument and thus lacked testamentary intent.

Front 58

W58. What is mistake in the inducement?

Back 58

Testator is mistaken as to some extrinsic fact and makes will based on that erroneous fact the remedy is generally not available.

Front 59

W59. What is homestead protection?

Back 59

Surviving spouse may continue to occupy the homestead for life or until abandonment. Children may occupy until age of majority. Thus, heirs and beneficiaries need to wait until the spouse dies or abandons and the youngest child is 18 to take.

Front 60

W60. Is the homestead free of creditors?

Back 60

yes except for purchase-money mortgages, tax liens and mechanics\materialmen’s liens

Front 61

W61. What is the automobile protection?

Back 61

If the deceased spouse died intestate, the surviving spouse is entitled to select one of the intestate’s automobiles that is in the probate estate free from claims of other heirs. However, still subject creditors.

Front 62

W62. What are the basic steps in estate administration?

Back 62

(1) Locate testator’s will, (2) make application to probate, (3) file appropriate documents and fee with proper court,(4) give notice to interested parties, (5) hearing, probate will and appoint person representative, (6) issuance of letters,(7) notice to creditors,(8) payment of creditors,(9) submit inventory and accounting to court, (10) estate distribution,(11) probate is then closed.

Front 63

W63. What is the priority order for appointment of representative?

Back 63

(1) executor named in will, (2)spouse, (3)children,(4) parents,(5) siblings,(6) grandchildren,(7) next of kin,(8) creditors, and (9) any legally competent person.

Front 64

W64. What is issuance of letters?

Back 64

one page documents under seal of court indicating that personal representative is qualified and officially appointed.

Front 65

W65. What are the general duties of personal representative?

Back 65

(1) file inventory of decedent’s probate assets, (2) collect and preserve decedent’s probate assets (3) manage decedent’s probate assets

Front 66

W66. How long does personal representative have to give notice to creditors?

Back 66

Notice must be given within 2 months, mailing notice to all known and reasonably identifiable creditors and publishing for 2 consecutive weeks in a newspaper in the county of probate.

Front 67

W67. What is the effect of notice to creditors?

Back 67

Notice starts the 2 month non-claim period to run for general creditors.

Front 68

W68. What is the order of payment of claims?

Back 68

(1) administration expenses (2) funeral expenses (3) expenses of the decedent’s last illness (4) family allowance (5) taxes (6) debts with preference (7) judgments entered against the decedent during lifetime (8) all other claims.

Front 69

W69. When must an inventory and accounting be on file?

Back 69

5 days before the hearing

Front 70

W70. When can a hearing be held?

Back 70

Not sooner than 35 days after the notice to creditors