Wills And Estates

Front 1

Beneficiary who receives property from the decedent through a will

Back 1

devisee

Front 2

property that is devised to a beneficiary under a will

Back 2

devisable

Front 3

administers the estate when person dies with a will and the will designates who the personal representative should be

Back 3

executor

Front 4

administers the estate when person dies with a will but fails to designate who the personal representative should be

Back 4

administrator CTA

Front 5

what does the personal representative take care of

Back 5

insurance, investments, estate taxes, personal income taxes, property tax, etc., and distribution of the assets

Front 6

defines where the rest of the property goes that is not specified in the will

Back 6

residuary clause

Front 7

condition where one dies without a will

Back 7

intestacy

Front 8

defines where the rest of the property goes that is not specified in the will

Back 8

residuary clause

Front 9

condition where one dies without a will

Back 9

intestacy

Front 10

beneficiary who receives decedent’s property through intestacy

Back 10

heir

Front 11

a person who would be an heir if someone died,

Back 11

heir apparent

Front 12

property that will descend to the heirs

Back 12

descendible

Front 13

holds legal title to the assets while acting as fiduciary of the estate in intestacy

Back 13

administrator

Front 14

Community property with right of survivorship

Back 14

the dead spouse’s half goes automatically to the surviving spouse

with normal community property the decedent can bequeath their half of the community property to anyone they choose- if they do not make provisions to give it away then it passes to the spouse in intestacy

Front 15

3 directions for direct disposition of a will

Back 15

1. Specific device- directions for specific goods or property of the estate
2. Pecuniary device- directions for the monetary portion of the estate
3. Residue- directions for whatever is leftover

Front 16

3 forms of disposition of a will

Back 16

1. direct disposition
2. pour-over will
3. testamentary trust

Front 17

testamentary trust

Back 17

specifies, through the will, when a particular beneficiary get the money instead of all at once

Front 18

reasons probate is bad

Back 18

1. lengthy
2. cumbersome
3. expensive
4. public

Front 19

property not subject to probate

Back 19

1. trusts
2. assets with beneficiary designation
3. assets held in joint tenancy
4. community property with right of survivorship
5. estates with assets under 100k

Front 20

things filed in probate court

Back 20

1. Probate will
2. Resolves disputes that arise with an irrevocable trust
3. Modification of terms (eg. if term becomes obsolete b/c entity is bankrupt or for tax reasons)
4. Conservatorship
5. Guardianship
6. If trustee breaches the trust
7. Resolve disputes between beneficiaries or between beneficiary and a trustee
8. For trustee to get court approval before doing something (in order to protect)

Front 21

attorney professional responsibility

Back 21

represents testator, but has a duty of care to the beneficiary

Front 22

beneficiary lawsuit theories

Back 22

1. tort theory- foreseeable that beneficiary will be harmed if attorney messes up
2. Contract theory- heir of trust is 3rd party beneficiary

Front 23

guardianship to adult who becomes incompetent

Back 23

conservatorship
i. Conservatee is the person who is incompetent
ii. Conservator is person who is appointed as a fiduciary to the conservatee

Front 24

two types of conservatorship

Back 24

i. Conservatorship of the estate – manages the conservatee’s finances
ii. Conservatorship of the person (guardianship) – manages the conservatee’s daily affairs, incl. making medical decisions.

Front 25

guardian ad litem

Back 25

i. For minors
ii. Appointed by the court – to stand in the shoes of the minor and to look out for the minor’s best interest
iii. Parents cannot do

Front 26

estate tax exemption

Back 26

$3.5 million

Front 27

gift tax exemption

Back 27

$13k per year

Front 28

gift tax consequences for medical and education expenses

Back 28

none, can give unlimited amount of gifts

Must give straight to the institution or provider

Front 29

Crummey letters

Back 29

can put gift in an irrevocable trust, but beneficiary must have the ability to withdraw if they choose, crummey letter is the notification of the gift and withdrawal right

Front 30

federal estate tax exemptions

Back 30

property given to spouse or trust for spouse

charitable contributions

gifts up to 13k per year

Front 31

gift tax rules

Back 31

up to 13k per person, per year, per donor is tax free

There are no gift tax consequences for medical and education expenses paid for- unlimited
Must give straight to the institution or provider

Front 32

grounds of will contests

Back 32

undue influence
lack of testamentary capacity

Front 33

incentive bequest

Back 33

a bequest to discourage contesting the will

Front 34

consequence of losing a will contest

Back 34

you and your children do not take anything under the will

iv. Clause can be drafted so that any collusion or complicity to contest the will will be considered a contest by all those involved in the collusions even if they did not bring the contest themselves

Front 35

unenforceablility of no contest clause

Back 35

UPC- clause will be unenforceable if probable cause exists for instituting proceedings

CA- clause is unenforceable if there is a contest that has reasonable likelihood to succeed

Front 36

situations mitigating no contest clause

Back 36

1. Ask for a court declaratory relief.
Court will tell potential contester whether the petition will violate the clause

2. clause will be strictly construed. If there are any ambiguities, it will be resolved in favor of no forfeiture

3. challenging a possible interested witness will not trigger clause

4. actions that by definition will not violate the no contest clause as a matter of public policy

Front 37

actions that by definition will not violate the no contest clause as a matter of public policy

Back 37

1. Exercising fiduciary duty – if you don’t think the trustee is doing a good job
2. Pleading regarding the removal or appointing of a trustee/fiduciary
3. If you file a petition objecting to an accounting or report
4. If you want the instrument interpreted, not a contest
5. Reformation of will or trust

Front 38

formalities of a will

Back 38

1. must be in writing
2. must be signed by the testator
3. must be signed by two witnesses

Front 39

witness requirements

Back 39

i. CA- The two witnesses and the testator all have to be together (in the same room, at the same time) when they witness either the signing of the will or the testator's acknowledgment of the signature
1. Everyone must see each other sign


ii. UPC- witnesses sign within a reasonable time after witnessing either the signing of the willor the testator's acknowledgment of that signature
1. Witnesses don’t have to be there at the same time

Front 40

validity of wills executed in other states

Back 40

Most states will respect a will if it was executed in conformity with law of the state where:
1. The will was executed;
2. The testator lived when it was executed; OR
3. The testator lived when the testator died

Front 41

codicil

Back 41

amendment to a will

Front 42

codicil execution

Back 42

same rules and formalities as original will, unless the codicil is holographic

Front 43

how many witnesses must testify in court to prove the validity of a will

Back 43

noncontested- one, don't need both witnesses

contested- both

Front 44

self-proving will

Back 44

a will with an attached affidavit signed by a notary public stating that the will was properly signed and witnessed

court will almost always accept these wills as valid without further proof unless it is contested

Front 45

holographic will

Back 45

a will where the material provisions are in the testator’s own handwriting

Front 46

holographic will requirements

Back 46

1. do not need to be witnessed.
2. must have testamentary intent
3. be in the testator’s handwriting
4. include the testator’s signature
1. Testamentary Intent = the intent that the document in question was to be the decedent’s will.

Front 47

testamentary intent

Back 47

the intent that the document in question was to be the decedent’s will (“who gets what”)

Front 48

holographic codicil

Back 48

can write and sign in the margin of the original will

must be intelligible on its own, can't rely on the original will for context or to interpret the codicil

Front 49

incorporation by reference

Back 49

can incorporate other existing documents into the will if testator clearly demonstrates the intention and the reference describes enough detail to permit its identification

the document must exist at the time the will is signed

Front 50

tangible personal property

Back 50

The will may refer to a list that disposes of tangible personal property, not distributed by the will
1. Must be signed
2. Must describe the property and devisees with reasonable certainty
3. Must be tangible property (cash, stock, bonds, real estate, etc. cannot be included)
4. May be prepared before or after the execution of the will
5. May be altered throughout life

Front 51

tangible personal property dollar limit

Back 51

1. Utah does not have a dollar limit
2. CA limits a single item value to $5,000 and the list total to $25,000

Front 52

statutory will

Back 52

A. Statutory wills are form wills that appear in the probate code
i. Presumptively deemed to be a valid will
ii. Must still get two witnesses

Front 53

substantial compliance doctrine
dispensing power

Back 53

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

Front 54

substantial compliance can be applied to

Back 54

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

Front 55

pour-over will resigning

Back 55

every time there is an amendment to the trust

Utah does not require a new pour-over will to be signed

Front 56

acts of independent significance

Back 56

A designation that the testator makes in a will can change and the beneficiary will still get the gift as long as the nature of the property/group has not changed

Front 57

revocation of a will

Back 57

1. Execute a subsequent will which expressly revokes prior wills
a. The new will must be valid in order to revoke prior will
2. Have inconsistent terms between the new will and the prior will
a. Inconsistency: old will leaves house to person X and then new leaves to house person Y – provision of the new will is valid so then X would no longer get the house
3. Destruction of the will

Front 58

subsequent wills and validity of prior will

Back 58

1. The testator is presumed to have intended a subsequent will to replace a previous will if the subsequent will makes a complete disposition of the testator's estate. The previous will is revoked; only the subsequent will is operative on the testator's death.

2. The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. The subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent.

Front 59

revocation of a subsequent will that wholly revoked a prior will

Back 59

revives the prior will only if it can be shown that it was the testator’s intent to revive the prior will (UPC and CA)

There is a presumption against revival

Front 60

revocation of a subsequent will that partially revoked a prior will

Back 60

CA- does not revive the prior will unless it can be shown that it was the testator’s intent
UPC- does revive the prior will unless it can be shown that it was against the testator’s intent

Front 61

revocation of a subsequent will that is revoked by a 3rd will

Back 61

the previous (1st) will remains revoked unless the terms of the 3rd will state otherwise

Front 62

dependent relative revocation

Back 62

A. If the testator revokes a will by because he assumes the new will is valid and for some reason the new will is not valid, the prior will is reinstated and probated if:
i. There is an alternative plan of disposition that fails- a later will that is executed
ii. The mistake is recited in the terms of the instrument that revokes (completely or partially) the will or is established by clear and convincing evidence

B. The court must still be satisfied that this is what would testator would have wanted if he new the new will was not valid

Front 63

effects of a codicil on a will

Back 63

1. redate- makes the effective date the date of the codicil

2. republish- if there were defects in the will originally and the codicil cleanses those defects, then the will is valid

3. revive- codicil can revive a will that had been revoked

4. ratification- an invalid will because of lack of testamentary capacity can be validated by executing a codicil while having testamentary capacity

Front 64

CA omitted spouse (married after signing the will)

Back 64

1. S gets 100% of the community property (deceased spouse ½ and own ½ ) just as if TS died intestate

2. S gets the separate property as if TS died intestate.
May only get up to ½ of separate property in case of omitted spouse

Front 65

exceptions to omitted spouse rules

Back 65

1. the testator intended to omit the spouse

2. a separate trust was set up for the spouse

3. CA- the spouse has waived their right to share in the estate
UPC- the will expresses the intention that it is to be effective notwithstanding any subsequent marriage

Front 66

where does the omitted spouses share come from

Back 66

CA
1. Any property that would otherwise pass under intestacy
2. All other bequests pro rata

UPC
1. Bequests to the omitted spouse
2. All other bequests pro rata

Front 67

CA omitted child rules

Back 67

Omitted child, born after signing of the will, gets intestate share- no limitation like spouse share

If the testator was unaware of the birth of a child, or thought the child was dead at the time of signing (but was really alive), then that child will also get the intestate share

Front 68

UPC omitted child

Back 68

1. No children at will execution
an omitted after-born child receives property as if the testator died intestate
a. Unless the will devised all or substantially all of the estate to the other parent of the omitted child

2. One or more children living at will execution
a. Split the portion that the will devises to the “children as a group”
b. Equal gifts to other children- aggregate gifts to each children and then split evenly
c. Unequal gifts other children- aggregate the total amount, omitted child takes equal share, then other children get the pro rata share

Front 69

If the testator was unaware of the birth of a child, or thought the child was dead at the time of signing (but was really alive)

Back 69

that child will be treated as an omitted after-born child

ii. CA- get the intestate share
iii. UPC- depends whether there were other children alive at the execution of the will

Front 70

after-adopted omitted child

Back 70

treated just as a natural born omitted child

Front 71

divorce after executing a will

Back 71

the following items are revoked (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

Property that would have gone to former spouse is treated as if spouse predeceased the testator
i. Anti-lapse statute does not apply because divorced spouse is no longer kindred/relative

If will says it is not revoked after divorce, then it remains

Front 72

bequests to relatives of a former spouse

Back 72

CA- gifts to relatives of former spouse are not revoked

UPC- gifts to relatives of former spouse are revoked
Only if those relatives are not also relatives of the decedent- children, grandchildren, etc.

Front 73

homicide

Back 73

A. Person who feloniously or 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

Front 74

anti-lapse statute for purposes of homicide

Back 74

CA- does not apply- issue of murderer cannot get property left to the murderer
a. Relatives of murderer can still receive property left directly to them

UPC- does not expressly say anti-lapse does not apply, so presumably it would apply

Front 75

determining if a homicide occurred

Back 75

i. In the absence of a final judgment of conviction of felonious and intentional killing, the court may determine by a preponderance of evidence whether the killing was felonious and intentional

ii. The burden of proof is on the party seeking to establish that the killing was felonious and intentional

Front 76

anti-lapse statute

Back 76

if a beneficiary dies before the testator:

1. If property lapses, then property that would have gone to the beneficiary falls to the residue

2. If property does not lapse, then property that would have gone to the beneficiary goes to that beneficiary’s issue according to intestate distribution

Front 77

if anti-lapse statute does not apply and there is no residuary clause or the residuary clause beneficiary is dead

Back 77

property is distributed according to intestacy

Front 78

survivorship clause and anti-lapse statute

Back 78

A survivorship clause constitutes a contrary intention- making the anti-lapse statute inapplicable

Front 79

UPC relationship requirement for anti-lapse statute

Back 79

the beneficiary must be a grandparent, descendant of grandparent, or step-child of testator

Front 80

CA relationship requirement for anti-lapse statute

Back 80

kindred of the testator

probable more broad than UPC requirement

Front 81

Questions to ask to determine if anti-lapse statue applies

Back 81

1. Is the will silent as to the situation

2. Is the beneficiary a close relative (CA- kindred) of the testator

3. Is there survivorship language in the will

4. Are there living descendants

Front 82

Is the will silent as to the situation

Back 82

No- follow wills instruction

Yes- next question

Front 83

Is the beneficiary a close relative (CA- kindred) of the testator

Back 83

No
a. UPC- gift lapses and is included in residue of estate
b. CA- look to § 21111 for failed transfers

Yes- next question
a. UPC- grandparent, descendant of grandparent, or step-child of testator
b. CA- kindred, probably broader than requirement in UPC

Front 84

Is there survivorship language in the will

Back 84

Yes- Simultaneous death statute applies to survivorship clause
a. UPC-if he does not survive the testator then the gift lapses and becomes part of residue of estate
b. CA- look to § 21111 for failed transfers

No- next question

Front 85

Are there living descendants

Back 85

Yes
a. UPC- descendents take according to per capita at each generation
b. CA- descendents take according to equal share method

No- becomes part of residue of estate

Front 86

Failed transfers

Back 86

if a transfer fails for any reason and the anti-lapse statute does not apply, property transfers as follows

1. If instrument provides an alternative distribution, then property is transferred according to that instrument

2. If instrument does not provide for alternative disposition, but does include a residuary clause, the property becomes part of residue
a. If a residuary gift is transferred to two or more persons, the property passes to the other transferees in proportion to their interest in the residuary gift

3. If there is no residuary clause and no alternative disposition, the property is distributed through intestacy

Front 87

contract to make a will

Back 87

CA and UPC- a contract to make a will is valid

Front 88

situation where a contract to make a will may arise

Back 88

husband leaves property to second wife and wants her to then leave the property to child of first wife when she dies.

better to create a trust with a life estate for wife and the remainder for child.

Front 89

joint and mutual wills (parallel provisions between husband and wife)

Back 89

not deemed to have entered into a contract unless able to show there was an intent to enter a contract to make a will

one of the spouses could change provision of their will later (especially after the other has died)

Front 90

admittance of extrinsic evidence

Back 90

CA and UPC- can use extrinsic evidence if there is an ambiguity

Front 91

types of ambiguities

Back 91

patent- ambiguity appears on the face of the trust instrument
TS leaves 25% of estate to each of the 5 charities

latent- if you had more information you would know that the instrument does not read properly
I leave my estate to Bill who resides at X. On face, that’s fine, but it’s a latent ambiguity if Bill never lived at that address

Front 92

when is extrinsic evidence allowed to be used

Back 92

2. After the extrinsic evidence is admitted, there must be an ambiguity in the writing of the will
a. If there’s no ambiguity in the will after extrinsic evidence is admitted to show that there is an ambiguity, the extrinsic evidence will not be admitted to interpret the will
b. The court will strictly use the words of the will (as if the extrinsic evidence has never been admitted in the first place)

Front 93

plain meaning rule

Back 93

Allow in extrinsic evidence to resolve a patent ambiguities
Will only allow extrinsic evidence to show latent ambiguities in very narrow circumstances

no longer in use

Front 94

problems with the plain meaning rule

Back 94

1. It is not always easy to identify which ambiguities are patent and which are latent.

2. Very rigid adherence causes the testator’s intent to often be ignored

3. The courts often ignored it and tried to stretch things in order to fit them within the definition of a patent ambiguity so that it could be admitted

Front 95

ademption by satisfaction

Back 95

testator gives the beneficiary the property during his life time

No further action is necessary because the beneficiary received the intended gift

Front 96

ademption by extinction UPC

Back 96

testator doesn’t have the bequeathed property when he dies

UPC
a. The beneficiary will get the fair market value of property sold by the testator, unless it can be shown the testator’s intent to be otherwise. (opposite common law)
b. If testator sold property but has not yet received payment, proceeds will go to the designated beneficiary.
c. If the testator buys replacement property, the new property will go to the beneficiary

Front 97

bequests that result in stock splits

Back 97

beneficiary would get all the shares that are a result of the original stock unless the will provides otherwise

Front 98

bequests that result in mergers

Back 98

beneficiary will get the resulting share

Front 99

exoneration of mortgage when the beneficiary receives the property

Back 99

Common law
estate was supposed to pay off the mortgage and transfer to the beneficiary free and clear

UPC & CA
reverses the common law, beneficiary takes subject to the mortgage unless otherwise specified in will

Front 100

insufficient funds for a pecuniary bequest

Back 100

assets in the estate will be sold to come up with the gift amount

ii. If the testator bequests a monetary gift in the will and then also gives the same amount while alive to the same beneficiary, the beneficiary would receive both the lifetime gift and the will gift unless otherwise specified

Front 101

demonstrative bequest

Back 101

monetary gift with instructions on what to pay it out of

Front 102

insufficient property to fund a demonstrative bequest

Back 102

it will be funded by other property in the estate

Front 103

abatement

Back 103

if there’s not enough in the estate to cover all the bequests, then the estate must reduce some bequests

Front 104

abatement order

Back 104

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
2. Second – pecuniary bequest- pro rata if multiple beneficiaries
3. Last – specific bequest

Front 105

Ademption by extinction CA

Back 105

testator doesn’t have the bequeathed property when he dies

CA
1. if the conservator sells while testator is in a conservatorship to pay bills, then the beneficiary will get the value of the property sold from the estate before other pecuniary bequests are satisfied
2. any unpaid proceeds from a sale, insurance, eminent domain, etc. for the property bequeathed, will go to the designated beneficiary.
a. If the proceeds or portions have already been paid to the testator, the beneficiary is not entitled to those previous paid amounts
b. If sold by the testator himself and has received all proceeds, and/or bought replacement property, then the beneficiary does not get anything

Front 106

Ademption by extinction common law

Back 106

1. Common law- If testator sold the property during lifetime, then the beneficiary does not get the value or the proceeds of that sale

Front 107

when does intestacy arise

Back 107

when there is no way to distribute some or all of the property in an estate:
no valid will
no trust
no designated beneficiaries
no joint accounts/tenancy

Front 108

law that governs intestate disposition

Back 108

personal property- state law where decedent was domiciled at death

real property- state law where the real property is located

Front 109

CA spouse distribution

Back 109

community- 100%, own 1/2 and decedent's 1/2

separate-
1. S gets all if D has no surviving descendants, parents, siblings, or issue of deceased sibling
2. S gets ½ if D leaves only one descendent (like one child) or the issue of one deceased descendent. Or if there is no DS, but D leaves a parent(s), siblings, or DS of siblings (niece or nephew)
a. Doesn’t matter how many there are
3. S gets 1/3 if D left (1) more than one child or (2) if child and a grandchild by a deceased child (3) issue of two or more deceased children (more than two lines of descent)

Front 110

predeceased spouse

Back 110

real property- 15 years
personal property- 5 years

Front 111

CA intestate succession

Back 111

D’s issue (DS)
In CA – use equal share method at all levels

Predeceased spouse rules – 6402.5

D’s parents

D’s siblings (issues of D’s parents)- half siblings are treated as whole sibling

D’s grandparents

Issue of grandparents

Issue of predeceased spouse

Next of kin- table of consanguinity
Number of steps removed
If more than one group at same closest number of steps, then whoever comes in the line of the closest relative wins

Parents of predeceased spouse,

Issue of parents of predeceased spouse

Escheat

Front 112

negative disinheritance

Back 112

D may disinherit heir by a will. The barred heir is treated as if he disclaimed his intestate share, treating him as if he predeceased the testator

Front 113

UPC spousal share

Back 113

entire estate if:
1. no descendants survives D
2. All D’s surviving descendants are also the descendants of S, and there’s no other descendants of S and not of D who survives D

Spouse gets first 50K + ½ of any remaining estate balance if: one or more of D’s surviving descendants are not descendants of S

Front 114

UPC rules of intestacy

Back 114

i. Portion of estate not passed to S, or the entire estate if there is no S, passes to individuals in the following order:
1. Descendants (per capita at each generation)
2. Parents (equally)
3. Descendants of parents (PCG)- half siblings are treated as whole sibling 2-107
4. Decedent’s grandparents (1/2 to paternal and 1/2 to maternal grandparents then to issue according to PCG)
5. Issue of grandparents
6. Escheat

Front 115

simultaneous death

Back 115

i. Person succeeds to D’s property (intestate or by will) only if the person survives D for 120 hrs (5 days)

ii. Joint tenancy, community property, tenancy by the entirety – If X and Y die simultaneously, ½ of the property is distributed as if X survived and ½ is distributed as if Y survived

Front 116

Son/daughter-in-law as intestate successors

Back 116

they are excluded

Front 117

distribution methods' differences if one or no children die at the time of D's death

Back 117

the result will be the same for all three methods if no child or only one child has died at the time of the D’s death

Front 118

Per stirpes (Right of representation)

Back 118

never a default method- only use if governing instrument says (most common method for wills)

the estate is divided equally among the children. Then the subsequent generation gets equal shares of their parent’s share, and not an equal share of the original estate, even if their parents are dead

Front 119

Equal share method (per capita w/ representation)

Back 119

default for CA

This is only different from the Per Stirpes method when all of the children are deceased. Then you don’t divide it among the children, just equally among the grandchildren

Front 120

Per capita at each generation

Back 120

default method in UT

If more than one of the children are deceased at each generation then you give the living children their share, then divide the remaining amongst the children of the dead evenly. You combine the portion of all the deceased children at each generation and distribute it equally among the grandchildren. If all the children are dead then you do the same thing as under the Equal Share Method

Front 121

adoption

Back 121

unless governing instrument provides otherwise:

1. Adoption severs the relationship between the adopted child and the natural parents

2. Establishes a parent-child relationship between the adopted child and adopting parents, for the purpose of inheritance

Front 122

adoption exceptions

Back 122

a. Does not sever the parent-child relationship for purpose of inheritance when:
i. A child is adopted by the spouse of one of the natural parents (if spouse gets divorced and remarried to another person).
ii. If one of the parents dies and the child is adopted by the spouse of the surviving parent.

Front 123

half-bloods for purposes of intestacy

Back 123

treated as a full blood

Front 124

inheriting from step/ foster parent

Back 124

1. If relationship began during child’s minority AND
2. Continued throughout the joint lifetimes of the child and the foster/step parent, AND
3. Clear and convincing evidence that foster/step parents would have adopted the child but for legal barrier (eg. if natural parents did not give consent to adoption)

utah does not recognize inheriting from step/foster parent

Front 125

advancements

Back 125

common law- gift treated as an advancement and is deducted from share of intestate estate

CA and UPC do not presume the gift is an advancement

can be rebutted if there’s clear evidence that the gift was intended to be an advancement (CA decedent declares in writing or heir acknowledges in writing the gift is an advancement)

Front 126

advancement is more than heir would have received under intestacy

Back 126

does not have to give back the excess. the other people split the remaining without the heir that received the advancement

Front 127

disclaimer

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can disclaim part or all of inheritance from intestacy

1. Tax reasons – say that X has a lot of money and so does X’s father, father dies – X wants to disclaim so that would act as if X predeceased X’s father, then no GST tax and X’s children would get 50 cents on the dollar instead of the 25 cents would get if first went through X
2. Creditors- suppose that X has a bunch of creditors – if he inherits, then would all be taken by the creditors – if disclaim instead could pass to someone else – so at least that way would stay in the family
3. Liability- suppose you inherit a piece of real estate that has a huge amount of liability that could possible exceed the worth – can avoid all the problems

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effect of undue influence

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that part of will is invalidated and will become part of the residuary

the unaffected part of the will is still valid and held in place

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undue influence

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i. Unreasonable pressure that is placed on the testator by another person that subverts the testator’s free will such that the will or trust does not really reflect the will or desires of the testator, but instead the desires of the person who exercised the undue influence

1. Person has to actually exert pressure. Mere persuasion or flattery is okay w/o exerting pressure enough so to take away TS’s free will on disposition.
a. if Y were not applying any pressure, then would not be undue influence
b. if Y were putting pressure, but X was going to give anyway, then still not undue influence

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status of someone in a confidential relationship

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there is a rebuttable presumption of undue influence if there was a confidential relationship and the person actively participated in the preparation of the will and they unduly benefited from the will

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undue influence burden of proof

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preponderance of evidence (50%+) by the person alleging undue influence

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evidence of undue influence

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1. Unnatural disposition of property
a. Eg. TS left everything to neighbor when he has three kids who are close.

2. Whether person suspected of undue influence was present when the will was signed.

3. Whether person suspected of undue influence helped prepare the will in any way (helped to procure the attorney)

4. Whether TS is susceptible to undue influence (mental/physical dependencies)

5. Confidential relationship between TS and person suspected.

6. Opportunity for suspected person to exercise undue influence (ex: the guy lived next door)

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confidential relationship

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a. Must show
i. Relationship of trust? (attorney/client- presumed; possibly a business advisor, accountant, doctor, clergymen, parent, someone who has a fiduciary relationship)
ii. The alleged perpetrator was in a superior position
iii. Participated in the making of the will in some way
iv. Unduly benefited from the terms of the will

b. Burden shifts to the alleged perpetrator to show there was no undue influence

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disqualified persons

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A. If there is a bequest in either a will or a trust to the attorney who drafted the instrument, or anyone who works in his firm, or anyone within 3 degrees of consanguinity to the attorney, then that provision leaving the attorney a gift is invalid

i. Also applies to health or social care services (care custodians) or persons who have a fiduciary relationship that cause the will to be drafted

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disqualified person exception- attorney

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okay if the attorney who drafted the instrument is a family member of the Testator or the Settlor.
1. Needs to be within 5 degrees of consanguinity of the transferor
2. You should not receive an unnatural disposition gift and unduly profit
a. If you get more than would be expected, then there may be a rebuttable presumption that you exercised undue influence

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disqualified person exceptions

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1. attorney family member
2. certificate of independent review
3. a court finding of no undue influence

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disinterested witness

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will must be signed by two disinterested witnesses (don't get anything from the will)

does not apply in Utah- can have an interested witness and still be valid

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a will signed by an interested party

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rebuttable presumption that interested witness exercised undue influence

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inheritance of interested witness unable to rebut

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not completely disinherited

will receive what they would have received if this will was not created (previous will disposition or intestacy)

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fiduciary interested witness

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undue influence is not presumed if there is an interested witness but he is only interested because he will be acting solely as a fiduciary when the will takes effect

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age requirements to create a will

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18 is the minimum
no maximum

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mental disorder effect on ability to make a will

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don't just look at labels, must look to see the effect of the disorder on the testator's testamentary capacity
The mere fact that he has a mental disorder does not mean that they can’t execute a will.

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why require mental capacity

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i. A will should be given effect only if it represents the testator’s (TS) true wishes.
ii. The law requires mental capacity to protect D’s family.
iii. Protects senile or incompetent TS from “exploitation” by cunning persons.

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time of determining mental capacity

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the time of execution of the will

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test of mental capacity

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How the following three elements relate so as to form an orderly plan for the disposition of the testator’s property:

1. The nature and extent of their property,
2. The persons who are the natural objects of his bounty- the persons likely to be the recipients of his property, i.e. family
a. Utah also includes that you must know your relationship to them
3. The disposition which testator is making of the testator’s property- i.e. signing the will is disposing the assets to those people, AND

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result of lack of mental capacity

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The will of a person who lacks mental capacity is not valid even though the provisions are rational and may be the same as if he were sane.

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abnormal distribution in a will

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Turns on the mental capacity of the testator rather than the objective reasonableness of the distributions in the will itself.

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insane delusion

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a false/irrational belief unto which one adheres against evidence and reason and which affects the disposition.

Rational belief to which one unreasonably adheres = valid behavior

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false belief based on evidence

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ii. A false belief, however unsound, does not constitute an insane delusion if based on any evidence.

The mistake must be one that no rational person, in testator’s place, would entertain.

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result of insane delusion

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the will is invalid only if the delusion itself actually affects the disposition of property

some courts may hold that only the parts that are affected by the delusion are invalid and the rest of the will is valid

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conservator's ability to make a will

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a conservator may make a will for a conservatee with court authorization

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ability of an individual in a conservatorship to make a valid will

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i. Mere fact that a person is in a conservatorship doesn’t mean that they can’t make a will
1. 87-yr. old in conservatorship may be overwhelmed by complex financial affairs, but can still be lucid about his own properties, and to whom he wants to pass the property.

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actions that can be taken to help rebut a challenge of testamentary capacity

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A. Should have client insert memo of explanation of disposition into the will.
i. An explanation can be disputed as stating something incorrect
ii. Then the testator may be held to not have testamentary capacity
B. Get a physician’s certificate that D got a physical at the time that testator signed the will, showing that testator had testamentary capacity at time he signed the will.
i. Needs to specifically address the criteria required for testamentary capacity
C. Use a video camera
i. Could raise problems such as why was a videotape necessary, or maybe it was just one of his good days.

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evidence of mental capacity

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1. medical records that never mention any mental issue
2. attorney's testimony
3. a previous will may show a consistent patterns of distribution
4. testator explaining the disposition to disinterested parties, i.e. friends or neighbors
5. recent transactions- intelligent investment decisions