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96 Cards in this Set
- Front
- Back
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Dead Hand Control
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Donors intent determines meaning and effect of the will UNLESS it violates public policy, is illegal, or wasteful
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Probate Property
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Property that passes under the will or by intestacy. It includes real estate NOT held in Joint tenancy and tangible personal property (unless the beneficiary has possession)
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Non-Probate Property
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Property that passes under another instrument. It includes joint tenancies on real and personal property, life insurance, Ks with POD (pensions, IRA, Stocks), trust property, and other property by statute
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Terms for Passing Property
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Person dying testate devises real property to devisees.
Person dying testate bequests personal property to legatees. Person dying intestate will have real property descend to heirs. Person dying intestate will have persona property distibuted to next-of-kin. |
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UPC 2-102 Share of Surviving Spouse
Everything if... |
Decedent had no living parents or descendants OR decedents surviving descendants are also surviving spouses descendants and surviving spouse has no other descendants
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UPC 2-102 Share of Surviving Spouse
First 200k plus 3/4 if... |
decedant doesn't have any living descendants but living parents
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UPC 2-102 Share of Surviving Spouse
First 150k plus 1/2 if... |
all decedants living descendants are also surviving spouses descendants and surviving spouse has living descendants not decedents
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UPC 2-102 Share of Surviving Spouse
First 100k plus 1/2 if... |
decedant has one or more living descendants not of the surviving spouse
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Simultaneous Death UPC 2-104
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In order for heir or beneficiary to take he must survive
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Uniform Simultaneous Death Act
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Heir must survive by 120 hrs or is deemed to have predeceased
This is shown by preponderance |
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Share of Heirs other than Spouse UPC 2-103
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Anything not going to the spouse passing according to the following order:
1) descendants by representation 2) decedants living parents 3) descendants of living parents by representation 4) 1/2 to both paternal/maternal grandparents or descendants by representation |
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Strict Per Stirpes
English Rule |
divide estate at first generation equally for children alive or children with descendants
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Modern Per Stirpes
Majority Rule |
divide estate at nearest generation with living descendants
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Per Capita at Each generation
UPC 2-106 |
equally near, equally dear - divided equally at each generational level
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Negative Disinheritance
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Entire will must be devised to others in order to disinherit someone or there is a chance the person could take from the intestate property
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Laughing Heirs
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Distant relative claimants. UPC cuts them off at the grandparent level
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Half Bloods
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Majority/UPC 2-107: treats half bloods and whole bloods equally
Minority: Half blood is given a half share, or half blood takes only when there are no whole bloods. |
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Adoption
UPC 2-114 |
If Adopted by:
1 Natural+1 NonNatural= can inherit from both natural parents and step parent 2 NonNatural= cannot inherit from natural parents |
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Equitable Adoption
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Permits a child who has lived with parents but never formally adopted to inherit from the foster parents, but the foster parents cannot inherit from the child
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Adult Adoption
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Same effect as adopting a child, except when such would violate testators intent, such as when a man adopts his wife
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Non Marital Children
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Old CL - child of no one
Majority - can inherit from mother. Can inherit from father if: paternity test, acknowledgment, parents marry, adjudication during life of father, clear & convincing evidence after father's death UPC 2-114 - illegitimate child is child of natural parents regardless of marriage Uniform Parentage Act - assumes fatherhood if: child under two father lives at home and holds out as father or father acknowledges paternity in filed writing |
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PostHumous Children
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If best interest of child and born not more than 9 mos after death child will be entitled to a share
Artificial Insemination 3 Factors: interests of children, interest of state, reproductive rights of deceased parent (must clearly and unequivocally consent to birth and support) |
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Intestate Advancements
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CL: all lifetime gifts considered advancements
Hotchpot: gifts treated as advancements added together if donee wants to share in estate Majority: gifts not considered advancements unless declared in writing, value calculated at time of gift |
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Guardianship of the person
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no authority over property
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Guardianship of the property
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continuous probate - must have court approval for all actions
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Conservatorship
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more flexible than guardian. Must have an annual accounting.
Conservator acts like a trustee |
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Custodianship
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UTMA or UGMA
statutory trust w/custodian broad powers: can reinvest property, prudent person standard of care. No court supervision unless interested person petitions |
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Trust (for management of Minors property)
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Most flexible
can postpone possession until child is old enough unlike other forms, trustee can manage after child reaches majority facility of payment clause - money can be distributed to parents (<$5000) |
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Homicide as a Bar to Succession
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1) Majority/UPC 2-803: killer is barred from taking, treated as predeceased (for both probate and nonprobate property)
2) No double punishment, killer takes under intestacy 3) Killer holds in constructive trust for heirs of deceased ***Acquittal is not dispositive of killers status, probate is civil, therefore preponderance standard UPC gives vested property rights to killer, not contract rights |
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Disclaimer
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UPC 2-1106: treats the disclaimant as predeceasing decedent. Therefore not a property transfer from disclaimant, only disclaimed interest passes
Old CL: property passed to heirs immediately and irrevocably upon death - this created property interest problems and extra taxation Gov't can reach disclaimed property, creditors cannot |
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Capacity
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testator must have capacity at time of will execution: know the nature/extent of his property; be aware of natural objects of bounty (descendents); understand the nature of property disposition; be capable of relating the 3 in orderly form and manner
Legal presumption of capacity if formalities are complied with. |
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Insane Delusion
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A belief to which testator adheres despite all evidence to contrary.
Majority: If there is delusion and unnatural disposition then causation is presumed to exist Minority: One who contests the will must prove unnatural disposition was the result of delusion Unnatural Disposition: delusion must be related to disposition Natural Disposition: to spouses, children, near relatives or charity *Provision in will or entire will can be invalidated |
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Undue Influence - Presumption if
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Presumption of Undue influence if:
a confidential relationship suspicious circumstances person in confidential relationship takes bulk of estate Once it is established, will proponent must show by clear and convincing evidence it did not exist |
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Undue Influence - Suspicious Circumstances
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Donor is physically/mentally weakened
extent which wrongdoer participated in preparation of will No advice form independent attorney or disintrested party Discrepancy between new and previous will No continuity of purpose running through former wills Disposition such that a reasonable person would regard it as unnatural, unjust, or unfair |
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No Contest Clause
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Majority will enforce UNLESS probable cause for the contest
(should never put reasons for disinheritance in will) |
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Fraud
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But for misrepresentation, testator would not have done so
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Fraud in the inducement
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A person misrepresents facts, causing T to execute a will, to include provisions in wrongdoers favor, to refrain from revoking will, or not to execute a will
MUST PROVE INTENT TO DECEIVE |
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Fraud in the Execution
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A person misrepresents character or contents of the instrument signed by T, which does not carry T's intent
A confidential relationship is not necessary Remedy: constructive trust or invalidation of will |
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Duress
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When undue influence becomes overtly coercive - invalidate and form a constructive trust
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Statutory Purposes for Will Formalities
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Ritual: impress significance on T
Evidentiary: Increase reliability of proof Protective: safe guard T from fraud, undue influence, etc Channeling: If it looks like a will, treat it like a will |
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Will Formalities - UPC 2-502 Requirements
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In writing
Signed by T Attestation by at least 2 witnesses (either witness execution or T acknowledges execution) (line of sight test, conscious presence test) Few states require will to be published |
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Interested Witnesses
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OCL: Unless 2 disinterested witness, will is void
Majority: will to the interested witness is purged UPC: gift to interested witness is valid CA Rule: gift to interested witness presumed product of fraud or duress |
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Curative Doctrines for Noncompliance with Will Formalities
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Substantial Compliance: minority common law rule, substantially complied w/formalities, clear and convincing evidence T intended document to be will
UPC 2-503 Harmless Error: dispensing power - a writing where T's intent that such document be a will is established by clear and convincing evidence |
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Holographic Wills
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T's handwriting (some allow stationary wills)
Signature Holograph satisfy only the evidentiary purpose UPC 2-502: Signature and Material portions must be T's handwriting Intent: "If anything should happen" established intent; some courts only require showing of testamentary intent, while others require intent that the document is a will |
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Revocation by Subsequent Instrument
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Inconsistency between the 2 instruments
express revocation clause *revocation of codicil does NOT revoke underlying will *revocation of a will DOES revoke all codicils |
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Revocation by Physical Act
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requires physical act (destroying, burning, obliterating, canceling)
intent to revoke (presumed to accompany physical act) Most states permit partial revocation by physical act (like a line through a phrase) Most Non-UPC states require the writing to touch the cancelled language |
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Revocation UPC 2-507
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Same rules, but revocation by physical act can be done by someone else in T's presence and with T's permission
Partial revocation is allowed |
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Revocation by operation of law
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Divorce: UPC 2-804
Revokes testamentary gifts, powers of appointment Treated as disclaimed for ex-spouse relatives as well applies to probate and non probate gifts Joint tenancies are severed CL did not revoke non probate transfers |
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Probate of Lost Wills
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If T had the will before T's death, presumption of revocation (because it can't be found, so it must have been destroyed)
Can still be admitted to probate if copy of a will or contents are proven |
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Dependant Relative Revocation
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If T revokes or changes will under mistaken assumption of law or fact, the revocation is ineffective if T would not have revoked the will if T knew the truth.
Court must decide what T would want if he had known subsequent gift would be invalid |
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Revival of Revoked Will
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English CL: Will is abulatory, does not have legal affect until T's death
Majority: upon revocation of will #2, will #1 is revived IF T intends Minority: will #1 is not revived UNLESS re-executed w/testamentary formalities |
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UPC 2-509 Revival of Revoked Will
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a) for wholly revoked will follow majority rule (not revived w/out intent);
b) for partially revoked will, it IS revived UNLESS intent not to revive; c) if 2nd will that revoked a 1st will is revoked by later 3rd Will, 1st will is revived if intent is shown in 3rd will |
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Integration
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Papers constituting the will are: 1) present at execution; and, 2) intended by T to be part of the will
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Incorporation by Reference UPC 2-513
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Will may incorp another document if 1) document is in existence at time of execution; and 2) express intent in will to incorporate; and 3) document sufficiently identified
*Tangible personal may be dispensed by memorandum referred to in the will, even if the memorandum is not in existence at execution - this allows for a changing list and updates without updates will doc |
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Acts of Independent Significance
UPC 2-512 |
Permits a person in their will to refer to events or acts not testamentary in character to make a disposition altering plan of testator
-look for a lifetime motive -applies to contents of safe deposit box, but not desk drawers -give $500 to everyone employed by my company at my death |
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K relating to Wills
UPC |
A K relating to a will can be established by
-stating material k provisions in will -express reference in will to k, or -writing signed by decedent, evidencing the k No presumption of contract because of joint or mutual will Remedy: specific performance or damages, constructive trust Majority: 3rd party beneficiaries prevail |
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Will Substitutes
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Do not require testamentary formallities
owner has complete dominion until death property transfers at death outside probate life insurance, pensions, joint accounts, revocable trust |
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Revocable Inter Vivos Trust
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Most flexible will substitute
Approved in all states Settlor is allowed to reserve -power to revoke during lifetime -income interest -testamentary power of appointment |
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Revocation of Revocable Trust
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must occur by method proscribed in trust instrument
revocation of pour over will does not revoke trust, operation of law may revoke exspouse as beneficiary if trust is silent on revocation, any method will do if settlors intent to revoke is clear |
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Pour Over Wills
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T creates a will that transfers estate to a trust
UPC 2-511: Allows a pour over trust to created and amended after the will is executed and the trust does not have to be funded during T's life No longer incorp by reference or acts of independant significance |
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POD K
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UPC 6-101: K POD designations are valid and nontestamentary
UPC is silent on whether beneficiary must survive in order to take: -Old CL - did not require survivorship -Implication that beneficiary must survive based on antilapse statute UPC 2-804: divorce revokes beneficiary of insurance or pension (not widely adopted) |
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Joint Tenancy Bank Accounts
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Divided equal ownership
Rights of survivorship Severance according to contribution If withdrawal>contribution=gift Types: joint tenant, agency (no ownership or survivorship), POD (survivorship only) |
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Simple Power of Attorney
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Agency relationship to act on behalf of the principal
Agency terminates at the incapacity of the principal |
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Durable Power of Attorney
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Continues throughout the incapacity of the principal until the principal dies.
UPC 5-501 to 5-505. All statutes in all states Must be written authorization, some states require witness or notary Like a trustee except: terminates at death of principal; can't be transferred; at death of agent, POA dies; agent can't make any transfers after principal's death; does not avoid probate; agent does not have title to the assets; law strictly interprets express powers and rarely implies powers |
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Mistakes
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Generally: courts will not correct a mistake in a will
Courts can correct Lawyer Error Rest. 3rd: mistake of law/fact can be corrected if evidence of: 1) mistake; and 2) T's Intent established by C+C evidence |
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Plain Meaning Rule
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No extrinsic evidence if words at face not ambiguous
example: "heirs at law" is unambigiuous |
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No Reformation Rule
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No extrinsic evidence to correct mistake to T's intent
Courts are willing to strike incidental, superfluous, or detail (addresses, middle initials) and will enforce the remaining provision if it is still clear |
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Patent Ambiguities
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Ambiguity on the face of the will
Extrinsic evidence NOT allowed to discover T's intent BUT there is a trend toward allowance |
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Latent Ambiguities
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Ambiguity manifests when terms are applied
Equivocation - two or more fit description (unclear what the correct disposition would be) Nothing fits description perfectly Courts ALLOW extrinsic evidence for latent ambiguities |
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Common Law Lapse
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If devisee does not survive T, the devise lapses (void)
General and Specific Devises fall to residue Residuary Devise goes to heirs by intestacy No Residue to the Residue rule Class Gift: other class members share - if residuary goes to a class, class rule wins Void - devise lapse (to a pet) |
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UPC 2-605 Anti-Lapse Statute
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Gift falls to issue of devisee only if devisee in designated relationship (grandparents or lineal descendant of grandparents)
Applies to specific, general, and residuary Class gift goes to issue of deceased, even if devisee died before execution Antilapse is default - it does not override specific provisions UPC Provides that "if he survives me" or "to my surviving children" is insufficient to deny antilapse UPC 2-706 applies antilapse to POD provisions |
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Ademption
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When T makes a SPECIFIC or demonstrative gift no longer in T's estate
Identity Theory: devise not in estate, gift is extinguished Intent Theory: If devise not in estate, Look to T's intent Majority UPC 1969: identity theory with exceptions UPC 1990 2-606: Intent Theory w/presumption of ademption, specific devisee is entitled to gift if: gift sold, taken under condemnation, unpaid proceeds from fire or casualty insurance, replacement property, monetary gift equal value at time of disposition if consistent with intent Stock Splits: beneficiary takes same % |
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Ademption Escape Routes
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Classify the devise as general or demonstrative rather than specific
Classify the inter vivos disposition as a change is form, not substance Construe the meaning of the will as of the time of death rather than as of the time of execution Create Exceptions |
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Satisfaction of General Pecuniary Devises (Advancement)
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UPC 2-609: no presumption of satisfaction UNLESS a writing expresses intent that gift is satisfied
When a specific gift is given during lifetime, that gift adeems, not satisfied CL: rebuttable presumption of satisfaction |
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Exoneration of Liens
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UPC 2-607: specific devise takes both property and mortgage
CL: Specific devised gift paid off from other assets |
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Abatement
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Not Enough assets to pay off debts and devises
In the absence of contrary indication, gifts abate to pay off debts accordingly 1) Intestate 2) Residuary 3) General 4) Specific and Demonstrative (Pro Rata) |
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Rights of Surviving Spouses
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Social Security: spouse required beneficiary
Pension: spouse required beneficiary Homestead: Spouse can live in marital home Personal Property set aside: $15,000 Family Allowance: reasonable allowance up tto one year if estate is not enough to pay creditors, ends when estate is closed |
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Community Property
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Property acquired by the earnings of either spouse is owned equally by both spouses
property owned prior to marriage is not community property Spouses protected upon death of other by 1/2 ownership interest Also protected by intestate statute and pretermitted spouse statute |
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Common Law Property
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Property acquired during marriage belongs to spouse whose earnings purchased the property
Spouses protected by elective share (typically 1/3): spouse may elect against intestate share as well UPC Elective Share buy in (3% first year, up to 50% after 15 yrs)) Creditors cannot compel election UNLESS gov't |
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Rights of Spouses and Non Probate Transfer Problems
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Tests to determine if non probate transfers should be considered as part of the probate estate for calculation of the elective share
Illusory Transfer: key is amount of control retained by decedent (POD Account) Intent to Defraud: look for subjective intent, some look for objective intent Present Donative Intent: whether T intended a present gift |
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1969 UPC Rights of Spouses (2-202)
Augmented Estate |
Elective Share includes probate estate and the following:
transfer where decedent retains right to control transfer in joint tenancy to someone not spouse transfer where decendent has access to principal transfer w/in 2 years prior to death greater than $3k property given to surviving spouse during life or at death (life ins., pension) Spouse then gets 1/3 of this augmented estate |
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1990 UPC spouse Election 2-202
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Spouse gets increasing % with length of marriage
Augmented Estate: -value of net probate estate -value of decedents nonprobate transfers to others (will substitute type transfers to others in excess of $10k) -value of decedents nonprobate transfers to spouse -value of surviving spouses net assets at decedents death + spouses nonprobate transfers to others (date of death value) |
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Waiver of Elective Share
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Spouses may waive right to elective share in prenup
UPC 2-213: right of election, homestead allowance, exempt property, family allowance, may be wholly or partially waived before marriage by written agreement or waiver signed by surviving spouse -not enforceable if involuntary or unconscionable -Unconscionable if: not fair and fill disclosure of property or financial obligations of decedent did not waive right to disclose in writing did not/could not have adequate knowledge of property or financial obligations of decedent |
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Migrating Couples
General Rules |
Situs controls character of real property
Law of Marital Domicile at time personal property is acquired rules Law of Marital Domicile at time of death controls survivor marital rights |
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Migrating Couples: From Community Property to Common Law
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Surviving spouse gets half of community property AND elective share of common law property
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Migrating Couples: From Common Law to Community Property
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Problem: One spouses owns all, other doesn't have elective share statute to use in CP state
-Quasi CP: property which would be characterized as CP. Surviving Spouse gets 1/2 of quasi CP. No rights in quasi CP until death of spouse. -Real Property is never Quasi CP |
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Pretermitted Spouse
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Spouse married after will execution is not provided for in the will
UPC 2-301: Pretermitted spouse gets an intestate share of portion of property not devised to children of deceased spouse from prior marriage Takes Nothing IF: -evidence that will was made in contemplation of marriage TO THIS PERSON -will expresses intention to be affective notwithstanding subsequent marriage -T provided for spouse by transfer outside will w/intent that such transfer be in lieu of will -entire estate devised to children from prior marriage OR Elective Share from Augmented Estate |
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Pretermitted Child
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Parents may disinherit a child in a will after the child is born, or by codicil after a child is born
UPC 2-302: -If T has one or more children living when will is executed and will divides property to one or more of the then living children, the pretermitted child is entitle to share in those devises (in abating devises court preserves the character to maximum extent) -If T gives all property to omitted childs surviving parent, the child takes nothing -If T had no child living at the time of execution, child gets intestate share, unless devised to surviving parent -if disinherited child predeceases T, children of child are not considered pretermitted. |
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Powers of Appointment Terms
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Donor: creator of trust and POA
Donee/Holder of Power: Person w/POA Objects of Power: Potential receivers of the power Takers in Default: those who take if the donee does not exercise the power General POA: donee can exercise for self or someone else Special POA: donee can't exercise for self |
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POA Ownership
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POA Does not create ownership in the Donee
General POA: property is counted in donees estate for tax purposes Inter Vivos General POA: donee is treated as donor for gift tax purposes if power is exercised in favor of 3rd party and creditors will typically have access to this type of power Testamentary General POA: creditors typically have no access |
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POA Creation
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Only intent to create is necessary
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Release of POA
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-Goes to takers in default
-can contract to release the power -partial release: to convert a general power to a special power, but courts may still treat it as a general power |
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K relating to POA
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Donee of testamentary POA can NOT K for exercise and party will be entitled to restitution
If exercise is consistent with K it is still valid, but donee could not be forced to do so |
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Residuary Clauses and Testamentary POA
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Majority: residuary clause does NOT exercise POA held by testator absent an intent to exercise it
Minority: Residuary does exercise it UPC 2-608: residuary exercises of POA If -power is general and no takers in default OR -General or special power and the will manifests an intention to include the property subject to the power in the residuary (implied) |
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Exercise of POA
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No fiduciary duty to exercise the power
-Failure to exercise general POA goes to takers in default, or property reverts back to donees estate, and added to gross estate of donee for tax purposes -Failure to exercise special POA: goes to takers in default OR if objects defined and limited class, property passes to the objects OR if no defined and limited objects, reverts to donors estate |
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Lapse of POA
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1969 UPC: Antilapse does NOT apply (Unclear) - technically not a gift or a transfer to the donee (because not a devisee) therefore antilapse will not apply.
1990 UPC: Antilapse DOES Apply (Clear) - treats the holder of the power as T and therefore antilapse does apply |
