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112 Cards in this Set
- Front
- Back
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Is there a right to transfer property at death?
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Yes. A will can devise property owned by the testator at death.
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What is Dead Hand Control
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decedent conditions a gift to a beneficiary upon a beneficiary behaving in a certain way
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What are invalid conditions for Dead Hand Control
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1. Absolute restraints on marriage; religion requirement; encouraging separation and/ or divorce; promoting family strife; property destruction directive
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What is probate
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property that passes through probate under the decedent’s will or by intestacy. Probate is the default, it performs 3 functions (1) transfers title to new owners, (2) protects creditors, (3) ensures decedent's property is given to those intended
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Is a probate required?
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No one is under an affirmative duty to offer a will for probate unless requested to do so by an interested person (UPC §2-516)
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What is a nonprobate will?
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Property that passes outside of probate under an instrument other than a will
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What are examples of nonprobate wills
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Joint Tenancy
Life Insurance Legal Life estates and remainder Inter Vivos Trusts |
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Gift Tax
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tax imposed where donor makes a taxable intervivos gift
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Estate Tax
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Tax imposed on a decedents taxable estate at the time of the death
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What is Intestacy
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the distribution of an intestate decedents probate property
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Intestacy - Surviving Spouse
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a. 100% if no surviving issue/parents/ issue of parents
b. 50% if 1 child/ issue of 1 deceased child OR no child but parents/ issue of parents c. 33% if > 1 child (alive or deceased w/ issue) |
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Intestacy - if the property passes the surviving spouse
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(1) Surviving spouse, (2) Issue, (3) Parents, (4) Issue of parents, (5) Grandparents, (6) Issue of grandparents, (7) Next-of-kin, (8) Escheats to the statute
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Intestacy - what happens to community property
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a. Upon 1st spouse’s death, community property is immediately divided: 50% to surviving spouse, 50% to deceased spouse. Deceased’s 50% goes into probate.
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What is the best distribution scheme for a surviving spouse
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UPC
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CPC 6401
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Scheme for distribution under intestacy
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Who is a surviving spouse
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Someone you have a valid marriage ceremony with.. can be common law marriage (not in Cal)
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Simultaneous Death
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1. Uniform Simultaneous Death Act (USDA): where there is no sufficient evidence as to who survived whom, the party claiming a right to take is to be treated as having predeceased the decedent
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Intestacy Scheme - Transfers to Descendants
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1. If decedent’s issue is predeceased, issue’s children take in their place
2. If issue takes, his children do not |
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What is per stripes for transfers to descendants
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first division of decedent’s property is always made at the 1st generation of descendants (whether or not there are any live takers). Dropping shares drop by bloodline.
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What is per capita w/ representation
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first division of decedent’s property at 1st generation where there is a live taker. Dropping shares drop by bloodline.
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What is Per capita at each generation
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first division of decedent’s property at 1st generation where there is a live taker. The dropping shares are combined & distributed equally among the eligible takers at the next generation.
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What is Negative Disinheritance under Common Law
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disinherit only be executing a valid will, leaving nothing to pass through intestacy (depriving heir of any chance of taking)
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What is Negative Disinheritance under UPC
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disinherit by executing valid will & expressing such an intent (even if some of the property will be passing through intestacy)
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What is a collateral relative?
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the decedent’s parents & their other issue are 1st-line collaterals, grandparents & their other issue are 2nd-line collaterals, great-grandparents & their other issue are 3rd-line collaterals, & so on
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What is a half-blood?
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relatives that share only 1 common parent
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Can half bloods inherit under Common Law ?
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No. only whole blooded relatives can
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Can half bloods inherit under UPC ?
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Yes. Same as whole bloods
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Who qualifies as a descendant or an issue under the common law?
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There must be a parent child relationship
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What qualifies as a descendant or an issue under the UPC
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More liberal, parent needs to openly treat child as his own & not refuse to support child before parent can inherit from child
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Does Adoption by stepparent affect inheritance rights?
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No. Adoption establishes parent-child relationship b/w adopting stepparent & child
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Equitable adoption
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Equitable adoption should apply any time the child is led to believe that he was adopted (promotes equity)
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Can a child born out of wedlock inherit under the common law?
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No. Child could not
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Can a child born out of wedlock inherit under the UPC?
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automatically has a parent-child relationship w/ mother; inheritance from & through father requires proof of paternity. But, you can show i. Presumption that father is man that: (1) is married to the mother at time of birth, (2) attempts to marry mother at birth, (3) attempts to marry or does marry after birth, (4) attempts to be the father of the child (e.g. I want to be the father, cares for child as his own)
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What about a PGD baby? Can they inherit?
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This is a child conceived while father alive, but born after he dies. As long as W gives birth w/in 280 days of H’s death, there’s a rebuttable presumption that child is natural child of H
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What is an advancement?
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ter vivos gift a decedent made to an heir
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Does an advancement count against the heir's share of a decedents probate estate under common law?
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There is a rebuttable presumption that it counts against a childs share of parents estate. the intervivos gifts are added back into the total of intestate estate to divide equally among all children. if the gift is larger than the hotchpot (total) then he does not need to give it back
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Does an advancement count against the heir's share of a decedents probate estate under UPC?
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inter vivos gifts do not constitute an advancement unless a writing indicates that the donor intended the gift to constitute an advancement
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What if you kill the decedent for probate property?
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you cannot take the profit
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What happens if you commit elder abuse for probate property?
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Taker is barred from taking if taker is guilty of misconduct short of homicide
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What happens if a party disclaims his share of a will?
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Passes through them as if they are legally dead
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Does a valid will require testamentary capacity?
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Yes. T must have the requisite capacity at the time he performs testamentary act—execute or revoke a will
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What is a sound mind for testamentary capacity?
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→ requires that T have the ability to know (a) the nature & extent of his property, (b) the natural objects of his bounty, (c) the nature of the testamentary act he is performing, & (d) how all of these relate together to constitute an orderly plan of disposing of his property
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What is an attorney's duty w/r/t T's capacity?
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Attorney has duty to asses T’s capacity before drafting will, & is authorized to rely on his own judgment
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What is an insane delusion
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false sense of reality to which a person adheres despite all evidence to the contrary
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What is undue influence
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“substituted intent”—when 1 influences T to the extent that the will expresses the influencer’s intent, not T’s intent (i.e. mental/ emotional coercion)
a confidential relationship coupled w/ suspicious circumstances are sufficient to raise an inference of abuse of the confidential relationship |
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Can a lawyer draft an instrument that makes a gift to himself?
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Not usually
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What is a no contest clause?
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if a beneficiary under will contests the will, he loses whatever he is taking under the will
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Is a no contest clause enforceable under the UPC?
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Maybe. no contest clause is unenforceable if there is probable cause to support the will contest, whatever the nature of the contest
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Is a no contest clause enforceable under the CPC?
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NO. no contest clauses are unenforceable
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Fraud in the inducement
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a person misrepresents a fact to T for the purpose of inducing T to execute a will w/ certain provisions, or for the purpose of inducing T to revoke a will
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Fraud in the execution
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a person misrepresents the nature a document T is signing
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Tortious Interference w/ an Expectancy
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Intended beneficiaries can sue wrongdoers for tortuous interference w/ an expectancy
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What are the requirements for a properly executed will?
To execute his will, greg Wanted Serious Waffles. |
Writing, Signing, Witnessing
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What type of compliance with formalities does the common law require for executing wills?
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100% NO ROOM FOR MESSING AROUND
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What type of compliance with formalities does the UPC require for executing wills?
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substantial compliance or harmless error
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Executing a will, what is required by the signature?
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anything T intends. he does not have to sign his name in full. you can use an x
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Can another person besides the T sign a will?
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Yes. If person signs T’s name, in T’s presence, at T’s express direction
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Witness requirements for execution of a will. What is the line of sight test?
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you have to see the signature
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Witness requirements for execution of a will. What is the Conscious presence test
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presence is defined by whether the party, whose presence the act has to be performed, can tell from sight, sound, & general awareness of the events that the required act is being performed
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Witness requirements for execution of a will. What is the requirement under UPC
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Only required that T sign/ acknowledge his will in presence of witnesses. Does not require that the W sign in front of T
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What is the order of signing the will for execution under Common Law?
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T has to sign before either witness signs
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What is the order of signing the will for execution under modern trend?
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witness may sign before T signs/ acknowledges, as long as all parties sign the will as part of 1 execution ceremony NOTE the UPC follows the Common Law. But is also subject to a harmless error test.
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Does a witness have to be disinterested?
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Yes. i. If witness has a financial interest under the will, he has a conflict of interest in assessing whether T had requisite capacity
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What are the remedies if the witness is not disinterested?
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(1) invaldiate
(2) purging approach (3) rebuttable presumption of misconduct |
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What is the purging approach for a interested witness?
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if amount witness is taking is greater than how much he would take if will were not valid, that is purged
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What happens under the UPC if a witness is not disinterested?
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UPC abolishes interested witness doctrine b/c it does more harm than good. If misconduct is suspected, it can be litigated through undue influence/ fraud doctrines
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What is a swapped will?
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a. 2 individuals (typically spouses) have “mirror” wills prepared that have parallel testamentary schemes, & accidentally sign one another’s
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For a swapped will what is the misdescription doctrine
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court uses extrinsic evidence to determine extent of misdescription & then strikes the words that constitute misdescription
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For a swapped will what is the which will doctrine
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the will that T actually signed into court; it’s worst to offer a will that’s not signed by T, then one that doesn’t have T’s intent
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Scrivener’s error doctrine
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Same as fraud—if attorney intentionally swaps the wills, that represents fraud in the execution
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To execute a will under the UPC you need the following requirements?
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(1) a writing (2) signed (3) by the testator or (4) in the testator's name by another (5) in the testator's conscious presence (6) and by the testator's direction; and (7) signed (8) by at least two individuals, each of whom (9) signed within a reasonable time after he [or she] witnessed either (10) the signing of the will or (11) the testator's acknowledgment of the will
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Do you need to sign at the end of a will's execution under the UPC?
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No, UPC does not require subscription
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Does UPC allow for another person to sign a will
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UPC expressly allows for another to sign for T where he signs in T’s presence, at T’s direction
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Does the UPC require separate witnesses for execution of a will?
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No. Witnesses need not be present at same time, even when T signs/ acknowledges
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What is the compliance with formalities standard for UPC?
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1. Clear & convincing evidence shows that T intended the document to constitute his last will & testament, and
2. Clear & convincing evidence shows that the will substantially complies w/ the statutory formalities |
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Can a notary sign a will under the UPC
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a. A single notary can serve the functions underlying statutory formalities (evidentiary, protective, ritualistic) just as 2 witnesses can
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What is a holographic will?
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a will that has been handwritten & signed by T
the requrirements are that it is in T's handwriting, signed, and dated. there does not need to be wintesses |
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Does the UPC recognize holographic wills?
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Yes.
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Does the UPC require a holographic will to be dated?
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No
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What type of compliance is required for holographic wills
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some argue strict compliance. but others have more liberal approaches
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How can T revoke/amend a will?
All Whores Protect Llamas |
Through an Act, Writing, Presumption, or Law
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What type of acts constitute revocation?
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physical act that is destructive in nature, burning/tearing. the physical act must be performed on the original
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What type of act is required at common law for revocation?
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destructive act must affect some part of the written portion of will
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What type of act is required under the UPC for revocation?
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destructive act must only affect some part of the will
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What type of writing is required for revocation?
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Subsequent writing can revoke a will but the writing must qualify as a valid will and meet formalities so no holographic
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What is revocation by inconsistency?
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subsequent will disposes of T’s property in a way that’s inconsistent w/ prior will b/c the later expression controls
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How can a will be revoked by writing?
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1. Will may be revoked by subsequent writing expressing intent to revoke, but only if subsequent writing qualifies as a valid will
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What happens if a subsequent will completely revokes the prior?
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It becomes T's sole will
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What happens if a subsequent will only partially revokes or amends ?
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It becomes a codicil
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Does revocation of a codicil revoke the underlying will?
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No.
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Does revocation of the will revoke the underlying codicil
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Yes.
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What has to occur for a revocation by presumption?
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will must be last in T’s possession & cannot be found following T’s death, rebuttable presumption arises that T revoked the will by act
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What is the concept of duplicate original?
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multiple originals of the same will, each properly executed
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What happens when there is a partial revocation by physical act?
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Jx are split. If a jx does not recognize it, then they ignore the act and give effect to the original will?
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What happens when there is a partial revocation by physical act under the UPC?
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The will should be read w/ partial revocation regardless of where that means the revoked gift goes
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What is a dependent relative revocation?
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If valid revocation was based on mistake (of fact or law) & if T would not have revoked if T knew the truth, it’s possible to still probate it
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What is DRR
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Dependant Relative Revocation
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What are the circumstances that DRR - revocation by act applies?
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T revokes original will by act, on belief that new will/ codicil is valid, when it’s actually invalid
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What are the circumstances that DRR - revocation by writing applies?
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revocation is in writing, but is based on a mistake. It requires (1) mistake be set forth in writing & (2) mistake be beyond T’s knowledge b. e.g. T revokes gift to D writing: “I hereby revoke by gift to D in light of her marriage to F.” D didn’t marry F. Mistake is set forth in writing, & it’s beyond T’s knowledge—no reason to believe T should have known whether D was really married.
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What is the concept of revival under execution of a will?
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1. When T executes valid will #1, then executes valid will #2 that revokes #1, and thereafter revokes #2 intending to give effect to #1.
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How does revival of a will operate under the English Approach?
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Wills are not effective until T dies, so T can change until death
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How does revival of a will operate under the American Approach?
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revoking will #2 doesn’t automatically revive will #1
Minority view is that T must re-execute will 1 to revive it |
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How does revival of a will operate under the UPC?
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all T has to do to revive will #1 is intend to revive will #1
Proving intent to revive: depends on how T revoked will #2. If revoked by act, courts take most evidence of T’s intent—even T’s own alleged statements. If #2 was revoked by writing a new will (#3), intent to revive will #1 must be set forth in new will (#3) |
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What is the concept of revocation by operation of law?
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1. Divorce automatically & irrebuttably revokes all provisions in T’s will in favor of ex-spouse, unless the will expressly provides otherwise (UPC §2-804)
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What is Republication by Codicil?
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executing a codicil to a will re-executes/ republishes the underlying will therefore a codicil automatically re-dates the underlying will
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How do you incorporate by reference?
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A will can incorporate by reference a document that was not executed w/ formalities IF:
a. The will expresses the intent to incorporate the document, b. The will describes the document w/ reasonable certainty, AND c. The document being incorporated was in existence when the will was executed |
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Can typed material incorporated by reference into a holographic will?
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Yes
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Can typed material incorporated by reference into a holographic will?
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Yes
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What are acts of independent significance?
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A will may dispose of property by reference to acts outside the will as long as the referenced act has significance independent of its effect upon T’s probate estate
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What are acts of independent significance?
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A will may dispose of property by reference to acts outside the will as long as the referenced act has significance independent of its effect upon T’s probate estate
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What are temporal perspectives?
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Doctrines such as (1) republication by codicil, (2) incorporation by reference, & (3) acts of independent significance have “temporal” perspectives
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What are temporal perspectives?
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Doctrines such as (1) republication by codicil, (2) incorporation by reference, & (3) acts of independent significance have “temporal” perspectives
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