Wills & Trust--Pa Bar

Front 1

Requirements for a Will

Back 1

(1) R must be over 18
(2) T must sign will at logical end
(3) Two attesting witnessess who see T's signing (ONLY when T signs by mark or someone signs for T)
(4) Must dispose of property; nominate a personal representative; revoke or modify another will

Front 2

If Portion of Will Follows T's Signature

Back 2

At Time of Execution: Everything above the signature is valid, everything below signature is INVALID

After Execution: Will is valid but the addition is invalid regardless of location

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Witness-Beneficiary

Back 3

If beneficiary is NOT necessary witness, she can take

Front 4

Self-Proved Wills

Back 4

At time will is signed T and attesting witness, sign self-proving affidavit under oath before notary public.

Front 5

Requirements for Revocation by Physical Act

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(1) Intent to Revoke
(2) A sufficient physical act e.g. burn, torn, canceled, obliterated

Front 6

Will Executed in Duplicate e.g. If T and Witness each signed 2 copies and only 1 Copy has VOID across it:

Back 6

Act of Revocation on one copy REVOKES all executed copies

NOTE:
(1) writing void on back doesn't revoke
(2) writing void on copy of will doesn't revoke

Front 7

Presumptions and the "Lost Wills" Doctrine

Back 7

(1) Will in T's possession form time of execution till death and found mutilated after T's death --> T did mutilation with intent to revoke

(2) Will last seen in possession and control but NOT found after T's death --> T destroyed with intent to revoke

Rebuttable Presumption--Lost Wills
--Proponents have burden of proving contents by "clear and convincing proof"

Front 8

Revocation by Another

Back 8

(1) Done at T's direction (proved by 2 witnesses)
(2) In T's presence

Front 9

Revocation by Codicil (an amendment to the will)

Back 9

Inconsistencies
--where will makes no reference to will but contains inconsistent provisions, they will be read together
--If Inconsistent, then the later document controls and revokes the inconsistencies in the prior will

NOTE: revocation of will on codicil
--revoking will --> revokes all codicils thereto

--revoking codicil --> original will still stands

Front 10

Revocation by Second Will

Back 10

Where there are 2 wills and the second does NOT revoke the first

(1) If Will-2 has no residuary clause: it's presumptively a codicil i.e. implied revocation only to the extent of inconsistency

(2) If Will-2 has residuary clause: revoke Will-1 in its entirety.

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Will to T's Wife Before Divorce
"To My Wife W if she survives me, if not, in trust for my children" T and W divorce, T dies before will is revoked, modified

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Unless will shows that it was intended to survive, the divorce revokes all provisions in favor of ex-spouse i.e. construe will as if ex was dead

NOTE:
--If they remarry, back in will
--Ex-spouse cannot take as beneficiary T's revocable inter vivos trust or life insurance policy

Front 12

Modifications Subsequent to Execution of Will

Back 12

If canceled by physical act and the intent, the interlineations CANNOT be given effect UNLESS
(1) After the change, T re-executes the will OR
(2) T republishes the will by codicil

Front 13

Dependent Relative Revocation (DRR)

Back 13

Disregard a revocation which is based on, induced by, premised on a mistake of law or fact IF the crt is satisfied that BUT FOR the mistake, T would NOT have made the revocation

When Gift is Larger than Original: Apply DRR and give them back the original amount

When Gift is Smaller than Original: Beneficiary gets nothing

Front 14

Requirements for Incorporation of Extrinsic Document by Reference

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(1) Writing must be in existence at time will was executed
(2) Will must manifest an intent to incorporate the document
(3) Will must "describe the writing sufficiently to permit its identification"

Front 15

Doctrine of Independent Significance

Back 15

Acts having an independent lifetime motive may impact on the will as well

Front 16

Lapse

Back 16

When a beneficiary named in the will dies before T, the gift lapses and falls to the residuary estate UNLESS there is a state anti-lapse statute.

PA anti-lapse statute: the predeceasing beneficiary is T's descendant, sibling, or child of a sibling (i.e. nephew, niece) who leaves issue who survives T.

EXCEPTION:
A gift will still lapse if the lapsed bequest would pass to T's spouse or issue

Front 17

Class Gift Rule -- Lapse

Back 17

When there is a gift by will to a group of persons and some class members predecease the T and the lapse statute does NOT apply --> surviving class members take

Front 18

Beneficiary of Residuary Estate Predeceases T

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If the residuary estate is devised to 2 o more person and the gift to one of them fails, the surviving residuary devises take the entire residuary estate in proportion to their interests in the residue

BUT: anti-lapse statute still applies if residuary devise is a child, sibling, or niece/nephew of T

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Types of Devises

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(1) Specific Devise or Bequest: The gift and devisee are specific and identifiable as of the date of T's death e.g. "I devise Blackacre to my son John"

(2) Demonstrative Legacy: Pecuniary and gives instructions to where the $ to fund the gift comes from i.e. "I give $500 to Amy, to be paid out of the proceeds of sale of my Acme stock"

(3) General Legacy: A gift of a pecuniary amount

(4) Residuary Bequest: "I give all the rest, residue, and remainder of my property to my wife, Agnes"

(5) Intestate: where there is a partial intestacy for some reason

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Abatement

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Money needed to pay expenses an claims raised by selling intestate property, the residuary estate, general gifts, and finally demonstrative and specific gifts.

Qualification: If you get to the point of selling specific gifts, specific gifts to spouse and children abate last

Front 21

Ademption

Back 21

When the subject matter of a specific gift is not owned by T at death, the gift in the will is addeemed i.e. beneficiary takes nothing.

PA: T's intent is immaterial/inadmissible BUT
(1) Will executed before T declared incompetent:
--If specifically devised property is sold by the conservator, or if condemnation award or insurance proceeds relating to property are paid to conservator, the specific devisee has a right to a general legacy equal to the new sales price, condemnation award, or insurance proceeds UNLESS T's disability has been adjudicated to have ceased and T survives adjudication by one year
OR
(2) A specific devisee has the right to the remaining specifically devised property AND
(a) any balance of purchase price owning from purchaser wen K is still executor at T's death
(b) any amount of condemnation award for taking of property, to the extent unpaid
(c) any amount of fire or casually insurance proceeds unpaid at death

Front 22

Doctrine of Increase

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Stock Dividends and Stock Splits: specific devisee takes "any additional or other securities of the same entity owned by the T bc of action initiated by the entity, EXCLUDING any acquired by exercise of purchase options

Front 23

Merger

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A specific devisee is entitled to securities of another entity owned by the T as a result of merger, consolidation, reorganization or similar acts

Front 24

Indebtedness

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Specific devisee of encumbered property is NOT entitled to have the encumbrance paid out of the residuary estate unless the will shows such intent

NOTE: a general direction in will to pay debts does NOT show such intent

Front 25

Latent Ambiguity

Back 25

Extrinsic evidence is admissible to clear up a latent ambiguity. But, in the absence of clarifying evidence, it will lapse and pass to the estate

Front 26

Plain Meaning Rule

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you CANNOT disturb the plain meaning of the will with extrinsic evidence

Front 27

Intestacy Rules in PA

Back 27

Decedent survived by spouse:
(1) but no issue or parent: S gets entire estate
(2) S + Parents, but no issue: S gets first $30,000 + 1/2 excess
(3) If S + issue:
(a) Issue are also issue of S: S gets 1st $30,000 + 1/2 of excess
(b) Issue are NOT issue of S: S gets 1/2 estate

If No Spouse:
--issue
--parents of survivor
--parent's issue i.e brother, sister

PA Rule: Issue, whether of decedent, decedent's parents or others take per capita if all are same degree of relationship; otherwise they take by representation

Front 28

Children Out of Wedlock and Stepchildren

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Wedlock
(1) Can inherent from mother
(2) Cannot inherit from father UNLESS
(a) Marriage
(b) F holds child out to be his or receives him into his home or provides support
(c) Clear and convincing evidence of paternity

Stepchildren: cannot inherit from step parents if no biological or legal relationship

Front 29

Adopted Children

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Full inheritance rights

NOTE:
(1) Can't inherit from biological mother

(2) If children is adopted by a stepparent, if another kin of the child's biological parent dies intestate, the child can inherit from them ONLY IF that other relative mains a continuing family relationship with the child

Front 30

Simultaneous Death Act

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When passage of title to proeprty depends of priority of death and there is insufficent evidence that the person have died otherwise than simultaneously:
(1) Wills: as though T survived; as though beneficiary predeceased i.e. lapse
(2) Insurance: As thouse Insured survived; as though beneficiary predeceased --> secondary beneficary
(3) JT with right of survivorship: 1/2 as though tenant A survivced and 1/2 as though tenant V survived --> passes through each one's estates
(4) Intestacy:
(a) 120 Hour Rule: you do not survive somone unless its been 120 hrs (5 days) --> treated as predeceased
(b) Gift to one descendant during life with promise to others: NO gift of advancement unless: (1) declared as such in a contemporaneous writing by the decedent or (2) acknowledged as such in writing by the heir
(3) Lifetime gift will be treated as having been made in prepayment of a beneficiary's interest under a will if the donor's acts and declarations show that this was D's intent

Front 31

Rights of Surviving Spouse: Time of Marriage and Will

Back 31

Pretermitted Spouse: where the marriage was after execution of will, the pretermitted spouse has right to intestate share i.e. never less than 1/2 UNLESS
(1) the will gives S a greater share OR
(2) it appears form the will that it was executed in contemplation of marriage

Front 32

Rights of Surviving Spouse: If S claims an "Elective Estate:

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Equal to net testamentary estate (over and above funeral expenses, etc.) PLUS 3 types of lifetime donative transfers:
(1) Transfers with retained power to revoke, consume, invade, or dispose of principal from his own benefit
(2) Decedent's undivided interest in property awarded in right of survivorship form
(3) Transfers in excess of $3,00 made by the decedent with a year of death

Front 33

Elective Share

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1/3 of elective estate but in lieu of all other interest S has in D's property whether passing under the will, by nontestamentary transfer OR to the extent that the S has in property or in proceeds, property which the D gave the S during life

Alternative: S may elect to keep what's left under D's estate plan but if so, must reduce the elective share by an equivalent amount i.e. can't double dip

Waiver: right to take elective share can be waived in writing after full disclosure

Front 34

Pretermitted Children

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Child born or adopted after will was executed, and entitled to take intestate estate UNLESS it appears from the will that omission was intentional

Front 35

Intentional Killing

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A person who feloniously and intentionally kills the decedent is NOT entitled to any benefit from D's estate by will, by intestacy, under elective share, life insurance contract or otherwise

Front 36

Desertion

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Inheritance and elective share rights of H or W are forfeited if H or W willfully and maliciously deserts or otherwise fails to support his/her spouse for a year of more

Front 37

Will Contract

Back 37

A contract to make a will can ONLY be shown if:
(1) The terms are in the will itself; or
(2) The terms are set out in a separate writing; or
(3) The will refers to the K and extrinsic evidence proves its terms

NOTE: the mere existence of mutual wills does NOT imply a contract not to revoke them

Front 38

Probate of Will & Appointment of Personal Representative

Back 38

A will is not effective unless it is admitted to probate

PR: appointed to manage the estate during administration, the PR is issued letters as evidence of his authority to administer the estate

Executor: a PR nominated under D's wills
Administrator: A PR of an intestate descendant
--eligibility: banks/trust co or 18 yro who hasnt been charged with vol. manslaughter or homicide in connection w D's death
--priority: person nominated in will, those entitled to residue, heirs, creditors.
--bond requirement: unless waived in will or excused by crt. NOTE: Pa--no bond for sole beneficiary under will or D's sole hier-in-law
--duties: collect D's assets, pay off creditors, distribute the balance to those entitled to it

Front 39

Publication of Grant of Letters

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PR must publish notice of the grant of letters in one legal journal and one newspaper of general circulation

Front 40

Powers of PRs

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A PR has all powers necessary to thepropert adminstration of the estate and may act w/o crt authoruty in the exercise of those powers
EXCEPTIONS:
(1) To sell specifically devised real property
(2) To continue the operation of the D's unincorporated business

Front 41

Creditors Claims--Order of Payments

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1. expenses of administration
2. funeral expenses and the cost of medicines, medical expenses, hospital services
3. cost of gravemaker
4. Ds rent for 6 months before death
5. all other claims

Front 42

Standing -- Will Contest

Back 42

Any person whose share of the estate would increase if the will were invalid
NOTE: if PR wants to join contest, must resign

Front 43

Lack of Capacity -- Will Contest

Back 43

Evidence of T's (lack of) capacity must be related to the circumstances at the time the will was executed.

Burden of proof on contestants to show:
(1) Did T understand the nature of the act he was doing?
(2) Did T know the nature and character of his property?
(3) Did T know the natureal object of his bounty?
(4) Did T understand the disposition he wished to make?
If no --> lack of capacity

Front 44

Insane Delusion -- Will Contest

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Where T is otherwise sane, but the will is a product of an insane delusion, having no basis in fact or reason which T adheres to against all reason and evidence

Front 45

Undue Influence -- Will Contest

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Burden on contestants to show:
(1) Existence and exertion of the influence
(2) Effect is to overpower the mind and will of T
(3) The result is a will that would not have been executed BUT FOR the influence

Presumption: a principal beneficiary under the will who stands in a confidential relationship to the T draws or procures the execution of the will

Front 46

"No contest" Clause -- Will Contest

i.e. "any person who contest this will shall forfeit his legacy"

Back 46

If a person contest will and wins --> still can take

If contest and loses --> there clause will NOT be enforced against the person so long as he had probable cause for contesting will i.e. still get original share