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55 Cards in this Set
- Front
- Back
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Testamentary Capacity
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Capacity Defined – Over 18 and of Sound and Disposing Mind and memory at Time of Execution. Facts and Circumstances Test – Capacity determined from Fact and Circumstances at time Will Executed. Common Law Rule: T must have known: 1) Nature and Extent of his property, 2) Natural Objects of His Bounty, 3) Nature of Instrument he’s Signing, and 4) Be Able to Understand how these matters relate into a Dispositive Plan (i.e., that these 3 make a will). Delaware Interpretation: Whether T was: 1) Capable of exercising thought, 2) Reflection and Judgment, 3) Knew what he was doing, and 4) How he was disposing of his property. T must have sufficient memory and understanding to comprehend the nature and character of his act.
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Burden of Proving Unsound Mind
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Burden of showing Unsound Mind is on party Contesting the Will. Melson Exception: Burden shifts to Proponent of Will When Challenger establishes that: 1) T was of weakened intellect; 2) Will drafted by person in Confidential Relationship w/ T; and 3) Drafter received a Substantial Benefit. When Burden Shifts, Proponent must establish: 1) T possessed requisite Testamentary Capacity; and 2) Was not Unduly Influenced in the execution of the will
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Will Formailities
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Will must be (1) in Writing and signed by T or some person subscribing his name in his presence and by his express direction; and (2) Attested and Subscribed by 2 Credible Witnesses in T’s Presence
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Self-Proved Wills
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Self-Proving Attestation Clause 1) W’s not required to go to court to formally prove the Will after T’s Death. 2) Done by acknowledgement of T and affidavits of W’s in presence of Notary. i) T must declare that it’s his Last Will and that he willingly signed it as his free and Voluntary Act; ii) W’s state in T’s presence and hearing that the best of their knowledge, a) T is 18 or older b) of sound mind, and c) under no constraint or undue influence. iii) Notarization attached to Will 3) Will may be Self-Proved at execution or any time later
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Revocation of Wills
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Intent to Change not enough. Except as provided below, T must cancel the will, or sign a new will or writing which he attested and subscribed in his presence by 2 W’s. 1) Cancelling 2) Implied Revocation 3) Revocation by Codicil 4) Revocation by Divorce 5) Conditional Revocation 6) DRR 7) Revival of Revoked Wills
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Republication by Codicil
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Codicil amends but does not entirely revoke a prior Will. Requirements: Same formalities as Will. Republishes the Will as of Date of Executing Codicil. Codicil may also validate the terms of a defectively executed Will by incorporating by reference the terms into the validly executed codicil
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Incorporation by Reference: Tangible Personal Property
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Will may refer to a Separate List of Tangible Personal Property not specifically disposed of in the Will. Items are disposed of according to the list. Requirements Written or Signed by T; and Must ID the items of property and ID of Legatees w/ Reasonable Certainty; and May be Before or After the Will and can be Modified. Statutory Presumption that property was solely owned by T if acquired: 1) B/F Marriage; 2) By Gift or Inheritance; or 3) Solely w/ T’s funds
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Incorp. by Reference: Pour-Over Will
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Uniform Testamentary Additions to Trusts Act (UTATA): 1) T may leave property to a Trust; 2) Trust may be established by T during life OR upon his death by devising to the Trustee 3) Pour-Over provision Valid whether Trust subject to amendment or revocation or whether Trust amended after Executing Will. 4) Trust established during life a) Trust may be created b/f or after executing Will by T or someone else 5) Trust Established upon Death of T by Devise to Trustee a) Trust must be Id’d in the Will and b) Terms must be set forth in Written instrument other than i) Will executed before, along with or after the execution of T’s will or ii) In another individual’s Will if that person predeceased T 6) Revocation or Termination of Trust Before T’s death causes the devise to Lapse.
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K to Make a Will
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T may K to make a will, provided the K is not against Public Policy. K law applies a) K must be in writing b) Must cite consideration; and c) Must be witnessed
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Spousal Elective Share: generally
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entitled to 1/3 of the elective estate (minus transfers to spouse by T) – replaces Dower and Curtesy Rights. Elective Estate: the amount of T's gross estate minus deductions allowable for Fed Estate Taxes and not including transfers by T made during T's live w/ spouse's consent. The right to elect is personal to surviving spouse and may only be exercised during her lifetime.
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Transfers Excluded from Elective Estate
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Insurance Proceeds, Beneficial Interest in Trust, and Joint Property, Property passing to Surviving Spouse by Testate or Intestate Succession which has not been disclaimed or renounced.
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Waiver of the Elective Share
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May be waived 1) in whole or in part 2) before or after marriage 3) by written K, agreement, or waiver signed by waiving spouse after fair disclosure, i.e., antenuptial agreement.
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Procedure for Claiming Elective Share
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Petition Court of Chancery and mail or deliver a petition to the personal representative w/in 6 Mos. Of the grant of Letters Testamentary or of Administration. 1) After Petition, Court may extend time for election. After notice and hearing Court determines the amount and orders its payment 2) When petition is filed, Personal Representative must prepare a Fed Estate Tax Return (Form 706) and provide it to the Surviving Spouse by the later of: i) The due date for the 706, including extensions; ii) 15 months from the date of death where no 706 is due; or iii) 3 months from the timely filing of the petition 3) Filing threshold is $2,000,000.
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Other General Aspects of Elective Share
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a) Transfers to the Spouse, including property passed by the will or intestate succession, are deducted when calculating the elective share. b) The elective share claim does not affect the share of surviving spouse under the will or intestate succession UNLESS spouse renounces those benefits in his/her petition. c) Election has no impact on the $2000 surviving spouse allowance d) Liability for the elective share falls on the recipients of T’s Contributing Estate Ratably i) Contributing estate is the portion of the elective estate which was solely owned, and does not include joint property or life insurance payable to anyone other than T’s estate, or Property held in trust.
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Surviving Spouse's Allowance
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Spouse is entitled to receive up to $2000 from the estate. Doesn't affect any other rights of spouse, Spouse must give notice to ROW & personal representative w/in the shorter of 9 mos after death or 6 mos after the granting of letters. Allowance has 1st Priority over all other Creditors.
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Slayer's Act, Generally
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Prevents Murderers from inheriting property from their victims – Slayer treated as though he predeceased victim – whether testate or intestate. Applies to person who pleads Guilty, nolo contendere, or is convicted of Murder 1st, murder 2nd or manslaughter (except extreme emotional distress) regardless of which jx they were convicted in. BFP for value & w/o notice are unaffected. Slayer holds proceeds in trust for those entitled to them under the statute & is liable for any shortfall.
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Slayer's Act, Joint Property
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(JT or TBE) 1) Converted to Tenancy in Common 2) ½ passes to decedent’s heirs, legatees and devisees 3) ½ passes to Slayer 4) Either may seek partition
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Slayer's Act, Future Interests
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Reversion or Vested Remainders held by Slayer: 1) Decedent had Life Estate and slayer holds a reversion or vested remainder and would have obtained the right of present possession upon the death of the decedent 2) Estate passes to the heirs, legatees or devisees of the decedent, excluding the slayer, 3) For the period of what would have been the life expectancy of the decedent if the decedent had not been slain. 4) Pur Autre Vie - remains in the 3rd person's hands for such period. Contingent Remainder or Executory Interests held by Slayer: 1) If the interest would not have become vested or increased if the slayer had predeceased the decedent, the slayer shall be deemed to have so predeceased the decedent. 2) In any other case, the interest of the slayer shall be extinguished.
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Slayer's Act, Beneficiary Designation
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If Slayer is the primary beneficiary in Decedent’s life insurance policy, it passes to contingent beneficiary or to decedent’s estate; If decedent is named beneficiary of insurance on Slayer’s life, it passes to contingent beneficiary or to Decedent’s estate upon Slayer’s death
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After-Born Children
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Child born after execution of a will for whom no provision was made is entitled to the same share the child would have received had parent died intestate. Doesn’t apply if Will provides that “the birth of subsequent children will not affect the will.” 1) Contribution – The intestate estate, if any, is applied first to provide for the after-born child. If it’s insufficient, devisees and legatees must contribute ratably to provide for the child 2) Adoption – An after-adopted child is treated the same as after-born child 3) Posthumous Children – Child born after T’s death, if born alive, takes as if living at T’s Death.
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Marriage After Will
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1) New Spouse entitled to share he/she would have received had T died intestate. 2) Devisees and Legatees contribute ratably. 3) Subsequent marriage does not revoke Will ir T provided for the spouse by “Will or otherwise.”
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Divorce After Will
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Any disposition or appointment of property or fiduciary appointment made by will is Revoked
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Fraud
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Contestant must show: 1) T was deceived by and relied on an intentional misrepresentation of a material fact, and 2) Therefore made a will different in its terms from that which he would have made had he not been deceived. Fraud in the Execution: Someone misrepresents the nature or contents of the will to T. Fraud in the Inducement: Someone misrepresents material facts to T which causes T to execute or modify part of a Will where he would not have otherwise done so. A Fraudulently induced gift can be stricken from the will, but the omission of a gift cannot be put back in, however a Constructive Trust can be imposed.
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Undue Influence
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Contestant must show that such influence was exerted over T’s mind as to take away or destroy his own free will. Elements: 1) Susceptible T; 2) Opportunity to Exert Undue Influence; 3) Disposition to do so for an improper purpose; 4) Actual exertion of such influence; and 5) Result demonstrating its effect. Proponent must establish by preponderance that disability or undue influence existed when Will Executed. Confidential Relationship: (Melson): b/n T and beneficiary, such as power of attorney or other fiduciary relationship merits special scrutiny; Confidential relationship exists when there is special trust or confidence.
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Mistake
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of Extrinsic Fact, i.e., whether a relative is alive. Court will not alter the Will. T’s mistake as to use of a legal word will not invalidate the will. Court will give effect to T’s clear intent and not to the particular term used.
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Intestate Succession: Surviving Spouse
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amount depends on whether there are children or parents of Decedent. No Issue or Parent - Entire Intestate Estate. Surviving Issue of Decedent and Spouse, or Parent – first $50,000 of the intestate personalty, plus ½ of the balance of the intestate personalty, and Life Estate in the Intestate Real Estate. Surviving Issue Not of Spouse – If there are surviving issue, one or more of whom is not issue of surviving spouse, ½ of intestate personalty, plus Life Estate in Intestate Realty.
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Intestate Succession: Other Kin
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Balance of the intestate estate remaining after surviving spouse takes her share (or the entire estate if no surviving spouse) passes as: Issue – If there is any issue of decedent, surviving issue take on a per stirpes basis. That is, the children of a deceased child take their deceased parent’s share by representation. No Issue – if there is not living issue of decedent (no children, grandchildren, etc.) distributed to Decedent’s parents equally or all to the surviving parents. No Issue and No Parents – If no living issue nor parent, distributed to decedent’s surviving brothers and sisters in equal shares, and to the issue of a deceased brother or sister on a per stirpes basis.
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Intestate Succession: Other Kin - No Issue, Parents or Issue of Parents
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if none of the above categories exists, estate distributed to decedent’s next of kin in equal shares and to the issue of a deceased next of kin on a per stirpes basis. Who Constitutes Next of Kin? Civil law method of counting degrees of relationships is used. First, determine who is the nearest common ancestor to the decedent and claimaint, then count the number of generational steps b/n (i) the common ancestor and claimant, and (ii) the common ancestor and decedent. The sum of these two equals the degree of relationship.
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Survivorship Period
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120 hours. Any heir who does not survive T by at least 120 hours is deemed to have predeceased him and may not inherit. If it’s not clear that heir survived the 5 days, presumption that he didn’t. 1) doesn’t apply if it would result in escheat. 2) only applies to intestacy not testacy.
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Determination of Children
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Adopted Children – treated as natural child of his adoptive parents. a) Right to inherit from his natural parents terminates. b) Except for adoption of child by spouse of his natural parent. Illegitimate Children – treated as child of the mother and inherits from and through her. May be considered child of father if: 1) His natural parents got married either before or after his birth, even if attempted marriage is void; or 2) Paternity established during father’s lifetime or after death by preponderance a) Paternity should be addressed first by family court. Posthumous Heirs – if born alive, treated as if it were living at its parent’s death.
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Advancements
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Occurs where decedent gives property to beneficiary during decedent’s life intending it to be an advancement of his inheritance. transfer is only an advancement if: a) declared to be so in a contemporaneous writing of deceased; or b) acknowledged to be advancement in writing by heir. If the lifetime transfer is an advancement, it is treated as part of the estate for determining intestate shares and then subtracted from the amount going to the heir who received it.
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Escheat
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Property escheats to the state if there are no heirs or any known kindred who can take from the estate of the intestate decedent. It can also escheat where the owner has disappeared for more than 5 consecutive yrs, leaving no heirs; or where the property has been abandoned. SOL is not a bar to an action by the state to escheat.
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Escheat: Procedure
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State Escheator (Secretary of Finance) must bring suit in Chancery in the County where the property is located. Notice of the hearing is published and any claimants must file a written statement of their claim. Chancery decides whether property escheated as of date of death or whether to distribute to claimants.
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Escheat: Presumption of Death
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if person is absent from the state for 7 consecutive years and there is not proof made of his life at the escheat hearing, he is accounted as dead. Must be a search and inquiry for the absentee – as the reasonable nature of the case may require.
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Escheat: Disposition of Property
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Personal Property - Escheator issues a writ to Sheriff, who 1) seizes the property, 2) obtains an inventory and appraisal, 3) and sells the property at public auction. Proceeds of the sale returned to Escheator and deposited in State’s General fund. Escheator sends a certified copy of the return to the Sec of Finance and State Treasurer. Real Property - Escheator may 1) lease the property, 2) Keep it for the benefit and use of the state, or 3) Sell it at public auction; His decision is subject to approval by the Governor. If property is sold, the Governor conveys title. Title subject to any Reversion, Remainder, Lease, Rent, Mortgage or encumbrance at time of the hearing. Claims not raised at hearing are forever barred.
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Escheat: Subsequent Claimants
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Claimant who didn’t participate in or receive actual notice of the Chancery hearing has 2 yrs from the date of sale to petition Chancery on his claim. If he’s successful, may recover proceeds of the sale from Treasurer or the property itself. Subject to charges and costs of the escheat proceeding.
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Probate & Estate Administration - Decedent Not Domiciled in DE
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Will may be probated in any county where T had any 1) Goods or chattels, 2) rights or credits, or 3) lands or tenements
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Prob. & Estate Admin.: Production w/in 10 days
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Person w/ custody of the Will must deliver it to Register of Wills w/in 10 days of his learning of the death of T. If not, he’s liable to any person aggrieved for damages sustained by his failure to do so, and subject to civil contempt penalties
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In Terrorem
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A condition in the Will that voids the bequest to anyone contesting the will. Enforceable against beneficiary who contests the validity of the doc, unless: 1) Beneficiary determined to have prevailed substantially, or 2) If the action is to construe the doc, settle a dispute or determine whether the action in question constitutes a contest
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Duties of Personal Representative
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Locate and Value estate assets, Hold and invest them in a prudent manner, Pay debts, expenses and death taxes, and Distribute Decedent’s Estate. Persons Disqualified: Letters will not be granted to 1) Minor 2) Mentally incapacitated person or 3) Person convicted of a crime disqualifying him from taking the oath.
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Estates Under $30K
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Small Estate Affidavit is signed stating that the requirements of the statute are met. Affidavit must state 1) no petition for appointment of a PR is pending or granted; 2) 30 days have elapsed since death; 3) all known debts are paid or provided for; 4) surviving spouse's allowance has been paid, provided for, waived or expired; 5) decedant had no solely owned real estate in DE.
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Order of Preference of Claims
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After payment of all administration expenses, fees and commissions, claims paid in following order: 1) Surviving spouse’s allowance; 2) Funeral expenses; 3) Medical bills and nursing bills for last illness; 4) Wages of servants to laborers; 5) State taxes; 6) Rent for not exceeding 1 year; 7) Judgments; 8) Recognizances, mortgages, and other obligations of record; 9) Obligations and K’s under seal; 10) K’s under hand for payment of money or delivery of goods, wares or merchandise; 11) Other demands. No preference given over claims in the same class.
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Disclaimer
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Who May Disclaim – anyone entitled to take, or their representative if deceased, incapacitated or protected. 1) Disclaimer of Portion – can be a fractional share or any limited interest or estate 2) Spendthrift Provision Does Not Defeat 3) Agents Fiduciary Duty a) Personal representative who disclaims on behalf of decedent has a FD to the estate beneficiaries. Requirements of Disclaimer: Received by Representative w/in 9 months. Irrevocable, Written and Signed. 1) Must be in writing and shall be: a) An irrevocable and unqualified refusal to accept the property or interest; b) Describe the property or interest; c) Declare the disclaimer and extent thereof; and d) Be signed by disclaimant
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Bar to Disclaimer
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Right to disclaim is barred by: 1) Acceptance of the interest or any of its benefits; 2) Transfers of the property or interest; 3) Written waiver of right to disclaim; or 4) Sale of property or interest under judicial sale b/f disclaimer is effected
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Effect of Disclaimer
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Present interest devolves as if disclaimant predeceased T. Future interest devolves as if disclaimant had died b/f the event determining the taking of the interest. Binding on all persons claiming through or under him
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Investments of Fidiciaries
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Fiduciary must act w/ the care, skill, prudence and diligence under the circumstances that a prudent person would do. Nature of Investments – permitted investments are very broad, including options. Warrants, futures, commodities, interests in LP’s and/or LLC’s, Biz Trusts, Joint Ventures, and traditional stocks and bonds. Propriety of an investment decision is determined by what fiduciary knew or should have known at the time of the decision about the inherent nature and expected performance of the investment. Different standards for professional and non-professional trustees. Investment Advisor: Where the instrument names an investment advisor to direct, consent to or disapprove a fiduciary’s investments, the fiduciary’s liability is limited in the absence of willful misconduct or, in the case of actions requiring an advisor’s consent, Gross negligence
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Time for Distribution
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Absent justification under the circumstances, Personal Representative has 1 yr from Grant of Letters to settle the estate. Administrator of Intestate Estate held to Strict Liability standard if he makes distribution resulting in injury to an heir prior to expiration of the Creditor claim period AND Judicial acceptances of the final account; after that time, he’s held to negligence or Due Care Standard. Interest After 1 yr: Pecuniary legacies bear interest at 4% per year beginning 13 months after grant of letters.
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Abatement
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if the estate is insufficient to provide for the bequests made under the will, the order of abatement is determined as follows: a) Property not disposed of by will; b) Residuary bequests and devises; c) General Bequests and devises; and lastly d) Specific bequests and devises. Personal Property is abated b/f Real Property in each class. Contrary Intent – if will expresses contrary order of abatement, or if Testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement listed above, the shares of the distributes abate as may be found necessary to give effect to T’s intent. Property Sold – if the subject of a preferred bequest or devise is sold or used incident to administration, abatement is achieved by adjusting other interests in the remaining assets. Examples: Specific Bequests – “I leave John Doe my entire interest in XYZ Corp.” General Bequests – “I leave John Do the sum of $100,000.” Residuary Bequests – “I leave the residue of my estate to John Doe.”
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Ademption
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When T did not own the property specifically bequeathed or devised at the time of his death, Beneficiary does not receive the bequest. Unless the will provides otherwise, no substitution is made.
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Anti-Lapse Statute
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if devisee of legatee is a grandparent or lineal descendant of a grandparent of T and either 1) is dead at the time of execution, 2) fails to survive T, or 3) is treated as if he predeceased T, the issue of the deceased beneficiary who survive by 5 days take per stirpes.
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Devise of Encumbered Property - Exoneration of Liens
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General Rule – if property is devised subject to a Mortgage, beneficiary is entitled to have it paid out of the residuary (unless will says otherwise). Exceptions: 1) where the will does not direct payment of debts; 2) the devisee is a non-relative; and 3) residuary beneficiary is a relative.
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Increases in Stock Specifically Bequeathed
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if stock is a specific gift, and the stock splits, benny is entitled to all shares produced by the split. Benny is entitled to post-death dividends
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Simultaneous Death
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Joint Tenants and Tenants by Entirety – distributed ½ as if one survived and ½ as if the other had survived. Insurance Policies – proceeds distributed as if the insured survived the beneficiary. Other Situations – property of each distributed as if he had survived.
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Absences; Presumed Decedents
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when death of person is in issue, his unexplained absence fro his last known residence and the fact that he has been unheard of for 7 years may be grounds for finding that he died 7 years after he was last heard of. Exposure to Peril – fact that person was exposed to specific peril of death may be sufficient ground for finding that he died less than 7 years after last heard of. Federal Missing Persons Act – if a written finding of MIA or presumed death is made by military or gov’t personnel it’s prima facie evidence of the death of the individual.
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Absences; Presumed Decedents - Procedure
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regardless of where the presumed decedent lived, an action may be brought in DE for an adjudication that the person is presumed deceased. May be brought by any person entitled under the last will, or under intestate law; by any person entitled under any deed, will or other instrument; by a creditor; or by the Escheator. Notice is given and hearing held – Court may order a search for the presumed decedent. If Court decrees presumed death, administration of the estate may be commenced. The court may also revoke letters and vate the decree of presumed death later. Benny’s other than creditors must give bond b/f receiving their inheritances. Court may accept refunding bonds w/out sureties. If presumed decedent subsequently turns up alive, he is entitled to receive his personal estate from those to whom it was distributed, and he will receive his land back, except from BFP who recorded their deeds.
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