Pa - Wills

Front 1

[Requirements]

What are the 4 basic requirements for a will

--

Back 1

-Intent
-Capacity
-Formailities
-Disposition of property (Can't use precatory language)

Front 2

[Execution]

What are the will formalities in PA?

1

Back 2

-18+
-Writing
-Sign at end (can be X or signed by someone else for him)
-Dispose of Property (or revoke a prior will)
-Nominate a Personal Representative

Front 3

[Execution]

When are witnesses required in PA?

1

Back 3

Only when T signs with an X or someone signed for T

Front 4

[Execution]

What effect if clause after signature?

1

Back 4

Clause after signature VOID (rest okay)

Front 5

[Execution]

What effect if clause added after witnesses signs?

1

Back 5

Added clause is VOID (rest is okay)

Front 6

[Execution]

What are holographic wills?

1

Back 6

Wills on T's own handwriting and signed by T w/o any witnesses

Front 7

[Execution]

Are holographic wills valid in PA?

1

Back 7

Yes -- ANY document signed by T himself will qualify w/o witnesses

Front 8

[Execution]

What effect if interested witness subscribes to will (interested b/c witness takes in will)

2

Back 8

NO effect -- she is supernumerary b/c no witnesses needed in PA

Front 9

[Execution]

What is a self-proved will?

2

Back 9

Will w/ affidavit attached signed in front of notary WITH TWO WITNESSES

Front 10

[Execution]

What's the effect of self-proved will?

2

Back 10

It's conclusively presumed that the formalities of execution were met

Front 11

[Revocation]

Requirements for revocation by physical act

2

Back 11

-Intent to revoke
-physical act that TOUCHES some of the language of the will

Front 12

[Revocation]

Effect if only one of many original copies of a will are revoked by physical act

2

Back 12

Destruction of one revokes ALL

Front 13

[Revocation]

Presumption if destroyed will is found in T's home after death

2

Back 13

-Presumed that T had intent to revoke, IF will was always in T's possession/control

Front 14

[Revocation]

Presumption if will NOT found in T's home after death

2

Back 14

-Presumed revoked, IF will was always in T's possession/control

Front 15

[Revocation]

How to revoke by proxy (someone else's destruction)

3

Back 15

-Destruction at T's direction
-In T's presence
-T's direct in front of TWO WITNESSES

Front 16

[Revocation]

What is the lost will requirement?

3

Back 16

When a will is missing the proponents have the burden of proving by CLEAR and CONVINCING evidence

Front 17

[Revocation]

How does a subsequent will revoke an earlier will if it does not do do explicitly?

3

Back 17

Second will HAS a residuary clause = it's PRESUMED that the second will was meant to fully revoke the first

Front 18

[Revocation]

How does a subsequent will ADD to the terms of an earlier will?

3

Back 18

A will be be treated as a codicil if it does NOT have a residuary clause

Front 19

[Revocation]

Effect of revocation of a will

4

Back 19

Revocation of a will revokes all subsequent codicils

Front 20

[Revocation]

Effect of divorce on will

4

Back 20

Treated as pre-deceased

Front 21

[Revocation]

Effect of FILING of divorce on will WHEN THE TESTATOR DIES after the filing of divorce but before divorce is finalized

--

Back 21

If JUST filed, no effect

IF fact for divorce established (or affidavits for no-fault) THEN spouse will be treated as pre-deceased

Front 22

[Revocation]

Effect of RE-marriage on will that had wife in it (then divorce and re-marriage)

4

Back 22

REVIVES the gifts

Front 23

[Revocation]

Effect of divorce on (1) Trust, and (2) Life insurance

4

Back 23

1 - Treated as pre-deceased
2 - ALSO treated as pre-deceased if insurance policy made in 1992 or after

Front 24

[Revocation]

Effect of permanent separation

4

Back 24

NOTHING

Front 25

[Revocation]

Can a person revoke a SINGLE LINE by act?

4

Back 25

Yes

Front 26

[Revocation]

Options to give effect to new line to add to will

4

Back 26

-Re-execute will
-Re-publish by codicil

Front 27

[Revocation]

State rule of DRR

4

Back 27

Dependent Relative Revocation acts to:
-Disregard a revocation that is pased on a mistake of law or fact
-IF, BUT FOR the mistake, T would not have made the revocation

Front 28

[Revocation]

Important point of DRR

5

Back 28

It's a rule of SECOND BEST result -- never get what T really wanted

Front 29

[Revocation]

Effect if a second will is destroyed -- does it revive the earlier will?

5

Back 29

NO -- BUT, DRR may apply

Front 30

[Incorporation]

Test for incorporating an extrinsic document by reference

5-6

Back 30

-Extrinsic doc. must exist at time will was executed
-Will's intends to incorporate
-Will sufficiently describe the extrinsic doc.

Front 31

[Incorporation]

What is independent significance, and what is the test?

6

Back 31

Acts having an INDEPENDENT LIFETIME MOTIVE may may allow for circumstance to change in time

Ex: I give my car to X (but change car since I write my will) = okay

Front 32

[Lapse, Abatement, Ademption, Increase]

Test to use in the case of lapse (includes test)

6

Back 32

-When beneficiary in will dies prior to T, the gift lapses
-UNLESS the gift is savved by PA's anti-lapse statute that applies to T's
---Chidren
---Grandchildren
---Siblings
---Children of siblings
who leave issue

EFFECT: The ISSUE of the deceased beneficiary take in the beneficiary's place

Front 33

[Lapse, Abatement, Ademption, Increase]

Exception to the lapse statute

6

Back 33

IF an otherwise anti-lapse-applicable beneficiary pre-deceases, gift will STILL be allowed to lapse if the will RESIDUARY goes to T's own spouse or issue

Front 34

[Lapse, Abatement, Ademption, Increase]

Class gift rule

7

Back 34

Anti-lapse does NOT apply to class members that pre-decease -- only those surviving at T's death take

(ex: to my friend's kids ... but only 1 friend's kids survive)

BUT NOTE: anti-lapse DOES apply if the entire CLASS is made of persons covered by the lapse statute

Front 35

[Lapse, Abatement, Ademption, Increase]

Effect if failure of party of residuary (ex: Residuary to A, B, C & A pre-deceases)

7

Back 35

Effect is the remaining people still surviving in the residuary take in proportion to their interests in the residue

Front 36

[Lapse, Abatement, Ademption, Increase]

Effect if failure of party of residuary, where one or more parties is covered in laps statute
(ex: Residuary to A, B, Sister C & C pre-deceases, leaving C, Jr.)

7

Back 36

Then Anit-lapse DOES apply, and save's C Jr. -- she gets her 1/3 share of the residuary

Front 37

[Lapse, Abatement, Ademption, Increase]

What are the TYPES of devises?

7-8

Back 37

Specific devise
Demonstrative legacy
General legacy
Residuary
Intestate

Front 38

[Lapse, Abatement, Ademption, Increase]

What type of devise is "my car"?

7

Back 38

It's SPECIFIC b/c wording only takes effect at death of T

Front 39

[Lapse, Abatement, Ademption, Increase]

What is a demonstrative legacy?

8

Back 39

Gift of $ with funding instructions

Front 40

[Lapse, Abatement, Ademption, Increase]

What is a general legacy?

8

Back 40

Plain gift of $

Front 41

[Lapse, Abatement, Ademption, Increase]

What result if T's estate doesn't have enough $ to pay off all the devises made?

8

Back 41

Abate (Abatement) gifts from lesser-important devises

Front 42

[Lapse, Abatement, Ademption, Increase]

What is the order of abatement?

8

Back 42

Take out devisioes to:
-Intestate
-Residuary
-General
-Demonstrative
-Specific to most people
-Specific TO SPOUSE or CHILDREN

Front 43

[Lapse, Abatement, Ademption, Increase]

What is the term when a gift is no longer available to a beneficiary?

8

Back 43

Adeemed/Ademption

Front 44

[Incorporation]

What type of devises are adeemed?

8

Back 44

Only specific gifts

Front 45

[Lapse, Abatement, Ademption, Increase]

What are PA's exceptions from ademption for specific devises?

8-9

Back 45

-Specific property sold while T is incompetent = T gets sale price

NOTE: here, T had to be sane when making the will, BUT you LOSE the anti-adeeming if T is adjudicated RE-SANE the sanity lasts for 1+ years

-T dies when sale pending on sale of specific gift (beneficiary gets K money)

-UNPAID condemnation awards

-UNPAID insurance to pay for the earlier destruction of the specific gift

Front 46

[Lapse, Abatement, Ademption, Increase]

Effect if increase or decrease in number of stocks due to splits, mergers, dividends if the gift is a SPECIFIC DEVISE?

9

Back 46

Beneficiary gets additional share, or even shares of new company if merger

Front 47

[Lapse, Abatement, Ademption, Increase]

Difference between a gift of stock that is considered specific (and therefore IS subject to ademption) and a gift of stock that is considered demonstrative (and therefore is NOT subject to ademption)

9

Back 47

Specific gift that will adeem: I give MY 100 shares of X ...

Demonstrative gift that will NOT adeem: I give 100 shares of X ....

Note: if the shares of a demonstrative gift are sold, the executor goes OUT ON THE MARKET AND BUYS for beneficiary

Front 48

[Lapse, Abatement, Ademption, Increase]

Effect of mortgage on devise.

10

Back 48

The beneficiary TAKES subject to the mortgage

Front 49

[Lapse, Abatement, Ademption, Increase]

Is encumbered property (mortgaged) property entitled to be unencumbered by $ from the residuary?

10

Back 49

NO

Front 50

[Lapse, Abatement, Ademption, Increase]

Is encumbered property (mortgaged) property entitled to be unencumbered by $ from the residuary IF THE T specifically says to cover the debts of the estate?

10

Back 50

STILL not enough -- can't say generally to cover debts of estate - have to say to re-pay mortgage specifically

Front 51

[Ambiguities and Mistakes]

What is a latent ambiguity?

10

Back 51

It's an ambiguity that does NOT appear on the surface

Front 52

[Ambiguities and Mistakes]

Is the use of extrinsic evidence allowed to prove a latent ambiguity?

10

Back 52

Yes

Front 53

[Ambiguities and Mistakes]

What effect if the terms say one person, but it's clear that T meant another person?

10

Back 53

DOESN'T MATTER -- the plain meaning of the will controls

Front 54

[Intestacy]

Memorized rules for Wife's share\

10

Back 54

If spouse, but no issue or parents: ALL (100%)

If spouse and parent, but not issue: $30K + 1/2

If spouse and issue, and all issue are also issue of surviving spouse: $30K + 1/2

If spouse and issue, but at least one issue is from spouse's former marriage/relationship: 1/2

Front 55

[Intestacy]

Order of distribution of share not going to spouse

11

Back 55

-To issue
-If no issue, to parents
-If no issue or parents to parent's issue (siblings)

Front 56

[Intestacy]

Test for Per Stirpes - AKA "by representation"

11

Back 56

(a) Always divide at first generation, even if all at the first generation are dead

(b) One share given to each party alive at the generation, and one share for each person dead at the generation, but survived by issue (so if dead at the generation, but not survived at issue, don’t count for division for purposes of #1)

(c) Each share drops directly to the issue of the deceased first generation and is even distributed - Drop and divide directly by bloodline

Front 57

[Intestacy]

Test for Per Capita

11

Back 57

**** THIS IS THE DEFAULT PA RULE!

(a) First division of decedent’s property is at the first generation where there is a live taker

(b) One share given to each party alive at the generation, and one share for each person dead at the generation, but survived by issue (so if dead at the generation, but not survived at issue, don’t count for division for purposes of #1)

(c) Shares drop down and are divided like the per stirpes method - Drop and divide directly by bloodline

Front 58

[Intestacy]

May a non-marital child inherit from husband of mother that marries (ie - the non-biological father that marries the real mother)?

11-12

Back 58

Generally, NO UNLESS:

-Father later marries mother
-Father acknowledges the child/hold out as his own
-Clear and convincing evidence of paternity

Front 59

[Intestacy]

May a bastard child inherit from a step-father?

12

Back 59

No

Front 60

[Intestacy]

Effect of adoption on family adopting

12

Back 60

Treated as child, both for inheriting from and inheriting to

Front 61

[Intestacy]

May the adopted child still inherit from the natural mother? From the family of the natural mother?

12

Back 61

NO, not from natural mother (unless it was just a stepparent adoption)

YES, can inherit from other natural-family members if there is a CONTINUING FAMILY RELATIONSHIP

Front 62

[Intestacy]

Effect of simultaneous death in JTROS

13

Back 62

The property is partitioned -- 1/2 to each (can't treat each other as pre-deceased)

Front 63

[Intestacy]

Rule for simultaneous death in intestacy

13

Back 63

Must survive for 120hours, else treated as treated as pre-deceased

Front 64

[Intestacy]

When is a gift treated as an advancement for INTESTACY?

13

Back 64

NOT UNLESS:
Declares as an advancement in a contemporaneous writing by the decedent OR the heir

Front 65

[Intestacy]

When is a gift treated as an advancement in PA for WILLS? What is the term?

13

Back 65

Called SATISFACTION for wills (not an advancement):
-Lifetime gift WILL be treated as a prepayment if T's acts and declarations show it to be T's intent

Front 66

[Surviving Spouse]

What effect if T marries AFTER writing his will, what will wife get?

13-14

Back 66

Spouse STILL gets intestate share UNLESS:
-Will gives to spouse in greater share
-Will was executed in contemplation of marriage

Front 67

[Surviving Spouse]

What are the components of the elective estate?

14

Back 67

Elective estate is:

-NET TESTAMENTARY estate (total left over after taking out funeral expenses, and expenses of administration); PLUS

-Transfers w/ retained power to revoke (revocable trusts); PLUS

-Decedent's undivided interest in property that has a right of survivorship (JTROS, joint bank accts); PLUS

-Transfers in excess of $3K made by decedent w/i 1 year of death

Front 68

[Surviving Spouse] ***

What is the surviving spouse's elective share?

14

Back 68

Can take EITHER:

-1/3 the elective estate, if given nothing else (calculated through previous question); OR

-1/3 elective estate REDUCED BY all other interest the spouse has in the decedent's property (other interests can be smaller gifts through the will or other non-will transfers)

Front 69

[Surviving Spouse]

Can the elective share be waived?

14

Back 69

YES! (think pre-nup)

Front 70

[Left-Out Children]

What is the term for children that were born after a will was written?

15

Back 70

Pretermitted child

Front 71

[Left-Out Children]

What share is a Pretermitted child entitled to? & Exceptions

15

Back 71

Always entitled to intestate share
UNLESS it appears from will that omission of potential new children was intentional

BUT: cannot never fund a Pretermitted child w/ property that is to go to a spouse

Front 72

[Left-Out Children]

Effect of making a codicil after child is born (but before new child is included in the will)

15

Back 72

Codicil acts as a re-publishing of the will, and results in the child as NOT being Pretermitted b/c now the will was 'made after' the child's birth and it's presumed it's intentional

Front 73

[Bad Acts Barring Sharing the Estate]

Effect of slaying? (including 1 Exception and 2 caveats)

15

Back 73

Slayer is treated as pre-deceased
-Must be MORE than negligent killings (not vehicular homicide)
-Aquital at a criminal trial is NOT controlling

Exception: Slayer sharing JTROS, 1/2 interest DOES go to slayer FOR LIFE w/ remainder in victim's estate

Front 74

[Bad Acts Barring Sharing the Estate]

Term for, and effect of failing to suppose spouse

15

Back 74

Desertion, treated as pre-deceased

Front 75

[Ks to make a Will]***

When can a K to make a will, or to not revoke a will be shown?

16

Back 75

Can ONLY show if:

-The terms of the K are IN the will itself;

-Will refers to the K and the extrinsic evidence proves its terms;

-OR-

-Terms are set out in a separate writing and signed.

Front 76

[Ks to make a Will]

Effect of mutual/reciprocal/mirror wills

16

Back 76

NONE - does NOT imply a K to not revoke

Front 77

[Estate Administration]

First step of probating a will

16

Back 77

Get the K into probate ct.

Front 78

[Estate Administration]

Second step of probating a will

16

Back 78

Appoint a personal representative (although should be in the terms of the will)

Front 79

[Estate Administration]

What is the name of a personal representative that is named in the will

16

Back 79

Executor

Front 80

[Estate Administration]

Who many be a personal representative?

16

Back 80

-PA Resident 18+ yrs old; OR
-PA Banks/trust companies

NOTE: non-residents may only serve if they are nominated in the will

Front 81

[Estate Administration]

Priority of personal representative nomination

16

Back 81

-1st to person named in will
-2nd to person entitled to the residue
-3rd to heirs
-4th to Creditors

Front 82

[Estate Administration]

Duties of personal representative

16-17

Back 82

-MUST post bond (not if bank or trust company, or if the PR is a PA resident and the only person taking under the will

-Duty is to pay off any creditors and distribute balance

-File an inventory of all assets

-File a final accounting

Front 83

[Estate Administration]

Order of creditor priority

17

Back 83

-Expenses of admin
-Family exemptions
-Funeral expenses
-Gravemaker
-D's tent for 6 months past death
-All other claims

Front 84

[Will contests]

Who has standing to contest a will?

17

Back 84

Any person whose share of the estate would increase if the will were invalid

NOTE: if a PR wants to contest a will, he must resign

Front 85

[Will contests]

Test for lack of capacity

17-18

Back 85

At TIME OF WILL, T must understand:
-Nature of his acts
-Nature of property
-Natural objects of bounty (who are his hiers)
-Disposition he wished to make

NOTE: Burden on contestants

Front 86

[Will contests]

Effect of adjudicated incompetency at time of will execution for lack of capacity

17-18

Back 86

Is evidence, but does NOT raise a conclusive presumption because will could have been written during lucid interval

Front 87

[Will contests]

Test for Insane delusion

17-18

Back 87

Belief having no basis in fact or reason

Front 88

[Will contests]

Test for undue influence

18

Back 88

-Exertion of influence
-Effect is to OVERPOWER the mind and will
-Will would not have been executed BUT FOR the influence (must subvert free will)

NOTE: Burden is on the contestants

NOTE NOT enough if:
-Mere opportunity
-Susceptability
-"unnatural disposition" that some children take less than others)

Front 89

[Will contests]

Test for the presumption of undue influence

19

Back 89

-Principal beneficiary has a
-Confidential relationship w/ T to make the will (ex: atty-client)

Front 90

[Will contests]

Validity of "no contest" clauses

19

Back 90

No contest clause will not be enforced so long as he had PROBABLE CAUSE for invalidity

Front 91

[Wills/Tax]

What is required for a inter-vivos gift to be effective (just a normal gift)

-

Back 91

-Intention to gift

-Actual or contructive delivery (recipient does NOT have to get before person dies)

-Acceptance is PRESUMED if not rejected