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70 Cards in this Set
- Front
- Back
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Will Requirements
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DICE
- T M/b 18y or older at time of execution - T M/sign at logical/sequential end - Two attesting Ws (not required in PA) - M/dispose of property, nominate a personal representative or revoke/modify another will |
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Holographic Wills
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Entitled to probate if
- In T's handwriting AND - Signed by T Note: PA = valid b/c no Ws are required, even if it's typed! |
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Testator's Signature
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Can be any mark intended to serve as signature.
Another can sign if at T's direction and under her supervision. Clauses after signing = everything above signature is good, below it's bad - If clause added post-execution, will is valid and addition is not - period. |
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Interested Witnesses
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PA = no Ws, so an interested W is supernumerary
Other states (though most have abolished) = necessary and interested W takes lesser of devised amount or intestate share |
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Self-Proved Wills
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At or after T signs will, T and Ws sign a self-proving affidavit under oath before a notary public (reciting elements of due execution)
Creates conclusive presumption that formalities of execution are satisfied - but not as to fraud, capacity, undue influence, etc. PA allows = need 2 Ws |
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Revocation by Physical Act
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Requires intent to revoke AND physical act crossing at least some of the will's language.
Copies = act of revocation on one executed copy is good as to all - M/b on an executed copy, mere photocopy is not enough - a "picture" of the will |
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Presumptions of Revocation
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Will in T's possession from execution til death and found in mutilated condition = presumption that T did the mutilating w/ intent to revoke
Will last seen in T's possession and control but not found after his death = presumption that T destroyed w/ intent to revoke |
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Revocation by Proxy
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M/b
- At T's direction - In T's presence AND - T's direction M/b proved by 2 Ws |
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Lost Wills
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If a will is not properly revoked by proxy, but was destroyed, proponents M/prove contents of the lost will be Clear and Convincing Proof:
- copies held by attorney - interested W testimony |
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Revocation by Inconsistency - Codicils and Multiple Wills
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Codicil = will amendment executed w/ same formalities
- inconsistent provisions will be read together to the extent possible, and later document will control if not Second Wills = c/b codicil if not a complete disposition (no residue), BUT if it does have residuary clause, it revokes the entire first will by inconsistency Note: revocation of a will revokes all codicils thereto |
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Effect of Divorce on Wills
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Revokes all provisions in favor of ex-spouse unless will shows it was intended to survive divorce
- construe as though ex-spouse predeceased w/r/t will, revocable inter vivos trusts or life insurance policies (after 1992) - separation has no such effect Remarriage = comes back in under will |
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Interlineations
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Crossed out bequest, replaced with new amount
- New amount is greater = DRR - New amount is lesser = person gets nothing Cannot be given effect unless T re-executes after changing OR republishes the will by codicil |
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Dependent Relative Revocation
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Mistake remedy that m/save bequest after interlineation/revival problem
If ct is satisfied but for mistake of law or fact that T w/n/h made the revocation, ct will disregard revocation - better to give something as opposed to nothing; but NEVER gives what T really wanted |
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Incorporation by Reference
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Get in document not executed w/ formalities - M/b:
- in existence at time will was executed - will M/manifest intent to incorporate the document AND - will M/describe the writing sufficient to permit ID If requirements NOT met, devised property becomes part of residuary estate |
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Doctrine of Independent Significance
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Acts having an independent lifetime motive m/impact on the will - ex: new car/living room furniture
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Lapse
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Beneficiary named predeceases T, the gift fails, and it falls into the residue.
C/b saved by Anti-Lapse Statute PA/Majority = if residuary is devised to 2+ people and the gift to one of them fails, the surviving residuary devisees takes the entire residue proportionately |
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Anti-Lapse Statutes
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Predeceasing beneficiary is T's descendant (child, GC, sibling, siblings child) who leaves issue that survives T.
Save lapsed gift by allowing the issue of the deceased beneficiary to take in the beneficiary's place. - EXCEPTION: gift to T's sibling or sibling's child w/b allowed to lapse to the extent that it w/pass to T's spouse or child (i.e. in the residue) |
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Class Gift Rule - Lapse
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Surviving class members take if:
- gift to a group of persons described generically as a class - some class member predeceases T AND - ALS d/n/apply If ALS does apply, the grandkids' share will be preserved |
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Types of Devises
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Specific = specific asset
Demonstrative = pecuniary w/ instructions for funding General = pecuniary amount Residuary Intestate property = partial intestacy; residual beneficiaries predecease and nothing saves the gift |
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Abatement
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Start at intestate property and work up (IRGDS) - abate any specific or demonstrative gifts to decedent's spouse and issue LAST.
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Ademption
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When Specific Gift is no longer part of T's estate when she dies = adeemed.
Restricted to specific gifts - demonstrative gifts will be funded otherwise. Exceptions: - T declared incompetent after will executed - Balance in purchase price, condemnation awards, or insurance proceeds - Stock - merger, consolidation, split/dividends, reorganization |
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Ademption Exception - T Declared Incompetent
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If conservator sells Specifically devised property, or it is condemned, the devisee has right to general legacy equal to sale price, condemnation or insurance proceeds UNLESS:
- T's disability is adjudicated to have ceased AND - T survives adjudication by at least 1y |
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Ademption Exception - Remaining Specifically Devised Property
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Balance of purchase price unpaid when K is executory at T's death
Any amount of a condemnation award for a taking of the property still unpaid at T's death Any amount of fire or casualty insurance proceeds unpaid at T's death Stock = Specific Devisee takes additional securities as result of split/dividends and acquired as a result of merger, consolidation, reorganization of the entity - NOT exercise of purchase options |
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Exoneration of Liens
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PA = Specific Devisee of encumbered property is NOT entitled to have the encumbrance paid out of the residuary estate unless the will shows such intent
- M/b more than a general direct to pay debt |
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Ambiguities
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Latent = unascertainable on face of gift, can have EE to clarify - otherwise it passes as part of the residue
Plain Meaning Rule = c/n disturb plan meaning of a will w/ EE - patent ambiguity will stand |
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Intestacy - Decedent Survived by Spouse
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No issue, no parent = all to spouse
Parent, no issue = $30k + 1/2 remaining to spouse Issue who are also of surviving spouse = $30k + 1/2 remaining to spouse Issue who are not of surviving spouse = 1/2 of estate to spouse |
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Intestacy - Share not Going to Spouse/No Surviving Spouse
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Issue = all to issue
No issue, but parents = all to parents or survivor thereof No issue, no parents = all to parents' issue |
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Intestacy - Distribution
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PA = distribution per capita and by representation if not of same degree
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Adopted Children
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Separated Parents = can always inherit from mother; cannot inherit from father unless:
- F marries M - F holds C out as his AND receives C into his home or provides w/ support OR - CCE of paternity Full Adoption by New Family = cuts off all biological ties; C can inherit from new parents and vice versa - can only inherit from kin of biological M if the relative maintains a continuous family relationship Adoption by stepparent = cuts off right to adopt from separated parent and c/inherit from stepparent Class Gifts = adopted children are included in class gift terminology and in terms of relationship w/r/t rules for intestate succession |
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Simultaneous Death Act
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Insufficient E to determine people died other than simultaneously
- Wills = as though beneficiary predeceased (lapse issues!) - Insurance = as though beneficiary predeceased and proceeds go to secondary beneficiary - Intestacy = 120h/5d rule: treat as predeceased unless survives by 120h - JTROS = half as though A survived, half as though B survived - prevents operation of ROS - half passes through each tenant's estate |
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Advancements
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Intestate Estates
CL = lifetime gift to child or descendant is presumed an advancement of intestate share and M/b taken into account during distribution PA = no presumption; gift is NOT advancement u/l written E: - declares it as such in a contemporaneous writing by decedent OR - acknowledged as such in writing by heir |
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Satisfaction
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Testacy
PA = lifetime gift treated as made in prepayment of beneficiary's interest under a will IF donor's actions and declarations show that it was his intent |
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Pretermitted Spouse
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Marriage follows execution of will
Spouse entitled to intestate share (never less than 1/2) unless: - will gives her a greater share OR - appears from the will that it was executed in contemplation of marriage |
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Elective Share
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Protects S from intentional disinheritance = 1/3 of elective estate
- Net testamentary estate (over funeral, administration and creditor expenses) PLUS - Lifetime donative transfers to spouse or others - includes transfers w/ retained power to revoke, consume, invade, or dispose of principal for own benefit - Decedent's undivided interest in property in ROS form - Transfers over $3k made by decedent w/in 1y of death Elective share is in lieu of all other interests spouse has in decedent's property - includes passing under will, non-testamentary transfers - to extent spouse has property or proceeds which decedent gave spouse during life Spouse can keep what decedent's estate plan leaves her - but M/reduce the ES by equivalent. Waiver = in writing after fair disclosure |
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Pretermitted Children
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Born or adopted after the will is executed, entitled to take intestate share UNLESS it appears from the will that the omission was intentional
PA = cannot fund pretermitted share w/ property that otherwise w/h gone to decedent's spouse |
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Slayer Statutes
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Person who feloniously and intentionally kills decedent is not entitled to any benefit from his estate by will, intestacy, ES, life insurance or otherwise.
M/h/b intentional - but criminal acquittal d/n matter (civil standard = preponderance) Property passes as though K predeceased V; JTROS property passes 1/2 to V's estate, half to K for life w/ remainder in V's estate |
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Desertion
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Inheritance and ES rights of H or W are forfeit if H or W willful and maliciously deserts OR otherwise fails to support the spouse for 1y or more
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Will Ks/Mutual or Reciprocal Wills
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PA Law = K to make a will, not to revoke, or to die intestate c/b shown ONLY if:
- terms are in will itself - terms are set out in separate writing OR - will refers to the K and EE proves its terms Mere existence of mutual/reciprocal will d/n imply a K not to revoke |
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Personal Representatives - Generally
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Appointed to manage estate during administration
- testate = executor, letters testamentary - intestate = administrator, letters of administration Eligible if PA bank and trust company, person 18y or older who h/n/b charged w/ voluntary manslaughter or homicide w/r/t decdent, OR non-residents if nominated in T's will |
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Personal Representative - Priority
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Will = priority to person nominated
Residuary devisee Heirs Creditors NOTE: priority to person entitled to greatest share at that level |
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Personal Representative - Bond Requirement
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PR (other than a bank or trust company) M/post bond u/l:
- Waived in T's will - executed by the court - PA resident if the sole residuary beneficiary under decedent's will OR his sole heir |
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Personal Representative - Duties
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Collect decedent's assets, pay creditors, distribute balance
M/file accounting at end of administration w/ statement of proposed distribution - d/n/h to be a formal proceeding if estate < $25k M/publish notice of grant of letters in one legal journal AND one newspaper of general circulation M/file inventory of all estate assets, including value of all personal property AND all PA real property |
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Personal Representative - Powers
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All powers necessary to the proper administration of the estate and m/act w/o court authority in the exercise of those powers EXCEPT:
- M/h court approval to sell Specifically Devised RP OR to continue operating decedent's unincorporated business - u/l otherwise provided in the will |
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Creditors' Claims/Order of Distribution
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Administrative expenses
Family exemption Funeral expenses, cost of medicine, medical, nursing and hospital services incurred 6m before death Cost of gravemarker Decedent's rent for 6m before death All other claims |
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Standing to Contest Will
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Any person whose share of estate w/increase if the will or a gift therein was invalidated
PR has duty to defend the will, but if she joins the contest, she M/resign |
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Will Contests - Lack of Testamentary Capacity
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BOP on contestants - E of capacity M/relate to circumstances at or near time will was executed
T M/have: - understood the nature of his act - know the nature and character of his property - know the natural objects of his bounty - understood the disposition he wished to make Note: mere old age, physical frailty, sickness, failing memory or vacillating judgment are not inconsistent w/ testamentary capacity |
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Will Contests - Adjudication of Incompetence
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T's adjudication as incompetent and having an appointed guardian does NOT raise a conclusive presumption (i.e. w/n support a directed verdict)
- different test for capacity - T c/h made will during a "lucid moment" - Different test from |
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Testamentary Capacity - Insane Delusion
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T is otherwise sane, but the will or a gift therein is the product of an Insane Delusion
- No basis in fact or reason - T adheres to against all reason and E AND - Will or gift is the product of the insane delusion |
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Testamentary Capacity - Undue Influence
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T's free agency M/b destroyed; will expresses the influence of the one exerting the influence
BOP on contestants: - existence and exertion of the influence - effect is to overpower testator's mind and will AND - result is a will that w/n/h/b executed but for the interference Not enough = mere opportunity to influence, susceptibility to influence, an unnatural disposition (M/lack all reasonable explanation for devise) Note: presumption arises upon showing that a principal beneficiary under the will stands in a confidential relationship to T draws or procures the execution of the will |
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No Contest/In Terrorem Clauses
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If beneficiary contests the will and wins = no problem
If beneficiary contests the will and loses = PA w/n enforce the clause if beneficiary had probable cause for the contest |
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Trust - Generally
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Written statement giving a Trustee legal title to property for Beneficiary's benefit.
- Res/Corpus - Beneficiary - Trustee - Intent = precatory language not enough, but d/n/h to contain "trust" |
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Trust - Res/Corpus
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M/b a specific interest in property to which Trustee's duties relate.
- Certain - Identifiable EXCEPTION: empty trusts naming a direct beneficiary of a life insurance policy, pension plan death benefit, or when a trust is named the direct beneficiary of a settlor's will |
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Trust - Beneficiaries
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Private
- M/b ascertainable (not "friends") - Has benefit of property ownership - C/b a power of appointment; if not exercised, w/b returned to living settlor OR to his estate Charitable - M/b for charitable purposes AND for a reasonably large and unidentifiable segment of the public at large |
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Trustee
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Has burden and is subject to FDs
No trust fails for lack of a trustee - court will appoint if no one is named, or the named trustee is unavailable |
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Revocable Trusts
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Valid even though Settlor retains the right to
- revoke, alter or amend - keep income interest or other interest as beneficiary - POA over the corpus - have every day control over the trust (names himself as trustee or retains veto over trustee's decisions_ |
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Revocable Trusts - Will Substitute
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Gift in will to existing inter vivos trust (pour over)
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Trust vs. Custodianship
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Custodianship governed by UTMA = ends as a MOL when person reaches 21y
Custodianships c/b for one person only, trusts c/b for many, a class of people |
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Revocable Trusts - Gifts by Will
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Uniform Testamentary Additions to Trusts Act
- trust M/b IDed in will - terms M/b set out in a written instrument that c/b executed before or after the will Devised property is added to the trust as it exists at T's death - includes any amendments after the will's execution |
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Secret Trusts
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Absolute devise w/ oral promise to hold on trust
Testimony M/b established by CCE Creates a Constructive Trust implied for the benefit of the beneficiary of the secret trust |
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Semi-Secret Trusts
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Devise "in trust" w/ oral agreement as to beneficiary or terms of trust
Majority = Resulting Trust - implied reversion to T's heirs - impressing trust for benefit of the intended beneficiaries violates SOW requirements that beneficiaries M/b IDable from the will's langauge |
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Charitable Trusts
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No subject to RAP or Rule Against Accumulations (lasting and accumulating income perpetually)
M/b for charitable purposes (medicine, science, research, education, government) Cy Pres = when specific purpose c/n/b accomplished, court may reform by: - looking at T's specific direction AND - primary intent |
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Spendthrift Clauses
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Trusts including income distribution = alienable; creditors can seek court order to make Beneficiary pay them
Spendthrift clause forbids assignment of beneficiary's interest and keeps it from creditors' claims - Exceptions = CANS - Claims for alimony - Claims for child support - Creditors who provided necessities - Claims by a state or the US |
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Spendthrift Clause - Settlor as Beneficiary of Trust
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Unenforceable as to trust for Settlor's benefit
His creditors can reach actual trust assets if: - trust is revocable OR - trustee has discretion to make distributions to Settlor |
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Trust Administration - Self-Dealing
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Absolute prohibition on Trustee's self-dealing
- c/n buy or sell trust assets to himself - c/n borrow trust funds - c/n sell assets from one trust to another - corporate trustee c/n purchase its own stock as trust investment - though it can transfer if it was part of original trust property AND it meets Prudent Investor Standard Remedy = trace and recover |
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Trust Administration - Prudent Investor Standard
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Reasonable care, skill and caution in making investment decisions = Duty to:
- keep trust productive (earn reasonable ROI - big picture!) - balance return w/ potential risk - diversify investments - not to commingle (Note: PA = invest assets of more than one trust as a whole if adequate records are kept) - delegate investment decisions ONLY as permitted by statute (PA = trustee c/delegate agent selected w/ reasonable care) - participate in administration of trust (PA = if 3+ co-trustees c/n reach decision, majority rules) |
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Liability for Breach of Trust
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Beneficiary can:
- ratify and waive breach - sue for resulting loss (surcharge action) - no GF or reasonableness defense - this is an automatic wrong - measure of damages is the only issue - Trace and Recover (self-dealing!) |
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Settlor's Power to Modify/Revoke/Terminate Trust
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Can revoke, terminate or modify if:
- instrument d/n specifically state that it is irrevocable AND - Settlor substantially complies w/ all trust provisions pertaining to the form the proposed action M/take (writing, delivery, etc.) |
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Beneficiary's Power to Modify/Revoke/Terminate Trust
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Can ONLY terminate if:
- all beneficiaries consent AND - no further trust purpose to be served Note: Spendthrift Clause will make trust indestructible (further purpose!) UNLESS all beneficiaries and Settlor consent |
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Power of Appointment
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Donor's instrument gives Donee a POA = general testamentary or special testamentary POA
Takers by default = donee's descendants if POA not exercised |
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General vs. Special Testamentary Powers of Appointment
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General = not limited in class to whom Donee c/appoint property; can appoint to herself, her estate, creditors, etc.
- presume intent to exercise when done in a residuary clause Special = c/n appoint to yourself - no presumption of exercise - M/b specifically exercised |
