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Wills and Estates Cheat Sheet by

wills

Defini­tions

Decedent
Someone who has died
Will
Legal document used to dispose of the decedent's property
Testate
Decedent dies with a will
Intestate
Decedent dies without a will
Codicil
Supplement that either amends or revokes a decedent's will in whole or in part
Probate
Judicial process for admini­stering and settling decedent's estates
Intestate Succession
Default estate plan for distri­buting property

People

Heirs
Indivi­duals entitled to receive property by intestate succession
Spouse
Decedent's marital partner
Issue/ Descen­dants
Decedent's lineal line
Ancestors
Decedent's parental line
Collat­erals
Decedent's relatives through an ancestor

Intestacy

Intent
irrele­vent- follow legisl­atures guide
heirs
entitled to take an intestate share
survival
key factor in taking from the decedent
Simult­aneous death
Uniform Probate Code (UPC)- an heir must be proven by clear and convincing evidence to have survived the decedent by 120 hours
Without Heirs
Property will escheat to the state

Spouse's Share

who qualifies?
Legally married partner
Spouse + Shared Descen­dants
surviving spouse takes the entirety
Spouse + parent
Surviving spouse takes $300,000 and 75% of remainder of estate
Spouse+ shared descen­dants+ Spouse's kids
Surviving spouse takes $225,000 and 50% of remainder of estate
Spouse + non-sp­ousal kids
Surviving spouse takes $150,000 and 50% of remainder of estate
Just spouse
Surviving spouse takes the entire estate

Issue

Lineal line
must be a parent­-child relati­onship
Adoptive children
inherit from decedent just like biological children
Stepparent adoption
Will not prevent adoptee from inheriting from other genetic parent
Posthu­mously Born children
If child is born 280 (or 300 under UPA) days of husband's death, there is a rebuttable presum­ption that the child is husbands and will inherit from the husband

Calcul­ating Issue's Share

Per Stirpes
Divide shares into the total number of children who survive or leave issue who survive and then divide by repres­ent­ation
Per capita by repres­ent­ation
Divide property equally at the first generation where a member survives decedent; If a deceased member of a generation is not survived by living issue, then that member does not take a share
Per capita at each generation (UPC)
Divide property into equal shares at the first generation where there is a surviving member; pools the remainder share after each generation and divide equally
 

Execution of Wills

Three Formal Will Requir­ements
signed writing, witnesses, and testam­entary intent
Signed Writing
must be written, signed at end or anywhere under UPC- must show intended to be signature; nothing after signature will be valid; doesn't need to be formal signature
Capacity
must be at least 18 years of age and of sound mind at the time of signing
Witness (Attes­tation)
majority- presence of witnesses and testator; UPC- witnesses must sign within a reasonable time of original signature by testator
"in the presen­ce"
Tradit­ional- line of sight; Modern approach- conscious presence
Interested witness
Has a direct financial interest in the will- common law (not competent witness), UPC (abolished doctrine), and Purge theory
Purge theory
Interested witness does not affect the validity of a will BUT probate court will purge any gain in excess of what the witness would take under intestate succession
Present Testam­entary Intent
must have the present intent
Failure to Satisfy Formal­ities
Common law/ majority- strive compli­ance; UPC- substa­ntial compliance by clear and convincing evidence

Hologr­aphic Wills

informal
handwr­itten will
requir­ements
must be signed but doesn't need witnesses
How much writing?
some jurisd­iction- anything not in handwr­iting will invalidate will; UPC- only requires material provisions be in handwr­iting
Intent
look for words or phrases suggesting intent; UPC authorizes looking to extrinsic evidence

Codicils

Supplement
Does not replace an underlying will
Formal­ities
executed with the same formal­ities as a will

Will Substi­tutes

Joint tenancy
Avoids probate because it has a right of surviv­orship
Revocable Trust
Avoids probate because it has an inter vivos transfer
Pour-Over Will
Avoids probate because it distri­butes property under a trust
POD Contract
Avoids probate because it distri­butes by inter vivos transfer
Deed
Avoids probate because it is an inter vivos transfer

Revocation of a Will

Ambulatory
altered or revoked any time until the testator's death; can be revoked in whole or in part
Subsequent Instrument
express revoca­tion; implied revoca­tion/ incons­istency
Physical act
intent for physical act to revoke will; majority- particular language must be destroyed; UPC- destru­ctive act affect some part of the will
Lost will
creates a rebuttable presum­ption that the testator revoked the will by physical act; burden on proponent to show will's existence by clear and convincing evidence
Operation of Law
divorce revokes all will provisions in favor of former spouse (UPC extends to ex's relati­ves); subsequent marriage does not revoke a will because of elective shares

Third Party Revocation

Third party can revoke on behalf of testator if
at testator's direction and in testator's conscious presence

Third Party Revocation

Third party can revoke on behalf of testator if
at testator's direction and in testator's conscious presence

Revoking Codicils

by revoking a will
testator also revokes any codicil attached to the will; revoking a codicil does not revoke the will

Revival

Republ­ication
UPC/ majority does not recognize automatic revival of a revoked will
Dependent Relative Revocation (DRR)
Safe valve for testators who revoke a will on the basis of mistake (of law or fact); invali­dates the mistaken revocation and revives the earlier revoked will
 

Constr­uction/ Interp­ret­ation

Plain Meaning
assume the testator meant the plain meaning of what he said
Incorp­oration by Reference
Wil refers to document outside will can incorp­orate if: document exists at time of execution, testator intends incorp­ora­tion, document described with sufficient certainty
Acts of Indepe­ndent Signif­icance
Testator can dispose of property based on some act or event that is unrelated to the execution of the will
Lapse
Common law: testam­entary gift would lapse if intended benefi­ciary did not survive the testator; failed gift dumped into the residuary gift
Anti-lapse
Prevents certain gifts from lapsing. Requires protected relati­onship, survived by issue,
Exception to lapsed gifts rule
Class gifts- if member's gift lapses, the rest of the class share that member's gift unless anti-lapse controls
Abatement
If the estate does not have sufficient funds to pay debts or make gifts, the gifts will be abated, or reduced, in a specific order.
Abatement hierarchy
intestate property, residuary gift, general gifts, special gifts
Ademption by Extinction
specific piece of property no longer in estate. Tradit­ional- devise is extinct; UPC- look at testator's intent at time she disposed of property (prefe­rence for replac­ement property)
Ademption by Satisf­action
testator satisfies a specific or demons­trative gift by inter vivos transfer. Testator must intend for gift to adeem and must be supported by writing
Ambigu­ities
tradit­ional- can only use extrinsic evidence to resolve latent (not on face) ambigu­ities; modern rule- both can use extrinsic evidence
Mistakes
Courts are less forgiving when it comes to mistakes

Power to Transfer

Rights of Surviving Spouse
elective share (forced share- 50% under UPC); waiver to elective share must be in writing after fair disclosure and with repres­ent­ation
Gifts to Children- Advanc­ements
lifetime gift that satisfies child's intestate share. Common law- lifetime gift is presumed to be advanc­ement; UPC- only advanc­ement if contem­por­aneous writing or writing that gift should be taken into account in computing division of estate
Calcul­ating effect of advanc­ement: “Hotchpot” analysis
Add the value of the advanc­ements back into the intestate estate, Divide the resulting estate by the number of children taking, Deduct the child’s advanc­ement from the child’s intestate share.
Omitted Children
intent­ional disinh­eri­tance; uninte­nti­onal- takes intestate share or portion from what is devised to children
Slayer Rule
A benefi­ciary who murders the decedent is barred from taking under the decedent’s will; UPC allows killer's issue to take when relevant
Disclaimer
signed writing that is filed with court OR declared to estate distri­butor AND Identify the decedent, describe the interest being discla­imed; within 9 months of decedent's death
Elder Abuse
Someone who is convicted of financial exploi­tation, abuse, or neglect of a person under her care is prohibited from inheriting from that person.

Will Contests

standing
only an interested party
time for filing
6 months after will is admitted to probate
Testam­entary capacity
burden on contester to show that when will was executed, testator lacked the ability to know: nature of act, nature and character of property, natural objects of bounty, plan of attempted dispos­ition
Insane Delusion
testator has general capacity but has an insane delusion as to some belief. Measure against actions of a rational person (also need to prove but-for causation)
Undue Influence
contestant bears burden of showing: benefi­ciary received a substa­ntial relati­onship, benefi­ciary had a confid­ential relati­onship with testator, and testator had weakened intellect. THEN burden shift to proponent to show no undue influence by prepon­derance of the evidence
Fraud
contestant bears burden of showing benefi­ciary made misrep­res­ent­ation wit the intent to deceive the testator and the purpose of influe­ncing the testam­entary dispos­ition. Remedied by constr­uctive trust
Forfeiture Clauses
in terrorem: no-contest clause designed to dissuade a benefi­ciary from suing about his share; under UPC clause is unenfo­rceable if probable cause to challenge

Probate Process

classify
each piece of property is probate or non-pr­obate
probate
passes by will or intestate succession
non-pr­obate
property is transf­erred by another document
Primary purpose
Orderly admini­str­ation of a decedent’s estate
Filing under UPC
Probate procee­dings must be brought within ______­___­___­___­___­___­___­______ years of death, after which there is a presum­ption of intestacy. Can choose informal or formal probate
Creditors
Non-claim statutes: bar claims after time; must be given notice by personal repres­ent­ative
Personal Repres­ent­ative
person who acts on behalf of estate during probate process (admin­ist­rator if by court or executor if by will)
Duties of Personal Repres­ent­ative
inventory and appraise estate, contact interested parties, satisfy debts, close the estate
Duties owed by personal repres­ent­ative
loyalty and care
Choosing a personal repres­ent­ative
surviving spouse who is devisee, other surviving devisee, surviving spouse, other heirs, any creditor (45 days after decedent's death)
Power of Appoin­tment
Ability of decedent to select an individual to dispose of certain property under the will. General- no condit­ions; special- donor limits donee's power
Powers of Attorney
An authority to act on another’s behalf in a legal or business matter. Must be in writing, signed, and dated. Types: General, special, Advanced healthcare directive (living will or durable power of attorney for health­care)

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