8/12/2019 1S Wills

http://slidepdf.com/reader/full/1s-wills 1/2

Estates and Wills

I. IntroductionA. Governing Law = UPCB. Definitions = Decedent; Estate; Personal Property; Real Property; Intestate; Testate; Probate; Issue; Heirs; Devise(e)

II. Intestate DistributionA. In General – Determined through testacy proceeding if decedent dies intestate

Spouse survives (entire if no desecendant/parent or all descendants of spouse); Spouse and Parent (1 st 300k +75%, rem to parent (100/50/50); Spouse and Issue (1 st 225k + 50%); Spouse and non-issue (1 st 150k + 50%)

Descendants/Desc endant’s Representation; Surviving Parents; Descendents of Parents;Grandparents/Descendants; Spouse’s relatives; Escheat

Adoption ok, may be by estoppel if formalities fail. May have kid as marriage, holding out; or paternity test

B. Advancements Advancement requires: contemporaneous writing by testator/ack by heir that advancement or discountIII. Execution of Ordinary Wills

A. Capacity to Execute a Will To be valid, will must: be excuted by competent individual ≥18 yo + Testamentary Intent + Follow Formalities

B. Formal Requirements of Wills A valid will must be: In writing, signed by testator or in name by another at direction + 2 witnesses (must be

competent to observe, understand, remember facts) || UPC doesn’t require presence of testator . May use notary.C. Qualifications of a Witness

must be competent to observe, understand, remember facts. || UPC doesn’t require presence. May use notary. IV. Special Wills, Codicils, and Will Provisions

A. Types of Wills Holographic (material provisions + signature in HW of testator); Conditional (Must be clear. Narrow constr.)

B. Codicils Addition to or alteration of will, must have same formalities as will. May incorp by reference or cure defects.

C. Validity of Execution of Foreign Wills Valid if: complies with § formalities / in area where executed / law place domiciled or had home or was nat’l

D. Classification of Testamentary Distributions Specific gift = ID article or property; General gift = general assets; Demonstrative gift = gen gift + fund.

V. Limitations of Testamentary DispositionsA. Spouse’s Elective Share

Surviving Spouse may elect to take ½ of marital prop instead of will/intestacy by filing w/in 9mo. Estate includes: Net probate estate + decedants non-probatetransfers to other persons; decedents non- probate transfers to surviving spouse; value of surviving spouse’s net assets at death plus surviving spouse;s non -transfers to others || UPC 50% of augmented estate until max 50% after 15 yrs.

B. Children Not Mentioned in Will UPC: no elective share || elective share. Disinheritence must be express or necessary implication (omitted heir = living at time of will not mentioned/provided for)

o if after last will, UPC protects (as if living child); if no other children (as intestate); if others (as if living); if others w/o devise (too bad).C. Exemptions of Property for the Benefit of the Decedent’s Family

family allowed to take reasonable amounts during adminVI. Interpretation of Wills

A. Incorporation by Reference UPC allows incorp. by ref. if: writing in existence at time of will + manifests intent in will + describes writing sufficiently to be ID’d.

B. Facts of Independent Significance will may dispose of property by ref to facts or evenets that have significance apart from effect on will

VII. Statutory Provisions Covering Special Circumstances

A. Disqualifications Slayer Act – any person who participates as a principal/conspirator/accessor in willful and unlawful killing of another person may not acquire prop from decedent

B. Simultaneous Death Must survive spouse || UPC requires clear convincing evidence that survival > 120 hours.

C. Refusal to Support/Desertion Adultery or desertion may be ground to disqualify || UPC requires legal act eg divorce

VIII. Changes in Property & Beneficiaries After Execution of the WillA. Ademption

Ademption by Extinction: gift fails when property specifically bequeathed or devides is not in estate at time of death; Ademption by Satisfaction: cf advancement,occurs when testator makes inter vivos transfer to beneficiary of general or residuary disposition with written intent that the provision will be thereby satisfied.

B. Encumbered Property CL: entitled to have property unencumbered through assets of estate || UPC: takes whatever interest the testator had, regardless of order to pay debts

C. Abatement If testator’s estate will not satisfy, beneficiary share abates: Property not disposed; Residuary; General device; Specific devi se

D. Class Gifts May gift to class. Closes at death if distrib at death.

E. Lapse

Lapse occurs when beneficiary dies before testator. Pass to residuary, then intestacy || if Antilapse §: representation; if class, descendants.IX. Revocation and RevivalA. Methods of Revocation

UPC – may revoke by: performing revocatory act (burning, tearing etc); executing subsequent that revokes e/i; operation of lawB. Dependent Relative Revocation

If new will is invalid or never executed as planned, the ‘law of second best’ allows earlier will. Must be defective execution or intrinsic defenct in 2d will/codicilC. Revival of Revoked Will

If testator revokes earlier will with second, revo of second doesn’t reinstate first unless express intent ie re -execution X. Contracts to Make a Will or Joint/Mutual Wills

A. Contracts to Make a Will UPC will uphold K to dispose of property in will (if K consideration, definiteness, intent) Contract to make will only if: material provision + writing signed by dec. + reference in will to K and extrinsic evidence proving terms of K

B. Joint or Mutual Will Joint will = will by 2 testators intended to serve as will of both. CL: presumed K to not revoke w/o consent || UPC: no such presumption, revocable

XI. Probate of Wills

Frequently Tested TopicsForm & Execution of WillsIntestate Succession andDetermining HeirshipModification or Revocation of a WillNon-Testamentary TransfersProbate & Will Contests

8/12/2019 1S Wills

http://slidepdf.com/reader/full/1s-wills 2/2