Please enable JavaScript.
Coggle requires JavaScript to display documents.
Decedents' Estates - Coggle Diagram
Decedents' Estates
Intestate Succession
If no will exists or a will is found invalid, ten the decedent's property passes under the state's intestate succession statutes
If there are no surviving descendants, the spouse takes the entire estate. A surviving spouse takes one-third or one-half of the estate if there are surviving descendants. The descendants take the remainder of the estate.
Watch for issues of gifts causa mortis (gifts made in contemplation of death). A gift can replace a will if the donor delivers the gift, by either actual, symbolic, or constructive delivery, which would eliminate the need to rely on the intestate succession statutes
-
Parents, siblings, and other collateral kin never inherit if the decedent is survived by children or more remote descendants such as grandchildren and great-grandchildren. If there is no spouse or descendants, then parents take the estate followed by siblings and then their descendants
Validity
- First step: Was the will valid (properly executed by an individual with capacity)? Two types of valid wills
Attested: Written documents signed by the testator and properly witnessed. Publishing the will is usually required.
-
Holographic: Signed by the testator and the material provisions are handwritten by the testator. Witnesses may not be required. Holographic wills often present more validity issues due to issues with inconsistency of terms, unclear intent, or capacity.
Will Execution: Each state sets out its own requirements for will execution through statutes. If the statutory requirements are not met, the will is void and not just voidable. The will cannot be admitted to probate at all even if no one objects.
Common Formalities
Testator's signature - may be by the testator, a conservator, or another person if the testator directs that person to sign in the testator's presence. A mark can satisfy the signature requirement if the testator intends the mark to be a signature
Two disinterested witnesses are required. The witnesses must sign and understand that this is the testator's will. If the witness requirements fail, the will can still be probated upon a clear and convincing showing that the testator intended the document to be the testator's will
Will must be in writing - most states recognize a holographic or handwritten will. When the material provisions are handwritten by the testator, no attesting witnesses may be required
Two interested witnesses will not automatically invalidate the will, but it creates a presumption of undue influence
Testator must publish the will - declare to the witnesses that this document is intended to be the testator's will
Testator's signature is typically at the end; but if the testator signs elsewhere, the will is not invalid. However, the court will need to determine if the entire document, or only a portion of it, is intended as the will
-
If the testator's writing was in contemplation of a future writing, then the writing is not a valid will. For example, the testator writes a letter to her attorney spelling out her bequests and beneficiaries and asks the attorney to change or prepare her will. If the testator dies before the new will is executed, the court will not accept the letter as a holographic will
A codicil is a later testamentary instrument that amends or alters the prior will. A codicil must be executed in the same manner as a will. A codicil can be holographic or formally attested and need not be executed in the same manner as the will it modifies
- Step two: After determining whether the will or codicil is valid, check for whether there are any content additions to the will including: incorporation by reference, acts of independent significance, extrinsic evidence, and contractual wills
Acts of independent significance allow a testator to dispose of property even if events may occur before or after execution of the will. For example, a will that passes property "to my employees" or "the contents of my home" is valid even though who is employed or what contents are in the home may change
-
Incorporation by reference allows a testator to incorporate a separate document if the testator intends to include it, the document exists at the time of execution, and the document is described
-
Pour over provisions are usually permitted (puts leftover or unallocated assets in a person's estate into a trust). Testators may dispose of property into an inter vivos trust. The will must be valid, the trust must be identified in the will, and the trust must be created before or concurrently with the will
Will contests focus on a defective execution, a testator's lack of capacity, or a revocation
Lack of capacity arises with issues of mental capacity, undue influence, and fraud
Mental capacity to execute a will is a lower standard than capacity required to contract. Mental capacity requires:
-
-
-
-
-
Testamentary intent can be missing when there is undue influence, fraud in the execution or inducement of the making of the will, mistake in the execution or inducement of the making of the will, or a conditional will
A conditional will takes effect only after the condition precedent is satisfied. If the stated condition is not met, the will lacks testamentary intent and is invalid
-
Fraud could be fraud in the factum, also known as fraud in the execution, or fraud in the inducement. Fraud in the factum involves a misrepresentation as to the nature of the contents of the will. Fraud in the inducement involves a misrepresentation as to facts that would influence the testator's motivation to make a will in the first place.
A no-contest clause (also known as an "in terrorem" clause) attempts to disqualify anyone contesting the will from taking under it. Most states hold that the clause is ineffectual if the person affected had reasonable cause to contest the will. The no-contest clause will be enforceable if the will contest is unsuccessful and no probable cause existed
Revocation
Types of revocation
Methods
Operation of law
Testator divorces after making a will - all provisions in favor of the ex-spouse become ineffective for all purposes, unless the provisions were intended to survive the divorce
Surviving spouse married the testator after testator executed the will. Surviving spouse entitled to the value of the share she would have received if the testator had died intestate
-
Physical act - burning, tearing, canceling, obliterating, or destroying the will or any part of it
Dependent relative revocation - testator revokes an old will with the intention that a newly executed will replaces it. If new will is not made or is invalid, some jurisdictions will admit the revoked will to probate. Need evidence of testator's intent
An equity doctrine where a court may disregard a revocation. Look for dependent relative revocation when the testator revokes based on a mistake of law or fact where the testator would have made a different bequest but for the mistaken belief. (appears frequently as part of an essay)
-
Presumptions
Presumptions arise when the will is found after a testator's death, but is mutilated. There must be some extrinsic evidence to show testator's intent
Revival after revocation
A prior will is revived upon undergoing all formalities of making a will or by codicil. Otherwise the previous will is revived only if it is evident from the circumstances of the revocation of the subsequent will or the testator's contemporary declarations that the testator intended the previous will to take effect as executed
Beneficiaries
Issues with beneficiaries arise when a beneficiary dies prior to the testator or when a child of the testator is not included as a beneficiary
When a beneficiary dies prior to the testator, that person's gift lapses, or fails. It does not automatically pass to that person's heirs, but falls into the residue
Modern statutes provide that the residuary beneficiaries who survive the testator take the deceased beneficiary's share of the residuary estate
Most states have an anti-lapse statute. This statute operates to save the gift when the predeceased beneficiary was in a specified degree of relationship to the testator and left descendants. Some states require the beneficiary's descendant to be a descendant of the testator (thus, a stepchild would not receive the gift). However, the Uniform Probate Code extends the statute's application to the testator's stepchild, grandparent, or a descendant of the testator's grandparent.
If a beneficiary intentionally kills a testator, that beneficiary receives nothing under a will according to Slayer Act statutes. Elder abuse statutes provide similar protections to prevent a perpetrator from becoming a beneficiary
If a testator fails to provide in his will for any of his children born or adopted after the execution of the will, the omitted after-born or after-adopted child may receive a share of the decedent's estate unless: (1) the omission was intentional, (2) the testator has provided for the child outside of the will, or (3) the testator left the estate to the omitted child's parent
A simultaneous death occurs when two or more persons, one of whom is the beneficiary of another, die under circumstances where there is insufficient evidence to determine which party survived the other. Under the Uniform Probate Code, a person who cannot be established to have survived the decedent by 120 hours is deemed to have predeceased the decedent
A person may disclaim an interest in a property under a will and the person will be treated as predeceased. To be effective a disclaimer must:
-
-
-
-
-
Bequests
The first step is to determine a beneficiary's right to specific property is to classify the type of bequest
General legacy - payable out of the general assets of the decedent's estate and not in any separated or distinguished fund from other things of the same kind
-
Specific bequest or specific devise - gift of a specific article or other property, which is identified and distinguished from all other things of the same kind and is satisfied only by delivery of the particular thing
-
The doctrine of ademption applies to specific bequests that are not in the testator's estate at the time of death. The gift is considered "adeemed" and other property is not substituted. Ademption does not apply to general or demonstrative legacies
Modern statutes have modified the common law doctrine with various exceptions including insurance proceeds, condemnation awards, and sale proceeds, such as when a guardian has sold the testator's property. The beneficiary is then entitled to these various proceeds or awards
Satisfaction occurs when a gift has been satisfied by an inter vivos transfer from the testator to the beneficiary subsequent to the will's execution. The testator must provide for the satisfaction in the will or a contemporaneous writing or the devisee acknowledges in writing
An advancement is a lifetime gift made to an heir with the intent that the gift be applied against the heir's share of the estate. Lifetime gifts are presumed not to be an advancement unless intended as such
Surviving and omitted spouses are protected from disinheritance by elective share statutes. These statutes give the spouse an election to take a statutory share in lieu of taking under the will. Under most statutes, the amount is one-third of the net probate estate if the decedent is survived by issue and one-half if the decedent is not survived by descendants
-