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Decedents' Estates - Coggle Diagram

- - - - (1) surviving spouse: entire estate if no descendants; 1/3 - 1/2 if surviving descendants
      - (2) descendants: remainder
    - - Maj: per capita with representation
        
        divide into equal shares at first generational level with living heirs; if deceased, issue split share
      - Modern trend: per capita at each generational level
        
        divide into equal shares at first generation with living heirs; regroup and divide equally among next generation
      - CL: strict per stirpes
- - - - Statutory Formalities
        
        Witnessed
        
        In testator's presence
        
        conscious presence approach
        
        line of sight approach
        
        Two disinterested witnesses
        
        interested witnesses: do not automatically invalidation, but presumption of undue influence
        
        must sign and know it is testator's will
        
        Some states' additional requirements
        
        Testator's signature at the end
        
        Witnesses sign in each other's presence
        
        In Writing
        
        Testator's Signature
        
        proxy signature: made in testator's presence at testator's direction
        
        made by testator
    - - must contain testator's signature
  - - - allows testator to incorporate a separate document if:
        
        (1) manifestation of intent to incorporate it
        
        (2) document exists at time of execution
        
        (3) document is clearly described to permit identification
    - - allows testator to dispose of property even if events may occur before or after execution of the will
        
        class: "my employees", "my children", "my spouse"
        
        contents: "contents of my home"
    - - Some state allow if ambiguity
  - - - the nature and extent of their property
      - the persons who are the natural objects of their bounty
      - the nature of their act
      - able to form an orderly scheme of disposition
  - - - can be holographic or attested
- - - - Testator is of sound mind and understands nature of act
      - Testator understands the nature and extent of his property
      - Testator must be 18 years or older at date of execution of will
      - Beneficiaries are the natural objects of his bounty
      - Testator understands the nature of the disposition he is making
    - - Mental / Physical ailments
        
        fact that testator was old, ill, or possessed failing memory, or was an alcoholic or drug addict does not mean lack of testamentary capacity
      - Adjudicated Insane or Incompetent
        
        adjudication of insanity or appointment of a guardian or conservator is evidence of testator's lack of capacity, but is not conclusive
      - Determined at time of will's execution
  - - - will is found after testator's death but is mutilated
      - must be extrinsic evidence to show testator's intent
    - - prior will revived with all formalities of making a will
    - - Methods
        
        Operation of Law
        
        Divorce
        
        all provisions in favor of ex-spouse become ineffective for all purposes, unless provisions intended to survive the divorce
        
        Surviving Spouse: married testator after testator executed will -- SS entitled to value of the share she would have received if the testator had died intestate
        
        Written Instrument
        
        subsequent will or codicil revoking prior will
        
        must execute with same formalities
        
        Physical Act
        
        burning, tearing, canceling, obliterating, or destroying the will or any part of it
        
        must have intent to revoke
        
        Proxy: must be at testator's request in testator's presence
      - Partial Revocation
        
        allowed under UPC
      - Dependent Relative Revocation
        
        testator revokes old will with intention that newly executed will replaces it. If new will is not made or is invalid, some jx admit revoked will to probate
  - - - Fraud in the inducement of will:
        
        misrepresentation as to facts that would influence the testator's motivation to make a will in the first place
      - Fraud in the execution of will (fraud in de factum)
        
        misrepresentation as to contents of the will
    - - Mistake in the inducement of will:
      - Mistake in the execution of will:
    - - (2) Effect of influence overpowers the testator's mind and free will; and
      - (3) Product of influence was a will not being executed but for the influence
      - (1) influence exerted on testator (physical or mental)
      - Presumption of undue influence:
        
        beneficiary participated in some way in procuring or drafting the will
        
        two interested witnesses signed the will
        
        confidential/fiduciary relationship between testator and fiduciary
        
        will's provisions appear to be unnatural and favor the beneficiary who allegedly exercised undue influence
    - - takes effect only after condition precedent is satisfied
      - if condition is not met, will lacks testamentary intent
  - - - maj: clause is ineffectual if person effected had reas cause to contest the will
      - enforceable if will contest unsuccessful and no probable cause existed
- - - - (2) testator provided for the child outside of the will, or
      - (3) the testator left the estate to the omitted child's parent
      - (1) omission was intentional
  - - - (2) anti-lapse statute
        
        saves gift if predeceasing beneficiary was specified degree of relationship to testator and left issue
        
        UPC: testator's stepchild, grandparent, or descendant of grandparent
      - (3) residuary clause
      - (1) express terms of will
      - (4) intestacy
  - - - Declare the disclaimer
      - Describe the interest or power disclaimed
      - Be signed by the disclaiming party; and
      - Be delivered or filed
      - Be in writing
  - - - statutes provide elective share in lieu of taking under the will
        
        1/3 of net probate estate if decedent survived by issue
        
        1/2 of net probate estate if decedent is not survived by decsendants
- - - - Applies to specific bequests that are not in the testator's estate at the time of death
        
        Modern exceptions:
        
        condemnation awards
        
        sale proceeds
        
        substitute property
        
        UPC: replacement property
        
        insurance proceeds
        
        Minority: "intent test"
        
        look to testator's intent to acquire substitute property property
        
        gift is considered "adeemed" and other property is not substituted
    - - satisfied by inter vivos transfer; most states require writing or specific instructions in the will
        
        UPC: testator must provide for satisfaction in the will or a contemporaneous writing; or devisee must acknowledge the gift as one in satisfaction
  - - - provided for in contemporaneous writing OR devisee acknowledges in writing
  - - - 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
    - - bequest of a certain sum to be paid out of a particular fund
    - - gift of specific article or other property, which is identified an distinguished from all other things of the same kind and is satisfied only by delivery of the particular thing
  - - - (1) Property Passing by Intestacy
      - (4) Demonstrative Legacies
      - (5) Specific Bequests and Devises
      - (3) General Legacies
      - (2) Residuary Estate