Wills Trusts Estates Bar Exam - Bar Exam Outlines

Wills Trusts Estates

INTESTACY

• Apply when die w/o a will: total intestacy

• Apply when have valid will but it doesn’t dispose of ALL of the decedent's property: partial intestacy

• Property remaining after intestate's debts & taxes are paid passes to intestate's heirs

• Intent of decedent does not matter.

• It like a state created estate plan

• Applicable Law

  • Marital Rights- Who owns property before death?

    • Law of domicile @ time of property acquired

    • Rights do not change as couple moves from 1 state to another

  • Succession Rights-- Which state's intestacy law applies?

    • Personal Property= Intestate's domicile at death

    • Real Property= situs of property

• Share of Surviving Spouse

  • Distribution depends on the type of family members who outlive the deceased spouse

    • No Descendants (children, grandchildren, etc.), no parent, and no sibling

      • Surviving Spouse gets

        • ALL

    • No descendants but at least one parent or sibling

      • Surviving Spouse Gets

        • All Joint Industry Property; and

        • 1/3 of non-joint industry property

    • Descendants, all of whom are descendants of the Surviving Spouse

      • Surviving spouse gets

        • 1/2 of entire estate

    • Descendants, but at least 1 is not a descendant of the surviving spouse (survivor's step kid)

      • Surviving Spouse gets

        • 1/2 of joint industry property, and

        • A share of the non-joint industry property as if surviving spouse were a child

• Only a surviving spouse if legally married (no common law, or same sex)

• Rest of Estate

  • Following rules govern distribution of:

    • All property of unmarried person and property of married person that doesn’t go to spouse

  • Descendants

    • ALL to descendants PER CAPITAL W/ REPRESENTATION

      • Divide into shares at 1st generation w/ survivors (ignore a generation that’s all dead)

      • Create one share for each member of that generation who is alive & one share for each member of that generation who died first but is survived by descendants who outlive the intestate

      • Give one share to each surviving member

      • Divide the share of a deceased surviving member among his/her descendants in same manner

• No Descendants but At Least 1 Parent

  • 1/2 to each parent, or

  • ALL to surviving parent

• No Descendants and No Parents

  • All to siblings and their descendants, per capita w/ representation (like first example)

• No Descendants, no parents, no siblings or their descendants

  • 1/2 to paternal grandparents & down to aunts/uncles/cousins with the other half to the maternal grandparents & down to aunts/uncles/cousins

  • If 1 side of family has died out, surviving side takes all

• No Descendants, no parents, no siblings or their descendants, no grandparents or their descendants

  • Next of kin

• No Next of Kin

Escheat to government for support of Public Schools.

• Treatment of Various Types of Individuals

  • Adopted Individuals (TESTED)

    • Inheritance Rights of Adopted Kid

      • Vis-a-vis Adoptive Parents

        • Adopted kid DOES inherit from & through parents by adoption & their kin

      • Vis-a-vis Biological Parents

        • Adopted kid DOES inherit from & through bio parents

    • Inheritance Rights of Adoptive Parents

      • Parents by adoption DO inherit from and through adopted kid

    • Inheritance rights of Bio Parents

      • Bio parents DO NOT inherit from adopted kid

    • Adoption by Estoppel/Equitable Adoption

      • Unperformed agreement to adopt may give rise to equitable adoption

    • Relinquishment of parental rights in divorce decree DOES NOT impact ability of adopted kid to inherit

• Non-Marital Kids

  • Vis-a-Vis Mom

    • Kid takes from & through Mom

  • Vis-a-Vis Father

    • Child takes from & through the father only if one of the following shown:

      • Written & witnessed acknowledgment of paternity

      • Father marries mom after kids birth AND acknowledges or adopts kid

      • Father publicly acknowledges kids as own, OR

      • Court determination of paternity DURING dad's life

  • Upon Non-Marital Kids Death

    • All of kid's property to (or through) mother unless father acknowledged or adopted kid

• Half-Blooded Heirs (OK issue)

  • Ancestral Property

    • Ancestral property, that is, prop the intestate acquired by gift, devise or inheritance, passes to WHOLE blooded relatives

  • Non-Ancestral Property

    • No special treatment

• Posthumous Child

  • Kid conceived before but born after death of parent is treated as living at death of parent

• Heir Killing Intestate

  • If Murder in 1st, Murder in 2nd, Manslaughter in 1st:

    • Heir treated as dying first

• Other Intestacy Issues

  • Advancements

    • Irrevocable gift intended by donor as prepayment of inheritance to a lineal descendant

    • Proof of Advancement

      • Evidence of the advancement must be in writing

        • In the advancement gift or grant

        • In writing by intestate

        • Acknowledged in a writing by heir

    • Effect

      • Advancee must account for it

      • Compute shares as if advancement were still in estate based on value at advancement date or what intestate placed as value

      • And then just subtract the amount of the advancement (will end up getting equal)

    • If share greater than advancement

      • No debt created so don't need put $ back into estate

        • So can distribute w/o considering the advancement amount and the advancee as an heir (but the process is optional)

    • If advancee predeceases advancer?

      • Advancee's kids are charged w/ the advancement

• Survival

  • Mere instant sufficient to an heir or will beneficiary

• Disclaimers

  • An heir (or beneficiary) cannot be forced to accept inheritance or gift under a will

  • Must be written, acknowledged before notary, timely filed (9 months from death)

  • Disclaimed prop passes as if disclaimant predeceased

    • Disclaimant cannot redirect gift

  • Irrevocable

  • Cant disclaim to avoid creditors

• Negative Wills Not Allowed

  • You cannot disinherit an heir w/o leaving the property to someone else

  • Must do in valid and express provision in will

WILLS

• Validity

  • Real Prop: Law of Situs

  • Personal Prop: law of domicile at death

  • OK considers will valid if it complies with

    • OK Law,

    • Law where executed, or

    • Law of Decedent's domicile at death

  • Requirements of a Valid Will

    • Legal Capacity

      • 18

    • Testamentary Capacity- Sound Mind

      • Elements:

        • Understand the Action- making a will

        • Comprehend Effect of the Action- disposing of prop at death

        • Know General Nature & Extent of Property

        • Recognize Natural Objects of Bounty (family members)

        • Simultaneously Hold ALL ELEMENTS

      • Lower standard than contractual capacity

      • A person adjudicated incompetent can still execute valid will during a "lucid interval"

      • Sane person could lack capacity at times like if drunk or disoriented cause accident

• Testamentary Intent

  • Must intend THE VERY INSTRUMENT executed to be the will

• Formalities ( STRICT COMPLIANCE)

  • Attested

    • In writing

    • Signed by Testator or Proxy

      • Signature is any mark made w/ present intent to authenticate the will

      • Proxy allowed if in testators presence AND at their direction

    • Testator or Proxy Subscribes

      • Signs AT THE END of the document

      • Any material after that signature is ineffective

    • Attestation (Witnessing)

      • Testator REQUEST Witness to Attest

      • Testator Subscribes (or acknowledges a prior subscriptions) in PRESENCE OF WITNESSES

      • Publication

        • Must tell witnesses document is his will or witnesses able infer from conduct, but don't need know contents

      • 2 Witnesses

        • If interested:

          • Interested witness's give void but will is othewise valid

          • Exception:

            • Extra non interested witnesses

            • Beneficiary also an Heir

              • But receives smaller of

                • Intestate share or gift under will

      • Both Sign Own Name (no proxy)

      • Sign in Presence of Testator (but both not need at same time)

      • Sign at END OF WILL

      • Write Place of Residence

        • But if don't wont effect validity

    • Attestation Clause

      • No required but prima facie evidence that all formalities complied with

    • Self Proving Affidavit

      • Testator & witnesses swear under oath that requirements for valid will satisfied

      • In uncontested cases, SPA removes requirement that witnesses come to court & probate faster

      • May be separate document or combined with will (each need signatures)

• Holographic (Handwritten Wills)

  • Requirements:

    • Entirely in Testator's Handwriting

    • Dated

    • Signed

      • Anywhere, no requirement it be at end

  • Effect of Non-Holographic Mateiral

    • Deemed surplus, so does not impact the dispositive scheme of the will, can be ignored

      • Example Letterhead, but not fill in blank forms

  • Of Equal "Strength" as Attested Will

    • May revoke an attested will & visa versa

• Nuncupative (oral)

  • Can be used to dispose of up to $1000 of property

  • ONLY for

    • Soldier or Sailor on Active Duty

    • Made When in Fear of Imminent Death

    • Testator Asks one Witness to Bear Witness to the Will

    • 2 disinterested witnesses hear the words

    • Prompt Probate

      • Written memo of the words offered for probate w/in 6 months of when words spoken.

• Changes to Property Between Will Execution & Testator's Death

  • Classification of Testamentary Gifts

    • Devise- gift of Real Property

    • Bequest- gift of Personal Property

      • Specific Bequest- distinguishable from rest of testator's estate at time of will execution

      • Specific Bequest of General Nature- not distinguishable from rest till...