Estates and Wills

I. Introduction
A. Governing Law = UPC
B. Definitions = Decedent; Estate; Personal Property; Real Property; Intestate; Testate; Probate; Issue; Heirs; Devise(e)
II. Intestate Distribution
A. 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/Descendants Representation; Surviving Parents; Descendents of Parents;
Grandparents/Descendants; Spouses 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 discount
III. 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 doesnt require presence of testator. May use notary.
C. Qualifications of a Witness
must be competent to observe, understand, remember facts. || UPC doesnt 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 natl
D. Classification of Testamentary Distributions
Specific gift = ID article or property; General gift = general assets; Demonstrative gift = gen gift + fund.
V. Limitations of Testamentary Dispositions
A. Spouses Elective Share
Surviving Spouse may elect to take of marital prop instead of will/intestacy by filing w/in 9mo. Estate includes: Net probate estate + decedants non-probate
transfers to other persons; decedents non-probate transfers to surviving spouse; value of surviving spouses net assets at death plus surviving spouse;s non-prob
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 Decedents Family
family allowed to take reasonable amounts during admin
VI. 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 IDd.
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 Will
A. 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 testators estate will not satisfy, beneficiary share abates: Property not disposed; Residuary; General device; Specific devise
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 Revival
A. Methods of Revocation
UPC may revoke by: performing revocatory act (burning, tearing etc); executing subsequent that revokes e/i; operation of law
B. 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/codicil
C. Revival of Revoked Will
If testator revokes earlier will with second, revo of second doesnt 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 Topics
Form & Execution of Wills
Intestate Succession and
Determining Heirship
Modification or Revocation of a Will
Non-Testamentary Transfers
Probate & Will Contests
Estates and Wills


A. In General
Process of establishing will as valid last will. Formal proceeding in cty where dec. domiciled at death or located.
B. Proof of Wills
Burden of proof on those submitting to probate; contestants bear burden of proving lack of capacity etc. Proof is signature/affidavit/etc
C. Proof of Lost Wills
If lost, presumed destroyed unless proven otherwise by contestant. If proof no revo + no auth, then may accept notes/extrins of content

XII. Will Contests
A. In General
Contestants may object in probate. If proof will invalid, will pass intestacy if no other valid will
B. Grounds for Contest
Capacity, undue influence (seeking to take advantage of donor on account of weakness. Suceptible + opportunity + disposition + apparent result)(invalid)
Mistake (Negligent misrepresentation of material fact)(inducementfacts outside the will that induce disposition in a manner OR factummistake in fact)(valid)
Fraud (inducementproof beneficiary make a knowingly false representation to testator to induce will in favor OR executionnature of instrument)(invalid)
C. Ambiguity
ambiguities resolved by looking to intent. May be patent or latent (allowing extrins evidence). Must be written intent
D. Standing to Object to Probate or Contest the Will
A party must have an interest in the will/intestacy to have standing to contest. In Terrorem clauses invalid (restricting recovery if contest) if valid grounds
E. Restrictions of Testamentary Power
no adherence to religion, no inducing divorce (contingency ok)
XIII. Non-Testamentary Transfers
A. Gifts
Inter vivos (Intent + delivery + acceptance); OR causa mortis (inter vivos possession, title on death by feared imminent threat)
B. Joint Tenancy
surviving JTs become full owners; joint banks are full owners unless agreement with bank
C. Pay-on-Death Registrations
bank or security accounts that pass to beneficiary on death
D. Power of Attorney
relationship where principal appoints agent to act on behalf; springing if in life but no capacity; non-durable if cancel on incompetence; terminates on death.