In intestacy, what is the applicable law?
Marital rights: law of domicile of spouses at time property was acquired
Personal property: domicile at death
Real property: law of situs
In intestacy, what is the spouse’s share if the decedent is survived by: spouse + descendants
One-third or one-half
In intestacy, what is the spouse’s share if the decedent is survived by: spouse + no descendants
Spouse takes the entire estate
Per Stirpes
One share for each child.
One share for deceased child with at least one surviving descendant. Share passes to deceased child’s descendant.
Per capita with representation
(majority)
The estate is divided at the first level with surviving members/living takers. Each living person gets a share.
Share of each deceased child passes to their issue.
Per capita at each generation
Estate divided at first level with living takers.
Shares of deceased persons are combined and divided equally among takers at next level. (ie. 1/2 of 1/3 = 1/6)
What is required to execute a will?
- Legal capacity
- Testamentary capacity
- Testamentary intent
- Formalities
What is a holographic will?
Will entirely in testator’s handwriting.
Majority rule: virtually everything in testator’s handwriting
How can a will be revoked?
- Operation of law
- marriage, divorce, murder
- Physical act
- Burning, tearing, etc. (intent to revoke, concurrent with act)
- By written instrument
- subsequent will/codicil
*Presumption of no revocation
What is dependent relative revocation (DRR)?
When testator revokes will under mistaken belief that another disposition of their property would be effective, and but for mistaken belief, testator would not have revoked will.
If the other disposition fails, the revocation also fails.
Rules of will construction
- Favor construction that avoids intestacy
- contradictory provisions = last one prevails
- construe as a whole
- ordinary words = ordinary meaning
- technical words = technical meaning
- attempt to give all words meaning
A will can incorporate a document if. . .?
- Intent to incorporate
- Writing is in existence at the time of execution
- the document is sufficiently described in the will
What is an anti-lapse statute?
Saves the gift if the predeceasing beneficiary was in a specified degree of relationship to the testator and left descendants who survived the testator
Ademption by extinction
Item is not in the estate. Beneficiary does not get anything.
**ONLY applies to specific devises and bequests
Statutory exceptions:
- Replacement property
- Balance of purchase price
- condemnation/insurance proceeds
- proceeds from sale by guardian
What is a surviving spouse’s elective share?
Can elect statutory share instead of taking share under will (amount varies)
Pretermitted children
Protects accidentally omitted children.
Not when:
- Testator had other children at the time the will was executed and devised substantially all of estate to the parent of omitted child
- omission was intentional
- Testator provided for omitted child by transfer outside of the will
Undue influence requires:
- influence existed and was exerted
- influence over powered testator’s mind and free will
- testamentary disposition would not have been executed but for the influence
Proven by circumstantial factors
Under a no contest clause . . .
Beneficiary forfeits interest if they contest the will and lose
Applicable law of will
real property = law of situs
personal property = law of domicile at time of death
savings statute: will admissible to probate in a jurisdiction if executed under law of: that jurisdiction, state where executed, testator’s domicile at the time of execution, domicile at the time of death
Legal capacity
at least 18 years of age and of sound mind
Testamentary capacity
Testator understands:
- Nature of act
- nature and extent of property
- persons who are the natural objects of their bounty
Must have capacity at the time of execution of the will
Testamentary intent
Present intent that instrument operate as will
Formalities
- in writing
- signed by testator (or proxy)
- two witnesses
- witnesses and testator sign in presence of each other
Devise
Gift of real property (devisee)
