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Execution / Valid Wills
- 1. T = 18
- 2. signed by T' (or at his direction)
- 3. 2 Witnesses
- - Witnesses must sign in T's consciouse presence (one contemporaneous transaction)
- - T doesn't have to sign in W's presence
- - W doesn't have to sign in other W's presence and doesn't have to know signing a Will
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Without Self-proving affidavit
- 1. 1 of the witnesses
- 2. or 2 W's as to signature of T
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Venue (probate)
- 1. residency; if no residency
- 2. where property located or where died
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Safe Deposit Box
- 1. can exmaine w/o court orer w/ bank official by SS, executor, or child over 18
- 2. deliver Will to Executor or Court
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Interested Witness
- Does not invalidate, but bequest is invalid, unless:
- 1. W proved w/o interested W testimony;
- 2. corroborated by T' of disinterested person; or
- 3. if W is an heir under intestacy, takes lesser of bequest and intestacy amount
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Holographic Will (requirements)
- 1. wholly in handwriting
- 2. signed ("I, Joe" counts as signature)
- 3. intent (evidence allowed to prove)
- - can have holographic codicil to typed will
- - intent must be to take effect at death
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Oral Will
- 1. last sickness
- 2. at home or if not at home, doesn't return home
- 3. personal property only
- 4. if more thatn $30, then need 3 Witnesses
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Anti-Lapse (specific gifts and residue)
- Gift to predeceased beneficiary lapses, unless:
- 1. B is descendant of T's parents; and
- 2. descendant of parent survivies by 120 days...?
- - "if X survives me" bypasses anti-L statute
- - anti-L statute trumps "surviving B" rule in residue clause...?
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Anti-Lapse (class gifts)
- 1. Surviving Members take, but anti-lapse statutes apply to appropriate class members (kin), unless kin was dead prior to execution
- - ex: to "descendants of my bro"= class gift
- - ex: to "A,B, C, the descendants of my bro" is not class gift (or inclusion of per capita?)
- - class closes at T's death
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Disclaimer (probate)
- 1. written, signed, notary
- 2. w/in 9 months of death
- 3. filed w/ court (copy to rep)
- 4. can be partial
- 5. executor/g' can disclaim; parent can not for minor
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Advancement
- lifetime gift not advancement unless:
- 1. declares at tiem of gift, in writing
- 2. acknowledged by donee in writing
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Marital Status after Will Executed
Later married: doesn't affect (b/c homestead, CP, allowance protects SS)
Later divorced: ex-spouse treated as predeceased
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Pretermitted Child
1. if no other children: takes intestate share, unless receives non-probate transfer
- 2. other children provided for: limited to gifts to other children
- 3. other children NOT provided for: intestate share
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Revocation
- 1. by subsequent instrument
- 2. physical act
- 3. presumed revoked if in T's possession and can't find
- 4. no "partial revocation" (can't cross out lines)
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Lost Will
- 1. duly executed
- 2. overcome presumption of revocation
- 3. contests proved by someone who read or heard will
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Change on face of Will
- 1. words added/changed = ignored
- 2. if "I want X to take Z instead of A" + signed = valid
- 3. "$5k, date, Mary" = not valid
- 4. unless these changes are to holographic Will and 2 persons testify towards handwriting!
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Revival
- 1. no revival by terminating subsequent Will
- 2. unless: execute codicil to prior Will
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Types of Bequests:
- 1. specific: my car to Y
- 2. demonstrative: $25k from sale of exxon to X
- 3. general: $25k to X
- 4. residue
- 5. intestacy
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Abatement (order)
- 1. intestacy
- 2. residue - personal property
- 3. residue - real
- 4. general - personal property
- 5. general - real
- 6. specific (demonstrative) - personal property
- 7. specific (demonstrative) - real
- (demonstrative not in statute; treated like specific. this is not example of I give exxon stock in estate to...)
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Pro-rate Estate Tax Apportionment
from all of estate - probate and non-probate
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Ademption: Devised Property Not In Estate
- 1. "Exxon stock to Joe" - if Exxon stock not in estate
- = Joe gets nothing
- 2. "proceeds of exxon stock" and no exxon stock in estate,
- = if traceable at death, Joe gets proceeds (but not insurance proceeds)
- 3. Demonstrative - "$25k from exxon stock"
- = doesn't matter where exxon stock is; Joe gets $25K!
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Bequests of Stock (not in estate)
"I give MY 100 shares of Exxon stock to X"
- if not in estate = ademption (gets nada)
- - if split and there are 200 since execution
- = X gets all 200
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Bequests of Stock (not in estate)
"I give 100 shares of Exxon stock to X"
- It's not specific, so
- = X gets value of 100 shares of stock!
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