Which of the following is FALSE regarding wills terminology?
A
You Selected: Issue refers to the descendant’s parental line.
B
Living people cannot have heirs.
C
Heirs are people entitled to inherit by intestate succession.
D
A decedent dies testate when he dies with a will.
MULTIPLE CHOICE
FILL IN THE BLANK. If all of the decedent’s descendants are also descendants of the
surviving spouse, and the surviving spouse has no other descendants, according to the
Uniform Probate Code, the surviving spouse takes __________ of the estate.
A
You Selected: All
B
One-half
C
One-third
D
None
MULTIPLE CHOICE
FILL IN THE BLANK. If the decedent is survived by a parent but no descendant, the
surviving spouse takes __________.
A
$225,000 and 50% of the remainder
B
One-third
C
You Selected: $300,000 and 75% of the remainder
D
$150,000
MULTIPLE CHOICE
FILL IN THE BLANKS. Under the USDA, an heir must be proved by __________ to
have survived the decedent by __________.
A
Clear and convincing evidence, 60 hours
B
You Selected: Clear and convincing evidence, 120 hours
C
Preponderance of the evidence, 60 hours
D
Preponderance of the evidence, 120 hours
Which of the following statements regarding a decedent’s children is FALSE?
A
In general, adoption curtails inheritance rights between natural parents and the child.
B
There must be a parent-child relationship for the child to inherit.
C
A stepparent adoption does not cut off the rights of an adoptive child to inherit from his
natural parents.
D
You Selected: There does not need to be a parent-child relationship in order for the
child to inherit.
MULTIPLE CHOICE
With regard to inheritance by a child born after the father has died, which of the
following statements is TRUE?
A
A child who is born after the father has died can never inherit from the father.
B
A child who is conceived after the father has died can never inherit from the father.
C
The child must be born within 250 days after the father’s death to inherit.
D
You Selected: A child who is born after the father has died can still inherit from the
father.
MULTIPLE CHOICE
FILL IN THE BLANKS. Generally, a posthumously born child must be born within
__________ days of the father’s death. Under the UPA, the child must be born within
__________ days of the father’s death.
A
250, 300
B
250, 320
C
You Selected: 280, 300
D
280, 320
MULTIPLE CHOICE
Under what method of calculating shares is the estate split at the first generational level,
then split among the first surviving issue within each branch?
A
You Selected: Per stirpes
B
Per capita with representation
C
Per capita at each generation
D
Per stirpes at each generation
CH3 – 80
For a will to be valid, which of the following is NOT required?
A
You Selected: The testator must be at least 21 years old.
B
The will must be in writing.
C
The testator must have mental capacity.
D
The testator must have intended that the document be her will.
MULTIPLE CHOICE
Under the UPC, which of the following statements regarding the witnessing of a will is
FALSE?
A
You Selected: An informal witness signature is acceptable.
B
The will must be signed by two witnesses.
C
The witnesses need to see the testator acknowledge either his own signature or that the
document is his will.
D
Correct Answer: The witnesses must sign the will at the same time as the testator.
MULTIPLE CHOICE
Regarding the competency of witnesses, which of the following is TRUE?
A
The UPC has adopted the purge theory.
B
Under the common law, an interested witness was competent to witness the will.
C
You Selected: Under the purge theory, the witness’ interest does not invalidate the will.
D
The probate court will purge the gain if there are two other disinterested witnesses.
MULTIPLE CHOICE
Which of the following circumstances is LEAST likely to validate a will that failed to
comply with the strict formalities of execution?
A
The will substantially complied with the formalities of execution.
B
You Selected: The will was signed by one witness.
C
There is clear and convincing evidence that the testator intended the document to be
his or her will.
D
The will that is otherwise validly executed was signed by someone else on behalf of the
testator in the conscious presence of the two attesting witnesses rather than in their line
of sight.
MULTIPLE CHOICE
Which of the following is TRUE regarding holographic wills?
A
Holographic wills only require one attesting witness.
B
You Selected: The UPC only requires that material provisions of a holographic will be in
the testator’s handwriting.
C
Holographic wills are informally recorded oral wills.
D Holographic wills need not be signed as long as extrinsic evidence indicates
testamentary intent.
CH 4 – 100
Which of the following statements regarding revocation of a will is FALSE?
A
An oral revocation of a will is invalid.
B
You Selected: When there are inconsistencies between a will and a subsequent codicil,
the will controls.
C
Destruction of an unexecuted copy of a will does not revoke the will.
D
Divorce generally revokes all will provisions in favor of the former spouse.
MULTIPLE CHOICE
FILL IN THE BLANKS. When a testator had possession of his will and that will cannot
be found after the testator’s death, the burden is on the __________ to prove the will’s
existence or non-existence by __________.
A
opponent, preponderance of the evidence
B
opponent, clear and convincing evidence
C
proponent, preponderance of the evidence
D
You Selected: proponent, clear and convincing evidence
MULTIPLE CHOICE
Which of the following is TRUE regarding revocation by a physical act?
A
Under the UPC, the particular language of the will must be destroyed.
B
You Selected: A testator must have the intent to revoke.
C
If a will cannot be found at the testator’s death, it is deemed that the testator revoked
the will by physical act.
D
Copies of the will may by introduced if the original cannot be found.
MULTIPLE CHOICE
FILL IN THE BLANKS. Revocation of a will __________ revoke all codicils; revocation
of a codicil __________ revoke the will to which it relates.
A
does, does
B
You Selected: does, does not
C
does not, does
D
does not, does not
MULTIPLE CHOICE
Which of the following is FALSE regarding the Dependent Relative Revocation (DRR)
doctrine which reinstates a revoked will?
A
The revocation was made by the testator under a mistaken belief of law or fact.
B
The testator would not have revoked the will but for the mistaken belief of law or fact.
C
The doctrine invalidates the mistaken revocation and revives the earlier revoked will.
D
You Selected: The testator revoked the will by physical act.
Which of the following is NOT required for a document without testamentary formalities
to be incorporated by reference into a will?
A
The testator must intend that the document be incorporated into the will.
B
The document must be identifiable.
C
The document must be in existence at the time the will is executed.
D
You Selected: The document must be notarized and left in the possession of an
attorney.
MULTIPLE CHOICE
Which of the following correctly states the order of abatement?
A
You Selected: Residuary, general bequests, specific bequests
B
Specific bequests, general bequests, residuary
C
Residuary, specific bequests, general bequests
D
General bequests, residuary, specific bequests
MULTIPLE CHOICE
Which of the following statements accurately reflects the law as to ademption?
A
You Selected: Ademption by extinction only applies to a specific testamentary gift.
B
Ademption by extinction applies to nominal or formal changes in the nature of the
subject matter.
C
Ademption by extinction applies when the testator is incompetent.
D
Under the UPC, the testator’s intent to adeem by satisfaction does not need to exist
before the legacy or bequest is rendered inoperative.
MULTIPLE CHOICE
Regarding lapsed gifts, which of the following is FALSE?
A
Under the common law, a gift to a devisee who predeceased the testator would pass to
the residuary.
B
Anti-lapse statutes only prevent a gift from lapsing if the devisee is in a protected
relationship with the testator.
C
You Selected: Under anti-lapse statutes, if a devisee predeceases the testator, the
devisee’s gift goes to the devisee’s estate.
D
Under the common law, if a gift to a class member lapsed, the rest of the class
members shared the gift.
CH6 – 75%
Which of the following statements regarding an omitted spouse is TRUE?
A
Under the UPC, the spouse is entitled to 50% of the parties’ marital property.
B
The elective share exists in community-property states.
C
You Selected: Under the UPC, the spouse is entitled to 50% of the augmented estate.
D
When a spouse is omitted from the will, it creates a rebuttable presumption that the
omission was intentional.
MULTIPLE CHOICE
Regarding gifts to children, which of the following is FALSE?
A
A parent can intentionally disinherit his children
B
Correct Answer: A child who is omitted from the will is entitled to his intestate share.
C
You Selected: At common law, any gift to a child was presumed to be an advancement.
D
If a gift is an advancement, the “hotchpot” analysis is used to determine the children’s
shares.
MULTIPLE CHOICE
Which of the following is NOT required for a disclaimer to be valid?
A
A writing
B
Signed by the party disclaiming the property
C
You Selected: Signed by two witnesses
D
Filed within a certain statutory time period
MULTIPLE CHOICE
FILL IN THE BLANKS. The __________ rule prevents a party from taking under the
decedent’s will when the party __________.
A
disclaimer rule, murders the testator
B
disclaimer rule, abuses an elder
C
You Selected: slayer rule, murders the testator
D
slayer rule, abuses an elder
CH 7 100
Regarding undue influence, which of the following is FALSE?
A
The contestant must demonstrate that the testator had weakened intellect at the time of
execution of the will.
B
The contestant must demonstrate that the beneficiary had a confidential relationship
with the testator.
C
The contestant must demonstrate that the beneficiary received a substantial benefit
under the will.
D
You Selected: The contestant must demonstrate that it was the beneficiary's intent to
deceive the testator.
MULTIPLE CHOICE
Regarding fraud, which of the following is TRUE?
A
Fraud in the execution is a misrepresentation that causes the testator to make a
different gift than the testator would have otherwise made.
B
You Selected: The constructive trust is the most common remedy for fraud.
C
Fraud in the inducement is a misrepresentation as to the character or contents of the
will.
D
The beneficiary bears the burden of showing that she did not engage in an unlawful
misrepresentation at the time of conveyance.
MULTIPLE CHOICE
FILL IN THE BLANK. An interested party must file a will contest claim within
___________ after the will is admitted to probate.
A
You Selected: six months
B
three months
C
one month
D
one year
CH 8
Which of the following is NOT an example of non-probate property?
A
You Selected: Life insurance
B
POD contract
C
Property held in joint tenancy with right of survivorship
D
Correct Answer: Property distributed through a codicil to a will.
MULTIPLE CHOICE
FILL IN THE BLANK. A non-claim statute prevents a(n) __________ from pursuing a
claim after a certain time period.
A
devisee
B
You Selected: creditor
C
heir
D
omitted child
MULTIPLE CHOICE
Which of the following statements regarding a donee’s general power of appointment is
FALSE?
A
The donee can appoint a creditor as the owner of the property.
B
The donee can appoint herself as the owner of the property.
C
There are no conditions or restrictions on the donee’s power.
D
You Selected: If the donee fails to exercise the power of appointment, the property will
go to the residuary.
MULTIPLE CHOICE
If a donee of a general power of appointment fails to exercise that power, what happens
to the decedent’s property?
A
You Selected: The property reverts back to the donor’s estate.
B
The property escheats to the state.
C
The court will appoint a new donee of the power of appointment.
D
The donee will inherit the assigned property.
What is a putative spouse and how is one treated for purposes of inheritance?
When a marriage is not valid but at least one spouse believes in good faith that it
is, then the spouses are termed "putative" and qualify as spouses for inheritance
purposes.
What kind of will is valid even if witnesses do not sign it, as long as they sign affidavits
before a court officer?
A "self-proved will"
Under the UPC, a will that is executed with attesting witnesses may be made
"self-proved" by the acknowledgment of the testator and affidavits of the
witnesses before a court officer in substantial accordance with a prescribed form.
How does the UPC treat the inheritance rights of a person adopted by a stepparent?
The adoption does not curtail the inheritance rights of either natural parent, and
adds in inheritance rights through the stepparent, resulting in the child standing
to inherit through three different people: two natural parents and the
stepparent/adopted parent.
What is the general statutory order in which expenses and debts are to be paid from an
estate?
1. Administrative expenses
2. Last medical expenses and funeral expenses
3. Family allowance
4. Tax claims
5. Secured claims
6. Judgments against the decedent
7. All other claims
What kind of will need not be witnessed?
A holographic will.
A holographic will is one that is completely handwritten and signed by the
testator.
If a testator executes a will, then adopts a child, then dies without revising the will, what
is the presumption regarding the omission of that adopted child?
What can overcome this presumption?
In such case, a presumption is created that the omission of the child was
accidental.
This can be rebutted by evidence that (1) the omission was intentional, (2) the
testator had other children when the will was executed and left substantially all of
the estate to the other parent, or (3) the child was provided for outside of the will
with the intent that it be in lieu of a provision in the will.
How does a decedent's estate pass according to the parentelic approach?
Under this approach, a decedent's estate would first pass to the decedent's
parents and their issue; if there are none, then to the decedent's grandparents
and their issue, and so on.
What is the Dependent Relative Revocation (DRR) Rule?
DRR allows a court to disregard a testator's revocation that was based on a
mistake of law or fact that would not have been made but for that mistake. The
testator's last effective will, prior to the set-aside revocation, will once again
control his estate.
According to the Uniform Testamentary Additions to Trusts Act (UTATA), what happens
when a will attempts to pour over estate assets into a trust not executed in accordance
with the Statute of Wills?
A will may still pour over assets into such trust as long as the trust is identified in
the will and its terms are set forth in a written instrument.
Note: if these requirements are met, the pour-over bequest is valid even if the
trust is unfunded, revocable, and amendable.
How does a decedent's intent weigh on how property passes via intestacy?
The decedent's intent regarding the disposition of property that passes by
intestacy is irrelevant.
What kind of will is generally valid only for the disposition of personal property in
contemplation of immediate death?
Nuncupative (oral) wills
These wills are invalid under the UPC and most states. Where valid, they require
at least two witnesses, can devise only a limited amount of personal property, and
may require that the testator die within a prescribed period after making the oral
will.
What is a supplement to a will that alters, amends, or modifies the will, rather than
replacing it?
A codicil.
A codicil must be executed with the same formalities as a will, but need not be
executed with the same formalities as the will that it alters, amends, or modifies.
An attested will may be altered, amended, or modified by a holographic codicil
and a holographic will may be altered, amended, or modified by an attested
codicil. A valid codicil republishes the will as of the date of the codicil and may
even validate an invalid will if the codicil refers to the will with sufficient certainty
to identify or incorporate it, or if the codicil is on the same paper as the invalid
will.
What are the requirements for an international will?
1. In writing
2. Signed
3. Witnessed by two individuals
4. Witnessed by a third person who is authorized to act in connection with
international wills and who must prepare a certificate to attach to the will.
What are the three ways a will may be wholly or partially revoked?
1. Subsequent writings
2. Physical destruction of the will
3. Operation of law
Under common law, what happened to a devise when the recipient beneficiary died
before the testator?
The gift failed and went to the residue, unless the will provided for an alternate
disposition.
What is the order gifts are abated, unless otherwise specified in the will?
1. Intestate property
2. Residuary bequests
3. General bequests
4. Specific bequests
What are the formal execution requirements for a valid will?
1. A writing
2. Signed
3. Present testamentary intent
4. Joint presence of two witnesses
5. Witnesses understand the significance of the testator's act
6. Witnesses understand that the will has no legal effect until after the testator's
death
What is the difference between a duplicate and copy in terms of lost wills?
Duplicate: one of two copies of the same will executed in the same manner, each
complying with the same formalities. This may be admitted to probate.
Copy: like a photocopy, cannot itself be admitted to probate, although it may be
used as proof of testamentary intent.
How does the revocation of a will differ from the revocation of a codicil?
Revocation of a will revokes all codicils thereto, whereas revocation of a codicil
does not revoke a will, but rather revives it.
How are patent and latent ambiguities in a will resolved, and what happens if they
cannot be resolved?
Patent and latent ambiguities may both be resolved by extrinsic evidence. If the
ambiguity cannot be resolved, then the gift in question becomes part of the
residue.
When two individuals die at the same time and there is no evidence as to who actually
died first, what act is applied, and what is the result?
The Uniform Simultaneous Death Act (USDA) provides that when there is
insufficient evidence of the order of death of two individuals, the property of each
passes as though the other individual predeceased him.
Note: this act only applies when there is no instrument to state otherwise.
Would the following gift be classified as specific, general, demonstrative, or residuary:
"$50,000 to Wesley from my Checking Account, but if funds are not sufficient, then the
rest paid out of general funds."
Demonstrative.
A testator intended that a demonstrative legacy be paid from a particular source,
but if that source is insufficient, then the testator directs that the legacy be
satisfied out of the general assets of the estate.
What are the requirements for a will incorporating by reference another writing not
executed with testamentary formalities?
The other writing must:
1. Exist at the time the will was executed,
2. Be intended to be incorporated, and
3. Be described in the will with sufficient certainty so as to permit its
identification.
If a gift is adeemed, what is the beneficiary entitled to?
i. Whatever is left of the specifically devised property,
ii. The balance of the purchase price owing from the purchaser of the property,
iii. Any amount of condemnation award for the taking of the property, to the
extent unpaid upon death, or
iv. Property acquired from the foreclosure of a security interest on a specifically
devised note.
What doctrine allows a will to provide for the designation of a beneficiary or the amount
of a disposition by reference to some unattested act or event occurring before or after
the execution of the will / testator's death, if the act or event has some significance apart
from the will?
The acts of independent significance doctrine.
While similar to republication by codicil and incorporation by reference, the acts
of independent significance doctrine is the only one that applies to future acts or
events.
What is quasi-community property?
Quasi-community property is separate property that would have been community
property had the parties been domiciled in a community-property state when
acquired. It is treated as community property for distribution purposes.
Under most anti-lapse statutes, what happens when a gift is made to a close relative of
the testator, and that relative predeceases the testator but leaves behind issue?
The issue succeeds to the gift, unless the will expressly provides to the contrary.
Note: Most statutes require that the devisee who failed to survive was a
grandparent, descendant of a grandparent, or a stepchild of the testator.
What are the three property management options for property transferred to minors
pursuant to a will or intestacy?
Because minors lack the legal capacity to hold property, the law provides three
property management options:
1. Guardianship
2. Custodianship (available via will only)
3. Trusteeship (available via will only)
When a gift is to an entire class and one member of the class predeceases the testator,
what results when there is no anti-lapse statute applicable?
What happens when there is an anti-lapse statute applicable?
No anti-lapse statute applicable: only the surviving members take
Anti-lapse statute applicable: the issue of the predeceased member take the
member's share. The majority of states and the UPC apply the anti-lapse statute
first, before the determination of the class gift.
What is the majority rule regarding the specific devise of encumbered property?
In most states, the specific devisee of encumbered property takes subject to the
mortgage, notwithstanding the fact that the will contained a clause directing the
executor to pay the decedent's debts.
What is the elective share and where is it available?
The elective share is only available in common-law states, not community
property states. The elective share allows a surviving spouse to choose to
receive a fraction of the decedent's estate instead of any gift contained in the will.
The elective share applies to all property of the decedent, regardless of when it
was acquired.
What is the rule for ademption by satisfaction?
A general, specific, or demonstrative devise may be satisfied in whole or in part
by an inter vivos transfer to the devisee after the execution of the will, if it was the
testator's intent to satisfy the devise by the transfer.
What does a homestead exemption statute do?
Under such statute, a certain acreage or value of real property is exempt from
creditors' claims, is inalienable during the life of the owner without consent, and
passes upon death by statute, not by will.
Note: the amount of the homestead exemption differs by state.
Under the modern trend, what is required for a gift to be considered an advancement?
Under the UPC, which is the modern trend, a gift is an advancement only if:
1. The decedent declared it so in a contemporaneous writing / the heir
acknowledged it so in a writing, or
2. That writing otherwise indicates that the gift was to be taken into account in
computing the division and distribution of the decedent's intestate estate
Note: the UPC approach applies to all heirs, not just the decedent's children
What is the support called that a surviving spouse may receive during probate?
Family allowance. The amount of family allowance varies by jurisdiction. Some
jurisdictions allow minor children to receive a family allowance as well.
Depending on the jurisdiction, the family allowance is either a set amount or one
based on the marital standard of living.
What comprises the marital-property portion of a decedent's augmented estate, and
how much of that may a surviving spouse claim as the elective share?
The UPC subjects property acquired before and during marriage to the "marital
property" portion of the augmented estate to which the surviving spouse is
entitled.
Under the UPC, the surviving spouse may take an elective-share amount equal to
50% of the value of the marital-property portion of the augmented estate.
How may a surviving spouse waive a forced or elective share?
The right of a surviving spouse to take her elective or forced share can be waived
in writing if the writing is signed after fair disclosure of its contents.
What three things negate an omitted spouse's entitlement to the intestate share of the
decedent's estate when the marriage began after the execution of the will?
A spouse omitted from a will is entitled to an intestate share unless:
1. A valid prenuptial agreement exists,
2. The spouse was given property outside of the will in lieu of a disposition, or
3. The spouse was specifically excluded from the will.
What are the six fiduciary duties of a power of attorney?
1. Exercise the powers for the benefit of the principal and in accordance with
reasonable expectations
2. Act in good faith
3. Separate the assets of the principal from agent
4. Exercise reasonable care, competence, and diligence
5. Account for all transactions made on behalf of the principal
6. File an accounting of the administration whenever so directed by the court
If a party decides to disclaim a testamentary gift, what happens to that property?
The disclaiming party is treated as if the party predeceased the decedent, and the
property is distributed to the next eligible taker.
Under common law, a will could be probated at any time, even decades after the
decedent's death. What is the time limit for probating a will under the UPC?
The UPC provides that probate proceedings must be brought within three years
of the decedent's death. After that, there is a presumption of intestacy.
When a will is executed that bequests security, and then additional security is later
acquired, how is that additional security treated under the UPC?
Additional security acquired after the will was executed will be included with the
bequest of security accounted for in the will.
Note: This is different than under common law, which treats a gift of securities
differently depending on whether the bequest was specific or general. The UPC
has rejected this approach of classifying the type of bequest.
When a spouse is omitted from a will, what is the presumption and how is it rebutted
under the traditional view?
A rebuttable presumption is created that the omission was a mistake.
The traditional view is that the presumption cannot be rebutted unless the intent
to omit the spouse is apparent from the language of the will or the spouse was
otherwise provided for.
What do most jurisdictions require for a valid disclaimer?
Most jurisdictions require that the disclaimer be:
1. In writing
2. Signed
3. Filed within a certain period after the decedent's death
When is the value of an inter vivos gift determined?
The value is determined at the time the recipient takes possession or enjoys it,
whichever is first.
What does the Uniform Transfer to Minors Act do?
The Uniform Transfer to Minors Act (UTMA) appoints a custodian to use property
transferred to a minor at the custodian's discretion on the minor's behalf without
court approval and with no accounting requirement. The custodian must turn any
remaining property over to the minor upon the minor's attainment of age 21.
Can a party take a family allowance from a decedent's estate when that party is
responsible for the decedent's death?
No, a party cannot take property from a decedent when the party is responsible
for the decedent's death. This includes an intestate share, an elective share, an
omitted spouse's share, exempt property, a homestead allowance, and a family
allowance.
Do involuntary manslaughters and assisted suicides fall within the homicide doctrine,
barring a party from taking property from a decedent?
Involuntary manslaughters (as well as self-defense killings) do not fall within the
homicide doctrine.
Assisted-suicide killings do fall within the homicide doctrine.
How does elder abuse affect an individual taking from a decedent's estate?
Some states bar an individual from taking if the individual is guilty of elder abuse.
Requirements vary- some require conduct just short of homicide, while others
will bar for abandonment. Most jurisdictions treat the abuser as predeceasing the
decedent.
Which power of attorney becomes effective upon incapacitation of the principal?
A healthcare power of attorney