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Wills Trusts Estates Bar Exam Outline

Law Outlines > Oklahoma Bar Bundle Outlines

This is an extract of our Wills Trusts Estates Bar Exam document, which we sell as part of our Oklahoma Bar Bundle Outlines collection written by the top tier of Oklahoma City University School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Oklahoma Bar Bundle Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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

*
Personal Property= Intestate's domicile at death

*
Real Property= situs of property

* Share of Surviving Spouse o 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 o

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

* Rest of Estate o Following rules govern distribution of:

*
All property of unmarried person and property of married person that o

doesn't go to spouse Descendants

*
ALL to descendants PER CAPITAL W/ REPRESENTATION Divide into shares at 1st generation w/ survivors (ignore ageneration 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?

o

No Descendants but At Least 1 Parent

*
1/2 to each parent, or

*
ALL to surviving parent

o

No Descendants and No Parents

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

o

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 o No Next of Kin Escheat to government for support of Public Schools. o

* Treatment of Various Types of Individuals o 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 equitableadoption

*
Relinquishment of parental rights in divorce decree DOES NOT impact ability of adopted kid to inherito

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

o

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

o

Posthumous Child

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

o

Heir Killing Intestate

*
If Murder in 1st, Murder in 2nd, Manslaughter in 1st:
? Heir treated as dying first

* Other Intestacy Issues o 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 itCompute shares as if advancement were still in estate based onvalue at advancement date or what intestate placed as value And then just subtract the amount of the advancement (will end upgetting 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 advancemento

Survival

*
Mere instant sufficient to an heir or will beneficiary

o

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 o

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 o Real Prop: Law of Situs o Personal Prop: law of domicile at death o OK considers will valid if it complies with

*
OK Law,

*
Law where executed, or

*
Law of Decedent's domicile at death o 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 capacityA person adjudicated incompetent can still execute valid willduring a "lucid interval" Sane person could lack capacity at times like if drunk ordisoriented 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 o Classification of Testamentary Gifts

*
Devise- gift of Real Property

*
Bequest- gift of Personal Property Specific Bequest- distinguishable from rest of testator's estate ato

o

o

o

o

time of will execution Specific Bequest of General Nature- not distinguishable from resttill testator dies

*
Legacy- gift of personal property not sufficiently described to be specific Most common= $*
Residuary Gift- remainder of the estate Ademption of Specific Gift By Extinction

*
Specifically Gifted Item Not in Probate Estate Gift Fails*
Don't get substitute gift nor value Ademption by Satisfaction

*
Beneficiary Received Gifted Property Before Testator's Death

*
Arise more often w/ money than specific gifts

*
Proving Satisfaction A writing is requiredChanges in Value of Testator Property

*
Specific Gifts Appreciation & depreciation between execution and deathnormally irrelevant

*
Gift of Securities Specific*
If gift of securities is specific, increase goes to beneficiary

*
Specific if has words of identification (stock cert) or possession (my) General*
Beneficiary get only number of shares stated Exoneration of Debts Owed on Specific Gifts

*
General Rules (when will silent) Personal Property: yes, debt paid offReal Property Mortgage- No- beneficiary only gets equity*
Will can say otherwise if clear Interest on Legacies

*

Generally Begins 1 year after testator's death*
Spouse as Legatee Interest begins at time of deatho Abatement

*
Issue What gifts fail when estate inadequate to satisfy all gifts?*
Order Intestate propertyResiduaryGeneral giftsDemonstrativeSpecificWithin a class, abatement is pro rata o Disclaimers

*
Just same as heirs can disclaim, so too can beneficiaries of will. Prop then passes as if predeceased o Survival

*
Mere instant, unless will says otherwise

* Changes to Beneficiaries Between Execution & Testator's Death o Lapse (private gifts)

*
Beneficiary Fails Survive Testor (or treated as though fails survive) Lapse is where a gift fails (revoked by operation of law) becausethe beneficiary fails to survive the testator or is treated as if not surviving cause disclaim or murder

*
Distribution of Lapsed Gifts- Generally Under Express Terms of WillGift Saved by Rule of Law (anti-lapse statute or cy pres doctrine:OK) Via Residuary ClauseVia Intestacy*
Will silent, no saving, no residuary clause or lapsed gift is the residuary, then pass via intestacy o

Anti-Lapse Statute

*
Basic Operation
? Prevents lapse by substituting the descendants or the predeceased beneficiary for the predeceased benficiary

*
Requirements:
? Predeceased beneficiary was a relative of testator (not spouse)
? Predeceased beneficiary left at least one descendant who survived testator

o

Cy Pres (charitable gifts)

*
Court must find that testator has a general charitable intent broader than the charitable purpose which cannot now be carried out

*
If settlor's intent specific, cy pres not avail

* Interpretation & Construction

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