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Wills Trusts and Estates


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Intestate Succession
Passage of prperty when the decent dies without a valid will
Dying without a will.
A person entitled to take under intestate sucession laws.
Presumptive Heirs or Hier Apperant
the persons who would be your heirs if you wer to die intestte
a person related to the decedent in a ascending linela line e.g. parantd and grandparents
A person related to the decedent in a descending lineal line
Collaleteral Relative
A person related to the decendent but not in a lineal line e.g. siblings, nieces, and pephews, aunts and ncles, and cousins
A type of will that merely amends and already existing will
Testator Testatrix
a person who dies with a valid will.
Generic term for a persosn who recieves proerty under a will,or a trust
A property conveyance whereby the owner divides title to the prerty into legal and equitable itnerests and imposes fiduciary duties on the holder of the legal title to deal with the property for the benefit of the holder of the equitable interests and imposes fiduciary duties on the holder of the legal title to deal with the property for the benefit of the holder of the equitable title.
The person who creates a trust by making the property transfer which divides title and impses duties. The settlor may also be called the trustor, the grantor or the donor.
the person who holds the legal title to trust proerty and hasthe fiduciary duty to manage the property according the the settlor's instructions and applicable trust law.
The preperty conveyed in trust form
the process of collecting and mamging all a decedent's property so that the decedent's creditors are paid to the fullest extent allowed by law and the remaining property
The person in charge of admisntering the estate of an intestate decedent
the person in charge of administering the estate of a testate decdent
Personal Representative
Generic term forthe person in charge of adminsterining the estate of a decedent
In a broad sense, prbate refers to the entire process of adminstrating a decedent's estate. In a narrow sense probate means to prove a document or oral declartion to be the decedent's valid will.
Probate Asset
An asset of a decedent that passes either under intestate succession o through a will
Non-Probate Asset
an asset of a descendant that passes via a manner other than intestate succession or through a will. they include:
1. JT with rights of survivorship 2. contracts tat provide for the payment of benefits upon death to designated person such as life insurance, retirement plans, and account with financial institutions (e.g., joint with survivorship rights and pay on death accounts
What law generally governs property succession?
State: each state has a set of statute that sets forthe the state's intestte distribution scheme, requirements fo a vlaid will rules of construction and interpretation, and the methods of estate admisnsitration.
Separate Property
Each spouse owns his or her entire income as well as any prperty brought into the marriage or acquired during the marriage by gift.
Community Property
Spouses own undivided interests in the prperty they acquire from earning during the marriage. Thus, the marriage of the testator typically has not impact on the prety disposition prvided for in a premarriage will. The deceased spouse
s will may not dispose of the suvivng spouse's share of the community without the survivor's consent.
Personalty is governed by what law?
Law of the domicile
Realty is governed by what law?
Law where the realty is located.
Basic Procedure for Determining Shares of Descendants?
1. Identify intestate's children
2. Determine if any predeceased child left descendant who outlived intestate
3. Ascertain state's method of handling Multi-generational succession
Posthumous or afterborn heir
heir concieved while the intestate is alive but who is not born until after the indtestats's death. If a father or mother dies before the child is born it is treated as "in being" from the time of conception and has inheritance rights. this is not true for farther remove relatives
Adopted Children
an adoptedindividual is treated as a biological child of the adoptive parents. the adopted dhild is inserted into tjhe adoptive parents' family tree. The adopted child is not longer in the biological parents family tree thus from and biologicla ancestors or collateral relatives.
Adoption by estoppel/ Equitable Adoption
Occurs when a "parent" acts as though the "parent" has adopted the "child" even though a formal court-approved adoption never occured. Durroudning factors are examined in making the determinantion such as whether the parent breached an agreement to adopt, made a good fith attempt to adopt that failed for some reason, or held the child out as actually having been adopted
Some jurisdiction may permit a spouse to waive the spouse's right to a forced share in a written agreement signed either before or suring the marriage. Know however that case and statutory law reflect a public policy against enforcing such waivers. courts may ignore a waiver if the surving spouse did not recieve full disclosure of financesor if the court believes the waiver is unconscionable. Testator should present the spouse with a detailed accounting and to increase likelhood of the agreemnt's vlaidity, the spouse signing the agreement should be represented by indpendent counsel.
Most states treat an Ex-spouse as having legally predeased and void any testamentary dispostion to that person (assuming that there has been a final divorce). Gifts to ex-relatives due to the divorce are sometimes upheld.
Exception: the specific mention of "I leave--to Ex-Spouse"
A testamentary gift intended for a beneficiary who died will not take effect. Note that this may also occur r if a beneficiary biologiaclly outlives the testator but is legally treated as predeceasing the testator. EX: disclaiming a gift, or lapse b/c slayer, divorce etc. This is the reason testator's should provide at least one contigent beneficiary.
Anti-Lapse Statutes
provide substitute beneficiaries for the lapsed gift. The goal of these statutes is to provide a sistribution that th testator would have preferred over the perperty passing under the residuary lcause or via intestacy.
Class Gifts and Anti-Lapse Statutes
If a will provides, "I leave all my property to my children," the children of any predeceased child will take the predeceased child's share. (like JT w/ rights of survivorship)
Note: if the predeceased child dead before the testaro executed the will, many states would not permit this predeceased child's descendants to take becasue the class never icnluded the predeceased shild.

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