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Wills & Estates 2


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When does intestate distribution apply?
1. Person dies w/o valid will
2. Will is denied probate
3. Will does not completely dispose of estate (partial intestacy)
Gen, the law of the state where decedent was domiciled at death determines the disposition of __ __
Personal property
Gen, disposition of __ __ is determined by the law of the state where the prop is located
Real property
Intestacy statutes apply only to decedent's __ estate.
What kind of assets are considered probate assets?
Cash, real estate, personal effects
What are some nonprobate assets?
1. Assets that pass under K
2. Prop held w/ another w/ right of survivorship
3. Trust assets where the decedent is trustee or beneficiary
4. Assets over which decedent holds power of appointment
In what jurisdictions does a surviving spouse take an intestate share?
All Js
In NON-UPC states:

If decedent survived by spouse and descendant, what share of estate does spouse take?
1/3 or 1/2

If decedent survived by spouse and descendants and descendants NOT descendants of surviving spouse, how much of estate passes to spouse and how much to decedent's descendants?
Spouse: 1/2
Decedent's descendants: 1/2

If all of decedent's descendants are also descendants of surviving spouse, how much does spouse take? How much do descendants take?
Spouse: first $50,000 plus 1/2 of balance

Descendants: remaining 1/2 of estate

If all of decedent's descendants are also descendants of the surviving spouse, how much of estate does the spouse inherit?
The entire estate

If all of decedent's descendants are also descendants of surviving spouse, BUT surviving spouse ALSO has descendants who are not descendants of the decedent, the surviving spouse inherits how much of estate? Decedent's desce
Spouse: first $150,000 plus 1/2 of balance

Decedent's descendants: remaining 1/2 of estate

If any of decedent's descendants are not descendants of the surviving spouse, the surviving spouse takes how much of estate? Decedent's descendants?
Spouse: first $100,00 plus 1/2 of any balance

Decedent's descendants: remaining 1/2 of estate
Maj rule is that if the decedent is survived by a spouse but not descendants, the spouse inherits what?
The entire estate.

Note: substantial minority allow surviving spouse to inherit 1/2 and parents to inherit 1/2. If no parents, spouse inherits entire estate.
Under the REVISED UPC:

How much does surviving spouse inherit if decedent is survived by spouse but not descendants? Decedent's parents?
Spouse: first $200,000 plus 3/4 of any balance.

Decedent's parents: remaining 1/4 of estate.

Note: if not surviving parents, spouse inherits entire estate.
In several states, what happens if surviving spouse abandoned or failed to support decedent?
Surviving spouse disqualified fr taking intestate share.
A min of Js distribute shares among children and descendants of deceased children by which type distribution?
Class per stirpes, division of shares at the child level
Many states and the orig UPC use the per capita w/ representation under which the shares are determined how?
Per capita w/ representation: determined at the first generational level at which there are living takers.
How does per capita w/ representation work?
Each living child takes one share and the share of a deceased child is divided among her children by representation.
Under revised UPC and in several non-UPC states, the prop of decedent is divided how among children?
Per capita at each generation
How does per capita at each generation work?
Property is divided into equal shares at first generational level w/ living takers. Shares of deceased persons at that level are combined and then divided equally among takeres at the next generational level so that person in the same degree of kinship to the decedent always take equal shares.
In most states, what happens if the decedent is not survived by a spouse, decendants, or parents?
Descendants of the decedent's parents--i.e., the decedent's brothers and sisters (or their descendants) inherit.
What if a decedent is not survived by a spouse, decendants, parents or siblings in most states?
The estate passes to the decedent's grandparents--one half to the maternal and one half to the paternal grandparents (or their descendants).
What is intestate distribution in most states beyond the grandparent level?
One-half of the estate to the nearest kin on each side of the family (i.e., maternal and paternal), no matter how remote the rel to the decedent.
What are "laughing heir" statutes
Statutes that prevent inheritance by remote relatives, usu those related to the decedent beyond the grandparent (or descendant of grandparent) level.
What does "escheat" mean?
If decendent has no surviving relations (or is survived by relations too remote in states having "laughing heir" statutes), the estate escheats to the state.
What is the exception to escheat?
In a few states, the estate passes to the heirs of the previously deceased spouse of the decedent bf it escheats to the state.
A few states what happens to property received by decedent by gift, will, or inheritance from a parent if a decedent leaves no surviving spouse or descendants?
It reverts back to parent (or his heirs).
What is "separate property"?
Prop owned by a spouse bf marriage, and property acquired during marriage by gift, will, or inheritance.
What is "community property"?
Prop acquired during marriage that is not separate prop.

Note: All property on hand on dissolution of marriage (by divorce or death) is presumed to be commn prop.

If decedent not survived by descendants, his 1/2 share of comm estate passes to whom?
Surviving spouse
In several COMM PROP states:

If decedent survived by spouse and descendants, what does spouse take?
Entire community estate
In COMM PROP state and under REVISED UPC and other states:

Under what condition does surviving spouse take the entire comm estate?
Only if all of decedent's descendants are also surviving spouse's descendants. Otherwise, decedent's comm prop passes to his descendants.
What is "quasi-community prop"?
Prop acquired by one spouse while domiciled in another state that wd have been classified as comm prop had it been acquired while domiciled in the comm prop state.
Is real prop situated in another state quasi-community prop?
How many states have quasi-community prop laws?

Effectively, how do these laws act?

As elective share statutes
In the four states that have quai-community prop laws, the acquiring spouse may dispose of only how much of his interest in quasi-community prop by will? What happens to the rest?
1/2. The other 1/2 passes to the surviving spouse.
Negative Bequests:

When a testator expressly disinherits an heir but then dies partially intestate, do most states permit the heir to take an intestate shrae in the undisposed prop?
Negative Bequests:

Under the revised UPC and in non-UPC states, may a decedent expressly exclude an indiv fr taking prop passing by intestate succession by a prov in her will?
Today, all statutes allow adopted child to have what status w/ regard to inheritance rights?
The same status as natural child would have.
Can an adopted child inherit from or through the natural parents?
Normally, an adopted child has no inheritance rights fr or through the natural parents. What is an exception to this rule?
When a child is adopted by the spouse of a natural parent. In that case, the rel btwn that parent as well as the adopting parent and the child is not affected.
In some states, the adoption of child by spouse of natural parent terminates inheritance rights from whom?
The other natural parent.

UPC provides that such an adoption has no effect on the rel btwn the child and either natural parent.

Under Revised UPC, adopted child and her kin have inheritance rights from and through which: one of the natural parents OR both of the natural parents.
Both, but the other natural parent (the nonmarrying parent)and his kin have no inheritance rights fr or through the child.
Can a nonmarital child inherit from both parents?
All states permit child to inherit fr mother and father upon certain proof of paternity.
Under the common law rules and satutory auth, a child born (typicall w/i ___ days) after his father's death is considered the deceent's child for inheritance purposes.
W/ regard to poshumous children, how does the UPC go further than common law and statutory auth?
It permits any relative of the decedent in gestation at decedent's death to inherit if child lives for at least 120 hours after birth.
Sev states provide that a child conveived by the artificial insemination of a married woman is the husband's legitimate child for inheritance purposes if what happens?
If the husband consented to the insemintation.
Does a stepchild or foster child have inheritance rights fr his stepparent or foster parents?
In many Js, a stepchild or foster child can inherit fr the stepparent or foster parent in cases involving what?
Unperformed agreement to adopt.
What is a limitation of a stepchild or foster child's ability to inherit from a stepparent or foster parent in case involving an unperformed agreement to adopt?
The rule applies only to those claiming through the stepparent or foster parent (e.g., child cannot inherit fr stepparent's sister) and operates only in favor of the child (stepparents or foster parents do not inherit from child)
Do states make a distinction between siblings of half blood (half siblings)and siblings of whole blood?
No, although some states provide that half bloods take half as much as whole bloods.
Which Js have adopted the Uniform Simultaneous Death Act or the equivalent 120 hour survival rule of the UPC?
All Js, except for Louisiana
The USDA provides that when there is no suff E that the parties have died otherwise than simultaneously, the prop of each person is disposed ___.
as if he survived the other person.
In cases of simultaneous deaths, what types of assets pass as though the "owner" survived the "heir"?
1. Joint tenancies
2. Tenancies by the entirety
3. Community property
In situations of simultaneous death involving joint tenancies, tenancies by the entirety, or community property, how is does the prop pass?
one-half of prop passes as though one party survived and the other half passes as though the other party survived.
If there is sufficient E that one party survived the other, even for a brief interval, does the USDA apply?
The UPC addresses the problem of deaths in quick succession by stating that absent a contrary will provision, a person must survive the decedent by ___ hours in order to take as an heir or will beneficiary.
In what cases does the UPC 120 hour rule not apply?
1. If it would result in an escheat to the state
2. Does not apply to survivorship estates (joint tenancies, tenancies by the entirety)
At common law and in a few states today, a lifetime gift to a child is presumed to be an ___ ___ of the child's intestate shar eof the donor's estate.
advance payment
Most statutes permit advancements to be made to which heirs?
Any heir
Modern law statutes reverse the common law presumption and provide that a lifetime gift to an heir is ___ ___ ___ unless so proved.
not an advancement
In many states, how much proof of an advancement be shown?
By an express declaration or acknowledgement in a writing signed by the donor or donee
If an advancement is found, the value of the prop given to the advancee is "brought into the hotchpot" in determining the intestate shares. What does that mean?
It is added to the estate
Is the advancement brought into the hotchpot regardless of whether the advancee elects to share in the intestate distribution?
The maj view values the advanced prop when?
At the date of the gift
The UPC values the advanced property at what time?
The date of the advancee's possession or decedent's death, whichever occurs first.
In most states, the advancement doctrine does not apply if ___.
the decedent left a will that does not make a complete disposition of the estate.
If decedent left a will that does not make a complete disposition of the estate, how does the revised UPC treat an advancement of the testator?
The same as if under a total intestacy
If the advancee predeceases the decedent, the advanced prop is not taken into account in determining the intestate share of the advancee's descendants unless ___.
the written declaration or acknowledgment requires the prop to be taken into account.
If a beneficiary makes a valid disclaimer, the disclaimed interest passes as though what happened?
The disclaimant predeceased the decedent.
What are the statutory requirements for a disclaimer for tax advantages?
1. in writing
2. irrevocable
3. filed w/i 9 months after decedent's death or beneficiary's 21st birthday
May the disclaimer be partial?
It may be partial or total
What is one maj advantage of disclaiming an interest in a maj of states?
To defeat the claims of Cs
Can a disclaimer defeat a fed tax lien?
No, it attaches immediately upon a person's death
Most Js have enacted statutes that allow the surviving spouse to elect a statutory share of decedent's estate in lieu of ___.
taking under the will
Could a surviving spouse elect a statutory share of decedent's estate in lieu of taking under the will, even if a will provision prohibited it?
Several elective share statutes apply only to property owned by decedent at death (probate estate); thus, a lifetime transfer may cut off a surviving spouse's ___ ___ w/ respect to that prop
statutory share
Which community property states have an elective share statute?
None, because the community prop system has an inherent protection against disinheritance of spouses
Which kind of statutes found in four states are a form of elective share statute?
Quasi-community property statutes
In most states and under the ORIG UPC, the elective share amount is how much of the net estate?
UNder the revised UPC, the amt of the elective share is what?
It is determined depending on the number of years the couple was married.
Under the ORIG UPC, the elective share applies to the decedent's augmented estate. What does this comprise?
The decedent's probate estate plus certain nonprobate transfers made during the decedent's lifetime.
Under the revised UPC, what does the augmented estate include?
All that the original UPC says it includes, plus the couple's combined assets, including those of the surviving spouse.
Under the REVISED UPC, what minimum amt must the elective share be?
$50,000 (supplemental elective share)
In some states, the elective share applies to the ___ ___ ___ after payment of admin expenses, creditors' claims, etc. In other states, the elective shrae statute applies to the ___ ___.
net probate estate / augmented estate
What is the situs rule?
It limits the elective share of real prop to that located w/i the state.

A few states include the value of real prop located in another state.
The elective share applies to what personal property, located where?
All personal property wherevery located
Who can claim an elective share?
Only by or on behalf of the surviving spouse.
A guardian or conservator of an incapacitated or minor spouse can make an election (w/ ct approval) but a ___ ___ can not.
personal representative
Decedent must have been a ___ of the state at death of that state's elective share statute to apply
What effect on an elective share does a final divorce decree have?
If a final divorce decree was entered bf decedent's death, there is no right of election.
In cases of abandonment, failure to support, etc. does the majority rule entitle surviving spouse to an elective share?
Yes, but a few states bar the right of election under these circumstances.
Surviving spouse generally must file a ___ ___ ___ to take a statutory share.
notice of election
In most states, when the does the time period for filing notice of election begin running?
From the date the letters of admin are granted to the PR.
When must election be made under the UPC?
W/i nine months after the decedent's death or within six months after probate, whichever is later
Can probate ct extend the election time period?
Yes, in some states, upon a showing of good cause.
Under the UPC and in most states, how are outright testamentary gifts treated in rel to the elective share?
They are first applied
In several states, the electing spouse who has received outright testamentary gifts takes ___ under the will.
If surviving spouse rec'd life estate under the will, in most states and under REVISED UPC, is it counted as being in partial satis of the statutory share? Why?
No, bc the elective share entitles the spouse to outright ownership

Note: Under ORIG UPC, a life estate is counted as being in partial satis of the elective share.
In many states, the elective share is paid pursuant to the abatement rules that apply to C's claims. What does this mean?
Order of application:

1. Prop passing by partial intestacy
2. Residuary estate
3. Gen legacies
4. Demonstrative legacies
5. Specific bequests
A spouse may waive the right of election bf or during marriage, but what elements must the waiver have?
1. in writing
2. wigned by the spouse

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