6 Wills & Probate Flashcards
Mutual Will
A will made in agreement with another person to dispose of certain property interests
Reciprocal Will
Each person’s will designates that all property be distributed to the other person
Holographic Will
Entirely handwritten by the testator (the person making the will) and signed and dated by the testator, no witnesses required (in most states)
Nuncupative Will
An oral will
Rules for Testamentary Capacity
(to write a will)
Testator must be ≥ 18
As testator you must…
1. know you’re executing a will
2. be aware of what assets you own
3. know & remember your relationship to your benes
4 reasons provisions in a will could be invalidated
- fraud
- testator under undue influence by a bene
- mistakes in will clauses
- will not properly executed/signed/witnessed (per state law)
Person who writes a will
Testator
Laws that distrib property in absence of a will
Laws of intestacy
Survivorship clause of a will
(and how long it is)
States that named beneficiaries in the world cannot inherit unless they live for a specific amount of time (the “survivorship period”) after the will-maker dies. The survivorship period ranges 5 to 60 days.
Residuary clause of a will
States who inherits everything after expenses (funeral fees, taxes, debts, executor fees, other administrative expenses), gifts & bequests, and other claims
in CFP land, intestate property in a community property state passes to…
surviving spouse
In what state is property probated?
- Personal property: state of domicile
- Real property: state where it’s located (situs)
Real property is immovable (real estate), personal property is movable (cash, invmts, cars, etc)
Ancillary probate
A secondary probate process required when a deceased person owned real estate or other titled property in a state different from their primary residence
Probate Disadvantages
- how long?
- what costs?
- Time - typically 9-24 months
- Costs - attorney, court, & executor fees
- Public, lack of privacy
3 ways to avoid probate
TNT
1. Titling, “operation of law” (JWTROS, TBE, TOD, life estate)
2. Named beneficiaries, “contract” (named benes on retirement accts, pensions, & life insurance)
3. Trusts
3 ways to divide assets down family tree
- per capita - each person equally
- per stirpes - each branch equally
- per capita by generation - per stirpes for gen2, per capita for gen3
