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Trusts, Wills, & Estates > Chapter 2 - Intestacy > Flashcards

Chapter 2 - Intestacy Flashcards

1
Q

If a child wishes to share in the intestate distribution of a deceased parent’s estate, the child must permit the administrator to include in the determination of the distributive share the value of any property that the decedent, while living, gave the child by way of an?

A

Advancement

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2
Q

At common law, any ______ the decedent to a child was presumed to be an advancement - in effect, a ______ - of the child’s intestate share.

A

Life Time Gift / Prepayment

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3
Q

To avoid the advancement doctrine, the child has the burden of establishing the transfer was intended as an ________ that was not to be counted against the child’s share of the estate.

A

Absolute Gift

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4
Q

Advancement Doctrine Presumption

A

A parent would want an equal distribution of assets among children and that true equality can be reached on if if lifetime gifts are taken into account of those equal shares

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5
Q

When a parent makes an advancement to a child and the child predeceases the parent, the amount of the advancement is ___ from the shares of the child’s descendants IF _____________.

A

Deducted / other children of the parent survive

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6
Q

If a gift is treated as an advancement, it is accounted for in distributing the decedent’s estate by bringing it into?

A

Hotchpot

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7
Q

Giving money/property for no reason.

A

Absolute Gift

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8
Q

Alternate Advancement Doctrine used in Other States.

A

Lifetime Gift = is presumed NOT to be an advancement UNLESS it is shown to have been intended as such.

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9
Q

Requiring a ______ to evidence an advancement all but eliminates the _________ from the law of ________.

A

Writing / Doctrine of Advancements / Intestate Succession

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10
Q

UPC S. 2-109 - NAME?

A

Advancements

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11
Q

UPC S. 2-109(a)(I)(ii) - Elements

A
  1. Intestate 2. heir reicives gifts during decedents lifetime 3. DECEDENT declared in a contemporaneous WRITING OR 4. the HEIR acknowledged in WRITING 5. that the GIFT = Advancement
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12
Q

UPC S. 2-109(b) - Elements

A

Property Advanced = valued as of (1) the time the heir came inot possession or enjoyment of the property, OR (2) as of the time of the decedent’s death, OR (3) whichever comes first.

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13
Q

UPC 2-109(c) - Elements

A
  1. Recipient of Property 2. Dies before Decedent –> 3. RESULT: the property is NOT taken into account in computing the division and distribution of the decedent’s intestate estate, UNLESS –> 4. Exception: the decedent’s contemporaneous writing provides otherwise.
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14
Q

UPC 2-109 - Presumption

A

Gifts to children are NOT advancements UNLESS stated in writing to be advancements.

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15
Q

T or F for UPC? Gifts to children are presumptively advancements.

A

F. 2-109 applies to advancements made to spouses and collaterals (nephews, nieces, etc.) as well as to lineal descendants.

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16
Q

T or F for most States? Gifts to children are presumptively advancements.

A

T. In most states, only gifts to lineal descendants are considered advancements.

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17
Q

Has responsibility for the minor child’s custody and care.

A

Guardian of the Person

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18
Q

In most states, a parent’s ________ of a guardian, although not formally binding, is nonetheless persuasive in the court’s reckoning of the best interests of the child.

A

Testamentary Appointment

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19
Q

A guardianship of the person terminates when ______.

A

The minor reaches the age of Majority, dies, or is adopted.

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20
Q

UPC SS. 5-201 to 5-210 (1998) - NAME & Basis

A

Guardianship of the person for a Minor / Uniform Guardianship and Protective Proceedings Act (1997)

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21
Q

A guardian of the person has no authority to deal with the child’s ______.

A

Property

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22
Q

4 Alternatives for Child Property Management

A
  1. Guardianship of the property
  2. Conservatorship
  3. Custodianship
  4. Trusteeship
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23
Q

Trusts are only available to _______.

A
  1. Persons who create them during life; OR

2. Who die testate and create one by will

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24
Q

Trust created during someone’s life

A

Inter Vivos Trust

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25
Q

Trust created by someone who died testate and created a trust by will

A

Testamentary Trust

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26
Q

If a parent dies intestate, leaving property to a minor child, a ______ of the property OR a _______ must be _____ UNLESS _____ allows distribution of the minor’s share to a custodian under the ________ OR to the person who has _____ of the child.

A
  1. Guardian
  2. Custodian
  3. Appointed by a Court
  4. State Law
  5. Uniform Transfers to Minors Act
  6. Physical Custody
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27
Q

4 Types of Property Management of Minors

A
  1. Guardianship
  2. Conservatorship
  3. UMA or UGMA Custodianship
  4. Trusteeship
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28
Q

Guardianship

  1. Need Will:
  2. Expense:
  3. Ct. Supervision:
  4. Title:
  5. Flexibility:
  6. Type of Distribution:
  7. Termination:
A
  1. No Will
  2. Highest Expense
  3. Yes, full court supervision from probate court (appointment, management, accountings)
  4. No Title
  5. Lowest Flexibility
  6. Income only
  7. Age of Majority
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29
Q

Conservatorship

  1. Need Will:
  2. Expense:
  3. Ct. Supervision:
  4. Title:
  5. Flexibility:
  6. Type of Distribution:
  7. Termination:
A
  1. No Will
  2. .2nd Highest Expense
  3. Yes, Partial Supervision (appointment, accounting)
  4. Yes, Title
  5. 2nd Lowest Flexibility
  6. Income and/or Principal
  7. Age of Majority
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30
Q

Adulthood

A

Age of Majority

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31
Q

The guardian of the property who has been given “title as trustee” to the protected person’s property along with investment powers similar to those of a trustee.

A

Conservator

32
Q

A person who is given property to holdfor the benefit of a minor under the Uniform Transfers to Minors Act (UTMA) or its predecessor, the Uniform Gifts to Minors Act (UGMA).

A

Custodian

33
Q

Under UTMA and UGMA statutes, some form of which has been enacted in every state, property may be TRANSFERRED to a person, including the donor, as ____ for the benefit of the minor.

A

Custodian

34
Q

UTMA or UGMA Custodianship

  1. Need Will:
  2. Expense:
  3. Ct. Supervision:
  4. Title:
  5. Flexibility:
  6. Type of Distribution:
  7. Termination:
A
  1. No Will
  2. Lowest Expense
  3. No Court Supervision
  4. Yes, Title
  5. 2nd Highest Flexibility
  6. Income and/or principal
  7. Age of Majority
35
Q

Best Option for Minor Property Management

A

Trusteeship

36
Q

Most well-designed estate plans provide for a ____ in the event that there is a minor beneficiary, perhaps b/c an adult beneficiary predeceases the donor, leaving a minor child as a SUBSTITUTE TAKER.

A

Contingent Trust

37
Q

Trusteeship

  1. Need Will:
  2. Expense:
  3. Ct. Supervision:
  4. Title:
  5. Flexibility:
  6. Type of Distribution:
  7. Termination:
A
  1. Yes, Will
  2. Depends (custom tailored through will)
  3. No Court Supervision
  4. Yes, Title
  5. Highest Flexibility
  6. Income and/or Principal (distribution in perpetuity)
  7. No required termination dates
38
Q

An annuity that has no end, or cash payments that continue forever.

A

Distribution in Perpetuity

39
Q

A series of payments made at fixed intervals of time. Examples include monthly insurance payments, monthly home mortgage, pension payments, etc.

A

Annuity

40
Q

Primarily 1) the rule that prohibits a slayer form inheriting from his victim, and 2) voluntary disclaimer.

A

Bars to Succession

41
Q

Bars to Succession pertain not only to intestate succession, but also to ______.

A
  1. Gifts under wills
  2. Trusts
  3. Other modes of nonprobate transfer
42
Q

_____ assets, on the other hand, such as an insurance policy with an identified beneficiary, become the property of the beneficiary immediately upon the death of the person who owned the asset. The existence of a will is irrelevant, and the asset will not become part of the decedent’s probate estate. Similarly, if a person owned a house with another person as “joint tenants with rights of survivorship,” sometimes shorthanded as “jointly,” when he dies, full ownership of the property will pass directly to the surviving owner.

A

Non-Probate

43
Q

A legal proceeding that takes place in the ______ in the county where a decedent resided. The _____ process provides for: (1) the collection and preservation of the decedent’s probate assets, (2) the payment of all debts and taxes owed by the estate, and (3) the determination of the proper distribution of the assets.

The simplest definition of a _____ asset is anything held solely in an individual’s name at the time of his death, such as a bank account with only the decedent’s name on it. After the death occurs, we cannot look at the passbook or statement and identify the new owner of the money. Accordingly, we must look to the decedent’s will, and to the ______ process, to help us make that determination. If there is no will, the _______ court will apply the intestacy statute to determine ownership of the decedent’s ______ assets, including the bank account.

A

Probate / Probate and Family Court

44
Q

RULE: No Slayer Statute = ?

A

Constructive Trustee in Equity

45
Q

The Slayer Rule / Constructive Trustee Case

A

In re Estate of Mahoney

46
Q

RULE: It is the ___, which when accomplished, leads to the profit of the slayer that brings inot play the constructive trust to present the unjust enrichment of the slayer by his ___.

A

Intent to Kill / Intentional Killing

47
Q

RULE: The fact that the slayer is ___ in a criminal case does NOT dispense w/ the ___ of the murder in a proceedings in equity to charge him as a constructive trustee. –> Restatement?

A

Convicted of Murder / Necessity of Proof / Restatement of Restitution, S. 187, Comment D

48
Q

RULE: The _____ passes to the slayer but ____ holds him to be a constructive trustee for the heirs or next of kin of the decedent.

A

legal title / equity

49
Q

Who has the authority to decide a Slayer’s intent?

A

Jury

50
Q

Who has the jurisdiction to assign a slayer as a constructive trustee?

A

Court of Chancery

51
Q

Probate Court Error 1 in In re Estate of Mahoney

A

w/o jurisdiction –> No power to establish purely equitable rights and claims

52
Q

Probate Court Error 2 in In re Estate of Mahoney

A

The judgment decreed the estate directly to the parents, which contradicts constructive trustee statutes.

53
Q

3 Rules States use when they have no statute preventing a slayer from taking by descent or distribution from the estate of the victim (133)

A
  1. The legal title passed to the slayer and may be retained by him in spite of his crime.
  2. The legal title will not pass to the slayer because of the equitable principle that no one should be permitted to profit by his own fraud, or take advantage and profit as a result of his own wrong or crime.
  3. The legal title passes to the slayer but equity holds him to be a constructive trustee for the heirs or next of kin of the decedent.
54
Q

The sole duty of the constructive trustee is?

A

To convey the property to its rightful claimant

55
Q

A plastic remedy that courts of equity have long used to make restitution and prevent unjust enrichment.

A

Constructive trust

56
Q

A determination that enrichment is unjust is not a moral judgment but a?

A

legal one

57
Q

Restatement 3rd of Restitution

A

Legal rules that give the property to the wrongdoer cannot simply be ignored BUT they can be accommodated to the doctrine prohibiting unjust enrichment by a simple equitable device –> a decree that the wrongdoer holds the property as constructive trustee for someone else.

58
Q

Can a donor opt out of the Slayer Rules?

A

Wisconsin: Yes
Louisiana: Maybe
All other states: No –> donor’s will ignored / Slayer does NOT take

59
Q

Does the statue apply to nonprobate transfers (joint tenancy, life insurance, pensions, etc.) as well as to wills and intestacy?

A

A well-drafted slayer statute bars the killer from succeeding to probate and nonprobate property. (137)

60
Q

When do Mercy Killings (euthanasia) prohibit the helper from taking in the decedents estate?

A

When the mercy killing is intentional & unlawful w/in the meaning of the state’s statute. (In re Estate of Schunk - 137)

61
Q

If the killer is barred from taking, who takes?

A

The prevailing view is that the killer is treated as having predeceased the victim.

  1. UPC 2-803: the killer is treated as having disclaimed the property.
  2. UPC 2-1106: a disclaimant is treated as having “died immediately before” the victim.
62
Q

A testamentary gift given to one person in place of another person

A

Substitute Gift

63
Q

A clause in a will leaving real estate to someone.

A

Devise

64
Q

To leave (real estate) to someone by the terms of a will.

A

Devise

65
Q

Is a criminal conviction required to establish an intentional killing for the slayer rule?

A

No, BUT UPC 2-803(g) & most states provide that a final criminal conviction of a felonious and intentional killing is conclusive.

66
Q

Is acquittal dispositive of the acquitted individual’s status as a slayer? What is the standard? Civil or criminal standard?

A

NO, in the absence of a conviction the court must determine whether, under the civil standard of preponderance of evidence whether the individual would be found criminally accountable for the killing.

67
Q

What is the slayer status if the appeal is pending?

A

In re Peterson (Laci Peterson Case): the conviction, not being final, did not conclusively bar Laci’s husband and convicted killer Scott from taking. However, the conviction was sufficient to make out a prima facie case of a felonious and intentional killing, putting the burden on Scott to overcome it, which he did not.

68
Q

What is the slayer status if killer is not to be culpable by reason of legal insanity? Common Law Rule / Alternative Case Law

A

Common Law Rule: one “who has killed while insane is NOT chargeable as a constructive trustee.” (No slayer status) –> Mahoney Case
Alternative Case Law: the finding of insanity does NOT render the killing lawful. (slayer status)

69
Q

Unworthy Heirs

  1. United States
  2. Some States
  3. UPC 2-114 (2008)
A
  1. United States: Usually limited to killers.
  2. Some States:
    a. A spouse who abandons the decedent is barred
    b. Parent who refuses to support the children is barred
  3. UPC 2-114 (2008): bars inheritance by a parent from a child if there is clear and convincing evidence that the parental rights of the parent could have been terminated for nonsupport, abandonment, abuse, or neglect.
70
Q

Unworthy Heirs (The People’s Republic of China)

A

Behavior-Based Model: punishes bad behavior and rewards good behavior for anyone including worthy nonrelatives.

71
Q

Sometimes an heir or a devisee will decline to take the property, a refusal that is called a ______.

A

Disclaimer (140)

72
Q

Disclaimers allow for _______.

A

Post-Mortem estate planning.

73
Q

The 2 most common reasons for disclaiming are?

A
  1. To reduce taxes

2. To keep property from creditors

74
Q

(especially of a gift as opposed to a legacy) between living people.

A

Inter vivos (140)

75
Q

A gift, whether inter vivos or by will, requires _____ by the donee.

A

acceptance

76
Q

To eliminate the difference between renouncing an intestate share and disclaiming a devise, almost all states have enacted disclaimer legislation that treats the disclaimant as ______.

A

having died before the decdent or before the time of distribution (141)

a. 2-1105
b. 2-1106

77
Q

If a person disclaims under applicable state law but the disclaimer is not “qualified” under the federal tax code, does gift tax liability result? If so, why?

A

YES, under the federal code, the disclaimer must be made within 9 months after the interest is created (person dies) OR after the donee reaches 21, whichever is later. (142)

Trusts, Wills, & Estates (3 decks)

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