Chapter 4 & 5 Flashcards
Succession
Act of acquiring property of decedent by will or operation of law when a person dies intestate
Holographic will
Written in the makers own handwriting
Nuncupative will
Oral
Statutory will
A fill in the blank type of will that is authorized by statues in a few states
Joint will
Will for spouses, one will signed by both
Mutual wills (reciprocal)
Separate and identical. Neither may change after the first spouse dies
Living wills or health care directive
Identifies the wishes of a person when they cannot express themselves due to being incapacitated
Specific Devise
UPC provision on gifts of real or personal property
Residuary clause
Describes distribution of all property not specifically identified else where in will
Ademption
The intentional or unintentional revoking, cancellation or recall of gift
Ademption by satisfaction
A testator decides to change the timing of a gift in order to permit the beneficiary to enjoy the benefits of the gift before the testators death
Ademption by extinction
A testator devises a specific piece of property in his will and the testator no longer owns that property at his death. The devise fails
Lapse
Failure to distribute a gift because the named beneficiary predeceases the testator
Abatement
Process of determining order in which gifts will be used to pay testators expenses
MN Stat: 524.3-903
Distribution; order in which assets appropriated abatement
MN Stat: 524.3-902 Abatement
B. The share of surviving spouse who elects to take an elective share. Shares of distributees abate, without any preference or priority as between real and personal property, in the following order.
- Property not disposed of by will
- Residuary devises
- General devises
- Specific devises
Abatement within each classification
Is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will
If the will expresses an order of abatement
The shares of the distributees abate as may be found necessary to give effect to the intention of the testator
If the subject of a preferred devise is sold or used incident to administration
Abatement shall be achieved by appropriate adjustments in, or constribution from, other interests in the remaining assets
Half blood
UPC allow for the recovery as if full blood
Lineal descendants
Persons with whom one is related in the descending line, one’s children, grandchildren, great-grandchildren, etc.
Lineal Ascendants
Persons with whom one is related in the ascending line-one’s parents, grandparents, great-grandparents, etc
Per Capita
Method of dividing estate in equal shares without the right of representation
Per Stirpes
Distribution by representation. Depends on the relationship
Degrees of Relationship-Consanguinity
Relationship by blood through at least one common ancestor
Escheat
The passage of property to the state when an intestate decedent leaves no surviving blood relatives or spouse entitled to inherit the intestate’s estate
Civil union
A legal union between same-sex couples offering many of the same rights and responsibilities associated with a legal marriage
Domestic Partnership
A legal arrangement between same sex couples offering limited benefits to broad rights and responsibilities associated with a legal marriage
Forced Share
The spouse’s statutory right to choose a share of the decedent estate instead of inheriting under the provisions of the decedent’s will
Stat 524.2-212: Right of Election Personal to Surviving Spouse
This may only be exercised during the surviving spouses lifetime.
Effect of divorce UPC 524.2-802
Not a surviving spouse unless, by virtue of a subsequent marriage, the person is married to the decedent at time of death. A decree of separation which does not terminate the status of husband and wife is not a dissolution of marriage for this purpose.
Antenuptial (premarital) agreement
A contract made by a man and a woman before their marriage or in contemplation of that marriage whereby the property rights of either or both the prospective husband or wife are determined.
Postnuptial agreement
A contract made by spouses after marriage whereby the property rights of either or both spouses are determined
Adopted children
The adopted child is treated as a natural child of the adoptive parents and not the child of the natural parents.
Pretermitted (omitted) child
A child omitted in a will by a parent.
Posthumous child
Is conceived before but born after the death of his or her father. Under most state statutes, the child is given an intestate share of the deceased fathers estate
Homestead allowance
Exempts the homestead from claims by creditors regardless of the amount of the householders debt
Stat 524.2-402 descent of homestead
A)If there is a surviving spouse, the homestead, which is the family residence, descends free from any testamentary or other disposition of it to which the spouse has not consented in writing or as provided by law:
1) no surviving descendant of decedent
2) surviving descendants of decedent, then to the spouse for the term of the spouse’s natural life and the remainder in equal shares to the decedent’s descendants by representation
B) if no surviving spouse and the homestead has not been disposed of by will it descends as other real estate
Exempt property
524.2-403
A) if there is a surviving spouse, then, in addition to the homestead and family allowance, the spouse is entitled from the estate to:
1) property not exceeding $10,000 in value in excess of any security interests therein, in household furniture, furnishings, appliances, and personal effects, subject to an award of sentimental value property and;
2) one automobile, without regard to value
B) no spouse, the children are entitled jointly, unless a child was omitted intentionally.
524.2-404 Family allowance
A) in addition to homestead and exempt property, the decedent’s surviving spouse and minor children, shall be allowed a reasonable family allowance in money out of the estate for their maintenance:
1) for one year if the estate is inadequate to discharge allowed claims; or
2) for 18 months if the estate is adequate to discharge allowed claims.
B) the amount of the family allowance may be determined by the personal representative in an amount not to exceed $1,500 per month.
C) payable to surviving spouse, if living; otherwise to children, their guardian, or conservator, or persons having their care or custody.
D) exempt and has priority over all claims
E) not chargeable against any benefit or share passing.
Succession
The act of acquiring property of a deceased person, whether by operation of law on the persons dying intestate, or by taking under a will.
Intestacy
Death without a valid will
Testamentary intent
Requirements for a valid will that the testator must intend the instrument to operate as his or her last will.
Testamentary Capacity
Soundness of mind. The measure of mental ability.
How to determine testamentary capacity:
Natural Objects of Testator’s Bounty
Understands who their family members are, friends, charities, etc. for whom the testator has affection
How to determine testamentary capacity:
Insane delusions
A person with a disordered mind imagines facts to exist for which there is no evidence
How to determine Testamentary capacity:
Lucid intervals
A temporary restoration to sanity during which an incompetent person has sufficient intelligence and judgement to make a valid will
Formal Requirements of a Will
M.S. 524.2-502
Must be:
In writing
Witnessed
Executed; and
Self-proving affidavit
Witnesses to a Will must be:
Competent;
Attest, to bear witness
Subscribe, to sign one’ down name at bottom of will;
Interested person’s, witness who is also an heir or beneficiary
Publication, formal declaration made at signing
Modifying the will:
Ambulatory
Revocable and subject to change
Ambulatory: Codicil
A written amendment to a Will that may modify or revoke provisions in it, but does not cancel or invalidate. Must be executed with the same formalities of a will
Ambulatory: interlineation
The act of writing between the lines of a Will. This could void the will.
Revocation of the Will, and how it is accomplished:
By physical act
Keri burns her wills
tears in half
Writes the words cancelled across each page of will
Pen to cross out all clauses of will
Sally, suffers from frostbite, asks Julie to burn sally’s will. Julie in presence of her husband Sam, and under specific directions by Sally, burns the will
Revocation of the Will and how it is accomplished:
By operation of law
By marriage
By divorce
Revocation of the Will and how it is accomplished:
By subsequent writings
Writes a new will
Add a codicil to Will
Lost wills and how to prove
Need clear and convincing proof
Proof that the Will was properly executed;
Proof that while the Will was under the control of the decedent’s, he did not expressly revoke it;
Proof of the contents of the will.
Who can contest a will
A person with standing (a person stands to lose a pecuniary interest in a decedent’s estate if the Will is allowed).
Grounds for Will contests:
Undue Influence
The influence one person exerts over another person to the point where the latter is overpowered and induced to do an act that he would not do, or would do if left to act freely
Grounds for Will contests:
Fraud
Signature is forged
Grounds for Will contests:
Duress
Coercion, acting under the pressure of a threat
Grounds for Will contests:
Improper execution
No notice of the will is given to heirs or creditors
Prima Facie
At first site; on the face of it. A fact presumed to be true unless disproved by evidence on the contrary
In terrorem clause
A clause in a will that if a beneficiary of the will objects to Probate or challenges the wills distributions that contestant forfeits all benefits of the will
