Chapter 8: Restrictions on the Power to Transfer Flashcards
What means of support is the surviving spouse entitled to?
Social Security survivor benefits
Pension plan with survivor benefits
NC Homestead exemption
Family Allowance
NC Homestead Exemption
Exemption from sale to pay estate debts while the owner’s children are minors. If no minor children, homestead is exempt from debts and rents and profits belong to surviving spouse until the surviving spouse remarries or establishes a separate household.
Family Allowance
$30,000 to surviving spouse for a year’s support and maintenance and $5,000 for each minor child’s year’s support. Minor child, each child under 22 who is a full time student and each child under 21 who is incompetent or totally disabled.
The Elective Share
NC gives the surviving spouse at a minimum the applicable shear of the decedent’s spouses total net assets minus any property passing to the surviving spouse.
Take the applicable share of the assets.
Marriage less than 5 years: 15%
Marriage at least 5 years, but less than 10 years 25%
Marriage at least 10 years but less than 15 years 33%
Marriage 15 years or more 50%
The spousal elective share can be waived if there is fair and reasonable disclosure of the decedent’s property unless the spouse waives the disclosure.
Total Assets in the Elective Share
Total assets include: (1) decedent’s property that would pass via intestacy if he died w/out a will; (2) property over which D held a presently exerciseable general power of appointment; (3) property held as tenants by the entirety or joint tenancy w/ right of survivorship, measured as half of the value of the property held w/ the surviving spouse, and for others, according to decedent’s contribution; (4) benefits payable by reason of decedents death under any policy, plan, contract that the decedent owned or could exercise a right of appointment; (5) property transferred during life over which decedent retained the right to possess or the right to income or power over, for life, except for transfers where there was full and adequate consideration and the spouse consent in writing, or that were irrevocable before the marriage to the spouse (6) property transferred to someone other than the surviving spouse within one year of death and during marriage to the spouse, except for property for full and adequate consideration or that spouse consented in writing.
Net Property Passing to the Surviving Spouse for the Elective Share
Property devised to spouse or passing through intestacy or beneficiary designation
Year’s allowance to spouse
Surviving spouses interest in life insurance
Property transferred during life to survivig spouse for which there is a signed acknowledgement
Property awarded posthumously pursuant to an equitable distribution claim
Property held in spousal trust
This property is than reduced by death taxes attributed to the property an any estate claims payable out of the property.
Advancements
Advancements: advancements apply to intestacy, NOT wills.
In NC there is a presumption that gifts to a child during the decedents life are not advancements. The burden is on the estate to show a gift during life is an advancements. Must look to intent of decedent.
If a gift is shown to be an advancement, its value is brought into the hotchpot with the intestate estate. Then each heirs share is figured based on the entire amount.
Satisfaction of devises is the same as an advancement.
Transfers to Minors
Property transferred to minors may be held by a guardian, conservatorship, a custodian, or a trust.
Omitted Children
If a will omits a child born or adopted after its execution, the child may claim an intestate share of the estate unless: (1) T made a provision for the child in the will; (2) it appears that the omission was intentional; (3) the T had other children at the time of the execution of the will and none of those children took under the will; (4) the spouse takes all the estate under the will or (5) T provided for the child outside of the will, whether adequate or not.
