Decedents' Estates Flashcards
1
Q
UPA v. UPC
A
UPA = uniform parentage act
UPC = uniform probate code
Unless indicate otherwise, rules are from UPC
2
Q
Intestate Succession
A
- decedent dies without a will
- decedent’s will fails to distribute entire estate
3
Q
Modifications to Intestate Succession
A
decedent can use a will to expressly exclude an individual / class from taking intestate (that individual is treated as if they disclaimed their share)
heirs can override intestacy statute by agreeing among themselves how to divide estate
4
Q
Intestate Order of Succession
A
- surviving spouse / direct descendants
- parents
- siblings / descendants of siblings
- grandparents, descendants of grandparents (aunts, uncles), and descendants of deceased aunts and uncles (second collateral line)
- more distant heirs (apply either degree of relationship approach or parentilic approach)
- state (once blood relatives exhausted)
5
Q
Distribution of Shares: Surviving Spouse
A
If no surviving descendants or if decedent’s surviving descendants are also descendants of surviving spouse and no other descendant of surviving spouse survives decedent, sole heir.
If surviving descendants or decedent’s parents are living, surviving spouse may receive either a specified fraction of estate or a fixed amount plus a fraction of remainder
- if only spouse and parent survive, spouse receives 300k + 3/4s of any balance of estate
- if all decedent’s surviving descendants are also descendants of surviving spouse and surviving spouse has descendants who are not descendants of decedent, spouse receives 225k + 1/2 of balance of estate
- if decedent has other descendants that are not descendants of surviving spouse, surviving spouse receives 150k + 1/2 of balance of estate
6
Q
Definition of Spouse
A
must be legally married at time of decedent’s death
in some states, (1) committed partners are spouses if formalized a civil union or are registered domestic partners and (2) a putative spouse is given rights in intestacy as surviving spouse
7
Q
Distribution of Shares: Children
A
if no surviving spouse, decedent’s descendants take entire estate under rules of representation.
If child survives decedent, shares estate equally with other surviving children
if child predeceases decedent but leaves surviving descendant, predeceased child’s share goes to child’s descendant (representation)
If child predeceases decedent but has no descendant, that interest goes to other heirs as if the child never existed
If child is born alive within 280 days after father’s death, child is an heir (UPA extends to 300 days)
8
Q
Remote Descendants
A
if decedent has multiple surviving descendants in multiple generations, court follows one of three rules:
-strict per stirpes
- modern per stirpes
- per capita at each generation
9
Q
Remote Descendants: Strict Per Stirpes
A
equal divisions beginning at first generational level and move to next level when a predeceased descendant requires representation
10
Q
Remote Descendants: Modern Per Stirpes
A
estate shares divided at generation nearest to decedent that contains surviving descendant. Court makes equal divisions at each generational level UNLESS every member of a level has predeceased decedent. In that case, court will go to next level
11
Q
Remote Descendants: Per Capita at Each Generation
A
shares divided equally by number of surviving descendants in each generation
court makes equal divisions at each generational level and gives fractional share to every survivor at that level but reserves any fractional shares that would have gone to predeceased descendants at that generational level for distribution to survivors at next level
12
Q
Distribution of Shares: Adopted Children
A
intestacy rights from adopting parents. forfeit intestacy rights from natural parents / relatives.
BUT if stepparent adopts child and either natural or adoptive parent dies intestate, child is heir to both parents and the relatives. Under UPC, adopted child remains heir of other natural parent despite adoption by stepparent.
13
Q
Equitable Adoption
A
if stepchild or foster child and not formally adopted, can take as that person’s heir if:
- person promised child’s parent or guardian that person would adopt child
- relationship began when stepchild or foster child was a minor and continued throughout lifetimes and
- clear and convincing evidence that stepparent or foster parent would have adopted the child but for a legal barrier
[BUT does not allow child to inherit from relatives of would-be adopter]
14
Q
Establishing Paternity
A
during father’s lifetime, preponderance of the evidence
after lifetime, clear and convincing evidence
Under UPA, presumed to be child’s parent if individual resided with child for first two years of child’s life and openly held out child as his
15
Q
Degree-of-Relationship Approach
A
relatives within closest degree of decedent take estate (determined by number of generations)
16
Q
Parentelic Approach
A
court looks to degree of relationship between decedent and nearest common ancestor
17
Q
Intestate Succession: Bars to Inheritance
A
- parental rights terminated and not judicially reestablished
- child died before reaching 18 and clear and convincing evidence that, immediately before death, parental rights could have been legally terminated under state law for nonsupport, abandonment, abuse, neglect, or other actions or inactions of parent
18
Q
Intestate Succession: Advancements
A
descendant’s share reduced by lifetime gift if:
- dependent states in a writing contemporaneous with gift that it is intended as an advance on heir’s inheritance OR
- heir acknowledges in writing that gift was so intended.
EXCEPTION: if child predeceases decedent, child’s advancement not accounted for in computing intestate shares. Child’s descendants take by representation without having advancement reduce shares
19
Q
Simultaneous Death Rule
A
if heir apparent and decedent die in event and order of deaths cannot be determined, presumed heir apparent died first UNLESS rebut by preponderance of evidence
20
Q
Nearly Simultaneous Death
A
unless CCE that heir apparent survived decedent by 120 hours, heir apparent deemed to predecease.
party whose claim is dependent on survivorship has burden of proof.
21
Q
Death
A
irreversible cessation of circulatory and respiratory function OR irreversible cessation of functions of entire brain
22
Q
Will Execution Requirements
A
- must be in writing
- testator must sign the will
- must be signed by two witnesses who are present when testator (a) signs the will, (b) verbally acknowledges the prior signature, or (c) verbally acknowledges the will as his own
23
Q
Additional Execution Requirements (Minority of States)
A
minority of states impose one or more of the extra requirements below:
- testator’s signature must appear at end of will
- testator must publish will (oral declaration that it is a will)
- witnesses must be simultaneously present when testator signs or when witnesses sign
- testator must date will
24
Q
Execution Exceptions
A
minority of states may admit a will despite failure to comply with formalities if:
- document (a) represents the testator’s intent as shown by CCE and (b) substantially complies with formalities (substantial compliance doctrine)
- CCE must show that, even though document improperly formalized, intended to comprise will (harmless error rule)
- oral wills made by testators who are in peril of imminent death are admissible (emergency wills)
25
Interested Witnesses: Common Law
beneficiary cannot serve as witness to execution
26
Interested Witnesses: Modern Majority
beneficiary can serve as a witness but bequests that would go to the interested witness are purged automatically or to the extent it exceeds what interested witness would receive intestate
27
Interested Witnesses: Modern Minority / UPC
beneficiary can serve as witness without losing benefits under will
28
Interested Witnesses: Witness's Spouse
in some states, a witness is considered interested if the witness's spouse is a beneficiary
29
Interested Witnesses: Supernumerary Witness
if extra witness is a beneficiary, witness's bequest is effective unless witness's testimony becomes necessary to prove validity (in which case it is purged)
30
Will Validity Requirements
- legal age (18; some states allow emancipated minors to make will)
- requite mental capacity at time of execution
31
Capacity Requirements
will void if testator does not understand:
- nature and extent of testator's property
- natural objects of testator's bounty
- effect of making a will
- relation of these elements to one another
32
Insane Delusion
will void if
- testator suffered from irrational belief and
- irrational belief affected testator's formulation of will in whole or in part
33
Transfers to Minors
minors incapable of holding legal title to property
34
Choice of Law
common law: law of testator's domicile sets all rules concerning personal property; law of situs for real property
nearly every state has enacted a COL statute allowing a court to validate a will according to formalizing rules of another state
35
Foreign Wills
state statutes allow courts to validate wills properly formalized according to laws of foreign country
36
Holographic Will
testator can make a valid will by handwriting entire document and signing without witnesses
if printed / typed something on document, invalidates holographic will.
under modern statutes/UPC, only material portions of holographic will must be handwritten.
minority of states may require date or that it be discovered among testator's important papers.
in some states, alterations do not require new signature
if language is ambiguous, extrinsic evidence admissible to clarify whether it is intended to comprise holographic will
37
Self-Proved Wills
testator has acknowledged the will and witnesses have executed affidavits that substantially comply with statutory form before an officer authorized to administer oaths
38
Conditional Wills
court must determine whether dependent intended the happening of an event to be a condition precedent to operation of will or if statement merely manifestation of intent to execute will.
if condition precedent, and condition does not occur, will does not take effect.
39
Conditional Wills: Factors to Determine Intent
- any statements made by testator following document's execution
- where testator stored will after contingency lapsed
- testator's education level and knowledge of law
- whether any testamentary documents exist
- whether setting aside will results in intestacy
- whether effectuating the will's terms results in an inequitable distribution
40
New Will
if testator makes a new will, it supersedes old one.
if subsequent executed writing includes a residuary clause (like I leave rest of my estate to my wife), presumed to be a will
41
Codicils
can revise estate plan by executing a new document that amends only part of existing will
supersedes will to the extent that it is inconsistent with the will
Must be executed according to same formal will requirements. Can make holographic codicil to attested will or attested codicil to holographic will
if no residuary clause, presumed to be a codicil
42
Republication
when a testator executes a codicil to a will, will's date of execution is re-dated to later date of codicil
43
Revocation
- subsequent writing (can expressly or impliedly revoke)
- physical act: by (a) physically canceling it, obliterating it, tearing it, burning it, or otherwise destroying document (b) with the intent of revoking it
- partial revocation by codicil
- changed circumstances
44
Revocation: Physical Act
3P can perform physical act for testator as long as does so in testator's presence
most states require that the act touch the "words" of the will while minority and the UPC validate any act of cancellation
testator may partially revoke by physical act, but in minority, any attempt to revoke only part is ineffective
45
Lost Will v. Revocation
if will was last known to be out of testator's possession or whereabouts unknown, presumed not revoked by physical act and can be probated as lost will.
if will was last known to be in testator's possession and disappears, presumed to have been revoked by prior act
46
Revocation: Changed Circumstances
if fail to make a new will after marriage, birth of child, or divorce, estate plan dictated by the will changes by implication UNLESS intrinsic evidence overcomes this presumption
Divorce revokes by implication all bequests to former spouse under a pre-dissolution will. UPC also applies this to bequests to relatives of former spouse
If a couple divorces but then remarries, the relevant portions are revived by implication of remarriage
47
Revival
can allow a revoked will be to be revised
48
Revival: Common Law
if testator revokes second will and first is still intact, first automatically revived
49
Revival: Modern Rule
once will revoked by subsequent executed writing, cannot be revived unless testator re-executes it, republishes by codicil, or executes a new will that parrots its terms
50
Revival: Old UPC
rebuttable presumption that first will is not revived unless evidence demonstrates testator intended to revive it
51
Revival: Modern UPC
if second writing is a will, law makes a rebuttable presumption that testator does not intend to revive the first will.
if second writing is a codicil, rebuttable presumption in favor of revival
52
Revival: Third Will
if second will revoked by third executed writing, first will remains revoked except to extent that third writing shows intent to revive first will
53
Dependent Relative Revocation
when testator revokes a will by physical act or under a mistaken belief about what estate plan may follow, court may treat act as having been conditioned on the anticipated estate plan coming into effect. If it does not, may undo revocation (if better aligns with testator's intent)
54
Integration
will composed of whatever sheets of paper are presented and intended to comprise will when formalized by testator and witnesses.
testator does not have to sign each sheet of paper that makes up will.
55
Incorporation by Reference
may incorporate distributive provisions found in other writings if:
- incorporated document is a writing
- will expressly refers to the writing and describes it sufficiently and
- writing predates the will (unless, in a UPC state, writing concerns distribution of tangible personal property and is signed by testator)
56
Incorporation by Reference: Relation to Codicils
if will republished by codicil, court can give testamentary effect to a writing made after will's execution date if CCE of intent to create a will
57
Acts of Independent Significance
bequests expressly conditioned on testator's acts are valid if those acts, viewed objectively, affect testator during testator's lifetime
if bequest conditioned on acts that have no significance other than effect on estate plan, bequest is void
58
Restraints on Marriage Provisions
if prohibit beneficiary from taking under a will if marries anyone at any time, void as a complete restraint.
partial restraint may be upheld
59
Power of Appointment
holder can choose beneficiaries under a will and designate testator's assets to anyone, including the holder
But special power of appointment limits who can be a beneficiary
60
Probate
will take effects upon death. transfers that occurs at death flow through probate
61
Eligible Beneficiaries
cannot inherit if
- dead before or at execution of will OR
- alive at execution of will but die before will operative
62
Eligible Beneficiaries: Children
today, gifts to "children" include adopted and nonmarital children but not stepchildren.
traditionally, nonmarital children not included and adopted children included only if bequest included testator's own children
63
Simultaneous Death Rule: Wills
like intestacy.
if beneficiary or heir dies first, bequest lapses or rules of representation apply.
64
Overlive Clause
testator may require beneficiaries to survive by a certain amount of time take their bequests
65
Rule Against Perpetuities
beneficiary's interest is created at testator's death, not at will's execution
under common law rule, interest must, if at all, within 21 years of some life in being at its creation. Whether bequest will satisfy the rule is determined only at time of testator's death
66
Slayers
beneficiaries cannot inherit under intestacy or the will if they intentionally slay their benefactor
statutes require proof of slaying by preponderance of the evidence
slayer is treated as having constructively predeceased the benefactor
67
Lapse
if beneficiary predeceases the testator, and testator fails to amend to account for change of circumstance, bequest goes to residuary beneficiary (lapse).
if no residuary beneficiary, intestate
68
Antilapse
bequest will not lapse if bequest was to a descendant who is a blood relative of the testator out to the second collateral line (child, grandchild, parent, sibling, grandparents, direct descendants)
either those descendants or their descendants via representation will take
69
Antilapse: Spouse
in most states, antilapse statute does not apply to spouse of testator and spouse's direct descendants
70
Contingency Clause
testator can indicate who should take if beneficiary predeceases or state that antilapse should not apply
can also plan for possibility that a beneficiary will disclaim
71
Antilapse: Intent
bequest will lapse if testator shows intent contrary to applying antilapse statute
72
Generic Bequest
at time of death, generic gift (like "my stock") will include all items that fall within that general description and that are in testator's possession at time of death
73
Types of Bequests
- general
- specific
- demonstrative
- residuary
74
General Bequest
amount of something bequeathed to particular person that need not be satisfied from particular source or asset (like money)
75
Specific Bequest
particular item of property identified in will bequeathed to that particular person
if use "my", bequest is almost always construed as specific
76
Demonstrative Bequest
general amount of something either from liquidation of a specific thing or out of a specific source
if specified item has been sold or is worth less than amount bequeathed, beneficiary receives difference as a general bequest
77
Residuary Bequest
disposes of all property not disposed in the three other forms of bequests or payment or discharge of other obligations of estate
78
Ademption by Satisfaction
applies to general and demonstrative bequests
under common law, if testator makes gift during lifetime to a beneficiary, court looks at testator's intent to determine if that gift satisfied bequest or is in addition to bequest
presumption is that it was in addition UNLESS gift is to one of multiple children and is substantial and extraordinary (then presume satisfaction of bequest)
Modern majority rule: presumes gift is in addition but can overcome by
- testator's written declaration made at time of gift
- beneficiary's written acknowledgment made at any time
- provision in will
79
Ademption by Extinction
applies to specific bequests - identity theory
beneficiary will receive specific bequest only if testator owns it at death. If not, adeems and beneficiary gets nothing.
Under UPC, court can override ademption by extinction if circumstantial evidence suggests ademption inconsistent with testator's manifested plan of distribution
80
Ademption by Extinction: Exceptions
does not apply if item:
- merely changes form
- has been liquidated but proceeds not yet paid to testator at time of death or
- under UPC, was replaced by real property or tangible personal property
81
Accessions
if testator makes specific bequest of stocks or bond, CASH DIVIDENDS that accrue after testator's death go the beneficiary BUT bequest does not include dividends that accrued during time between execution of will and testator's death
Additional shares/stock received after will's execution from a stock split or stock dividends will go to beneficiary
Under UPC, additional shares from stock reinvestment plan, merger, or acquisition also go to beneficiary
82
Exoneration: Common Law
if testator devises real property encumbered by a mortgage, presumed testator intended to pay off mortgage or other liens unless exoneration would require liquidation of property that testator specifically bequeathed to other beneficiaries
cases have gone both ways if exoneration would not leave enough in estate to satisfy general bequests
83
Exoneration: Modern Majority Rule
unless will says otherwise, beneficiaries receive specific bequests of property together with any liens attached to property
84
Abatement
in absence of will provision, estate shares diminished in following order to pay off debts or if testator made larger bequests than amount available in estate
1) shares going to heir by partial intestacy
2) shares going to residuary beneficiaries
3) shares going to all general beneficiaries
4) shares going to specific beneficiaries
[demonstrative treated as specific to the extent the identified item satisfies the bequest and treated as general bequests to the extent of any shortfall]
85
Class Gifts
if testator uses generic language, presumed created a class gift.
if name individual people, presumed bequest limited to those people UNLESS extrinsic or circumstantial evidence overcome presumption
86
Class Gifts: Closure
if will does not state when class closes, rule of convenience
87
Class Gifts: Lapse
if gift to a member lapses, predeceased class member's share is divided among the other class members UNLESS antilapse statute applies (in which case goes to their descendants)
88
Disclaimers
UPC allows heirs and beneficiaries to disclaim a bequest if they do so in a signed writing or electronic record at an time before the beneficiary accepts the property
once beneficiary accepts or disclaims bequest, cannot change mind.
can partially disclaim
UPC lets any fiduciary disclaim without need for court pre-approval; some states require court pre-approval
89
Insolvent Disclaimers
disclaimant's ordinary creditors cannot reach disclaimed property BUT small minority of states bar insolvent disclaimers as fraudulent transfers
90
Powers and Duties of a Personal Representative
- appoint attorney to represent estate before probate court, appear in propria persona if state allows, or act as attorney if representative is a member of the bar in the state
- notify by mail all known heirs and beneficiaries and reasonably ascertainable creditors of the commencement of probate proceedings and publish notice of probate proceedings
- marshal assets of estate, bring / defend suit
- prepare inventory of estate and appraise value of assets
- manage probate estate during probate (preservation > investment)
- liquidate assets as necessary to satisfy claims and pay beneficiaries
- file federal and state estate tax returns and pay those taxes (if required by state law)
- satisfy all legitimate creditors' claims
- satisfy all beneficiaries
- file a final or periodic accounting with the probate court
91
Spouses - Elective Share System
surviving spouse can either:
- accept what the decedent spouse has bequeathed OR
- elect against the will by rejecting the bequest and instead receive the elective share, which is determined by state law
3P can make election on their behalf with court's approval. Under UPC, funds go into custodial trust
BUT if spouse dies before deciding, their personal representatives cannot exercise right of election
92
Spouses: Elective Share System - Deficiency
if surviving spouse elects against will, elective share is satisfied by taking pro rata amount from all beneficiaries
- under the will and
- of the decedent spouse's nonprobate assets
93
Spouses: Elective Share System - Amount
fixed fraction of decedent state, typically about 1/3
fraction same regardless of duration of marriage. minority of states / UPC have the fraction as a sliding scale that rises to 50% of the estate after 15 years of marriage
computed as fraction of net estate after creditors paid; if estate insolvent, elective share is zero
94
Spouses: Elective Share System - Assets Subject to Elective Share
in most states, elective share covers both probate and nonprobate assets.
UPC: also covers
- joint tenancies with right of survivorship
- irrevocable transfers of property in which decedent spouse retained life estate
- outright gifts to 3P if made during marriage and within 2 years of death
95
Spouses: Elective Share System - Illusory Transfer Doctrine
surviving spouse can reach assets transferred during marriage by deceased spouse into revocable trust if transfer economically illusory because deceased spouse could have recaptured assets placed in trust by simply revoking it
96
Spouses: Elective Share System - Fraud Test
if state applies elective share to probate assets, transfers made intentionally to avoid elective share are not allowed
97
Spouses: Elective Share System - Forfeiture
in minority of states, spouse forfeits elective share right if engaged in misconduct by abandoning decedent spouse
98
Spouses: Elective Share System - Waiver
can waive right by entering into prenuptial or postnupial agreement. But one of the following protections may apply:
- disclosure-of-assets requirement
- requirement of opportunity to seek independent counsel
- rebuttable presumption of fraud / duress
- right of judicial avoidance on ground of unconscionability
- requirement that agreements be formalized in signed writing
99
Spouses - Pretermitted Share
if testator executed will before getting married and then dies without altering will, surviving spouse can claim an elective share OR intestate share UNLESS:
- evidence shows omission intentional
- under the UPC, testator made transfers to spouse outside will and intended those transfers to substitute for a bequest under the will OR
- under the UPC, premarital will makes bequests to testator's descendants who are not children of surviving spouse, in which case the intestate share provided by the statute cannot come out of the descendants' shares
100
Children - Pretermitted Share
in most states, children born or adopted after will are entitled to intestate share.
minority/upc: all children, regardless of whether born or adopted before or after will
amount of share: under UPC, if no children when executed, receives shares by following rules of abatement. If did have child, omitted children receive pro rata shares of whatever amount the testator bequeathed to children named in the will by diminishing the shares of the named children
101
Children: Pretermitted Shares -Exceptions
does not apply if testator:
- had living children when will executed and bequeathed nothing to them
- (a) executed will bequeathing all/substantially all of estate to other parent of child born or adopted after will executed and (b) testator either had existing children and bequeathed nothing to them or no children
- included a provision that anticipated possibility of having children after will executed and made provisions for contingency
- made transfer outside will to a child born/after will and testator intended that to substitute as a bequest
102
Children: Pretermitted Share - Mistaken Belief
if will fails to provide for child that exists when will was executed solely because mistakenly believed child was dead, child receives same share as child born or adopted after execution would receive
103
Exempt Properties and Allowances
surviving spouse may be entitled to:
- homestead allowance
- exempt property allowance
- family allowance
these are exempt from and have priority over claims of decedent's estates, including those of creditors and beneficiaries
can be waived
104
Homestead Allowance
grants surviving spouse a set amount in property that the surviving spouse and decedent used as primary residence
105
Exempt Property Allowance
permits surviving spouse to claim a certain value in decedent's personal property
106
Family Allowance
grants specified sum of money from estate for maintenance
107
Will Contests: Standing
standing if person would benefit if will invalidated
108
Will Contests: Grounds for Challenge
- improper formalization
- testamentary capacity
- insane delusion
- undue influence
- duress
- fraud
- mistake
- ambiguity
109
Ambiguity
historically, could use extrinsic evidence to clarify latent ambiguities but not patent ambiguity but modern trend is to allow for both
110
Latent Ambiguity
ambiguity in will language as applied to bequest / beneficiary
111
Patent Ambiguity
ambiguity on its face
112
Mistake
invalid if testator mistaken about discrete facts and considers that belief in crafting estate plan [mistake in inducement]
but if mistaken about terms of will [mistake in execution] court can remedy problems by striking additional terms that were included by accident. modern trends allows correction of omitted terms as well
UPC permits courts to correct all mistakes if CCE shows testator's intent or testator's intent but for mistake
113
Fraud
invalid if wrongdoer knowingly misleads testator for wrongdoer's own benefit
inducement: deceives testator as to material facts to induce a will that benefits wrongdoer
execution: deceives testator concerning terms of estate plan
forgery: entire will or just portions
114
Duress
invalid if wrongdoer commits or threatens harm to coerce testator to execute, revoke, or not revoke a will.
does not need to be a criminal or tortious threat
115
Undue Influence
court may strike portion that benefits wrongdoer (if severable).
Will invalid if:
- testator susceptible or vulnerable to undue influence
- wrongdoer had opportunity to exercise undue influence (relationship and physical proximity)
- wrongdoer was disposed to exercise undue influence
- wrongdoer exercised a dominating influence over the testator, distorting the estate plan
116
No Contest Clauses
any beneficiary who contests will loses benefits under will.
beneficiary can either accept bequest and forego contest OR bring contest and receive either a larger intestate share (if contest succeeds) or nothing
valid per se under common law
under UPC/Modern Majority Rule, valid only if no probable cause for contest (otherwise void)
117
Contract Wills
testator can enter agreement with another party to make a will, revoke a will, or to die intestate as long as meet requirements of contract law
enforced by equitable constructive trust, not binding if one party repudiates before performing fully, and can be formalized without a writing in most states
118
Inter Vivos Gift
gifts of personal / real property made during lifetime.
not subject to probate
119
Inter Vivos Gifts: Requirements
donor must
- deliver the gift to the donee (or donee's agent) and
- intend to make a gift
120
Inter Vivos Gifts: Revocability
irrevocable. if retain right to revoke, gift is void
121
Gifts Causa Mortis
if donor
- manually delivers
- gift of personal property
- while in peril of imminent death
revocable gift is allowed. If donor survives peril, gift automatically revoked even if donor fails to demand return.
minority says revocable within reasonable time
122
Joint Interests with Right of Survivorship
survivor(s) absorb accretive share of joint interest holders outside of probate when joint interest holder dies.
123
Joint Bank Accounts for Convenience
individual can create account where joint account holder will not receive account's contents when individual dies but can sign checks, pay bills, and check funds
if not designated as convenience account, presumed to be a joint tenancy with right of survivorship
124
Totten Trusts
depositor can name a revocable death beneficiary for a bank account wholly owned by depositor
created via contract with bank
125
Totten Trusts: Management
death beneficiary has no rights in bank account during owner's lifetime and cannot withdraw anything until owner's death
126
Totten Trusts: Revocability
owner can close account or revoke or change designation of death beneficiary at any time
127
Living Wills / Advance Directors
directions for end-of-life care when individual terminally ill or permanently unconscious
requirements:
- individual competent at time of creation
- individual has reached age of majority (some states allow emancipated minor to create)
- executed in a writing signed by individual in presence of two witnesses (or notary public in some states). some states allow a living will to be made without witnesses or through oral declaration
128
Living Wills: Revocation
can be revoked in any manner communicating intent to revoke
takes effect only after revocation communicated to supervising health-care provider
129
Living Will: Restrictions
cannot violate state criminal law governing assisted suicide or mercy killings
130
Powers of Attorney
individuals can delegate responsibility of their health care (and some financial decisions) to a 3P
can be:
- nondurable (ends upon principal's incapacity)
- durable (takes effect throughout principal's life) or
- springing (comes into effect upon incapacity and ceases upon recovery)
health-care power of attorneys are presumed to be springing
131
Power of Attorney: Eligibility to Serve As Agent
family consent laws allow designated individual / group of individuals to provide consent for health-care decisions when no agent named.
order of priority:
- spouse, unless legally separated
- adult children
- parents
- adult siblings
132
Power of Attorney: Requirements
many states require a signed writing with witnesses or notarization to execute a power of attorney
some states do not require witnesses
133
Power of Attorney: Revocation
in many states, writing or oral declaration either revoking power or changing agent suffices
minority of states allow behavior implicating intent to revoke
134
Power of Attorney: Restrictions
principal may extend or restrict agent's authority in power of attorney to make a wide variety of health-care decisions
under Uniform Health-Care Decisions Act, agent prohibited from admitting principal to mental health-care institution unless either power of attorney or living will expressly grants authority in writing
135
Power of Attorney: Liability
most states provide that an agent is shielded from civil or criminal liability and from discipline for unprofessional conduct for health-care decisions made in good faith
136
Power of Attorney: Termination
all powers of attorney terminate upon principal's death as soon as agent has actual knowledge of that event
several states allow a power of attorney to grant agent authority over organ donations, autopsy, and disposition of remains
