decedents estates Flashcards
What does intestate succession explain?
How property is divided if a person dies without a will or if the will is invalidated.
What are the two schemes to divide property among the decedent’s children if there is no surviving spouse or parents?
- Per capita at each generation
- Per capita with representation (modern per stirpes)
Define ‘per capita at each generation’.
To decide who gets the shares, find the first generation with living issue, give one share for each living issue, and distribute shares of deceased persons equally at the next generational level.
Define ‘per capita with representation (modern per stirpes)’.
Instead of combining shares, pass each deceased person’s share on to her issue(s).
What are the two methods of determining heirship if there is no spouse and no children?
- Civil law consanguinity method
- Parentelic method adopted by the UPC
What does the consanguinity method determine?
Heirship by degree of relationship, where all persons of the same degree take equal shares.
Parents and children have a first-degree consanguinity.
What does the parentelic method determine?
The parentelic system is a method of determining who inherits a deceased person’s property when they die intestate . The assets are first passed to the spouse, descendants and parents of the decedent , then to siblings, nieces and nephews of the decedent.
What is included in the definition of ‘child’ for intestate succession?
- Adopted children
- Children born out of wedlock
- Half-bloods
What is the issue with advancements in intestate succession?
Whether a gift given during the decedent’s lifetime should be deducted from the child’s inheritance.
What is the common law treatment of lifetime transfers to heirs?
Presumptively treated as a down payment on the heir’s intestate share.
What is the majority law regarding lifetime transfers to heirs?
Presumed to be a gift and ignored unless there is evidence of intent for it to be an advancement.
What is ‘ademption by satisfaction’?
Applies when there is a will; a lifetime gift is not a prepayment unless specified by the will or acknowledged in writing.
What are the general requirements to execute a valid will under majority law?
- In writing
- Signed by the testator
- Witnessed by two witnesses
- Testator must be 18 or older and intend the document as a will
What are holographic wills?
Unwitnessed wills valid if signed and material portions are in the testator’s handwriting.
What does the dispensing power allow a court to do?
Validate a will if there is clear and convincing evidence of the decedent’s intent.
What is ‘incorporation by reference’?
A writing not valid as a will may be incorporated if the will shows intent to incorporate and the writing is identified with reasonable certainty.
How can a will be revoked by physical act?
By execution of a new will or physical act like cancellation, done with intent to revoke.
What is ‘dependent relative revocation’?
A first will isn’t revoked if a later will is found invalid due to mistaken assumption of law or fact.
What happens to gifts in favor of a spouse upon divorce?
Divorce revokes gifts in favor of the spouse.
What occurs if a beneficiary predeceases the testator?
The gift generally lapses but may be saved under antilapse statutes if conditions are met.
What is the slayer statute?
Forfeits benefits for individuals who feloniously and intentionally kill the decedent.
What is ‘ademption’?
When specifically devised property is not in the estate at the time of the testator’s death, the bequest fails.
What happens to disclaimed property?
It passes as if the person disclaiming had failed to survive the testator.
What is ‘abatement’ in the context of wills?
When estate assets are insufficient to satisfy all gifts, gifts are reduced in a specific order: intestate property, residuary gifts, general gifts, specific gifts.
What must a testator know to have mental capacity?
- Nature and extent of property
- Natural objects of bounty
- Nature of the instrument
- Disposition being made
What constitutes undue influence?
When the wrongdoer exerts influence that overcomes the testator’s free will, causing them to make a gift they would not have otherwise made.
What mnemonic can help remember the elements of undue influence?
SODA: Susceptibility, Opportunity, Disposition, Appearance of undue influence.
