Estate Xfer at Death Flashcards
What is the meaning of “probate”?
To prove - meaning the court proves the decedent’s estate. Is he dead? Was the will signed when competent? Was this intended to be the will and still valid?
What forms of survivorship don’t usually need probate?
JTWROS and tenancy by the entirety - these both have survivorship rights
What are the three objectives of probate?
Distribute property IAW state law and will provisions
Pay legitimate creditors
Pay taxes
What is the personal representative meant to do in probate?
Marshall the assets - Be a fiduciary to collect, protect, and distribute assets in the decedent’s estate
Process payments to legitimate creditors
Take care of tax obligations
Manage estate assets until distributed
Distribute estate assets
What is the 6-step order of probate?
Lodge Will with court
Appoint pers representative
Notce to creditors
Inventory and manage assets
Pay debt, taxes, & expenses
Distribute estate assets
Providing for survivors cannot be changed by will. Why?
Leaving dependents destitute then by default leave them reliant on the state
What is the statutory percentage of assets a spouse can receive in a common-law state?
50%
What is a homestead allowance?
Cannot be negated by will. It is an exemption to rights of creditors claims on estate assets by giving ownership of a residence to a spouse and children
What is the family allowance statute?
Cannot be negated by will. Allows for an allowance to be paid to the family over the claims of creditors during the probate process to ensure they can still live.
What are pretermitted/omitted/after-born statues?
Cannot be negated by will. Statutes in which a will was executed prior to marriage or children can be contested in probate as a will that did not intentionally leave them out.
If someone is to be disinherited, it should be made abundantly clear in the will.
What are adopted children’s rights?
Cannot be negated by will. The same as biological children. They also cannot contest their biological parents will because their bio parents would have had to give up parental rights.
What is the felonious homicide statute?
Cannot be negated by will. Prevents someone from benefiting from a will if they caused the persons death - can’t benefit from a crime.
What is advancement?
Cannot be negated by will. A determination of whether or not a gift given during the decedents lifetime was truly a gift, or meant to be part of their inheritance. If the latter, then their respective estate would be reduced by that amount.
What is a disclaimer?
Cannot be negated by will. A process for a beneficiary to not accept estate property (for a variety of reasons). This process prevents the estate, the beneficiary and the eventual beneficiary from filing lawsuits.
IMPORTANT - prevents gift tax from the designated beneficiary to the new beneficiary
What is abatement?
Can be negated by will. When there aren’t enough assets to satisfy all claims, abatement specifies in what order, shares of property is to be reduced, based on who has claim to the estate.
What is ademption?
Can be negated by will. Ademption occurs when an asset willed, is no longer in the estate. Therefore the beneficiary WILL receive its equal value via some other asset.
What are divorce or annulment statutes?
Can be negated by will. Allows decedent to disinherit an ex-spouse from a will
What is the simultaneous death statute?
Can be negated by will. Allows the decedents to determine a wider number of days to account for times when it is not possible to know who died first, in order to enact the wills of both spouses to their contingent beneficiaries, assuming they first left everything to their spouse.
What are tax apportionment statues?
Can be negated by will. Allows to the decedent to determine who will pay death taxes from which property. Otherwise it defaults to the state statute.
What is the difference between residency and domicile?
Residency is where someone lives. Domicile is where they always intend to return. Often, it is the same place. Given that personal property is probated in the domicile state and real property is probated in the state of location, this is when you have ancillary probate.
Being an orderly process, providing certainty, and being fair are all…
Advantages of probate
Being public, lengthy, and expensive are all…
disadvantages of probate
What is valid form?
A state-compliant will in:
medium used
execution requirements for testator
execution requirements for witnesses
execution requirements for notarization
What is a holographic will?
One that is handwritten by the will maker, signed by the testator, and does not usually require notary
