ETC. Flashcards
per stripes
in equal shares: passes to H1 and H2’s children if H2 is predeceased
“to the remaining primary beneficiary on a pro rata bais”
all passes to H1 if H2 predeceased (H2’s children do not get anything)
contingent beneficiary
the children of the primary beneficiary
if one dies intestate with no heirs; their property will go…
to the county the person reside at the time of their death
chose in action
a form of intangible personal property; refers to a personal right you retain when you do not possess the property but have a right to recover in a lawsuit
4 characteristics of a joint tenancy with rights to survivor ship
- time
- title
- interest
- possession
*** all unities required
lease hold estate
tenancy for years’ the time to hold the property is designed
lady bird deed
an enhanced life estate deed; the holder retains the right to transfer the property including any reversionary or remainding interest
corpus delicti
proving the crime; proof that the act resulted from the illegal actions
criminal case (the first 6 steps)
- defendant arrested/complaint filed
- preliminary hearing
- grand jury returns indictment
- discovery proceedings
- motions filed
- trial
jury nullification
acquittal of a defendant despite facts that show guilt
copy right
fair use of writing, music, movies, software
patent must be for
a tangible product; must be a thing
area of life or law that congress can pass laws:
- impose tax
- regulate commerce w/ foreign nations
- establish uniform rule of naturalization and bankruptcies
- coin money and regulate
- establish post offices
- declare war
- maintain navy
- make laws
commerce clause
The Commerce Clause is article 1, section 8, clause 3 of the U.S. Constitution.
- The clause states that the United States Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
appellant opinions (3)
- plain error
2. reversible error
Lanham act relating to trademarks
gives protection to a recognizable SIGN, DESIGN or EXPRESSION that distinguishes a product or service of a particular trader for SIMILAR PRODUCTS or services of other traders
HIPPA is an acronym for a US law designed to…
provide privacy standards to protect patients’ medical records: stands for HEALTH INSURANCE PRIVATE AND ACCOUNTABILITY ACT
UCC
UNIFORM COMMERCIAL CODE
- NOT federal law; not enacted by Congress
- states have the option of changing the terms
- does NOT apply to real estate or service contracts
- has 11 articles
promissory estoppel
a promissor is prevented from revoking his promise
punitive damages in contracts
NOT allowed unless a tort action such as fraud is involved
bailment
an act of delivering goods to a bailee for a particular purpose, without transfer of ownership
- NOT REAL PROPERTY
Articles of Incorporation include: (5)
- name of corporation
- purpose of corporation
- list of incorporators and directors
- name and address of registered agents
- share structures
principal and agent relationship
principal permits or directs another (agent) to act on his behalf subject to the principal’s direction and control
burglary
not theft; involves breaking into and entering a building with the intent of committing a felony (that felony can be theft, but also rape)
larceny
theft; an act of stealing
most criminal behavior is defined by ___; ___ law focus on interstate activities
most criminal behavior is defined by STATE STATUTES; FEDERAL CRIME LAW focus on interstate activities
inchoate crimes
aka incomplete crimes, is a crime of preparing for or seeking to commit another crime
Includes:
- solicitation (merges with the crime)
- conspiracy
actus reas
bad act; requires the defendant to do some act to be found guilty of a crime
mens rea
- general intent
- specific intent
Must have evidence of a guilty MIND
- general: the prosecution must prove only that the accused meant to do an act prohibited by law; whether the defendant intended the act’s result is irrelevant (rape/batter/arson/mayhem/involuntary manslaughter/depraved heart murder)
- specific: the defendant intentionally commit an act AND intended to cause a particular result when committing the act
remedy for contract (5)
- money damages
- specific performance
- restitution
- rescission & reformation
- tort actions
benefits of a charitable remainder trust
- lifetime of income from CRT assets during her life or a specified number of years
- reduce income and capital gains taxes while increasing settlor’s immediate cash flow-p-
a non-profit organization may be tax exempted under…
section 501 (c) (3) if its primary activities are charitable, religious, educational, scientific, etc.
bail is…
cash that an arrested person gives to a court to ensure that he will appear in court
** it is personal and based on an individual
a defendant’s Miranda rights apply during…
custodial interrogations
American Jurisprudence is…
legal encyclopedia of the US law, published by West
4 requirements of a valid will
- legal capacity
- testamentary capacity
- testamentary intent
- must meet certain formalities
informed consent
a tort dealing with the duty of the doctor to his patient to disclose all aspects and the alternatives to the patients care and treatment
personal representative administering a decedent’s estate who died…
- testate is called
- intestate is called
- both can be called…
- testate = executor
- intestate = administrator
- both = personal representative
freedom of contract
- involves the freedom of individuals and enterprises to make their own economic arrangements with each other
- society adopts laws that permit freedom of contract
- contract law is concerned with enforcing the promises made
trustee deed
when a borrower under a deed of trust defaults on their loan, the trustee sells the property and uses a trustee’s deed to convey title to the purchaser or lender
tax deed
is used to convey real property following a sale for tax delinquencies
representative’s deed
used to convey real property from a decedent’s estate to an heir or 3rd party
in order for the M’naghten rule to prevail..
A defense of insanity, must show that defendant:
- did not know his act was wrong and
- did not understand the nature of his actions
a default in a secured transaction
- situation?
bankruptcy of debtor
- default is the failure to make scheduled payments
who has oversight responsibility with respect to proper management and operation of Charitable Trust
the attorney general for reach state - the Trustee only has responsibility for the day to day management, but he does not have oversight over the trust (and over whether or not he is properly administering and distributing it)
informal rule making involves…
a notice-and-comment period where interested people and entities provide feedback on a proposed rule which the agency must consider before implementing the final rule
riparian rights
refers to the right to use and draw WATER for the benefit of the real property
QTIP Trust may qualify for..
a martial deduction if:
the spouse is entitled to receive all trust’s income; during the spouse’s lifetime, no person is permitted to distribute any trust property to anyone other than the spouse; and the person filing the estate tax return properly takes a martial deduction for the QTIP trust, and properly makes the required QTIP election on the return
the valuation of publicly traded securities on the valuation date is usually determined by…
the average of the high and low price on the applicable date; the valuation date is the date the property is transferred to the recipient and the beneficiary takes ownership
in criminal law, the burden of proof is assumed by:
the Government
clauses in a will
- exordium
- apportionment (debts)
- dispositive provisions (distribution)
- appoint personal rep. and duties
- misc. (in terrorem; simultaneous; gender provision; govern by what law)
- testimonium (testator signature)
- attestation (2 witness signature)
articles in federal rules of EVIDENCE
11
uniform trust code allows a person…
to contest the validity of a TRUST which was revocable at the time of the settlor’s death within the earlier of 3 years after the settlor’s death or 120 days after the trustee sent the person a copy of the trust and notice saying it exists
the purpose of title insureance
to protect the purchaser of real estate from claims against TITLE to real estate
form 1062
form filed to report income and losses on a PARTNERSHIP
a license agreement
occurs when the owner of intellectual property (licensor) contracts to permit another party (licensee) to use intellectual property
when making a bequest of a a dollar amount…
“general cash devise to”
a “special bequest” refers to…
a specific asset such as a car or furniture
bond
a loan with collateral
a “waiver of service” must include a notice of commencement of the action, the notice must include…
2 copies of the waiver for the defendant to sign and a copy of the complaint
typically states can’t be sued in federal court, why is that…
states have complete sovereign immunity pursuant to the 11th Amendement
Missouri v. Jenkins
case involving the recoverability of paralegal fees
plain error
this type of error is an error that is so OBVIOUS and prejudicial that the appellate court will use it to reverse the case because of a “high likelihood that injustice has resulted” through an “OBVIOUS MISTAKE”
reversible error
an error of SUFFICIENT GRAVITY to warrant reversal of a judgement on appeal (unfair trial)
operating agreement (LLC)
outline how to govern:
- management
- transfer of membership
- division of profits
objective theory of contracts
the determination of whether a contract has been formed
4 main purpose of criminal law
- deterrence
- retribution
- incapacitate
- rehabilitation
if a party reasonably believes that the other party may not perform, that party can…
demand in writing “adequate assurance” (when there is an anticipatory breach)
- if assurance is not given, the requested party can declare a breach of contract
FRCP- affirmative defense to a pleading is found…
FRCP title 3 #8
how many Titles in FRCP and what are they
11 titles:
- scope of rules; form of action
- commencing an action; service of process,pleadings, motions, and orders
- pleading and motions (7-16)
- parties
- disclosure and discovery (26-37)
- trials
- judgment
- provisional and final remedies
- special proceedings
- district courts and clerks: conducting business; issuing order
- general provision
federal tax exempt nonprofit corporation will file…
IRS form 990
power of attorney
only medial decision; ends at death
durable power of attorney
can continue if you are incapacitated (but still ends at death) - not medical
demonstrative bequest
a testamentary gift which must be paid from a specific fund
ex. 5k from my bank account
general bequest
a testamentary gift that is paid out of the general assets of the estate
residuary clause
dispose of any estate property that remains after satisfaction of all other gifts - in a will
5 elements of a trust
- trustor
- trustee
- trust property
- beneficiary
- trust purpose
exculpatory agreements (releases)
part of an agreement which RELIEVES one party from liability; it is a provision in a contract which is intended to protect one party from being sued for their wrong doing or negligence
*** must be clear and conspicuous to be enforceable in non-public interest situations
preemption
a doctrine under which a federal law preempts, or takes precedence over conflicting state and local laws
the right to due process of law is applied to the STATES through…
the 14 amendment, which provides that no state shall “deprive any person of life, liberty, or property, without due process of law” - meaning requirements of the 5th amendment apply to the states
sheriffs deed
real property FORECLOSED upon following a mortgage delinquency is conveyed via a sheriff’s deed
- no warranty
- failure to pay a judgement; mortgage foreclosure at a sheriffs sale
class action rule 23 - what must be done to accomplish this?
must be so large that joinder of all its members is not feasible - within 90 days after a complaint is filled, the pltf must file a motion with the court to determine if the case can be maintained as a class action
affirmative defense
if can be proved at trial, will negate the pltf’s claim
set off
if can be proved, will reduce the pltf’s claim but will not cancel it entirely
what rules governs discovery
FRCP article 5, 26-37
judgement on partial findings
if the case proceeds to trial and if the pltf fails to prove facts supporting her claim for relief, the judge can dismiss the complaint before the defendant begins his case - NONJURY TRIAL ONLY
judgement as a matter of law
in a jury trial, the defendant makes this motion under rule 52 when the pltf rests; equivalent of a directed verdict in STATE actions - directed verdict no longer exist in Federal Court
** either party may move for this motion when the defendant rests
the Appellate court can make their decisions based on (3)
Does not receive additional evidence or hear witnesses; rather judges make decisions based on:
- written record of the case in trial court
- briefs submitted by the parties
- possibly oral arguments
all nonprofit corporations must obtain…
a federal employers identification from the IRS
if a court decides pierce the corporate veil of a corporation, who becomes personally liable for the debts and actions of the corporation..
the shareholders
annual exclusion gifts in relations to Trust
these gifts normally cannot go into a trust; the trust MUST HAVE CRUMMY POWERS in order for these gifts to go into the trust
what are annual exclusion gifts
This is the amount of money that you can give as a gift to one person, in any given year, without having to pay any gift tax; the annual gift exclusion limit applies on a per-recipient basis; a person is allowed to give a person up to 14k with no tax consequences
a/b trust
a = to spouse with martial deductions b = to family (pass to descendants free of estate tax)
when statute is adopted by legislature, it is recorded in different forms at different stages of the legislative process…
- a BILL is proposed legislative measure; until it is enacted by the legislature, it is not law
- once the bill is enacted, it becomes SLIP LAW, meaning that it is printed singly rather than at part of a group of laws
- At the end of a congressional session, the slip laws are compiled, in chronological order, into bound volumes called the United States Statutes at Large, and referred to as SESSION LAWS
Majority opinion
opinion issued by the majority of judges of the appellate court; the holding of their opinion may be cited as precedent
concurring opinion
opinion issued by one or more judges of the appellate court that agrees with the result reached by the majority but disagrees with the reasoning of the majority opinion
dissenting opinion
opinion issued by one or more judges of the appellate court that disagrees with both the result and the reasoning of the majority
per curiam opinion
opinion of the entire court (all judges who heard the cases)
memorandum opinion
a very brief opinion; a cursory opinion; an opinion so abbreviated that it is hardly an opinion
there are 3 case reporters for US Supreme Court cases
- United States Reports - U.S. (official)
- Supreme Court Reporter - S. Ct. (unofficial)
- United States District Court, Lawyers’ Edition - L. Ed / L. Ed. 2d (unofficial)
United States Courts of Appeals & United States District Court in regards to publishing
for both: the only case reporter is unofficial and is published by west
for US District court: reporting is selective; not all cases are included
State Case Reporters (how are cases reported)
- state case reporters are preceded by slip opinions and then advance sheets
- the national reporter system is the product of West Publishing; it divides the US into 7 regions and reports the decisions of the highest appellate court of each state within the region
- ex.
A. = atlantic reporter
NE = north eastern reporter
P 2d = Pacific reporter
Res Judicata encompasses 2 subsidiary doctrines:
- merger and bar (claim preclusion): the claims no longer exists and any future action between the same parties on the same claims is barred
- collateral estoppels (issue preclusion): prevents the same issue from being litigated by the same parties in different actions
the purpose of a supersedes bond
to assure the winning party that the judgement will be paid if the appellant loses the appeal (stay pending appeal)
motions after Verdict or Judgement (3)
- motion for judgement as a matter of law (if the motion was reserved by the judge, the judge must rule on the motion before any judgement is entered)
- motion for new trial (must be filed within 10 days; prejudicial errors)
- motion for Order Nunc Pro Tunc (correct clerical types of errors)
what are consider prejudicial errors (6)
- judicial error - improper admission or exclusion of evidence or improper jury instruction
- improper conduct of a party, witness, or atty
- improper conduct of a juror
- a verdict which is against the weight of the evidence (based on false evidence)
- newly discovered evidence which is material and was not known at time of trial
- verdict is excessive or is inadequate
Liquidated damages
damages whose amount the parties designate during the formation of a contract for the injured party to collect as compensation upon a specific breach
trademark logos (3)
TM = unregistered trademark
SM - unregistered service trademark
(R) = registered trademark
intangible personal property
is something of individual value that cannot be touched or held; can include any item of worth that is not physical in nature but instead represents something else of value
- ex. cash, insurance, stock, good will, and patents
- you can divide intangible assets into 2 categories: intellectual property and good will
intestate succession
When a person dies without having a valid will in place, his or her property passes by what is called “intestate succession” to heirs according to state law. In other words, if you don’t have a will, the state will make one for you.
a trustee holds ___ ___ to the property which is the right to manage the trust property, and the beneficiaries hold ___ ___ to the property which is the right to receive the benefits of the trust property.
- a trustee holds LEGAL TITLE to the property
- beneficiaries hold EQUITY PROPERTY which is the right to receive the benefits of the trust property
those regarded as license professional (for Professional Corporation) (5)
occupations in the tertiary sector of the economy requiring special training in the arts or sciences
- attorneys, architects, engineers, public accountants and physicians
difference between incidental and consequential damages (in regards to contracts)
- Consequential damages aka SPECIAL damages, are damages that can be proven to have occurred because of the failure of one party to meet a contractual obligation
- Incidental damages are a seller’s commercially reasonable expenses incurred in stopping delivery or in transporting and caring for goods after a buyer’s breach of contract
general damages
monetary recovery (money won) in a lawsuit for injuries suffered (such as pain, suffering, inability to perform certain functions) or breach of contract for which there is no exact dollar value which can be calculated
Exemplary Damages
aka PUNATIVE damages: intended to punish the breaching actors and to deter them from committing future breaches
free hold estate and non-freehold estate
- A freehold estate is an estate in which you have exclusive rights to enjoy the possession of a property for an undefined length of time
- wning property or leasing property are two common ways to hold an interest in property. A landlord’s interest in a property is usually considered a freehold estate, while a tenant’s interest is usually classified as a non-freehold estate.
The three types of freehold estates to know are:
- Fee simple absolute - the greatest interest in a parcel of land that one can possibly own
- Fee simple defeasible - created when a grantor places a condition on a fee simple estate (in the deed); includes fee simple determinable and the fee simple subject to a condition subsequent
- Life estate - an interest in real property which is held for the duration of the life of a designated person
what does it mean to have a “security interest in collateral”
Security interest is a legal claim on collateral that has been pledged, usually to obtain a loan. The borrower provides the lender with a security interest in certain assets that can be repossessed if the borrower stops making loan payments.
difference between the house of representative and senate
house:
- 25 years old and 7 years US
- 2 year term (election full house every 2 year)
- 435 members
- have stricter rules than the senate
senate:
- 30 years old and 9 years US
- 6 year term (1/3 of senate election every 2 year)
- 100 members
- filibuster allowed
