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NALA Testing > ETC. > Flashcards

ETC. Flashcards

1
Q

per stripes

A

in equal shares: passes to H1 and H2’s children if H2 is predeceased

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2
Q

“to the remaining primary beneficiary on a pro rata bais”

A

all passes to H1 if H2 predeceased (H2’s children do not get anything)

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3
Q

contingent beneficiary

A

the children of the primary beneficiary

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4
Q

if one dies intestate with no heirs; their property will go…

A

to the county the person reside at the time of their death

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5
Q

chose in action

A

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

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6
Q

4 characteristics of a joint tenancy with rights to survivor ship

A
  1. time
  2. title
  3. interest
  4. possession

*** all unities required

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7
Q

lease hold estate

A

tenancy for years’ the time to hold the property is designed

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8
Q

lady bird deed

A

an enhanced life estate deed; the holder retains the right to transfer the property including any reversionary or remainding interest

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9
Q

corpus delicti

A

proving the crime; proof that the act resulted from the illegal actions

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10
Q

criminal case (the first 6 steps)

A
  1. defendant arrested/complaint filed
  2. preliminary hearing
  3. grand jury returns indictment
  4. discovery proceedings
  5. motions filed
  6. trial
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11
Q

jury nullification

A

acquittal of a defendant despite facts that show guilt

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12
Q

copy right

A

fair use of writing, music, movies, software

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13
Q

patent must be for

A

a tangible product; must be a thing

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14
Q

area of life or law that congress can pass laws:

A
  1. impose tax
  2. regulate commerce w/ foreign nations
  3. establish uniform rule of naturalization and bankruptcies
  4. coin money and regulate
  5. establish post offices
  6. declare war
  7. maintain navy
  8. make laws
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15
Q

commerce clause

A

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.”

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16
Q

appellant opinions (3)

A
  1. plain error

2. reversible error

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17
Q

Lanham act relating to trademarks

A

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

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18
Q

HIPPA is an acronym for a US law designed to…

A

provide privacy standards to protect patients’ medical records: stands for HEALTH INSURANCE PRIVATE AND ACCOUNTABILITY ACT

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19
Q

UCC

A

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
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20
Q

promissory estoppel

A

a promissor is prevented from revoking his promise

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21
Q

punitive damages in contracts

A

NOT allowed unless a tort action such as fraud is involved

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22
Q

bailment

A

an act of delivering goods to a bailee for a particular purpose, without transfer of ownership
- NOT REAL PROPERTY

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23
Q

Articles of Incorporation include: (5)

A
  1. name of corporation
  2. purpose of corporation
  3. list of incorporators and directors
  4. name and address of registered agents
  5. share structures
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24
Q

principal and agent relationship

A

principal permits or directs another (agent) to act on his behalf subject to the principal’s direction and control

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25
Q

burglary

A

not theft; involves breaking into and entering a building with the intent of committing a felony (that felony can be theft, but also rape)

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26
Q

larceny

A

theft; an act of stealing

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27
Q

most criminal behavior is defined by ___; ___ law focus on interstate activities

A

most criminal behavior is defined by STATE STATUTES; FEDERAL CRIME LAW focus on interstate activities

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28
Q

inchoate crimes

A

aka incomplete crimes, is a crime of preparing for or seeking to commit another crime
Includes:
- solicitation (merges with the crime)
- conspiracy

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29
Q

actus reas

A

bad act; requires the defendant to do some act to be found guilty of a crime

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30
Q

mens rea

  • general intent
  • specific intent
A

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
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31
Q

remedy for contract (5)

A
  1. money damages
  2. specific performance
  3. restitution
  4. rescission & reformation
  5. tort actions
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32
Q

benefits of a charitable remainder trust

A
  1. lifetime of income from CRT assets during her life or a specified number of years
  2. reduce income and capital gains taxes while increasing settlor’s immediate cash flow-p-
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33
Q

a non-profit organization may be tax exempted under…

A

section 501 (c) (3) if its primary activities are charitable, religious, educational, scientific, etc.

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34
Q

bail is…

A

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

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35
Q

a defendant’s Miranda rights apply during…

A

custodial interrogations

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36
Q

American Jurisprudence is…

A

legal encyclopedia of the US law, published by West

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37
Q

4 requirements of a valid will

A
  1. legal capacity
  2. testamentary capacity
  3. testamentary intent
  4. must meet certain formalities
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38
Q

informed consent

A

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

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39
Q

personal representative administering a decedent’s estate who died…

  1. testate is called
  2. intestate is called
  3. both can be called…
A
  1. testate = executor
  2. intestate = administrator
  3. both = personal representative
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40
Q

freedom of contract

A
  • 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
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41
Q

trustee deed

A

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

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42
Q

tax deed

A

is used to convey real property following a sale for tax delinquencies

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43
Q

representative’s deed

A

used to convey real property from a decedent’s estate to an heir or 3rd party

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44
Q

in order for the M’naghten rule to prevail..

A

A defense of insanity, must show that defendant:

  1. did not know his act was wrong and
  2. did not understand the nature of his actions
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45
Q

a default in a secured transaction

- situation?

A

bankruptcy of debtor

- default is the failure to make scheduled payments

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46
Q

who has oversight responsibility with respect to proper management and operation of Charitable Trust

A

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)

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47
Q

informal rule making involves…

A

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

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48
Q

riparian rights

A

refers to the right to use and draw WATER for the benefit of the real property

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49
Q

QTIP Trust may qualify for..

A

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

50
Q

the valuation of publicly traded securities on the valuation date is usually determined by…

A

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

51
Q

in criminal law, the burden of proof is assumed by:

A

the Government

52
Q

clauses in a will

A
  1. exordium
  2. apportionment (debts)
  3. dispositive provisions (distribution)
  4. appoint personal rep. and duties
  5. misc. (in terrorem; simultaneous; gender provision; govern by what law)
  6. testimonium (testator signature)
  7. attestation (2 witness signature)
53
Q

articles in federal rules of EVIDENCE

A

11

54
Q

uniform trust code allows a person…

A

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

55
Q

the purpose of title insureance

A

to protect the purchaser of real estate from claims against TITLE to real estate

56
Q

form 1062

A

form filed to report income and losses on a PARTNERSHIP

57
Q

a license agreement

A

occurs when the owner of intellectual property (licensor) contracts to permit another party (licensee) to use intellectual property

58
Q

when making a bequest of a a dollar amount…

A

“general cash devise to”

59
Q

a “special bequest” refers to…

A

a specific asset such as a car or furniture

60
Q

bond

A

a loan with collateral

61
Q

a “waiver of service” must include a notice of commencement of the action, the notice must include…

A

2 copies of the waiver for the defendant to sign and a copy of the complaint

62
Q

typically states can’t be sued in federal court, why is that…

A

states have complete sovereign immunity pursuant to the 11th Amendement

63
Q

Missouri v. Jenkins

A

case involving the recoverability of paralegal fees

64
Q

plain error

A

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”

65
Q

reversible error

A

an error of SUFFICIENT GRAVITY to warrant reversal of a judgement on appeal (unfair trial)

66
Q

operating agreement (LLC)

A

outline how to govern:

  1. management
  2. transfer of membership
  3. division of profits
67
Q

objective theory of contracts

A

the determination of whether a contract has been formed

68
Q

4 main purpose of criminal law

A
  1. deterrence
  2. retribution
  3. incapacitate
  4. rehabilitation
69
Q

if a party reasonably believes that the other party may not perform, that party can…

A

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

70
Q

FRCP- affirmative defense to a pleading is found…

A

FRCP title 3 #8

71
Q

how many Titles in FRCP and what are they

A

11 titles:

  1. scope of rules; form of action
  2. commencing an action; service of process,pleadings, motions, and orders
  3. pleading and motions (7-16)
  4. parties
  5. disclosure and discovery (26-37)
  6. trials
  7. judgment
  8. provisional and final remedies
  9. special proceedings
  10. district courts and clerks: conducting business; issuing order
  11. general provision
72
Q

federal tax exempt nonprofit corporation will file…

A

IRS form 990

73
Q

power of attorney

A

only medial decision; ends at death

74
Q

durable power of attorney

A

can continue if you are incapacitated (but still ends at death) - not medical

75
Q

demonstrative bequest

A

a testamentary gift which must be paid from a specific fund

ex. 5k from my bank account

76
Q

general bequest

A

a testamentary gift that is paid out of the general assets of the estate

77
Q

residuary clause

A

dispose of any estate property that remains after satisfaction of all other gifts - in a will

78
Q

5 elements of a trust

A
  1. trustor
  2. trustee
  3. trust property
  4. beneficiary
  5. trust purpose
79
Q

exculpatory agreements (releases)

A

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

80
Q

preemption

A

a doctrine under which a federal law preempts, or takes precedence over conflicting state and local laws

81
Q

the right to due process of law is applied to the STATES through…

A

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

82
Q

sheriffs deed

A

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
83
Q 
class action rule 23
- what must be done to accomplish this?
A 
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
84
Q

affirmative defense

A

if can be proved at trial, will negate the pltf’s claim

85
Q

set off

A

if can be proved, will reduce the pltf’s claim but will not cancel it entirely

86
Q

what rules governs discovery

A

FRCP article 5, 26-37

87
Q

judgement on partial findings

A

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

88
Q

judgement as a matter of law

A

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

89
Q

the Appellate court can make their decisions based on (3)

A

Does not receive additional evidence or hear witnesses; rather judges make decisions based on:

  1. written record of the case in trial court
  2. briefs submitted by the parties
  3. possibly oral arguments
90
Q

all nonprofit corporations must obtain…

A

a federal employers identification from the IRS

91
Q

if a court decides pierce the corporate veil of a corporation, who becomes personally liable for the debts and actions of the corporation..

A

the shareholders

92
Q

annual exclusion gifts in relations to Trust

A

these gifts normally cannot go into a trust; the trust MUST HAVE CRUMMY POWERS in order for these gifts to go into the trust

93
Q

what are annual exclusion gifts

A

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

94
Q

a/b trust

A 
a = to spouse with martial deductions
b = to family (pass to descendants free of estate tax)
95
Q

when statute is adopted by legislature, it is recorded in different forms at different stages of the legislative process…

A
  1. a BILL is proposed legislative measure; until it is enacted by the legislature, it is not law
  2. once the bill is enacted, it becomes SLIP LAW, meaning that it is printed singly rather than at part of a group of laws
  3. 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
96
Q

Majority opinion

A

opinion issued by the majority of judges of the appellate court; the holding of their opinion may be cited as precedent

97
Q

concurring opinion

A

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

98
Q

dissenting opinion

A

opinion issued by one or more judges of the appellate court that disagrees with both the result and the reasoning of the majority

99
Q

per curiam opinion

A

opinion of the entire court (all judges who heard the cases)

100
Q

memorandum opinion

A

a very brief opinion; a cursory opinion; an opinion so abbreviated that it is hardly an opinion

101
Q

there are 3 case reporters for US Supreme Court cases

A
  1. United States Reports - U.S. (official)
  2. Supreme Court Reporter - S. Ct. (unofficial)
  3. United States District Court, Lawyers’ Edition - L. Ed / L. Ed. 2d (unofficial)
102
Q

United States Courts of Appeals & United States District Court in regards to publishing

A

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

103
Q

State Case Reporters (how are cases reported)

A
  • 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
104
Q

Res Judicata encompasses 2 subsidiary doctrines:

A
  1. merger and bar (claim preclusion): the claims no longer exists and any future action between the same parties on the same claims is barred
  2. collateral estoppels (issue preclusion): prevents the same issue from being litigated by the same parties in different actions
105
Q

the purpose of a supersedes bond

A

to assure the winning party that the judgement will be paid if the appellant loses the appeal (stay pending appeal)

106
Q

motions after Verdict or Judgement (3)

A
  1. 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)
  2. motion for new trial (must be filed within 10 days; prejudicial errors)
  3. motion for Order Nunc Pro Tunc (correct clerical types of errors)
107
Q

what are consider prejudicial errors (6)

A
  1. judicial error - improper admission or exclusion of evidence or improper jury instruction
  2. improper conduct of a party, witness, or atty
  3. improper conduct of a juror
  4. a verdict which is against the weight of the evidence (based on false evidence)
  5. newly discovered evidence which is material and was not known at time of trial
  6. verdict is excessive or is inadequate
108
Q

Liquidated damages

A

damages whose amount the parties designate during the formation of a contract for the injured party to collect as compensation upon a specific breach

109
Q

trademark logos (3)

A

TM = unregistered trademark
SM - unregistered service trademark
(R) = registered trademark

110
Q

intangible personal property

A

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
111
Q

intestate succession

A

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.

112
Q

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
  • a trustee holds LEGAL TITLE to the property

- beneficiaries hold EQUITY PROPERTY which is the right to receive the benefits of the trust property

113
Q

those regarded as license professional (for Professional Corporation) (5)

A

occupations in the tertiary sector of the economy requiring special training in the arts or sciences
- attorneys, architects, engineers, public accountants and physicians

114
Q

difference between incidental and consequential damages (in regards to contracts)

A
  • 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
115
Q

general damages

A

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

116
Q

Exemplary Damages

A

aka PUNATIVE damages: intended to punish the breaching actors and to deter them from committing future breaches

117
Q

free hold estate and non-freehold estate

A
  • 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.
118
Q

The three types of freehold estates to know are:

A
  1. Fee simple absolute - the greatest interest in a parcel of land that one can possibly own
  2. 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
  3. Life estate - an interest in real property which is held for the duration of the life of a designated person
119
Q

what does it mean to have a “security interest in collateral”

A

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.

120
Q

difference between the house of representative and senate

A

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

NALA Testing (11 decks)

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