Hot Topics Barbri Flashcards
1
Q
What is the difference between expectancy and property interest in a will?
A
A beneficiary has merely an expectancy (not a property interest) until the testator’s death.
2
Q
Are handwritten wills valid in Georgia?
A
Handwritten wills are valid if properly witnessed. A handwritten instrument signed by the maker but not witnessed is not valid in Georgia.
3
Q
What happens if a will is accidentally destroyed?
A
Accidental destruction of a will or codicil doesn’t revoke it; intent to revoke must be present at the time of destruction.
4
Q
When can collateral kin inherit?
A
Collateral kin never inherit if the intestate is survived by children or more remote descendants.
5
Q
What is the simultaneous death rule?
A
Discuss the USDA when people die at or about the same time; it does not apply if there is evidence one person outlived the other.
6
Q
When is the slayer statute triggered?
A
The slayer statute applies only to intentional killings; unintentional killings do not trigger it.
7
Q
What are will substitutes?
A
Will substitutes, such as beneficiary designations on life insurance or jointly titled property, aren’t affected by the testator’s will.
8
Q
What are disunguisn propate and nonprobate assets?
A
Disunguisn propate assets are those that pass to beneficiaries outside the will, such as life insurance with a beneficiary designation or jointly titled property.
These assets are not affected by the testator’s will and pass directly to the designated beneficiary or survivor.
9
Q
What happens to property with a beneficiary designation on life insurance if the testator has a will?
A
The property passes to the beneficiary despite any provisions in the will.
This is an example of nonprobate assets.
10
Q
What can lead to the revocation of a will?
A
Revocation can occur due to:
* Subsequent marriage
* Divorce or annulment
* Birth or adoption of children
* Express revocation
* Physical act of cancellation
These methods can fully or partially revoke a will.
11
Q
What is the effect of a subsequent marriage on a will?
A
It can lead to the partial revocation of the will, necessitating adjustments for the omitted spouse’s intestate share.
This means that the will may need to be updated to include the new spouse.
12
Q
What is a pretermitted child in relation to will revocation?
A
A pretermitted child refers to a child born or adopted after the will was executed, which can lead to partial revocation of the will to accommodate their share.
This ensures that children who were not considered in the original will are provided for.
13
Q
What is an express revocation of a will?
A
Express revocation occurs when a subsequent instrument explicitly states the revocation of a prior will.
This method ensures clarity in the testator’s intentions.
14
Q
What happens if there is no express revocation of a will?
A
The prior will is revoked only to the extent inconsistent with the provisions in the subsequent instrument.
This means that only conflicting parts are disregarded.
15
Q
What are the two potential outcomes when a court examines a will that has been canceled?
A
The court may either:
* Give effect to the will as originally written, disregarding the cancellation
* Find that the will was revoked in its entirety
This highlights the importance of proper will execution and cancellation methods.
16
Q
True or False: Joint tenant property is affected by the testator’s will.
A
False.
Jointly titled property passes directly to the survivor regardless of the will.
17
Q
What is meant by ‘Defective Execution’ in the context of will contests?
A
One or more of the requirements for execution is missing (e.g., signature missing, witnesses did not sign in testator’s presence)
This refers to issues that invalidate the formalities required for a will’s execution.
18
Q
What constitutes a ‘Valid Revocation’ of a will?
A
The will has been validly revoked by operation of law, subsequent instrument, or physical act
This means that the will is no longer valid due to legal reasons or actions taken by the testator.
19
Q
What is ‘Lack of Testamentary Capacity’?
A
The testator was under the age of 14 or lacked the mental capacity required at the time of execution
To have capacity, the testator must understand the nature of her act, the extent of her property, who the natural objects of her bounty are, and the effect of the will.
20
Q
Define ‘Undue Influence’ in the context of wills.
A
Influence was exerted on the testator that overpowered her mind and free will, resulting in a testamentary disposition that would not have been executed but for the influence
The burden shifts to the will proponent if the beneficiary was in a confidential relationship with the testator and was active in procuring the will.
21
Q
What is ‘Fraud’ in relation to wills?
A
Either (1) a misrepresentation is made as to the nature or contents of the instrument (fraud in the factum), or (2) the testator is induced into making a will or gift by misrepresentations of fact that influence her motivation (fraudulent inducement)
This highlights the importance of honesty in the creation of wills.
22
Q
Explain ‘Mistake’ as a ground for will contest.
A
Either (1) the testator is mistaken as to the nature of the instrument (e.g., thought it was a power of attorney), or (2) the testator is induced into making a will on the mistaken belief that a child is dead
Mistakes can invalidate a will if they affect the testator’s true intentions.
23
Q
Fill in the blank: ‘Nonprobate _______ can’t be disposed of by will.’
A
assets
Nonprobate assets typically include things like joint accounts and life insurance policies that pass outside of the will.
24
Q
If no descendants, estate passes in what order?
A
- Parents or surviving parent
- Siblings and their descendants
- Grandparents
- Aunts and uncles, with children of deceased aunt or uncle inheriting in place of parent
- First cousins (per capita)
- Nearest kin
- County education fund (escheat)
25
How are adopted children treated in terms of inheritance?
Treated same as natural child in adopting family; all inheritance rights cut off in family of natural parents
26
What happens if an adopted child is adopted by a stepparent?
Inherits from the stepparent, the living parent, and the deceased parent's family after the death of a parent.
## Footnote
During the biological parent's life, the child inherits from the stepparent and the remarried parent only.
27
What are the inheritance rights of stepchildren and foster children?
No inheritance rights unless adopted, but may be exception for adoption by estoppel
28
Do nonmarital children inherit from their mother?
Yes, always inherit from mother.
29
Under what conditions can a nonmarital child inherit from the father?
1. Father and mother married after child's birth
2. The man is adjudicated the father
30
What happens if people die simultaneously according to the Uniform Simultaneous Death Act (USDA)?
Property of each decedent passes as though that person survived the other.
31
Under the USDA, how does property passing by will operate in the case of simultaneous death?
Property passes as though the testator survived and the beneficiary predeceased.
32
How does property passing by intestacy operate under the USDA in the case of simultaneous death?
Property passes as though the intestate survived and the heir predeceased.
33
What happens to insurance proceeds under the USDA if the insured and beneficiary die simultaneously?
Insurance proceeds pass as though the insured survived and the beneficiary predeceased.
34
How is joint tenancy property treated under the USDA in the event of simultaneous death?
Joint tenancy property passes 1/2 as though joint tenant A survived and 1/2 as though joint tenant B survived.
35
What is a renunciation (disclaimer) in inheritance law?
An heir or beneficiary can disclaim an inheritance or gift, meaning they are not forced to accept it.
36
What are the requirements for a valid disclaimer?
Must be in a signed writing, describe disclaimed property, and be filed within 9 months of decedent's death or disclaimant's 21st birthday.
37
Can a disclaimer be total or partial?
Yes, a disclaimer may be total or partial.
38
Who can file a disclaimer on behalf of an heir or beneficiary?
A guardian or personal representative can file a disclaimer.
39
What happens if a beneficiary accepts any benefits regarding a disclaimer?
Disclaimer is estopped if benefits are accepted.
40
Fill in the blank: Disclaimed property passes as though _______.
[the disclaimant predeceased the decedent]
41
What is the 'Slayer Statute'?
'Slayer statute' states that if one feloniously and intentionally causes the death of a decedent, property passes as though the killer predeceased the decedent
## Footnote
Applies to both probate and nonprobate transfers and severs joint tenancy.
42
What happens to joint tenancy when the Slayer Statute is applied?
Joint tenancy is severed, meaning there is no right of survivorship for the slayer
## Footnote
However, the slayer does not forfeit their own share.
43
Does the Anti-lapse statute save a gift for a slayer's descendants?
No, the Anti-lapse statute does not save a gift for the slayer's descendants unless they are also descendants of the decedent
## Footnote
This limits the ability of a slayer's heirs to inherit from the decedent.
44
How can a lifetime gift affect inheritance?
A lifetime gift can affect how much a beneficiary or heir inherits when the decedent dies
## Footnote
This is known as the principle of advancements.
45
What is the presumption regarding lifetime gifts?
Lifetime gifts are presumptively not advancements of a share from the decedent's estate unless proven otherwise
## Footnote
The intent must be shown by specific evidence.
46
What evidence is required to prove a lifetime gift was intended as an advancement?
Intent must be shown by either:
* A writing signed by the donor made within 30 days of the transfer or
* A written acknowledgment by the recipient signed at any time
## Footnote
This requirement ensures clarity in the donor's intentions.
47
What happens if an advancement is found?
If an advancement is found, its value is added back to the estate before calculating shares, then subtracted from the recipient's share
## Footnote
This process is referred to as 'hotchpot'.
48
Does the recipient need to return an advancement in excess of their share?
No, the recipient need not return any advancement in excess of their share
## Footnote
This protects the recipient from losing more than what they are entitled to.
49
What are the statutory requirements for a valid will?
A valid will must be made by a testator with specific legal requirements
## Footnote
Further details on these requirements would typically include age, mental capacity, and proper execution.
50
What is the minimum legal age for a testator to create a valid will?
14 years old
51
What are the two types of capacity a testator must possess to create a valid will?
* Legal capacity
* Testamentary capacity
52
What does testamentary capacity require the testator to understand?
* Nature of the act
* Nature and extent of property
* Natural objects of bounty
* Nature of disposition
53
What is necessary for testamentary intent?
Present intent to make a will
54
What is the format requirement for a valid will?
Must be in writing
55
Who must sign the will for it to be valid?
Testator or another at testator's direction and in testator's presence
56
Where can a testator sign the will?
Anywhere in the document; does not have to be at the end
57
Is a will required to be dated?
No, need not be dated
58
How many witnesses are required to attest a valid will?
Two attesting witnesses
59
In what context must the testator sign or acknowledge the will?
In the presence of the witnesses
60
Do witnesses need to sign in the presence of each other?
No, they do not have to sign in the presence of each other
61
What do witnesses need to know about the document they are witnessing?
They do not need to know that it is a will
62
How is 'presence' defined in Georgia for witnessing a will?
Within the scope of vision
63
What is the requirement for the order of signing the will?
No specific order required; must be part of a single contemporaneous transaction
64
What is required for a will to be valid in Georgia?
Witnessed by two attesting witnesses, Testator must sign or acknowledge will in the presence of witnesses, Witnesses must sign in the presence of the testator.
## Footnote
Witnesses do not need to sign in each other's presence or know the document is a will.
65
What does 'presence' mean in the context of witnessing a will in Georgia?
'Presence' means within the scope of vision; actual observation is not required.
## Footnote
This allows for flexibility in witnessing the signing of the will.
66
Is there a required order of signing for witnesses of a will in Georgia?
No order of signing is required, but it must be part of a single contemporaneous transaction.
## Footnote
This means all actions must occur at the same time.
67
What happens if a witness to a will is also a beneficiary?
The will is valid, but the gift to the interested witness is purged unless there are two other disinterested witnesses.
## Footnote
This rule prevents undue influence on the testator.
68
Are oral wills valid in Georgia?
No, oral wills are invalid.
## Footnote
This includes any verbal declaration of a will.
69
Are holographic wills valid in Georgia?
No, holographic wills are invalid.
## Footnote
A holographic will is one that is entirely in the testator's handwriting.
70
What is the status of foreign oral and holographic wills in Georgia?
Foreign oral wills and foreign holographic wills are invalid, even if validly executed under the law of the place where the testator was at the time of execution.
## Footnote
This means that the laws of other jurisdictions do not apply in Georgia.
71
What is a patent (obvious) ambiguity in a will?
Ambiguous on its face
## Footnote
Example: 'I leave $25,000 to Doris'
72
What type of evidence is admissible for patent ambiguity?
Extrinsic evidence admissible, though not to fill in blanks or supply omitted gifts
## Footnote
Extrinsic evidence can clarify intent but cannot create new provisions.
73
What is a latent (hidden) ambiguity?
Clear on its face but needs clarification
## Footnote
Example: 'To my sister Pat' when the testator has a sister named Chris and a brother named Pat.
74
What type of evidence is admissible for latent ambiguity?
Extrinsic evidence admissible
## Footnote
This can help clarify the intent of the testator.
75
What is the outcome when there is no apparent ambiguity in a will?
Clear on its face but someone thinks there is a 'scrivener's error'; no extrinsic evidence allowed
## Footnote
This implies that the written provisions stand as they are.
76
Can a decedent's will make a valid gift to an inter vivos trust?
Yes, even if the trust is amended after will execution
## Footnote
This allows for flexibility in estate planning.
77
What revokes all gifts and fiduciary appointments in favor of a former spouse?
Divorce or annulment
## Footnote
The former spouse is treated as having predeceased the testator.
78
What does the anti-lapse statute do in the context of revocation?
Doesn't save the gift
## Footnote
This means that the gift is nullified upon divorce or annulment.
79
Fill in the blank: A will can be revoked by _______.
Operation of law, by another written instrument, or by physical act
## Footnote
This encompasses various legal actions that can invalidate a will.
80
What is a Pour-Over to Inter Vivos Trust?
A decedent's will can make a valid gift to an inter vivos trust, even if the trust is amended after will execution.
81
What happens to gifts in a will if a divorce or annulment occurs?
Divorce or annulment revokes all gifts and fiduciary appointments in favor of former spouse.
82
How is a former spouse treated after a divorce in terms of the will?
The former spouse is treated as having predeceased the testator.
83
Does the anti-lapse statute save gifts for a former spouse's descendants?
No, unless they are also descendants of the testator.
84
What can pretermitted heir statutes do to a will?
They can revoke the will to the extent of the pretermitted heir's share.
85
What is required for a revoking instrument to be valid?
It must be executed with the same formalities as the will.
86
Is a writing that simply states 'revoke my will' valid in Georgia?
Yes, if executed with the same formalities as the will.
87
What happens if there are two testamentary instruments with inconsistent provisions?
The later instrument revokes the prior one by implication.
88
What are the three ways a will can be revoked?
* By Operation of Law
* By Written Instrument
* By Physical Act
89
What happens to a will if a valid will exists and has been revoked by operation of law?
It is revoked by divorce or annulment, treating the former spouse as having predeceased the testator
## Footnote
This revocation applies to all gifts and fiduciary appointments in favor of the former spouse.
90
How does the anti-lapse statute affect gifts to a former spouse?
It doesn't save the gift for the former spouse's descendants unless they are also descendants of the testator
## Footnote
This means that the gift does not automatically transfer to the descendants of the former spouse.
91
What can pretermitted heir statutes do to a will?
They can revoke the will to the extent of the pretermitted heir's share
## Footnote
Pretermitted heirs are those who are omitted from a will but are entitled to a share under statutory laws.
92
What is required for a revoking instrument to be valid?
It must be executed with the same formalities as the will
## Footnote
This includes any will, codicil, or other writing that indicates revocation.
93
What is the validity of a written statement that says 'I revoke my will' in Georgia?
It is valid if executed with the same formalities as the will
## Footnote
This highlights the flexibility of revocation methods in Georgia.
94
What happens if there are two testamentary instruments with inconsistent provisions?
The later instrument revokes the prior one by implication
## Footnote
This means that the most recent document takes precedence over earlier documents.
95
What constitutes a physical act of revocation?
Destroying, obliterating, or canceling with intent to revoke
## Footnote
The intent to revoke must be clear through the physical act performed.
96
Can partial revocations be made by physical act?
No, partial revocations by physical act are not recognized
## Footnote
Only extensive acts that show clear intent to revoke will be considered.
97
What constitutes a physical act of revocation?
Destroying, obliterating, or canceling a will with intent to revoke
## Footnote
No partial revocations by physical act are allowed; attempted acts of revocation are disregarded unless they indicate intent to revoke the entire will.
98
Can a revoking act be performed by someone other than the testator?
Yes, if performed at the testator's direction and in the testator's presence
## Footnote
This allows for the involvement of another person in the revocation process under specific conditions.
99
What is presumed if a will is not found at the testator's death?
It is presumed revoked
## Footnote
This presumption applies when a will cannot be located after the testator's passing.
100
What is the presumption regarding a mutilated will found in the testator's possession?
It is presumed to have been done by the testator with intent to revoke
## Footnote
This applies to wills that are found damaged or altered in a way that suggests intent to revoke.
101
What may be proven if a will is accidentally lost or destroyed?
Contents of the will may be proven
## Footnote
Evidence can be presented to establish what the will contained even if the document itself is no longer available.
102
What happens to a previously revoked will if the revocation is later revoked?
The previous will remains revoked unless it is revived
## Footnote
A simple revocation of a revoking instrument does not automatically revive the original will.
103
When is a revoked will considered revived?
If it is apparent from circumstances that the testator intends revival
## Footnote
An example includes a later instrument stating, 'hereby reinstate my previous will.'
104
What is dependent relative revocation?
A court may disregard revocation if it was premised on a mistake of law or fact
## Footnote
This applies if the revocation would not have occurred but for the mistaken belief that another disposition was valid.
105
True or False: Partial revocations by physical act are allowed.
False
## Footnote
Only complete revocations are recognized; partial revocations by physical act do not hold.
106
What happens to a revoked will if the revoking writing is later revoked?
The previous will remains revoked unless it is revived.
## Footnote
A revoked will can be revived if it is clear from circumstances that the testator intends revival.
107
Under what condition is a revoked will always revived?
If it is apparent from circumstances that the testator intends revival.
## Footnote
For example, if a later instrument states, 'I hereby reinstate my previous will.'
108
What is dependent relative revocation?
A court may disregard revocation if it is premised on a mistake of law or fact.
## Footnote
It would not have occurred but for the mistaken belief that another disposition was valid.
109
What are the three conditions for dependent relative revocation?
* Premised on a mistake of law or fact
* Would not have occurred but for the mistaken belief that another disposition was valid
* The results from disregarding revocation come closer to testator's intent
110
What is a contract to make a gift by will?
A testator may enter into a contract to make a will, not to revoke a will, or to die intestate.
## Footnote
The contract must be in writing and signed by the agreeing party.
111
What are the remedies for breach of a contract to make a will?
* Damages
* Constructive trust after decedent's death
* No remedy during the promisor's lifetime
112
Define mutual wills.
Separate wills by two or more individuals.
## Footnote
Mutual wills are created by individuals who agree to make their wills in a certain way.
113
Fill in the blank: A revoked will is always revived if it's apparent from circumstances that the testator intends _______.
[revival]
114
What happens to a gift to a beneficiary who predeceases the testator?
It lapses but can be saved by an anti-lapse statute.
115
What is the broad anti-lapse statute in Georgia?
A gift for any predeceased beneficiary who left surviving descendants is saved, regardless of whether the beneficiary is a relative of the testator.
116
What are the conditions for the anti-lapse statute to apply?
It applies only if the testamentary gift is absolute and without remainder or limitation.
117
To what type of gifts does the anti-lapse statute apply?
It applies only to gifts by will and does not apply if there is a contrary will provision.
118
Do anti-lapse statutes apply to class gifts?
Yes, they apply to class gifts.
119
What happens to gifts not saved by the anti-lapse statute?
They pass under the residuary clause or via intestacy if the lapsed gift is part of the residue.
120
How are shares divided if a will devises residue to multiple beneficiaries and one predeceases?
Survivors divide that share proportionately.
121
What is the limitation regarding gifts that fail due to divorce or slayer statute?
Such gifts are saved for the beneficiary's descendants only if they are also descendants of the testator.
122
What is ademption?
It refers to the situation when gifted property is not in the estate at death.
123
What is ademption by extinction?
If specifically devised or bequeathed property is not in the estate at death, the gift fails.
124
Can ademption be partial?
Yes, ademption may be partial.
125
What is ademption by satisfaction?
Transfer made during decedent's life, with intent to satisfy the gift, shown by writing by testator or written acknowledgment by beneficiary
## Footnote
This concept addresses how gifts in a will may be affected by transfers made before the testator's death.
126
What happens to income, cash dividends, and stock dividends before the testator's death?
They go to the general estate
## Footnote
These are considered increases in property value that belong to the estate prior to the testator's passing.
127
What do improvements to real property go to before the testator's death?
They go to the devisee
## Footnote
Improvements are considered as increases to the property that enhance its value.
128
What happens to stock from a stock split before the testator's death?
It goes to the specific legatee
## Footnote
This is an example of how specific gifts are treated in terms of increases in property value.
129
What are the rules for increases in property after the testator's death?
They go to the specific beneficiary
## Footnote
This indicates that any growth in value after the testator's death is directed to the designated beneficiary.
130
What is the doctrine of cy pres?
Allows a court to reform a valid charitable bequest that cannot be carried out as specified by the testator
## Footnote
The term 'cy pres' means 'as near as possible' and is used to fulfill the testator's general charitable intent.
131
When is the doctrine of cy pres applied?
When the original intent is frustrated by impossibility of the original plan
## Footnote
This doctrine helps to ensure that the testator's charitable goals are still met, even if the specific terms cannot be executed.
132
What is abatement in the context of estate assets?
Reduction of gifts when estate assets are insufficient to pay claims and satisfy all bequests and devises
## Footnote
Abatement determines how gifts are prioritized for reduction.
133
In what order are gifts reduced during abatement?
1. Property charged with debts by terms of will
## Footnote
This order of reduction is followed unless a different order of abatement is specified in the will.
134
What is a key element of false representation in the context of fraud?
Knowledge of falsity by person making statement with intent to deceive
## Footnote
This includes the requirement that the testator was deceived and that the disposition would not have been made but for the misrepresentation.
135
What are the different types of fraud related to wills?
* Fraud in execution
* Fraud in the inducement
* Fraudulent prevention of execution
## Footnote
Each type addresses different ways in which fraud can affect the validity of a will.
136
What is a possible remedy for fraud in the context of wills?
Possible constructive trust remedy
## Footnote
A constructive trust may be imposed to address the unjust enrichment resulting from the fraud.
137
What is a mistake regarding an instrument in the context of wills?
Mistake as to instrument (did not know it was a will) - extrinsic evidence admissible
## Footnote
This refers to situations where the testator was unaware that the document they signed was a will.
138
What is the rule regarding relief for mistake in inducement?
No relief unless mistake appears on face of will
## Footnote
This means that if the mistake is not obvious from the will itself, there is typically no legal remedy.
139
What is the exception for a child omitted from a will due to a mistake?
Child omitted because testator mistakenly believed child was dead will receive share of estate
## Footnote
This exception allows for rectification in cases where the testator's mistaken belief about a child's status leads to an omission.
140
What is the difference between patent and latent ambiguity in the context of wills?
* Patent ambiguity (on face of will) - Georgia allows evidence of intent
* Latent ambiguity (ambiguous as applied) - evidence admissible
## Footnote
Patent ambiguity occurs when the language of the will is unclear, while latent ambiguity arises when the terms are clear, but the application is ambiguous.
141
What is the rule regarding mistaken omissions or mistakes as to legal effect of a will?
No relief for mistaken omission or mistake as to legal effect of the will
## Footnote
This means that if a mistake does not affect the document's face or intent, it typically does not provide grounds for legal relief.
142
Are no-contest clauses enforceable in Georgia?
Yes, a no-contest clause providing that a beneficiary who challenges the will forfeits their interest is valid and enforceable
## Footnote
Such clauses can deter beneficiaries from contesting the will to avoid losing their inheritance.
143
What are the two forms of estate administration?
Common form and Solemn form
## Footnote
Common form requires testimony of a single subscribing witness and is conclusive after 4 years except for minor heirs. Solemn form requires all living witnesses and notice to all heirs, being conclusive immediately for those receiving notice.
144
What is the conclusive time frame for the common form of estate administration?
4 years
## Footnote
This applies to all parties except heirs who are minors.
145
What is required for a 'No Administration Necessary' petition?
* All heirs consent (with representation for minors/incompetents)
* Estate owes no debts or all creditors consent
* All heirs sign a notarized proposed distribution
## Footnote
This petition allows the estate administration to be dispensed with under specific conditions.
146
Who is appointed as the personal representative in estate administration?
A person named in the will, unanimously nominated by heirs/beneficiaries, or selected by the judge
## Footnote
The judge considers preferences such as surviving spouse (unless divorce is pending), heirs, any other eligible person, creditor, or county administrator.
147
What are the main duties of a personal representative?
* Give notice
* Collect assets
* Manage assets
* Pay expenses
* Distribute property
## Footnote
These duties are essential for proper estate administration.
148
Under what conditions may a personal representative resign?
In accordance with the terms of the will
## Footnote
The will may outline specific conditions or processes for resignation.
149
True or False: The solemn form of estate administration requires notice to all heirs.
True
## Footnote
The solemn form is designed to ensure that all heirs are informed and have the opportunity to participate.
150
What is a personal representative in probate proceedings?
A personal representative is appointed to carry out the estate administration.
151
What is the order of preference for appointing a personal representative?
1. Person named in will; 2. Person nominated unanimously by heirs/beneficiaries; 3. Person selected by judge, considering but not bound by preferences such as surviving spouse, heirs, any other eligible person, creditor, county administrator.
152
What are the duties of a personal representative?
Duties include giving notice, collecting assets, managing assets, paying expenses, and distributing property.
153
Under what conditions can a personal representative resign?
A personal representative may resign in accordance with the terms of the will, upon written request of all beneficiaries, or upon own request to court due to good cause.
154
What are some good causes for a personal representative to resign?
Good causes include age, illness, personal hardship, conflict, substantial financial benefit to estate from resignation, no adversity to estate, and if other personal representatives will continue to act.
155
What happens when the duties of a personal representative are complete?
The court may discharge the representative from duties and liability upon proper noticed hearing, or discharge from duties only upon petition and notice, while the representative remains liable for breaches of fiduciary duty for the statute of limitations period.
156
What is the statute of limitations for beneficiaries who are minors to bring action against a representative?
Beneficiaries who are minors have 2 years after age of majority to bring action against the representative.
157
What is 'year's support' according to Georgia statute?
Property or money intended to support a surviving spouse and dependent children for one year
## Footnote
It provides a vested right and the highest priority claim on an estate.
158
Can a surviving spouse accept a gift under a will in addition to year's support?
Yes, unless the will provides otherwise
## Footnote
If the will makes a gift to the spouse in lieu of year's support, the spouse must elect to take one or the other.
159
What is the time frame for filing an application for year's support?
Within 2 years of death
## Footnote
The person entitled to support or their representative must file the application with the court.
160
What happens if there is no objection to the application for year's support?
Application granted
## Footnote
If there is an objection, the court will determine the amount needed to maintain the standard of living.
161
What is meant by 'standing' in the context of will validity?
Anyone whose share of the estate would be increased by the will's admission to probate
## Footnote
It defines who has the right to challenge or support the validity of a will.
162
What are some grounds for contesting the validity of a will?
* Defective execution
* Will has been revoked
* Testator lacked testamentary intent
## Footnote
These grounds can lead to a will being deemed invalid.
163
What is a personal representative in probate proceedings?
A personal representative is appointed to carry out the estate administration.
164
What is the order of preference for appointing a personal representative?
1. Person named in will; 2. Person nominated unanimously by heirs/beneficiaries; 3. Person selected by judge, considering but not bound by preferences such as surviving spouse, heirs, any other eligible person, creditor, county administrator.
165
What are the duties of a personal representative?
Duties include giving notice, collecting assets, managing assets, paying expenses, and distributing property.
166
Under what conditions can a personal representative resign?
A personal representative may resign in accordance with the terms of the will, upon written request of all beneficiaries, or upon own request to court due to good cause.
167
What are some good causes for a personal representative to resign?
Good causes include age, illness, personal hardship, conflict, substantial financial benefit to estate from resignation, no adversity to estate, and if other personal representatives will continue to act.
168
What happens when the duties of a personal representative are complete?
The court may discharge the representative from duties and liability upon proper noticed hearing, or discharge from duties only upon petition and notice, while the representative remains liable for breaches of fiduciary duty for the statute of limitations period.
169
What is the statute of limitations for beneficiaries who are minors to bring action against a representative?
Beneficiaries who are minors have 2 years after age of majority to bring action against the representative.
170
What is standing in the context of probate?
Anyone whose share of the estate would be increased by the will's admission to probate
## Footnote
This definition establishes who has the legal right to challenge or support the probate of a will.
171
What are the grounds for contesting a will?
* Defective execution
* Will offered has been revoked
* Testator lacked testamentary intent or capacity
* The will or gift is a product of undue influence
* The will or gift was procured by fraud
* The document was executed or gift made because of mistake
## Footnote
These grounds provide the legal basis for disputing the validity of a will.
172
What can lead to the invalidation of a will due to undue influence?
A will or provisions resulting from undue influence can be invalidated
## Footnote
Undue influence can compromise the free will of the testator, leading to a challenge of the will's validity.
173
What are the requirements to prove undue influence?
* Influence destroyed free will of testator
* Will would not have been made but for the influence
* Undue influence was operative on mind of testator at execution
## Footnote
These requirements must be established to successfully claim undue influence in a will contest.
174
Under what circumstances does a presumption of undue influence arise?
* There is a confidential relationship between the testator and beneficiary
* The beneficiary obtains a substantial benefit under the will
## Footnote
This presumption shifts the burden of proof to the beneficiary to show that no undue influence occurred.
175
What constitutes a physical act of revocation?
Destroying, obliterating, or canceling a will with intent to revoke
## Footnote
No partial revocations by physical act are allowed; attempted acts of revocation are disregarded unless they indicate intent to revoke the entire will.
176
Can a revoking act be performed by someone other than the testator?
Yes, if performed at the testator's direction and in the testator's presence
## Footnote
This allows for the involvement of another person in the revocation process under specific conditions.
177
What is presumed if a will is not found at the testator's death?
It is presumed revoked
## Footnote
This presumption applies when a will cannot be located after the testator's passing.
178
What is the presumption regarding a mutilated will found in the testator's possession?
It is presumed to have been done by the testator with intent to revoke
## Footnote
This applies to wills that are found damaged or altered in a way that suggests intent to revoke.
179
What may be proven if a will is accidentally lost or destroyed?
Contents of the will may be proven
## Footnote
Evidence can be presented to establish what the will contained even if the document itself is no longer available.
180
What happens to a previously revoked will if the revocation is later revoked?
The previous will remains revoked unless it is revived
## Footnote
A simple revocation of a revoking instrument does not automatically revive the original will.
181
When is a revoked will considered revived?
If it is apparent from circumstances that the testator intends revival
## Footnote
An example includes a later instrument stating, 'hereby reinstate my previous will.'
182
What is dependent relative revocation?
A court may disregard revocation if it was premised on a mistake of law or fact
## Footnote
This applies if the revocation would not have occurred but for the mistaken belief that another disposition was valid.
183
True or False: Partial revocations by physical act are allowed.
False
## Footnote
Only complete revocations are recognized; partial revocations by physical act do not hold.
