Intro to Intestacy

Question 1

Freedom of Disposition Rule

Answer 1

the right to dispose of property as one see fit; dispose of one’s property at death on terms she proscribes

The Dead Hand can reach and control the allocation of property after

1) The organizing principle of American law on donative transfers
2) Nearly unrestricted right but not completely unrestricted

Question 2

Donee right to inherit?

Answer 2

The donee does not have any right to inherit; the right belongs to the donor to dispose
1) No living person has heirs – heirs apparent
2) An expectancy may be transferred in equity if there is
a) Adequate consideration and it is fair

Question 3

2) An expectancy may be transferred in equity if there is

Answer 3

a) Adequate consideration and it is fair

Question 4

The court’s role

Answer 4

to facilitate not regulate
1) The goal is to carry out the probable intent of the decedent

Question 5

Domicile Rule

Answer 5

1) The law of the domicile of the decedent at death applies
a) 6 months + 1 day rule

Question 6

Limitations on the freedom of diposition

Answer 6

1) One cannot impose conditions that are
**a) (1) unlawful; **
(i) In violation of constitutional right
**b) (2) uncertain; **
(i) Destroying property without purpose
**c) (3) against public policy **
(i) “partial” and “not reasonable” restriction on marriage not against PP.
d) (4) on property one does not own at time of death
**e) (5) against any other limits or rules by state legislature **
(i) Can limit and condition but cannot repeal (taking)

Question 7

Intentional Omission of Child

Answer 7

Rule: children have no protection against intentional disinheritance by parent

Question 8

Revocation by operation of law

Answer 8

Marriage and divorce

Question 9

Marriage revokes will unless

Answer 9

(i) (1) Spouse is already provided for in will and (2) there is no other evidence to rebut the presumption of revocation (an intention not to provide for the spouse)

OR

(ii) Provision made for spouse by marriage contract

Question 10

Pretermitted statutes

Answer 10

statutes designed to protect unintentionally omitted children or spouses – applies to property not trusts

• when child born after will created

Examine facts and circumstances: timing of will, if all other children provided for, if there is something given to child then probably cannot show omission is mistake

Question 11

Surviving spouse

Social security

Answer 11

married 10 years – entitled to inherit; if not 10 years – not entitled

Question 12

Surviving spouse

Pension & retirement

Answer 12

spouses have survivorship rights to employer benefits under ERISA for pension plan

Question 13

surviving spouse

homestead

Answer 13

majority of states allow spouse to remain in the home

Question 14

surviving spouse

Personal Property

Answer 14

certain personal property may be given to spouse under value

Question 15

surviving spouse

Dower

Answer 15

entitles widow to a life estate 1/3 of the LAND of deceased spouse

a) Right attaches when one acquires land or upon marriage (the latter)

Question 16

surviving spouse

Curtsey

Answer 16

husband had support interest in wife’s lands, didn’t acquire unless kids born then given life estate

Question 17

Separate states

Answer 17

majority rule common law. treats the married as separate entities.
a) Prince Model
b) Protection against disinheritance – elective share : entitled to 1/3 of all assets
(i) Can override a testator’s plan if enforced by spouse
(ii) Only waive by pre or post nup

Question 18

Community states

Answer 18

minority rule. Treats married as a partnership.
a) Coldplay model
b) No elective share because all assets are 1/2 of each spouse

Question 19

Elective Share Rule

Answer 19

1) In separate property states courts evaluate the augmented estate
a) Broad definition: the augmented estate is property applicable to the elective share rule
(i) Take out lifetime transfers to surviving spouse and credits to SS
* Joint tenancy, property together, life insurance as a beneficiary

b) Movement to include non-probate property in elective share calculation
(i) Revocable trust issue

Question 20

Pre and post nups

Answer 20

can waive elective shares

Question 21

voiding

pre and post nups

majority and minority rule

Answer 21

1) Can waive the elective shares
2) Majority rule UPAA 1983: Void by showing
a) Not voluntary or
b) Unconscionable when executed
(i) Not fair or fully disclosed

3) Minority rule UPMAA 2012: unenforceable when
a) Involuntary or
b) No access to legal representation or
c) No notice waiver or explanation of marital right if no legal rep
d) No adequate financial disclosure

Question 22

The Slayer Rule

Three approaches

Answer 22

1) For one who kills the decedent three approaches:

a) The slayer inherits despite the killing
b) The slayer is disinherited – passes through residue or intestacy
c) Creation of a constructive trust  goes to slayer but compels him to pass to the next heir

(i) Involuntary (no intent) – to slayer; voluntary/murder (intent) – constructive trust

Question 23

Disclaimer

Common and modern rule

Answer 23

1) Voluntary refusal to succession or inheritance
2) Common law rule: no disclaimer
3) Modern rule: disclaimant is treated as a predeceased decedent – pass through residue/intestacy systems

Question 24

estate tax general

Answer 24

A) Estate tax is the federal government way of redistributing wealth
1) Tax on estate – amount in excess of exemption (16K / 12.06) is taxed at 40%
2) Tax on beneficiary – inheritance tax by state
a) In ky based on closeness to the decedent
b) State tax can be deducted from federal tax

Question 25

tax exemption numbers

Answer 25

1) Federal lifetime exemption: 12.06 mi
2) Annual gift exemption: 16K

Question 26

gift tax

rule and exemptions

Answer 26

a) Only gifts over 16K are taxed
b) Exempted
(i) Marital gifts
(ii) Under 16K
(iii) Charitable gifts
(iv) Tuition paid directly to school
(v) Medical expenses paid directly to provider** a deduction
c) Example: gift $66,000. Taxable- 1) file form 2) do not have to report first $16,000 3) report $50,000 (66K-16K) 4) nothing pay today 5) new lifetime exemption: $12.06M - $50,000 = 12.01 M

Question 27

unified gift and estate tax

Answer 27

Every year can give 16K tax free and anything over that is tax free if under 12.06**

Question 28

tax credit amount

Answer 28

4,769,800

Question 29

tentative estate tax formula

Answer 29

Formula: (345,800) + (tentative estate – 1M X .40)

Question 30

probate

Answer 30

court’s supervised method of distributing and carryout the will and monitoring the distribution of probate assets
1) Purposes – evidence of title transfer; protects creditors; distributes property to those intended
2) Will or intestacy or pour over trust
3) Exception
a) De minimums estate under statutory number (30K); personal property; if all to spouse

Question 31

nonprobate

Answer 31

Will substitute, life insurance, joint tenancy, inter vivos trust, POD and TOD contracts

Question 32

personal representative

Answer 32

in charge of carrying out the estate
1) Executor  named in the will; administrator  intestacy appointed
2) Duties: contact creditors, manage estate, decedent’s affairs, fiduciary duties, protect property, accounting of assets, file taxes
3) Gets power from letters of testamentary

Question 33

devisee v. legatee

Answer 33

real property and money; legateepersonal property

Question 34

jurisdictions

Answer 34

1) Probate
a) Where one is domiciled at death = domiciliary jurisdiction
(i) 6 months and a day

2) Ancillary probate
a) Real property in another jurisdiction = ancillary jurisdiction

Question 35

attorney duty to beneficiaries

Answer 35

Attorney owes duty of reasonable care to intended beneficiaries because beneficiary is third party exception since there is no privity of K but is intended beneficiary of will.

Question 36

intestacy

Answer 36

When one dies without a testamentary plan, the uniform laws provide an estate plan that is supposed to be the likely and reasonable intention of the decedent

Question 37

When spouse, no kids, no parents =

Answer 37

spouse takes all

Question 38

When all kids are spouse and decedents =

Answer 38

spouse takes all

Question 39

When all kids are spouses, but not all decedents =

Answer 39

spouse takes 150K and 1/2 remaining, kids in common take 1/2 remaining

Question 40

When all kids are decedents, but not all spouses =

Answer 40

spouse takes 150K and 1/2 remaining, decedent’s kids take 1/2

Question 41

When spouse and parents, no kids =

Answer 41

spouse takes 300K and 3/4 remaining, parents take 1/4

Question 42

When kids, no spouse no parents =

Answer 42

all to kids per capita

Question 43

When no spouse, no parents, no kids, but siblings/ descendants of parents =

Answer 43

all to siblings per capita

Question 44

When no spouse, no parents, no kids, but siblings/ descendants of parents =

Answer 44

all to siblings per capita

Question 45

When no spouse, no parent, no kids, no siblings/descendants of parents, surviving grandparent (G) or descendant of grandparent (GD) aunts/uncles =

Answer 45

a) If both paternal and maternal G or GD = 1/2 to each maternal and paternal (all to G or if none per capita at GD generation)
b) If only on one side survivor = all to G or GD on that side

Question 46

No spouse, no parent, no kids, no sibling, no descendants of parents, no G or GD =

Answer 46

stepchild or escheat, no laughing heirs

Question 47

cohabitating partners

Answer 47

not heirs at law

Question 48

USDA / simulatenous death issues

Answer 48

a) Traditional law: if sufficient evidence that spouse survived other spouse proceeds paid to spouse who survived longer
b) UPC/USDA: claimant must establish survivorship by 120 hours, 5 days by clear and convincing evidence

Question 49

table of consanguinity

Answer 49

only when no surviving spouse
a) First to direct descendants’ line  children, Grandchildren, GG children
b) Then, first parenthetic line (parent’s) siblings, nieces/nephews, grand and GG
c) Last, second parenthetic line (GP)  uncles/aunts, 1 cousin to 3 cousin
(i) UPC stops here to prevent laughing heirs

Question 50

half blood issues

Answer 50

UPC inherit as full blood, KY 1/2 of full blood

Question 51

English per stripes

Answer 51

(vertical)
(i) Shares are split under first direct line and split further
(ii) Begin at level below decedent – peg board

Question 52

Modern per stripes

Answer 52

(i) Shares are equal at each line of the closest living generation
(ii) Begin at first level of living descendant – either EPS or UPC

Question 53

UPC per capita

Answer 53

(horizontal)
(i) Shares are equal at first generation living, the remainder goes into a common pot
(ii) Each taker at each level treated equally – pot distributed over and over again

Question 54

Dead limb problem

Answer 54

cut off deceased without representation

Question 55

Adoption Rule

Answer 55

a) Rule: adopted child is treated as the natural child of the adopted parent
(i) Except when adopted by the spouse of the natural parent (step parent)
* Adoption is “rebirth”

b) UPC General Rule: adoption cuts off a child’s right to inherit from natural parents. Exceptions:
(i) Stepchild adopted by stepparent
(ii) Individual adopted by relative of genetic parent
(iii) Individual adopted after death of both genetic parents
(iv) Assisted reproduction child adopted after

Question 56

adult adoption

Answer 56

majority rule: most states do not draw a distinction between adult and children adoption; not barred

Question 57

posthumous child issue

minority and majority rule

Answer 57

when conceived before and born after death
a) Majority under UPA: rebuttable presumption that child born 300 days after death of husband is a child of the husband
(i) Minority rule: 280 days after the death

Question 58

nonmarital children

Answer 58

a) Common law: disinherited
b) Modern: always can inherit from mother, state vary about father

Question 59

advancements

definition

Answer 59

a lifetime gift from a donor to an intestate heir where the donor intends the lifetime gift to be in place of an inheritance by intestacy only

Question 60

advancements

common law v. modern UPC

Answer 60

2) Common law rule: gift made during life of decedent always counts against heir’s share
3) Modern Rule UPC: if a writing and a gift made to the beneficiary accompanying writing
a) Timing: within a week or month, not a year though

Question 61

Advancement calculation

when less and when more would inherit

Answer 61

a) If advancement is less than what would have inherited
(i) Add advancement amount to estate total = hotchpot
(ii) Divide by number of heirs
(iii) Subtract the advancement from one who received living gift
(iv) Surviving kids get the divided share
b) If advancement is equal to or more than what heir would have inherited
(i) Split the estate as if advancement individual is not there – predeceased

Question 62

conservatorship

Answer 62

must be clear and convincing evidence cannot manage property
1) UPC gives priority to some people to serve as conservator chosen in advance
a) Agent under DPOA
b) Spouse
c) Adult child
d) Parent

Question 63

durable POA v. POA

Answer 63

DPOA: agent authorized to act with respect to any of principal’s property, but only while he is alive.
a) DPOA: Continues through incapacity while alive v. POA: terminates at incapacity
b) Agent does not have powers unless given specific powers
c) duties
(i) loyalty: avoid personal interest or doing something to benefit self
(ii) care/prudence: reasonably prudent manner, ordinary care, due diligence, good faith, don’t waste resources