Jenkins 2018 Probate & Intestacy Flashcards
1
Q
What is intestate succession?
A
The way a person’s property is distributed if she/he dies without a will.
2
Q
What does it mean if you die intestate?
A
It means you die without a valid will. Your property is distributed to your heirs under Ch 2 of probate code.
3
Q
What is a testator?
A
A person who makes a will or person who dies leaving a will.
4
Q
What is the difference between descent and distribution?
A
In common law, both refer to the passage of property from testator to person inheriting. Real property is passed by descent and person property passes by distribution. Use term devise for both now.
5
Q
What is the difference between devisees and legatees?
A
In common law, person receiving land is a divisee, a person receiving personal property is a legatee. Now we use divisee for both.
6
Q
What is consanguinity?
A
It’s the degree of blood relationship between two people. Will help determine distribution when someone dies without a will.
7
Q
What is lineal consanguinity?
A
It has to do with the way people are related. Lineal consanguinity has a direct line between you and the person, up or down - parents, grandparents, great-grandparents, children, grandchildren.
8
Q
What is collateral consanguinity?
A
Applies to anyone you’re related to because you share a common ancestor, not up or down - sibling, half-sibling, uncles, aunts, cousins
9
Q
What is an intestacy statute?
A
A statute that determines who gets your goodies if you die without a valid will - intestate. In Texas it is Ch 2.
10
Q
What is the typical order of intestacy statutes?
A
1 Surviving spouse 2 children 3 parents 4 brothers and sisters 5 grandparents 6 next of kin 7 state
11
Q
What does next of kin mean?
A
Next of kin is calculated by looking at which people stand at the same closest degree of consanguinity.
example
1st degree parents - children
2nd degree grandparents - grandchildren
12
Q
What are degrees of consanguinity?
A
They determine who the next of kin are. It is the amount of steps between you and the heirs.
Example
1st degree parents and children
2nd degree grandparents and grandchildren
13
Q
What i the civil law method of determining degrees of consanguinity?
A
- separate lineal relatives from collateral relatives
- for lineal, count the steps between you and the relative in question
- for collateral, count steps to first common ancestor then down to the relative in question
14
Q
What is the significance of determining degrees of consanguinity?
A
Relatives sharing the same closest number of degrees of consanguinity will share your estate. Count the steps in lineal then collateral if necessary.
15
Q
How does the common law method for determining degrees of consanguinity differ from the civil law method?
A
Common law counts the steps for collateral relatives differently.
16
Q
What is the doctrine of escheat?
A
If you die without a will and without any relatives that are sufficiently closely related to you, your things go to the state instead of going to any of whatever distant relatives you do have.
17
Q
What is renunciation in the context of estate property?
A
When a person is entitled to a gift under a will or share of an intestate’s estate but they turn it down. The gift is renounced or disclaimed. It is executed after death.
18
Q
What is a release of expectancy in the context of estate property?
A
When a person is entitled to a gift under a will or share of an intestate’s estate but they turn it down before their death. There must be consideration for the release.
19
Q
Why in the world would anybody want to renounce their share of a decedent’s estate?
A
To avoid creditors, or estate taxes.
20
Q
When a person dies intestate leaving more than one descendant, is the state divided equally among his descedants?
A
Maybe.
If they’re all the same generation most statutes divide the estate equally.
If they are different generations most statutes give different shares.
21
Q
What is the difference between the terms per capita and per stirpes?
A
Per capita is when all descendants take equal shares.
Per stirpes is when each descendant’s share is determined by the share his ancestor would have received.
22
Q
For purposes of the rules of intestacy, what is a half blood?
A
Someone who shares only one common ancestor with the person in question, like a half-sister or half-brother.
23
Q
How are illegitimate children treated differently than legitimate children for purposes for intestacy, according to modern laws?
A
Depends on if the mom or dad dies. Illegitimate children are considered children of the mother and can inherit from her and her relatives. On the other hand, the father has to acknowledge the child or marry the mother to legitimize the child.
24
Q
How do the rights of adopted children differ from those of the natural children when it comes to the rules of intestacy?
A
They can inherit from the adoptive parents.
They can’t inherit from the biological parents if there is termination and adoption.
If one parent dies and the other parent remarries the child can inherit from the deceased parent, living parent and step parent.
25
What is an advancement?
A gift an intestate makes during their life, to a relative, intending it to be applied against any share in the intestate's estate that the relative might be entitled to on the intestate's death.
26
When one of the heirs to an intestate's estate has received an advancement, how do you calculate each heir's share of the estate?
You add back any advancements, figure out the shares after the add-back, and then deduct the advancement from the appropriate heir's share.
27
How do you figure out whether a gift to an intestate's relative is an advancement or not?
Donor must sign a writing saying it's an advancement or recipient acknowledges that it is an advancement. Otherwise it's presumed to be an inter vivos gift.
28
Can someone who intentionally kills a decedent inherit, in intestacy, from the decedent?
Not in a murder case or voluntary manslaughter case. In some states not if a civil court finds him guilty and a criminal court doesn't.
29
Is it possible to be excluded from an intestate's estate because you're deemed unworthy of taking a share of it?
Yes. Examples
parent abandons child - can't inherit form child
spouse abandons spouse or commits adultery - can't inherit from spouse
30
What is transfer of expectancy?
When heir transfers their interest in intestate estate to a third party before decedent's death. There must be consideration for the transfer.
31
What is a personal representative?
Anyone authorized by the court to administer the estate whether by will or intestacy.
32
What is an executor?
Person the testator named in the will to administer the estate.
33
What is an administrator?
Person appointed by the court to administer an estate of an intestate.
34
What is an administrator with the will annexed?
Person appointed to administer the estate of a decedent although his will names an executor. Occurs if will fails to name executor or if the person can't or won't serve as executor.
35
What if an attorney makes a mistake in drafting the will?
The attorney can be held liable for malpractice. Beneficiaries can sue in tort (negligence) or contract.
36
What are the protected classes of potential beneficiaries in the family?
Surviving spouse and children of the testator.
37
How do statutes and common law rules protect the testator's family when it comes to wills?
They provide mandatory shares to prevent unintentional and intention disinheritance of spouse and to prevent unintentional disinheritance of children
38
How is the surviving spouse protect by modern statutes?
Elective shares give the surviving spouse the choice of one of several alternatives:
1 what spouse gets under deceased spouse's will
2 1/3 of deceased spouse's estate
3 what spouse would get under intestacy
39
How do transfers made by a deceased spouse during his or her lifetime affect the surviving spouse's elective share?
depends:
Did the deceased spouse make the transfer with the intent of depriving the surviving spouse of a share?
Was the transfer real or illusory?
40
How is a spouse protected against unintentional disinheritance, under modern statutes?
If the spouse married after the will, statutes give the spouse a share of the estate. (Omitted spouses)
41
Can a spouse waive his or her elective share in the other spouse's estate?
Yes, rights can be waived, released, or contracted away in a pre-nupt or post-nupt.
42
As a general rule, may parents completely disinherit their children if they want to?
Yes but statutes will protect children that are unintentionally disinherited.
43
What is a pretermitted heir?
A child that unintentionally left out of a will. (usually born after will signed)
44
What portion of deceased parent's estate may be claimed by a pretermitted child?
Whatever portion the child would have received if parent died intestate.
45
What if the residuary beneficiary predeceases the testator, who gets the beneficiary's interest?
It passes to other residuary legatees.
46
What is an antilapse statute?
if devisee dies but leaves issue that survive the testator, and the testator doesn't provide for alternative disposition, then that divisee's gift passes to his issue not the residuary beneficiary under the will.
47
What is administration of an estate?
Formal court enforced process of liquidating and managing the decedent's estate. payment of debts and liquidation of assets.
48
What is probate?
Proving that the will is genuine and executed in accordance with the required formalities.
49
What is the function of probate?
It vests legal title of estate property in the executor or administrator who then collects the assets, pays the debts, and finally distributes assets to beneficiaries with the court's approval.
50
What is a petitioner?
The person who files petition asking the court to probate a will or files petition asking to be appointed administrator.
51
What is the difference between a debt of the estate and an administration expense?
Debt is an obligation created prior to death.
| Expense is an obligation created during administration or the estate.
52
What is the impact of the timing of probating a will?
1 executor can begin to act on behalf of the estate
| 2 the validity of the will is no longer subject to attack
53
How is a will probated?
1 person named as executor files petition to probate
2 interested parties are given notice and opportunity to object/respond
3 court hearing to prove - death, domicile, genuineness of will, compliance with execution requirements, and testamentary capacity
4 will admitted to probate and petitioner is named executor
54
How is an intestate estate probated?
1 petitioner files petition for appointment as administrator
2 interested parties are given notice and opportunity to object/respond
3 hearing to determine if there is an intestacy and if petitioner will be appointed
4 administrator appointed, bond filed, and a certificate of appointment is issued
55
What is the order of appointment for an administrator in an intestate estate?
1 surviving spouse
2 child
3 another heir
56
How do you determine which state has jurisdiction over the probate of decedent's estate?
Use decedent's domicile. There may be ancillary administration in other states.
57
What is ancillary administration?
When a decedent has property in other states and the will must be probated in those states to distribute the property.
58
What is a will substitute?
A legal vehicle to pass a person's property at death without the formal administration. Passing assets outside the estate.
59
What are the 4 most common will substitutes?
1 joint tenancy
2 joint bank accounts
3 contracts requiring performance at death
4 inter vivos trusts
60
What is a joint tenancy?
When more than one person owns property and it goes to the survivor when one of them dies.
61
What is joint bank accounts?
When more than one person own a bank account and it goes to the survivor when one of them dies. Can also create a bank account with a right of survivorship.
62
What are contract requiring performance at death?
Contracts that become effective on death, the most common are life insurance contracts.
63
What are inter vivos trusts?
A trust created during a person's life to hold assets for a beneficiary until his death.
64
What is tenancy by the entirety?
A form of joint tenancy that is limited to spouses.
65
When is the validity of will substitutes challenged?
When the people who take by the will substitute are different from the people who take by the will.
66
When a trustee breaches any duty to the beneficiary, are damages the beneficiary's only remedy?
```
No, may also seek:
1 specific performance
2 injunction
3 objections to trustee's accounts
4 appointment of receiver
5 waive trustee compensation
```
67
What is a personal representative?
A person with authority o represent an estate - executor, administrator or guardian. PR is a fiduciary with duty of loyalty to the estate, trust or ward.
68
What is an executor?
A person appointed in a will to execute the will and manage the administration of the estate.
69
What is an administrator?
A person appointed by a court to administer an intestate estate.
70
What is an independent executorship?
When an executor is independent. They act with minimal supervision of the court and generally will not have a bond.
71
what is a dependent administration?
When the administrator acts under the supervision of the court, generally dependent administration requires a bond.
72
What is dead hand?
rules that allow the dead person to control someone's behavior for purposes of inheritance.
73
What is the effect of an invalid clause in a will?
It does not invalidate the will, only the clause is invalidated.
74
What kinds of non-probate tools are there?
```
Inter vivos trusts
life insurance
payable on death/transfer on death contracts
joint tenancy with right of survivorship
pensions and retirement plans
```
75
What is an advancement?
When a person receives a gift from testator that counts against his inheritance. Testator must state it's against his inheritance in a writing or the divisee must state he is receiving an advancement in writing. Writing must be at the same time as the gift.
76
What is the reversion back doctrine?
When someone disclaims a gift, it makes the disclaimer effective at the time of death not at the time of disclaimer. This allows the money to pass without the person disclaiming ever having title or possession of the gift. This prevents disclaimer's creditors from getting the money.
77
What is a disclaimer?
When a person does not want to receive a testamentary gift, they give up the right to it and it passes to the next person in line.
78
What is partial intestacy?
when the will does not distribute everything. Sometimes gifts laps or there's no residuary clause. The remaining property is distributed through intestacy.
79
what is an heir apparent?
A person who expects to get gifts that vests on the date of death.
The testator is still alive and they become heirs upon testator's death.
80
What is simultaneous death and how does it affect probating of estates?
When two people die in the same incident. One of them must live 120 hours longer than the other or it will be presumed they died at the same time.
81
What is representation?
When one of several children dies before decedent. The child's children take his share by representation.
82
What is per capita representation?
When all relatives in a specific generation take the same amount.
83
What is per stirpes representation?
When decedents of a beneficiary take part of his share by representation.
84
Are adopted and biological children treated the same for inheritance purposes?
yes, they are treated the same under intestacy statutes.
85
Intestate distribution when there's no spouse
```
1 children then children's descendants
2 father and mother
3. if only one parent then parent splits with siblings.
4 siblings
5 nieces and nephews
6 grandparents
```
86
Intestate distribution spouse no children.
Spouse gets all, 1/2 through community property, 1/2 through the estate
87
Intestate distribution spouse with children.
evenly divided between spouse and children.
88
What is a right of survivorship agreement?
Agreement that allows the surviving person to take property that is co-owned.
89
Can a person inherit from a victim's estate?
No, whether convicted or held liable under wrongful death.
90
Is the estate of a suicide treated differently?
No, it is treated as a regular estate.
91
In intestacy, how is community property divide when there's a spouse and spouse's kids?
Spouse gets all community property.
92
In intestacy, how is community property divided when there's a spouse and someone else's kids?
spouse gets 1/2, kids split the other 1/2.
93
In intestacy, how is separate real property divided if married with kids.
1/3 to surviving spouse
| 2/3 to kids equally
94
In intestacy, how is separate real property divided is married with no kids
1/2 to surviving spouse, 1/4 mom an d1/4 to dad
95
in intestacy, how is separate personal property divided when married with kids?
1/3surviing spouse 2/3 to kids equally.
96
In testacy, hos is separate personal property divided when married no kids, no parents?
all to surviving spouse.
97
How do you divide the estate when there are full-blooded and half blooded distributions?
count 2 points for full blood and 1 point for half blood. add them up and divide by the total.
98
Does an inventory have to be files?
All beneficiaries can agree that an inventory does not have to be filed for privacy reasons.
99
When is adult adoption used in the context of estate planning?
When a person wants to give to someone and they expect a challenge to the will. Adopting the person allows them to inherit by intestate statute.
100
What is adoption by estoppel and how does it affect intestacy distribution?
When a person acts as someone's parent but never formally adopts them. They both treat each other as family. The child has a right to inherit from the parent because of the adoption by estoppel.
101
What is a posthumous child?
a child born after decedent dies. Statutes used to set dates but now assisted reproduction changed the rules. Must be born before distribution and closing of estate.
102
What 3 options do courts use when the testator is killed by a beneficiary.
1 pass title to slayer - already punished once
2 don't pass title to slayer - criminal shouldn't profit from murder
3 slayer takes title but it goes into constructive trust for benefit or heirs
103
what is a constructive trust?
the formula through which the conscience of equity finds expression.
104
what is an unworthy heir?
a slayer of person who does not deserve to inherit because he abandoned decedent.
105
What is a pretermitted child.
a child born or adopted by testator after signing will.
106
3 options for pretermitted child distribution
1 received under 201.001
2 receive portion he'd get in will if he was in it
3 gets same character and type of property as other children
107
What is the relation back doctrine?
it allows the disclaimer to go back tot he time of death so that the disclaimant never has possession or title to the inheritance.
108
Does relation back doctrine apply in federal law?
No, supreme court says it's a fiction in state law and it has no effect on federal law.
109
What is a confidential relationship?
When a person has a fiduciary relationship, reliant relationship, or dominant subservient relationship with another person.
110
What are the factors of undue influence?
1. donor is susceptible
2. there's an opportunity to exert influence
3. wrongdoer has disposition to exert influence
4. result is the effect of undue influence
111
what is a fiduciary relationship?
a confidential relationship arising from a fiduciary obligation such as trustee, executor, administrator, or attorney in fact.
112
What is a reliant relationship?
A trust relationship where one party relies on another party with the belief the other party will act in their interests.
113
What is a dominant subservient relationship?
When donor is subject to wrongdoer's influence, common with caregivers or adult children taking care of sick or dying people.
114
Is a confidential relationship enough to establish undue influence?
The existence of the relationship is not enough, there must be an abuse of the relationship.
115
What is undue influence?
When a person convinces another person to put his interests and desires before their own interests and desires.
116
Who bears the burden of proof in undue influence?
The challenging party has the burden of proving with clear and convincing evidence.
117
Is a lawyers allowed to draft a will where he is the executor or a beneficiary?
Yes, but only if it is a family member in the first degree. Some states have a presumption of undue influence when an attorney takes in a will he drafted.
118
What is a statement of reasons?
A clause in a will that explains reasons for dis-inheriting someone. often create litigation.
119
What are the requirements when a will is not produced?
1. reason Will not produced
2. contents of will, if known
3. name of divisees
4. name of heirs in intestacy
4. name of people who inherit absent will
120
What is the rule for former spouses?
All clauses that benefit them are invalid. Includes wills, trusts, retirement plans, insurance plans. They are treated as if they predeceased.
121
Can an application to void a marriage be made posthumously?
Yes, if the deceased lacked mental capacity and the marriage was less than 3 years. Has the effect of not treating the spouse as a surviving spouse.
122
Can you probate the will of someone who is alive?
The person must be dead but a will can be probated if the person believes they are dead and can prove it with circumstantial evidence.
123
what happens when a court finds undue influence?
the will is invalidated and revoked.
124
Does a gift of personal or real property include the contents?
No, gift of real property does not include personal property on the real property.
No, gift of personal property does not include other personal property unless expressed in will.
125
What if the gift is not properly described?
The erroneous description doesn't destroy the gift. The court cannot change a gift but it can correct the description to fulfill testator's intent.
126
What is reformation?
when there is an obvious mistake in a will and the court fixes the mistake.
127
What is a class gift?
a gift that is given to a group of people. The group can be ascertained at the time of death but the individuals are not named in the will. There is no class gift if the individuals are named.
128
What happens when a person in the class dies?
their share is distributed among the surviving class members.
129
What is an honorary trust?
A trust established to provide support for a pet in a will. Requires a trustee and somewhere to distribute the res when the pet dies.
130
Do anti-lapse statutes apply to all gifts that fail under the will?
No, only to those going to family members, they don't apply when it's a gift to a friend.
131
Do anti-lapse statutes apply when the will provides for alternative distributions?
no, they don't apply because testator has already provided for an alternative disposition.
132
What is the simultaneous death rule?
A beneficiary must survive the deceased by at least 120 hours, 5 days, or they are presumed to predecease the decedent.
133
What is ademption by extinction?
When a gift lapses or is void because the property no longer belongs to testator. Only applies to specific gifts.
134
What is a general devise?
a gift from het general funds of the estate rather ahn a particular asset.
135
What is a demonstrative devise?
A general gift payable from a specific source, the estate pays the rest if the source is not enough.
136
What is the residuary?
The residuary holds the estate's property that is not otherwise distributed. It then gives the money to the beneficiaries named to take the residuary.
137
How are stocks and securities handled in probate?
Unless specified in the will they are distributed based on their status at the time of the will.
138
How are non-probate assets distributed?
They are distributed under contract law and not probate law. The beneficiary must make a claim with the institution holding the contract, the executor or administrator has no responsibility for these distributions.
139
How do you designate beneficiaries for non-probate assets?
Using the standard beneficiary designation documents required by the institution holding the assets or required by the contract.
140
What is abatement?
When there is not enough money in the estate to pay the debts the estate must use intended gifts to pay the debts. First use residual, then general devises and finally specific and demonstrative devises.
141
Can creditors reach revocable trusts?
yes for revocable trust. can't reach irrevocable trusts, joint tenancies, life insurance policies, retirement plans of US savings bonds.
