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Trust and Estates > Key terms > Flashcards

Key terms Flashcards

1
Q

What is subject to probate

A

property held in decedents name alone or by tenant in common

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2
Q

What is not subject to probate

A

lifetime gifts, joint property, trusts, TOD and POD, contract rights and beneficiary designations(401k, IRA, life insurance)

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3
Q

Steps in probate process (executors duty)

A

-collect and protect the decedents’ property
-pay the creditors
-settle disputes between the beneficiaries
-distribute all the property to the beneficiaries
-file reports with the probate court

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4
Q

types of administration

A

formal and informal

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5
Q

formal administration

A

must obtain court approval before acting

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6
Q

informal administration

A

can often act without approval, simply report to the court at the year-end and when closing probate

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7
Q

who cannot serve as executor

A

-person convicted of a felony
-person under the age of 18
- persons who are not residents of the US
-person with a mental disability subject to guardianship

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8
Q

what must executor file with probate court

A

-petition to admit the will to probate
-application for letters testamentary
-executor must provide notice to- all beneficiaries named in the will, all those who could take interest, creditors

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9
Q

how does the executor notify creditors

A

by publishing a notice in the newspaper to alert them that they may file a claim against the estate

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10
Q

guardianship “living probate”

A

minors or incompetent adults

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11
Q

types of guardianship

A

-of the person
-of the property-
-ad litem

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12
Q

why is it living probate

A

-court-supervised
-involved a lot of expenses and attorney time
-causes many delays

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13
Q

what is a lifetime transfer

A

transfer on death without probate system

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14
Q

elements of a trust

A

-property (res)
-held by someone (trustee)
to benefit someone else (beneficiary)

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15
Q

other examples of lifetime trust

A

joint tenancy with survivorship and life insurance

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16
Q

majority approach for estate planner malpractice

A

an estate planner can be liable to both beneficiary and estate- tort and SOL- runs when testator dies

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17
Q

historical approach to estate planner malpractice

A

lack of privity and SOL- ran when will was signed

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18
Q

Schneider v. Finman

A

court held that there is privity between the personal representative of an estate and the estate planning attorney- personal representative can sue estate

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19
Q

Needham v. Hamilton

A

3rd party can sue estate lawyer for malpractice

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20
Q

Intestacy

A

decedent dies without a will or other estate planning property passes to survivors by intestate

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21
Q

Intestacy rule: surviving spouse no decendants

A

100% to surviving spouse

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22
Q

Intestacy rule: No surviving spouse, but descendants

A

100% to descendants

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23
Q

Intestacy rule: surviving spouse and descendants

A

50% to surviving spouse and 50% to descendants OR 2/3 to surviving posse and 1/3 to descendants

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24
Q

Intestacy rule: no surviving spouse and no descendants

A

100% to parents: split 50/50 if both maternal and paternal are alive

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25
Q

Intestacy rule: no surviving spouse, no descendants, no parents, but siblings and their descendants

A

100% to descendants of parents, namely brother and sister or their descendants

26
Q

Intestacy rule: no surviving spouse, no descendants, no parents, no siblings or their descendants

A

50% to maternal grandparents or descendants and 50% to paternal grandparents or descendants

27
Q

Intestacy rule:No persons previously listed in any other rule

A

50% to nearest kin on maternal side and 50% to nearest kin on paternal side

28
Q

Intestacy rule: no relatives

A

100% to the state

29
Q

intestacy rules recognize blood marriage and adoption what happens to stepchildren and cohabitants

A

generally not heirs

30
Q

survivorship

A

to inherit through intestate a person must be living

31
Q

simultaneous death Act

A

if individuals died at the same time the property of each person will be treated as if each survived

32
Q

UPC 120 hour rule

A

a person must live 120 hours longer than decedent to have survived the decedent

33
Q

choice of law rule

A

apply law of situs- location of decedent and property- will apply whole law of state who’s law controls

34
Q

spouse defined

A

legally married, some states recognize common law marriage, some states give inheritance to subsequent putative spouse

35
Q

descedndants defined

A

non marital children- traditional unable to inherit, now can inherit; must prove paternity

36
Q

adopted persons defined

A

is a descendant of the adoptive family for the purpose if inheritance; cannot also inherit from biological family (fresh start approach)

37
Q

children of assisted reproduction

A

a child who enters the womb after the father’s death is not his child for the purpose of inheritance because they were not conceived before the father’s death (finely v. comm’r)

38
Q

half bloods defined

A

half and full blood relatives to inherit equally

39
Q

step children defined

A

traditionally had no inheritance rights

40
Q

allocation: per capita

A

distribute equal fractions to each descendant regardless of weather it is a child, grandchild, or other descendant

41
Q

allocation: strict per stirpes

A

divides into shares according to how many children, even if there are some predeceased

42
Q

allocation: per stripes, per capital with representation

A

divided into equal shares at first generational level

43
Q

allocation: representation, per capita at each generation

A

surviving descendants at the same generational level will receive equal fractions

44
Q

wills defined

A

instrument executed with certain formalities that usually directs the disposition of property at death or any document that complies with the formalities

45
Q

will formalities

A

appoints executor, names or changes the guardian for any of the testators minor children or revoked or amends an existing will

46
Q

wills only speak when

A

at death

47
Q

does a beneficiary have an interest in the property before the testators death

A

no a testator can revoke or amend a will- just a mere expectancy

48
Q

will formation requires

A

testamentary intent and testamentary capacity

49
Q

testamentary intent defined

A

testator intends it to operate as a will- usually established by the document itself

50
Q

testamentary capacity- defined

A

testator must be at least 18 years old, testator must know- natural object of their bounty, nature and extent of their property, basic dispositive provisions of the will, nature of the act

51
Q

2 doctrines for mental incapacity

A

mental deficiency and insane delusion

52
Q

mental deficiency defined

A

a person who has dementia may be of sound mind for executing a will if in a lucid period, a person who does not have the requisite mental capacity to execute a contract or a deed might still have testamentary capacity

53
Q

insane delusion define

A

something that no rational person would believe; unsupported by any rational explanation

54
Q

will execution requirement

A
  • in writing
    -signed by testator
    -signed by witness in presence of testator
55
Q

cna a photocopy be admitted to probate

A

yes if the proponent proves that the original will was lost or destroyed

56
Q

does a holographic will need a witness

A

no but the material provisions must be in the testators handwriting and the testator must have signed it

57
Q

majority approach: test of presence

A

conscious presence test is used to determine if the witness were in the testators presence
- valid if testator could not see the witness
-valid if witnesses were in a different room
- valid if the testator is blind

58
Q

minority view: test of presence

A

witness signed in presence of testator if they were in the scope of vision, meaning the testator must have been able to see the witness sign the will with minimal movement and effort

59
Q

majority view cont: conscious presence test

A

know they are near and what they are doing

60
Q

competency of witness

A

understand the nature of the act and testify in court

61
Q
A

Trust and Estates (1 decks)

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