Midterm Review Flashcards
ESSAY: What happens to community-property estate if John dies intestate?
(1) John and Mary have no kids
(2) John and Mary have adopted kids
- Community property is a 1/2 interest in the estate. When John dies, Mary retains her half and, if there are no children, she inherits John’s half interest in the community property estate.
- While adopted children are now considered issue for the sake of intestacy, Mary’s distribution only changes if the children are not her issue as well as John’s. Since the children have adopted the children together, they are issue of both and, as in the first scenario, John’s half of the community property estate passes to Mary.
ESSAY: Explain the different between testate succession and intestate succession.
In testate succession, the testator writes a will and gifts property, within bounds of his ownership interest and legality (e.g., he can’t leave more than his share in a community property estate) to whomever he chooses. Intestate proceedings occur when the testator has failed to write a will or if his will is declared invalid. These proceedings distribute the decedent’s property according to laws of the state in which he was domiciled. With the exception of spouses, intestate laws generally rely on lineal blood relationships–consanguinity.
ESSAY: List/explain the four unities of title
The four Unities of Title are the requirements for joint tenancy with right of survivorship–if any are missing, it becomes tenancy in common. They are:
- Time - one deed, vested at the same time
- Title - one deed, equal interest
- Interest - Equal shares (duration, extent, nature)
- Possession - Each has an equal right to possess the property (no exclusive rights)
ESSAY: List the order in which property abates
- Property not disposed of by the will
- Residuary devises
- General devises
- Specific devises
ESSAY: List the order of priority of claims (debts personal representative must pay from the estate)
- Costs/expenses of administration (including attorneys’ fees)
- reasonable funeral expenses
- debts and taxes with preference under federal law
- reaosnable/necessary medical and hospital expenses of the last illness the decedent (inc. compensation for attendants)
- debts and taxes with preference under the laws of the state
- all other claims
ESSAY: List/explain the four basic categories of property ownership
- Joint Tenancy with Right of Surivorship (interest passes by operation of law–no need for probate. Cannot sell interest without consent from all. Need four unities of title.)
- Tenancy in common (at least one unity, but not all, e.g., if one tenant sells a share. No operation of law–must leave property in will or it will pass intestate. Usually done iwth investment properties.
- tenancy by the entirety (Extra unity of marriage. Requires consent of both to mortgage, sell, or gift. Out of reach of creditors. AZ does NOT recognize)
- Community property (form of ownership between spouses. AZ recognizes. All property acquired after marriage except gifts, inheritance. Passes by operation of law (“wth right of survivorship”)
ESSAY: Explain the difference between per Stirpes and Per Capita inheritance
Per Stirpes and Per Capital are both ways a testator may leave property to his descendants upon death. Per Capita means “by the head” and involves equal distribution for all descendants. This means that grandchildren who inherit (children of deceased children) will take the same share as other living children. Per stirpes means “by the root” and is a much more common method of distribution. It is by representation, so grandchildren inherit their share as divided from the deceased child’s share. If the deceased child would get a 1/4 share and had 2 children, each grandchild would get a 1/8 share.
ESSAY: Capacity to make a will - how it is determined. What do courts take into consideration?
Capacity to make a will involves being of the right age, usually 18, and having sound mind. Courts presume testamentary capacity unless it is contested, in which case the one making allegations of lack of capacity bears the burden of proof. If the will is written when the person is of sound mind, the will is valid even if the person becomes incapacitated later. SImilarly, a person without sound mind may execute a valid will during a lucid interval. Sound mind is determined using the Cunningham Test. The testatory must know the object of his bounty–his immediate family members. He must know the nature and extent of his bounty–his property. He must know that he is making a will. And he must have mental competence–that is, be free from insane delusions.
T/F : AZ does not allow Holographic wills
FALSE
5 types of non-probate assets
- property held in joint tenancy or by entirety (passes by operation of law)
- pay on death or transfer on death accounts
- property held in trust
- life insurance/brokerage accounts that list someone other than decedent as beneficiary
- retirement accounts
A life estate is the right of a (1) to (2) property until (3). In a life estate pur autre vie, (4).
- life tenant
- use
- death
- the person must give up the property after the death of another person
A (1), also called a (2) , is a savings account that a depositor, also called the (3) in this case, opens for the benefit of another. Upon his death the account passes to the possession of the beneficiary sans probate.
- Totten trust
- pay-on-death account
- trustee
Felonious slayer statutes govern (1) and (2), who can’t inherit from a decedent they killed or hired to be killed. The property passes to (3) as if (4)
- heirs
- beneficiaries
- the next innocent heir/beneficiary
- the killer predeceased the decedent
Simultaneous death clauses can contain (1
- clauses of presumption about who predeceases whom
5 things a health-care surrogate can do
- review medical records
- consult with health-care providers
- give medical consent
- apply for medical benefits (Medicare, Medicaid)
- make other health-care decisions
