Power to Transfer Flashcards
What is “augmented estate”?
How is the UPC augmented estate broader than the share under a community-property state?
The UPC subjects property acquired before marriage, as well as that acquired during marriage, to the “marital-property” portion of the augmented estate to which the surviving spouse is entitled.
-> in essence it is all of D’s estate
The UPC augmented estate is broader than the share under a community-property state, as it includes property acquired before the marriage and property gifted to the spouse during the marriage.
How does an SS’s elective share right work under a CL state?
Can SS waive this right? How?
Common law state
-> SS can elect to take a share (often 1/3) of T’s augmented estate rather than the gifts left to SS in the will
This right may be waived by a signed writing after fair disclosure before or during the marriage.
How does an SS’s elective share right work under a community property state?
There is no election right in a community property state BUT
-> SS is entitled to one-half of community property and quasi-community property (aka a forced share right)
-> SS must elect total the forced share in lieu of any interest under T’s will.
What is community property and quasi-community property?
Community property (only in community-property state)
-> consists of the earnings and certain acquisitions of both spouses during the marriage
How is community property normally felt with at death?
Normally, at the death of one spouse, one-half of the community property is already owned by the other, and only the D’s half is subject to disposition by will.
What is quasi-community property?
How is quasi-community property treated for distribution purposes?
Quasi-community property
-> it is separate property that would have been community property had the parties been domiciled in a community-property state WHEN acquired.
Quasi-community property is treated like community property for distribution purposes.
What is an omitted spouse?
A spouse who married T after T’s will was executed (aka the will was made) and who is not a beneficiary in the will.
What does “execution” of a will mean?
It means the will was created and meets the formalities of the will in being created.
What type of rebuttable presumption is associated to omitted spouses?
How is this presumption rebutted?
Rebuttable presumption that the omission was by mistake; the omitted spouse is entitled to the intestate share.
Traditional doctrine
-> the presumption is rebutted if T’s intent to omit the spouse is apparent from the language of the will or if the spouse was provided for outside of the will
UPC
-> a valid prenuptial agreement also rebuts the presumption
How do advancements of inheritance to children work under the common law?
-> what is presumed
-> who has the burden to prove otherwise
How do advancements of inheritance to children work under the modern trend (UPC)?
A lifetime gift is presumed to be an advancement of the child’s intestate share
-> the child has the burden to prove otherwise
The gift is an advancement IF
-> D declared in a contemporaneous writing that the gift was an advancement
OR
-> the heir acknowledges that the gift was an advancement in writing
What are four ways that a gift to a minor can be controlled?
Four ways
-> guardianship (minimal power over property and lengthy process to exercise control so more common to transform guardianship into a conservatorship)
-> conservatorship (requires annual accounting to the court)
-> transfer pursuant to the Uniform Transfers to minors Act (no need for annual court accounting)
-> trust (best for T has allows for most flexibility to tailor trust to T’s requests)
What is an omitted child?
What is the rebuttable presumption with regard to committed children?
How do you rebut the presumption?
A child born after T’s will is executed.
Rebuttable presumption that the omission was by mistake.
The presumption is rebutted by
-> intentional omission
-> T had other children when will executed, left estate to other parent of omitted child
OR
-> T otherwise provided for the child
What is the omitted child’s share?
If the omitted child is T’s only child
-> gets their share via intestate
If T has other children
-> omitted child shares equally in property devised to the other children
What are situations that bar a party from succeeding from D’s will?
Homicide
-> the killer of D cannot take under D’s will or through intestacy
-> killer is treated as if he predeceased D
Disclaimer (aka party doesn’t want gift)
-> permitted but must be affirmatively done because acceptance of the git is presumed
-> the disclaiming party is treated as if she predeceased D
