Power to Transfer

Question 1

A surviving spouse has what rights under the common law as to elective or forced shares?

Answer 1

SS can elect to take a share of T’s augmented estate rather than the gifts left to SS in the will

Note: can be waived by a signed writing after fair disclosure before or during the marriage

Question 2

A surviving spouse has what rights under the community property states as to elective or forced shares?

Answer 2

SS is entitled to one-half of community and quasi-community property (forced share)

Note: SS must elect to take the forced share in lieu of any interest under T’s will

Question 3

What is the presumption if a spouse was married prior to the execution of a will and is omitted?

Answer 3

rebuttable presumption that it was by mistake, the omitted spouse is entitled to the intestate share

Question 4

Define traditional approach to omitted spouse

Answer 4

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

Question 5

What is the UPC approach to an omitted spouse

Answer 5

Apparent language
or
a valid prenuptial agreement also rebuts the presumption

Question 6

For a gift to a child, is an advancement of inheritance what are the two approaches?

Answer 6

Common law - a lifetime gift is presumed to be an advancement of the child’s intestate share, the child has the burden to prove otherwise

Modern Trend (UPC) - the gift is an advancement if D declare in a contemporaneous writing that the gift was an advancement, or the heir acknowledges that the gift was an advancement in writing

Question 7

What are the ways to do a controlled transfers to minors?

Answer 7

guardianship, conservatorship, transfer pursuant to the Uniform Transfers to Minors Act, Trust

Question 8

What is the presumption for an omitted child? how do you over come the presumption?

Answer 8

that the omission was by mistake

Rebutted by (1) intentional omission, (2) T had other children when will executed - left estate to other parent of omitted child, or (3) T otherwise provided for the child

Question 9

How is the omitted child’s share accounted for?

Answer 9

if omitted child is only child - intestate share

Other children - Omitted child share equally in property devised to other children

Question 10

What bars succession?

Answer 10

Homicide - killer of D cannot take under D’s will or through intestacy (killer is treated as predeceasing the D)

Disclaimer - permitted but must affirmatively done because acceptance of the first is presumed (The disclaiming party is treated as if she predeceased the D)