Power to Transfer Flashcards
Rights of Surviving Spouse
- Social Security
- Pension Plans
- Homestead exemption
- Personal property set-aside
- Family Allowance
Social Security
Wills
Only souse can receive workers survivor benefits
cannot be waived
Pension plans
Wills
ERISA PPs require spouse to get survivorship rights
Can be waived subject to strict requirements
Homestead Exemption
Wills
Certain portion of real property cannot be reached by creditors and is inalieanable
For minor children in absence of spouse
Family Allowance
Surviving spouse has right to allowance during probate, look to the statute
Omitted Spouse
Spouse not mentioned in will is entitled to intestate share
Omitted Spouse Exceptions
- A valid prenuptual agreeement exists (wiaved)
- Spouse is given property outside of the will
- Spouse was specifically excluded from the will
Ommitted Spouse Presumption
Rebuttable preseumption that ommision was a mistake
Traditional Approach - presumption cannot be rebutted unless intent to omit is apparent from will/behavior
UPC Approach - surviving spouse gets at least what they would have received if there was no will (their intestate share), but only from the part of the estate that isn’t already promised to certain children.
Advancements - Common-Law
At common law, lifetime gift to child was resumed to be an advancement (burden on child to prove otherwise)
If treated as an advancement, look to the Hotchpot Method
Hotchpot Method
Advancement is added back into esate, resulting number divided by children, advancement then deducted
Advancements - UPC/Modern
Gift is advancement only if:
1. Decdent declared in contemporaneous writing OR
2. Writing’s otherwise indicate that gift is to be taken into account for division and distribution of estate
Transfers to Minors
Management options (3)
- Guardianship - less common, minimal power, modern trench is to tranform to conservatorship
- Uniform Transfers to Monirs Act (UTMA) or Custodianship - appoints custodian to you property with discretion, no accounting required
- Trust - Very flexible, can be tailored
Omitted Children Statutes apply when ______
- Child is unintentionally omitted
- Born/adopted after will is created
- Testator mistakenly believes the child is dead
Presumption that it was accidental
Exceptions to Omitted Child Statutes
Does not apply if:
* Appears omission was intentional
* Testator had other children at execution and left substantially all of estate to omitted child’s parent
* Provided for child outside of will
UPC Omitted Children
- Born and adopted
- Ambiguities favor child
- If no other children, child gets intestate share
- If other children, child get portion of that
- Protects mistakenly dead children, not unknown children
