Power to Transfer

Question 1

To what means of supporting is a surviving spouse entitled?

Answer 1

• Social security and pension plans
• homestead exemption
• personal property set asides
• family allowance for reasonable expenses during probate
• elective share

Question 2

What is the UPC elective share?

Answer 2

A surviving spouse can elect to take a forced share of 50% of the decedent’s augmented estate.

Question 3

What is an augmented estate?

Answer 3

Property acquired before marriage and property acquired during marriage.

Question 4

When can a surviving spouse waive his or her elective share?

Answer 4

When the waiver is in writing and she was represented by independent counsel.

Question 5

What is the common law rule of advancement?

Answer 5

Any lifetime gift by a parent to a child is presumed to be an advancement of that child’s intestate share.

Question 6

What is the UPC gift of advancement?

Answer 6

A gift is an advancement only if (i) the decedent declared in a contemporaneous statement that the gift was an advancement, (ii) the heir acknowledged that the contemporaneous gift was an advancement, or (iii) the writing indicates that the gift should be taken into account in computing the division of property in the decedent’s estate.

Question 7

How are advancements calculated in the estate?

Answer 7

Through a hotchpot analysis. Add the gift back into the estate, divide the resulting estate by the number of children taking and deduct the child’s advancement from the child’s intestate share.

Question 8

Can a parent intentionally disinherit a child?

Answer 8

Yes.

Question 9

If a testator had only one child when the will was executed and unintentionally omitted her child, what happens?

Answer 9

The omitted child takes her intestate share.

Question 10

The a testator has two children when the will was executed and unintentionally omits one child, what happens?

Answer 10

The omitted child takes an equal share from the portion of the property already devised to the other child.

Question 11

What is the slayer rule?

Answer 11

A beneficiary who murders the decedent is barred from taking under the decedent’s will and will be treated as if he predeceased the testator.

Question 12

When does the slayer rule apply?

Answer 12

Only in intentional and felonious murder cases - not involuntary manslaughter.

Question 13

When must a disclaimer occur?

Answer 13

Within 9 months of the decedent’s death.

Question 14

What are the requirements for a disclaimer?

Answer 14

1) In writing,
2) signed,
3) filed in court or declared to the person in charge of distributing the estate; and,
4) identify the decedent, describe the interest being disclaimed and the extent of the disclaimer.