Power to Transfer

Question 1

What is a surviving spouse entitled to?

Answer 1

1. Social security survivor benefits (nobody else can claim these)
2. Pension plans (spouses have survivorship rights)
3. Personal property set-aside
   
   1. A statutory list of tangible personal property to which the surviving spouse or, if none, minor children are entitled.
   2. IDK if this exists in PA.
4. Family exemption
   
   1. An allowance provided to the spouse (if none, to the children who are members of decedent’s household; if none of those, then to the parents who are members of the decedent’s household) during probate.
   2. Cannot exceed $3,500.
   3. Receiver of the exemption picks the property (real or personal) to satisfy this exemption, UNLESS that property is specifically disposed of in the will
      
      1. unless unless all other property has been exhausted.
5. Dispositions independent of letters
   
   1. An amount that can by paid by employers, financial institutions, life insurance companies, etc., to the decedent’s surviving spouse, children, parents, sisters, or brothers.

Question 2

What is an elective share?

Answer 2

Something the surviving spouse can lay claim to if they’re not happy with what they got in the will.

Question 3

What does the elective share consist of in Pennsylvania?

Answer 3

One-third of the decedent’s estate, excluding

• life insurance proceeds or proceeds from pension and profit-sharing plans UNLESS the beneficiary of such policy/proceeds is the estate itself, AND
• property passing by a power of appointment given to the decedent by another.

Question 4

How can a surviving spouse waive the elective share?

Answer 4

By not electing to take the share within six months of the decedent’s death or the date of probate (whichever’s later).

OR

In writing if the writing is signed after fair disclosure of its contents.

• Terms must be objectively fair and reasonable.
• Waiver must be in writing and signed by surviving spouse.
• May only be altered/revoked by subsequent writing
• Surviving spouse must be represented by independent legal counsel when the waiver is signed
• Surviving spouse must have adequate knowledge of the property and the financial obligations of the decedent at the time of the waiver.

Question 5

What is an advancement?

Answer 5

A lifetime gift to a child presumed to be an advancement of that child’s intestate share.

Question 6

Who is subject to advancement now?

Answer 6

Any next of kin who receive a lifetime gift from the decedent.

Question 7

What does the child/next of kin have to prove to avoid an advancement?

Answer 7

That the gift was intended to be an absolute gift that was not to be counted against the child’s share of the estate.

Question 8

What happens if a lifetime gift is considered an advancement?

Answer 8

The donee must allow its value to be brought into the “hotchpot” (aka the total estate). Then the total estate is divided by the number of people taking. Then the advancement is subtracted from the donee’s share.

Question 9

What if the advancement exceeds the amount the next of kin is entitled to after the hotchpot?

Answer 9

Then the next of kin gets nothing, but is not required to pay back into the estate.

Question 10

When will a lifetime gift by somebody who dies intestate (partly or wholly) be considered an advancement in Pennsylvania?

Answer 10

Only if

• it was so declared in writing by the decedent OR
• the heir acknowledged the advancement in writing.

(No signatures required.)

Question 11

How is the advancement valued when it’s put back into the hotchpot?

Answer 11

The first of

• when the heir came into possession of the advancement OR
• when the decedent died.

Question 12

What happens if the heir who gets the advancement predeceases the decedent?

Answer 12

Then the property received as an advancement is not included in the hotchpot UNLESS the declaration or acknowledgement expressly states to the contrary.

Question 13

What happens when a minor child inherits property?

Answer 13

Somebody else will manage the property until the child reaches the age of majority.

1. Guardianship
2. Custodianship (only available through creation of a will)
3. Trusteeship (only available through the creation of a will).

Question 14

What is a guardianship?

Answer 14

Doesn’t really exist anymore I don’t think? Somebody who has minimal power over the property and has to jump through hoops to get court approval to act on minor’s behalf.

We prefer conservatorships now, or custodians.

Question 15

What does the Uniform Transfer to Minors Act do?

Answer 15

Appoints a custodian to use the property of a minor at their discretion on the minor’s behalf without court approval and with no accounting requirement.

Custodian must turn property over when minor turns 21.

Question 16

What about a trust for minors?

Answer 16

This is the most flexible and can be tailored specifically to the family circumstances and the testator’s desires.

Possession can be postponed until a time when the donor thinks the child will be competent to manage the property.

Question 17

What if a child is omitted from the will?

Answer 17

If a testator has or adopts a child after executing a will and dies without revising it, a presumption is created that the omission of the child was accidental.

Question 18

What share will an omitted child be entitled to?

Answer 18

An amount equal to what the child would have received if the testator died intestate and unmarried and owning only that portion of the estate not passing to a surviving spouse.

Question 19

Where does the omitted child’s share come from?

Answer 19

The portion of the estate (if any) that does not pass to the testator’s surviving spouse.

Question 20

When will the omitted child statute not apply?

Answer 20

• If it appears from the face of the will that the omission of the child was intentional OR
• The testator left the entire estate to his spouse, as that does not leave any portion of the estate that does not pass to the surviving spouse.

Question 21

Can you make it a condition that the beneficiary never get married or only get married with the executors’ consent?

Answer 21

No. This is invalid as against public policy.

Question 22

Can you impose a partial restraint on marriage?

Answer 22

Yes, such as saying you can’t marry Joey specifically or even “you can’t marry a non-Catholic.”

But you can’t require somebody who would benefit from withholding consent to consent to the marriage.

Question 23

What bars to succession exist?

Answer 23

1. Homicide
2. Disclaimer
3. Desertion of spouse or child
4. Elder abuse

Question 24

When will homicide bar succession?

Answer 24

When the person was responsible for the intentional and felonious death of another

• Involuntary amnslaughter and self-defense killings don’t count, but assisted suicide does.
• “Slayer’s Act”: killer is treated as having predeceased the decedent.
• Applies to all property, whether probate or non-probate.

Question 25

What if the victim and the killer hold real property jointly with a right of survivorship?

Answer 25

One-half of the property will go to the victim’s estate and the other half will go to the killer for life, with the remainder to the victim’s estate.

Question 26

What if a life insurance policy is payable to the killer?

Answer 26

The monies will go directly to the secondary beneficiary, if one exists, or to the victim’s estate.

Question 27

What is disclaimer?

Answer 27

A beneficiary may actively disclaim a testementary gift if they do not want to accept it.

Question 28

What is required for a disclaimer to be valid in Pennsylvania?

Answer 28

1. In writing
2. signed
3. filed either with the court or with the party poised to distribute the property
4. identifies the decedent
5. describes the interest being disclaimed
6. states the extent of the disclaimer.

Question 29

Are partial disclaimers allowed in Pennsylvania?

Answer 29

Yes.

Question 30

When will a spouse be prohibited from taking property because of desertion?

Answer 30

When the spouse has willfully neglected or refused to fulfill the duty to support the other spouse for a year or more prior to the decedent’s death OR has willfully and maliciously deserted the spouse without justification (which will be presumed if without justification or consent and for a year or more).

Question 31

Who has the burden of proving forfeiture and by what standard?

Answer 31

The heirs must establish that the share was forfeited by clear and convincing evidence.

Question 32

When will a parent forfeit their right to take from the estate of a minor child?

Answer 32

When they owe a duty of support to a minor child and they willfully failed to perform for at least a year prior to the child’s death.

Question 33

When will taking be barred due to elder abuse?

Answer 33

If the individual is guilty of elder abuse, including physical abuse, neglect, or fiduciary abuse of the decedent while a dependent or elder adult.

If clear and convincing evidence of abuse is present, the abuser is treated as if they predeceased the decedent.