Power to Transfer

Question 1

What situations limit the testator’s power to transfer property?

Answer 1

1. Rights of the testator’s spouse
2. Gifts to the testator’s children
3. Bars to succession - (a) slayer’s statute, (b) disclaimer

Question 2

What is a surviving spouse entitled to under an elective share?

Answer 2

Surviving spouse can get 50% of decedent’s augmented estate in addition to reasonable living expenses

Question 3

When can a surviving spouse waive the right to an elective share?

Answer 3

1. Waiver in writing after fair disclosure of contents

2. Spouse represented by independent legal counsel

Question 4

How is an advancement to the testator’s child treated?

Answer 4

Common Law - presumed advancement, will accounts for that

UPC - advancement only if contemporaneous writing expressly saying so

Question 5

What happens if there is an unintentional disinheritance of a child?

Answer 5

1. If no other children, omitted child takes intestate share

2. If at least one other child, omitted child takes equal share from other child’s portion

Question 6

When can a person disclaim a testamentary gift?

Answer 6

1. Disclaimer needs (a) writing, signed, filed by court; OR (b) declared to person in charge of distribution; AND
2. ID decedent, describe interest disclaimed, and define extent of disclaimer