probate transfers Flashcards
1
Q
Executor
A
person who manages estate as personal representative that is named in a valid will
2
Q
Administrator
A
when no will exists or the will names no living, competent, and willing person, the probate court will appoint an administrator
3
Q
Administrator with will annexed
A
person substituted for the executor named by the will
4
Q
Appointment of personal representative
A
To qualify, one must take an oath that she wll faithfully perform her duties and give bond to secure performance that is an amount equal to the value of the decedent’s personal estate plus any real estate the executor has power of sale over (UNLESS waived or estate value is not greater than 25k)
5
Q
Out of state personal representative
A
an out of state individual can serve as a PR, but must appoint a resident agent for service of process. However, an out of state bank cannot serve as executor or testamentary trustee
6
Q
priority of appointment as administrator of estate
A
during first 30 days after intestate decedent’s death, the priority is:
- any sole distributee or his designee
- any distributee or designee who presents written waivers of the right to qualify from all other competent distributees (basically, everyone other interested person agrees)
if no such person exists or petitions for appointment in 30 days, then the court or clerk may grant administration to the first distributee or his designee that applies. if more than one distributee notifies court of intent to apply within the 30 day, court will give those persons an opportunity to be heard and choose the most suitable among them
7
Q
duties and powers of the personal representative
A
PR is a fiduciary and has duty of proper management of estate property and may have duty of prudent investment, if applicable. PR’s primary obligation is to manage assets ethically, responsibly, not engage in self-dealing or stealing, and to keep beneficiaries and the court informed.
PR can employ agents and advisors, maintain tort or contract actions to enforce rights of decedent, and access decedent’s digital accounts in some cases.
8
Q
Primary probate venue
A
probate begins in the state where the decedent was domiciled, in the county where decedent resided before death or before entering a long-term care facility. personal property will pass according to primary probate venue (place of domicile)
9
Q
Ancillary probate venue
A
ancillary probate venue is for property of decedent in another state. real property passes according to the law of where it is located (situs)
10
Q
heirs
A
people who take property through intestacy
11
Q
Intestacy succession
A
Category 1 = surviving spouse and created family (children and other descendants)
Category 2 = native family. first to parents and siblings. then, split estate into moieties. 1/2 to maternal grandparents or descendants. 1/2 to paternal grandparents or descendants.
continue proceeding upward until you find family
category 3 = predeceased spouse’s family
category 4 = the state
12
Q
Intestacy succession when decedent has spouse and children from that marriage
A
surviving spouse takes all - assumes spouse will eventually pass to children
13
Q
intestacy succession when decedent has spouse, children from marriage, and children from a prior marriage
A
spouse takes 1/3 of intestate estate, all children split 2/3 of estate equally. assumes people want to benefit all of their own children equally, regardless of relationships. with parents of their children
14
Q
intestacy succession when no surviving spouse but has children
A
children or their descendants take all
15
Q
intestacy succession when decedent had no spouse or children
A
decedent’s parents split. if parents predeceased decedent, then decedent’s siblings split
16
Q
intestate succession if no created family or native nuclear family
A
if not survived by parents or descendants of parents, then estate is split into moieties. 1/2 goes to the maternal grandparents or descendants, 1/2 goes to paternal grandparents or descendants. there is no limit on the degree of kinship for heirs, so goes on to great-grandparents and descendants until relatives are found.
17
Q
intestate succession if no created family or native family
A
if the decedent was widowed, then the estate goes to the family of the decedent’s most recent spouse if they were married at the time of the spouse’s death. passes as if such spouse died intestate and was entitled to the estate.
18
Q
intestate succession if no created family, native family, or predeceased spouse
A
escheat to the Commonwealth, meaning Virginia will take the property
19
Q
predeceased heirs
A
descendants can step in the shoes of a predeceased heir. so say decedent had 2 kids, one of which died and left a son and daughter. the surviving kid of decedent takes 1/2, the daughter and son of the predeceased heir split the other half. if you have no surviving children but many grandchildren, the grandchildren split in equal parts.
20
Q
uniform simultaneous death act
A
To be a survivor for purposes of intestate succession, non-probate transfer, or inheritance under a will, one must survive the decedent by 120 hours (5 days). otherwise, the person is treated as predeceasing the decedent.
21
Q
half siblings in intestacy
A
law assumes a decedent would only want to benefit a half sibling half as much as a whole sibling. so if a decedent dies and the only surviving heirs are a half sibling and a whole sibling,, the whole sibling will inherit 2/3 and the half sibling will inherit 1/3. if all heirs are half siblings, they are treated as full siblings. if go upward n succession, will divide into moieties before considering half v. whole relatives
22
Q
formula for determining fraction of estate for intestacy with half siblings
A
denominator = 2*[number of whole siblings] + number of half siblings
whole siblings get 2 as numerator, half siblings get 1 as numerator
so, if have 1 whole, 1 half then: 2*1+1 = 3. half gets 1/3, whole gets 2/3
23
Q
adopted children in intestacy
A
if child enters new family, then takes nothing from estate of the bio parents and only takes from estate of adopted parents
if child is adopted by step parent, terminating rights of one parent, that child would still take from the intestate estate of both bio parents and from the intestate estate of adopting parent.
24
Q
parentage of nonmarital children
A
father may be determined by marriage (if alleged father marries mother of child in his lifetime, it is presumed he is the father), acknowledgement (man, while alive, and mother executed state-provided acknowledgement of paternity), adjudicated (while father was alive, court determined he was bio father), and clear and convincing evidence (posthumous adjudication of paternity based on genetic testing (exhumation may be ordered if necessary) or having held out child as his own)
25
abandonment as bar to intestate succession
only occurs if abandonment by spouse or minor parent. desertion must have continued until decedent's death and must have been without cause (abandonment due to DV is allowed)
26
slayer statutte
if a person is convicted in criminal court of murder or voluntary manslaughter of decedent, or they are found by preponderance of the evidence in civiil court that they committed the elements of murder of VM, the would-be heir is treated as having predeceased the decedent. descendants of slayer can still take
27
advancement
lifetime gifts of significant value (relative to the estate of the decedent) to descendants that the decedent intended to be an advance payment of inheritance.
when an heir has received advancement, put its value into hotchpot with the actual intestate estate before dividing. look at the value of the gift at the actual time of the gift, not after decedent passed.
mother’s estate was 500k. she gave 100k to one son. Put 100k into hotchpot with estate, creating value of 600k. suppose 2 offspring. Split ½ the estate. Half of the hotchpot value would be 300k. so A, who did not get lifetime gift, will get 300k. recipient of lifetime gift will only get 200k because they got advancement during life
Mom’s estate is only 60k. she gave 100k away. Hotchpot estate is 160k. divide that to 80k. but only 60k left. So sibling that didn’t get gift gets entire 60k – brother isn’t required to reimburse the estate
28
disclaimer
an intestate heir or designated beneficiary of any probate or non-probate transfer can disclaim all or part of what they are entitled to.
disclaimer must be in writing and signed, must be delivered to PR. if avoiding federal gift or estate tax by disclaiming, disclaimer must be filed with PR within 9 months of decedent's death
29
statutory rights of surviving spouse
HERF
Homestead allowance of $20k
Exempt personal property
Residence
Family Allowance
if small estate, will can be entirely destroyed by HERF payouts
30
homestead allowance of 20k
in lieu of property passing to spouse by will or intestate succession. will take only if nonprobate transfer to someone else or will gives to someone else
31
exempt personal property
up to 20k worth of cars, furniture, appliances, personal effects, etc. if not t20k worth in estate, spouse is entitled to cash or other assets to make up rest.
32
Residence
only if spouse claims elective share or decedent died intestate survived by descendants by a former marriage, spouse can live in principal family residence, and PR must pay rent, taxes, insurance until rights in principal residence determined and satisfied
33
Family allowance
up to one year of support payments while estate is in administration. must be "reasonable" and not exceed $24,000.
34
deivisees
will beneficiaries receiving real property
35
legatees
will beneficiaries who receive personal property (by legacy or bequest)
36
specific devise or bequest
designates a particular, distinct item of property
37
general bequest
gives dollar amount or percentage of estate value
38
demonstrative legacy
general bequest specifying source money should come from
39
will
for a document to constitute a will, it must manifest testamentary intent and have been created by someone with capacity to execute a will
40
testamentary intent
intention that the document effect a transfer of certain property to certain persons at the author's death. looking for death time intent with finality of thinking
drafts to an attorney where someone is considering making a will does not constitute a will
41
capacity to enter into a will
person must be at least 18 and of soundness of mind, if testator lacked capacity at time of execution, then will shall be denied probate. will proponents bear the burden of showing by preponderance that at the time of execution, the testator possessed testamentary capacity
42
test for capacity
T must have been able to understand the nature of the act they were doing, recollect the nature and value (roughly) of their property, recollect the natural objects of his or her bounty (who would be heirs if no will), and interrelate the act, value, and objects
43
not sufficient to render incapacitated
mere old age, physical weakness, sickness, failing memory (can't remember 14th grandchild's name is not enough!), eccentricity, vacillating judgment, adjudication of incompetency
44
requirements for holographic will
wholly in testator's handwriting, as verified by two disinterested persons and signed by the testator
name at the beginning of the will and no signature at the end does not show finality so does not meet requirements.
45
when is a will effective
when finalized
46
Holographic will provides "Ruth Ritter. Written by myself Oct. 13, 1946. My will. I leave [dispositive provisions]. Given under my hand, I declare this my last will and testament"
is this valid
Yes. A concluding phrase can demonstrate finality and the testator's intent that her name at the beginning constitutes a signature. but the name must have been written by the testator
47
when does a mark count as a signature?
A testamentary document must be signed in such a manner as to make it manifest that the name is intended as a signature. if there is some evidence internal to the document that some writing was intended as a signature, then extrinsic evidence can be used to confirm or deny the intent. Extrinsic evidence can confirm or disprove that initials are meant as a signature, like if the decedent normally writes out his full name as a signature, etc.
48
requirements for non-holographic will
signed by testator (by assistance, if necessary to steady hand) or a proxy signature by T's direction and in his presence
witnessed - T signs will or acknowledges having signed earlier in the presence of two witnesses, both present at the same time when T signs/acknowledges (witness does not need to know document is a will, just needs to see T sign. witness can be interested)
Subscribed - each of the two witnesses must subscribe the will in the presence of the testator, meaning they sign their name on the will (one witness can sign at different time than first witness)
49
proving holographic will
testimony of 2 disinterested people familiar with T's handwriting
50
proving non-holographic will
either self-proving affidavit or testimony of at least one subscribing witness (oral or deposition) - simply confirming signature can suffice
51
self-proving affidavit
no testimony required if separate self-proving affidavit executed when will is executed. must contain -
statement by notary that T declared in presence of notary and will's two witnesses that document is his will and T executed in presence of witnesses, statement by notary that each witness declared in presence of notary, T, and the other witness that the document is T's will and the formalities set out above were followed, and signatures of notary, T, and the witnesses
52
forgiveness of missing formalities
allows probate up to a year after T's death f all interested persons are made parties, despite noncompliance with nearly any requirements if the will proponent establishes in court by clear and convincing evidence that the decedent intended the document or writing as a will.
T still must have signed and signature must be on the will unless:
- two persons mistakenly sign each others will or T signs self-proving affidavit to will instead of will itself - though then will is treated as not having a self-proving affidavit.
53
what does witness presence mean?
conscious presence - so not necessarily in same room. need to be in communication when signing. can be in next room if communicating, can be over the phone, can be on video call
54
who can challenge a will?
interested parties. this can include someone who is named in the will but would benefit if a bequest or devise fails, a beneficiary of another will that might be probated instead of the challenged will, or someone who would be an heir in case of intestacy
55
time limit on challenging will
after a will is submitted to the circuit court, a clerk will enter an order admitting it to probate. an interested party has 6 months to appeal the clerk's action to the circuit court or 1 year to file with the court a bill in equity to impeach the will,
there is no time limit on when a will must be offered for probate following death
56
undue influence
persuasion or manipulation that amounts to coercion or psychological domination - effectively defeats the will or volition of a testator. look for:
- behavior - coercion of testator
- effect on testator - volition overcome
- causation - influence caused disposition
57
evidence of undue influence
opportunity to exert influence, susceptibility to influence, unnatural or new disposition (one child gets way more for no reason, will suddenly gives nothing to someone, etc).
58
presumption of undue influence
presumption arises if: T was enfeebled of mind, the alleged influencer was the dominant person in a confidential relationship with the T and helped to prepare or procure the will, the influencer (or spouse or child of them) is made beneficiary of substantial bequest in the will, and T previously had a substantially different estate plan
59
effect of presumption of undue influence
presumption shifts burden of production to will proponents, who must present evidence that T was able to resist influence and make his/her own decisions. burden of persuasion remans with will challenger. if proponents present no countervailing evidence, the presumption controls. if they present any, contestants must persuade fact finder that evidence of undue influence is clear and convincing
60
examples of confidential relationship
trust or dependency (caretaker friend or relative), attorney client, guardian/conservator and ward, priest-penitent, doctor-patent
61
contesting will based on fraud
interested party can challenge will as a whole. part oof the will, or revocation by showing:
misrepresentation, intent to deceive for the purpose of influencing the disposition of the will, effect of deception on the T, and the deception caused T to do what T would not have done.
fraud can also consist of tampering with properly executed will
62
no contest clause
to protect will, testators often include in the will a no contest clause stating that if anyone contests, they forfeit whatever he or she is to take under the will. this serves as deterrent only as to persons given something in will, so testators often include provisions for someone they fear will contest
if beneficiary mounts will contest despite no contest clause and the contest does not invalidate the will, they are treated as predeceased.
Virginia courts strictly enforce no-contest clauses, but construe them narrowly.
63
what does not count as a contest
petition for will construction r for inclusion in estate distribution as an omitted spouse or pretermitted child
64
attorney liability for negligence
if will cannot be probated because of non-compliance with formalities, or if terms of probated will fail to match the testator's intentions because of a drafting error by T's lawyer, there is only recovery from the lawyer if the attorney retention agreement explicitly creates a cause of action for those who would have benefitted but for the malpractice, with specific reference to the statutory provision creating such a right, because there is no privity of contract btwn the lawyer and the intended beneficiaries.
65
mistakes in a will
Virginia adopted a new rule authorizing courts to reform wills where clear and convincing evidence shows that both the decedent's intent and the terms of the will were affected by a mistake of law or fact. however, cannot be reformed if scrivener error
66
latent ambiguity
one not apparent on face of will but discovered when executor attempts to effectuate its terms. extrinsic evidence is admissible to cure ambiguity. includes facts and circumstances evidence and testator's declarations of intent if it is about an equivocation. if extrinsic evidence doesn't cure the ambiguity, the gift fails for uncertainty.
67
equivocation
language in the will that equally well describes two or more persons or items of property. can use evidence of declarations of intent of testator to determine what the gift concerned
68
patent ambiguity
ambiguity on the surface of the will. extrinsic evidence s admissible to cure, including facts and circumstances evidence and declarations of intent to third parties. evidence can probably include what T said to her attorney
69
rules of construction
ambiguities can be resolved by applying certain judicially developed or statutory rules of construction.
70
interpret as if written immediately before death rule
provision ambiguous at time of execution may be more certain at time of death, so interpret as if written then
71
legal meaning rule
if a term in a will has legal meaning, assume testator intended that meaning
72
maximum conveyance rule
T is presumed to devise entire estate he owns unless a contrary intent is appears from the will and a will is construed to pass the greatest estate that the language of the will is capable of conveying unless a contrary intention appears
73
early vesting rule
interpret any provision that is ambiguous so that property interests vest at the earliest possible time consistent with the language
74
incorporation by reference
a document extrinsic to a valid will may be incorporated by reference into the will, even if it doesn't manifest testamentary intent and not signed if:
- extrinsic writing was in existence when will executed
- will clearly expresses an intent to incorporate the writing, and
- will describes the writing with reasonable certainty, so there can be no mistake as to the document referenced in the will.
virginia code is an extrinsic document that can be incorporated
75
legal list
authorizes disposition of tangible personal property by means of a separate list explicitly referred to in decedent's will. this is similar to incorporation by reference, except the list may come into existence at. any time, even after the execution of the will, but it must be signed and it is effective only as to tangible personal property, as long as. it describes items with reasonable certainty
elements: tangible personal property, may be created/amended after execution, must describe items with reasonable certainty, must be signed by testator, must be explicitly referred to by will
76
guidance to executor
T's can give direction to executor is separate document as to distribution of property identified in the will as subject to executor discretion. must:
- be referenced in will
- be signed
- be notarized
77
pour-over trust
T can name an inter vivos trust as a will beneficiary, even if the trust doesn't exist at time of will execution and regardless of whether trust has property in it before death. need not state trust terms in will, nor create additional trust
78
power of appointment
will confers life estate and empowers recipient of it at some point to decide who should receive the remainder.
79
donor
testator giving power of appointment
80
donee of general testamentary power of appointment
person receiving power of appointment. general if not limited in class of beneficiaries to whom she can appoint. can appoint to herself, creditors, heirs, etc. must make reference to power in order to exercise unless donee explicitly disposes of property that is subject of a power as though it were her own
81
takers in default of appointment
people who take property on death of donee by default who does not exercise power of appointment
82
special power of appointment
when donee is limited in class of beneficiaries to whom she can appoint.
83
blanket exercise of power of appointment
blanket exercise of power of appointment over all properties downer has power of appointment over is effective to each one, unless donor's instructions required reference to individual power
84
predeceased beneficiary
general common law rule is that if a named will beneficiary predeceases T, bequest lapses or fails. property goes to alternate taker, if named, or to residuary estate, or to intestacy
85
anti-lapse statute
unless a contrary intention appears in the will, if a beneficiary incl. class-gift beneficiary is T's grandparent or a descendant of T's grandparent, and predeceased the testator, the deceased beneficiary's descendants who survive the testator take in place of the deceased beneficiary by representation. this applies only to wills and trusts that were revocable up until the grantor's death, not to non-probate devices
86
what happens to a bequest or devise that lapses and the anti-lapse statute does not apply?
the bequest fails and falls to the residuary estate or goes to intestacy
87
what if a beneficiary of a residuary clause predeceases T?
the anti-lapse statute can apply, but if t does not, the provision is ineffective, and if no other residuary is named, the residue goes to intestacy
88
class gift
exists whenever the testator intends to make a gift to a group of persons, like children, nephews, etc., that is capable of. increasing or decreasing on its own. if one class member predeceases T, surviving members. of the class will get a larger share of the gift, unless the will directs otherwise or if the anti-lapse rule applies.
89
rule of administrative convenience (class closing)
class is closed when some class member is entitled to a distribution (usually when T dies), though children in gestation at T's death are class members if born within 10 months of T's death
90
unintentionally omitted spouse rule
if testator executes will and marries after but doesn't amend will, new spouse presumptively receives what would be the intestate portion at death if decedent had no will. does not apply if - T stipulates otherwise in the will
- T executes another will/codicil after marriage, even if earlier will. is partly viable, later testamentary instrument updates it
- new spouse disclaimed any interest through valid prenup or marital agreement
- new spouse doesn't survive T by 5 days
- spouse abandons or murders T
91
testator divorces
final decree of divorce or annulment after execution of married person's will has effect of revoking disposition or power of appointment in the will in favor of the testator's spouse. also revokes any appointment of the spouse as executor or trustee absent contrary indication in the will. if they remarry, provisions are revived
92
pretermitted (omitted) child
child born or adopted after execution of testator's will for whom will makes no provision. unless will states otherwise, if T had no child living when will was executed, pretermitted child receives what that child would receive if intestate succession rules applied. if T had one or more children living at time of will execution and made no provision in will for any of them, then later born child receives nothing. if T had children when executed and made bequest to any of them, then any child born/adopted after will receives lesser of what they would receive if testator died intestate or equivalent of largest bequest to any child in will
no protection against disinheritance for child living when will was executed
93
rule of ademption by extinction
if specifically bequeathed or devised property is not in the estate at T's death, bequest/devise fails. Ademption does not apply to demonstrative legacies as designation of source is incidental, not important.
94
remaining property exception to ademption by extinction
Remaining property - specific beneficiary takes any remaining specifically devised property any insurance proceeds for any portion of it lost but only to extent that proceeds were paid after T's death and any condemnation award for government taken but only to extent paid after T's death
95
guardian or conservator exception to ademption
if T is adjudicated incompetent after execution of will, and a court appointed guardian or conservator sells a specifically devised item, named beneficiary has right upon T's death to a general legacy equal to the net sale price
96
stocks exception to ademption
if T's investments change because of actions companies take that are outside of T's control, beneficiary's bequests of specific securities should receive same value they would have received if those actions had not been taken. Beneficiary takes any additional securities of same entity that accrue to estate because of action by entity and any securities of another entity resulting from takeover or merger
97
ademption by satisfaction
if T makes bequest to someone in will then makes inter vivos gift to same person, court may, in limited circumstances, treat gift as in partial or complete satisfaction of what was to be given in will. occurs if T stated in will that a gift, if given, would be in satisfaction OR T declares in writing contemporaneous with gift that gift is to be deducted from devise or bequest or is n satisfaction OR donee acknowledged in writing at time of gift that was in partial or complete satisfaction
98
methods of deliberate revocation of a will
valid, subsequent testamentary instrument that expressly or impliedly revokes previous will and its codicils OR
physical act of destruction
99
implied revocation
if T executed one will and then executed another later, the second will revokes to extent that it conflicts with first will. try to effectuate both if possible, treating second as codicil, but revoke provisions that are inconsistent/conflicting
100
physical acts of revocation
if T with intent to revoke will or codicil, or someone else at T's direction, cuts, tears, burns, obliterates, cancels, or destroys will, condicil, signature, or some provision, such will/codicil/provision is void
101
lost will presumption
if will can be traced to T's possession or control and cannot be found after T's death, presumption arises that T revoked by physical act, though can be rebutted by clear and convincing evidence
102
mutilation presumption
when will can be traced to T's possession and is found mutilated, rebuttable presumption that T did mutilation with intent to revoke
103
revocation by proxy
to be valid, must be at T's request and in T's presence
104
Kevin validly executed and witnessed will. At the bottom of a one-page will is written, in Kevin’s handwriting, “I’ve changed my mind. This will is void.” Did Kevin validly revoke his will?
No, did not validly revoke. no revocation by subsequent instrument because what he wrote cannot be valid testamentary instrument since no signature. handwriting didn't touch will, so no physical act revocation
but if he wrote at bottom "i've changed my mind, this will is void. Kevin Whitney" - that would be valid holographic testamentary instrument revoking original will
105
effect of revocation
if testamentary instrument. revokes prior will only partially, or only by implication, revocation is effective only if later instrument is still in effect
so can be undone by revoking later instrument. but revocation by physical act and complete express written revocation is effective immediately - so to undo, must re-execute revoked will or republish will by separate codicil referring explicitly to revoked will
revocation can be undone or ignored if done by mistake
106
dependent relative revocation
if will proponent proves T would not have revoked will but for mistaken belief of fact or law, court will ignore revocation and probate will.
if T executes will, executes second will later that expressly revokes previous will. then destroys second will with intent to revoke and revive first will, the second revocation will be ignored because of DRR - destroyed based on mistaken belief that destruction would revive will #1
107
proof of lost will
establish due execution, prove cause of the will's non-production, prove contents by clear and convincing evidence
108
codicil
amendments to will, must contain words of testamentary intent. crossing out name in will and replacing with another name in handwriting above it does not have testamentary intent. person whose name is crossed out does not take
109
does crossing out name in holographic will count as valid codicil?
yes, different rule for holographic will allows amendments by words/numbers that do not convey testamentary intent by themselves
110
contracts imposing obligations regarding execution, content, and non-revocation of a will
will and contract are legally distinct, and law pertaining to each must provide the remedy. law of contracts cannot impact validity of will. but if will is breach of contract, there may be successful breach of contract cause of action resulting in judicial imposition of constructive trust on estate or will beneficiaries
111
priority of where payment of debt should come from
first category, from any personal property in intestate estate.
second category, from personal property disposed of in will.
- first, residuary estate
- second, general bequests
- third, specific bequests
third category, real property passing by intestacy
fourth category, real property passing from will
- first from residuary estate, then general devises, then specific devises
fifth, from non-probate transfers
112
secured debt incurred by testator
security interest passes with security property, absent contrary indication in the will
113
estate tax exception
treated differently from other estate obligations, absent contrary provision in will, estate taxes equitably apportioned among all estate beneficiaries as well as recipients of non-probate transfers or gifts w/in 3 years before T's death. however, gifts that qualify for marital or charitable deduction are not subject to apportionment
114
surviving spouse's elective share
equitable claim to marital property that trumps all expectations and decedent's wishes. they operate against wealth transfers of every kind to third parties that decedent may have made soon before or at the time of death, not just will dispositions
115
surviving spouse elective share rule
surviving spouse may elect to take half of the marital portion of an augmented probate estate. marital portion of depends on length of marriage
116
augmented probate estate
adds to decedent's probate estate the value of gratuitous nonprobate transfers and gifts the decedent made before dying w/o survivor's consent and survivor's own property. any inter vivos gifts, non probate transfers, or will bequests made to survivor go toward satisfaction of elective share
117
procedure of claiming elective share
surviving spouse must file notice of election within 6 months after will is admitted to probate or after administrator of intestate estate is appointed.
must have been legally married to decedent at time of death and still be alive when election is filed. conservator or person holding durable power of atty for spouse can make election. can be disqualified for wrongful desertion or if slayer statute appleiis.
complaint must name PR of estate, not estate.
118
computing augmented estate
first, probate estate after payment of debts, expenses, HERF, and income taxes.
second, decedent's gratuitous transfers to 3d parties outside of probate w/o spouse's consent - non-probate death transfers (inter vivos trusts, power of appointment, PODs, decedent's share of jtwros (incl. joint bank account) AND lifetime gifts if completed w/in 24 months prior to death to the extent that any one person receives more than 15k in either one of those 2 years (Can be totaled over multiple gifts)
third, decedent's non probate transfers to spouse (value of decedent's interest in JTWROS (rebuttable presumption each spouse furnished 1/2), wealth received by POD designation, trust interests created by decedent) - this cuts against surviving spouse as it causes transfers to count as prepayment of survivor's share
Fourth, surviving spouse's own property, incl. gratuitous gifts
augmented estate DOES NOT include property either spouse acquired by gratuitous transfer from 3d party and maintained as separate. but it does include pre-marital wealth
119
calculating elective share
less than 1 year=3%
5 years = 30%
10 years = 60%
15+ years = 100%
120
satisfying elective share
deduct from elective share what spouse already got. deduct what survivor will receive from probate or non-probate transfer, apportion remaining amount pro rata among all other takers from probate estate and recipients of non-probate transfers. if elective share still not satisfied, remaining portion charged pro rata to recipients of lifetime gifts from estate
