Protection (Wills + Intestacy) Flashcards

Question

percentage of decedent's net estate for less than 3 yrs (step one) TN ELECTIVE SHARE FORMULA

Answer 1

includes all of the decedent's real property and personal property subject to disposition under will/intestacy laws MINUS 1. secured debts to the extent that secured creditors are entitled to realize on the applicable collateral AND 2. funeral and administration expenses AND 3. award of exempt property, homestead allowance and year's support allowance

Answer 2

any assets over which the decedent held a power of appointment - whether exercised or not - UNLESS D exercises the power of appointment to direct the assets to be paid to the decedent's personal representative for administration as part of probate estate

Answer 3

amount payable to S by the estate shall be reduced by the value of all assets includable in the decedent's gross estate that were a. transferred or deemed transferred to S OR b. for the benefit of S EXCEPT 1. homestead allowance AND 2. exempt property AND 3. year's support allowance

Answer 4

any conveyance 1. made fraudulently 2. to children or others 3. with an intent to defeat S of distributive/elective share = at the election of S, can be a. includable in the decedent’s net estate b. voidable to the extent the other assets in the decedent’s net estate are insufficient to fund and pay the elective share amount

Answer 5

- used to determination whether conveyance should be voided - factors should not be applied mechanically - weight and significance of factors = depend on the facts of each particular case

Answer 6

1. whether transaction was made with/without consideration 2. size of the transfer in relation to D's total estate, 3. time between the transfer and D's death, 4. relations which existed between D and S at the time of the transfer 5. source from which the property came 6. whether transfer was illusory 7. whether S was adequately provided for in the will

Answer 7

Notice must be filed, right to elective share is not automatic

Answer 8

= surviving spouse must file a notice of election within specific period

Answer 9

``` right of election of a surviving spouse AND rights of surviving spouse to a. homestead allowance b. exempt property c. and family allowance d. or any of them MAY BE WAIVED - wholly or partially - before or after marriage - by a written a. contract b. agreement c. waiver - signed by S ```

Answer 10

S’s waiver is not enforceable if the surviving spouse proves that - S did not execute the waiver voluntarily OR - that 4 elements are present 1. waiver was unconscionable when it was executed AND 2. before execution of the waiver S was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent 3. did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond disclosure provided AND 4. did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent

Answer 11

a. waiver of "all rights” (or equivalent) in present/prospective spouse’s property/estate OR b. complete property settlement entered into after/in anticipation of separation/divorce = waiver of 1. all rights of elective share 2. homestead allowance 3. exempt property 4. AND family allowance = renunciation by each of all benefits that would otherwise pass by a. intestate succession OR b. will executed BEFORE the waiver OR c. property settlement UNLESS waiver provides to the contrary

Answer 12

= for decision of court as a matter of law

Answer 13

Any antenuptial/prenuptial agreements re: property owned by either spouse before marriage = BINDING IF entered into 1. freely, knowledgeably, and in good faith 2. without exertion of duress or undue influence

Answer 14

- participation of independent counsel is not ESSENTIAL - BUT provides best assurance that the legal prerequisites will be met and that the antenuptial agreement will be found enforceable in the future

Answer 15

Terms are enforceable by all remedies available for contract terms

Answer 16

right to election is personal to spouse = only the surviving spouse may make the election to take against the will

Answer 17

= election can be made on behalf of legally incapacitated 1. With court approval 2. Upon a showing that an election is necessary to provide adequate support for the spouse during his or her life expectancy

Answer 18

= election cannot be made by the spouse’s personal rep rationale = statute is intended to protect the surviving spouse against disinheritance, not to provide benefits to the spouse’s heirs

Answer 19

elective share is paid in the manner causing the least disruption to the T’s testamentary plan = 1. first paid in cash or kind from the assets passing under the will that, but for the election, would have passed to the spouse outright 2. to the extent that these assets are insufficient, excess is paid pursuant to the abatement rules that apply to creditors’ claims

Answer 20

lifetime transfers by the decedent = subject to the elective share IF the grantor-spouse retained the power a. to revoke OR b. to invade, consume, or dispose of the principal = revocable trusts may not be used to defeat a spouse’s right of election (majority rule where addressed)

Answer 21

1. A testator may disinherit her children | 2. = a parent need not bequeath anything to her children

Answer 22

1. designed to protect children from being accidentally omitted from the will

Answer 23

1. T had no children living when executed will | 2. T had 1+ kids when will executed and gave stuff to 1+ of kids

Answer 24

= omitted kid gets share equal in value to that which the child would have received had the testator died intestate UNLESS 1. will devised all or substantially all of the estate 2. to the other parent of the omitted child and 3. that parent survives T and is entitled to take under the will

Answer 25

= an omitted kid is entitled to 1. Share that’s limited to devises made to T’s then-living kids AND 2. Share that omitted kid would have received had T given equal shares to all omitted and non-omitted kids AND 3. Interest that is same character of that devised to then-living kids TO THE EXTENT FEASIBLE - Whether equitable or legal - Whether present or future

Answer 26

- To satisfy a share when T has 1+ kids and gave them stuff = devises to T’s then-living kids abate ratably - In abating, court shall preserve character of T’s testamentary plan TO THE MAXIMUM EXTENT POSSIBLE

Answer 27

ONLY APPLIES TO 1. Any child born or adopted after execution of will 2. Any child T fails to provide for in will SOLELY because he believes child to be dead

Answer 28

DOESN’T APPLY 1. If appear from the will that the omission was intentional OR 2. T provided for the omitted after-born or after-adopted child by transfer outside the will AND intent that the transfer be in lieu of a testamentary provision is a. shown by the testator's statements OR b. is reasonably inferred from the amount of the transfer or other evidence

Answer 29

Child born or adopted after making of a will who is - Not provided for - Nor disinherited - Nor provided for by settlement made by T in T’s lifetime - BUT PRETERMITTED = gets the same portion of T’s estate as if T died intestate

Answer 30

to raise this portion = devisees/legatees/other heirs shall CONTRIBUTE PROPORTIONALLY out of their shares

Answer 31

a child born or adopted after the will was executed takes an intestate share of the decedent’s estate

Answer 32

normal abatement rules apply

Answer 33

pretermitted child will not take a share IF a. It appears from the will that the omission was intentional OR b. At the time the will was executed, the testator had other children and devised substantially all of his estate to the other parent of the omitted child OR c. The testator provided for the omitted child by a transfer outside of the will with the intent that it was in lieu of a testamentary gift

Answer 34

1. T had other children at the time the will was executed AND 2. the will makes a provision for one or more of the children = pretermitted kid’s portion of the estate is limited to the provisions made to the other children

Answer 35

the bequests to the other children are reduced by pretermitted kid BUT no other beneficiary’s bequest is reduced (UPC/some state)

Answer 36

UPC/majority exception to general rule application only afterborn and after-adopted children existing children are protected IF T fails to provide in her will for a living child solely because she mistakenly believed the child to be dead = the child shares in the estate as though he were an omitted afterborn or after-adopted child

Answer 37

pretermitted child statute operates only in favor of the testator’s children = the testator’s grandchildren are not covered

Answer 38

S and/or minor children are entitled to 1. Homestead exemption 2. Personal property exemption 3. Family allowance

Answer 39

= homestead is exempt from all creditors up to the value of $15K

Answer 40

= tangible personal property is exempt from unsecured creditors up to the value of 10K

Answer 41

Support rights are NOT CHARGEABLE against any benefit for share passing to S or children by 1. D’s will 2. Intestate succession 3. Elective share

Answer 42

- financial support for the period of administration of the decedent's estate - the surviving spouse and decedent children are entitled to a reasonable allowance

Answer 43

1. Homestead 2. Family allowance 3. Exempt personal property 4. Life insurance proceeds

Answer 44

= TN statute protects family residence/farm - Up to an aggregate value of 5K for property in individual’s name - Up to an aggregate value of 7.5K for property held jointly = EXEMPT from creditor’s claims

Answer 45

Up to an aggregate value of 7.5K for property held jointly | = EXEMPT from creditor’s claims

Answer 46

Up to an aggregate value of 7.5K for property held jointly | = EXEMPT from creditor’s claims

Answer 47

REGARDLESS OF PROVISIONS MADE IN WILL head of the household dies = homestead property passes 1. to the surviving spouse for life and 2. then to the decedent’s minor kids free from debts of mother/father/children and 3. once minor kids come of age/die = land can be sold and proceed distributed to head of household’s intestate heirs

Answer 48

TN statute provides for larger homestead amount for individuals 62 yrs and older

Answer 49

depends on whether the residence is urban or rural

Answer 50

= 1 year’s support - authorizes payment out of an estate of amount needed to maintain S (and kids) for a year - in addition to homestead, exempt personal property, share of estate

Answer 51

= to provide funds for support of the spouse and children during the period the decedent’s assets are tied up in probate administration

Answer 52

a. the surviving spouse of an intestate decedent OR b. a spouse who elects against a decedent's will = entitled to receive from the estate of the decedent certain exempt personal property having a fair market value not exceeding 50K (in excess of any indebtedness or security interests in the property) (in addition to benefits passing by 1. intestate succession 2. elective share 3. homestead 4. a year’s support allowance)

Answer 53

this exemption applies to 1. Tangible personal property - normally located in or about the principal residence AND - not used primarily in a trade or business, or for investment purposes 2. Motor vehicles - not used primarily in a trade or business

Answer 54

D’s unmarried minor children are entitled, as tenants in common, to the exempt property

Answer 55

life insurance on a decedent’s life is generally exempt from creditors’ claims

Answer 56

1. wills = tn (compare to UTC) intestacy = tn (compare to UTC) 2. trusts = UTC (or majority if UTC silent) 3. non-probate transfers = majority 4. powers of appointment = majority 5. uniform prudent investment act = adopted by tn 6. uniform principle and income act = adopted by tn