Protections against Disnhertitance

Question 1

Can the protections against disinnheritance override the terms of a will ?

Answer 1

Yes

Question 2

What are the 5 protections against disinheritance ?

Answer 2

1. The family allowance
2. Exempt property
3. The homestead allowance
4. Use of family residence
5. Elective Share

Question 3

1. The family allowance

Answer 3

Is a reasonable allowance, paid in cash for the support of the surviving spouse and any any children

Question 4

What is the cap on a family allowance ?

Answer 4

24k a year or 2k monthly payments

Any amount above the cap needs to be approved by the court

Question 5

Priority of payments with admin costs and family allowance

Answer 5

1. First priority= administrative costs/expenses of the estate
2. Second priority= family allowance

Question 6

How long can the family allowance last if the estate is insolvent ?

Answer 6

cannot last longer than a year

Question 7

Do you subtract the amount of the family allowance from what the surviving spouse/minor children would get ?

Answer 7

No, anything that the surviving spouse/minor children get under the family allowance will be in addition to anything they receive under the will or under the law

Question 8

A surviving spouse and children are named as beneficiaries under the decedent’s will for 100,000, and they receive 20,00 as a family allowance how much will they recieve ?

Answer 8

They will receive a total of 120,000

Question 9

2. Exempt property

Answer 9

Gives the surviving spouse 20,000 in value from the following types of property in the estate
1. Household furniture
2. cars
3. Furnishings
4. Appliances
5. Personal effects

Question 10

Who gets the exempt property if there is no surviving spouse ?

Answer 10

Minor children each get an equal share of the 20,000

Question 11

Priority with Admin costs, family allowance, and exempt property

Answer 11

1. admin expenses
2. Family allowance
3. Exempt property

Question 12

What if exempt property has a lien on it ?

Answer 12

Total value of property - lien = what spouse or minor child gets

Question 13

Do you subtract exempt property from what a spouse/minor child is entitled to under a will or the law ?

Answer 13

No, does not reduce. Gets added onto the total amount

Question 14

3. The homestead allowance

Answer 14

is 20k and Goes to the surviving spouse, if no surviving spouse goes to decedent’s minor children

Question 15

Priority of admin, family allowance, exempt property , homestead allowance

Answer 15

1. Admin costs
2. Family allowance
3. Exempt property
4. Homestead allowance

Question 16

What is a major difference between the homestead allowance and the other forms of disinheritance protections ?

Answer 16

Any amount received as a homestead allowance is in lieu of any amount payable to the surviving spouse or the minor children under the laws of intestacy

Question 17

But what if the amount payable to the surviving spouse or minor children under the will/intestacy is less than 20K ?

Answer 17

Then the surviving spouse or the minor children gets a homestead allowance that brings the total amount to 20k

Question 18

Father dies, leaving behind no surviving spouse and 1 minor child. Father leaves the minor child 15k and everything else to the fathers alma mater. Father’s estate is worth 100k

Answer 18

The minor child gets:
1. The family allowance = 24k
2. Exempt property= 20k
3. Homestead allowance= 5k (20k possible -15k given by will)
4. The 15k given to her by the will

Question 19

Same facts, but father leaves minor child 40k

Answer 19

The minor child gets
1. The family allowance= 24k
2. Exempt property= 20k
3. Homestead allowance OR distribution under will because the distribution is more than 20k

Question 20

Why would a beneficiary take the homestead allowance when it is less money than what they will get under the will or intestacy ?

Answer 20

because the homestead allowance is higher in priority

Question 21

A decedent who died before Jan 1, 2017

Answer 21

The surviving spouse could not claim both the elective share and the homestead allowance

Question 22

A decedent who dies after Jan 1, 2017

Answer 22

The surviving spouse can claim both the homestead allowance the the elective share

Question 23

4. Use of the family residence

Answer 23

Generally, the surviving spouse gets the family residence via joint tenancy.

However, the surviving spouse has a right to continue living in the principal residence until
1. there is a final court order; or
2. an agreement is reached

Question 24

5. The elective share is….

Answer 24

the primary mechanism for ensuring that a decedent does not disinherit the surviving spouse and allows a surviving spouse to choose between an amount set by statute and the amount the surviving spouse would het under the decedent’s will or intestacy

Question 25

What is the statutory portion called ?

Answer 25

The augmented estate which includes the decedent’s estate plus other items, including non-probate transfers