(Q4) Wills and Estates Flashcards
Testator
Man that is making a will
Testatrix
Woman that is making a will
Who can make a will?
- An adult in most states who is of sound mind, understands the nature of their property, knows who their heirs are, and the consequences/outcome of the will
Limitations of a Will
- Can not disinherit a spouse (they must receive at least their intestate share)
- Can disinherit children but must affirmatively state particulars in the will (in most states)
- Rule against perpetuitites: property must vest within 21 years of the date of death of the person
Types of Wills
- Holographic
- Noncupative
- Codicil
Holographic Will
A will that is written in the handwriting of the testator/testatrix
- not recognized in all states
Noncupative
An oral will
- can include dying declarations
- must be witnessed and usually only applies to personal property
(ex. soldiers’ or sailors’ will)
Codicil
A witten amendement to a will
Formalities of a Will
- Signature of the testator/testatrix in the presence of a witness
- Number of witnesses depends on each state but usually requires 2 witnesses
- Date of the will
- Witnesses’ signatures in the presence of the testator and the presence of each other
- Notary is not necessary in all states
Revocation of a Will
- Destruction
- Alteration
- Marriage
- Divorce
- Later will
- Afterborn or adopted children
Abatement
A certain percentage of a gift is deducted to comply with terms of the will
Ademption
If certain property is no longer owned by the testator at the time of death, the heir receives nothing
Probate Court
Court that administers and oversees the distribution of an estate
Devise
A gift of real property
Devisee
The one that inherits the gift of real property
Legacy/ Bequest
Gift of personal property
Legatee
One who inherits personal property
Executor
One named in the will by the testator to administer the estate
Administrator
One appointed by the court to administer the estate
Per Stirpes Distribution
the beneficiary’s share of the estate will pass to the beneficiary’s descendants or heirs
ex. if aunt betty dies before granny, aunt betty’s share of granny’s estate will go to Tavia
Per Capita Distribution
- all living members of the beneficiary group receive an equal share.
- If a beneficiary dies before the testator, the deceased beneficiary’s share is returned to the estate and distributed evenly among the surviving beneficiaries
ex. if aunt betty dies before granny, her share is not passed to Tavia. It will be given to aunt Janet
Intestate Succession
- Occurs when someone dies without leaving a valid will
- Distribution of estate will go by the probate acts of each state (will go through probate court and they will follow the laws of the state according to distribution)
What happens if someone who dies has no will and no heirs?
If no heirs, real property will usually go to the county or state where it is located, and personal property to the state of residence of the testator.
Small Estate Affidavit
a form that the administrator of a deceased person’s estate can use to collect the decedent’s assets, pay their debts, and distribute the balance of the estate to the decedent’s heirs and beneficiaries.
When can a Small Estate Affidavit be used?
- Deceased owned no real property and…
- Value of all personal property is usually not more than $100,000 (depends on state statute)
- Can avoid going to court
Transfer on Death Instrument
A deed that takes effect when you die
Stipulations for a Tranfer on Death Instrument
- Only takes effect after the death
- Can only transfer your own home or residence, if you’re the only owner
- Can avoid going to court
- any Joint Tenancy Property passes to the respective person no matter what the will says
- Any afterborn or adopted children have the same rights of natural-born children: must receive their intestate share if not already provided for in the will or unless otherwise provided in the will
