Quiz #1 Flashcards
Testamentary Freedom
Testators (people who make wills) and settlors (people who make trusts) enjoy the “nearly unrestricted right to dispose of their property as they please”
Dispositional Control: The Privilege of Saying who gets your property and how much they get. The main function of the law is to facilitate rather than regulate.
Rule Against Perpetuities: Prevents settlors from creating interests that remain contingent for too long in the future.
Probate Court
Courts of limited jurisdiction (varies by jurisdiction), generally empowered to determine the validity of a decedent’s will, to appoint a personal representative, to settle some disputes and to accept the final report from the personal representative when the process ends.
Net Probate Estate
The probate estate after deduction for family, exempt property, and homestead allowances, claims against the estate, taxes for which the estate is liable.
Informal Probate
As long as no one objects to informal probate, personal representatives perform their duties without court supervision. If there is a will contest or a dispute about the management of the descendant’s property, the case must go through formal probate.
Formal Probate
Court supervises the administration of the estate. The larger the estate and the greater the # of interested parties, the greater the chances it will lead to formal probate.
Determination of Death
A person is declared dead as a matter of law upon sustaining irreversible cessation of all circulatory and respiratory functions.
There is a presumptive declaration of death following a prolonged absence (typically 5 years) or exposure to a catastrophic event.
Incapacity & Planning for Death
2 Types of Advance Treatment Directives:
1) Instruction
2) Proxy Directives
Members of the patient’s family authorized to act as surrogate: The Spouse (unless legally separated) An adult child A parent An adult brother or sister
3 Possible ways of managing property on behalf of incapacitated persons:
1) Conservatorships (Britney Spears)
2) Durable Power of Attorney
3) Trusts
Digital Assets
Congress passed the Stored Communications Act of 1986 to extend the 4th amendment style protections to the physical world into cyberspace.
Lawful consent to access digital assets: will/trust/other record
Revised Fiduciary Access to Digital Assets Act (adopted in Wa & 40 other states)
Disposition of Final Remains
Common Law: No property interest in your body after death
Williams v. Williams: “There can be no property in a dead body”
Today: Law is more likely to enforce the decedent’s preferences
The Slayer Rule
Seeks to prevent killers from inheriting from their victims
The killer may not serve in a fiduciary capacity
Slayer status predicated upon felonious and intentional killing
Possible to be exonerated in criminal court but still stripped of inheritance rights in probate court (lesser evidentiary standard)
Some courts extend the rule to indirect beneficiaries
Disclaimers
May refuse to inherit
A person who disclaims is treated as having predeceased the decedent for purposes of distributing the decedent’s estate.
Relation-Back Doctrine: A valid disclaimer “relates back” to immediately before the decedent’s death, meaning that the disclaimant never gained possession of the disclaimed property.
Once an individual makes a valid disclaimer, the disclaimer becomes irrevocable
Disclaimers are not always effective, for example, a disclaimer by an insolvent heir may be considered fraudulent.
Intestate Definition
Without a Valid Will
UPC: Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs.
Most Americans die without making a will (roughly 65%)
Intestate succession applicable only to decedent’s probate property
In most states intestate estate distributed in the following order:
Surviving Spouse
Descendants
Parents
Descendants of Parents
Grandparents
Descendants of Grandparents
Step Children/Step-grandchildren
Intestacy is structurally unsuitable for non traditional families
Guardianship issues are important considerations for parents with minor children
Collateral Relatives
Descendants of a decedent’s ancestor.
1st line collaterals: Descendants of the decedent’s parents
2nd line collaterals: Descendants of the decedent’s grandparents
Laughing Heirs
Relatives so distant they likely never knew the decedent and are likely to laugh at a “windfall” inheritance.
Escheat
If there are no takers under the UPC, the intestate estate passes to the state.
English Per Stirpes
Emphasizes equality if distribution among the decedent’s children, dead or alive. It does not matter that some predeceased children produced more descendants than others, the stock of each child of the decedent receives the same allocation.
Modern Per Stirpes (UPC 1969)
Similar to English with one key difference, division into shares occurs in the 1st generation below the decedent in which there is at least one living individual. This treats the nearest generation with a living relative as the baseline for dividing the estate among the stocks.
Per Capita at Each Generation (UPC 1990)
Emphasizes horizontal equality by giving the same share to each member of the same generation.
“Equally near, equally dear”
Half-Blood
In some jurisdictions (Like Florida & Missouri), a relative by half-blood only inherits half the amount of a relative by full-blood.
UPC: Relatives of half-blood inherit the same share they would inherit if they were the whole blood.
Adoption (UPC)
(A) Same rule applies to child and adult adoption.
–UPC § 2-116: “[I]f a parent-child relationship exists or is established under this [subpart], the parent is a parent of the child and the child is a child of the parent for the purpose of intestate succession.”
(B) Creates inheritance rights between adoptee and adoptive family.
–UPC § 2-118(a): “A parent-child relationship exists between an adoptee and the adoptee’s adoptive parent or parents.”
(C) Severs inheritance rights between adoptee and genetic family.
–UPC § 2-119(a): “Except as otherwise provided . . . , a parent-child relationship does not exist between an adoptee and the adoptee’s genetic parents.”
(D) Adoptee retains inheritance rights with genetic family where:
–Adopted by a stepparent (UPC § 2-119(b))
–Adopted by a relative of a genetic parent (UPC § 2-119(c))
–Adopted after death of both genetic parents (UPC § 2-119(d))
–Adopted by functional parent following assisted reproduction (UPC § 2-119(e))
Advancements (UPC & Common Law)
Common Law: Presumed to be advancements but could be rebutted by evidence to the contrary
UPC: Reverses the Common law presumption. Inter vivos gifts are NOT usually considered advancements.
UPC 2-502: Requires a reasonably permanent record
Generally electronic communications are not considered unless printed (depending on the jurisdiction)
UPC 2-109(c): If donee predeceases the donor, ignore advancement and distribute the property as you would have without the advancement (does not bar inheritance from donee’s child)
Intestate Succession (Order)
Surviving spouse• Descendants• Parents• Grandparents• Descendants of deceased spouse• Escheat
Intestate Succession:
Surviving Spouse’s Share
No Parents Survive
2-102(1)(A)-(B)–Decedent’s surviving spouse will take ALL of decedent’s intestate estate if:
-No parent or descendant survives the decedent OR
-All descendants of decedent that survive decedent are also descendants of the surviving spouse
AND
surviving spouse has no descendant that survives decedent.
Intestate Succession:
Surviving Spouse’s Share
Parents Survive
No Descendant
2-102(2)–When decedent is survived by a spouse AND a parent but no descendant
the spouse gets the first $300,000 + ¾ of the intestate estate balance.
Intestate Succession:
Surviving Spouse’s Share
Survived by Spouse AND Descendants (both shared and exclusive to surviving spouse)
2-102(3)–When decedent is survived by a spouse AND descendants that are descendants of the surviving spouse, but descendants exclusive to the surviving spouse also survive the decedent
=the surviving spouse takes the first $225,000 + ½ of the balance of decedent’s intestate estate.
Intestate Succession:
Surviving Spouse’s Share
Survived by Spouse AND 1+ Descendants (Not descendants of surviving spouse)
2-102(4)–When the decedent is survived by a spouse AND one or more of the decedent’s surviving descendants ARE NOT descendants of the spouse
= the spouse takes the first $150,000 + ½ of the balance of decedent’s intestate estate.
UPC 2-103 Share of Heirs Other than Surviving Spouse
(a) Any part of the intestate estate not passing to a decedent’s surviving spouse under Section 2-102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals who survive the decedent:
(1) to the decedent’s descendants by representation;
(2) if there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent if only one survives;
(3) if there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them by representation;
(4) if there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived on both the paternal and maternal sides by one or more grandparents or descendants of grandparents:
(A) half to the decedent’s paternal grandparents equally if both survive, to the surviving paternal grandparent if only one survives, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and
(B) half to the decedent’s maternal grandparents equally if both survive, to the surviving maternal grandparent if only one survives, or to the descendants of the decedent’s maternal grandparents or either of them if both are deceased, the descendants taking by representation;(5) if there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents on the paternal but not the maternal side, or on the maternal but not the paternal side, to the decedent’s relatives on the side with one or more surviving members in the manner described in paragraph
(4).(b) If there is no taker under subsection (a), but the decedent has:(1) one deceased spouse who has one or more descendants who survive the decedent, the estate or part thereof passes to that spouse’s descendants by representation; or(2) more than one deceased spouse who has one or more descendants who survive the decedent, an equal share of the estate or part thereof passes to each set of descendants by representation.18
Will Requirements
1)Testamentary intent
2) Testamentary capacity
- 18 or more years old and Sound Mind (UPC 2-501)
3)Compliance with testamentary formalities(2-502)
3 Dimensions of Testamentary Intent
–Donative testamentary intent: whether the will expresses an intent to make gifts that become effective upon decedent’s death
–Operative testamentary intent: Whether the decedent intended a document that expresses donative intent to become legally effective
–Substantive testamentary intent: Interpretation of the testamentary language expressed in the decedent’s will
Testamentary Capacity
Sound mind = simultaneously understand in a “general way”
1.The nature and extent of the property
Does not require exhaustive inventory
Requires an understanding of property ownership
2.The testator’s relation to those who would naturally claim a substantial benefit from his will,
AND
Not limited to heirs, but includes those individuals or entities that T would naturally favor in a devise; those that shared close relationships with T
3.Practical effect of the will as executed
Ascertaining Testamentary Capacity
Prevailing rule–Contesting party bears burdens of production and persuasion that T lacked capacity
Minority rule (NY and TX) –Will proponent bears burdens of production and persuasion as part of admitting will to probate
Testamentary Capacity
Timing–“Sound mind” is relevant at time of will’s execution, not before or after
Admissible evidence –Court will admit extrinsic evidence to evaluate capacity, including evidence from subscribing witnesses to the will and medical personnel
Relatively low bar
Adjudication of mental incapacity is not dispositive of testamentary capacity; nor is mental weakness, old age, physical weakness, alcohol, drug abuse, eccentricity, penuriousness (extreme frugality), passion, or prejudice–
Relevant question is was testamentary capacity present at the time of the will’s execution
Testamentary Capacity: Lucid Intervals
A person suffering from diminished capacity can nevertheless make a will if executed during a “lucid interval.”
–In some states such as New Jersey, the lucid interval doctrine does not apply to an individual who has been adjudicated incompetent by court order.
“A testator needs only a lucid interval of capacity to execute a valid will, and this interval can occur contemporaneously with an ongoing diagnosis of mental illness, including depression or progressive dementia. [O]ld age and physical weakness are not necessarily inconsistent with testamentary capacity.”
