Statutes

Question 1

84-1. Legacies Classed

Answer 1

Legacy to a particular thing = specific. If fails, no resort to other property of the tesator.

Demonstrative = particular fund or property is pointed out from which the legacy is to be taken or paid. If fails, resort can be made to general assets.

Annuity = bequest of certain specified sums periodically. If fails, resort can be made out of general assets.

Residuary = all that remains.

Everything else is general legacies.

Question 2

84-2. All property of intestate subject to debts.

Answer 2

If dies intestate, all his property is chargeable with the payment of his debt, except otherwise provided in the code or civil procedure.

Question 3

84-3. Order of Resort to Property for Payment of Debts, Administration Expenses and Allowances

Answer 3

Property, except as otherwise provided, must be resorted to for debts:

1. Property expressed appropriated.
2. Property not disposed of by the will.
3. Prop devised/bequeathed to a residuary.
4. Prop not specificay devised, and
5. All other property ratably.

Before the debts, expenses of admin and the allowance for the family must be paid.

Question 4

84-4. Order of Resort to Prop for payment of legacies.

Answer 4

Property, except as otherwise provided, must be resorted to for the payment of legacies:

1. Prop expressly appropriated.
2. Prop not disposed of by will.
3. Prop devised to residuary legatee.
4. Prop. which is specifically devised.

Question 5

84-5. Preferred Legacies.

Answer 5

Legacies to husband, widow, or kindred of any class, are chargeable only after legacies to persons not related to testator.

Question 6

84-6. Abatement takes effect how

Answer 6

Abatement takes place in any class only as between legacies of that class, unless a diff intention is expressed.

Question 7

84-7. Title and Possession - Rep may sell property devised

Answer 7

In a specific devise, the title passes by the will but possession can only be obtained from the PR, an dhe may be authorized by the DC to sell the property.

Question 8

84-8. Claim under heir against devisee - probate proceedings.

Answer 8

A bona fide purchaser of real property are not impaired by any devise made by testator, unless the instrument containing such devise has been admitted to probate within two years after death, or unless within one year after death a petition to admit said will to probate has been filed and the proceedings have been pursued.

Question 9

84-9. Succession to limited legacies - Inventory of property

Answer 9

Where specific legacies are for life only, the first legatees must sign and deliver to the second legatee, or if none to the PR an inventory of the prop., expressing that the same is in his custody for lie only, and that, on his death, it is to be delivered and to remain to the use and for the benefit of the second legatee, or to the PR.

Question 10

84-10. Bequest of interest or income begins at death.

Answer 10

In the case of bequest of interest or income, the income accrues from the testator’s death.

Question 11

84-11. Legacy satisfied before death.

Answer 11

A legacy, or a gift in contemplation, fear or peril of death, may be satisfied before death.

Question 12

84-12. When legacies are due - Annuities.

Answer 12

Legacies are due and deliverable at the expiration of one year after the testator’s decease. Annuities commence at the testator’s decease.

Question 13

84-13. Time when legacies bear interest.

Answer 13

Legacies bear interest from the time when they are due and payable, except that legacies for maintenance, or to the testator’s widow, bear interest from the testator’s decease.

Question 14

84-14. Testator’s intent controls.

Answer 14

The four preceding sections are in all cases to be controlled by a testator’s express intention.

Question 15

84-15. Executor of estate and the intent of the testator.

Answer 15

By the terms of the will, if testator intended to commit execution and appoint an executor, such person even if not named is entitled to letters as if he was named.

Question 16

84-16. Executor not permitted to appoint executor.

Answer 16

Where an executor appoints an executor, it is void.

Question 17

84-17. Power as executor begins upon qualification - Payment of funeral charges - Preservation of the estate.

Answer 17

An executor must qualify before letters. However, he may pay funeral charges and take nec measures to protect estate.

Question 18

84-18. Executor of an executor - Power.

Answer 18

No executor of an executor has power over the original (first) testator.

Question 19

84-19. Term will includes codicils.

Answer 19

Wills = all codicils and wills.

Question 20

84-20. Governing law as to interpretation of the will - Real property and personal property.

Answer 20

(except otherwise provided)

Validity and interp of will is governed by this state when relating to real property within this state. When relating to personal prop, then state of domicile.

Question 21

84-21. Beneficiary liability as to obligations of the testator.

Answer 21

Beneficiaries liable for obligations of testator as provided by civil procedure or other statutes.

Question 22

84-22. Disclaimer of interests passing by will, intestate succession, etc - definitions.

Answer 22

Unless clearly required by context:

“Beneficiary” = person entitled (but for disclaimer) to take an interest by whatever testamentary means.

Interest = whole of property, real or personal, legal or equitable or any fractional part, share or portion or power to appoint, consume, apply, or expend property or other right, power, privilege, immunity.

Disclaimer = written instrument, which declines, refuses, releases, renounces, or disclaims an interest by a beneficiary, defining the nature and extent of the interest, signed, witnessed, and acknowledged as provided in real estate deeds.

Question 23

84-23. Right to file disclaimer - minor incompetent or deceased beneficiaries.

Answer 23

Beneficiary may disclaim any interest in whole or part. Guardian, executor, administrator, or other PR may execute and file a disclaimer on behalf of the beneficiary. A beneficiary may execute and file by agent or attorney.

Question 24

84-24. Time for filing disclaimer.

Answer 24

Any time after creation of the interest and within 9 months after death. Or if not created or ascertained as a beneficiary within 9 months, beneficiary may disclaim within 9 months after the event.

Question 25

84-25. Place of filing disclaimer - delivery of copies - interest in real estate.

Answer 25

Disclaimer is effective upon filing in district court. Copies must be delivered/mailed to PR, trustee, or other person having legal title or possession in which interest exists. No liability for PR for proper distribution without actual notice of the disclaimer. If disclaimed interest is in real estate, then certified copy shall be filed in the office of the county clerk. Shall constitute notice to all persons.

Question 26

84-26. Disposition of interest disclaimed.

Answer 26

Unless otherwise provided in the will, the interest disclaimed descends as if disclaimer died immediately preceding. Timing of disclaimer is at that time. A disclaimer as to a specific bequest is not a disclaimer as to a residuary.

Question 27

84-27. Uniform fraudulent conveyance act not abrogated - bar on right to disclaim in certain cases.

Answer 27

Title 24, section 101 to 111 is not amended, repealed, or abrogated. Any assignment or agreement to assign or transfer an interest in real or personal property, or written waiver of the right to disclaim by a beneficiary or any sale or disposition of an interest pursuant to judicial process, made before he has filed a disclaimer bars the right otherwise hereby conferred on such beneficiary to disclaim interest.

Question 28

84-28. Spendthrift provisions - binding effect of disclaimer - spouse of disclaimant.

Answer 28

Right to disclaim exists no matter of any limitation in an express or implied spendthrift provision. A disclaimer is binding, except after waiving may transfer if knot prohibited by spendthrift provision. If interest in real estate is disclaimed and filed, the spouse is barred from any claim or right if consented to disclaimer in writing.

Question 29

84-29. Other rights not abridged.

Answer 29

This act does not abridge any right now or in the future to disclaim any interest.

Question 30

84-30. Interest not fixed or finally ascertained - right to disclaim.

Answer 30

An interest not fixed or ascertained yet may afterwards disclaim such interest.

Question 31

84-31. Disclaimer of Interest in Trust.

Answer 31

An interest in trust may be disclaimed in a written instrument signed by the trustee and income beneficiary, w/o judicial approval and w/o liability of trustee to persons with an interest effective after the death of the income beneficiary, but only if interest passes to the descendants of grantor. Shall not abridge or limit the right presently existing of trustee/beneficiary to disclaim.

Question 32

84-41. Persons who may make a will - Persons subject to G/S or C/S.

Answer 32

Person over 18, of sound mind may dispose of all his estate, whether by will or succession. Estate is chargeable with the payment of all debts.

G/S or C/S does not prohibit disposition by will or succession. However, will must be subscribed and acknowledged by judge. Judge shall attest to the execution but shall not have the duty nor authority to approve or disapprove the contents. Does not render will valid if otherwise invalid.

Question 33

84-42. Married women’s rights as to wills.

Answer 33

Married woman may dispose by will her separate estate w/o husband’s consent, and may alter or revoke. Wills must be executed and proved in like manner as other wills.

Question 34

84-43. Procurement of will or revocation by duress, menace, fraud, or undue influence.

Answer 34

Will or part made by duress, menace, fraud, or undue influence may be denied probate, and a revocation be declared void.

Question 35

84-44. Property acquired by joint industry.

Answer 35

Every estate may be disposed by will. However, wills are subservient to an antenuptial contract in writing, but no spouse may devise away from the other more than what the other spouse would receive through succession by law. However, property not acquired by joint industry is not required to devised more than half to the surviving spouse. Further, no person may dispose property which cannot be alienated, encumbered, or conveyed while living, except the homestead to the other spouse. this section does not apply to an estate after July 1, 1985.

After 1985:

Same, except no spouse may devise away so much of the estate to leave less than half interest in property acquired by joint industry. No person may dispose of property which cannot be alienated, encumbered, or conveyed except the homestead to the other spouse.

Spouse has a right of election of 1/2 interest in property.

If spouse makes election, that spouse shall make the election affirmatively in writing filed in court. Clerk shall mail a copy to the PR and to all attorneys. Such writing shall be in form separate from all pleadings and docs. Failure to comply with these provisions will render attempt void and no force or effect. However, this will not prohibit the spouse from making a subsequent election within time.

Right of election is personal and only available during their lifetime. However, if G/S or C/S, guardian or conservator may make the election but only if approved by the court. Further, certified copy of doc of appointment and certified copy of order shall be attached to election and must be in compliance. G/S or C/S from any state and may be appointed t any time within time.

Question 36

84-45. Persons capable by law may take - Corporations excepted.

Answer 36

Testamentary disposition can be made to any person capable of taking property so disposed of, except no corp. can take under a will unless expressly authorized by its charger or by statute.

Question 37

84-46. Requisites of Nuncupative Wills.

Answer 37

For a nuncupative will to be valid:

Estate cannot be more than $1000.

Proved by two witness who were present at the making, one must be asked by the testator to bear witness such is his will or to that effect.

Must have been in actual military service in the field, or shipboard at sea and in actual contemplation fear or peril or expectation of immediate death.

Question 38

84-51. Nuncupative will - Writing and attestation not required.

Answer 38

Nuncupative will does not need to be in writing, declared, or attested in any formality.

Question 39

84-52. Mutual wills - Revocation.

Answer 39

Conjoint or mutual will is valid but it may be revoked by any testators like any other will.

Question 40

84-53. Conditional wills - Probate.

Answer 40

A will, which is conditional by its terms, may be denied probate, acc to event, w/ reference to the condition.

Question 41

84-54. Holographic wills.

Answer 41

A holographic will is entirely written, dated, and signed by the testator himself. It is subject to no other form, and may be made in or out of the state, and need not be witnessed.

Question 42

84-55. Formal requisites in execution - Self-proved wills.

Answer 42

Every will, not nuncupative wills, must be in writing, and every will, not holographic and nuncupative, must be executed and attested as follows:

Subscribed at the end by the testator, or some person, in his presence and by his direction, must subscribe his name.

Subscription must be made in presence of attesting witnesses, or be acknowledged by the testator to them, to have been made by him or his authority.

Testator must, at time of subscription/acknoweldgement, declare to the attesting witnesses that it is his will.

Must be two attesting witnesses, each must sign his name as witness at the end of the will at testator request and in his presence.

Every will, other than holographic/nuncupative, and every codicil may, at the time of execution or at any subsequent date during lifetimes of testator and witnesses, be made self-proved and the testimony of witnesses in probate may be made unnecessary by:

acknowledgment by the testator and the affidavits of the attesting witnesses, each made before an officer authorized o take acknowledgments to deed and to administer oaths, such acknowledgments and affidavits being evidenced by certificate, with official seal of such officer attached to such instrument in form and contents as follows, or

written declaration of the testator and attesting witnesses made in the following form.

Any person who falsely executees a written declaration or misrepresents his ID w/ intent to defraud another, per b of 5 shall be guilty of a felony of perjury and shall be punished accordingly.

A self-proved testamentary instrument shall be admitted to probate w/out testimony of any subscribing witness, unless contested, but otherwise not treated differently not self-proved. Further, a self-proved instrument may be revoked or amended by a codicil in same fashion as one not self-proved and such instrument may be contested as a will not self-proved.

Question 43

84-56. Witness to write name and place of residence - Subscription of testator’s name by direction.

Answer 43

A witness to a written will must write with his name, his residence, and a person who subscribed the testator’s name by his direction must write his own name as a witness. But a violation of this does not make a will invalid.

Question 44

84-57. Codicil - Effect of.

Answer 44

The execution of a codicil referring to a previous will has the effect to republish the will as modified by the codicil.