Themis Outline Flashcards
What is the primary policy regarding intestacy?
To carry out the probable intent of the average intestate decedent (D)
The actual intent of the D is irrelevant for property passing by intestacy.
What is the marriage requirement for a surviving spouse (SS) to inherit?
SS must have been legally married to D
What is the survival requirement for a surviving spouse (SS) to inherit?
SS must survive D to inherit; if there is insufficient evidence of order of death, property is treated as if each individual had survived.
What happens in the case of simultaneous death?
Insufficient evidence of order of death results in property being treated as if each individual had survived.
Who takes the entire estate if there are no descendants?
Surviving spouse (SS)
How is the estate divided if the individual is survived by descendants?
SS and children share equally; descendants of deceased children take that child’s share, per stirpes.
Define ‘issue’ in the context of intestacy.
All lineal descendants, including children, grandchildren, great-grandchildren, etc.
What is the presumption regarding a child of a married couple?
The child is presumed to be the natural child of the parties to the marriage.
What conditions must be met for posthumously-born children to inherit?
Conceived before D’s death, born within 10 months of D’s death, and survived more than 120 hours after birth.
What rights do adopted children have regarding inheritance?
References in a will to ‘children’ include adopted children; treated as a biological child for inheritance purposes.
What is true about inheritance rights between an adopted child and their genetic parents?
No inheritance rights between the genetic parents and the adopted child.
What happens when a child is adopted by a stepparent?
Adoption does not curtail the parent-child relationship or the inheritance rights of a natural parent.
What is the status of children born out of wedlock concerning inheritance?
Cannot inherit unless certain conditions are met, such as a court order declaring legitimacy or established paternity.
List the conditions under which a child born out of wedlock can inherit.
- Court order declaring legitimacy
- Father’s attestation or signed birth certificate
- Clear and convincing evidence of paternity
What happens to the inheritance rights of a parent who abandons their child?
The parent is not entitled to inherit from the child under intestate succession.
In the absence of a surviving spouse, who shares the deceased’s estate equally?
Surviving descendants (D’s children)
If there are no surviving descendants or parents, who inherits next?
D’s siblings
What is the order of distribution if there are no surviving descendants, parents, or siblings?
- Grandparents
- Aunts and uncles
- More remote degrees of kinship
Describe how shares are calculated under per stirpes distribution.
Issue equally share the portion that the deceased ancestor would have taken, if living.
What are the valid will requirements?
- Writing signed by a testator (T) 14 years or older, of sound mind
- Two or more competent witnesses
What does the term ‘testamentary intent’ refer to?
T must execute the will with present testamentary intent and generally know and approve of the will’s contents.
What are the requirements for witnesses to a will?
- At least two competent witnesses
- Must sign in T’s presence
- Need not sign on the same page
What is a self-proved will?
Creates a rebuttable presumption that the will was properly executed.
True or False: Holographic wills are recognized in Georgia.
False
What is the effect of a revocable trust regarding its revocability?
A trust that is silent as to its revocability is deemed irrevocable.
What happens if a will is revoked by a subsequent instrument?
Revocation can be express or implied by the terms of the subsequent instrument.
What is the common-law rule regarding lapsed gifts to beneficiaries?
If a B died before T, the gift to B lapses and passes to the residue.
What is the anti-lapse statute?
A gift made to a B who was deceased at the time the will was executed will not lapse if the B left descendants who survive T.
What is the order of abatement when estate assets are insufficient?
- Residuary bequests
- General bequests
- Demonstrative bequests
- Specific bequests
What is ademption by extinction?
Denial of a gift to B because the property no longer exists in T’s estate.
What is the effect of a lien on specifically devised real property?
A lien is not exonerated unless the will directs such action.
What does ‘elections’ refer to in the context of wills?
A B with a claim adverse to the will must elect whether to take under the will or against it.
What must a person elect if they receive a benefit under a will that is not theirs?
The person must elect whether to take under the will or against it.
What are the spousal support rights under Social Security?
Only a spouse can receive a worker’s survivor benefits.
What does ERISA require regarding pension plans?
ERISA requires pension plans to give spouses survivorship rights.
What is the homestead exemption for a surviving spouse?
A surviving spouse is entitled to the exemption on her home and land if she owned it and it was her legal residence as of January 1 of the tax year.
What is the duration of support a surviving spouse and minor child are entitled to after a death?
They are entitled to property and maintenance for up to 12 months following the death.
Can a testator omit their spouse from a will?
Yes, but probate will be refused if there is evidence of aberration of intellect, collusion, fraud, undue influence, or unfair dealing.
What happens if a testator marries after executing a will?
The surviving spouse is entitled to a share equal to what she would have received if the testator had died intestate.
What is required for guardianship transfers to minors?
Must get the necessary court approval.
What is the UTMA?
The Uniform Transfers to Minors Act appoints a custodian to use the property of a minor at the custodian’s discretion without court approval.
What presumption arises if a child is omitted from a will?
A presumption is created that the omission was accidental.
Fill in the blank: A party who kills D cannot take property from D due to _______.
[homicide]
What must be proven for a homicide to disqualify inheritance?
The killing must be intentional and felonious.
What is a renunciation (disclaimer) in the context of inheritance?
A party must actively renounce the gift because acceptance is presumed.
What is required for a disclaimer to be valid?
Must be in writing, signed, and describe the disclaimed property.
What is testamentary capacity?
T must be at least 14 years old and have a rational desire regarding property disposition.
What constitutes undue influence in a will?
A will is not valid if it destroys the testator’s freedom of volition.
What are the elements of fraud in the context of wills?
B’s misrepresentation made with intent to deceive, T relied on it and was actually deceived.
What does a ‘no contest’ clause aim to do?
Deters a beneficiary from suing over their share by causing them to lose it entirely.
What happens if a person has been missing for 60 days or more?
Any individual with an interest can petition the probate court for a conservator.
What is the jurisdiction for probate proceedings?
The county where the decedent was domiciled at the time of death.
What is the priority of claims in probate?
- Year’s support for the family
- Funeral expenses
- Administrative expenses
- Last medical expenses
- Tax or other debt claims
- Secured claims
- Judgments against D
- All other claims
Who can be appointed as a personal representative?
The person named in the will, unanimously selected administrator by beneficiaries, surviving spouse, other heirs, any other eligible person, any creditor, county administrator, or temporary administrator.
What are the principal duties of a personal representative?
- Oath of office
- Notice to beneficiaries within 30 days
- Marshalling assets within six months
- Notice to creditors within 60 days
- Payment of claims within six months
What are the two types of powers of appointment?
- Testamentary
- Presently exercisable
What is a general power of attorney?
The agent can handle all affairs when the principal is unable to do so.
Fill in the blank: An advance healthcare directive is effective upon the _______ of the principal.
[incapacitation]
