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Specialization Exam > Transfer by Administration 1 > Flashcards

Transfer by Administration 1 Flashcards

1
Q

On the exam, should you make a distinction between the probate estate and the taxable estate?

A

Yes

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2
Q

Joint Tenancy

A
  • Owned by two or more persons in equal shares
  • Requires a written instrument with express declaration it is to be owned jointly
  • When a joint tenant dies, the joint tenancy property passes by operation of law by the surviving joint tenant(s)
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3
Q

Severance of Joint Tenancy

A
  • Can be done with or without the consent of the joint owner

* Reverts to tenancy in common

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4
Q

Tenants in Common

A

Have an undivided interest in the property -
each own a fractional share.
This interest can be devised in their will.

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5
Q

Rights of creditors in deceased joint tenant

A

The deceased joint tenant’s creditors have not rights in the joint tenancy property.

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6
Q

When do joint tenant’s creditors have rights against property held in joint tenancy?

A

If there was an execution sale before the joint tenant’s death.

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7
Q

Transfer on Death Deed

A
  • Conveys titled of RP at grantor’s death to named beneficiaries
  • Only for residential property up to 4 units
  • Must record deed with 60 days of execution
  • There is no beneficiary interest until the death
  • It can be revoked, at any time before death
  • Decedent’s Estate can Recover from TOD beneficiary - 3 year SOL
  • You have to have named beneficiaries
  • If the beneficiary dies before the grantor, the deed has not effect
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8
Q

Community Property with Right of Survivorship

A
  • Passes to the survivor without probate
  • Step-up in both basis for both halves
  • The transfer document must expressly declare that the property is community property with right of survivorship
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9
Q

Totten Trust

A

It is a bank account that is in a trust

A trustee administers the account after the death of the grantor

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10
Q

Uniform TOD Security Regulation Act

A
  • Beneficiary designation form

* Not governed by the will or trust.

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11
Q

Does a creditor with a security interest in personal property travel to the new owner?

A

Yes

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12
Q

Is IRA under state law?

A

Yes

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13
Q

Is 401(k) under federal law?

A

Yes

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14
Q

Why do you not want to leave the IRA to the trust?

A

The IRS cannot attach RMD’s to a trust.

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15
Q

Is there creditor protection for inherited IRA’s?

A

No

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16
Q

Contracts to Convey at Death

A

Contract to convey property in my will

17
Q

Requirements for Contracts to Convey at Death

A
  • Offer/Acceptance
  • Consideration
  • SOF
  • Good Faith and Fair Dealing
18
Q

SOF - Requirements

A
  • Must be in writing where it promises to answer for the debt or duty of another
  • Contracts to sell or convey Real Property
  • Contracts not to be performed within the lifetime of the promisor
  • Contracts for the sale of goods over the amount of $500 (UCC Provision)
  • Not to be performed in one year of the making thereof
19
Q

Alternatives to Will Contracts

A
  • Reciprocal wills

* Funded Revocable Trusts

20
Q

Spousal Set Asides - Family Protection

A
  • The family members right to live in the residence during probate administration.
  • It protects against creditor and heirs
  • Court has wide discretion re: set-aside
21
Q

Do spousal set asides apply to property not subject to a probate?

A

No

22
Q

When does the spousal set aside terminate?

A

Remarriage, divorce, legal separation

23
Q

Are the rights of decedent’s spouse depend on the rights of surviving spouse?

A

No

24
Q

What is the family allowance?

A
  • Money out of the estate given to the spouse
  • Why? They were dependent on decedent. Must be able to show dependency. Dependent minor children do not have to be related.
  • They will be paid an allowance under the probate estate
25
Q

Does the spousal set-aside protect against secured debt?

A

No

26
Q

Priorities for family allowance?

A 
Taxes
Funeral Expenses
Last illness
Family Allowance
Wage Claims
27
Q

PC 6500

A

Family Allowance

Only applies to items in the probate estate

28
Q

Small Estate Affidavit

A
  • Must wait 40 days - most common, a bank account
  • Under the Probate Amount
  • Look for spousal set asides - if there is a family protection issue
29
Q

Real property transfers - Summary Procedures

A

*Worth under 50k

30
Q

Objectives of a Formal Probate

A
  • Collect and manage all assets subject to probate
  • Give notice and opportunity to be heard by interested parties
  • Pay debts and taxes of the decedent
  • Liquidate assets when necessary or appropriate
  • Distributed to remaining assets
31
Q

Personal Representative

A
  • Executor - where there is a will

* Administrator - intestate

32
Q

Personal Representative - Priorities

A
  1. Spouse
  2. Children
  3. Grandchildren
  4. Parents
  5. Grandparents
  6. Siblings
  7. Creditors
  8. Any other person
33
Q

What is the timeline for filing the will?

A

Within 30 days of death

34
Q

Self Proving Will

A

Contains proper attestation clause by two witnesses

35
Q

Not Self Proving Will

A

Must be proved by declaration of witnesses - if no will contest

36
Q

Holographic Will

A
  • Handwritten and signed by testator
  • Proven by traditional handwriting analysis
  • No witnesses required.
37
Q

Lost or Destroyed Will

A
  • If the testator’s will was in the testator’s possession; was competent until death, and a duplicate cannot be found, it is presumed that the testator destroyed the will with intent to revoke it.
  • This is just a presumption
  • A photocopy of a will is not a duplicate original and the presumption of revocation applies.
  • Photocopy of a will is good evidence, though.
38
Q

Independent Administration of Estates Act (IAEA)

A

Allows executor to administer most activities without court supervision

39
Q

Formal Probate - Bond Required

A
  • Required by default - mandatory is required by Will
  • Can be waived by the will or beneficiaries
  • Alternative - blocked account

Specialization Exam (9 decks)

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