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Wills and Trusts > Week 3 > Flashcards

Week 3 Flashcards

1
Q

What’s CA’s first change to simultaneous death in 6403?

What is the worry about this?

What result?

A

5 days (120 hours) of survivorship or the person is thought to have predeceased as a matter of law

minutes counting down to 5 days, somebody pulls the plug right before 5 days when lots of money is at stake

good wills provide for more days than 5 to prevent this

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2
Q

What’s CA’s second change to simultaneous death in 6403?

A

clear and convincing evidence that the potential survivor was actually alive at the 5 day mark

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3
Q

What is Janus v. Tarasewicz about?

Facts?

Issue?

Holding?

Rationale?

Rule?

In CA? Statute?

A

Simultaneous death

Husband and wife die 2 days from each other from related incident; the wife later; the life insurance went to wife, during those two days, and then to her father when she died through intestacy.

Whether the trial court’s finding that Theresa Janus survived Stanley Janus was against the manifest weight of the evidence?

No

The record clearly established that the treating physicians’ diagnoses of death with respect to Stanley and Theresa Janus were made in accordance with the usual and customary standards of medical practice. It was not necessary to determine by how long Theresa survived Stanley. After viewing the record in its entirety, the trial court’s finding of sufficient evidence of Theresa’s survivorship was not against the manifest weight of the evidence.

Survivorship is a fact that must be proven by a preponderance of the evidence by the party’s whose claim depends on survivorship.

Survivorship is presumed to be absent if dies within 5 days; have to prove survivorship by clear and convincing evidence by the party’s whose claim depends on survivorship. 6403

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4
Q

What is the consequence of not meeting 6403, i.e., you are not a survivor? (2)

A

“predeceased” spouses get nothing

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5
Q

What are the three methods of distribution to children?

A
  1. English per stirpes (CPC 246)
  2. Modern per stirpes (CA intestate method; CPC 240, 245)
  3. Per capita at each generation (UPC method; CPC 247)
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6
Q

How do you pronounce “stirpes”?

A

stir-peas

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7
Q

What is english per stirpes?

What statute?

A

vertical equality: each line of descent treated equally

CPC § 246

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8
Q

What is modern per stirpes?

Statute(s)?

A

Each line of descent treated equally beginning at first generation with a living taker

CA Intestate Default – CPC § 240, § 245

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9
Q

What is per capita at each generation?

Statute(s)?

A

horizontal equality - each taker at generation valued equally (equally near, equally dear)

1990 UPC; CPC § 247

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10
Q

What is the table of consanguinity?

What kind of heirs does it allow?

A

what you cover for 6402 “next of kin”

laughing heirs - no limit on family tree

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11
Q
A

D: (1/2)(1/3)(1/3)

G: (1/8)(1/6)(2/15)

H: (1/8)(1/6)(2/15)

I: (1/12)(1/9)(2/15)

J: (1/12)(1/9)(2/15)

L: (1/12)(1/9)(2/15)

M: nothing

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12
Q

What is the order of 6402? (9)

A
  1. issue of the decedent
  2. parent(s) of the decedent
  3. issue of the parent(s) of the decedent
  4. grandparents of decedent
  5. issue of the grandparents of decedent
  6. issue of predeceased spouse of decedent
  7. next of kin
  8. parents of predeceased spouse of decedent
  9. issue of parents of predeceased spouse of decedent
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13
Q

What is 6402 about?

What’s important to remember about how much is inherited?

A

preference of distribution to issue, etc. of rest of separate property after 6401

all of it is inherited by the qualifying heir(s)

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14
Q

What happens when we run out of people to give money to?

A

state just takes it

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15
Q

What about half-siblings?

What statute?

A

they are treated the same as whole-siblings

6406

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16
Q

Which columns of the table consanguinity are irrelevant in CA?

A

First 3 columns

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17
Q

How do we treat kin of equal degree from the same ancestors?

From different ancestors?

Statute?

A
  1. give them the same
  2. Fourth column equal degree comes before fifth column equal degree, i.e., great aunt before GGgrandparent
  3. 6402(f)
18
Q

What’s the symbol for adopted on charts?

A

dotted lines

19
Q

What’s the divorce symbol on charts?

A

double cross line

20
Q

What’s the death symbol on charts?

A

X out

21
Q

What’s Hall v. Vallandingham about?

Facts?

Issue?

Holding?

Rationale?

What kind of theory of adoption does this represent?

Is this the rule in CA?

A

Adopted children

Four children appeal from a judgment wherein it was determined they were not entitled to inherit from their natural uncle, by taking the share their deceased father would have received intestate, due to the fact they were adopted by the man their mother married after their father’s death.

Did the trial court err in denying the appellants the rights to inherit through their natural paternal uncle, due to the fact appellants were adopted as minors by their stepfather after the death of their natural father?

No

In Maryland statute, adoption severs inheritance from natural parents

transplantation theory of adoption

No

22
Q

What is the argue for transplation theory of adoption?

Response?

A

Would provide more benefits to adopted children than to biological children (more parents)

Why is that a policy problem? More people that love them

23
Q

What are the two requirements of 6451, i.e. for adoption not severing inheritance from natural parents?

A
  1. the natural parent and the adopted person lived together as parent and child
  2. adoption was by the spouse of either of the natural parents (deceased or not)
24
Q

Who takes intestate, if H1 dies?

What statute?

A

C1, C2, C3; since all issue, and C3 wasn’t severed

6451

25
Q

What is the difficult part of 6451?

When do we care about it?

When may a natural parent (or his/her relatives) still take?

Problems? Solution?

A

(b)

when the adopted child dies

when the adoption is by the spouse or surviving spouse of that natural parent

Maybe the natural parent is still friendly, and not bad; don’t die intestate

26
Q

Who takes if adopted child (C2) dies?

What statute?

A

W, H2, but not H1 (or his parents or issue);

6451

27
Q

What about 6451 (b) siblings, i.e., Brady Bunch siblings?

A

Has to be an adoptive whole-blood relative; so brady bunch siblings would take after death of their once naturally half-blood siblings, provided they were all adopted

28
Q

But suppose D bequeaths a fund in trust “for my wife for life, then to my descendants then living per stirpes.” After D’s death, his son, A, dies, leaving a wife and a minor child, B. A’s wife remarries, and her second husband adopts the minor child B. D’s wife then dies. Is B entitled to share in D’s trust fund?

Statute?

A

Yes

6451(a)

29
Q

Is domestic partnership irrelevant now that we have same sex marriage?

A

No; people are grandfathered in or can still choose it

30
Q

What’s CA’s statute to avoid problems in simultaneous death?

A

6403

31
Q
A

D: (1/2)(1/3)(1/3)

F: (1/4)(1/3)(1/3)

G: (1/8)(1/6)(1/6)

H: (1/8)(1/6)(1/6)

I: nothing

32
Q

How much to give if decedent only leaves 1 maternal first cousin and 2 paternal first cousins? How much to each?

What statute?

A

all same degree of kinship, so 1/3

6402(b)

33
Q
A

Get it?

34
Q
A

Get it?

35
Q
A

Get it?

36
Q
A

Get it?

37
Q
A

Get it?

38
Q

Decedent survived by mother, sister, and two nephews from deceased brother.

Who takes?

What amount?

A

Mother

all of it

39
Q

Decedent survived by maternal first cousin, and two paternal first cousin.

Who takes?

What amount?

A

All three

in thirds; equal degree of kinship takes same amount

6402(d)

40
Q

Decedent survived by A (mother’s second cousin) and B (grandmother’s first cousin).

Who takes?

What amount?

A

B, because B has degree 5 instead of degree 6 in table of consanguinity

all of it

41
Q

Who takes between great-great grandparents and great uncles/aunts?

Statute?

A

great uncle/aunts

6402(f)

Wills and Trusts (15 decks)

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