Wills Flashcards
When do the rules of intestacy apply?
no will
will fails
will does not dispose of all probatable property
will specifies intestate distribution
what is the surviving spousal share
-all states, surviving spouse takes the entire intestate estate if no descendants survive and, in most states, one-half or one-third of the estate if descendants survive
examples of nonprobatable assets
life insurance
joint tenancies or tenancies by the entirety
pay upon death designations
inter vivos trusts
bank account trusts
deeds
contracts
gifts causa mortis
Spousal Share under common law
Dower = 1/3 of a life estate in all property her husband owned during the marriage
curtesy = life estate in all of wife’s real property if a child was born to the marriage
spousal share under modern law
state law specific
- spouse + descendants = spouse gets 1/3 or 1/2 of estate (sometimes also includes a specified dollar amount)
- UPC spouse + descendants all of whom are children of the marriage = spouse gets all
if all the children survive, the children take in _____ shares
equal
classic per stirpes
- divides into shares
at the child generation even if no child survives the intestate. - if a child has died, that child’s portion is split evenly between the Child’s children
per capata with representation
the property is divided into equal
shares at the first generational level at which there are living takers.
Each living person at that level takes a share, and the share of each
deceased person at that level passes to their issue by right of representation.
If all children are deceased and all property is going to the grand-
children, each grandchild takes an equal share rather than the share
(or part of the share) the parent would have taken had the parent
survived.
Per Capita at Each Generational Level
make the initial division of
shares at the first generational level at which there are living takers,
but the shares of deceased persons at that level are combined and
then divided equally among the takers at the next generational level.
Persons in the same degree of kinship to the decedent always take
equal shares.
order of intestate succession
- spouse/descendants
- parents
- descendants of parents (siblings or their descendants)
- Grandparents (or descendants)
- nearest kin
- the state
how are adopted children treated?
the same as biological children
do step children and foster children have inheritance rights?
no (unless adopted)
when do nonmarital children inherit from their mother?
always
when do nonmarital children inherit from their father?
1) the father married the mother after the child;s birth
2) the man was adjudicated to be the father in a paternity suit
3) after his death and during probate proceedings, the man in proved by clear and convincing evidence to be the father.
does the law discriminate between whole and half siblings?
no
when can a posthumous child inherit?
most states allow a posthumous child to inherit when the child is in gestation at the time of death.
some states allow any child born during a specified time period after death to inherit
effect of a disinheritance clause at common law
provision expressly disinheriting an heir is ineffective as to any property passing by intestacy (the will must properly dispose of everything inorder to disinherit)
effect of disinheritance under the UPC and some other states
testator may exclude an individual from inheriting with a negative will provision. share will pass as though the disinherited individual has disclaimed
Under UPC a life time gift is considered not to be an advancement unless:
- declared as such in a contemporaneous writing by the donor OR
- acknowledged as such in a writing by the heir
Hotchpot
add the advancement back into the estate for purposes of calculating shares and then subtract the advancement form the reciepient’s share
Under the simultaneous death act, how long must an individual survive to inherit?
120 hours (an individual in a joint accident must survive the other individual by 120 hours in order to take
what is the Uniform Simultaneous Death Act?
when disposition of property (by will, intestacy, joint tenancy, etc.) depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if they had survived the other.
when does the USDA not apply?
if there is evidence that one person outlived another, even just by a sort period of time
How to disclaim
- writing
- signed by the dis-claimant
- acknowledged before a notary
- filed with the appropriate court
- within 9 months of death