Wills Flashcards
Intestate Succession
Society then developed a fixed set of rules which dictate where a deceased’s property goes upon death based on degree of relationship, sex, age, etc.
Wills
Society allowed a person during life to determine where property was to pass upon death. There is no constitutional right to exercise dead hand control.
Probate Avoidance Techniques/Will Substitutes
Some property will pass outside of the probate process, for example, because of an inter vivos trust, survivorship rights, or other contractual rights. When you distribute a decedent’s estate, you must first distribute these items according to their terms before distributing the rest under intestacy or under a will.
–> always look for this first when deciding how to divide estate
Will substitutes include ____
life insurance, joint tenancies or tenancies by entirety, inter vivos trusts, bank account trusts, deeds, contracts, and inter vivos gifts, including gifts causa mortis.
Will substitutes may enable individuals to
____
avoid taxes and eliminate the cost and inconvenience of probate.
Property governed by a probate avoidance technique does not pass through probate and thus is not governed by the testator’s will or by intestacy. These assets must be _____
removed from the decedent’s estate before distributing property under a will
or via intestacy.
INTER VIVOS OUTRIGHT GIFTS
If the decedent has already given the property away, it obviously will not pass under the decedent’s will or by intestacy.
INTER VIVOS “LIVING” TRUSTS
Property the decedent has already transferred into an inter vivos trust will not pass through the decedent’s estate. Instead, it passes under the terms of the trust.
Future interests, such as a remainder or executory interest, pass to ____
the named beneficiary (out of probate)
TIC: The decedent’s share passes via _____
JT: The decedent’s share passes ____
decedent’s will or under intestacy. There are no survivorship rights; thus probate is not avoided.
to the surviving joint tenant and not via intestacy or under the decedent’s will.
Life insurance is the most widely used will substitute. It is a contract, and the disposition of the policy’s proceeds is governed by ____
the terms of the contract.
A Totten trust is a _____. The ____ retains complete control over the account during their lifetime, and the transfer is complete only upon their death. Totten trusts are ____; they are not true trusts.
deposit of money in a bank account in “trust” for another person
depositor; accounts
A bank account deposit in the name of two or more persons “with right of survivorship” is generally effective to ____
give the survivor the absolute right to all of the money.
Under the UPC, creditors can reach the money in a joint account, to the extent that ______, if the other estate assets
are insufficient to satisfy their claims.
Even at common law, creditors can reach the joint account if _____.
the decedent deposited money in the account
it was opened for the decedent’s convenience and no survivorship feature was intended
-> In many states, evidence is admissible to show that the joint account was set up merely as a convenience for paying the depositor’s bills, and no gift to the survivor was intended.
Bank accounts and corporate securities may be held in ____ form, so the property passes to the designated person upon the owner’s death.
“payable on death”
A deed deposited in ____, with delivery conditioned upon the grantor’s death, may be a valid nontestamentary transfer.
Similarly, if a deed, which by its terms is _____, a court may sustain the
transfer as nontestamentary by construing the deed as a present transfer of a future interest, subject to a life estate in the grantor.
escrow
effective only upon the grantor’s death,
has actually been delivered to the grantee
Property may pass by intestate succession when:
- A decedent dies without having made a will or their will is denied probate (“total intestacy”)
- A decedent’s will does not dispose of all of the decedent’s property, either because a gift has failed or because the will contains no residuary clause (“partial intestacy”)
Under intestate succession (also called descent and distribution), property remaining after ____ passes to the intestate’s heirs (also called distributees).
the intestate’s debts and taxes are paid
The intestate distribution scheme cannot be altered to fit ____ regardless of evidence that shows the decedent would not have wanted their property to pass the way intestacy provides.
the decedent’s intent
Who owns the property if the decedent was married at the time of death?
We use the law of the domicile (the common law marital property system or the community property marital property system) at the time the property was acquired. The marital rights do not change as the couple moves from one state to another.
Which state’s intestacy law applies?
For personal property = we use the law of the decedent’s domicile at death.
For real property = we use the law of the situs of the property.
INTESTATE SHARE OF SURVIVING SPOUSE - Common Law (OLD RULE)
At common law, the surviving spouse was not an heir. A widow received dower, which is a life estate in one-third of the real property her husband owned during marriage, regardless of whether the property was still owned by her husband at the time of his death. A widower received curtesy, which was a life estate in all of his wife’s real property provided a child was born to the marriage
INTESTATE SHARE OF SURVIVING SPOUSE - General MODERN LAW
Under modern law, the spouse is an heir. Dower and curtesy have been eliminated or greatly altered. The share of the surviving spouse depends on factors such as the number of children and whether the surviving spouse is the other parent of the deceased spouse’s children.
INTESTATE SHARE OF SURVIVING SPOUSE - Modern (non-UPC) law where descendants also Survive
- In most states, if the decedent leaves descendants as well as a surviving spouse, the spouse takes one-third or one-half of the estate.
- Some states give the surviving spouse a specific dollar amount plus one-third or one-half of the estate