Wills Flashcards
Survival Rule does not apply to. . . (TN)
life insurance proceeds and joint tenancy situations
TN intestate Succession
Spouse only = 100%
Spouse + 1 kid = 1/2 and 1/2
Spouse + 2+ kids = spouse gets 1/3 and remaining 2/3 split between kids.
English (strict) per stirpes
vertical equality; divide at the first level regardless of survivors
Modern Per Stirpes (TN)
Divide at the first level where there is a survivor
Per Capita at each generation
horizontal equality; divide at first level where there is a survivor and aggregate and re-divide at each subsequent level
Intestacy: Surviving Parent - TN
if no spouse or children, parents take equally
Intestacy: Surviving Siblings - TN
(b) The part of the intestate estate not passing to the surviving spouse under subsection (a) or the entire intestate estate if there is no surviving spouse, passes as follows:
(3) If there is no surviving issue or parent, to the brothers and sisters and the issue of each deceased brother and sister by representation; if there is no surviving brother or sister, the issue of brothers and sisters take by representation; or
Intestacy: Adopted Children: Step-Children - TN
Tenn. Code § 31-2-105. Parent and child relationship.
(1) An adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent.
Intestacy: Adopted Children - General Rules
- Adopted children inherit from and through their adopted parents and adopted parents inherit from and through their adopted children.
- Adopted children do not inherit from or through their natural parents and natural parents do not inherit from or through their adopted children.
Does TN recognize Equitable (Virtual) Adoption?
No
Advancement - TN
Gift given prior to death counts as advancement if it is in writing
Advancement: Advancee Predeceases Intestate - TN
If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent’s intestate estate, unless the decedent’s contemporaneous writing provides otherwise.
Who does advancement apply to in TN?
only children of the decedent
Negative Disinheritance - Majority and TN
A testator may disinherit an heir only by giving his property to others, and mere words excluding the heir, without an affirmative disposition to another, do not disinherit.
Mental Capacity 4 part test
Test: To be competent to make a will, the testator must be capable of knowing and understanding in a general way
(1) the nature and extent of his or her property;
(2) the natural objects of his or her bounty;
(3) the disposition that he or she is making of that property; and
(4) must be capable of relating these elements to one another and forming an orderly desire regarding the disposition of his or her property.
Burden: The burden of proving incapacity rests on the person challenging the validity of the will.
How old to execute a will?
18
When do you have a right to a jury in probate proceedings?
When a testator dies, the executor of the estate has a duty to institute legal proceedings to probate the will. Thereafter, any person who claims an interest in the testator’s estate has a right to contest the validity of the will and to demand a jury trial on disputed questions of fact.
Insane Delusion
a person who has sufficient mental capacity generally but is suffering from an insane delusion that has infected all or part of the will
Lucid Interval
a person who has lacks sufficient mental capacity generally but at the time of execution has a lucid interval thus rendering him or her competent
Insane Delusion: Definition; Test (Minority (TN)
Definition: A false conception of reality
Minority (TN): if there is any evidence to support the testator’s delusion, it is not insane
Who has standing to contest a will?
someone who take under the laws of intestate if the will is invalidated or who would take under a prior will if the challenged will is invalidated.
What is ademption?
where there is a specific bequest, but the specific bequest is no longer part of the decedent’s estate and the beneficiary receives nothing.
What kinds of gifts does ademption apply/no apply to?
applies to: specific bequests
does not apply to: general or demonstrative legacies
What is satisfaction?
where a gift devised to a beneficiary in a will is given to the beneficiary during the decedent’s lifetime.
When does satisfaction occur?
only where there is DIRECT EVIDENCE that this was the testator’s intent that the gift satisfy the testamentary bequest.
Who has burden of proving satisfaction occurred? What must they prove?
the party asserting it must prove the testator’s intent was that the lifetime gift satisfied the bequest
TN Abatement
if the funds in an estate are insufficient to pay off debts and give all testamentary bequests, abatement requires the following order when using the estate to pay debts:
- Residuary estate
- general bequests
- specific bequests
(also personal property should abate before real property)
Exoneration
a beneficiary receiving a piece of property with an encumbrance on it is entitled to have the estate pay off the encumbrance.
