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31 Cards in this Set
- Front
- Back
Estates and Trusts
Requirements for Wills |
* Testator must be 18 or older
* Signed by Testator at END * Will must have some operative effect * Testamentary capacity mental capacity |
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Estates and Trusts
Revocation of Will in PA |
Revocation by Physical Act
Revocation by Inconsistency Revocation by Divorce Interlineations Dependent Relative Revocation |
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Estates and Trusts
Requirement for revocation of Will by Physical Act |
Intent to Revoke and Requisite Physical Act
PA - can revoke by physical act partially or fully PA - Presumption: crumpled = revoked unfound at death = revoked |
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Estates and Trusts
Revocation of Will by Divoce |
General Rule: Divorce revokes all provisions in favor of ex-spouses - construe as if ex-spouse was dead, unless will shows was intended to survive the divorce
Remarry = not revoked |
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Estates and Trusts
Revocation of Will by Interlineation |
Changes made to will after execution ONLY EFFECTIVE if will is re-executed or republished by codicil.
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Estates and Trusts
Revocation of Will by Dependent Relative Revocation |
The court can disregard revocation if it concludes that "but for" testator's mistake of law or fact that would have never made the revocation
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Estates and Trusts
Revival of Will |
Common Law = Will 2 revokes will 1 and then Will 2 revoked by physical act then will 1 can be revived by court.
PA = If Will 2 is revoked Will 1 cannot be revived. |
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Estates and Trusts
Incorporation by Reference |
Allows incorporation of extrinsic document into Will if:
* The writing is in existence at the time will was executed * Will must manifest intent to incorporate docment; * Will must describe the writing sufficiently to permit its identification PA = writing signed will be considered a codicil. |
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Estates and Trusts
Doctrine of Independent Legal Significance |
Acts having independent lifetime motive may change bequest after execution
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Estates and Trusts
Lapse |
When a beneficiary named in the will dies before the testator the gift lapses and passes as part of the residuary estate.
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Estates and Trusts
PA Anti Lapse Statute |
A devise may be saved by the antilapse statute if devise is to:
* T's decedent * T's sibling or * A niece or nephew with issue that survives T Passes according to statute not T's will |
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Estates and Trusts
Abatement |
If T is partially insolvent some gifts will be eliminated or reduced
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Estates and Trusts
Order of Abatement |
Intestate Property
Residuary Bequest General Bequest Demonstrative Legacies Specific Bequests |
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Estates and Trusts
Ademption |
Prior to T's death, property specifically devised in a will is sold or destroyed.
C/L = T intent irrelevant & beneficiary takes nothing PA Exceptions: -Incompetence of Testator -Incomplete Sale -Condemnation Award -Fire/Casualty Insurance Proceeds |
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Estates and Trusts
Encumbrances on Specific Devises |
PA = A specific devisee is NOT entitled to have the encumbrance paid out of the residuary estate unless the will shows a specific intent to have the encumbrance paid.
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Estates and Trusts
Rule for Latent and Patent Ambiguities |
Extrinsic evidence is admissible to clear up either latent or patent ambiguities
In absence of clarifying evidence, the gift will fail. |
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Estates and Trusts
Mistake |
CANNOT use extrinsic evidence to correct a mistake.
Plain meaning rule says that plain meaning of a will CANNOT be disturbed. |
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Estates and Trusts
Intestate Decedent Survived by Spouse share: |
Spouse + No Issue + No Parent = ALL
Spouse + parent + No issue = First $30K + 1/2 of remainder Spouse + issue: All issue same parent = 30K + 1/2 remaining Not all issue same parent = 1/2 of estate |
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Estates and Trusts
Order of Distribution of Remaining Estate |
Decedent's Issue
Decedent's Parents Decedent's Parents Issue (siblings nieces & newphews) If No surviving issue - to parents If parents deceased = |
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Estates and Trusts
Method of Distribution of Decedent's Estate |
All living heirs of same degree = Per capita - divided equally
All hiers of not same degree = per stirpes (take by representation) 1 share for each line. |
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Estates and Trusts
Survival Statute |
To inherit an heir must survive intestate individual for 120 hours (5 days)
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Estates and Trusts
Advancement (Intestacy) |
PA
No gift is an advancement unless: 1) Declared an advancement in a contemporaneous writing by decedent; or 2) Acknowledged as such in writing by heir. |
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Estates and Trusts
Satisfaction (WILL) |
A lifetime is not prepayment of any interest under a will unless:
* the will provides for this treatment * the testator declares the contemporaneous writing that gift was to be deducted or * The devisee acknowledges in writing that the gift is satisfaction. |
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Estates and Trusts
Share of Pretermitted Children (Child born after will executed) |
Takes intestate share unless:
* it appears from the will that the omission was intentional or * Entire etate was left to wife and she survives or * the will is re-executed or republished. |
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Estates and Trusts
Lack of Capacity Test |
DID T:
Understand the nature of the act? Know the nature and character of his property Know the natural objects of his bounty; Understand the disposition he wished to make? |
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Estates and Trusts
Undue Influence Test |
1) Confidential relationship b/w testator & beneficiary;
2) Beneficiary participated in significant activity relating to execution; 3) Will unnaturally favors that benefit. Burden then shifts to proponent to prove not induced by his undue influence Burden on contestant to prove: 1) existence and exertion of influence; 2) the effect of which was overpower the mind and will of the testator; 3) resulting in the execution of a will that expressed the will of someone other than the testator. |
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Estates and Trusts
Nuptial Agreements |
Valid = full & fair disclosure did not violate any contractual rules;
Enforcement = PA treats as comm. contract. No further inquiry into fairness binding whether read or understood Defenses = Fraud Duress - PA physical force not treat to call off wedding. |
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Estates and Trusts
Annulment |
Problem that predates marriage that prevents marriage from coming into being.
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Estates and Trusts
Void Marriages |
BIGAMY
INSANTIY OR SERIOUS MENTAL DISORDER INCEST No annulment needed; not waivable; collateral attack |
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Estates and Trusts
Voidable Marriages |
Too Young
Intoxicated Duress Fraud Incurable Impotence Nee anulment; waivable; No collateral attacks. |
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Estates and Trusts
Jurisdiction for Divorce |
One party must be in the domicile of form
Must have lived in the State for 6mths or longer; Court has jurisiiction over both parties for economic remedies. |