016 Wills, Estates

Front 1

valid attested will

Back 1

attested=written

The will must contain the signature of 1. the testator and 2. two witnesses.

The witnesses must either 1.
see the testator sign the will,
OR
2. testator must acknowledge to the witnesses that the signature on the will is his

Ws must sign:
1. in the presence of one another
AND
2.in the presence of the testator.

Front 2

holographic will

Back 2

holographic=T's handwriting which must be proved by 2 witnesses.
-can revoke explicitly revoke previous wills
-otherwise, it changes only inconsistent provisions

A holographic will requires that the material provisions are written in the testator's handwriting, and the testator must sign the will.

It may revoke previous wills, but UNLESS it states this specifically,

it only revokes the portions of previous wills that are inconsistent with it.

Front 3

nucupative will

Back 3

oral will to 2 DISINTERESTED Ws
-in imminent peril of death
-testator must actually die
-reduced to writing by one of the Ws within 30 days of declaration.
-submitted to probate within 6 months of death.
-can only dispose of PERSONAL property up to $1000($10,000 for active military in time of war
-cannot REVOKE or CHANGE an existing will.

A nuncupative will is a will made orally and later written down by a witness. There must be two witnesses to the statement and it must be reduced to writing within 30 days. TIle testator must be imminent peril of death at the time the will is made, and he must in fact, die from that peril. Such a will may not revoke a prior written will and cannot dispose of real property or personal property exceeding $1,000 in value.

Front 4

Mutual Wills

Back 4

Not treated as a K .
-can be revoked at any time

UNLESS
1. will contains terms of the K
OR
expressly refers to the contract
AND
2. there is evidence that a K exists.
----
Not treated as a K, unless the wills contain the terms of the contract, or expressly refer to a contract, and there is evidence that a contract exists. Absent a contract, a mutual will can be revoked at any time.

Front 5

Incorporation by reference

Back 5

When will refers to a writing outside the will, it can still be incorporated if:
1. writing existed at time of the will
2. no question as to whther the document should be incorporated
3. unambiguous intention to incorporate

Front 6

Testamentary Capacity

Back 6

-must be 18 or older
T must understand:
1. nature and effect of making the will
2. nature and extent of his property
3. knowledge of the natural objects of his bounty

-measured at the time the will was made and NOT generally
----

Testamentary capacity requires that the testator be at least 18 years old, understand the nature of the act of making the will, the nature and extent of his property, and the names and kinship of the persons who are the natural objects ofhis bounty.
-

Front 7

Undue Influence

Back 7

found where the will of another is substituted for the testator.

Undue influence may be found where the will of another is substituted for that of the testator.

Generally, in Tennessee, it is presumed that undue influence was exerted when a confidential relationship is formed, and the beneficiary was active in procuring the will.

Person having the relationship has the burden of overcoming it.

Front 8

Undue Influence--confidential relationships

Back 8

-question of fact.
1, guardian or conservator-ward
2. physician or nurse-patient
3. spiritual advisor-layman
4. paramours
5. attorney-client (unethical)

Front 9

Undue influence--other suspicious circs

Back 9

in addition to a confidential relationship,

1. T's advances age, physical or mental deterioration, or emotional distress
2. beneficiary's involvement in procuring will
3. secrecy concerning the will
4. lack of independent advice
5. unjust/unnatural terms
6. differences b/t the will and T's announced intentions

Front 10

Fraud

Back 10

1. knowing misrepresentaton
2. for the purpose of inducing the testator to write will in a particular way
3. testator relied on the misrep.

Front 11

effect of fraud/undue influence

Back 11

if shown and it extends to whole will or the other provisions of the will are inseparable from the affected provisions, the entire will is invalid.

-even if only committed by the one beneficiary.

if it extends only to a separate part of the will, only that part is invalidated.

Front 12

irrevocable wills

Back 12

if a K to make or not revoke a will is proven, then remedy is breach of K action against the estate or other appropriate defendant.

--will still gets probated

Front 13

When must a spouse file a notice of election to take elective
share?

Back 13

Within 9 months of death or six months after the appointment of a personal representative, whichever is later.

Spouse may withdraw demand for elective share at any time before entry of a final determination of court.

Front 14

Are absolute restraints on marriage in a will valid?

Back 14

No. However, restraints limited in time and scope will likely be deemed reasonable by the court.

Front 15

What is the amount a wife is entitled to by taking elective
share?

Back 15

"1, 2, 3, 4; 3, 6, 9 or more"


It depends upon the length of the marriage, 3 years or less =10%, three to six years = 20%, six to nine years = 30%, and nine years or more = 40%.

Front 16

What does a surviving spouse take by intestate succession?

Back 16

The greater of a share equal to that of each of the intestate's surviving children or one third of the net estate.

Front 17

What does a person who is named in a will and witness to the will take?

Back 17

A Witness who is necessary to the probate ofthe will cannot take more then her intestate share.

Front 18

How does a nonmarital child inherit from a natural father in Tennessee?

Back 18

If
(1) the parents participated in a marriage ceremony before or after the birth ofthe child;
(2) paternity is established by adjudication
- before or after the death of the father;
or
(3) patemity is established after the death of the father by clear and convincing proof.

Front 19

class gift (rationale)

Back 19

If a will makes a gift to a class of persons (e.g., "children," "brothers and sisters," etc.) and a class member dies during the testator's lifetime, those class members who survive the testator take the gift (absent a contrary will provision).

[The rationale for the class gift rule is that the testator did not want anyone other than members of the designated class to share in the gift. Another explanation for the rule is that the will is read and the takers are determined as of the testator's death, and only those who meet the class description at that time share in the gift.]

Front 20

What is the pretermitted child statute and what is theeffect?

Back 20

Under Tennessee's statute, the pretermitted child will not take a share if:
(i) It appears from the will that the omission was intentional',
or
(ii) The testator provided for the omitted child by a transfer outside of the will with the intent that it was in lieu ofa testamentary gift.

Front 21

120-hour rule

Back 21

A person must survive the decedent by 120 hours in order to take as an intestate heir or a wi11 beneficiary (absent a contrary will provision).

Front 22

Probate

Back 22

purpose is to determine the validity of a will

Front 23

2 undated wills

Back 23

probate court determines which will reflects final intent of he testator

-extrinsic evidence is admissible
-once determined, the later will revokes the earlier will to the extent of inconsistent provisions.

Front 24

Spendthrift Trust

Back 24

Tn recognizes a spendthrift trust in a probated without necessity of recording a deed.

Front 25

Specific Bequest

Back 25

A specific bequest is adeemed if the testator has disposed of the property, but if the T has reacquired the property and owns it as of death, the gift is good and ademption does not occur.

Front 26

restriction to remarriage

Back 26

recognized, but wife can still claim elective share.

Front 27

Steps to probate

Back 27

1. file a petition in compliance with rules of court with probate jurisdiction.
2. bond is required unless will excuses it or administrator is a beneficiary with leave of court
3. proper notice to creditors dispute any claims timely
4. file a tn inheritance tax return unless he is released by the TN department of revenue
5. file an inventory
6. notify each residuary distributee
7. marshall the assets
8.

Front 28

Revocation

Back 28

will can modified and revoked until death

--look for incorporation

-any physical act i.e. ripping, burning, crossing through material provision with the INTENT to revoke.

Front 29

Mistake voiding a will

Back 29

Mistake must be evident from the face of the will
AND
the fact that the T would have made a different will, but for the mistake, is also evident from the face of the will.

Front 30

elective share

Back 30

Net Estate=all assets-secured debts, award of exempt property, homestead allowance and 1 year support, funeral and administration expenses.

Exempt property includes certain tangible personal property and autos up to $50k in value homestead allowance up to $5k

Front 31

Constructive trust

Back 31

can be imposed to create an equitable interest for a beneficiary

Front 32

Revocation by Changed Circumstances

Back 32

Marriage + birth of a child
Pretermitted Child Statute
Divorce of testator will revoke provisions made for foermer spouse

Front 33

Uniform Simultaneous Death Act:

each deemed to have survived with respect to his own property (insured deemed to have survived beneficiary)

Back 33

in TN, individual who fails to survive the decedent by 120 hours deemed to have predeceased decedent for purposes of homestead, years support, exempt property, elective share, and intestate succession

Front 34

Lapsed Legacy Statute

Back 34

when a devisee or legatee predeceases testator leaving issue surviving testator, the issue will take, per stirpes, in absence of a contrary provision in will

Front 35

Residue of Decedent's Testamentary Estate (or residue of a revocable trust that becomes irrevocable at death) devised to two or more persons...

Back 35

the share of teh residuary devisee that fails for any reason passes to the other(s) unless provision to the contrary

Front 36

Types of Legacies in TN:

Back 36

1. General--no specification as to chattel or fund
2. Specific--particular item
3. Demonstrative--limited to payment out of a designated fund or asset (payable out of general fund if particular fund no longer exists or is insufficient)

Front 37

ADEMPTION: an act which nullifies a specific legacy or makes it inoperative

T.C.A. 32-3-111

Back 37

Disposed of and no contrary intent made manifest, legatee entitled to take:
1. any balance of pp together with any S.I. owing from purchaser to testator at death
2. any amount of a condemnation award
3. any proceeds unpaid at death on fire or casualty insurance
4. property owned by testator at death and acquired a a result of foreclosure or in lieu of foreclosure

Front 38

Antenuptial and Postnuptial Agreements as to rights of inheitance are enforceable in TN

Back 38

person seeking enforcement must show that other party had full disclosure/ knowledge of that party's assets

Front 39

Intestate Succession (TN Statute)

Back 39

1. SS takes all if no issue
2. SS takes a child's share if issue survive teh decedent, but never less than 1/3 of "entire intestate estate" (**alternatively, elective share available)
3. whatever does NOT go to SS goes to:
4. Issue, equally if all of the same degree OR per stirpes if not
5. If no issue, parent or parents equally OR brothers and sisters equally if no parents (and to their issue, per stirpes if pre-deceased) OR grandparents/ their issue and LASTLY to State of TN

Front 40

Family Allowances

Back 40

Basic Homestead Exemption in TN is $5k ($7500 for joint owners)

Front 41

SUMMARY AS TO SS who takes by intestacy or elective share:

Back 41

1. certain specified exempt property having a fmv above indebtedness not to exceed 50k (tangible pp in residence and vehicles)
2. year's support
3. homestead
4. her share as otherwise determiend

Front 42

VESTING

Back 42

Real Property = immediate
Personalty = in personal rep for payment of expenses, debts and taxes prior to distribution to heirs

Front 43

Recovery from WD action is free from claims of creditors of estate

Back 43

Recovery from PI action is an asset of the estate

Front 44

special rules for TennCare

Back 44

notice to TennCare of death of anyone 55 or older

Front 45

Creditor's rights come ahead of amt left to spouse under will

Back 45

get around this by taking elective share, which entitles spouse to certain exempt property, a year's support and the elective share amt, all of which come before claims of a general creditor

Front 46

absent a POA, spouse has no legal right to take possession of or spend spouse's separate assets upon his disability

Back 46

his estate will have a right to recover (constructive trust theory)

Front 47

Net Estate =

Back 47

all personal and real property subject to disposition under will, less secured debts to extent of the security, funeral and admin expenses

Front 48

elective share, exempt property, homestead allowance and year's support exempt from creditors

Back 48

except secured creditors, to extent of security

Front 49

simultaneous death: each deemed to have precedeased the other for purposes of estate distribution

Back 49

similarly, per 120-hour rule, if not established by c&c to have survived other by 120 hours, deemed to have predeceased for purposes of intestate succession, elective share, homestead allowance, exempt prop and year's support

Front 50

undue influence consists of the substitution of another's will for that of the testator

Back 50

influence gained by attention and kindness, or fair persuasion, is not undue

*must show suspicious circumstances (confidential relationship between beneficiary and testator, advanced age/ failing health, ben's role in procuring will, secrecy, lack of independent advice)