Ch2 S1- Methods Of Estate Transfer At Death

Front 1

to be subject to the probate process:

Back 1

a property interest

or asset must be titled in a manner that does not indicate the identity of the

person or entity that is to receive the asset at the owner’s death.

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will substitute

Back 2

given priority over any contrary provision in the

owner’s will or the state intestacy laws

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residuary clause

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disposes of all property not specifically bequested

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3 objectives of probate

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1) distribute property according to the will

2) pay claims of creditors

3) pay taxes

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augmented estate

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includes not only the decedent’s

probate estate at the time of death, but it also includes assets that the decedent

transferred for less than full and adequate consideration within a certain time

period prior to death

Front 6

If community property is titled in a will

substitute form such as joint tenancy with right of survivorship between one parent

and a child, and there is no pending probate proceeding for the decedent’s other

property, the nontitled surviving spouse can initiate a probate proceeding to assert

his or her interest in the property.

Back 6

true

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spousal elective share or an election

against the will.

Back 7

flat % amount to which the spouse is entitled in a common law state

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homestead allowance statute

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gives a dependent spouse and/or

children either an ownership or an occupancy interest in real property used by

such parties as a personal residence.

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homestead exemption statute

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exempts such property from the claims of creditors

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family allowance statutes

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elective and must be claimed.

payments have priority over distributions to pay debts owed to unsecured

creditors of the estate.

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Pretermitted/Omitted/After Born heir statutes

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address the situation in which the decedent’s will does not mention a child/spouse simply because the decedent had no children/spouse at the time the will was executed. Child/spouse can make election to claim amount they would have received had the spouse died intestate.

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Statutes concerning adopted or illegitimate children

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statutes simply give adopted and

illegitimate children the same rights as those of a biological, legitimate child of

the testator

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disclaimer statute

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disclaimer occurs when a beneficiary of a

decedent does not want to accept assets given to him or her by the decedent.

every state requires the disclaimer to be made in

writing and to be completed within a stated period of time after the decedent’s

death.

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Abatement statutes

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Example is the issue of reducing the shares given in a will when an intestate share is given to an omitted spouse or child. Statute specify which shares are to be reduced first, second, third and so on..Prevents probate courts from having to hold hearing after hearing in case after case.

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Adhered statutes

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When a will gives an identifiable asset to a named individual but the asset is no longer available for distribution at the testators death.

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Tax apportionment statues

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Answers the questions of who pays the death taxes if a child received personal property, and a spouse received real property

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location of probate

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personal property- probated in the state of the decedent domicile(permanent residence)

Real property- probated in the state where the real estate is located

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Ancillary probate

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When a probate proceeding must be conducted in a state other than a decedent state of domicile

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Witnessed will

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Prepared by an attorney and executed in the presence of witnesses

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Holographic will

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Will is written in the will makers handwriting and signed by the will maker. Does not usually require witnesses or notarization.

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Nuncupative will

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Oral will

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Reciprocal will

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Type of mutual will in which each maker names the other as the recipient

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Mutual will

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single or multiple documents executed by two or more parties in which th eparties contract with each other to leave their property in a specified manner

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Introductory clause

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purpose is to:

-identify the maker

-establish the makers domicile

-declare that the document is meant to be the makers will

-revoke any prior wills

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Dispositive clause

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Disposes the decedent property

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tangible personal property memorandum

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Allows the maker to change the beneficiary of low value tangible personal property without having to go to the expense and effort of amending his or her will

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Pourover will

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Pours probate estate assets into a pourover trust

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Per capita

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per head- everyone receives the same amout

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Per stirpes

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By representation

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No contest or in terrorem clause

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Disinherits close family

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codicil

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Document that amends a will