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92 Cards in this Set
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Wills Opening topic: Probate court |
The probate court is a court that 1. judicially determines 2. whether decedent left a valid will 3. or died intestate (without a will) 4. appoints a personal representative *executor : named in will * administrator: appointed by court 5. who will administer the decedents estate and issue 6. letters testimentary (if executor) or letters of admin. (if administrator |
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Personal representative duties |
Take -Give-Pay-Disburse (TGPD) "thank god p.diddy"
T: take possession and control of estates assets G: give creditors notice / pay creditors claims P: pay relevant taxes and D: disburse the estate to benficiaries and heirs |
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Personal Rep must not be: |
Under 18 incapacitated Felon resident corp not authorized to act unsuitable |
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The probate estate does not inlcude: |
non probate transfers because non probate transfers are interests that pass AUTOMATICALLY by 1. rt of survivorship 2. terms of contract or 3. Intervivos trusts (trust set up during T's lifetime) |
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WILLS : - PERSON WHO EXECUTES - CLAUSE DIRECTING LAND
-PEOPLE WHO TAKE UNDER THE WILL - PERSONAL REPRASENTATIVE |
T- TESTATOR D- DIVISE
B - BENEFICIARIES , LEGATEES (PERSONAL PROP) OR DEVISEES (TAKING LAND) E- EXECUTOR |
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INTESTATE SUCCESSION : - PERSON WHO DIES WITHOUT A WILL - PEOPLE WHO ARE ENTITLED TO PROPERTY - PERSONAL REPRESENTATIVE |
I - INTESTATE H - HEIRS : (ISSUE AND DECENDENTS) A- ADMINISTRATOR |
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WILLS: WHAT IS A CODICIL |
A CODICIL AMENDS ALTERS OR MODIFIES A PREVIOUSLY EXECUTED WILL. MUST BE EXECUTED WITH ALL FORMALITIES |
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INSTESTATE SUCCESSION : DEFINITION |
INTESTATE SUCCESSION IS THE (I) STATUTORY METHOD OF DISTRIBUTING ASSETS THAT ARE (II) NOT DISPOSED OF BY WILL |
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INTESTATE SUCCESSION APPLIES : WHEN |
1. DECEDENT DIES W/OUT WILL 2. HAS MADE INVALID WILL 3. MADE A VALID WILL BUT DIDN'T INCLUDE ALL PROP. 4. MADE A VALID WILL THAT SPECIFIES FOR I.S. 5. LEAVES A PRE-TERMITTED CHILD |
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INTESTATE SHARE OF SURVIVING SPOUSE |
SPOUSE AND DESCENDENTS (ISSUE) (aka lineal heirs children/grandchildren) SURVIVE :
- Surviving spouse take 1/2 of net estate - issue takes 1/2 |
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INTESTATE SHARE OF SURVIVING SPOUSE :
EXCEPTION: FOR SUBSEQUENT CHILDLESS SPOUSE WHO HAS HAD NO CHILDREN WITH DECEDENT BUT DESCEDANT HAS CHILDREN FROM PREVIOUS SPOUSE spouse shall take: |
real property : 1/4 of FMV personal property: 1/2 |
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INTESTATE SHARE OF SURVIVING SPOUSE :
WHERE SPOUSE AND PARENTS BUT NO ISSUE/DESCENDANTS SURVIVE
spouse shall take: parent/s shall take: |
spouse: net estate: 3/4
parent/s : net estate: 1/4
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INTESTATE SHARE OF SURVIVING SPOUSE:
NO PARENTS OR DECENDENTS
Spouse shall take:
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ENTIRE NET ESTATE |
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INTESTATE SHARE OF SURVIVING SPOUSE:
DISQUALIFICATION |
Indiana's "fault based disqualification" applies where
1. spouse is deemed to be living in adultry or 2. has abandoned the decedent w/out just cause |
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INTESTATE SHARE OF CHILDREN WHERE NO SPOUSE :
children shall take:
"PER CAPITA WITH REPRESENTATION" |
RULE: Indiana's intestate statutes direct that an intestate estate be divided among the issue " per capita with representation"
meaning: divide first equally at generational level where there are living takers, and then "with representation" giving one share for each family line. |
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SHARES OF OTHER HEIRS:
IF SPOUSE SURVIVES BUT DESCENDENT HAS NO CHILDREN:
Parents shall take:
spouse shall take: |
only one parent - 1/4
two parents - 1/8
spouse - 3/4 |
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IF SPOUSE and DESCENDANTS DO NOT SURVIVE : BUT Parents, Siblings, and nieces and nephews survive then: |
Parents and siblings SHARE EQUALLY
nieces and nephews: TAKE BY REPRESENTATION
* note: parents must always receive 1/4 if one and 1/8 if both mom and dad |
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Non marital children : RULE for mother and child |
Rule : Non -marital children: if a child is born out of wed lock a parent child relationship exists between
1. natural (m) and child - always in INDIANA
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Non marital children: RULE for Father and child |
If a child is born out of wed lock a parent child relationship exists between (F) and child where 1. (F) married (M) and acknowledge child as his own 2. (F) signs paternity affidavit 3. child over 20 and paternity established during (F)'s lifetime 4. child under 20 where paternity is established w/in 5 mos of (F)'s death 5. death of (F) before child and paternity established w/in 11 mos. |
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Adoption by stangers "_________" all inheritance claims. |
severes |
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exception where adoption of a stepchild |
Rule: when a child is adopted by his stepparent, the parent child relationship between the natural parent who is the spouse - remains intact.
If a stepparent does not adopt his stepchild, there is no parent child relationship |
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Half blood kindred are treated: |
the same as whole blood |
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under a" waiver of intestate share" : |
rule: A decedents spouse or heir may waive her intestate share by a * SIGNED * WRITING
which meets certain disclosure and consideration standards |
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What is the USDA rule |
Uniform Simultaneous Death Act
Rule: When title to property depends on priority of death and there is insufficient evidence that the persons have died other than simultaneously, the property of each person passes as though the person had survived
purpose: to prevent double administration and taxation |
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what is the rational of a disclaimer? |
to avoid creditors and for tax purposes |
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How to effectively disclaim |
a. must be done b4 acceptance of any property b. in writing c. must be delivered to personal reprasentative d. within 9 month of decedents death e. made to any interest (in whole or part) f. may be made by guardian |
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what is the rule if decedents death is caused by Heir or Beneficiary? |
Any heir or beneficiary of another who has been found guilty (or guilty but mentally ill) of the murder, voluntary manslaughter, or causing the suicide of the other is disqualified from taking any property he would otherwise had been entitled to receive. |
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Advancement: Rule |
An advancement is a distribution made by an intestate DURING his life to an heir which can be DEDUCTED from hiers intestate share when intestate dies |
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WILL : Defintion |
A will is (i) an instrument executed with certain formalities (ii) that directs the disposition of property (iii) at death (iv) revokeable during lifetime and operative at death |
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CODCIL : Definition |
(i) a supplement to a will (ii) that alters, amends, (iii) or modifies the will |
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formal Requirements for valid will or codicil |
"love to (CC) irritate pink pythons"
L - legal capacity (T is 18 or older) T - Testamentary capacity ( T of sound mind) I - Intent (to dispose of prop, on death, with the instrument) P- proper execution (signing by T and witnesses) and attestation(2 witnesses) P - publish (declare its his/her will) |
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does Indiana recognize holographic codicils? |
no indiana does NOT recognize holographic codicils (handwritten unattested wills) |
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what constitutes a signature ? |
any mark, anywhere, intended as T's mark is sufficient |
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What is the presence requirement |
Rule: Indiana follows the majority CONSCIOUS PRESENCE RULE: signing in someones 'presence' necessitates only sufficient physical proximity that one is conscious of where they are and what they are doing |
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requirements for the witness |
1. competency - no minimum age 2. no interested witness - an attesting witness can not be benificiary unless a. supernumerary (extra) 3. executor not an interested witness |
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what is an attestation clause?
is it necessary in Indiana? |
its a clause that is part of the will and describes how the will was duly executed and attested by T and witnesses
Not required in Indiana |
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What is a self proving affidavit?
is it necessary in Indiana? |
Is a notarized affidavit which can be signed by T and witness affirming under penalty of perjury how the will was duly executed and attested by T and witness. Its effect is that no witnesses are required to testify at probate
Not required in Indiana |
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why would a video tape be useful |
to prove 1. proper execution 2. testamentary intent 3. T's mental state or capacity any other relevant matters |
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What is a holographic will?
is it recognized in Indiana |
Holographic will:
Handwritten and Signed by T BUT
Indiana does not recognize them* |
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What is a "Nuncupative will" |
Oral will |
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Nuncupative / oral will is only recognized in Indiana if: |
"CAUS-A-MORTIS"
a. "will" was made by testator was in imminent peril of death (and) b. testator DIES of such impending peril |
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in order for a nuncupative will to be valid: |
RULE: 1. (T) MUST ORALLY DECLARE 2. BEFORE 2 DISINTERESTED WITNESSES 3. IT IS REDUCED TO WRITING W/30 DAYS AFTER T'S DECLARATION 4. SUBMITTED TO PROBATE W/IN 6 MOS |
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LIMITS ON NUNCUPATIVE WILLS; (2) |
1. MONETARY LIMIT : 1K 2. AN ORAL WILL CAN REVOKE A PREVIOUS ORAL WILL BUT NOT A WRITTEN WILL |
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CHOICE OF LAW : A WILL IS VALID IN INDIANA IF IT IS EXECUTED IN ACCORDANCE WITH |
1. INDIANA LAW 2.the law of the state where executed 3. the law of the state where testators domicile 4. law of the state of the T's domicile at death |
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revocation of wills (3) ways to revoke! |
1. testamentary writing (another will or codicil) 2. physical act 3. as a matter of law (divorce or annulment) |
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revocation by writing rule |
1. a revocation by writing means a writing executed with all testamentary formalities (another will or codicil) and
2. serves to revoke in WHOLE or IN PART by EXPRESS DECLARATION or IMPLICATION |
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revocation by physical act rule |
1. revocation by physical act means an act of MUTILATION or DESTRUCTION 2.done with INTENT TO REVOKE 3. performed by (T)or (T's) proxy in his presence 4. must touch essential part of the will and 5. serves to revoke whole will |
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what happens to a lost or accidentally destroyed will? |
if lost or accidentally destroyed it may still be probated if the proponents of such missing will can prove 1. valid will execution (with all formalities) 2. the cause of NON- PRODUCTION 3. SUBSTANTIAL PROOF of WILLS CONTENTS |
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can a revoked will be revived: what is the indiana rule? |
In Indiana there is no "automatic" revival of a revoked will. In order to revive it must be:
i. re-executed with all testamentary formalities or
ii. republished by codicil - a subsequent properly executed codicil that expressly indicates an intent to revive |
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effect of revocation of a will vs. codicil |
you should know that when you revoke a will it also revokes all codicils to that will. but if you revoke a codicil it restores earlier testamentary language. |
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DEPENDANT RELATIVE REVOCATION ; RULE |
under DRR: mistake of fact or law as to validity of another dispostion (i) a court may disregard a revocation (ii) if T mutilated or destroyed his will with a present intent to (iii) make a new one immediately and a. new will is not made b. new will is made but fails * in this instant the court presumes that the (T) preferred old will to intestacy |
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What is a REVOCATION by LAW: |
1. means the (T's) divorce or annulement from former spouse 2. serves to revoke all provisions in a will in favor of former spouse's life 3.Divorce or annulement does NOT revoke former spouses life insurance beneficiary status
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incorporation by reference: rule |
in order to incorporate and extrinsic , non-testamentary document by reference need:
1. writing must be in EXISTENCE at time of wills execution AND at T's death 2. Will must show INTENT TO INCORP. and 3. Will must sufficiently IDENTIFY such writing |
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what is needed for a bequeath of tangible personal property ? |
A seperate writing identifying bequest of tangible personal property needs: 1. signed writing 2. that is referred to in the will 3. that disposes of Tangible Personal Prop. not specifically disposed of in the will 4. describes items and beneficiaries with reasonable certainty 5. may be written before or after a will
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what is the rule under the : ACTS of INDEPENDENT SIGNIFIGANCE doctrine |
a will may dispose of property by reference to facts or events independent of the will. Such event can occur before or after wills exection
the event may identify (beneficiaries or property)
ex: T's will states , I leave $100 bucks to each of my frycooks |
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Understanding a POUROVER WILL /TRUST |
a pour-over will associated with a trust is a valid statutory means of estate planning BENEFITS 1. the instrument that creates an inter-vivos trust does not need to be executed with same formalities as a will (ex: no witnesses) 2. a will may direct payments to the trust created during T's lifetime so long a the trust is CLEARLY IDENTIFIED in T's WILL and is in EXISTENCE at T's death 3. Trust may be AMENDED w/out testamentary formalities after the will is executed |
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What is a "JOINT WILL"? |
a joint will is (i) one document that serves as (ii) testamentary plan (iii) for two or more ppl
ex: we, us, our...and more likely to be considered a contract |
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What is a "Reciprocal Will" ? |
A reciprocal will is: (i) two documents (or more) (ii) that reflect a mutual testamentary plan (iii) for two or more ppl |
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How are JOINT and RECIPROCAL wills revoked? |
(1) by only one T (2) however, if the will was made upon a contract not to revoke (3) revocation may give rise to an action for breach of K |
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When a beneficiary dies; issues to consider |
1. anti-lapse statutes 2. elective share
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whats the RULE regarding lapsed gifts and anti-lapse statues |
you cannot make a gift to a dead person. If a beneficiary dies prior to testator, the gift lapses (meaning it fails) |
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Exceptions to Anti- lapse statute |
if predeceasing beneficiary is a. a descendant of T b. has surviving descendants AND c. there is no contrary provision in the will , then the gift passes to the predeceased beneficiary's descendants
Note: only applies to gifts not devise of real prop. |
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class gift : members who survive T take gift |
Rule: if a gift is made to a class and a class memeber pre-deceases the T any surviving class members SPLIT the predeceased class members share |
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what trumps a "class gift" if both are mentioned in a will? |
the ANTI-LAPSE statute, if applicable overrides the class member rule |
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Protection of the surviving spouse:
Elective share of spouse rule: |
A spouse cannot be completely disinherited by the predeceased spouse. By statute, a surviving spouse can elect to take a "fixed amount" against a valid will. (in lieu of taking under decedents will)
Sometimes referred to as a "forced share" |
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in indiana what is the amount "of elective share" that the spouse may take in |
1/2 |
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what if the spouse is a subsequent spouse without children? |
subsequent spouse shall take 1/3 of Net Personal Estate PLUS 1/4 of net FMV of Real PROPERTY |
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what is the effect of election |
When a surviving spouse elects to take against the will, the spouse is deemed to have RENOUNCED all rights to other property of the decedent |
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when must an election be filed? |
spouse must file the election to take against the will no later 3 months after the will is admitted to probate.
plus 30 day extension if theres 1) a will contest, 2) any actions that affects the amount of surviving spouses share |
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formalities of election include |
Elections must be: 1. in writing / signed 2. acknowledged and filed by surviving spouse
waiver of elective share is enforceable if: 1. in writing/ signed and 2. if made prior to marriage or promise to marry |
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PRE-TERMITTED CHILDREN |
Rule: if a child born to or adopted by T after the will is executed , the child may take his INTESTATE SHARE unless it is shown that 1. omission was intentional OR 2. at time will was executed the T had one or more other children known to him to be living and devised substantially all his estate to his surviving spouse |
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FAMILY ALLOWANCE!!!! |
Rule; a surviving spouse (or if none , the decedent's minor children under 18) is entitled to 25K allowance.
If no surviving spouse any of decedents minor children under 18 are entitled to the same , to be divided equally. |
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What is the rule of Ademption : |
When a specific bequest is not in T's estate upon death, the bequest is ADEEMED ( meaning it fails) |
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ADEMPTION does NOT APPLY TO : |
G /D - General or Demonstative Gifts S - specific gifts when change in form not substance SS- Some special instances involving stock and securities O - other statutory exceptions |
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ADEMPTION does not apply to GENERAL , DEMONSTRATIVE, or SPECIFIC gifts |
General : "i give 100 to my daughter dana" - general amount of monetary value
Demonstrative: " I give $200 from sale of granny's ring to my daughter dana - general amt from specific source
Specific: "I give granny's ring to my daugher dana - Identified personal property other than money |
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other statutory exceptions: |
A specific devisee may also take: 1. any unpaid balance of purchase price 2. any unpaid condemnation awards 3. Any unpaid casualty insurance 4. any general legacy
(no intent to adeem) |
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When does abatement arise: |
Abatement arises where the estate can not cover all debts and devises
absent contrary provision in the will , debts and expenses are first |
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What order does an estate abate in? |
1st - Intestate property 2nd - residuary estate 3rd - general legacies 4th - specific devises and bequest |
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How is abatement of : demonstrative legacies? |
Demonstrative legacies are : hybrid
treated as specific devise to extent, named property exists and as general devise to the extent the estate is insufficient |
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Example of abatement of : demonstrative legacy |
Ex: will makes bequst to bertha for 25K to be paid from proceeds of my IBM stock
q: if only 20K of stock exists at T's death
answer: 20K specific devise and 5K general devise |
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when must a will contest be filed? |
3 months from date of the admission of the will to probate, unless P did not file timely due to fraudulent misrepresentation |
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GROUNDS for a will contest: |
1. T was of unsound mind 2. undue execution ( insufficient witnesses) 3. Will was executed under UNDUE INFLUENCE or FRAUD 4. Any other valid Objection to the will or its probate. |
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what is the Effect of a successful will contest |
(i) the will fails either in whole or in part and (ii) failed portion may pass to the residuary clause if a valid one exists (iii) otherwise it goes to intestate
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Will contest: how to attack T's capacity |
Test: ask if T understands 1. value and extent of her property 2. the natural object of her bounty (heirs) 3. the nature of the disposition 4. the relation of these statements to one another in forming a will
(burden of proof on contestants) |
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Will contest: how to attack On Undue Influence Grounds : RULE and Definition of UI |
Rule : UI - T must execute the will freely and voluntarily
UI- compels T to do something she would not otherwise do. courts look for:
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What do courts look for in UI cases |
the look for whether (I EAT PICKLES) I : influence was exerted E : effect of the influence was to over power T's free will AND P : the product of the influence was a will that would not have been written "but for" the influence |
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does circumstantial evidence establish Undue Influence? |
No , the contestants of the will must do more than show "suspicious circumstances"
circumstantial evidence includes opportunity (close relationship with T) suceptibility ( due to old age or illness) Unatural disposition (one child gets disproportionatly more than another) |
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what do you need to show UI? |
There must be a NEXUS between the circumstances and the undue influenc e |
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A presumption of UI arises when: |
C - confidential relatioship exists (between T and a beneficiary exercising the influence) U - theres an UNATURAL disposition in favor of the party that allegedly exercised the UI |
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will contest : Fraud : Rule |
Fraud occurs when there is deception or some other misrepresentation that is designed to distort T's intentions. Fraud may occur a. in the execution (tricked T into signing) OR b. in the inducement (Party lied to T to get her change , make or revoke will) |
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Exceptions to will contests: |
mistake in the execution (due to poor sight) Mistake in the inducement (doesnt realize he has child still alive, thought children were dead) |
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Ambiguity (latent/ patent) |
ambiguity
latent: means on its face it is clear but in application it is difficult
Patent : means on its face it is unclear
IN indiana where ambiguous: Extrinsic evidence may be admitted to clarify |
