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66 Cards in this Set
- Front
- Back
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What are the four proper estate planning tools?
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1. Trust
2. Pour-over Will 3. Durable Power of Attorney 4. Advance Directive for Health Care (Living Will) |
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What is the legal term when a person dies without a will?
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Intestate
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Testate
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to die leaving a will
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Estate Planning
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the process of ensuring that sufficient assets are available for one's use throughtout his/her lifetime, lawfully protected from the reach of creditors, and passed to intended beneficiaries upon death.
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Device
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the person to whom land or other real propers is given a will.
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Testator/Testatrix
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one who makes a will
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Legatee
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the person to whom a legacy in a will is given
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Probate
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procedure by which a will is proven valid or invalid
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Executor
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appointed by the testator to carry out the procisions set forth in the will
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Personal Representative
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appointed by the testator to oversee the winding up of the decedent's affairs.
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Administrator
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appointed by the court to administer the assets and liabilities of the deceased
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Codicil
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a supplement to a will that alters, amends, or modifies the original will.
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Revocable Trust
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the settlor reserves the right to revoke the trust and reclaim title to trust assets.
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Irrevocable Trust
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the settlor relinquishes the right to revoke the trust
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Incapacity
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in the event the settlor becomes incapacitated, the co-trustee or successor trustee simply steps in and executes the provisions in the trust for the benefit of the settlor.
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Will Contest Avoidance
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if a trust has been in effect for some time, it may be more difficult to contest than a will.
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Testamentary Trust
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created by provision contained within a will.
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Spendthrift Trust
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created to provide protection for beneficiary from creditors.
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Life Estate
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any estate in real or personal property which is limited in duration to the life of its owner or some other designated person.
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Power of Attorney
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an intrustment in writing whereby one person appints another as his agent and confers authority to perform certain specified acts on behalf of the principal.
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Durable Power of Attorney
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a power of attorney by which a principal designates another his attorney in-fact in writing.
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Life Estate
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any estate in real or personal property which is limited in duration to the life of its owner or some other designated person (remainderman). A life estate is not an estate of inheritance, but the life tenant may sell, lease or encumber his estate. It is important to remember, however, that the life tenant can give no greater right than is owned.
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A---->B for life. A is the grantor, B is the life tenant. Upon B's death the property reverts back to:
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A
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A----> B for the life of C. A is the grantor, B is the life tenant. C's life determines the duration of B's life tenancy. Upon C's death the property reverts back to:
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A
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A---->B for life, then C. A is the grantor, B is the life tenant.C is the remainderman. The property reverts to:
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There is no reversion because the remainder vests in C at the moment of conveyance.
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Joint tenants
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enjoy "right of survivorship." the grand incident of joint tenancy. Because the surviving joint tenant automatically receives the deceased tenant's share of the property upon his death, joint tenancy is sometimes referred to as "the poor man's will".
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Joint tenants must own equal undivided shares of the property, and must conform to the 4 unities of joint tenancy:
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1. Time- the joint tenants' interests in the property must be acquired at the same time.
2. Title- title to the property must be acquired by the joint tenants by the same instrument. 3. Interests- each tenant must possess an identical percentage of interests in the property. 4. Possession- each joint tenant must enjoy identical rights in property. |
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The following forms of conveyance are insufficient to create a joint tenancy and will likely result in a Tenancy in Common:
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A--->B and C as co-owners
A--->B and C to share and share alike A--->B, C, and D |
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An interest in joint tenancy terminates:
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1. in death
2. when a joint tenant deeds his interest to another 3. when the interest is liquidated in foreclosure |
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A,B, and C own Blackacre as joint tenants. A owns 1/3, and C owns 1/3.
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If A dies, B and C automatically acquire A's 1/3 of Blackacre
B and C remain joint tenants, each owning 1/2 of Blackacre. |
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Tenancy in Common
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requires only the unity of possession. Each party has the right to possession of the "whole" parcel (undivided interest). A tenant in common may bring a "partition" action to force a sale of the real property. In absence of inferences otherwise, co-ownership is in tenancy in common by presumption of law.
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A and B own Blackacre as tenants in common.
A owns 40%, B owns 60% If A dies: |
A's heirs receive A's 40% and become tenants in common with B.
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Offeror
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makes an offer
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Offeree
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receives the power to accept or reject upon the receipt upon the receipt of an offer.
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Essential Elements of Contract
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1. Mutuall Consent- offer and acceptance
2. Legal, Valuable Consideration- something of legal value (benefit or money or not doing something you would otherwise be legally entitled to do). 3. Capacity of the Parties- parties must be competent (legal age and sound mind). |
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Capacity of the Parties (minor)
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a person under the age of 18. Minors have the right to cancel or disaffirm their Ks with no liability during their minority or within 1 year thereafter (Ks for neccessaries are not voidable by minors and will be inforced)
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Specific Performance
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an equitable remedy which is available to an injured party in K when it can be shown that legal remedies (money damages) would not provide adequate relief. Absolute requirement is that the subject matter of the K be "unique" in identity (real property, rare coins or stamps, etc.).
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Physical Characteristics of Land:
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1. Fixed location: immobile, cannot be moved
2. Indestructability- land is durable and cannot be destroyed, only improvements can depreciate. 3. Heterogeneity- no two parcels of land are exactly alkike and |
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Economic Characteristics of Land:
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1. Scarcity- land is scarce. A thing must be scarce to have value.
2. Improvements- a betterment increases value 3. Area preference- weather, pollution, employment, shopping, churches, schools, cul-de-sac. 4. Permanence of investment- capital and labor expeditures represent a fixed investment; such improvements cannot be relocated. |
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Intellectual Property
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patents, copyrights, trademarks, and trade secrets.
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Patent
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a grant by the government that permits the inventor exclusive use of an inventionf for 20 years (or 14 years in the case of design patents). During this period, no one may make, use, or sell the invention without permission from the inventor. In return, the inventor publicly discloses information about the invention that anyone can use upon espiration of the patent.
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Utility Patent
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applies to a "tangible application" of an invention or significant improvement to an existing invention. A patent is not available solely for an "idea", but only for its tangible application.
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Design Patent
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protects the appearance, not the function of an item, and is granted to anyone who invents a new, original and ornamental desgn for an article i.e. Braun's hand-held electric blender
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Plant Patent
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anyone who creates a new type of plant can patent it, provided that the inventor is able to reproduce it asexually- through grafting, for instance, not by planting seeds.
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Requirements for a Patent
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1. Novel Concept- It cannot be: known of or already used in this country, or described in a publication here or overseas.
2. Non-obvious- it cannot be obvious to a person with ordinary skill in that area. 3. Useful-it must be useful. It need not have commercial value, but it must have some current use. mere scientific interest is not enough. |
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Patent Application and Issuance:
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patents can only be obtained by filing an application with the federal Patent and Trademark Office in Washington, D.C. Usually takes approximately 19 months for approval and issue of pantent.
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Patent Infringement:
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patent holders enjoy exclusive right to use the invention during the term of the patent. The holder can bring suit to recover damages and to enjoin future use of any product that is substantially the same as the patent. Damages can be awarded for:
1. Reasonable royalites 2. Lost profits 3. Interest since the date of the infrigement 4. Treble damages and attorney's fees for the intentional infringement or bad faith. |
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Copyrights:
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the holder of a copyright owns the particular tangible expression of an idea, but not the underlying idea or method of operation. The inventor of double-entry bookkeeping could copyright a pamphlet explaining his system, but not the system itself.
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The Copyright Act lists 7 protected categories:
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1. Literature
2. Music 3. Drama 4. Choreography 5. Pictures 6. Sculpture 7. Movies and Recordings |
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How long are copyrights valid?
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Copyrights are valid until 70 years after the death of the work's only or last living author. Once the copyright expires, anyone may use the material. A work is automatically copyrighted once it is in tangible form. Copyrights can be registered with the Copyright Office of the Library of Congress if the holder wishes to bring suit to enforce the copyright.
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Copyright infringement:
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anyone who uses copyrighted material without permission is violating the Copyright Act. To prove a violation, the plaintiff must present evidence that the work was original, and either:
1. The infringer actually copied the work, or 2. The infringer had access to the original and the 2 works are substantially similar. |
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In the event of copyright infringement, the court may:
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1. prohibit the infringer from committing further violations
2. order destruction of the infringing material 3. require the infringer to pay damages, profits earned, and attorney's fees. |
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Doctrine of Fair Use:
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permits limited use of copyrighted material without permission of the author for purposes such as criticism, comment, news reported, scholarship, or research.
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Current copyright problem areas:
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computer software
internet |
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Actus Reus:
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Wrongful conduct or lack thereof, the Defendant must have either performed a voluntary physical act which was physically possible to perform, or failed to act under circumstances imposing a legal duty to act. An act is a bodily movement.
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Mes Rea
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(mental state) the following crimes require a specific intent or objective: solicitation, attempt, conspiracy, first degree premeditated murder, assault, larceny and robbery, burglary, forgery, false pretenses, embezzlement
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Katz v. U.S.
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PHONE BOOTH CASE
the 4th Amendment protects a person from search and seizure, if, under the circumstances, he has a justifiable expectation of privacy, regardless of whether the actual physical trespass occurred. |
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Seizure
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the exercise of control by the government over a person or thing. A person is seized when a reasonable person believes that he or she is not free to leave. Michigan v. Chesternut
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Arrest
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must be based on probably cause, which is present when at the time of the arrest the arresting officer has within his knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime. Beck v. Ohio.
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Stop and Frisk
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police may briefly detain a person for investigative purposes even if they lack probably cause; but they must have reasonable suspicion supported by articulable facts of criminal activity or involvement in a complicated crime.
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Terry v. Ohio
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When a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him: and any weapons seized may properly be introduced in evidence against the person from whom they were taken.
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Exclusionary Rule
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a doctrine that prohibits the introduction, at a criminal trial, of evidence obtained in violation of the 4th, 5th, or 6th Amendments. Its main purpose is to discourage the government from violating a person's constitutional rights. If the government cannot use the evidence obtained unlawfully, it is less likely to violate the suspect's rights.
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Mapp v. Ohio
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The exclusionary rule, under the 14th Amendment, applies in state court prosecutions. The Court felt that the states should enforce the exclusionary rule to create uniformity between federal and state laws: "If you apply the right to the states, you should also apply the remedy to the states." Evidence obtained in derogation of constitutionally protected rights cannot be admitted to supoort a prosecution. This is essential to deter oppressive police conduct. The exclusionary rule is a critical component of the enforceability of the 4th and 14th Amendments. As a result, the conviction must be overturned.
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Miranda v. Arizona
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The prosecution may not use statements stemming from custodial interrogation of the Defendant, unless it demonstrates the use of procedural safeguards effective to secure the privelege against self-incrimination.
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How many days once a petition has been filed does the defendant have to respond to the petition?
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20 days
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How many interrogatives are permitted?
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30
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