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108 Cards in this Set

  • Front
  • Back

Probate—

The legal procedure by which adecedent’s estate is distributed

Probate Property—

Property that passes throughprobate under the decedent’s will or by intestacy

Non—Probate property—

Property that passes outside ofprobate by way of a will substitute. E.g. Inter Vivos trust, Life insurance,Pay—on—death/transfer—on death, Joint tenancy.

Will Substitute—

A method of transferring assets to a beneficiary that occurs or takes effect upon the death of the donor. E.g., inter vivos trusts, payable on death accounts, property held jointly with right of survivorship, employee benefit plans, annuity contracts

Personal representative—

A person approved by the court to administer an estate in probate

Probate administrator—

A person appointed by the court to represent and manage the estate of a decedent who dies intestate, i.e., without a will. A female administrator may be referred to as an administratrix

Supervised administration—

The personal representative is subject to the continuing authority of the probate court in administering the estate.

Unsupervised administration—

After appointment, the personal representative administers the estate without court supervision.

Intestacy—

Person who dies without a will

Intestacy laws—

Laws governing the distribution of estate of decedents who die without a will. Intestacy laws direct how the intestate decedent’s estate is to be distributed

Joint tenancy—

A type of ownership of property where co-owners have a right of survivorship and the property automatically passes upon death to the surviving co-owner

Pay-on-death—

Designation of a beneficiary who is to receive the account or asset upon the owner’s death.

Inter vivos trust—

A document under which assets are held in trust for specified beneficiaries during the life of the settlor and the settlor reserves the right to revoke the trust during his or her lifetime. The trust also directs how the income and assets of the trust are to be distributed after the death of the settlor.

Testamentary trust—

A trust that is created upon the death of thegrantor

Fiduciary duty—

An individual’s obligation to actin the best interests of another party in which a special relationship exists

Descent—

The transfer of a decedent’s property upon death pursuant to the laws of intestacy.

Contestant/objector—

The party opposing probate of a will, generally because that party stands to inherit under laws of intestacy if the will is invalidated.

Disclaimer—

In the context of inheritance from an intestate estate, an heir’s attempt to renounce the right to receive an inheritance that he or she is legally entitled to receive under intestacy laws.

Slayer statute—

A state statute that prevents a decedent’s killer from benefiting from the killing by blocking the killer’s otherwise valid inheritance from the decedent under the laws of intestacy or under a will

Heir—

A Person who stands to inherit from the estate of an intestate decedent, i.e., a decedent who has no will and whose estate passes under the intestacy laws

By representation—

Some intestacy laws allow the next generation of descendants to inherit the share that would have passed to their ancestor had that ancestor survived the decedent. Under these statutes, the share passes to the descendants who essentially stand in the shoes of the deceased ancestor.

Per Stirpes—

Distribution of trust or estate assets to descendants and their issue, such that the next generation inherits by representation, i.e., (by standing in the shoes of a predeceased ancestor who would have received the inheritance had she survived the decedent.)

Escheats—

Where required by statute, the transfer of a decedent’s property to the state or as otherwise directed by the statute, rather than by descent or devise

First—line collaterals—

Descendants of the decedent’s parents, other than the decedent and the decedent’s descendants

Second—linecollaterals—

Descendants of the decedent’s grandparents, other than thedecedent’s parents and their descendants

Equitable adoption—

Recognition of informal adoption by way of equitable adoption doctrine, sometimes called virtual adoption oradoption by estoppel.

Posthumous children—

A child born after the death of the deceased parent, but conceived before the death of the decedent parent.

Guardian of the person—

One who bears legal responsibility and authority for another on account of that person’s incapacity, such as through age or disability

Law Guardian—

One with the power and obligation to oversee a person or property on account of incompetency resulting from youth, disability, or other incapacity

Guardian of the Property

Usually appointed by court who bears legal responsibility for minor property interests

Equitable adoption—

A legal principle that allows a person to be considered the adopted child of his or her foster parent or step-parent, in the absence of a legal, court-sanctioned adoption

Non-marital child—

A child that is born outside of marriage

Ward—

One who is under guardianship

Trust—

A legal arrangement where one person (a trustee) holds title to property for the benefit of another

Trustee—

A fiduciary designated under the terms of a trust as responsible for management of the trust and its assets according to the terms of the trust

Slayer rule—

A state statute that prevents a decedent’s killer from benefiting from the killing by blocking the killer’s otherwise valid inheritance from the decedent under the laws of intestacy or under a will.

Constructive trust—

A legal fiction employed by courts of equity to compel the owner of property to convey that property to the victims of that owner’s fraud. Generally, the goal is to prevent unjust enrichment of a party who receives title to property but is not legally entitled to that property.

Negative will—

By way of an express disinheritance provision bars a person from inheritance under the will. The barred heir is treated as if he disclaimed his intestate share, which means he is treated as having predeceased the decedent

Insane delusion—

A testator’s false belief that is logically and/or factually unreasonable and may provide grounds to challenge a will, or particular provisions of the will, to the extent that the false belief influences the testator’s distribution of his or her estate.

Undue influence—

Where a person in a dominant or controlling relationship with the testator uses his or her influence to overcome the testator’s free will indisposing of his or her estate, causing the testator to draft or alter a testamentary instrument substituting their will for the free will of the testator

Duress—

If the wrongdoer threatened to perform or didperform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made.

Fraud—

A donative transfer is procured by fraud if the wrongdoer knowingly or recklessly made a false representation to the donor about a material fact that was intended to and did lead the donor to make a donative transfer that the donor would not otherwise have made

Restitution& Constructive Trust & Unjust enrichment—

Although an unexecuted will cannot be probated, the decedent’s frustrated intent can be honored in restitution, preventing unjustenrichment, by imposing a constructive trust.

Restitution—

Return of something to its rightful owner

Constructivetrust—

Legal fiction employed by courts of equity tocompel the owner of property to convey that property to the victims of that owner’s fraud. Generally, the goal is to prevent unjustenrichment of a party who receives title to property but is not legallyentitled to that property.

Unjustenrichment—

A quasi-contract theory that prevents a partyfrom retaining a benefit conferred on that party to the detriment of the other party, if it would be unjust for the enriched party to retain that benefit

Confidential/ fiduciary relationship—

A relationship where one party relies on the advice and judgment of another person to an extent that puts the other party in a dominant position. Reliance is typically based on a combination of factors such as the person’s authority, age, or superior knowledge and training.

No-contestclauses—

Deprives an unsuccessful contestant of her bequest under the challenged will. The majority rule is to enforce a no-contest clause only if the unsuccessful contestant lacked “probable cause” for bringing the contest.

Ante-mortemor living probate—

The process by which the testator institutes an adversary proceeding during the testator’s life to declare the validity of awill.

Willcontest—

Traditional mode of remedying wrongful procurement of a will

Fraudin the execution—

Occurs when a person intentionally misrepresentsthe character or contents of the instrument signed by the testator, which doe not in fact carry out the testator’s intent

Fraudin the inducement—

Occurs when a misrepresentation causes the testator to execute or revoke a will, to refrain from executing or revoking a will, or to include particular provisions in the wrongdoer’s favor.

Tortious interference with an expectancy—

An action in tort that arises when a person intentionally prevents another from receiving an inheritance from a third party, by fraud, duress, or any other means.

Attested wills—

There are 3 core formalities for the making of an __________ will:Writing, signature, and attestation.

Holographic wills—

Is written by the testator’s hand and is signed by the testator. Such will need not be attested by witnesses

Publishor acknowledge the will—

A declaration before the witnesses that this is the last will and testament of the testator.

Functions of formalities—Main-functions:

Of Wills Act formalities is to enable a court to decide whether a purported will is authentic with the benefit of live testimony from the testator

Functions of formalities—Secondaryfunctions—Evidentiary:

requirements may increase the reliability of the proof presented to the court Ritual

Functions of formalities—Secondary functions—Ritual (cautionary):

the court needs to be convinced that the statements of the transfer or were deliberately intended to effectuate a transfer

Functions of formalities—Secondary functions—Protective:

prophylactic purpose of safe-guarding the testator, at the time of the execution of the will, against undue influence or other forms of imposition

Functions of formalities—Secondary functions—Channeling:

uniformity in organization, language, and content of most wills so that courts are not left puzzling whether or not the document was intendedto be a will

Strict compliance—

Under traditional law, for a will to be admitted to probate it must be in strict compliance with the formal requirements of the applicable wills act. The will must be in writing, signed by the testator, and attested by at least two witnesses. Any additional requirements that might be mandated by the particular Wills Act must also be satisfied

Substantial compliance—

The finding of a formal defect should not lead to automatic invalidity, but to a further inquiry: (1) does the noncomplying document express thedecedent’s testamentary intent, and (2) does it form sufficiently approximate Wills Act formality to enable the court to conclude that it serves the purpose of the wills act

Attestation clause—

The clause in a will, typically at the end, where the attesting witnesses affirm that they witnessed the testator’s valid execution of the willand the formalities observed in executing the will

Line of sight—

The testator does not have to actually see thewitnesses sign but must be able to see them were the testator to look

Conscious presence—

Under this test, the witness is in the presence of the testator if the testator, through sight, hearing, or general consciousness of events, comprehends that the witness is in the act of signing

Subscription requirement—

The requirement that the testator must sign the will “at the foot or end“ of the will

Purging statutes—

Allows a will attested by an interested witness to be admitted to probate, but will void any bequest to the interested witness. A will attested by an interested witness would be valid, but the witness would not take his devise.


--Purging statues only apply to a witness who is necessary for the will’s validity. If the will is witnessed by a sufficient number of disinterested witnesses, the interested witness is said to be supernumerary and is entitled to take his full devise

Self-proving affidavit—

An affidavit signed by the attesting witnesses affirming that they witnessed the proper execution of the will. The self-proving affidavit is a separate document from the will that eliminates the need for live testimony by attesting witnesses to prove valid execution for probate

Residuary clause / beneficiary—

A clause in a will that devises all of testator’s assets remaining after specified bequests are devised.

Guardian ad litem—

A representative, usually an attorney, appointedby the court to represent the interests of one who is deemed incompetent because of youth or otherwise

Conditional wills—

A will that is written to become operative if death arises from a particular event, such as surgery, or in specified time frame, such as while on vacation.

Incorporation by reference—

The doctrine by which documents separate from a will, but referredto therein, are incorporated into the will and read together with the will asan integrated document

Revocation–

In the context of wills, an action taken by a testator to revokesome or all of the provisions of a will, making the revoked will or revokedportion inoperative and void

Codicil–

A separate writing that alters some but not allaspects of a will and is executed with the formalities required for executionof a formal will or in a manner that meets the requirements of a validholographic will

Dependentrelative revocation

Doctrine which states that if a testator revokes a will with theintention to immediately create a new will, but the new will is either not madeor fails, the testator is presumed to have preferred to apply the first willrather than to have the estate distributed by intestate succession

Revival

Where permitted by state law, the act of making an earlier willoperative and valid again by revoking a subsequent will that had completelyrevoked the earlier will. Revocation by operation of law

Integration-

All papers hat are present at the time of execution and areintended to be part of the will are treated as part of the will

Republication by Codicil

A validly executed will is treated as re-executed as of thedate of the codicil.

Incorporation by Reference-

Allows for a writing that was in existence but not presentat the time of execution and that was not itself executed with testamentaryformalities to be absorbed into the testator’s will.

Reformation

An equitable remedy by which a court amends theterms of an agreement to give effect to the true intent of the parties.

Lapse

If the devisee does not survive the testator,the devise fails and is said to have Lapsed

Anti-lapsestatutes

A state statute that prevents lapse of a gift,which would otherwise fail because the intended beneficiary predeceased thetestator, the gift was void or a condition precedent was not met, byestablishing an alternative beneficiary.

Specificdevise

A testamentary gift of specific property that mayonly be satisfied by distributing that particular property.

Generaldevise

A testamentary gift of a specific amount orquantity rather than of specific property, which may be satisfied out ofgeneral assets in the estate.

Classgift

A gift in a will or trust to a group of personsclassified by their relationship to one another or to the testator/settlor.Typically, the members of the class are determined according to which of thepotential class members are living when the testator or the life tenant dies.

Precatory

An expression of one’s desires or wishes that isnot intended to be mandatory or binding.

Ademptionby extinction

Under the common law identity rule, when aspecific devise or bequest in a will is cancelled because the subject propertyis no longer in the possession of the estate at the time of the testator’sestate

Ademptionby satisfaction

The doctrine of satisfaction may be applicableif a testator makes an inter vivos transfer to a devisee after executing thewill. If the testator is a parent of the beneficiary and sometime afterexecuting the will transfers to the beneficiary property of a similar nature tothat devised by the will, there is a rebuttable presumption that the gift is insatisfaction of the devise made by will

Identitytheory

If a specifically devised item is not in thetestator’s estate, the gift is extinguished

Intenttheory

If the specifically devised item is not in thetestator’s estate, the beneficiary may nonetheless be entitled to thereplacement or cash value of the original item, if the beneficiary can showthat this is what the testator would have wanted

Exonerationof liens

If a will makes a specific disposition of real or personalproperty that is subject to a mortgage to secure a note on which the testatoris personally liable, it is presumed that the testator wanted the debt, likeother debts, to be paid out of the residuary estate.

Abatement

Arises is an estate lacks sufficient assets to pay thedecedent’s debts as well as all devises. In such circumstances, some devisesmust be abated or reduced.


---Absent testator intent of division,devises ordinarily abate in the following order (1) residuary devises arereduced first, (2) general devises are reduced second, (3) specific anddemonstrative devises are the last and are reduce pro rata.

Trust

A legal arrangement where one person (a trustee)holds title to property for the benefit of another.

Settlor

The party who creates and funds the trust,whether for the benefit of the settlor or another party.

Trustee

A fiduciary designated under the terms of a trust asresponsible for management of the trust and its assets according to the termsof the trust.

Income beneficiary

An individual designated to receive the income from a trust

Incidental Beneficiary

An individual that benefits from a contract, butis not an intended beneficiary

Intended Beneficiary

An individual that the parties to a contract clearly anddefinitely intend will benefit from the contract

Contingent Beneficiary

A beneficiary who stands to benefit only if the transfer tothe primary beneficiary fails or if certain prescribed conditions are met.

Qualified Beneficiary

Under the Uniform Trust Code, a beneficiary whohas a present right to distributions under the trust as well as a member of thefirst group of remaindermen under the trust. This term is used by the UniformTrust Code to limit and define the class of trust beneficiaries to whom theprovisions of the Code apply by excluding remote remaindermen.

Legaltitle

An ownership interest in real property that isrecognized and enforceable at law but does not necessarily afford rights to theuse and enjoyment of the property.

Equitabletitle

An interest in property possessed by a buyer whohas not yet obtained legal title.

Testamentarytrust

A trust that is created upon the death of thegrantor.

Intervivos trust

A document under which assets are held in trustfor specified beneficiaries during the life of the settlor. The trust alsodirects how the income and assets of the trust are to be distributed after thedeath of the settlor.

Declarationof trust

An assertion, which may be written or oraldepending on state law, declaring that person’s intent to place assets in trustfor the benefit of another.

Deedof trust

A deed that transfers title as security for aloan.

Notarizedwills

Only allowed by statute in certain states where the Attestation requirement of a will is satisfied by a Notary