T&e

Front 1

Intestate

Back 1

When an individual dies without a valid will

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Testate

Back 2

When an individual dies with a valid will

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Probate

Back 3

The process for administrating a decedent's property after death

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Probate Estate

Back 4

The estate subject to administration (both testate & intestate) under applicable laws related to decedents' estates.

Includes property owned @ death & property acquired at or after decedent's death

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Net Probate Estate

Back 5

Probate estate after deductions and taxes. This generally passes to the decedents heirs or devisees by intestate or testate succession.

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Informal probate

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A person representing the decedent petitions the probate court:

(1) to admit the decedent's will to probate &

(2) for the grant of documentation indicating to 3rd parties that the personal representative is entitled to act on behalf of the estate

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Formal Probate

Back 7

When the court supervises the administration of the estate.

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Administrator

Back 8

A person who has been given authority by a probate court to administer the (intestate) estate of the deceased.

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Letters of Administration

Back 9

The instrument that the probate court gives the administrator/administratrix authorization to manage the intestate.

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Administration of Estates

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The management and settlement of the estate of an intestate, or of a testator who has no executor, performed under the supervision of a court, by a person duly qualified and legally appointed, and usually involving:

(1) the collection of the decedent’s assets;

(2) payment of debts and claims against him and expenses ;

(3) distributing the remainder of the estate among those entitled thereto.

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Ancillary Administration

Back 11

The process of collecting assets/ satisfying debts of a decedent in a "foreign state" (a state other than that of his domicile).

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Personal Representative

Back 12

The name given to an executor or administrator of an estate

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Executor

Back 13

A person appointed by a testator to carry out the directions & requests in his will, & to dispose of the property according to his testamentary provisions

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Testamentary

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A paper, instrument, document, gift, appointment. etc., is said to be "testamentary" when it is written or made so as not to take effect until after the death of the person making it, and to be revocable and retain the property under his control during his life, although he may have believed that it would operate as an instrument of a different character.

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Testamentary Capacity

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Minimum age & mental capacity of the will maker

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Letters Testamentary

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Grants an estate executor permission to do what is necessary to distribute estate assets.

May be written prior to death or issued by the probate court.

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Intestate Estate

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Any part of a decedent's estate not effectively disposed of by will passes by intestate succession to the decedent's heirs as prescribed in this Code, except as modified by the decedent's will.

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Partial Intestacy

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When an individual dies with a valid will that has an invalid provision or the will disposes of only part of the decedents property

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Statutes of descent and distribution

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a.k.a. intestacy statutes

Govern the disposition of property owned @ death & not disposed of by will

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Negative Wills

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a.k.a. Exclusionary Clause

A will or a provision in a will that expressly disinherits potential heirs in the event of an intestacy

Common law: given no effect, despite a decedent's explicit statement of intent

UPC: permitted under §2-101(b)

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Collateral Relatives

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Decedent's family members who are neither descendants nor ancestors

Descendants of a decedent's ancestor

i.e., brothers & sisters, cousins, aunts & uncles, nephews & nieces, etc.

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First & Second Line Collaterals

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1st: Relatives who are descendants of decedent's parents

2nd: Relatives who are descendants of decedent's grandparents

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Heirs Apparent

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Those who might take by intestacy

***NO LIVING PERSON HAS HEIRS, THEY HAVE HEIRS APPARENT***

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Laughing Heirs

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Individuals related to a decedent so remotely that they may never have even known of or met the decedent

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English (strict) per stirpes

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Emphasis on an equal division among children rather than more remote descendants.

Divide the decedent's estate into an equal # of shares so that one share is set aside for each child who is living & one share for each child who is not living but has descendants who are. Distribute the shares by representation.

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Modern per stirpes

(per capita with representation)

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Division into shares occurs in the 1st generation below the decedent in which there is at least one living individual

Divide the decedent's estate into an equal # of shares in the 1st generation below the decedent in which there is at least 1 descendant who is then living. Set aside 1 such share for each member of that generation who is not then living but has descendants who are living. Distribute the shares by representation.

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Per capita at each generation

(UPC method)

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Goal: treat all members of the same generation below decedent equally. "Equally near, equally dear."

Divide the decedent's estate into equal shares in the 1st generation below the decedent in which there is at least 1 living individual. Set aside 1 such share for each member of that generation who is not then living but has descendants who are living. Distribute equal shares to the living members of the generation @ which the division was made. Any remainder is distributed to further generations in the same manner.

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Advancements

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Treatment of an inter vivos gift by the decedent to an heir, which were meant to be treated as advancements against the heirs' share of the estate

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Representation

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The principle upon which the issue (heir) of a deceased person take or inherit the share of an estate which their immediate ancestor would have taken or Inherited, if living; the taking or inheriting per stirpes.

[How property is to be divided into shares & distributed among descendants & collaterals]

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Per Capita

Back 30

The method of dividing an intestate estate by which an equal share is given to each person who stands in equal degree to the decedent w/o reference to their right of representation

(according to the # of individuals)

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Per Stirpes

Back 31

The method of dividing an intestate estate where a class or group of distributees take the share which their stock (a deceased ancestor) would have been entitled to, taking thus by their right of representing such ancestor

(by representation)

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Hotchpot

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The blending & mixing of property between different persons in order to divide it equally

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Next-of-kin

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A wife, by affinity, or by blood, like a parent, sibling, or offspring is a deceased's nearest relative

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Will

Back 34

A written expression of the decedent's intent to transfer property @ death

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Nuncupative Will

Back 35

An oral declaration made close to the time of death

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Attestation Clause

Back 36

A recital of the circumstances surrounding the will's execution from the witnesses' perspective

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Attested Will

Back 37

A testamentary instrument signed by at least 2 witnesses who observed the testator's execution or acknowledgement of the will

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Holographic Will

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Handwritten will

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Pour-over Will

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A will of a person who has already executed a trust in which all property is to be left. It is a protection to guarantee that any assets which somehow were not included in the trust become assets of the trust @ the party's death

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Codicil

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A testamentary instrument that (a) amends or supplements a previously executed will, and (b) satisfies Wills Act formalities or meets statutory requirements for a valid holographic will

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Joint & mutual will

Back 41

2 wills created according to a common plan

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Lost/Destroyed will

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A valid will believed to exist but not to be found

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Self-proving affidavit

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Similar to an attestation clause, provides a sworn notarized statement as proof of due execution @ the time the will is executed

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Acts of Independent Significance

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Legal principle whereby a will may dispose of property by reference to facts outside of the will as long as the referenced fact has significance apart from their effect on the testator's estate

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Estate

Back 45

The property a person owns @ the time of death

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Probate property

Back 46

Property that passes to the successor in interest under the terms of a valid will or under state intestacy law

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Non-probate property

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Property that passes by virtue of the way title in the property is held (joint tenancy) or in accordance w/contractual obligations (life insurance proceeds)

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Payable-on-death provision ("POD")

Back 48

An arrangement between a bank or credit union and a client that designates beneficiaries to receive all the client's assets.

The immediate transfer of assets is triggered by the death of the client.

Formalities are essential because contractual relationship

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Transfer-on-death deeds ("TOD")

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A way of designating beneficiaries to receive assets at the time of decedent's death without having to go through probate.

Decedent's assets will then be automatically transferred to the designated beneficiaries upon death.

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Joint Tenancy w/ right of survivorship ("JTWROS")

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Co-ownership that meets the test of the 4 unities:

1. unity of interest;

2. unity of title;

3. unity of time; and

4. unity of possession

Most common means by which individuals attempt to avoid a probate proceeding

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Tenancy by the entireties

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A JTWROS that is available only to married couples.

Different from JTWROS in that neither spouse can convert the ownership interest into a tenancy in common w/o the other spouse's consent

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Specific gift

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A gift of a specifically identified piece of property

Ex. "I give my Tiffany diamond ring to my sister Eleni."

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General gift

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A gift of money or a certain quantity of property w/o more specific identification

"I give $10,000 to each child of mine who survives me."

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Demonstrable gift

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A gift of property payable from a specific source.

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Class gift

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A gift to an identifiable group, the members of which are not mentioned by name; class members who survive the testator receive an equal share of the bequest.

Ex. "I give $50,000 to my grandchildren."

(not limited to grandchildren living @ time will was signed; class can-and typically does-grow or shrink)

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Residuary gift

Back 56

A gift of T's property not otherwise disposed of by the will

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Void gift

Back 57

A gift prohibited by law or policy (e.g., to animals, to someone dead when will is executed).

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Antilapse Statute

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Certain bequests -- specific, general, and class gifts -- are subject to special rules that apply when a named beneficiary (or a member of a class) fails to survive the testator & the will does not provide a clear indication of the testator's intent.

Gift drops down to the descendants of the beneficiary

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Antilapse Analysis

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1. Who is the beneficiary?

-UPC limits application to second line collaterals

2. When did the beneficiary die?

3. Did qualifying beneficiary leave descendants?

4. What does the will say?

- Does it include survivorship language?

- Does it include a "gift over"

5. Does the applicable antilapse statute apply only to wills or to wills & will substitutes?

-What kind of document are you analyzing?

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Incorporation by reference

Back 60

A writing that is not valid as a will but is in existence when a will is executed may be incorporated by reference into the will if the will manifests an intent to incorporate the writing & the writing to be incorporated is identified w/reasonable certainty

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Adeem

Back 61

To nullify a testamentary gift

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Ademption

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The nullification of a testamentary gift

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Ademption by extinction

Back 63

Applies when property in a specific devise is not found in the testator's estate @ death

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"Identity" theory

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Majority Rule

A specific devise adeems (nullification) if the specifically identified property is no longer part of T's estate @ death

[Assume T intended to give B only the specified property; had T intended to provide a general devise, the will would have said so]

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"Intent" theory

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A specific devise does not adeem (nullify) unless T intended to extinguish the gift.

B gets replacement property (typically $$ from the residuary) as a substitute if there is evidence T did not intend the gift to adeem

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Ademption by satisfaction

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Applies when T changes the timing of a gift from testamentary to inter vivos, but fails to amend the will accordingly

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Abate

Back 67

To reduce in amount

Applies when the probate estate doesn't have enough assets to cover estate expenses & creditor claims as well as gifts to beneficiaries

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Accession

Back 68

An increase or addition in property--B gets additional securities owned by T @ time of death

Occurs when T makes a specific bequest of securities &, after the will's execution, those securities produce additional shares b/c of a stock split, stock dividend, corporate merger or subsidiary spinoff

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What is the controlling consideration in determining the meaning of a donative document?

Back 69

the donor's intent

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Patent Ambiguity

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Apparent from the language of the will--apparent on the face of the will

Ex. "I give ten thousand dollars ($100,000) to X"

@ Common law: no extrinsic evidence (EE) allowed; gift fails

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Latent Ambiguity

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Language in the will is clear--ambiguity arises when executor attempts to effect the gift

The ambiguity is revealed by EE so EE is admitted to resolve it

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Types of latent ambiguity

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1. Equivocation: clear description matches more than 1 person or thing

2. Personal Usage: T habitually referred to someone by a nickname, & used that name in the will

3. No clear fit: Description in the will matches no person or thing perfectly but does match more than 1 person or thing partly

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Modern treatment of patent & latent ambiguities

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Both are treated similarly--admit EE to effect the gift

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Constructive Trust

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Equitable remedy to avoid unjust enrichment

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Trust

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A relationship to property where one person (trustee) holds legal title to property for one or more beneficiaries who hold equitable title (beneficial enjoyment) to the trust property

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Declaration of Trust

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No transfer to 3rd party

Settlor transfers property to himself as trustee for the benefit of others

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Deed of Trust

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Settlor transfers property to others as trustee

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Resulting Trust

Back 78

Failed trust--equitable reversionary interest

Property passed back to donor & donor's estate

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Trust Corpus/Trust res

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Trust property

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Requirements for Creation of a trust

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1. Settlor has capacity to create a trust;
2. Settlor indicates an intention to create the trust;
3. Trust has a definite beneficiary OR
a) charitable trust
b) trust for the care of an animal
c) trust for a non-charitable purpose
4. Trustee has duties to perform; &
5. Trustee & sole beneficiary are not the same person

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Testamentary Trust

Back 81

Transfer of property to another person by will

Always revocable

Effective only upon settlor's death

Wills act formalities apply

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Inter-vivos Trust

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Transfer of property to another during the settlor's lifetime

Constitutes a present disposition of property

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Dry Trust

Back 83

Trust with no trust property & thus no duties for the trustee to perform

Trust will fail

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Pour-over Trust

Back 84

Used in conjunction w/wills to allow the settlor's estate to fund the trust upon the settlor's death

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Oral Trust

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Does not need to be evidenced by a trust instrument (unless required by statute, such as the SoF), but the creation of an oral trust & its terms may be established only by clear & convincing evidence

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Beneficiary

Back 86

Person/entity for whose benefit the trustee holds the trust corpus.

Necessary to the creation of a valid trust

Private Trust: Ascertainable beneficiaries


Charitable Trust: Beneficiaries NOT ascertainable--either the general population or a sub-sector of the population

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Trustee

Back 87

The person, group or entity holding legal title to the trust corpus (property) & who is responsible for managing trust assets & making distributions consistent w/the terms of the trust

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Charitable Trust

Back 88

Not subject to the Rule Against Perpetuity


Beneficiaries must be the general public or an unascertainable segment of the general public

Beneficiaries almost never given standing to enforce the trust

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Private Trust

Back 89

Beneficiaries must be ascertainable
[do not need to be known @ time trust is created; just need to be capable of becoming ascertainable @ time of settlor's death]

May be named individually ("My sister Maria")

May be described as a group ("my cousins")

Typically limited in duration by RAP

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Primary or domiciliary jurisdiction

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The jurisdiction where the decedent was domiciled at death

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Primary duties of the personal representative

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1. Collect and protect the decedent's estate;

2. Satisfy the decedent's creditors; and,

3. Distribute the estate in accordance with the decedent's will or under the applicable intestacy laws.

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Nonclaim Statute

Back 92

Statutes that shorten the SOL for creditors & beneficiaries bringing claims to the decedent's estate.

These statutes support the underlying policy favoring the rapid settlement of decedents' estates

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Non-testamentary

Back 93

Under UPC §6-101, transfers which may be effected at the decedent's death even if the documents -- deeds, beneficiary designation forms, etc. -- do not comply with Wills Act formalities.

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Pure will substitutes

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Never give the beneficiary any current possessory or other interest

Owner may change beneficiaries as often (and as secretly) as he/she wishes

Ex. insurance policies, pensions, joint accounts & revocable trusts

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Imperfect will substitutes

Back 95

Non-probate transfers that create a present possessory & irrevocable property interest

Ex. Joint tenancy

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Superwills

Back 96

Statute allowing the testator to alter the beneficiary designation on certain nonprobate assets merely by addressing them in a will.

The will provision controls the disposition of the property, regardless of a previously completed beneficiary designation form.

Does not apply to real property held in joint tenancy, TOD deeds or conveyances, rights or interest under community property agreements or IRAs or bonds

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Partial Intestacy

Back 97

When an individual dies with a valid will that has an invalid provision or the will only disposes of part of the decedent's property

Front 98

Negative Wills

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What are the 2 fundamental questions when dealing with an intestate estate?

Back 99

1. Who takes?

2. How much?

UPC §2-101(b)

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Decedent

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Person who died

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Order of who inherits the intestate estate

Back 101

1. Surviving Spouse

2. Descendants

3. Parents

4. 1st Line collaterals (siblings, nephews & nieces, etc.)

5. Grandparents

6. 2nd line collaterals (aunts & uncles, cousins, etc.)

7. Certain stepchildren

**IF no taker, intestate estate passes to the state**

UPC §2-103

Front 102

What are the ways to distribute property by "representation?"

Back 102

1. English (strict) per stirpes;

2. Modern per stirpes (per capita w/representation; and,

3. Per capita at each generation