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45 Cards in this Set
- Front
- Back
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When can there be no administration of an intestate estate
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1. Consent given by all heirs sui juris or by guradian ad litem
2. No debts of the estate or any creditors consnt 3. Heirs sign and have notarized an agreement on distribution of the property |
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What is Probate in the Common Form
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May be granted immediately,no notice to anyone required, but is not conclusive for 4 years
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What is Probate in Solemn Form
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Requires notice to heirs, propounders and beneficiaries of the will and is effective immediately
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What is the time limit for probating a will
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Within 5 years of the time that any other petition is filed concerning the estate
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What is Year's Support
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Available to decedent's spouse and or minor children
--For intestacy or if there is a will --Takes precedence over all other debts --Property passes in fee simple --Given amount requested unless an objection is filed |
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What counties' Probate court has jdxn
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The one in which d was dominciled on date of death or in nonresident the county where property d owned is located
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What is the intestate share of SS and lineal decendants
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If no lineal descendants, SS gets the entire estate
--If lineal descendants spouse takes a child's share but never less than 1/3 --If no SS but lineal descendants, they take per stirpes |
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What is per stirpes distribution
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By the roots
--Go to the first generation with someone living and determine number of roots, divide by that many See p.7 of notes |
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What is the intestate distribution if d dies with no SS and no lineal descendants
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Parents share equally
-if no parents, ds siblings share the estate with issue of deceased sibling taking that share --if all siblings are deceased, nieces and nephews share equally |
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Who can an out of wedlock child inherit from by intestate succession
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1. Always the mother
2. Never the stepfather 3. The biological father if: a. a court order has legitimated the child b. During child's lifetime father signed a sworn affidavit or child's birth certificate c. Clear and convincing E that he is the father d. Genetic test was done |
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Can a father inherit from his child born out of wedlock
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1. If court order ligitimated relationship
2. During child's life, father signed an affidavit or birth certificate 4. Genetic testing |
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What are the intestacy rights of adopted children
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Adoption establishes full inheritance rights but cuts off rights of inheriting from biological parent
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What is virtual adoption
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Adoption proceedings started but not completed
--De facto parent-child relationship does not = virtual adoption |
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What is an advancement(intestacy)/satisfaction(will)
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In writing, $ given to heir before death meant to be part of inheritance
--To determine shares make a hotchpot including transferred property value at time of transfer, divide by number of heirs --Heir that got the advancement gets that amount - what they already got |
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Simultaneous Death Act
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Unless proof death was other than simultaneous, each presumed to have survived the other
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Slayer Statute
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When a person kills another feloniously and intentionally the slayer shall not take from the Vs estate.
--Treated as if predeceased --Murder, felony murder, voluntary manslaughter |
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What is renunciation
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Must renounce the property before accepted and do so in writing and file with court within 9 months of death
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What is the effect of renunciation
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--Property passes as if the renouncing party predeceased unless the will provides otherwise
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Can you make a k to make a will, not to revoke a will or to die intestate
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If made after January 1, 1998 must be in writing and signed by party to be charged
--need an express k, even if joint or mutual wills |
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What are the GA execution requirements fo a will
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1. Must be in writing
2. T must sign (another person may sign for T at Ts direction and in his presence) 3. T must sign in the presence of Ws or acknowledge his signature 4. 2 Attesting Ws must sign in Ts presence |
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Does a will have to be witnessed even if it is in Ts handwriting
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Yes, Ga does not recognize unwitnessed holographic wills
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What is the effect of an attestation clause
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Not required but if present, will is presumed valid
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How can a will be revoked
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1. By a formal writing
2. Physical Act (must destroy or obliterate will) 3.Implication(later inconsistent will or document) 4. Operation of law |
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What if a will is lost or destroyed beofre or after Ts death
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Presumed revoked but may be rebutted by a preponderance of the evidence
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Can a T partially revoke a will
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-May attach a codicil
-If attempted by physical act if it results in material provision being destoyed it is complete revocation otherwise will remains completely intact |
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When does revocation by operation of law occur
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Limited revocation when T marries subsequent to execution, or upon subsequent birth or adoption of children unless Ts will contemplates the event
--Gives child or spouse his or her intestate share |
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What is the effect of divorce or annullment on a will
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Does not revoke the will, ex treated as if predeceased
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Can you revive a revoked will
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1. By codicil
2. Show an intent to revive 3. Dependent Relative Revocation |
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What is Dependent Relative Revocation
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Allows the court to disregard a revocation based on mistake of law or fact
--Court must be convinced that but for the mistake T would not have performed the revocation |
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Patent Ambiguity
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Appears on the face of the will
--Court allows extrinsic E |
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Latent Ambiguity
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Only evident when will is put into operation
--Court allows extrinsic E |
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Do GA courts correct mistakes
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Usually not unless it is a mistaken omission of a child believed to be dead
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Requirements to incorporate an extrinsic document by reference
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1. Writing must have been in existence at the time the will was executed
2. Will must manifest an intent to incorporate 3. Will must describe the document sufficiently to permit its identification |
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Will a court respect designations that are dependent upon acts that have not occurred yet
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Only if they are of independent significance
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What is lapse
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When a beneficiary predeceases T
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Anti-lapse statute
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Give the gift to the living issue of the predeceased beneficiary that also survive T as long as there was no contingency of survival on the gift
--If inapplicable the lapsed property goes into residue |
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What happens if there is a gift to a class and one member of the class predeceases the T
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The anti-lapse statute overrides the class gift rule and issue of deceased class member will take
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What happens if there is a lapse of the residuary
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Passes to other residuary beneficiaris or to predeceased's issue if any.
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Does anti-lapse apply to felonious and intentional killings or divorce/annullment
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No teh issue of beneficiary treated as predeceasing take only if they are also issue of T
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What is a demonstrative devise
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$ from a specific source
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What is the order of abatement
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Residue
General Demonstrative Specific |
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What if a specific devise is lost, stolen or destroyed in the 6 months preceding Ts death
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Bene is entitled to insurance proceeds or condemnation award
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What is the test for testamentary capacity
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1. Did T understand teh nature of the act
2. Did T comprehend the character and extent of her property 3. Did T know the natural objects of her bounty 4. Did T understand the disposition she was making |
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Elements of Undue Influence
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1. Existence and exertion of the influence
2. THe effect of which is to overpower the will of the T and destroy Ts free will 3. The result of the influence is a will that would not have been executed otherwise |
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Can T disinherit his wife and kids
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Yes, but they can still get Year's support
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