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45 Cards in this Set

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When can there be no administration of an intestate estate
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
What is Probate in the Common Form
May be granted immediately,no notice to anyone required, but is not conclusive for 4 years
What is Probate in Solemn Form
Requires notice to heirs, propounders and beneficiaries of the will and is effective immediately
What is the time limit for probating a will
Within 5 years of the time that any other petition is filed concerning the estate
What is Year's Support
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
What counties' Probate court has jdxn
The one in which d was dominciled on date of death or in nonresident the county where property d owned is located
What is the intestate share of SS and lineal decendants
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
What is per stirpes distribution
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
What is the intestate distribution if d dies with no SS and no lineal descendants
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
Who can an out of wedlock child inherit from by intestate succession
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
Can a father inherit from his child born out of wedlock
1. If court order ligitimated relationship
2. During child's life, father signed an affidavit or birth certificate
4. Genetic testing
What are the intestacy rights of adopted children
Adoption establishes full inheritance rights but cuts off rights of inheriting from biological parent
What is virtual adoption
Adoption proceedings started but not completed
--De facto parent-child relationship does not = virtual adoption
What is an advancement(intestacy)/satisfaction(will)
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
Simultaneous Death Act
Unless proof death was other than simultaneous, each presumed to have survived the other
Slayer Statute
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
What is renunciation
Must renounce the property before accepted and do so in writing and file with court within 9 months of death
What is the effect of renunciation
--Property passes as if the renouncing party predeceased unless the will provides otherwise
Can you make a k to make a will, not to revoke a will or to die intestate
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
What are the GA execution requirements fo a will
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
Does a will have to be witnessed even if it is in Ts handwriting
Yes, Ga does not recognize unwitnessed holographic wills
What is the effect of an attestation clause
Not required but if present, will is presumed valid
How can a will be revoked
1. By a formal writing
2. Physical Act (must destroy or obliterate will)
3.Implication(later inconsistent will or document)
4. Operation of law
What if a will is lost or destroyed beofre or after Ts death
Presumed revoked but may be rebutted by a preponderance of the evidence
Can a T partially revoke a will
-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
When does revocation by operation of law occur
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
What is the effect of divorce or annullment on a will
Does not revoke the will, ex treated as if predeceased
Can you revive a revoked will
1. By codicil
2. Show an intent to revive
3. Dependent Relative Revocation
What is Dependent Relative Revocation
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
Patent Ambiguity
Appears on the face of the will
--Court allows extrinsic E
Latent Ambiguity
Only evident when will is put into operation
--Court allows extrinsic E
Do GA courts correct mistakes
Usually not unless it is a mistaken omission of a child believed to be dead
Requirements to incorporate an extrinsic document by reference
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
Will a court respect designations that are dependent upon acts that have not occurred yet
Only if they are of independent significance
What is lapse
When a beneficiary predeceases T
Anti-lapse statute
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
What happens if there is a gift to a class and one member of the class predeceases the T
The anti-lapse statute overrides the class gift rule and issue of deceased class member will take
What happens if there is a lapse of the residuary
Passes to other residuary beneficiaris or to predeceased's issue if any.
Does anti-lapse apply to felonious and intentional killings or divorce/annullment
No teh issue of beneficiary treated as predeceasing take only if they are also issue of T
What is a demonstrative devise
$ from a specific source
What is the order of abatement
Residue
General
Demonstrative
Specific
What if a specific devise is lost, stolen or destroyed in the 6 months preceding Ts death
Bene is entitled to insurance proceeds or condemnation award
What is the test for testamentary capacity
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
Elements of Undue Influence
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
Can T disinherit his wife and kids
Yes, but they can still get Year's support