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35 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Probate Requirements
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1. Will probated within 6 mos.
2. Appoint personal rep. 3. Creditor's claims (4 mos. from publishing notice of administration) 4. Pay funeral and medical first, then judgments and all other claims. |
Estate Administration
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Execution of a will
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1. Over 18
2. in Writing 3. Signed at the end 4. 2 witnesses (don't have to be in each other's presence) Use the conscious presence test. |
Reqs. for a will to be valid
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Effect of clauses located after the place where T signs
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Clause is invalid but will valid.
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Holographic Wills
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OK, but must have witnesses. No special breaks for them.
If valid where written, Kansas will accept (i.e. holographic w/o witnesses) |
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What happens if the witness is a beneficiary?
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Doesn't invalidate the will but witness losses legacy unless there are 2 other witnesses signing (supernumerary rule)
Or if witness is an heir she takes the lesser amount of share in will or intestacy share. |
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Effect of a death bed disposition of PERSONAL property
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OK if one witness but cannot preempt a written will.
Must be reduced to writing with 30 days and witnessed by 2 witnesses. |
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What is a self-proving will?
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Original will, self-proved by affidavit signed before a notary and 2 witnesses.
Will can be probated w/o the witnesses testifying. Burden shifts to contestants. |
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Revocation of a will
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Intent + Physical Act
Revokes all wills and codicils Presumptions: Will in Ts possession then found mutilated, T mutilated it. Will in Ts possession then can't found, T destroyed it. |
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Revocation by another person must be...
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At T's DIRECTION and in T's PRESENCE
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Lost will statute
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If can't find original will, the contents can be clearly and distinctly proved y a copy and testimony of 2 people who read it.
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What is a codicil?
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Just an amendment to the will.
If provisions are inconsistent with will CODICIL controls and revokes by inconsistency prior will. Same applies when there are two wills but one does not revoke the last, will be treated as codicil. If contradicts then implied revocation to the extent of inconsistency. |
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How do you deal with divorce?
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Treat spouse as if she pre-decease the T.
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Effect of a marriage on a will
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No effect on revocation, but
MARRIAGE + CHILD = Revokes will |
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What is dependent relative revocation?
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Mistake remedying
If mistakenly believe that revoking will 2 revives will 1 you have have will 2 back because that is better than nothing. |
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Incorporation by reference
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1. Writing must exist when will is executed
2. Will must refer to the writing as being in existence 3. Will must manifest an intent to incorporate the doct. 4. Will must describe the writing enough to permit identification. List of personal items is OK in KS doesn't have to be incorporated can be handwritten and changed anytime. |
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What is lapse?
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If a devisee dies before (within 120 hrs) T, the gift lapses, goes into residue pot, unless anti-lapse statute.
Anti-Lapse statute applies if beneficiary is Ts spouse, or other relative in lineal descent who leaves issue. It doesn't matter if the predecesed person died with a will, her will doesn't control, the lapse statute does. |
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What is the class gift rule?
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When there is a class gift and some members predecease T, the surviving members take and the anti-lapse statute does not apply.
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What is a specific devise or bequest?
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A specific asset out of the estate "I devise my 1998 Cadillac to my son John"
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Types of gifts
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What is demonstrative gift?
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Hybrid, money with instructions
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Types of gifts
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What is general
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Gift of a pecuniary amount
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Types of gifts
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What is a residuary bequest?
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The remainder, "I give all the rest, residue, and remainder of my property to my wife."
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Types of gifts
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What is intestate property?
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Intestate property results if all residuary beneficiaries have died.
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Types of gift
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When does a ademption?
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This is what happens when property bequested under a will is no longer in the testator's estate when the T dies.
This applies to specific gifts and it is said that the gift is "adeemed" or the gift fails. |
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What is abatement?
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When the equitable assets of a deceased person are not enough to satisfy fully all the creditors, their debts abate proportionately.
Start at the bottom of the types of gift, intestate, residuary, general, demonstrative and specific. |
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Ambiguities and Mistake
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If meaning on will is plain (typed wrong person) - then no extrinsic evidence
If meaning is NOT plain (which John Doe?) then allow extrinsic evidence. |
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Intestacy
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1. If no issue, spouse takes all
2. If issue, spouse takes half, descendants take half 3. No spouse, to issue, if no issue to parents. 4. If no issue, no parents, then half to mom's heirs, half to dad's heirs. (Ts bros and sisters) 5. Up to the 6th degree then escheat. |
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Intestate distribution in Kansas
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Issue take per stirpes - divide at kids level, i.e. 4 kids take 1/4 each.
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Right of the surviving spouses to share in the descedent's state.
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These rights are in addition to the spouse's share of the estate under the decedent's will or by intestacy. They may be waived by written agreement after fair and reasonable disclosure. They take precedence over creditors claims.
1. Family allowance, clothes, musical instruments, library, furniture, household goods and one auto plus $35,000 of money or other property. If spouse has her own resources, court can take that into account. 2. Homestead, Ds home and 160 acres outside city or 1/2 acre within a city of surrounding land. 3. In lieu of homestead, spouse can take $35,000 instead. |
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What is the elective share statute?
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The spouse is entitled to claim an elective share of the decedent's augmented estate: The augmented estate is the value of the net testamentary estate (reduced by family allowance, homestead, allowance in lieu and creditors claims) increased by trusts, joint tenancy property held by T, TOD or POD accounts, insurance proceeds, power of appointment property, transfers within 2 years exceeding $10K, VALUE OF PROPERTY OWNED BY SURVIVING SPOUSE.
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Augmented estate calculation
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Elective share = augmented estate multiplied by X% [yrs married multiplied times .3] reduced by money T left to spouse in his will and reduce by X(x2).
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Disclaimers
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If don' want to take under the will, state it in writing within 9 months of vesting or 21st birthday.
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Survivor
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120 hours/5 days or died at same time (unless will specific says "survived me, then only has to be one breath)
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Contest
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1. Standing, brought w/in 1 yr of probate
2. Capacity challenge - Test 3. Undue influence: overpowered will and mind of testator. Test: but for the influence. 4. In terrorem: no contest clause, contester can still take as lon as probable cause, if but nuisance then loses everything. |
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Capacity challenge test
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1. Did T understand who he wanted to leave it to or exclude?
2. Did he know what he was leaving? 3. Did he know who his heirs were? 4. Did he understand the consequences of the disposition? |
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Insane delusion
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Other form of incapacity, when T is sane but his will is the product of insane delusion, having no basis in fact or reason.
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