Wills And Estate

Front 1

intestate succession

Back 1

1. passage of prop.
2. decedent dies w/o a valid will

Front 2

decedent

Back 2

the dead person

Front 3

descendant

Back 3

succession of REAL prop.

Front 4

distribution

Back 4

succession of PERSONAL property

Front 5

Heir

Back 5

A person entitled to take under intestate succession(dying without a will) of real prop. laws.


---have no heir when you are alive.

Front 6

what is presumptive heirs

heir apparent.

Back 6

person who would be your heirs if you were to die intestate ( w/o will).

Front 7

what is the diff. (common law )
heir v. next of kin.

Back 7

common law

heir = people who took land

next of kin = people who took personal property.

Front 8

ancestors

Back 8

a person related to the decedent in an ascending lineal line---parents and grandparents.

Front 9

descendant

Back 9

1103

a person related to the decedent in a descending lineal line, children--grand children.

Front 10

collateral relative

Back 10

a person related to the decedent but not in a lineal line.

sibling--niece and nephews, aunts and uncle and cousins.

Front 11

who get the first dips---
if there is no will

1-2-3

Back 11

-- descendant---children--grandchildren.

--first line = mother/father, niece and nephew

--second line = grandfather/grandmother
aunts/uncle
first cousins

--third line =
great grandparent
great aunt/great uncle
first cousin removed.

Front 12

consanguineous relationship.

Back 12

a biological or blood relationship

Front 13

affinity relationship

Back 13

relationship by marriage or in-laws

Front 14

testate succession

Back 14

a passage of property under a will.

Front 15

will

Back 15

1. a written document
2. will own the decedent's property
3. decedent dies

Front 16

codicil

Back 16

1. will that merely amends
2. already or adds to existing will.

Front 17

testator

Back 17

a person who dies with a valid will.

Front 18

a devise

Back 18

a gift of real property in a will

Front 19

devisee

Back 19

a person receiving the gift-real property.

Front 20

bequest

Back 20

a gift of personal property in a will

Front 21

lagatee

Back 21

person who is receiving the money.

Front 22

beneficiary

Back 22

a generic term for person receiving property under a will regardless whether it is real or personal property.

Front 23

distributee/next of kin

Back 23

the person next in line for the personal property.

Front 24

issue

Back 24

includes everyone in the family lineage( not just kids)

---this does not include marriage partners but may include adopted kids.

Front 25

Lineal ascendants

Back 25

parents--grandparents and so forth.

Front 26

first line collateral

Back 26

brothers or sister.

Front 27

consanguinity

Back 27

relationship by blood

Front 28

affinity

Back 28

relationship by marriage

Front 29

fillius nullius

Back 29

child born out of marriage

Front 30

posthumous heir

Back 30

child conceived before but parents died but when born parents are dead.

Front 31

probate

Back 31

1. assets that are held in decedents name alone

2. require decedents signature to transfer

3. property can be transfer testate or intestate.

Front 32

non-probate

Back 32

transfer via a k or operation of law

the will does not govern non-probate asset.


ex---life insurance, ira, annuities
via operation of law--joint tenancy.

Front 33

trust

Back 33

1. a property divides title

2. legal and equitable interests.

3. fiduciary duties on the holder

4. for--the benefit of 3rd party

Front 34

settlor

Back 34

the person who created the trust.
---also known as grantor, donor.

Front 35

beneficiary

Back 35

the person who receives the equitable title---according to settlor's instruction.

Front 36

trustee

Back 36

1. the person who hold the legal title to trust and prop.

2. has the fiduciary duty to manage that prop.

3. according to settlor's instruction.

Front 37

principal

Back 37

the prop. conveyed in trust form.

Front 38

income

Back 38

1. the profit from trust.

Front 39

administration.

Back 39

the process


of collecting and managing all the decedent's prop. so that the decedent's creditors are paid to the fullest--anything remaining are turned over to the heirs or beneficiary.

Front 40

administrator

Back 40

the person in charge of the estate of an intestate decedent.

Front 41

executor

Back 41

the person in charge of administering the estate of a testate decedent.

Front 42

personal representative

Back 42

generic term for a person in charge of administering the estate of decedent.

Front 43

common law system of property.

Back 43

each spouse owns her entire income as well as any property brought into the marriage by gift.

Front 44

community property.

Back 44

each of the spouse owns the property but only 1/2 of the income.

Front 45

wife dower rights--- in real prop.


old law

Back 45

surviving the husband
1. 120 hrs time of death

2. wife gets life estate = 1/3

3. this can not be deprived by transferring, will or gift to another.
---the gift would be effective with the wife life estate.

Front 46

what does Eyerman case stand for

Back 46

die person wanted their house destroyed after they die.

the crt did not allow this for it was against public policy and would hurt the neighborhood

Front 47

what are the 3 type of assets.

Back 47

1. probate--those assets that are held in the decedent's name alone--and can only be transferred by the decedent's name alone.

2. non-probate- they transfer via a k or via operation of law--the will does not govern

3. trust assets--owned by the trustee--will does not govern the trust.

Front 48

what is gift causa mortis

Back 48

gift in contemplation of death.

elements

DEMA


1. dOnner intent

2. effective delivery ( also includes constructive delivery)

3. made in contemplation of death.

4. acceptance is presumed.

exception---if you recover from that which you thought your were dying from--the gift will be revoked.

In Re Van Wormer--

Front 49

life insurance--- what happens when the beneficiary dies before the insurer.

Back 49

1. life insurance is usually a non probate-estate
----passes by operations of law.
---however it can become probate in 2 situations

1. owner/insurance---beneficiary
--if bene dies before o/I, then the insurance goes to bene's estate and becomes a probate estate.

2. insured---owner/beneficiary
-----if owner/bene. dies before the insured--it goes to probate to transfer ownership.

Front 50

what is 3805 (1)
-----if the estate is insolvent (how do you pay for them)

what is the equation for them.

Back 50

Gross estate = the value of the estate upon death
-
_creditors and claims_
= net/distributable estate(heirs and devisees get paid from this amount)

if you don not have enough money to pay everyone must pay them in this order.

1. cost and expenses to administration (lawyer)

2. reasonable funeral and burial expenses

3. homestead allowance 15k (support the house in running order)

4. family allowance(support the wife and kids)--18k

5. exempt property(family heirlooms) --10k

6. debts and taxes--fed. (IRS)

7. reasonable and necessary medical expenses of the last illness.

8. debts and taxes state laws of the governing state

9. all other claims.

Front 51

3805

(2)

Back 51

no claims in the same class get priority over the other claims.

they wall get pro rata.

ex-- credit card bill

visa 5k
master card 200
disc--154k

only 1k in the acct.

add all of them up and give them according to their %

Front 52

3805 (3)

Back 52

---if there is not enough money in the probate to pay all the creditors and there is a trust

--- the trust will be used to satisfy the creditors.

Front 53

what is 2101
intestate succession.

Back 53

1. anything not effectively passed by a will.

2. passes according to statute governing intestacy.

Front 54

what is a negative will

Back 54

excludes a person from taking under the will or intestacy.

taking them out from taking under the will--anything that will give any of decedent's prop.

Front 55

child

Back 55

1103 (f) epic

child--a child entitled to take under intestate succession from the parent

(child must be blood or adopted)

Front 56

holographic will.

Back 56

whole or part (material) hand written testament by the decedent.

1. some jurisdiction do not require a witness.

2. must have signature and date it.

Front 57

judicial scissors

Back 57

= holograhic will

the crt might cut out non-hand written part of the will. ( to see if intent can be derived from the hand written parts only.

Front 58

Nuncupative will

Back 58

oral will ( this is usually limited to personal prop.)

such restriction can be made.

exception is = soldier and sailors--may be exempt from restriction.

Front 59

self proving will.

Back 59

a will that is cited in affidavit or attached; signed before notary public and witness.

---benefit doesnt need a witness can not be attacked on that issue.

Front 60

another name for formal will

Back 60

stationer will
--no need for attorney.

if lack prove of needed intent (witness)--it will fail unless it will qualify as a holographic will

Front 61

statutory will

Back 61

a form prescribed by the statute.

--simply fill the form and initial what and who they want the their stuff to go to.

Front 62

uniform statutory will act

Back 62

--need the lawyer to help.
--formal will

Front 63

duplicate will

Back 63

will that have been prepared in duplication and each executed with the required formality.

---then such is a original instrument and not a copy.

----exception= revocation of one duplicate will serve to revoke both.

Front 64

conditional will

Back 64

will that put limits or condition on the execution of it.

Front 65

living will

Back 65

not a will at all

---directing that the signer life shall not be prolonged by extraordinary med. procedure when there is no expectation of recovery.

Front 66

joint will.

Back 66

---usually husband and wife.
---executed in a physical single document signed by both.

ex--
j leaves all his prop. to amanda for her life--amanda leaves all of her prop. to tad.

both executed the doc. but the use of a single instrument makes this a joint will.

Front 67

mutual will

Back 67

are separate wills that contain reciprocals or identical provisions for dispositions of each testator's prop.



ex
ex. J leaves all of his prop. to Amanda for life--Amanda in turn leaves all her prop. to J for his life.

Front 68

estate

Back 68

either the total property of a decedent that passes by a will or intestate succession, or the nature and extent of an interest in real or personal prop.

Front 69

specific gift

Back 69

is of a particular thing that can be identify as part of the testator estate

ex---i give my house one 1211 w. cooleyville.

Front 70

general gift.

Back 70

is a certain quantity or type of property but it does not refer to, and is not payable out of any particular asset of the estate.

--ex
i will give 1k to y (but from where)

Front 71

demonstrative gift.

Back 71

has characteristic of both gen. and specific gift.

like the gen. gift it is of quantity or type (but not a specific item)--but it is to be satisfied out of a specific funds if available--if not from gen. assets.

ex---
i will give a 1k after i sale my house and have $$ left over--if not--then any funds that is from the state.

Front 72

residuary gift/residue

Back 72

whatever remain after the estate has paid for specific, gen, or demonstrative gift.

Front 73

what is the writing requirement for a will.

Back 73

1.an instrument expressing an idea in the form of

2.visible letter or characters.

--can be written virtually on any surface.
--but must be legible and preserved.

Front 74

what is the person writing the will called

Back 74

scrivener

Front 75

signature.

Back 75

one's name or mark to an instrument for the purpose of authenticating it.

--usually full name
--but can use initial or nickname.
--signature by mark is also ok
-----------ex= X


exception--a third party can add the testator signature
----but this must be done in testator presence
----and w/ testator direction and requrest
---and must have 3rd party signature on the will

Front 76

what is the intention of a signature called.

Back 76

animus signandi---the intention that it serves.

Front 77

witness

Back 77

one who observe that testator signing the will and who also signs the will to attest to that fact.

competent witness= competent at the time he was a witness.

Front 78

attestation clause

Back 78

clause at the conclusion of a will that recites the due execution of the instrument.

---placed after the testator signature and is signed by the witness to the will.

Front 79

interested witness.

Back 79

a person who would receive some benefit under the will in which the person is a witness to.

---common law interested witness can not attest to the will and if does = invalid

---Now--they can be a witness but if there is a issue with the will.


the purging statute might be used against them.

Front 80

purging statute

Back 80

interested witness may lose their interest if purging statue is used.

---this removes their interest to falsely attest

Front 81

supernumerary

Back 81

when more than the required signature is used to validate the will.

---this usually deals with interested witness.

ex-- 2 is needed and 3 signs
---but if 3 is interested--3rd will not have any benefit lost to them.


however if the 2 that signed is interested and the 3 is not the 2 will lose their interest and 3 will not be affected.

Front 82

execution of a will

Back 82

the signing of a will by the testator.
----this is also called due execution.

--this includes the signing of the will
--the witnesses
--all prescribed formalities.

Front 83

attestation.

Back 83

the act or observing or bearing witness to, the execution of a document ---such as a will.

---the act requires the physical act and the state of mind.

Front 84

re-execution.

Back 84

execution with the requisite formalities of a will that has already been executed but for some reason has ceased to be effective.

---this usually applies to a will that has been revoked

Front 85

republication.

Back 85

re-establishment of a will, either after it has been revoked or valid to reassert its terms as of a latter date( usually by codicil)

---this does not mean subsequent publication or oral declaration of the will.

--but rather the complete re-execution will--the same formalities originally required by the statute.

Front 86

acknowledgment

Back 86

an indication to witness that one will has been signed.

----be the presence.

Front 87

presence

Back 87

that a testator and witnesses of a will be in some type of proximity when one or the other signs the will.

strict = seeing them sign it.

gen= in the gen. vacinity and know that a signing is taking place.

Front 88

publication.

Back 88

the testator declaration to the witness that the doc.

Front 89

testamentary intent

Back 89

animus testandi
---the intent when writing a will.

Front 90

specimen will

Back 90

intended as a sample or reference for that later drafting of the true will.

Front 91

dispensing power

Back 91

---gives the court dispensing power (crt decides to excuse noncompliance)

Front 92

will contest.

Back 92

an attempt to prevent a will from being admitted to probate or recind the probate once granted.

Front 93

mental deficiency.

Back 93

lack of sufficient mem. or understanding to execute a valid will.

1. must know and understand the nature and extent of one's property.

2. "natural object of one's bounty.

3. understand all the relation to one's element.

----ability means = testators need not actually know these things but must have the ability to know them.

Front 94

insane delusion.

and what is the exception.

Back 94

false belief lacking absence of rational supporting evidence.


this does not mean that testator belief must be those of ordinary person but that they must not be so unfounded and bizarre as to explainable only as the product of metal illness.


---the part that has been read as delusion is the part that will be etched out.

Front 95

undue influence

Back 95

an act that has the effect of overcoming the testator's free will in the execution of a testamentary instrument.

--the exertion of influence is not itself undue just b/c it has effect of swaying the mind.

rather there must be some element of fraud or coercion--that overrides the testator's will.

Front 96

extrinsic evidence.

Back 96

evid. of facts and circumstances beyond the words of the will.

Front 97

w two situation rights to survivorship.

Back 97

1. Joint tenancies- two or more person share undivided ownership of the whole---and the last survivor gets the prop. at the end.

2. Tenancy By the entirety--prop. held by husband and wife.--if anyone of the person dies that then surviving spouse gets the share upon death.

Front 98

what is qualified monies.

Back 98

1. retirement funds
2. IRA
3. 401k
4. 403k
---these should always have a designated beneficiary.
---but they are owned in the decedent's name alone--but do not require a signature to transfer title.

Front 99

Paid on death (POD)/Transfer on Death(TOD)

Back 99

can be used with investment and bank accounts

Front 100

how are annuities operate.

Back 100

They operate like life insurance.

Front 101

what is the probate process for someone with a valid will.

Back 101

1. the person dies.
2. the will is then submitted to the probate crt.
3. a personal rep is appointed in the will.
----everything then follows the wills instruction.

Front 102

what is the probate process for someone without a valid will.

Back 102

intestacy/partial intestacy--
1. there is a petition process/application
----person is applying to be the PR of the estate.
2. priority of who--is established by that statute in the state.
---job of the PR is to

1. assess all assets
2. acct for all assets
3. Notify creditors
4. gather relatives for distribution and ect.
5. pay all the creditors.

Front 103

what is the probate process for someone without a valid will.

Back 103

intestacy/partial intestacy--
1. there is a petition process/application
----person is applying to be the PR of the estate.
2. priority of who--is established by that statute in the state.
---job of the PR is to

1. assess all assets
2. acct for all assets
3. Notify creditors
4. gather relatives for distribution and ect.
5. pay all the creditors.

Front 104

how would a lawyer prevent part of the estate from passing under intestacy.

Back 104

a residual clause= the clause would state that anything that was not accounted for in the will must go to a certain person.

Front 105

what is meant by the requirement to having to survive the decent.

Back 105

a person is considered to have survived decedent if they

1. lived pass 120 after the decedent.

---if they do not meet the requirement then = they forfeit homestead, exempt prop. and intestate shares.

Front 106

what is the exception to the survival requirement.

Back 106

1. decendant is the last one in the lineage or all of the money goes to the state.
---then person considered have not survived gets the money-it would then distributed according to the person estate or pass intestate.-----

Front 107

what is the rule for child yet not having been born survival rule.

Back 107

1. an individual in gestation considered having survived if

1. they are born alive and live pass 120 hrs after birth.

Front 108

what is the def. of survival spouse.

Back 108

1. one who is not divorced from the decedent---or marriage was not annulled.
-----separation decree does not terminate the marriage.

2. not a surviving spouse if person got a annulment or divorced---and---accepted it---even if it is not valid.
*****exception unless they remarry or live together as husband and wife( common law)

3. not a surviving spouse if already marry and goes through another marriage (bigamy)

4. does any of the following for more than 1 yrs
a. absent
b. deserted
c. willfully neglected or refuse to provide support for decedent spouse if required to do so by law.

Front 109

what does the wife get if there is no decedent and surviving parents.

Back 109

the wife get entire estate.
--if no decedent or parents

Front 110

wife---gets?
no decent but
---there are parents survive--husb.

Back 110

wife 150k plus 3/4 of distributable estate.

parents get 1/4

Front 111

wife gets----?
if there is mutual decedents--

Back 111

wife gets 150k + 1/2

Front 112

wife gets----?
if all decedents are mutual---
but one or more is not.

Back 112

wife gets 150k + 1/2

Front 113

wife gets----?
if some of the surviving descendants are mutual to both spouses and the decedents has 1 or more non-mutual surviving descendants.

Back 113

wife get 150k + 1/2

Front 114

wife gets---?
if all of the surviving descendants of the descendants are non-mutual

how much does the wife get.

Back 114

the wife gets 100k +1/2 of all the surviving descendants of the non mutual descendants shares

Front 115

1106
--what does non-decedent mean?

Back 115

a decedent whose was domiciled in another jurisdiction at the time he was dead.

Front 116

1103
--who is a child.

Back 116

a child who can take under intestate succession--must be

1. adopted
2. blood (even if 1/2)

Front 117

1104
who/ what can an adopted child take.

Back 117

1. adopted child is child of the adopted parents and not he bio.

---but the adopted child can still take share from his biological parents.

Front 118

what are the 3 ways a child is considered to be adopted.

Back 118

1. child-adopted---crt order permanent termination of parental rights.

2. parent release rights for adoption purposes.

3. other process recognized by the law at the time of termination--((((except death or emancipation--still parent of the child))))

Front 119

will---

what is the requirement for testamentary capacity.

Back 119

1. testamentary capacity--
2. legal age
3. sound mind at time making the will.
4. intent to make the doc.
5. comprehend kind and character of prop. being given.
---comprehend and remember---
---"natural object of his bounty--

Front 120

will-----

what is the writing requirement

Back 120

1. the will must be in writing.
2. signature
3. must be declared before and signed by 2 witness.

Front 121

how do u revoke a will---

Back 121

1. testator may revoke the will at any time before her death.

----maybe revoked by 1-3
}}}}a. physical act--intentionally
---burning(can burn the side or any part of it)
---tearing
---destroying the will

}}}}b. Subsequent writing.
---intentionally making a new will
or
---amending
or
---revoking any all or a part of will (codicil)

or

by operations of law
---divorce-annulment-or one or more unexpected children after the WILL was executed.

Front 122

what is the simultaneous death statute

what is the modern view---

what is the standard of proof-

Back 122

is the old idea
---use when both decedent and beneficiary die at the same time.
----the estate is distributed as if defendant survives beneficiary.---

--now for beneficiary to receive anything---beneficiary must survive decedent by 120 hours (five days).

-by clear and convincing evid.

Front 123

what is a negative will/negative bequest.

Back 123

a provision in a will directing that a heir cannot take any prop. by intestate succession.

the heir is treated as if they predeceased the decedents or disclaimed their inheritance.

Front 124

what is a constructive trust.

Back 124

1. instrument used to correct unjust enrichment--
a. undue influence-
b. duress-
c. fraud-
d. mistake-or
e. wrongfully.

2. the trust will name the wrong-doer as the trustee for the benefit of the person unjustly deprived.

Front 125

what is pre/ antenuptial

Back 125

a writen arrangement made before marriage that affects the rights and prop. interests of the parties after they marry.

Rinvelt v. Rinvelt case----Antenuptial agreements are enforceable on death or divorce of a spouse.

Front 126

what are the way antenuptial agreement can be waived.

Back 126

if waive must be

1. writing
2. signed
3. full informed
4. can pick and chose which rights to give up
5. entered before/after marriage ---if rights are waived wife waives all right
-----family protection
-----election
-----dower
--------waiver is irrevocable.

Front 127

what is postnuptial agreement

Back 127

agreement entered into after marriage.

1. written arrangement made by parties for how the property will be distributed--
in light of divorce.

Front 128

what is disclaimer ---
what is the company case--

Back 128

a refusal to accept the benefits under a will or intestate sucession statute.

---case---coomes
-daughter tried to disclaim her share in her mom estate b/c debtor was trying to get money form her.

***exception***a person can not disclaim her share before the person giving it dies***
----policy because they dont know that she will definately get it.

---b/c daughter vested immediately after her mom died-creditor put a lien on it right away.

Front 129

what is necessary for disclaimer in epic.

---tax code.

Back 129

1. a person can disclaim anything except joint property.


tax code.-----------

2. . the disclaimer must happen within 9 months of getting the prop.

3. the disclaimer must not take any beneficial interests in prop. b4 disclaiming the interest.
(ex-person cant use the prop. for six months and then disclaim it)

4. a person can disclaim only partial of the prop. and not the whole thing.

Front 130

what is the requirement for disclaimer for trust.

Back 130

1. a person/or rep. can disclaim a trust in whole or in part.
---same thing with trust but only the the extent that the instrument expressly gives the trustee the right to do so.

Front 131

what s the valid disclaimer.

Back 131

WDDDS

1. in Writing
2. Declared as disclaimer
3. Describe it thing disclaimed
4. Delivered
5. Signed.

Front 132

what is the requirement of process delivery for disclaimer.

Back 132

if disclaimer is for a will/trust=

1. disclaimer delivered 9 months after death

2. disclaimer cant take any benefit b4 giving it up.

---if by will or intestacy----
1. disclaimer must be delivered to Personal Rep. of the estate.

2. if trustee--then trustee (if no one appointed)--then to PR of that estate.

Front 133

what happens when the disclaimer failed to meet the requirement under the statute.

Back 133

if the disclaimer does not specify how he want his share disposed of.

1. the share will pass as if disclaimer predeceased decedent.
----next in the line of disclaimer estate

-----exception-----
if by law or will or other

1. the dead was suppose to take disclaimer share if disclaimer died b4 then prop. passes to dead's estate.

Front 134

what is the slayer statute.

what is the case accompany---

Back 134

anyone who intentionally kills the decedent and is convicted. forfeits all benefits under the decedent's estate.

the slayer get treated as if the he has disclaimed all right.

--in re Mahoney-- wife kills husband.

Front 135

what is advancement and what are the requirements for it.

Back 135

def.
--decedent dies intestate but gave someone prop. during the lifetime-and that person is an heir--prop. is treated as advancement if the following occur.

1. decedent declares in writing and heir accepts= advancement--any time before dead.

2. decedent writing and heir both acknowledge that gift is to be subtracted from estate--as it is given.

3. if the receiver dies b4 giver. then the given gift is not taken into the estate acct.---unless other writing said so--

Front 136

is assignment of expectation valid?

Back 136

def.
---when a presumptive heir transfers a potential claim to a 3rd party.

---not enforceable b/c the giver can change their minds or maybe the heir is disinherited..can be taken in many diff. ways.

--if the person whose promised was given to by the heir wants this enforced--they can sue the heir for breach of k but not the estate.--

Front 137

is assignment of expectation valid?


what is the accompanying case.

Back 137

def.
---when a presumptive heir transfers a potential claim to a 3rd party.

---not enforceable b/c the giver can change their minds or maybe the heir is disinherited..can be taken in many diff. ways.

--if the person whose promised was given to by the heir wants this enforced--they can sue the heir for breach of k but not the estate.--

Scott case---- dad left mom and wanted to support daughter.--dad failed to pay and mom sued.

----assignment of expectation are enforceable it there is adequate consideration.

Front 138

what are the family protection?

Back 138

---homestead allowance.
1. 15k---
a. prop. taxes
b. insurance
c. expenses for surviving spouse and minor kids.

----family allowance.
2. 18k
a. basic necessities for wife and kids until estate is distributed.
b. last only 1 yr
c. can be paid in 1 sum or installment.

----exempt property.
a. 10k
b. for wife and all children
c. family heirlooms

total for allowance is 43k
**subtract this first from total gross estate.**

Front 139

what can a wife get if she is left outside the will.

what is the time line for the woman.

Back 139

wife can take one of the following.

1. abide by the terms of will.

2. elective/force share:
---(1/2 * intestate share) - (1/2 * value of non-probate share)
---This is applied to the total distributable estate.

3. dower.--def = 1/3 in a life estate in the husband's real property.

----the wife must select within 63 days after

1. presentment of claims

2. 63 days after service of inventory---

-----whichever is later.

Front 140

who is a omitted spouse.

Back 140

1. protects the surviving spouse after he is married and have executed a valid will.

2. crt assumes that dead meant to include the surviving spouse.

Front 141

look up epic 2301-----calculation

Back 141

find out

Front 142

what is the exception to the omitted spouse.

Back 142

the surviving spouse does not take as omitted spouse if:

1. the will made in "contemplation of marriage to surviving spouse".

2. will expressed intention to be effective "notwithstanding" a subsequent marriage.

3. dead provided for the wife outside the will.--crt found find the outside source to be the substitute--or can reasonably be inferred.

Front 143

what can the spouse waive in terms of her spousal rights.

Back 143

1. she can waive all or part of her spousal rights--intestate share.
--includes family protection-election-and dower-or exempt prop. before or after the marriage.

---the waiver must be in writing
---they must also have a fair disclosure.

Front 144

who is a omitted child

Back 144

def.
omitted child is a child born after or adopted after the will was executed.

Front 145

what can the omitted child take

----what is the exception---

Back 145

if the testator prepared his will

No--child were born or adopted

1. kids will get shares = to his intestate succession.
---EXCEPTION---
unless the surviving parent receives it all or a substantial part of the testator estate.
___________________________

more than one child was alive

1. 1 IF ALL WEALTH IS DISTRIBUTED = omitted child will get the same amount as the others. MUST BE OF SAME CHARACTER.

2. if NOT the other children in the will--will have to abate ratably.

Front 146

can a third party sue a lawyer if the lawyer wrote the decedent's will wrong.

Back 146

yes but they must have standing to sue.

----Zimmerman case--lawyer forgot the put the wife in the will and did not give her life estate.

Front 147

what is a self proved will.

Back 147

testator and witnesses sign a sworn statement that what they signed is a will---attestation clause.

Front 148

what is a statutory will.

Back 148

1. standard form
2. provided in every state.
3. allows testator to write his/her own will by filling in the blank.

Front 149

what is oral will.

----what is the exception.

Back 149

by video tape.
---this is not allowed in MI.

Front 150

what is a joint will.

Back 150

1. usual husband and wife.
2. write on 1 piece of paper
3. both sign it attesting to it be a will for both parties.

Front 151

what is a mutual will.

Back 151

1. usually between spouses
2. identical statement
3. on separate doc.
4. provided that each give the estate to each other.

Front 152

what is a living will.

Back 152

1. not a will.
2. it tell med.
3. to save u or not if u are dying.

Front 153

what is a ward.

Back 153

is a person who a guardian is appointed to

Front 154

what is the requirement for testamentary intent.

Back 154

1. person 18 yrs of age

2. of sound mind.

3. the plan of distribution in the doc. is the one the signer intended to be his will.

4. person must also be aware of the "nature of his gift"--the bounty.
----this is low standard of proof.

Front 155

what is necessary for a valid will.

what is the case that explained this concept.

Back 155

will must

1. be in writing.

2. signed by the testator
--or signed by someone else in the testator's presence.

3. signature is express intent of the testator---regardless of what he writes.

4. the signature is not required to be in a specific place on the document.

5. signed by 2 witnesses within a reasonable time after testator has signed.---witness must have witnessed testator signature or acknowledge his signature.


----in re Bem-----
dad wrote a will
material portion of the will was in dad's handwriting
but dad did not sign at end-will.
he signed in middle.

Front 156

what happens if a will fails to meet the former requirement--written by testator

Back 156

holographic will.

a will does not met the requirement of a formal will
----1. it must be dated
----2. signed
----3. material portion of the doc. must be in the testator handwriting.
--whether it was witnessed or not.
----extrinsic evidence can be used to determine intent of testator

Front 157

what is need for a conditional will?

Back 157

1. clear and unambiguous language.
---of this is not present--it will not be considered to be conditional will----

* it will be considered inducement.

Front 158

what is needed for substantial compliance

---what is distinguishing case.

Back 158

burden of proof is clear and convincing evidence.

1. intent the doc. to be his will

2. that there was no compete or revocation of his will.

3. no alterations were made to the will.

4. there was no revival of his formally revoked will.

In Re Skydancer--common law husband contested common law wife will-- crt nope.

hall case---
1. husband signed a sequent will
2. lawyer was presence.
3. asked if it was valid-lawyer yes.
4. told wife to tear up the old will.
---daughter contested because there was no witness present----
-----crt said the will was valid b/c it was honest mistake.

Front 159

can a notary be a witnessed

what is the case on this subject.

Back 159

yes as long as everything complies with the requirement standard.

---Gerhardt--one witness and a notary signed
everything was in compliance but the witness---stills get in.

Front 160

who can be a witness to a will.

Back 160

- a person who is generally competent to be a witness may act as a witness to a will. (probably someone who can make their own will)

1. 18 or over
2. sound mind
3. know the nature and extent of their bounty.

NOTE----
a will or any of it provision is not invalidated b/c an interested person singed as a witness.

Front 161

what is a purging statute.

Back 161

this is a statute that revokes a will when a interested witness signs.

----applicable in some state but MI does not have it.

Front 162

how does the court treat misdescription and ambiguity.

Back 162

Lawson case-- testator gave the house and its content to sis.

sis. found stocks and petition that decedent wanted to her to have it also.
---------------crt ruled that only house-hold items were directed towards the sister and not stocks and bonds.

Front 163

what is the point of the Gilmer case.

Back 163

1. just cause a person has a conservatory and declared by the crt as incompetent--doesnt mean they cant write a will.

2. mental capacity needed to write a will is lower than needed to execute a contract in ordinary business.

3. person has only to be aware of his
a. prop.
b. bounty
c. claims
to make a will.

Front 164

what is the standard used to evaluate if a will is valid.

Back 164

Rational basis
--Hargrove case
----dad didnt leave anything to kid
--kid claimed dad was delusional--
---crt dad had rational basis---
---dad friend remarried ex-wife as soon as they divorced.

Front 165

who are the parties when contesting a will---
---where does the burden lie

Back 165

1. petitioner
--trying to establish intestacy
A. death
B. Residency
C. heirship.
---also has to prove-----
A. testamentary intent
B. undue influence
C. Fraud
D. Duress and mistake.

2. proponent
---has to prove execution just like petitioner.

Front 166

what is the undue influence case.

and what is the 7 factors.

Back 166

1. procurement (action of obtaining)

2. independent advice.

3. secrecy and haste

4. change attitude towards others

5. change of plans

6. unnatural or unjust gifts.

7. susceptibility to influence.

swenson case--grand mother changed her will to give everything to the neighbor lady.

Front 167

what is the diff. between the Swenson v. Karmey

Back 167

Swenson--all of the element were met

grandmother leaving everything to her care-taker and nothing for her family.

Karmey--husband left nothing for the kids of a previous marriage and everything to the new wife.

crt------marriage alone does not result in undue influence.

Front 168

what is mistake in the inducement.

Back 168

testator
1. mistake about the law or fact
2. relies on it
3. writes his will in a particular way.
------what is the crt view on this-
****usually the crt will not correct the mistake******

Front 169

what is mistake in the execution.

Back 169

mistake with the content of the will.

1. mistaken omission-- forgot to add someone

2. mistake inclusion--meant to take someone out of the will but forgot to do it.

----in any of these cases the crt will not correct any of them---

Front 170

what are the two types of fraud

name the case.

Back 170

1. fraud in the execution=
----someone lied about the content of the will.

2. fraud in the inducement
----someone lied about the facts and prompts testator to prepare will in a certain way---


ROBlin case--
1. mom died
2. son didnt get along with dad.
3. daughter was upset that mom left more money to son than her. 4. told dad and dad revised will.
---not fraud but exaggeration---
daughter did not have intent to deceive.

Front 171

what is a terrorem clause.

Back 171

this is a no contest clause
---a provision meant to frighten someone into accepting the terms of the will.

exception-----if the contestant have probable cause to challenge the validity of the will---the interrorem clause will fail---

Front 172

how can a person who has been left out of the will amend?

Back 172

1. all the interested party can agree to divide the prop. as they see fit.

-----the agreement must be in
1. writing
2. all affected parties must agree
3. must be followed by a personal representative.

Front 173

what it the elements for a lost will.

Back 173

cason case

1. proof that the will was duly executed.

2. proof that proponent inability to produce it was by reasonable diligence.

3. substantial proof content of the will was by a credible witness.

Front 174

will a photocopy of a will be admitted in court.

Back 174

Goodwin v. goodwin

no--because the photo copy does have original signature making the document valid.

Front 175

what is a revocation of a will

and

what are the acts to revocation.

Back 175

def.
a subsequent will that revokes the previous will or part of it expressly---

1. "I hereby revoke all prior wills and condicils"

2. or by inconsistency.
__________________________
the acts of revocation are can be

1. testator

2. another in the presence of the testator WITH THE INTENT TO REVOKE.
----
1. burning
2. tearing
3. canceling
4. destroying any part of the doc. even if the act does not touch any words of the doc.
-----revocation is immediate when any of these acts occur.

Front 176

how do you determine if the subsequent will is meant to replace the 1st one.

Back 176

1. does subsequent will completely dispose testator's estate

2. is it intended to replace the previous will
---------is it rebuttable by clear and convincing evid.---------

IF
1.subsequent does not completely dispose of prop. = supplement rather then replace.

2. if can not prove by clear and convincing evid. that subsequent meant to replace--both will operate as long as they are not inconsistent.

---ex
wolf case___________
2 wills
---1. crt ruled one will disposed of personal prop.
---2. crt ruled other disposed of real prop.

Front 177

what is the doctrine of dependent relative revocation.

Back 177

1. revocation of old will and execution of new will were condition on each other.

2. crt will consider reviving old will if there is proof that testator mistaken about material fact.

ex---cases
--------
Carter ** Outside mistake-testify
1. t-had hand written will and old will.
2. the old will had pencil lines through it.
3. New will was unsigned.
4. she told lawyer she was waiting for him--but he never got around to fixing it.
------crt let the old will in.

Front 178

can a change in circumstances revoke a will or part of it.

Back 178

No-a change in circumstances can not change a will or a part of it.

Front 179

what is the slayer statute state.

Back 179

1. person who feloniously and intentionally kills the decedent

forfeits their rights-----

1. to any share of his estate
2. family protections
3. property given by other instruments
4. as personal rep. for the decedent estate
5. prop. that was held with the rights to survivorship.

----the shares will be passed as if the slayer had disclaimed his interest-----

Front 180

what happens when a party gets divorce.

Back 180

1. divorce revokes all the rights to any interests in a former spouse's estate.

------however anything that is revoked by this statute is revived if the couple remarries----------

Front 181

what is the revival of the revoked will.

Back 181

# 2 controls if
A. #2 wholly revokes 1
----if # 2 has expressed terms
-----or the 2 has completely disposed of all the prop.
___________________________

B. if will #2 partly revoked #1, #2 is later revoked by physical act.
--partly revoked 1 is revived
----------unless-----------------
B1. evidence said otherwise
B2. testator declare
__________________________
C.
c1. if will # 1 was revoked in part or whole by will #2 and will #2 is revoked by will #3

c2. will #1 remains revoked in whole or in part unless it is revived.
---revived if the terms of will #3 shows the intended will #1 to take effect.

Front 182

can a codicil republish a will and make it valid.

Back 182

yes.
1. this is reestablishment of a will
2. either after it has been revoked.
3. or----although it is still valid, reassert its terms on a later date by codicil.

Front 183

what is the ademption

Back 183

--nullify of a bequest of prop. because it is no longer in the testator estate at the time of death.

Front 184

what is the satisfaction in dealing with gifts.

Back 184

1. it is like an advancement a gift given the people when they are living.

2. testator must intended( must be found in the will or writing) to be a gift at the time it is given.

3 or. the receiver acknowledges the gift in writing.

Front 185

what is the doctrine of ejusdem generis

Back 185

idea that if what is given in live is not the same in nature as what is bequeath---satisfaction is not assumed.

Front 186

what is accession and accretion.

Back 186

additions to or increase in the value of bequeath porp. that accrue before the death of the testator or before distribution to the beneficiary.

---pre-death interests of securities and dividens do not pass to the beneficiaries-they do if the testator is dead.

Front 187

what is lapse

Back 187

the termination of a testamentary gift because the beneficiary predeceased the testator or is unable or unwilling to accept the gift.

-----this also includes beneficiary dying
-----this also includes bene. disclaimer

Front 188

what is it called when a gift to a beneficiary who has already died when the will is executed called.

Back 188

a void gift---modern statute has treated void gift and the lapse gift interchangeably.

Front 189

what happens to a lapse gift.

Back 189

it goes into a residual, if there is no one than it passes into intestacy.

Front 190

what is antilapse statute

--person gave class gift to all the nieces and nephews
--the rest was suppose to go to brother and sister (if both died than the other one)

---both of pairs die
---now the gift goes to all the children equally because his will read 1k to all the kids.

Back 190

it saves lapse gift of those who are specifically mentioned and gives them to specified
alternative survivors.

----who are issuance of the dead who was suppose to take.
----there is degrees of separation
-------closer get more
-------further get less


case----Ulrickson case

Front 191

what is a class gift.

Back 191

a gift divided proportionately among a distinct group (class) of persons.

Front 192

what is closing the class-

Back 192

determination that after event or time no one further may be added to the group that shares a class gift.

Front 193

what is the rules of convenience.

Back 193

when there is at least one person who can take from the estate--the estate can be deemed to be closed.

Front 194

how to create a trust.

Back 194

1. settlor must have a capacity to create a trust.

2. settlor must have the intent to create a trust.

---spicer case not enough language to create trust (precretory language)

---Huskell (clear language for trust)

3. a definite beneficiary.

4. Trustee have a duty to perform
--Bellows case

5. must have direction to how the trust will be exercised.

Front 195

pet trust

Back 195

1. can have 2 two trustee

2. one for entire estate

3. while other for the pet trustee.