Wills And Estate

Front 1

Intestate share of Children and other descendants

Back 1

Issue take per stripes (Per capita with right of representation): The Decedent' issue take their shares per ca pita with representation. The property is divided into equal shares at the first generational level at which there are living takers. Each living person at that level takes a share and the share of each deceased person at that level passes to his descendants by right of representation.

Front 2

Shares of other Heirs

Back 2

If the decedent is not survived by a spouse or issue, his estate passes to the following takers: 1. Decedent's parents (half each or all to surviving parent) 2. descendants of the decedent's parents ( decedent's brothers and sister and the issue of the deceased brother and sisters) 3. decedent's maternal grandparents or issue and one half to paternal grandparents or issue, 4. Es cheats to TN

Front 3

Must Survive by 120 hours to take as heir or will Beneficiary

Back 3

A person must survive the decedent by 120 hours in order to take as an intestate heir or a will beneficiary. if the beneficiary fails to survive by 120 hours, the will is read and the estate is distributed as though the beneficiary predeceased the testator. 120 rule does not apply, if the will contains a provision dealing with simultaneous death- then will shall control.

Front 4

Testamentary intent

Back 4

For a will to be valid, the testator must intend for the document to act as his will. TI is established if it is shown that the testator 1. intended to dispose of his property, 2. intended the disposition to occur only upon his death, 3. intended that the instrument in question accomplish the disposition.

Front 5

Execution of an Attested Will

Back 5

1.The will must be signed by the testator, or by another person in the testator's presence,2. there must be 2 attesting witnesses, the testator must sign the will or acknowledge her previous signature in each of the witnesses presence, 3.

the witnesses must sign in the testator's presence, 4. the testator must publish the will, the witnesses must sign in the presence of each other

Front 6

Tip on Signatures

Back 6

If after the will is signed and attested, a testator adds clauses to the will the issue is not the placement of the signature. The added clauses are not given effect because they are unattested words. Only the words present on the will at the time it was executed are part of the duly executed will.

Front 7

What is the attestation clause

Back 7

An attestation clause recites the elements of due execution. Proof of the signatures of the testator and the two witnesses raises a presumption of law, while proof of the signatures of the testator and the two witnesses along with an attestation clause raises a presumption of fact and this presumption of fact is substantive evidence and does not disappear in the face of contrary proof.

Front 8

What is a self proving affidavit

Back 8

A will may be self-proved at the time it is executed, eliminating the need for witnesses to testify later. The testator and the attesting witnesses sign the will and then the witnesses sign a sworn affidavit before a notary reciting eh facts they would be required to testify to in court to prove the will. Signatures on the affidavit CANNOT be continued as signatures on a will.

Front 9

Holographic wills

Back 9

To be valid the signature and all materials provisions must be in the testator's handwriting- handwriting needs to be proved by two witnesses at probate. Signature doesnt have to be at the end of the will and does not need to be dated.

Front 10

Creation of Nuncupative (oral) wills

Back 10

Oral will cannot dispose of real property and can dispose of no more than $1,000 worth of personal property. Oral will must be uttered by testator in imminent peril of death, who in fact died as a result of peril, uttered in the presence of 2 disinterested witnesses, reduced to writing by one of the witnesses within 30 days after it is uttered, and offered for probate by one of the witnesses with 6 months of testator's death. Cannot revoke or alter an existing will.

Front 11

Conflict of law issues

Back 11

Real property determined by the law of the state where the property is located. Personal property governed by the law of the testator's domicile at the time of her death. Foreign wills- a Will is admissible to probate in TN if it has been executed in accordance with the law of TN, the state where the will was executed, OR the testator's domicile at the time the will was executed.

Front 12

Integration

Back 12

Will proponent must show that the pages were present when the will was executed and were intended by the testator to be a part of the will

Front 13

Incorporation by refernee

Back 13

A document that is not present at the time the will was executed may be incorporated into the will by reference so that it is considered a part of the will if, 1. the document was in existence at the time the will was executed, 2. the language of the will sufficiently describes the writing, 3.the will manifests an intent to incorporate the document.

Front 14

Revocation by operation of Law

Back 14

Marriage following execution of will, divorce or annulment revokes all provisions in favor of former spouse

pretermitted children ( if testator unintentionally fails to provide in his will or during his lifetime for any of his children born or adopted after the will is executed is entitled to a share of the estate equal in value.

Front 15

Revocation by Written Instrument

Back 15

All or part of a will may be revoked or altered by a subsequent instrument executed with the same formalities as a will. If the subsequent testamentary instrument does not expressly revoke the earlier will, the two are read together, with the later instrument revoking the earlier only to the extent of inconsistent provisions.

Front 16

Lapsed Gifts and Anti Lapse Statute

Back 16

If a will beneficiary dies during the testator's lifetime the gift to him lapses. TN's anti lapse statute saves the gift if the predeceasing devisee left issue who survived the testator and they take per stirpes. Statute only applies to gifts by will or revocable living trust. if Residuary is devised to 2 or more people then his share passes to the other residuary beneficiary

Front 17

Protection of the surviving spouse- Elective share statutes

Back 17

Statute gives spouse an election to take a statutory share of the decedent's estate in lieu of taking under the will or intestacy statute.

Front 18

Homestead, Year's support, exempt personal proeprty

Back 18

When the head of the household dies regardless of provisions made in his will, the homestead property passes to the surviving spouse for life and then to the decedent's minor children free from debt, TN authorizes payment of one year's support to the surviving spouse, SS is entitled to receive certain exempt personal property up to $50,000 and Life insurance proceeds are generally exempt from creditor's claims.

Front 19

Will contests

Back 19

Grounds for challenge are defective execution, revocation, lack of testamentary capacity, lack of testamentary intent, undue influence, fraud, and mistake.

Front 20

Undue influence

Back 20

A will or gift in a will will be invalid if it is obtained through the exercise of undue influence. To establish undue influence, the contestants must establish that influence was exerted, the effect of the influence was to overpower the mind and free will of the testator, the resulting testamentary disposition would not have been executed but for the influence.

Front 21

Testamentary capacity

Back 21

Must be at least 18, testator must have the capacity to understand, the nature and effect of her act, the nature and extent of her property and the names and kinship of persons who are the natural objects of her bounty. Testator must have capacity when the will was executed.

Front 22

Class Gift Statute

Back 22

Applies when : 1. there is a gift to a class which can increase or decrease by births or deaths, 2. the gift vests, in the future, at a subsequent time or upon, a subsequent event, 3. at least one of the class members has died before the time for vesting, leaving issue which survive to the time of vesting, 4. the testator did not evidence a clear intention that issue of a deceased class member not take.

Front 23

What happens when the class gift statute applies

Back 23

If this statute applies, then the issue of a deceased class member take the share of their deceased parent per stipres.