Wills And Probate - Indiana Bar Exam

Front 1

What are the four (4) principal duties of the "personal representative" in probate?

Back 1

1. take control of estate's assets,

2. give notice and pay creditors,

3. pay relevant estate taxes, and

4. disburse the estate.

Front 2

Probate: What are the three (3) biggest categories of "non-probate" transfers or property?

Back 2

1. Rights of Survivorship

2. Terms of Contract (life insurance or death benefits), and

3. Inter-Vivos Trusts

Front 3

Intestate Share of Surviving Spouse: What is the spousal share when both spouse and descendants survive?

Back 3

1/2 of the net estate.


(kids take the rest).

Front 4

Intestate Share of Surviving Spouse: What is the spousal share if they are a "subsequent childless spouse", and there are children from a prior marriage?

Back 4

1/2 of Personal Property

1/4 of Real Property

(kids take the rest)

Front 5

Intestate Share of Surviving Spouse: What is the spousal share if the spouse and parents survive but there are no living children?

Back 5

3/4 of the net estate.

(parents take 1/4)

Front 6

Intestate Share of Surviving Spouse: What if the spouse survives, and there are no children or parents - how much does she take?

Back 6

The entire net estate.

Front 7

If a decedent's spouse or other heir does not want their intestate share (maybe for tax or alimony reasons) what can they do?

Back 7

"Disclaim", or maybe waive.

(must be in writing).

Front 8

Simultaneous Death: What is the statute that controls?

Back 8

USDA

Uniform Simultaneous Death Act

Front 9

Simultaneous Death: If there is anything but "absolute" evidence of simultaneous death, how does property pass?

Back 9

- As if one had survived the other.

(even a few hours difference does not count as simultaneous).

Front 10

Advancement vs. Presumption of Gift: A transfer of property will always be considered a gift and not an advancement - except when?

Back 10

- in writing that the heir and testator agree that it is meant to be an advancement.

Front 11

What are the four (4) elements of a "Valid Will"?

Back 11

1. Legal Capacity

2. Testamentary Capacity

3. Testamentary Intent, and

4. Proper Execution and Attestation.

Front 12

What are the six (6) elements of a properly "executed" will?

Back 12

1. Writing,

2. Signature

3. Witnesses

4. Signature in Presence of Witnesses

5. Witnesses signature in presence of testator and other witness

6. Testator must publish

Front 13

Videotape: What three (3) things can a videotape be admissible to prove?

Back 13

1. proper execution

2. testamentary intent, or

3. mental state and capacity

Front 14

When is the only time Indiana will recognize "nuncupative" wills?

Back 14

When the testator is in eminent fear of death, and they actually die from that peril.

Front 15

What are the (3) formal requirements of nuncupative wills?
(besides being limited to $1000 for civilians and $1000 for military).

Back 15

1. in front of 2 witnesses,

2. put in writing within 30 days, and

3. submitted to probate within 6 months.

Front 16

Choice of Law: A will is valid in Indiana if it is executed in accordance with? (3)

Back 16

1. IN Law

2. Law of the State where executed,

3. Testator's State of Domicile, or

Front 17

What are the three (3) ways a will can be revoked?

Back 17

1. Testamentary Writing (new will),

2. Physical Act, or

3. By Law (e.g., divorce).

Front 18

What three (3) things must you prove to submit a "lost or destroyed" will to probate?

Back 18

1. valid execution,

2. the cause of non-production, and,

3. proof of the will's actual contents.

Front 19

Incorporation by Reference: In order to incorporate extrinsic documents, you must prove what three (3) things?

Back 19

1. the writing was in existence at the time of execution,

2. must show an intent to incorporate, and

3. the will must identify the document.

Front 20

Revocation of a Joint Will or Reciprocal will: How can it be revoked?
Exception?

Back 20

They can be revoked at any time by one of the Testators.

Exception: If the will was made upon a K not to revoke, there could be damages.

Front 21

Lapsed Gifts: What happens if the beneficiary dies prior to the testator?

Back 21

- The gift lapses (fails).

Front 22

Anti-Lapse Statute: Who can invoke the statute, and who becomes the beneficiary?

Back 22

1. gift must have been originally given to a descendant of the testator.

2. descendant's survivors take.

Front 23

Class Gifts: If a gift is made to a class ("children of my brother", "my siblings") and a class-member predeceases the testator, what happens to the dead member's share?

Back 23

- it is split between the surviving members of the class.

Front 24

Elective Share: Can a testator completely disinherit their spouse?

Back 24

NO.

- the spouse can take a "elective" or "forced" share.

Front 25

What is the "elective" or "forced" share in Indiana?

Back 25

1/2 of both net personal and real property.

Front 26

How much can a "Subsequent Childless Spouse" elect to take under the "forced or elective" share?

Back 26

1/3 of personal property

1/4 FMV of real property

Front 27

Elective Share: What are the time and formality requirements for choosing to elect?

Back 27

1. No later than 30 days after admitted to probate.

2. Must be in writing and signed

Front 28

When will a court allow a surviving spouse to include a inter vivos trust in her elected share?

Back 28

- When it is clear that the testator's intention was to defeat the spouse's right to election. (not allowed).

Front 29

Pretermitted Children: What is a pretermitted child?

Back 29

- A child born after the will is executed.

Front 30

Pretermitted Children: They can take their intestate share, unless? (2 instances).

Back 30

1. intentionally omitted, or

2. in previous will, the testator had children, and still left all assets to spouse.

Front 31

Family Allowance: How much?

Who gets it?

Back 31

$25000

- surviving spouse, or if none, the minor children equally.

Front 32

Family Allowance:

When does the allowance get taken out?

From What is it taken out of?

Back 32

When = first, before all else.

Where = it comes out of personal property first, and then real property.

Front 33

When a specific bequest in T's will is no longer in the estate at T's death... It FAILS.

- This is called?

Back 33

Ademption

Front 34

If an estate can not cover all of the debts and devises, this is called?

Back 34

Abatement

Front 35

Abatement: After the debts and expenses are paid, what is the order of Abatement?

Back 35

First - Debts/Expenses, then...

1. Intestate Property

2. Residuary Estate

3. General Legacies, and then

4. Specific Devises

Front 36

Will Contests: How long do you have to contest a will in probate?

Back 36

3 months from date of admission to probate.

Front 37

Will Contests: Who are the defendants in a Will Contest?

Back 37

- the executor and the devises

Front 38

Will Contests: What are the five (5) ways to challenge a will?

Back 38

1. capacity

2. improper execution

3. undue influence

4. fraud, or

5. there is another valid will

Front 39

Will Contests: What is the four (4) part test of "testamentary capacity" or "unsound mind"?

Back 39

Did he understand the...

1. value and extent of the property,

2. the natural objects of his bounty ("heirs"),

3. the nature of the disposition, and

4. the relation of these elements to one another in forming the will?

Front 40

Will Contests:

When will a court conclude that "undue influence" is a valid defense?

Back 40

1. that "influence" was exerted,

2. the "effect" was to overpower free will, and

3. "but for" the influence, the will would not have been written.

Front 41

Will Contests: What are the three (3) examples of circumstantial evidence courts will look to determine "Undue Influence"?

Back 41

1. Opportunity to Influence

2. Susceptibility, and

3. Unnatural Disposition of Proceeds.

Front 42

Will Contests: In what two (2) situations will the courts "presume" undue influence?

Back 42

1. confidential relationship, or

2. unnatural disposition in favor of the person with opportunity to influence.

Front 43

Two types of Fraud:

If a party is tricked into signing a will, thinking it was a letter... this is "Fraud in the ____________"?

If a person lies to get T to change, make, or revoke her will... This is "Fraud in the __________"?

Back 43

- "Execution"

- "Inducement"

Front 44

Will Contests: What is the "Traditional Rule" as to whether or not "extrinsic evidence" will be admitted to cure mistakes?

Back 44

- Inadmissible to cure mistakes in the execution or inducement.

Front 45

Will Contests: Ambiguity - If a will is ambiguous, will the courts allow extrinsic evidence in to clarify?

Back 45

Yes.

Front 46

Will Contests: What is the difference between "latent" and "patent" ambiguity?

Back 46

Nothing!

- Supreme Court abolished the distinction in 2006.

Front 47

Codicil: What are the "execution" requirements of a codicil?

Back 47

- exactly the same as the will itself.