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47 Cards in this Set

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What are the four (4) principal duties of the "personal representative" in probate?
1. take control of estate's assets,

2. give notice and pay creditors,

3. pay relevant estate taxes, and

4. disburse the estate.
Probate: What are the three (3) biggest categories of "non-probate" transfers or property?
1. Rights of Survivorship

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

3. Inter-Vivos Trusts
Intestate Share of Surviving Spouse: What is the spousal share when both spouse and descendants survive?
1/2 of the net estate.


(kids take the rest).
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?
1/2 of Personal Property

1/4 of Real Property

(kids take the rest)
Intestate Share of Surviving Spouse: What is the spousal share if the spouse and parents survive but there are no living children?
3/4 of the net estate.

(parents take 1/4)
Intestate Share of Surviving Spouse: What if the spouse survives, and there are no children or parents - how much does she take?
The entire net estate.
If a decedent's spouse or other heir does not want their intestate share (maybe for tax or alimony reasons) what can they do?
"Disclaim", or maybe waive.

(must be in writing).
Simultaneous Death: What is the statute that controls?
USDA

Uniform Simultaneous Death Act
Simultaneous Death: If there is anything but "absolute" evidence of simultaneous death, how does property pass?
- As if one had survived the other.

(even a few hours difference does not count as simultaneous).
Advancement vs. Presumption of Gift: A transfer of property will always be considered a gift and not an advancement - except when?
- in writing that the heir and testator agree that it is meant to be an advancement.
What are the four (4) elements of a "Valid Will"?
1. Legal Capacity

2. Testamentary Capacity

3. Testamentary Intent, and

4. Proper Execution and Attestation.
What are the six (6) elements of a properly "executed" will?
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
Videotape: What three (3) things can a videotape be admissible to prove?
1. proper execution

2. testamentary intent, or

3. mental state and capacity
When is the only time Indiana will recognize "nuncupative" wills?
When the testator is in eminent fear of death, and they actually die from that peril.
What are the (3) formal requirements of nuncupative wills?
(besides being limited to $1000 for civilians and $1000 for military).
1. in front of 2 witnesses,

2. put in writing within 30 days, and

3. submitted to probate within 6 months.
Choice of Law: A will is valid in Indiana if it is executed in accordance with? (3)
1. IN Law

2. Law of the State where executed,

3. Testator's State of Domicile, or
What are the three (3) ways a will can be revoked?
1. Testamentary Writing (new will),

2. Physical Act, or

3. By Law (e.g., divorce).
What three (3) things must you prove to submit a "lost or destroyed" will to probate?
1. valid execution,

2. the cause of non-production, and,

3. proof of the will's actual contents.
Incorporation by Reference: In order to incorporate extrinsic documents, you must prove what three (3) things?
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.
Revocation of a Joint Will or Reciprocal will: How can it be revoked?
Exception?
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.
Lapsed Gifts: What happens if the beneficiary dies prior to the testator?
- The gift lapses (fails).
Anti-Lapse Statute: Who can invoke the statute, and who becomes the beneficiary?
1. gift must have been originally given to a descendant of the testator.

2. descendant's survivors take.
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?
- it is split between the surviving members of the class.
Elective Share: Can a testator completely disinherit their spouse?
NO.

- the spouse can take a "elective" or "forced" share.
What is the "elective" or "forced" share in Indiana?
1/2 of both net personal and real property.
How much can a "Subsequent Childless Spouse" elect to take under the "forced or elective" share?
1/3 of personal property

1/4 FMV of real property
Elective Share: What are the time and formality requirements for choosing to elect?
1. No later than 30 days after admitted to probate.

2. Must be in writing and signed
When will a court allow a surviving spouse to include a inter vivos trust in her elected share?
- When it is clear that the testator's intention was to defeat the spouse's right to election. (not allowed).
Pretermitted Children: What is a pretermitted child?
- A child born after the will is executed.
Pretermitted Children: They can take their intestate share, unless? (2 instances).
1. intentionally omitted, or

2. in previous will, the testator had children, and still left all assets to spouse.
Family Allowance: How much?

Who gets it?
$25000

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

When does the allowance get taken out?

From What is it taken out of?
When = first, before all else.

Where = it comes out of personal property first, and then real property.
When a specific bequest in T's will is no longer in the estate at T's death... It FAILS.

- This is called?
Ademption
If an estate can not cover all of the debts and devises, this is called?
Abatement
Abatement: After the debts and expenses are paid, what is the order of Abatement?
First - Debts/Expenses, then...

1. Intestate Property

2. Residuary Estate

3. General Legacies, and then

4. Specific Devises
Will Contests: How long do you have to contest a will in probate?
3 months from date of admission to probate.
Will Contests: Who are the defendants in a Will Contest?
- the executor and the devises
Will Contests: What are the five (5) ways to challenge a will?
1. capacity

2. improper execution

3. undue influence

4. fraud, or

5. there is another valid will
Will Contests: What is the four (4) part test of "testamentary capacity" or "unsound mind"?
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?
Will Contests:

When will a court conclude that "undue influence" is a valid defense?
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.
Will Contests: What are the three (3) examples of circumstantial evidence courts will look to determine "Undue Influence"?
1. Opportunity to Influence

2. Susceptibility, and

3. Unnatural Disposition of Proceeds.
Will Contests: In what two (2) situations will the courts "presume" undue influence?
1. confidential relationship, or

2. unnatural disposition in favor of the person with opportunity to influence.
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 __________"?
- "Execution"

- "Inducement"
Will Contests: What is the "Traditional Rule" as to whether or not "extrinsic evidence" will be admitted to cure mistakes?
- Inadmissible to cure mistakes in the execution or inducement.
Will Contests: Ambiguity - If a will is ambiguous, will the courts allow extrinsic evidence in to clarify?
Yes.
Will Contests: What is the difference between "latent" and "patent" ambiguity?
Nothing!

- Supreme Court abolished the distinction in 2006.
Codicil: What are the "execution" requirements of a codicil?
- exactly the same as the will itself.