Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
32 Cards in this Set
- Front
- Back
|
What are the shares when there is no surviving spouse under Intestate Succession?
|
-All to issue, if any
-If no issue, the parents or survivor -If no issue or parents, to siblings/issue NOTE: You cannot disinherit your heir by fiat. If there is a partial intestacy for some reason, your heir takes even though you expressed a desire that he not share in your estate in your will. |
|
|
What is the NC Intestacy rule for the surviving spouse?
|
-No issue or parent: entire estate
-Parents but no issue: 1/2 real + $50K +1/2 personal property -1 line of lineal descent (child): 1/2 real property + $30K +1/2 personal property -More than 1 child: 1/3 real property + $30K +1/3 personal property |
|
|
What is the elective share of the surviving spouse?
|
0-1 child: 1/2 of the total net assets
2+ children:1/3 of total net assets If D has at least 1 child from a prior marriage, the applicable share above-listed is reduced by 1/2. |
|
|
What are the ways to revoke a will?
|
Revocation by physical act
Revocation by proxy Codicil |
|
|
What are the requirements of a valid will?
|
-Testamentary intent
-T must have capacity to make will (aged 18+) -Written -Signed by T -Presence of two witnesses -Who sign in T's presence |
|
|
What is testamentary intent?
|
Intent that the document operates as T's will
|
|
|
What does "in T's presence" mean?
|
T and W must be in the scope of vision of each other, i.e. nothing obstructs the view of W and T seeing each other sign the will (if they only look)
|
|
|
What is required for a valid holographic will?
|
-In T's handwriting
-Signed by T of T's name mentioned in T's handwriting -Found in a safe place |
|
|
If a document purported to be T's holographic will is written on hotel stationary, it is valid?
|
Yes. NC follows surplusage rule.
Anything that is not handwritten can be ignored as long as the other requirements for holographic will are met |
|
|
What happens if the will contains a bequest to a subscribing witness?
|
The gift to the "interested" witness is void unless there are two other disinterested witnesses
|
|
|
What are the requirements for a nuncupative (oral) will?
|
-Spoken in T's last illness
-Before 2 disinterested witnesses -T dies from the illness -It's offered into probate 6 months of when T spoke it OR one of the witnesses reduces the statement to a writing w/i 10 days of when T spoke it |
|
|
How do you prove a holographic will?
|
3 witnesses must testify that the will is in T's handwriting
1 of the witnesses must testify that it was found in a safe place |
|
|
How to you prove other wills?
|
-Testimony of 2 attesting witnesses who testify to T's sound mind, signature and witnesses attestation in T's presence
Self-proved wills are admissible w/o additional testimony b/c they contain self-proving affidavits from the attesting witnesses (usually at the time signed) attesting to T's sound mind, signature, and witness's attestation. |
|
|
What is required for revocation by physical act?
|
-intent to revoke
-physical act |
|
|
What is required for revocation by proxy?
|
revocation must be done at:
-T's direction -In T's presence |
|
|
How are lost wills handled?
|
Lost will must be proved by:
-showing original will met w/due execution -Contents of will must be clearly and distinctly proved either by copy or by witness testimony -Absence of the will must be explained |
|
|
How are codicils treated?
|
If the codicil makes no reference to the will but has slightly inconsistent terms the will and codicil will be read together. To the extent of the inconsistent provisions, the later document controls and revokes by inconsistency the prior will. This applies also when there are two wills and the second will doe snot expressly revoke the first will.
|
|
|
What effect does divorce have a on a will?
|
Divorce revokes all provisions in favor of the ex-spouse and the will will be construed as if the ex-spouse were dead. However if T and ex-spouse get back together, ex-spouse can take under the will.
|
|
|
What is the doctrine of relative revocation?
|
It allows us to disregard a revocation which is based on, induced by, premised on a mistake of law or fact if the court is satisfied that, but for the mistake, T never would have made the revocation.
DRR is used when the ineffective gift is larger than the original amount. If the modification to the will is for a smaller amount, discuss DRR but do not apply it. |
|
|
How do you incorporate an extrinsic document by reference?
|
-Writing must be in existence at the time will was executed
-Will must manifest an intent to incorporate the document -Will must describe the writing sufficiently to permit its identification Holographic wills can incorporate non-handwritten material by reference |
|
|
What is the doctrine of independent legal significance?
|
Acts having an independent lifetime motive may impact the will has well
|
|
|
What is the class gift rule?
|
When there is a gift by will to a group of persons generically described as a class (e.g. children, nieces, nephews) and some class member predeceases T and the lapse statute does not apply, the surviving members take.
|
|
|
What is lapse?
|
When a beneficiary named in the will dies before T, the gift lapses unless saved by an anti-lapse statute
|
|
|
What is NC's anti-lapse statute?
|
Applies when the predeceased beneficiary is T's grandparent or a lineal descendant thereof who leaves issue
|
|
|
What if the lapse occurs in in a residuary gift?
|
If the residuary estate is devised to tow or more persons and the gift to one of them fails for any reason, the surviving residuary devises take the entire residuary estate in proportion to there interests in the residue
|
|
|
What acts bar a party fro sharing in the estate?
|
-Uncondoned adultery or abandonment of spouse
-abandonment of child -Slayer statute |
|
|
What is a trust and what are the requirements for creating a trust?
|
An agreement under which the trustee holds legal title to property for the benefit of the beneficiaries
Creator must deliver legal title of trust assets (the res) to the trustee for the benefit of beneficiaries with the intent to create a trust for a valid purpose |
|
|
How do you prove intent to create a trust?
|
Express
Implied by conduct |
|
|
What are the types of express trusts?
|
-Private
-Charitable |
|
|
What is a private trust?
|
Beneficiaries must be ascertainable
|
|
|
What is a charitable trust?
|
Trust must be for a charitable purpose and the beneficiaries are unascertainable
|
|
|
What is an honorary trust?
|
It is a trust for the care of animals or graves. The duration of the trusts are:
-Animals: lifetime of the animal -Graves: 21 years If there is money left after the death of the animal or after 21 years (in case of graves), that money will go back to the estate unless the instrument indicates otherwise |
