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16 Cards in this Set

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  • Back
Dower and Curtesy
If there is a surviving spouse and surviving issue, the dower/curtesy is a 1/3 life estate in real property, and a 1/3 fee in personal property.

If there is a surviving spouse, but no surviving issue, dower/curtesy is 1/2 fee in real and personal property.

This doesn't apply to joint tenancy property or life insurance proceeds.
Intestate Succession
Descendants --> Spouse (if married more than three years, all - if married less than three years - 1/2) --> Parents --> Siblings --> Grandparents, Aunts, Uncles --> Great-Grandparents, Great-Aunts, Great-Uncles --> Spouse (married less than 3 years) or Issue of deceased spouse --> Escheats to the state
Per Stirpes (Per Capita With Representation)
Modern View (Arkansas).

Divide equally at the first level where someone is still living. If someone at that level has predeceased the decedent, his issue will take equally from his share.
Strict Per Stirpes
Traditional View.

Divide at the first level regardless of whether anyone is still alive there. Then if someone on that level has predeceased the decedent, his issue will take equally in his share.
Per Capita
Go to the first level where someone is living and divide equally as if all were living. Give those living their proportional share. Take the remainder and divide equally among the issue of the predeceased takers.
Scenario: X had four kids, C1, C2, C3, C4. C1 had no kids. C2 (dead) had one kid, G1 (dead). G1 had two kids, GG1 and GG2. C3 (dead) had two kids, G2 and G3. G2 had one kid, GG3. G3 had no kids. C4 had one kid, G4 (dead), who had three kids, GG4, GG5, and GG6. Who takes?
Per Stirpes: C1 and C4 would each get 1/4. GG1, GG2, G2, and G3 would each get 1/8.

Per Capita: C1 and C4 would each get 1/4. G2 and G3 would each get 1/6. GG1 and GG2 would each get 1/12.

Strict Per Stirpes: Same as Per Stirpes.
Requirements of a Will (Not Holographic)
(1) Present testamentary intent.
(2) Must be 18 and of sound mind.
(3) Signed by testator with two attesting witnesses (must declare as her will - if they don't know what they signed, it's ineffective).
(4) Signed by the testator at the END (before the attestation clause).
Requirements of a Holographic Will
(1) In Testator's handwriting
(2) Signed by Testator
(3) Present testamentary intent
Elective Share
Surviving spouse can elect to take against the will.

Surviving spouse will get dower/curtesy plus what would have been taken if decedent had died intestate (personal property ONLY).

Must have been married more than a year.
Homestead: 80 acres rural or 1/4 acre city exempt from creditors.

Family Allowance: Up to $4,000 of personal property exempt from creditors.

Sustenance: Two month allowance of reasonable amount (up to $1,000) for the spouse and kids.

Exempt Personal Property: Furnishings, appliances, etc. in dwelling.
Grounds for Will Contest
(1) Defective Execution
(2) Validly Revoked
(3) Lacked Testamentary Capacity
(4) Lacked Testamentary Intent
(5) Will/Gift Therein is a Product of Undue Influence
(6) Will/Gift Therein is Procured by Fraud
(7) Document Executed or Gift Made as Result of Mistake

3 and 5 are most common.
Time for Will Contest
If another will is found, must submit before distribution of the estate and within five years of death.

If there are other grounds coupled with actual notice, must be prior to or at the probate hearing.

Other grounds coupled with notice by publication, must be within 3 months of first publication or within 45 days of actual notice service (whichever is later).

All have 3 years from the time will enters probate.
Powers and Duties of Personal Representative
(1) Give notice to all interested parties.
(2) Discover and collect decedent's assets and file and inventory.
(3) Manage assets of estate during administration.
(4) Pay expenses of administration, claims against the state, and taxes.
(5) Distribute property.

Personal representative is a fiduciary!
Priority of Claims
(1) Administration expenses
(2) Reasonable funeral expenses, reasonable expenses of last illness, and wages of decedent's employees
(3) Claims based on decedent's liability for state taxes or taxes due as a result of death
(4) All other claims
Order of Abatement
(1) Real or personal property passing via intestacy;
(2) Residuary estate;
(3) General legacies (abate pro rata); and
(4) Specific devises and bequests.
Rules of Construction
Favor those who would take intestate.

Favor construction that avoids intestacy.

Favor construction consistent with perceived "plan" of disposition.

Every portion of will should be given effect if possible.

Between totally inconsistent clauses, latter is most likely the final intent.