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150 Cards in this Set
- Front
- Back
An heir is a person who receives a decedent's property when the person dies ___
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intestate
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What is a collateral relative?
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decedents relatives through an ancestor
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Living people don't have ___
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heirs
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In Illinois, if a decedent and an heir die at the same time, how will inheritance be determined?
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the parties' property will be distributed as if each had predeceased the other
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If a person dies intestate and has no heirs, his property ___
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escheats to the state
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In IL intestate succession, a spouse gets ___ and the children of the union ____
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50%, split the other 50% equally
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T/F - property that a decedent fails to account for in his will escheats to the state
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False -- it follows rules of intestate succession
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Children adopted when less than 18 inherit the same as natural born children
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true
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Are individuals adopted when older than 18 treated differently in terms of intestate succession?
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Yes -- can only inherit from parents
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What method is used for Illinois distribution of intestacy shares?
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Per stirpes
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per capita with representation
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go to first generation with survivors; count survivors and deceased individuals who have heirs -- divide the total by that many. For deceased heirs, split each heir's share equally among its the issue at the next generation
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per capita at each generation
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As with per capita with rep, go to first generation with survivors and count survivors and deceased individuals with heirs. Give the survivors at that level their shares. Then pool the balance, move down, and repeat
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T/F: In illinois there must be 3 witnesses to a will
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False
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To be valid, an Illinois will must ....
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(1) be in writing (2) must be signed by testator (3)the testator must have present testamentary intent
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T/F in illinois the signature must be at the bottom of the last page of a will
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False
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T/F Illinois accept verbal wills
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False
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T/F Illinois accepts video wills
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False
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A holographic will is ....
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a handwritten will
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T/F: a witness to a will must be aware of its contents
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False
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T/F: In Illinois, if one of two witnesses to a will inherits under it, the will is invalid
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False -- but that witness will lose any portion of the inheritance in excess of her intestate share (purging statute)
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In a community property jurisdiction what happens before the descendent's inheritance is determined? What happens to the rest of community property if intestate?
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Spouse gets 50% of community property. Spouse probably gets other 50% if decedent is intestate.
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Can a putative spouse inherit?
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yes
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In Illinois, is abandonment by itself a basis for loss of inheritance?
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No, parties must divorce
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Will a legally separated spouse inherit in Illinois?
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Yes
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Under the Uniform Simultaneous Death Act (USDA), there must be clear and convincing evidence that an heir survived the decedent by ____ to inherit under intestacy. What is the requirement in Illinois?
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120 hours, no such hourly requirement in IL, so presumably a few seconds is good enough
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In Illinois, how is the fact of death determined?
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either (1) irreversible cessation of total brain function (brain death), or (2) irreversible cessation of circulatory and respiratory functions.
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In most jurisdictions there is a rebuttable presumption that a child born within __ days of the husband's death is the husband's natural child. The Uniform Parent Act (UPA) specifies __ days.
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280, 300
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In many jurisdictions the theory of Equitable Adoption allows inheritance from stepparents or foster parents absent a ___ . Illinois (does /does not) recognize equitable adoption
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legal adoption, does not
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Under equitable adoption, the adoptive parent (can / cannot) inherent from the child, and the child (can/cannot) adopt from parent's natural children. The child (can/cannot) adopt from his natural parents.
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cannot, cannot, can
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A child born out of wedlock has until ___ to legally establish paternity for purposes of inheritance
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the father's death
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What are will "substitutes"
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revocable trusts; joint tenancies; paid on death contract clause; pour-over will (a trust that goes to the Trustee on death); deed
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T/F Illinois will recognize an oral will if it was "created" in a jurisdiction that allows them
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False
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If a testator accidentally destroys his will, is it considered revoked?
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No
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T/F: Wills can be revoked by a physical act in Illinois
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True
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If a testator is known to have executed a will and kept it in her possession and it cannot be found, what is the status of the will?
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There is a rebuttable presumption that she revoked it with a physical
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T/F: a duplicate original of a will can be submitted to probate
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True
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A copy of the will (can/ cannot) be submitted to probate
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No - -though it can be submitted as evidence
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T/F: a revocation of a will also revokes any codicils
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True
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What is the equitable doctrine of dependent relative revocation
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Court will disregard a revocation if it was based on a mistake of fact or law and would not have been made except for the mistake
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Does Illinois recognize Dependent relative revocation
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No express approval
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What is required for a will to have incorporation of external documents by reference?
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1) identify the writing with sufficient certainty to permit its identification; 2) writing must have existed at the time of execution; 3) intent (must have intended the writing to be part of the will)
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T/F a person can leave property to someone not yet identified/in existence
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Yes -- e.g. future grandchildren, daughter-in-laws
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T/F Will beneficiaries can be changed by an act independent of its effect on a will provision
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True -- people can have new babies, get married, etc
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What is a demonstrative legacy
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A gift identified as being from a specific source (even if it is ultimately paid from general assets)
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A will statement where the decedent leaves the remaining portion of his estate to someone is called a ___
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residuary bequest
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Will Illinois permit an attestation clause rather than a signature on the will itself?
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Yes probably
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What is a purging statute
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A statute that purges any inheritance in excess of what the witness would receive if the will were found invalid. In Illinois it only applies if the witness is one of the minimum number of witnesses (two).
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Wills are ambulatory which means ___
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they are capable of being altered or revoked, in whole or in part, at any time until testator's death
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Three ways to revoke a will:
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Expressly by subsequent instrument (later writing says so, or is inconsistent with the earlier one); by physical act; by operation of law
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Revocation by inconsistency means
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subsequent instrument has provisions inconsistent with an earlier one -- later document will control, and early version revoked.
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A testamentary document can often be distinguished from a codicil by looking at ___
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whether it has a residual gift. If it does have one, it is probably a new will.
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T/F:In Illinois, a testator can cross out part of a will to revoke those provisions
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False -- it's all or nothing
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In Illinois, what effect will divorce have on existing will provisions?
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All inheritance by the spouse is revoked unless there is clear intent that the decedent wanted otherwise
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If a first will is later revoked by a second will, which is revoked in turn, is the original will revived?
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No -- testator will die intestate. The will has to be re-executed to be revived.
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Illinois (does/does not) automatically revive a revoked will
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does not
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The only way Illinois allows individuals to revoke wills in part is__-
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by codicil
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In Illinois, a will can be revived by:
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1) re-executing it; or 2) a separate instrument saying that it is revived is sign and is attested with the same formalities required of a will
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What is a "devise"?
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a gift of real property
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What is a gift of personal property called?
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a bequest or legacy
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What is a lapse statute?
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One that prevents property from returning to the residual pool or going into the intestate process if the relation beneficiary pre-deceased the testator, usu by bequeathing it to the beneficiary's issue.
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If no lapse statute is in effect and a designated beneficiary pre-deceased the testator...
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the bequeath will revert to the residual share or go into the intestate process
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In Illinois, the anti-lapse statute applies to...
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only legatees who have a protected relationship, i.e. who are descendents of the testator, including if the gift is a class gift (e.g. a gift to be split evenly between all grandchildren -- the deceased grandchild's share can go to his children)
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What is abatement?
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Reduction of testamentary gifts due to a lack of assets to fulfill all of them
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abatement hierarchy
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Property not disposed of by will—least protected (first thing to be reduced)
2. Property in a residuary gift 3. General bequests, not included in the residuary clause 4. General bequests of cash, stocks, and bonds 5. Specific bequests to other takers 6. Specific bequests to testator's issue 7. Specific bequests to the spouse—most protected (last thing to be reduced) |
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ademption by extinction happens when...
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a specific piece of property devised by a will is no longer in the estate at T's death
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under the traditional rule, if specific property is missing at testator's death____. Does Illinois follow this rule?
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the bequest is null and void. Yes, Illinois follows this rule.
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The only ademption by extinction provision of Illinois allows...
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the designated beneficiary to stand in the shoes of the testator in a contract THAT HAS NOT YET BEEN PERFORMED for sale for the property entered into AFTER the execution of the will.
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What is ademption by satisfaction?
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Where the testator satisfies a specific or demonstrative gift, either in whole or in part, by an intervivos transfer (one made while alive.)
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What is necessary for an gift to be noted as granted under an ademption by satisfaction theory?
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1) testator's intent which is 2) expressed in writing
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When do Illinois courts allow extrinsic evidence to interpret wills?
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Only to resolve ambiguous language
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Larry has two sisters and leaves his car only to "his sister." What evidence might the court allow to determine which sister?
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extrinsic evidence ( e.g. one sister has 5 cars the other has none)
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If a will is clear on its face but has an almost-certain error, will IL courts consider changing the provisions?
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Not generally (but see situation where courts will revoke a will changed on the basis of a mistake of fact or law)
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What happens if one of multiple residual beneficiaries pre-deceases?
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Under common law: goes into intestate;
Under Uniform Probate Code (UPC) : divide proportionately among other residual beneficiaries; in IL, anti-lapse applies (but otherwise it lapses?) |
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What is an elective share?
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Spouse's right to invalidate a will and take a given percentage of the estate. AKA forced share
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What is the spouse's forced/elective share in IL?
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1/3 if issue from the marriage; 1/2 if not.
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In a common property state, what is a spouse's forced/elective share?
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Forced/elective shares don't exist. Instead take share of marital property as divided under community property rules.
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In many states, including IL, a surviving spouse's rights can result in certain ___ transfers of the descendent being set aside if they were made___
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inter vivos, without spousal approval
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How long does a spouse have to take a forced/elective share in IL?
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7 months
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T/F: If a spouse takes a forced share, he can still also take pension or insurance policies
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False
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To be valid, a waiver of a forced/elective share___
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1) it must be in writing , 2) the party must be represented by independent counsel and 3) the party must have adequate knowledge of the property and financial obligations of the decedent at the time of the signing of the waiver.
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What is an advancement?
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lifetime gift satisfying all/part of an intestate share
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What is the difference between ademption by satisfaction and advancement?
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the first applies to bequests by will, the second to intestate succession
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What is the analysis called by which advancements adjust intestate succession?
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Hotchpot analysis
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How does hotchpot analysis work?
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1) add the amount of the advancements back to the intestate estate; 2) divide the result by the number of children taking; 3) deduct the relevant advancement from each child's share
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how is a lifetime gift identified as an advancement?
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In writing by the decedent or the child who received it
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Will a testator's intentional disinheritance of a child be honored?
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Yes
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If a testator's disinheritance is unintentional, what will happen a) if there are no other children? b) if there is one other child
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a) child will receive intestate share; b) child will receive half of other child's share (no indication for where more children are involved. I also don't know where this rule came from. Research further?)
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What is the slayer rule?
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Person who murders decedent cannot inherit
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A person otherwise set to inherit who murdered the decedent is treated as if ___
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he predeceased the victim
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T/F Elder Abuse—someone who is convicted of financial exploitation, abuse, or neglect of a person under their care is (allowed/not allowed) to inherit
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no allowed
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T/F: the slayer rule applies to killing that was in self defense
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False
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If a person disclaims a testamentary gift, the disclaimer must,
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be in writing, be signed, be filed with the court or given to the person distributing the estate, identify the decedent, describe the interest being disclaimed, and state the extent of the disclaimer
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Who is barred from inheriting?
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Murderer of the deceased; one convicted of abuse or neglect of the decease; one who has disclaimed the testamentary gift
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T/F a spouse can only take an elective/forced share if she was given no share of the estate
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False
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T/F The statutory/forced share election must be in writing
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True
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In Illinois only an ___ party can challenge a will
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"interested" -- this means someone who will take under the will, or someone who would benefit under intestate succession
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An interested party must file a will contest within __ of the will being admitted to probate
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6 months
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One basis for challenging a will is that the testator did not have a sound mind at the time of the will. This can mean one of two things:
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1) the testator lacked adequate mental capacity at the time the will was executed or 2) the testator was under an insane delusion
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Determining whether a testator had adequate mental capacity at the time the will was executed (when ) and asks whether the testator was able to understand/know
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1) the nature of the act ( why ); 2) the nature and character of her property (what); 3) the natural objects of her bounty (i.e. the family) (who) ; and 4) the plan of the attempted disposition (how)
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Determining whether a testator had adequate mental capacity at the time the will was executed asks whether the testator had the ___ to understand/know the relevant information, not whether he actually did
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ability/capacity
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What is an insane delusion?
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false belief to which the testator adheres in spite of all reason and evidence to the contrary
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T/F A person who has an insane delusion may otherwise be of sound mind
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True
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Objective test for an insane delusion
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Measure testator’s insane delusion against that of a rational person in the testator’s position.
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T/F It is enough that a person suffered from an insane delusion to invalidate a will
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False -- the delusion must have been the cause of a will provision
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On what grounds might a will be invalidated if a man disinherited because he believed she was having an affair
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Mistake of fact; not of sound mind ( insane delusion -- if against all rationality); wife elects to take forced share
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In disputing a will under an undue influence theory, the contestant argues that a third party ___
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effectively controlled the testator's decision making process
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What elements are required to be shown in an undue influence contest
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1) third party received a substantial benefit under the will; 2) beneficiary had a confidential relationship with testator (could be familial or professional relationship -- lawyer etc); 3) testator had a weakened intellect at the time of execution
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If the contestant makes a prima facie case for undue influence, the burden shifts. What must the suspicious beneficiary show and by what burden?
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That there was no undue influence by a clear and convincing standard
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If undue evidence is found, what is the effect on the undue influencer's share
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If entitled to intestate share, then will get that but no more. Beyond intestate share, treated as if pre-deceased (so presumably issue could still inherit the person's share?) (but what if contestant still gets less/nothing as a result of the undue influence?)
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Will contests: fraud. Contestant bears the burden of showing that the beneficiary engaged in an unlawful ________________ at the time of the conveyance, with an intention ____ and with ___
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misrepresentation, to deceive the testator, the purpose of influencing the testamentary disposition
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Will contests: two kinds of fraud
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inducement, execution
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Fraud in the inducement
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Misrepresentation causes the testator to make a different will than testator would have otherwise made.
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Fraud in the execution
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Misrepresentation as to the contents or character of the will
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Telling a testator that his best friend is dead might be fraud in the (inducement / execution)
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inducement
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Telling a testator falsely that the will leaves the money to one party when it actually leave it to someone else is fraud in the (inducement / execution)
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execution
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What is the most common remedy for fraud?
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Creation of a constructive trust by the beneficiary for the benefit of someone else
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What are Forfeiture clauses / in terrorum
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clause that says if you challenge this will, you will lose your share
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In terrorum clauses (are / are not) allowed in Illinois
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are
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the representative of the estate in probate court, if appointed by the state, is called the __ of the estate; if named in the will, is called the __ of the estate
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administrator; executor
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Duties of the administrator/executor
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1) inventory/appraisal; 2) locate and contact interested parties, including creditors; 3) satisfy debts, including burial, spousal/child awards, costs of probate; and 4) close the estate
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An administrator/executor has a fiduciary responsibility with the estate, owing it duties of __ and ___
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loyalty and care
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T/F An administrator/executor can buy estate property that he was involved in putting up for sale to meet debts
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False -- absolute prohibition against self-dealing
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How long does a creditor have to file a claim after the probate process begins?
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6 months
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A creditor has 6 months to file a claim after ____
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the probate process begins
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A person with an original will must file it with probate court within __ of ___
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30 days, learning of the death
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T/F: the administrator/executor is responsible for managing the decedent's assets during the probate process
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true
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T/F a court appointed administrator gets paid, but an executor does not
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False -- both get paid
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In a power of appointment discussion, the decedent is described as the __ and the person selected is called the __
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donor, donee
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A will provision stating "I leave my video game collection to be distributed as my son Andrew sees fit," gives Answer a __ power of appointment
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general
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A will provision stating, "I leave my cactus collection to my children, my wife Pat to choose who receives which cactus" gives Pat a __ power of appointment
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special
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To be valid, a power of attorney must be:
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1)in writing; 2) signed; 3) dated
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General power of attorney
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person can conduct all affairs during a period of incapacitation
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Special power of attorney
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person has authority limited to a given scope -- e.g. to conduct affairs related to my business
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Types of advanced health care directives
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living will; durable power of atty for health care
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Types of power of attorney
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General, special, advanced health care directives
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What is the difference between a living will and durable power of atty for health care?
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A living will appoints a person to ensure that the principal's existing health care directives (e.g. not to be put on life support) are followed, while someone with durable power of atty can make health care decisions on the principal's behalf
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living will
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directive specifying desired health care (or limitations to ) in the case the principal becomes incapacitated
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Durable power of attorney
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Person appointed to make medical decisions (stand in the principal's shoes) in case the principal becomes incapacitated
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T/F: a person with a power of appoint can transfer the power to someone else
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False -- it is personal to the donee; if donee fails to exercise, the property under his control reverts to the estate
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In Illinois, a living will is inoperative if __
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there is someone who has been appointed with the durable power of attorney for health care decisions
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a noncupative will is a(n)...
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oral will
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A bank account held jointly between the decedent and another individual will ___
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belong absolutely to the other party/parties, absent extrinsic evidence i that the decedent added the tenant or tenants for convenience purposes only.
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Joint Will
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signed by two or more persons, intended to serve as the will of each; treated as if it is the individual will of each person
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Reciprocal will
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wills with identical or reciprocal provisions -- NOT contractual (no obligation, either individual can change their version of the will)
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Contract not to revoke
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NOT created by a joint or reciprocal will, but if one can be shown, inter vivos transfers not in the contract may be prohibited, and revoking the will after inheriting under the other person's will may result in a constructive trust
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T/F In Illinois, the phrase "joint and mutual" in a joint will is likely to be considered as including a contract not to revoke
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True
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A contract not to revoke can be indicated in a joint will with the words ___
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joint and mutual
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In Illinois, if a contract not to revoke is in place and one party makes an impermissible inter vivos transfer, or attempts to revoke the will following the first party's death, what is the likely remedy
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a constructive trust that benefits the original beneficiaries
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Mortmain Acts -- what are they and does IL have one?
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acts in few jurisdictions that place limitations on bequeaths to charity. IL does not have one
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Provisions that forfeit a gift upon marriage are __
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invalid absolute restriction, as against public policy
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