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75 Cards in this Set

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Under the intestate statute, how is an estate distributed, if spouse and one child survive?
if the intestate is survived by only one child, or by any lineal descendant of a deceased only child of the surviving spouse receives 1/2 undivided interest in the real property and the first 30,000 plus 1/2 of the remaining personal property
Under the intestate statue, how is an estate distributed when there is a spouse and more than one child survive?
If the intestate is survived by two or more children, or by one child and any lineal descendant of one or more deceased children, or by lineal descendant of two or more deceased children the surviving spouse receives a 1/3 undivided interest in real property plus the first 30,000 and 1/3 of the remaining personal property
Under the intestate statue, how is an estate distributed when there is a spouse and and a parent survive?
if the intestate is not survived by any children or by desendant of any children, but is survived by one or more parents, the spouse receives a 1/2 undivided interest in the decedent's real property, plus the first 50,000 and 1/2 of the balance of the personal property.
Under the intestate statue, how is an estate distributed when there is just a spouse that survives?
if the intestate is not survived by any children nor by any parents the spouse receives all the real property and personal property
What is the dwelling place rule?
in place of 1/3 life estate in the real estate, statutory dower provides that the surviving spouse at the time of decedent's death and fee simple ownership of the household furnishings
What is a statutory dower?
the surviving spouse of an intestate may elect to take a 1/3 life estate of all real estate owned outright by the decedent
How long does the survival spouse have to file with the court?
General Rule--surviving spouse must file a notice of the election 12 months of the decendent's death if no administrator has been appointed within that time, or within one month after the expiration of the time to file claims against the estate.
When does the 5 degree kinship rule apply?
The descendants of the grandparents cannot go pass five degrees.

Note: if there, is no collateral relative within degrees, unlimited collateral succession is allowed to prevent escheat to the state, as long as the collateral kin is related to the decedent through a parent or grandparent of the decedent.
How do computate degrees of kinship?
Degree of kinship is computed by starting with either the decedent or the alleged heir and ascending from that person to the first common ancestor and then descending from that ancestor to the other person.

Note: one degree is assigned for each person in the line ascent and in the line of descent exclusive of the person from whom the computation begins.
How are half bloods treated?
NC makes no distinction between relatives of the half-blood and relatives of whole blood.
How are adopted children treated?
General Rule--adopted child inherits from adopted parents as if they are natural parents

Note: adoption severs all ties betweenand the the biological parents and the child.
How are After-Born Heirs (posthumous children) treated?
A lineal descendant or collateral kin born after but conceived before, the death of the decedent may inherit as if that heir were living at the time of decedent's death.

Note: a child born within 10 lunar after the decedent's death is presumed to have been conceived during the lifetime of the decedent.
How are children born out of wedlock treated?
1. legitimated children
(a) general rule a child who has been legitimated may inherit by, through and from the child as if the child had been born in wedlock

2. children who have not been legitimated.
(a) general rule- a child is treated as the legitimate child of the father if paternity has been established or father has acknowledged the child as his, while both he and the child are alive in a written instrument executed or acknowledged before a certifying officer, during father's lifetime and the child's lifetime, in the office where the father or child resides.
What is the rule of wrongful death for intestate?
The amount recovered in a wrongful death action does not become part of the estate of the deceased but is distributed according to intestacy laws.
What is advancement?
advancement applies when someone dies intestate.
What is the general rule for inter vivos transfers?
Generally a gratuitous inter vivos transfer is presumed to be an absolute gift and not an advancement
What happens if an heir that receives an advancement predeaces?
if the recipient of the advancement fails to survive the decedent the property advanced shall be taken into account in determining the share of any lineal heir of the recipient the value of the advancement be determined as of the date the recipient took possession of the property or when the heir took possesion, whichever happens first.

Note: the lineal heirs bear the burden of advancement just if the advancement had been made directly to them
What is a Hotchpot?
The value of the property given as advancement is determined as fo the time time when the advancee came into possession or enjoyment of the property, or at the time of the death of the intestate whichever happens first.
What is the general rule for simultaneous death?
the property of each person to be diposed of as if that person had survived the other when there is insufficient evidence to determine which person died first.
Under simultaneous death, what happens when the owner and the beneficiary die?
if the owner of the property and the would be benefiicary of such property dies, and there is no sufficient evidence as to the priority of death, the property is disposed of as if the owner had survived.
Under simultaneous death, what happens to the gift if a class member dies?
General rule each class member of the class will be deemed to have survived that person.
Under simultaneous death, what happens to property as joint tenants and tenants by the entirety?
1/2 as if one had survived and 1/2 as if the other survived.
What is needed to make a will?
1. Legal capacity (over 18)

2. Mental state
(i) testamentary intent
(ii) testamentary capacity
1. testator must understand the document to be signed is a will
2. testator must understand the effect of the document is to distribute property after death

3. testator must know the nature and extent of the property subject to distribution

4. testator must know the natural objects of the testator's bounty

5. testator must comprehend all the elements at the same time.
Who has the burden of proof of challenging the testator's capacity?
General Rule--the burden of proof as to the testator's soundness of minding is on the will's proponent, who is aided by a presumption that the testator was of sound mind when he executed the will.
What is needed for an Attested Will?
General Rule--an attested will is one signed by the testator and at least 2 competent witnesses.

Note: must be signed the testator, or in the testator's name by another person in the testator's presence and at the testator's

Note: testator must sign the will in the presence of the witnesses, or if the will was signed outside the presence of the witnesses acknowledge the signature
What is the rule for witnesses?
General Rule-two witnesses to the execution of the will are required.

Note: witnesses must sign in the presence of the testator, but need not sign in the presence of each other.
What is rule for interested witnesses?
General rule--a witness who has pecuniary interest under the will, or whose spouse is a beneficiary under the will is a competent witness.

Note: supernumerary rule--intersted witness have to urge their gifts to take but if you have two more disinterested witnesses they can take your gift.
What is the rule for Self-Proved Wills?
NC allows a will to be made self-proved after the execution by the acknowledgment thereof by the testator and the affidavits of the witnesses made before an officer authorized to administer oaths
What is needed for a holographic will?
1. testator's handwirting and
(a) there may be printed words on the page, but they cannot affect the meaning of the handwrritten words
(b) handwritten words must be sufficient in and of themselves

2. the testator signed the will and

3. the will was found after the testator's death among the testator's valuable papers, or in such a place that it is clear it was so placed by the testator for safe keeping.
What witnesses are needed to prove a holographic will?
testimony of three witnesses that the will and signature are the handwriting of the testator?
Can interested witness testify for a holographic will?
Yes a beneficiary under a holographic will may testify to such competent, fact to establish the the alleged holographic will is invalid without forfeiting any benefits under the will.
What are the elements for a Nuncupative/oral will?
1. it is made by a person suffering a final sickness or in imminent peril of death and that person does not survive such sickness or peril

2. the testator declares the statement to be his will before two competent witnesses simultaneously present at the making who are specifically requested by the decedent to bear witness to the will

3. only disposes of personal property
What is a Codicil?
Codicil is an addition to or an alteration of a will.

Note: codicil must be executed with same formalities as a will

Note: a validly executed codicil republishes the will as of the date of the codicil--the will is considered to be reexecuted upon execution of the codicil

Note: the will and the codicil are viewed as one instrument to be interpreted according to the circumstances and law in effect at the time of republication

Note: In NC, implied revocation is favored, where a codicil and the will must be completely irreconcilable in order for the court to find that a revocation was intended.
What is Incorporation by reference?
a properly executed codicil can validate a prior invalid through incorporation by reference.
What is disposition by other writings?
a testator may incorporate by reference a seperate document into a will if:
1. the seperate document must be in existence at thte time the will is executed.

2. the will (or codicil) must refer to the seperate document.
What are the methods of revocation?
1. subsequent will, codicil or other writing executed under written will formalities or

2. Being burnt, torn cancelled, obliterated or destroyed with the intent to revoke the will by the testator or another at the direction of the testator and in the presence of the testator
How is a nuncupative will revocated?
nuncupative will may be revoked by a subsequent will, or by a subsequent written will or codicil executed in the same manner prescribed for the execution of attested wills
What is revocation due to changed domestic circumstances?
1. subsequent marriage (general rule a will is not revoked by a subsequent marriage of the maker)

2. subsequent divorce annulment
What is the mental capacity needed to revoke will?
general rule the same mental capacity to make the will is applied to revoke the will
What is Dependent Relative Revocation(DRR)?
Applies when the second (or subsequent) will is never made or fails and there is an adequate showing that the testator intended to revoke the first will only if the second will was valid.
In NC can there be a revival of a will?
General Rule a will which has been revoked cannot be revived unless there is a re-excuction of the will or an execution of another will codicil which incorproates the revoked will be reference.
What are the general rules for construction?
1. testator's intent expressed by the testator within the four corners of the will controls the legal effect of its provision
What are the general rules for ambiguities?
1. Patent ambiguities appear on the face of the will, and must be resolved within the four

2. Latent ambiguities arise when langage of the will, otherwise clear, is applied to thing given or the person benefitted under the willand some extrinsic fact necessitates interpretation or choice among two or more possible meanings
What is ademption by satisfaction?
Generally--the doctrine ademption by satisfaction is analogous to the doctrine of advancement in intestate

Note: In NC an inter vivos gift by a parent to a child will be presumed to be in satisfaction of a testamentary gift.
What is exoneration?
General Rule-in NC liens will not be exonerated absent a clear intention in the will.
What is common law lapse?
General Rule--a legacy or devise to a person who predeceased the testator lapsed or failed. In the absence of an alternate beneficiary, the lapsed devise fell into the residue of the testator's estate
What is the anti-lapse statute?
General Rule--absence of a contrary intent expressed in the will a gift to a deceased or renouncing beneficiary passes to the issue of the beneficiary only if the beneficiary is a grandparent of or a descendant of a grandparent of the testator?

Note: If there is contrary intent by the testator then anti-lapse does not apply

Note: creditors do not have rights
What are the general rules under the slayer statue?
the slayer shall be deemed to have died immediately prior to the death of the decedent and the following rules apply.

1. the slayer shall not acquire any property or receive any benefit from the estate of the decedent by testate or intestate succession or by common law or statutory right as surviving spouse of the decedent

2. where the decedent dies intestate as to property which would have passed to the slayer by intestate succession and the slayer has living (living at the time that decedent dies) who would have been entitled to an interest in the property if the slayer had predeceased the decedent the property shall be distributed to such issue modern per stirpes. If the slayer does not have issue, the property shall be distributed as though the slayer had predeceased teh deceased the decedent.

3. where the decedent dies testate as property which would have passed to the slayer pursuant to the will the estate
What is a disclaimer?
General Rule--must be filed before the beneficiary has accepted the gift renounced.
What is a Disclaimer?
A disclaimer msut be filed before the beneficiary has accepted the gift renounced.
Generally what is abatement?
Applies where the assets of the testator are insufficient to pay creditors and the devises made in the will.
What are the general rule for class gifts?
if the gift is immediate (testator's death) the class closes at testator's death

2. If the gift is postponed, the class will remain open until the time set for distribution.
What are some general rules for closing the class?
Rule of convenience--if a person can take then the class closes
What are the ways to contest a will?
1. lack of testamentary intent

2. undue influence

3. fraud

4. mistake
What is the general rule for undue influence?
General rule influence must be such that the testator lacks free will and has become merely an agent of the person exerting the influence.
What are the two types of fraud?
1. fraud in the inducement--is established upon proof that a beneficiary knowingly made a false a representation to the testator to induce the testator to draw will in the beneficiary's favor and the testator did so as a result of the fraud.

2. Fraud in the execution is fraud as to the very nature of an instrument or its contents attorney.
What is the formula for elective share?
Applicable share x total net assets - property passing to the surviving spouse = (spouse's elective share)

Note: applicable share is the % the spouse is entitled to.
What are the amounts that a spouse get under elective share?
1. 1/3 if survived by two or more lines of descent

2. 1/2 if no children no children or only one child

3. Second spouse's elective share cut in 1/2 if testator has any descendents from former spouse
What are some of the net assets under elective share?
1.Property other than wrongful death proceeds payable to decedent’s estate b/c of decedent’s death.

2.Half of any right of survivorship property held by decedent & spouse or by D & someone else.

3.Donative transfers made by D during life where D retained either right to income or possession of property or decedent retained the right to revoke the transfer.

4.Gifts greater than $10K per donee made w/out spouse’s consent during marriage to persons other that the spouse w/in 6 months before decedent’s death.
What are some of the reductions under elective share?
1.Half the value of property going to spouse by right of survivorship.

2.Property other than SS benefits passing to spouse under decedent’s will, by intestacy, or by beneficiary designation, including life insurance.

3.Year’s allowance.

4.Value of any property renounced by spouse.

5.Value of any gifts made to spouse by decedent for which a gift tax return was filed.

6.Value of any property passing in trust for exclusive benefit of the spouse during the balance of his or her lifetime but only if trust has non-adverse trustee.

7.Net value of marital estate awarded to spouse after decedent’s death
What is a specific gift?
Devise of a specific item of property. Ex: I give my mother’s china pot to John
What is a general gift?
a gift of general economic value that may be satisfied from any asset or fund. You don’t specify where the money has to come from to satisfy the gift. Ex: I give $10k to X.
What is a demonstrative gift?
hybrid of a specific and a general gift. A gift of general economic value where the source of payment for the gift is specifically directed. Ex: I give $10k to X to be paid from my SECU account.
What is a residuary?
what remains of the T’s property after the payment of debts, expenses and taxes and after satisfaction of all the specific, general and demonstrative gifts
What is the priority of abatement?
i. Intestate assets
ii. Residue
iii. General
iv. Demonstrative
v. Specific
What is the general rule for ademption?
When a gift under the will does not exist at the time the will is probated and ready for distribution
What is ademption by extinction?

i.GR—if the gift does not exist when the will is probated, the gift is extinguished
What is the exception Ademption by extinction?
if the property is sold during the lifetime of the T, after T has become incompetent, and the sale was conducted by T’s guardian or power of attorney. The person entitled to the gift gets the proceeds from the sale.
What is the general rule for partial ademption by extinction?
occurs if there is a disposition or destruction of only a portion of the specific devise.

i.GR: Beneficiary only takes the remaining portion of the specific gift. Not entitled to proceeds of the portion of the gift that was sold or destroyed.
What is implied revocation of a will?
1. when a subsequent instrument is a codicil-

2. total revocation by inconsistency possible-

3. No presumption due to subsequent instrument
What is integration?
the doctrine of integration addreses the question of what sheets were present at the time of will execution and thus comprimse the decedent's will.
What is incorporation by reference?
1. Document must be in existence

2. sufficiently described for clear identification

3. intent to incorporate
In NC, what is abatement?
1. partial intestacy

2. residuary bequests

3. general bequests

4. specific bequests
What is anti-lapse?
If no contrary intent is indcated by the will, the anti-lapse statute preseres lapsed gifts if:
1. the benefiicary predeceases the testator (whether he dies before or after execution of the will

2. the predeceasing beneficiary leaves issue surviving the testator and

3. the beneficiary is a grandparent of , or a descendant of a grandparent of, the testator.

Note: both gifts to individuals and to members of a class are covered by the anti-lapse statute
What are the procedural matters for contesting a will?
1. only interested parties may file

2. posting bond

3. w/in 3 years of probate

4. notice

5. Caveat is a special proceeding "In Rem"

6. Burden