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34 Cards in this Set
- Front
- Back
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Gift is an advancement when? |
1. The decedent declared in a contemporaneous writing that the gift was an advancement (OR) 2. Decedent's contemporaneous writing or the heir's written acknowledgement otherwise indicates that gift was taken into account in computing division and distribution of intestate estate. |
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Exceptions to Omitted Child Statute |
Intentional T provided for child outside the will Provided for or mentioned child in will |
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Failure to Support |
1) Failed to support child under the age of 21 2) Had a means to provide the support 3) Absence of mitigating circumstances alleviating the parent from support 4) received a request for support from the other parent |
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Elective share |
A surviving spouse is entitled to the greater of $50,000 or one-third of the decedent's net estate |
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Ademption by Extinction |
If the subject matter of a specific bequest is missing, destroyed, or not owned by the testator at time of death the beneficiary takes nothing. |
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When can beneficiary take if bequest is adeemed by extinction? |
1) (a) If property sold by conservator (b) during T's period of incompetency (c) and conservatorship continued under T's death (d) B can receive remaining money or other property purchased from the proceeds of extinct gift. 2) Insurance proceeds paid on specific gift, proceeds paid after T's death |
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Intestacy |
default statutory distribution scheme that applies when an individual dies w/o having effectively disposed of all his property through non probate instruments. |
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NY intestacy statute |
if an individual dies intestate, then the decedent’s estate will be distributed using a per capita at each generation distribution
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If issue, and no surviving spouse, who takes? |
then the issue take the entire estate by representation.
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if surviving spouse, no issue, who takes? |
the surviving spouse takes the entire estate
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If surviving spouse, and issue, who takes? |
-the surviving spouse takes $50,000 and one-half of the remainder of the net estate.
-The balance of the estate will be distributed to the issue by representation. |
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Who qualifies as valid marriage for intestacy? |
-Valid marriage -CL marriage from other state where CL marriage is recognized -registered domestic partners (similar treatment) -Putative spouses -separated w/o judgment of separation |
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Putative spouses
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-marriage is not valid,
- one party believes in good faith in its validity, -then the spouses are termed putative and qualify as spouses for inheritance purposes. |
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Disqualified surviving spouses |
-Abandoned -Failed to support -spouse waived right (prenup, postnup, SA) |
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Abandonment |
Qualifies as abandonment 1) voluntary 2) unjustified by decedent's conduct 3) w/o consent of decedent 4) w/o intent to return or resume the martial relationship -must continue under death of decedent |
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Failure to Support |
1) decedent looked to surviving spouse for support 2) surviving spouse possessed means to support decedent 3) despite the financial means to do so, surviving spouse failed to provide the decedent with support |
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USDA |
When there is insufficient evidence of the order of death of two individuals, the property of each individual passes as though he had survived the other individual must survive the decedent by 120 hours in order to take under the will |
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issue |
includes all lineal descendants |
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Presumption regarding marital children |
child of marriage is presumed to be the natural child of the parties to marriage |
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Posthumously born children |
child conceived before but born after the death of his mother's husband |
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presumption as to posthumously born child |
rebuttable presumption exists that the child is the nature child of deceased husband |
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When can adopted child inherit from natural parents? |
1) decedent died after August 31, 1987 2) decedent was the adopted child's natural grandparent or is a descendant of a natural grandparent 3)adoptive parent is either (a) marrie to child's natural parent (b) child's natural grandparent (c) descendant of child's natural grandparent |
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When can a non marital child inherit from natural father? |
father subsequently married natural mother father held child out as his own paternity was established during the lifetime of father through results of a blood genetic marker test paternity was adjudicated during lifetime of father father executed doc acknowledging paternity |
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Wills formalities |
-entire will in writing -signed by the testator (or by T in T's name) -in joint presence of two witnesses (or acknowledged) -with present testamentary intent -both witnesses understand the significance of act -attestation clause |
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Where must signature on will be located? |
at end of will |
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what happens if signature not at end of will? |
still valid, language appearing after signature is invalid |
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If will signed on behalf of T what requirements? |
-signed in T's presence -at T's direction -person signing executes own name and address on document -if no name: signature is invalid |
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attestation clause |
includes name and addresses of attesting witnesses |
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Interested witness |
witness with a direct pecuniary interest under a will |
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holographic will |
valid if: -completely handwritten -signed by testator -i) A member of the United States armed forces engaged in active duty during a time of war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged; or ii) A person serving with or accompanying an armed force engaged in actual military or naval service during a war or other armed conflict; oriii) A mariner while at sea. |
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SOL for holographic will |
i) After the expiration of one year following the discharge of the member of the armed forces;
ii) After the expiration of one year following the period of time that the person who is serving or accompanying an armed force engaged in actual military or naval service ends such service; or iii) If made by a mariner at sea, after the expiration of a three-year period from the time the will was made. |
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When are nuncupative wills valid? |
-the disposition of personal property+
- in contemplation of immediate death+ -i) A member of the United States armed forces engaged in active duty during a time of war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged; or ii) A person serving with or accompanying an armed force engaged in actual military or naval service during a war or other armed conflict; oriii) A mariner while at sea. |
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A codicil
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is a supplement to a will that alters, amends, or modifies the will, rather than replaces it.
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pour-over will
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includes a clause wherein some or all of the decedent’s probate property is given to the trustee of the decedent’s inter vivos trust.
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