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31 Cards in this Set
- Front
- Back
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Probate
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determines whether will is valid
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executor v. administrator
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executor = person named to administer estate
administrator = person named to administer estate absent someone named in will |
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intestate succession
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for property that passes outside of will
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heirs
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people who take under intestate succession
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devisees, beneficiaries
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take under a will
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Who takes when surviving spouse + at least some children not of surviving spouse?
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- SS = 1/3
- children = 2/3 |
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A spouse who willfully deserts spouse gets
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nothing!
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Statutory Rights of Surviving Spouse
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REFH
Residence: only if spouse claims elective share Exempt personal property up to $15k Family allowance for 1 year; $18k max unless petition for higher amount Homestead allowance: $15k ONLY in lieu of property passing and spouse does not claim elective share |
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What should you ALWAYS include in ANY question regarding a surviving spouse?
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"In addition, the surviving spouse is entitled to the following statutory rights, which take precedence over creditor's claims. These amounts are over and above the amounts passing to the spouse under any will, intestacy, or elective share."
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How is inheritance by descendants distributed?
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Per capita with representation
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What is the order of intestacy?
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1. SS
2. Descendants 3. parents 4. siblings 5. grandparents 6. laughing heirs (distant relatives) 7. escheat |
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How much do half-bloods (ex. half-sister) take?
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Half as much as full bloods
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A dies and leaves no spouse, no parents, 1 brother, and 1 half sister. How much do they take?
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brother = 2/3
sister = 1/3 |
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When a stranger adopts a child, that child has
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full inheritance rights from adoptive parents, none from birth parents
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When a step parent adopts child of spouse, that child has
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full inheritance from both parents and step parent
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A non-marital child has
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full rights from mother and father, if paternity is proven
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What are the paternity tests?
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MAC
Marriage: before/after child's birth Adjudicated to be the father in a filiation proceeding Clear and convincing evidence the man is a BAD CAT Birth certificate Admits paternity UNDER OATH DNA test Cohabitates w/mother 10 months before birth Allowed child to use surname Tax return or other government document |
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Survivorship requirement
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120 hours (5 days)
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What are advancements?
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Lifetime gifts to children/grandchildren from parents/grandparents with significant value that are deducted from intestate succession share
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What is the presumption of a significant life time gift to a child?
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It's an advancement
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What is hotchpot?
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Method of accounting for intervivos gifts made to a descendant
Value = value at time received (not value at death of donor) |
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What can child to do counter presumption of advancement?
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Prove that it was a gift
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O has 3 kids: A, B, C. O gives A intervivos gift of land worth $30,000. When O dies, the land is worth $60,000 and her estate is worth $90,000. Who gets what?
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A = $10k
B, C = $40k |
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What is ademption by satisfaction?
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similar to advancement, but involves a WILL
- when testator gives intervivos gift to person getting the property under the will, it is PRESUMED that the intervivos gift was "in satisfaction" of what was to be given in will; gift won't go to person who already received it **VA statute reverses this rule** |
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T executes will that bequests $25k to neice N. A year later, T gives N $10k saying that it's a payment from the bequest. T dies. How much does N get?
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In VA, the full $25k because of statute that reverses the common law rule of ademption by satisfaction.
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When is ademption by satisfaction allowed in VA?
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ONLY if:
1) declared in WRITING that it was in satisfaction of bequest 2) acknowledged by donee IN WRITING as satisfaction of bequest 3) will acknowledges that any lifetime gifts are in satisfaction of bequest |
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What is disclaimer?
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heir or beneficiary disclaims/renounces any interest or part of interest he would have received
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What happens if there is effective disclaimer?
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Disclaimed interest passes as though disclaimant predeceased the decedent.
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Why do beneficiaries disclaim?
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Usually for tax purposes, to benefit others, and to avoid $ going to creditors
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What are the requirements for a valid disclaimer?
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1) Signed and in WRITING
2) DELIVERED to personal representative of estate, trustee, or payor 3) within 9 months to escape taxes |
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What is the slayer statute?
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person convicted of killing another (murder or manslaughter in criminal court; murderer in civil proceeding if not available for criminal trial) does not receive ANYTHING (will, intestate, etc.)
Treated as having predeceased the person the slayer slew (goes to their heirs) |
