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34 Cards in this Set

  • Front
  • Back
If spouse dies intestate with a surviving spouse and non-marital children, what percent do the children get?
All children (including marital children) split 2/3 of the estate (using per capita with representation).
What are the statutory rights that a surviving spouse is entitled to?
1. If electing, residence until rights determined
2. Exempt person property up to $15,000
3. Family allowance in reasonable amount (up to $18,000)
4. If not electing, homestead allowance of up to $15,000 (but this is in lieu of property passing to spouse by will/intestacy)
How can paternity be established for a non-marital child?
BAD CAT

B: birth certificate
A: admits paternity under oath
D: DNA test
C: cohabitation during 10 months before child's birth
A: allowed child to use surname
T: claimed on tax return
What is it called if parent gives a lifetime gift of significant value to child that it will be subtracted from child's inheritance (for intestacy)?
An advancement
What is it called in proceeding where the value of lifetime gift at time received is subtracted from child's inheritance?
Hotchpot
What is it called if T had declared intent that a lifetime gift would count towards a child's inheritance?
Ademption by satisfaction
What is it called when a devisee predeceases T, is a relative, and thus his share will pass to his descendants?
Anti-Lapse Statute
What are the ways to revive a will?
1. New will
2. Re-execute old will
3. Republish will by codicil
4. Dependent Relative Revocation
What is it called when the revocation is disregarded because T made mistake of law/fact as to validity of another will and the new will is then probated?
Dependent Relative Revocation
What is it called where property is distributed in a particular order to pay off debts?
Abatement of legacies to pay off debts
What is the order in which gifts will be used to pay off debts?
Personal property is sold first:
1. Intestate succession
2. Residual gifts
3. General legacies
4. Demonstrative legacies
5. Specific bequests

Real property:
[same order]
What happens if T executes a will and later on gets married but doesn't change the will?
Surviving spouse will receive what she would have received under intestacy (usually everything) unless it appears that the omission was intentional.
What is it called when T bequests a specific item in the will, it is not there on T's death, and thus the devisee generally gets nothing?
Ademption by extinction
What is it called if it is not clear what a will is referring to?
Latent ambiguity
What is it called where a mistake appears on the face of a will?
Patent ambiguity
What is it called where T gives a person the power to make decisions later on as to who best deserves the remainder?
Power of appointment
What are the types of non-probate assets (will substitutes)?
1. Survivorship accounts
2. Payable on death benefits
3. Intervivos trusts
4. Powers of appointment
What is it called where a spouse has the right to contest a will and petition for the right to become omitted spouse?
Elective Share Statute
What is the tool called that is used to prevent a decedent spouse from transferring title outside reach of probate estate (which would defeat surviving spouse claim)?
Augmenting
If T is survived by any descendents, what will a surviving spouse's elective share be?
1/3 of augmented estate
If T is NOT survived by any descendents, what will a surviving spouse's elective share be?
1/2 of augmented estate
Which types of transfers are not included in the augmented estate?
-Spouse consented
-Transfers before Jan. 1, 1991
-Gifts deceased spouse received that he kept separate and apart
Which types of transfers are included in the augmented estate?
STRINGY LEGS

STRINGS attached lifetime transfers
L: life insurance
E: employee death benefits
G: gifts in excess of $10,000 within the past year (and those within 5 past years if the aggregate amount is more than $10,000)
S: survivorship estates
Which amounts are added together to calculate the augmented estate?
1. Net probate estate
2. Transfers to spouse
3. Transfers to 3rd parties (those included in augmenting)
How is the surviving spouse's elective share determined?
1. Calculate augmented estate
2. Divide by 1/3 if T is survived by descendents; if not, divide by 1/2
3. Subtract out any transfers to spouse (only take out 1/2 for survivorship estates unless presumption is rebutted)
How is it determined where the surviving spouse's elective share will come from?
1. Calculate augmented estate
2. Subtract any amount that passed to S in satisfaction of elective share [=amount subject to contribution]
3. Divide the S's share by amount subject to contribution

-That is the percent that all beneficiaries' gifts will be reduced by
What is the test for T's testamentary capacity?
1. Understood nature of act
2. Knew extent of wealth
3. Knew natural objects of his bounty
4. Able to interrelate those 3 things
What must the person contesting the will prove to show undue influence?
1. Suspicious circumstances
2. Beneficiary's conduct demonstrates desire to overcome T's mind and will
3. Provisions in will are a product of that conduct
What are the confidential relationships that raise a presumption of undue influence?
1. Trust
2. Priest-penitent
3. Doctor-patient
4. Guardian-ward
5. Attorney-client
Which types of people are not affected by a no-contest clause?
1. Electing spouse
2. Petition for omitted spouse
3. Petition for pretermitted children
Where is venue for probate of decedent's estate?
Decedent's domicile at death (unless he was in a nursing home, in which case his domicile is presumed to be where he lived before)
What must an executor do to qualify for appointment?
1. Take oath that he will faithfully perform
2. Give bond
Who has priority for appointment as administrator of estate during 30 days after intestate decedent's death?
-Spouse who is sole distributee
-Spouse who has written consent of all decedent's competent children
-Any distributee who is the sole heir
-Any distributee who secures written waivers from all other competent distributees
What are the 3 ways to revoke a will?
1. Physical destruction
2. Valid subsequent will expressly/impliedly revokes previous will
3. Divorce/annulment to spouse revokes relevant provision