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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?
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All children (including marital children) split 2/3 of the estate (using per capita with representation).
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What are the statutory rights that a surviving spouse is entitled to?
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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) |
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How can paternity be established for a non-marital child?
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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 |
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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)?
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An advancement
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What is it called in proceeding where the value of lifetime gift at time received is subtracted from child's inheritance?
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Hotchpot
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What is it called if T had declared intent that a lifetime gift would count towards a child's inheritance?
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Ademption by satisfaction
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What is it called when a devisee predeceases T, is a relative, and thus his share will pass to his descendants?
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Anti-Lapse Statute
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What are the ways to revive a will?
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1. New will
2. Re-execute old will 3. Republish will by codicil 4. Dependent Relative Revocation |
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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?
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Dependent Relative Revocation
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What is it called where property is distributed in a particular order to pay off debts?
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Abatement of legacies to pay off debts
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What is the order in which gifts will be used to pay off debts?
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Personal property is sold first:
1. Intestate succession 2. Residual gifts 3. General legacies 4. Demonstrative legacies 5. Specific bequests Real property: [same order] |
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What happens if T executes a will and later on gets married but doesn't change the will?
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Surviving spouse will receive what she would have received under intestacy (usually everything) unless it appears that the omission was intentional.
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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?
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Ademption by extinction
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What is it called if it is not clear what a will is referring to?
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Latent ambiguity
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What is it called where a mistake appears on the face of a will?
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Patent ambiguity
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What is it called where T gives a person the power to make decisions later on as to who best deserves the remainder?
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Power of appointment
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What are the types of non-probate assets (will substitutes)?
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1. Survivorship accounts
2. Payable on death benefits 3. Intervivos trusts 4. Powers of appointment |
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What is it called where a spouse has the right to contest a will and petition for the right to become omitted spouse?
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Elective Share Statute
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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)?
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Augmenting
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If T is survived by any descendents, what will a surviving spouse's elective share be?
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1/3 of augmented estate
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If T is NOT survived by any descendents, what will a surviving spouse's elective share be?
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1/2 of augmented estate
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Which types of transfers are not included in the augmented estate?
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-Spouse consented
-Transfers before Jan. 1, 1991 -Gifts deceased spouse received that he kept separate and apart |
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Which types of transfers are included in the augmented estate?
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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 |
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Which amounts are added together to calculate the augmented estate?
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1. Net probate estate
2. Transfers to spouse 3. Transfers to 3rd parties (those included in augmenting) |
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How is the surviving spouse's elective share determined?
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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) |
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How is it determined where the surviving spouse's elective share will come from?
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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 |
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What is the test for T's testamentary capacity?
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1. Understood nature of act
2. Knew extent of wealth 3. Knew natural objects of his bounty 4. Able to interrelate those 3 things |
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What must the person contesting the will prove to show undue influence?
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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 |
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What are the confidential relationships that raise a presumption of undue influence?
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1. Trust
2. Priest-penitent 3. Doctor-patient 4. Guardian-ward 5. Attorney-client |
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Which types of people are not affected by a no-contest clause?
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1. Electing spouse
2. Petition for omitted spouse 3. Petition for pretermitted children |
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Where is venue for probate of decedent's estate?
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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)
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What must an executor do to qualify for appointment?
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1. Take oath that he will faithfully perform
2. Give bond |
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Who has priority for appointment as administrator of estate during 30 days after intestate decedent's death?
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-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 |
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What are the 3 ways to revoke a will?
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1. Physical destruction
2. Valid subsequent will expressly/impliedly revokes previous will 3. Divorce/annulment to spouse revokes relevant provision |