Kids shares
After the surviving spouse, _____ has the best status in intestate succession.
kids! Surviving children stand in the place of their deceased parents; this is the idea that property continues on through our children.
Intestacy: Per Capita at each Generation...
(1) Divide equally at first generation with a surviving member.
(2) Pool remaining shares and drop down.
(3) Divide equally among generation.
Intestate succession: What is an advancement?
A gift during owner's lifetime that is treated as satisfying chid's intestate share.
What is the principle of the slayer rule?
Based on a common law idea that you cannot profit from bad acts. (fraud, duress, etc.)
How do you disclaim something?
Signed writing, or declaration to administrator of the estate. You must do three (3) things:
1.) identify decedent;
2.) describe the interest disclaimed;
3.) define the extent of the disclaimer
The element of witnesses/attestation requirement means...
You need a disinterested witness! this means someone who is not going to take under the will! (we are avoiding a conflict of interest)
Intestacy: If a child pre-deceases with surviving children, then...
those grandchildren represent in the deceased's place.
(X dies and has Y as a child and Z is Y's child; If Y dies then Z takes Y's place!
survive just means...
you lived longer than the dead guy.
Intestate succession: Common law rule of an advancement...
Any gift is presumed to be an advancement. A child bears the burden of proof that it was an outright gift if wanting to show otherwise.
i.e. "My dad gave me this watch and said it was a gift in this letter."
What is the slayer rule?
A person who kills the decedant cannot inherit from them.
Disclaimers are time-limited by statute. T or F?
True! (statute might say you have 6 months to make this call and once that 6 months is up, that gift becomes yours.)
The element of signed writing means...
How much is written? Where/how is it signed?
*keep in mind these are arguments to be made.
Intestacy: If children survive... they usually "take"...
Equally!
simultaneous death means...
people died at the same time.
Intestate succession: UPC requires _______ that shows it was an advancement.
Writing!
The wife killed the husband and the court bypasses wife as if wife predeceased husband. The correct result according to the court would have been to create a constructive trust - where the wife would be the trustee and her job would be to get the estate to the decedents parents/beneficiaries.
What are the formalities of the will and why do we require them?
Elements needed to create a will. Required to avoid fraud/prove validity of will.
You MUST have the formalities followed exactly or the will is considered invalid.
Intestacy: how does per stirpes work?
- divide equally according to lineal line.
Eg. If you have 3 kids, you divide the share equally, 1/3, 1/3, 1/3. --> if the 3 kids died, it goes to their kids and is divided the same way.
Uniform Simultaneous Death Act states...
You must show by clear and convinving evidence that decedent was survived by 120 hours (5 days)
*otherwise, treat as if each predeceased so both can take!
the hotchpot method! You add, divivde, then deduct.
The Doctrine of Disclaimer states...
You are presumed, but not required, to accept a testamentary gift. (we cannot make you take property if you do not want it)
What are the elements needed to create a will?
1.) testamentary intent;
2.) witnesses/attestation requirement (need to be signed by witness);
3.) Signed writing.
Substantial compliance means...
Maybe you are missing one of the formalities but we will prioritize carrying out the testator's wishes.
*more jurisdictions are following this rule - the property should go where the testator wants it.
Intestacy: Per Capita with Representation... (2 steps)
(1) Divide equally at first generation with a surviving member.
(2) Drop down by representation. (if you have no one to represent you and you are dead, you get nothing)
Parentage usually means biological but can also mean...
adoption! this severs the legal relationship between adoptee and their biological parent.
*EXCEPTION: second-parent adoption - adult adoptee can take from parents BUT limits on extended family.
Intestate succession: Hot potch method - you add, devide and deduct what?
add: the advanvements into the probate estates;
divide: equal shares;
deduct: the advancements from the share.
Why disclaim a gift/property?
Usually taxes, or something is of sentimental value and you do not want it.
The element of testemantary intent means...
Must presently intend to make a gift that is effective after death.
i.e. "I'm alive right now, but one day I'm gonna die and this is what I want to happen when I am dead."
Again, what are the three formalities needed to be followed for a will to be valid?
1. testamentary intent;
2. witnesses/attestation requirement; and
3. signed writing