Mechanics of Succession
Difference between probate and non-probate
Probate is the property that passes under the will. Non-probate property passes through operation of law.
Do children have a right to inherit?
No.
What are the three types of wills?
Attested, notarized, and holographic.
What is a trust?
A trust is a legal arrangement in which a settlor conveys property to a trustee to hold as a fiduciary for one or more beneficiaries.
What is the difference between fraud in the inducement and fraud in the execution?
Fraud in the inducement is a misrepresentation that causes the testator to execute or revoke a will to refrain from executing or revoking a will or to include particular provisions in the wrong-doer's favor.
Fraud in execution is when a person intentionally misrepresents the character or contents of the instrument signed by the testator, which does not carry out the testator's intent.
What is the order of intestate succession?
What are the implications of adoption on a child?
Adoption cuts the ties between a child and their birth parent.
There is an exception where there is a transfer by intestacy to a child who has been adopted out by the spouse of the surviving parents.
What are the four functions of will formalities?
1. cautionary/ritual
2. protective
3. evidentiary
4. channeling
What is SIDE BLT?
Settlor with
Intent to create a trust
Delivery of
Existing property interest to
Beneficiaries
Lawful purpose
Trustee
What is the difference between the pancake theory and super-soaker theory of revival?
The pancake theory is the notion where the wills are like a stack of pancakes, if you take the top pancake off, the bottom one is still there as long as it is what was intended.
The super-soaker theory is that will 2 wipes out will 1 because it was revoked by inconsistency and the testator will now die intestate.
Describe the parentellic system, degree of relatedness system & degree of relatedness with parentellic preference.
Parentellic system is UPC and it looks for relative in the closest parentella to the decedent. Stops at grandparents.
Degree of relatedness system looks for the lowest number, closest to decedent.
Degree of relatedness with parentellic preference is used for a tiebreaker. Look for person who is closest to the decedent.
Under the UPC, where a person is related to an intestate decedent through two lines, one genetic and one adoptive, what will the person inherit?
The larger share.
What is a self-proving affidavit clause?
Substitute for in court testimony for due execution.
True or false?
A trust will fail for want of a trustee.
False.
What is an elective share?
An elective share is the right of a surviving spouse to overturn the will and take instead 1/3 of the testator's estate against the will.
What are the four limitations on the freedom of disposition?
1. taxes on estated worth 12 million or higher
2. rule against perpetuities
3. cannot make a disposition contrary to public policy
4. forced share for omitted spouses
Megan and Mitchel are married and have one child, Mark. Mitchel dies and Mark marries a second time to George. George legally adopts Mark. The mother of Mitchel (Mark's grandmother) dies intestate, survived by no one other than Mark. May Mark inherit from Mark's grandmother?
Yes, under UPC, adoption has not cut all ties between the child and the family of his birth father.
Difference between the harmless error rule and substantial compliance?
The harmless error rule, under the UPC, states as long as the decedent intended the document to be a will or revocation, it is ok it if was not in compliance with the formalities.
Substantial compliance is when the court may deem a defectively executed will as being in accord with statutory formalities if there is clear and convincing evidence that the purposes of those formalities were served.
Thomas is serving as trustee of the trust created under Jasmine's will. Thomas keeps the records of the trust, such as bank statements, a secret from Jasmine's daughter, the trust beneficiary. Did Thomas violate his duty as trustee?
Yes. Thomas has a duty to inform and account to the trust beneficiaries. Thomas may not keep the records of the trust, a secret from the trust beneficiary.
T has two sons. One of which is a successful investment banker and the other a degenerate. Throughout the years, T deposited large amounts of money into the degenerate son's bank account without telling him. T did not transfer money into his other son's account. T died intestate with 100,000 in the estate.
What would result under the UPC?
Each of T's sons will get $50,000.
Kanye West dies domiciled in a jurisdiction with laws identical to the UPC. Kanye is survived by his wife, Kim. Kanye and Kim have one child, who survives him. Kim has another daughter from her previous marriage. That daughter's name is Alexa. Alexa survives Kanye. Kanye is not survived by any other person related to him by blood or marriage. Absent additional information, if Kanye dies intestate, how much will Kim inherit?
Some dollar amount off the top of the intestate estate plus 1/2 of any balance of the intestate estate.
Mother, Rebeca, marries the brother of her first husband, Eugene. Eugene adopts the child, or his nephew. The grandmother dies intestate only survived by Eugene, an aunt, and the child. What does the child take?
UPC says the child can take from the birth father or the uncle, whichever has more to offer, the child will take from.
What is the purging statute?
The purging statute allowed a will attested by an interested witness to be admitted to probate but voided (purged) any bequest to the interested witness. A will attested by an interested witness would be valid but the witness would not take his devise.
Is this an accurate statement?
If Derrick provides in his will that the trust property shall be held in a discretionary trust to pay income and/or principal in the discretion of the trustee to "such one or more of Pace University, Drexel University and the University of Pennsylvania, each a charitable organization described in and meeting the requirements of Section 170(c) of the IRC, as the trustee shall select, for cancer-related research," that trust ordinarily will not be subject to some form of the rule against perpetuities?
Yes, charitable organizations are not subject to the rule against perpetuities.
T left her pearl necklace to her daughter. Two weeks before her death, T donated the necklace to a Museu. Absent additional information, what, if anything, will the daughter take from T's estate and why?
The daughter will take nothing. Under the strict identity theory if the property is not in the estate the devise is extinguished and there is nothing for the beneficiary to take.
Under the intent theory, T took deliberate actions to give the necklace away during lifetime and there is nothing to show T's intent to give her daughter the pecuniary value of the necklace.