Term
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Definition
trust account that must beset up as an atty in which you place all monies recieved from clients for which is not yet earned...non-interest account. Mandated by the state bar. THis is a state bar holding account. |
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Term
outline of engagement letter |
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Definition
client name and address -re line: legal reresentation -salutation -nice one paragr greeting -scope of work -fee estimate -intro of ethical rules -retainer request and explanation of how retainer will be applied (IOLTA) -right to withdraw if fees unpaid -termination of representation: auto or voluntary? -nice closing -your actual signature, not assistant's -client consents |
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Term
what is a devisee of a person who dies without a will |
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Definition
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Term
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Definition
the current spouse of the decedent when he/she dies |
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Term
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Definition
person who dies with a will |
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Definition
the state's procedure for disposing of the decedent's property, will or no will |
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Term
2 different types of probate |
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Definition
formal-contested, litigated informal- |
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Term
3 core functions of probate |
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Definition
1. documents title transfer 2. 3. |
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Term
simultaneous death: who survived forpurposes of inhereitence? |
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Definition
if the other predeceased by 120 hrs. |
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Term
IS there sufficient evidence of survivorship? |
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Definition
IF yes, the evidence is used to determine who survived. -If no (insufficient evidence of surviv.), the beneficiary is deemed to have predeceased the donor. Donor survives for purposes of homestead allowances |
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Term
Intestacy statutes apply when: |
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Definition
No will or invalid will (invalid as determined by the probate court -A valid will does not dispose of the entire estate of the decedent (partial intestacy) |
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Term
Who has standing to challenge the validity of the will? |
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Definition
-only those who would recieve some of the estate if the will was completely or partially invalidated by probate court -in other words, those who would recieve under intestacy statutes (potential heirs) |
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Term
what info do you need to ask your client in order to properly analyze intestate estate |
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Definition
-living children children at DOD? -was the decedent married at DOD (date of death) -Does decedent have living grandchildren at DOD? -IF decedent was not married and had no children, was decedent survived by anyone related to him or her in any way? |
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Term
IF D dies intestate, how much of probate assets does SS (surviving spouse) get? UPC 1-102 (or state law) SS gets all if: |
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Definition
-SS has surviving kids only from D-SS union (D had no step kids from SS), OR -Ds parents and descendants do not survive D. ***See statute for other scenarios |
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Term
IF D dies intestate without a SS, how are probate assets divided among descendants? UPC 2-103 (or state law) |
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Definition
English Per Stirpes (minority) -divide at child level even if no child alive Modern PEr Stirpes (majority) -divide into equal shares among that first generational level where someone is living |
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Term
UPC & AZ: per capita by generation (AKA "by representation") |
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Definition
-divide into equal shares at that first generational level where someone is alive -divide the rest equally among next generation (put in pot then divide what's left among children with deceased parents) |
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Term
See pg. 93 table of consanguinity |
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Definition
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Term
To determine whether posthumously conceived genetic children may enjoy inheritance rights under an intestacy statue, the court balances: |
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Definition
(1) the best interests of children, (2) the State’s interest in the orderly administration of estates, and (3) the reproductive rights of the genetic parent. |
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Term
Under intestacy law, a nonmarital child must obtain a judicial determination of paternity as a prerequisite to succeeding to a portion of the father’s estate if there is no acknowledge of paternity by the father. Posthumous genetic children may enjoy the inheritance rights of “issue” under intestacy law in limited circumstances where... |
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Definition
(1) the surviving parent or the child’s other legal representative demonstrates a genetic relationship between the child and the decedent, (2) the survivor or representative must establish that the decedent affirmatively consented to posthumous conception and to the support of any resulting child, (3) the proper time limitations are met, and (4) notice is given to all parties. |
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Term
■Where a government instrument is silent, children born of this new biotechnology with the consent of their parent is entitled to... |
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Definition
...the same rights, for all purposes, as those of a natural child |
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Term
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Definition
refers to the blending or combining of property in order to ensure equality of division.[1] It usually arises in cases of divorce or in connection with advances made from the estate of a deceased, if so provided for in his Will. Hotchpot was abolished for all persons dying intestate ( that is without a Will)by section 1(2)of the Law Reform (Succession) Act 1995 in respect of all intestates dying on or after January 1, 1996. |
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Term
Laws that classify on the basis of race are reviewed under equal protection with... |
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Definition
...strict scrutiny and will not be upheld unless they are necessary to accomplish some permissible state objective. |
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Term
strict scrutiny categories: (2) will use SS when: |
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Definition
A. protected classes- the ct. must declare it a protected class, if it has not been found as such you can still argue but the court hasnt created a protected class in 40 years. "discreit and insular". today, it does not matter which race (not only minorities) B. fundamental interest- this is the other way in which a law can be subject to SS under an equal protection challenge.the ct. finds that what the law deals with is something that is so fundamental to american fundamentals of liberty. even if there is express language in the consitution. like voting: no constitutional right to vote, but it is so necessary that it is strict scrutiny -The state must have a compelling reason and the menas must be narrowly tailored to that reason -the way the test works: 1. identify the class; 2. ask the question is there a compelling state reason?; 3. Are the means narrowly tailored to that reason? |
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Term
When is influence "undue" |
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Definition
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Term
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Definition
Theory: which sheets of paper present at the time of the will execution constitue the will? -A will proponent must prove: 1. the pages were present when the will executed; AND 2. the pages were intended by T to be part of the will (intent. -intent and presence are presumed if pages physically connected(staple paper clip) |
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Term
incorporation by reference |
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Definition
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Term
Acts of Independent Significance |
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Definition
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Term
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Definition
the process of treating an old will as if it were executed at a later date -"this codicil hereby incorporates by reference the terms of the original will dated ___ which are not inconsistent with this codicil" -will and codicil treated as one will with the date of the execution being the DATE OF THE CODICIL |
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Term
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Definition
2-603. e.g. I give my house to A for life and on A's death, to such of A's issue as she wshall appoint during her lifetime or by will; in default of appointment, to Bs issue then living per stirpes. who are the players? -t= donor (gives power of appointment) -A= donee (gets from T power of appointment) -A's issue= objects of the appointment -whatever is transferred by POA= appointive property -B's issue= takers in default of appointment -required languagee for takers in default (DRAFTING) -what happens to property if no default provision? -goes through residue of donors estate in will or intestacy -So what type of POA is this? |
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Term
2 types of power of appointment |
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Definition
1. limited POA: doneee can exercise power in favor or a specified class of persons NOT INCLUDING donee... 2. General POA: donee can exercise power in favor of donee(self), donees estate, donees creditors or creditors of donees estate (recipients selected by donee) |
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Term
limited powers of appointment |
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Definition
-Eclusive POA: donee can distribute UNEQUALLY to objects and even may exclude some -Nonexclusive POA: donee must distribute EQUALLY to all objects -Presumption? Default is Exclusive, so better draft otherwise if client so desires |
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Term
so what happens if POA not exercised? |
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Definition
-goes to takers-in-default under donors will |
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Term
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Definition
what if the property subject to the SPECIFIC BEQUEST is not in T.'s estate at T.'s DOD (destroyed sold given away lost?) |
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Term
how is a living trust created? must satisfy requirements under UTC 401 and 402? |
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Definition
-capacity -intent; unequivocal, clear, present intent -transfer of assets by will or declaration -ascertainable benefeciary -sole trustee does not mean sole beneficiary -trustee needs duties |
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Term
UTC 402 requirements to create a trust: (5) |
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Definition
1. the settloe has capacity to create a trust 2. the settlor indicates an intention to create the trust 3. the trust has a definite beneficiary or is: A) a charitable trust B)a trust for the care of an animal, sec. 408 C) a trust for a noncharitable purpose, sec. 409 4) the trustee has duties to perform; and 5)the same person is not the sole trustee and sole beneficiary |
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Term
what are the requirements of a testamentary trust? |
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Definition
1) T intended to create a trust; AND 2)essential terms must be ascertainable from one of the following: -terms of will, or -existing writing properly incorporated by reference into the will -facts having substantial, independent significance apart from theor effect on the terms of the will, OR -exercised power of appointment |
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Term
trust protector: add flexibility |
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Definition
A trust protector APPOINTED by the trsust instrument and has authority conferred by trust instrument. May include the followning: -remove and appoint a trustee; -modify or amend the trust for any valid purpose, including to achieve favorable tax status -increase, decrease modify... |
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Term
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Definition
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Term
types of powers of appointments |
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Definition
1. General POA: recipients selected BY DONEE: a donee can exercise power in favor of donee(self); donees creditors; or creditors of donees estate -upon my death allison shall distribute the IBM stock as Allison shall appoing by will; in default of appointment... 2. Limited POA |
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Term
exclusive v. noneclusive POA |
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Definition
EXCLUSIVE: donee can distribute UNEQUALLY to objects and ebven may exclude some *the presumption is always exclusive NONEXCLUSIVE: donee must distribute EQUALLY to all objects |
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Term
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Definition
-transfer property to heirs or other devisees (usuually children or grandchildren ) without gift tax -avoid estate tax: not in tax base -protext Bs from creditors |
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Term
whats the right way to disclaim |
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Definition
state law dictates -ARS 14-1005 written or other record -decalres the disclaimer -describes interest (inheritence or share of |
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Term
2 ways can prematurely terminate trust or change trust terms |
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Definition
change TST terms: TST may deviate from trust terms when compliance would defeat or substantially impair accomplishing the purposes of TST due to unanticipated changed circumstances |
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Term
Ridell common law rule to analyze whether a trust may be alterred by the court |
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Definition
Equitable deviation rule: Allows court to modify administrative or discretionary TST if: 1. circumstances are not anticipated by T 2. requires modification or deviation to further purposes of TST *what does not anticipated mean? circumstances have chaged since the trusts creation, or T was unaware of these circumstances when the trust was established (unanticipated circ.) *what must the trial court determine if issue is unanticipated circumstances? Whether modification would tend to advance the trust purposes. subjective process of trying to infer the relevant purpose of a trust from the general tenor of its provision |
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Term
Clafin doctrine, to change or terminate the trust prmaturely |
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Definition
If continuation of the TST without modification or termination is necessary to carry out A MATERIAL PURPOSE of the T, the Bs cannot compel modification or termination |
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Term
compare CL to statutes in regards to modifying or terminating trusts |
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Definition
Common law: R3d Trusts Sec. 66(1)(2003): Statute: UTC sec. 412(a) (2000) Modern trend: statutes, state statutes facilitate premature TST termination... |
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Term
There are a handful of conditions that have been held to be invalid and against public policy: |
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Definition
1. Absolute restraints on marriage: cant marry anyone (partial restraints ok if reasonable 2. Requiring beneficiary to practice a particular religion 3. gifts that encourage seperation or divorce 4. gifts that promote family strife- conditioned on family members ostricising... 5. gifts with a directive that property be destroyed |
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Term
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Definition
probate (..as opposed to nonprobatable property) |
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Term
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Definition
a gift of REAL property under a will |
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Term
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Definition
a gift of personal property under a will |
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Term
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Definition
person appointed by the probate court to oversee the administrative process of wrapping up and probating the decedent's affairs |
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Term
although the details vary from state to state, the basic order of who takes is fairly similar: |
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Definition
1. surviving spouse 2. issue 3. parents 4. issue of parents 5. grandparents/ issue of gparents 6. next of kin 7. escheats to the state |
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Term
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Definition
the intestate distribution schemes presumes that the jurisdiction does NOT recognize community property. -Community property jurisdictions presume that all property acquired during marriage is community property, but property acquired before marriage and gifts, inheretence, and devises acquired during marriage by either spouse are that spouse's seperate property. Under community property, upon the first spouse's death the community property is immediately divided 50 percent to the surviving spouse outright, and 50 percent to the deceased spouse. If However, the deceased spouse dies intestate, typically all of the deceased spouse's half of the community property goes to the surviving spouse. the deceased spouse's seperate property is distributed pursuant to an intestate scheme similar to the intestate distribution scheme. |
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Term
UPC intestate distribution scheme UPC# |
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Definition
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Term
The UPC approach to intestate distribution scheme: |
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Definition
Who takes? 1. Surviving spouse: How Much?: -100% if no issue or parents; or -100% if all decedent's issue are also issue of surviving apouse and surviving spouse has no other issue; or -$300,000 + 75% of rest if no issue but surviving parent; or -$225,000 + 50% of rest if all issue are also issue of surviving spouse and surviving spouse has other issue; -$150,000 + 50% or rest if one or more issue is not issue of surviving spouse. .... Any property not passing to a surviving spouse passes as follows: 2. Issue: Equally 3. Parents: Equally, or all to the survivor 4. Issue of parents: Equally 5. Grandparents/issue: -50 to paternal grandparents or survivor; otherwise to their issue equally -50% to maternal grandparents or survivor; otherwise to their issue equally -If no surviving grandparents or issue on one side, all to the other side 6. Issue of predeceased spouse(stepchildren): 100% equally 7. escheat to the state: 100% |
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Term
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Definition
surviving spouse. Compared to most state intestate schemes, the UPC gives the surviving spouse a larger share of the deceased spouse's intestate estate |
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Term
The UPC also favors ______. |
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Definition
State. -under the UPC the decedent's property escheats to the state much sooner than it would under most state statutes, although the '08 revisions to the UPC now give the property to stepchildren (issue of predeceased spouse) before giving it to the state. |
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Term
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Definition
generally DO qualify as spouses. at least one believes valid marriage ceremony but for some reason the marriage is either void or voidable |
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Term
If D. Dies Intestate Without a Surviving Spouse, How Are Probate Assets Divided Among Descendants? UPC 2-103 (or state law) |
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Definition
English Per Stirpes (minority) Divide at child level, even if no child alive
Modern Per Stirpes or Per Capita with Representation (majority) Divide into equal shares among that first generational level where someone is living
UPC & AZ: Per Capita by Generation (Trend) Divide into equal shares at that first generational level where someone is alive Divide the rest equally among next generation (put in pot then divide what’s left among children with deceased parents) |
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Term
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Definition
A 2/5 share is divided between three children. What share does each child receive? 2/5 divided by 3 = 2/5 x 1/3 = 2/15 (cannot reduce) Now, a 2/3 share is divided among 4 children. What share does each child receive? 2/3 divided by 4 = 2/3 x 1/4 = 2/12, but reduces to 1/6 |
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Term
What are the “limited circumstances” in which posthumously born children can inherit as if born before Dad’s death? |
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Definition
Clear and unequivocal consent to posthumous reproduction and support of resulting child or children Just having preserved sperm is not sufficient Proven genetic relationship between children and deceased parent Still, time period may bar intestacy inheritance |
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Term
Only a decedent’s ______________ passes by intestate succession |
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Definition
-net probate property. under the governing jurisdiction’s statute of descent and distribution. See Chapter 1. Nonprobate property is not subject to intestate succession, and the distributable probate estate is reduced by such items as taxes, debts, administration expenses, funeral expenses, and any family allowances. |
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Term
In general, the surviving spouse’s intestate share under the UPC |
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Definition
is greater than the share of a surviving spouse under most non-UPC intestate succession statutes. |
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Term
The fixed dollar amount under the UPC reflects both |
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Definition
a presumption of the decedent’s intent plus a support theory that the surviving spouse will need a certain minimum amount to avoid becoming a ward of the state. Notice that the spouse is entitled to receive this amount regardless of the spouse’s own resources and regardless of the amount of nonprobate property the spouse received as a result of the decedent’s death. |
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Term
UPC §2–102 also gives the balance of the probate estate to the surviving spouse if ( |
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Definition
(1) there is no surviving descendant or parent of the decedent, or (2) if all of the decedent’s descendants also are descendants of the spouse and there are no descendants of the spouse who are not also descendants of the decedent. This last element reflects a presumption that such a spouse is not likely to divert the decedent’s property to objects of the spouse’s bounty who the decedent would not necessarily favor. |
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Term
Example of: All of the Remainder of the Estate if . . . |
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Definition
D, who died intestate, was survived by a spouse and two children, both of whom also were the spouse’s children. Under the UPC, D’s spouse inherits the entire probate estate, unless the spouse had descendants from another relationship who survived D. This spousal entitlement is a significant departure from traditional intestate succession law under which the surviving spouse shares the decedent’s intestate estate with the decedent’s descendants. |
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Term
Descendants of the Decedent or Spouse From Another Relationship (UPC) |
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Definition
UPC §2–102 limits the entitlement of a surviving spouse if there are living descendants of the decedent, or of the spouse, by another relationship.The fixed dollar amount if the decedent had descendants from a prior marriage is the first $150,000. Curiously, if the spouse has descendants from a prior marriage (and all of the decedent’s descendants also were descendants of the spouse), the spouse’s recommended share would be the first $225,000. In either case the spouse also receives half of the balance. |
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Term
Spouse’s UPC Share if Decedent Had No Descendants |
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Definition
If the decedent is survived by a spouse but by no descendants, the spouse receives the entire estate unless the decedent was survived by one or both parents. In that case the spouse’s UPC share is the first $300,000, plus three-fourths of the balance. |
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Term
Spouse’s Share in Non-UPC Jurisdictions |
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Definition
The UPC provisions for a surviving spouse are more generous than the statutes of most non-UPC states, many of which limit the spouse’s share to one-third or half of the decedent’s net probate estate. Further, if the decedent was not survived by any descendants, some states would give the entire estate to the surviving spouse but many others do not alter the spouse’s share. If there are no children by a former marriage, most decedents probably would want the surviving spouse to take the entire estate. So you can see that the non-UPC intestacy laws may be antiquated or out of sync with the intent of the average decedent. They are not very quick to change. |
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Term
Uniform Simultaneous Death Act |
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Definition
Unless the decedent’s will contains an explicit survivorship condition, in most jurisdictions (including Illinois, the law applied in Janus) the question of survivorship is determined under the Uniform Simultaneous Death Act. The prospective recipient of property is treated as having predeceased the property owner if there is no sufficient evidence as to the order of their deaths. But the Act does not apply if (as in Janus) there is adequate evidence of survivorship. |
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Term
UPC 120 Hour Survivorship Condition |
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Definition
To avoid litigation over the order of deaths in cases like Janus, UPC §2–104(a) requires an heir to survive an intestate decedent by 120 hours. See ¶ 157. Given the state of medical care and issues surrounding removal of life support, 120 hours may be too short and many thoughtful estate planners affirmatively require survivorship by 30 days or more. |
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Term
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Definition
As illustrated, survivorship provisions should be used to plan for the possibility of multiple deaths that occur in rapid succession. Too often, however, the planning is in the form of a “common disaster” clause that creates problems. |
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Term
common disaster clause illustrative case: |
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Definition
In Ogle v. Fuiten, 466 N.E.2d 224 (Ill. 1984), the wills of spouses left the estate of the first to die to the other, if the other survived by 30 days, and provided that the estate was to be divided equally between two nephews if the spouses died in a common disaster. The husband died from a stroke; the wife died 15 days later from cancer. Because the wife did not survive the husband by 30 days and because they did not die in a common disaster, their estates passed by intestacy to their respective heirs, who were not the nephews. Predictably, the nephews sued the drafting attorney, who unsuccessfully defended (on lack of privity grounds). |
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Term
Classic, or Strict, Per Stirpes Representation |
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Definition
Here, the notion of equality appears to be violated, because three grandchildren are sharing in unequal amounts. The logic of this approach (sometimes referred to as “classic” or “strict” per stirpes) is that division occurred at the child level as if both children were alive, and their respective shares then pass to their respective representatives, with equality within each blood line. -This is equality with representation as opposed to some form of equal distribution. Notice the most important factor is division into equal shares at the child level, regardless of whether any children are living. |
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Term
Each Blood Line Takes an Equal Share: -Classic, or Strict, Per Stirpes Representation |
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Definition
Notice also that, under this approach, each child’s blood line will receive the same aggregate share of D’s estate regardless of whether a child survived D and subsequently left that share to descendants, or predeceased D and it went to those descendants by the right of representation. |
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Term
English Per Stirpes Shares Often Are Not Equal |
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Definition
With shocking frequency among poorly drafted documents you find the language “in equal shares, per stirpes.” As the last two examples reveal, per stirpes distribution is not a system that necessarily produces equality. It is based on the two concepts of equal division and representation, but it does not guarantee equality among what appear to be similarly situated beneficiaries. What drafters of this language probably mean is “in equal shares, with the right of representation.” But because per stirpes means more than just the principle of representation, the phrase “in equal shares, per stirpes” has led to all sorts of judicial interpretations trying to ferret out the decedent’s intent (which is to say the intent of the drafter of the document, who usually was not the decedent). |
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Term
Definition of Classic, or Strict, Per Stirpes Representation |
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Definition
To summarize, a traditional definition of “per stirpes” in its classic sense entails two concepts. One is division into equal shares at the level of the decedent’s children, regardless of whether anyone is alive at that level. One share is created for each person at that level who is alive and one share for each person at that level who is deceased with descendants who are alive. The other concept is distribution with the right of representation. |
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Term
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Definition
The 1969 version of UPC §2–103(1) altered the classic per stirpes approach to give a sixth to each of the three grandchildren in the last two examples, providing equality among the three grandchildren. This is a “per capita” division (sometimes referred to misleadingly as “modern per stirpes” or, more accurately, as “per capita with representation”). It was meant to guarantee equality at more remote levels of descent. It did not achieve equality in the sense that the drafters anticipated, and it was changed in the current version of UPC §2–106(b) to what is known as “per capita at each generation.” However, many states still have the old version of the UPC with its original per capita system. Let’s start by understanding that approach. |
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Term
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Definition
Per capita with representation |
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Term
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Definition
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Term
modern per stirpes (per capita with representation)(old UPC version) |
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Definition
The old UPC per capita approach divided the portion not passing to the spouse into equal shares at the first level below the decedent at which someone was alive, creating one share for each living descendant at that level and one share for each descendant at that level who is deceased but with descendants who are alive. Thus, thedifference from classic per stirpes is at what level the stirps begin: under the old UPC per capita system it is at the first level at which you find a living descendant, while under classic per stirpes it is at the child generation, regardless of whether any of the decedent’s children is alive. In the example above with both children deceased before D the UPC result is equality at the grandchild level. |
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Term
Classic English Per stirpes, you begin at... |
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Definition
Under a classic per stirpes distribution they begin (i.e., the first division is made) at the child level, regardless of the fact that no children are living. |
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Term
Modern Per Stirpes (per capita by representation) |
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Definition
Aper capita distribution like that provided for by the 1969 UPC starts the division at the first level at which a descendant is living, which is the grandchild level here. Under that approach, the division is into three shares at the grandchild level, one for each who is alive and one for each who is deceased with descendants who are alive. The curious thing is that, under per capita, the two shares created for representatives of deceased grandchildren in this example would pass by representation in the same manner as in the classic per stirpes distribution, meaning that the great grandchildren still receive unequal shares. |
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Term
The 1990 UPC: Per Capita at Each Generation |
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Definition
1990 UPC §2–106 adopted a system known as per capita at each generation, which guarantees equal shares to those in equal degrees of relation to the decedent. |
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Term
Per Capita at Each Generation |
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Definition
Only the per capita at each generation system ensures that all members of each generation of descendants who are entitled to receive a share receive equal inheritances. Thus, under per capita at each generation all grandchildren who are heirs always receive equal shares of the estate, as will all great grandchildren, all great, great grandchildren, etc. That is not necessarily the case under the other systems. And blood line equality is not preserved. |
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Term
ANCESTORS AND COLLATERALS |
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Definition
If an intestate decedent is survived by descendants, typically whatever does not pass to a surviving spouse will pass to the descendants (with the representation questions discussed above). If there are no descendants, in some states a surviving spouse will receive the entire estate. In others (e.g., under UPC §2–102(1)) the spouse takes all only if there also is not some other heir, such as a surviving parent. Otherwise any portion of the estate that does not pass to a surviving spouse is divided among ancestors and collaterals. |
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Term
Condition on Right to Inherit |
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Definition
Under the law of several states a parent who abandoned the decedent is precluded from benefiting. For example, UPC §2–114(a)(2) precludes inheritance from an intestate minor child by a parent whose parental rights could have been terminated under state law for nonsupport, abandonment, abuse, or neglect. |
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Term
If neither parent survives... |
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Definition
If there is no living parent or descendants of the decedent, some jurisdictions (e.g., UPC §2–102(1)(A)) would leave the entire estate to the surviving spouse, while others would leave the share the parents would have received to descendants of the parents by representation under the per stirpes, per capita, or per capita at each generation system of that jurisdiction. If the decedent is not survived by a spouse, descendant, or parent, typically (e.g., UPC §2– 103(a)(3)) the estate will pass to descendants of the decedent’s parents, again by whatever form of representation is embraced in that jurisdiction. |
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Term
More Remote Heirs: The Parentelic System |
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Definition
If there is no descendant and no parent or descendant of a parent alive to take, some states follow the “parentelic system” under which whatever property the spouse does not take goes up and back down the family tree again.The estate is given to the nearest living lineal ancestor or per stirpes tothelivingdescendantsofthenearestlinealancestorofwhomdescendants are living. |
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Term
Grandparents or Their Descendants |
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Definition
For example, if the decedent is survived by one or more grandparents or one or more descendants of deceased grandparents, the estate would be dividedamongthem, with half to the maternal grandparents (or their descendants,withrights of representation,ifneithermaternal grandparent is living) and the other half to the paternal grandparents (or their descendants, with rights of representation, if neither is living). |
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Term
More Remote Ancestors or Their Descendants |
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Definition
If the decedent is not survived by any descendant, parent, descendant of parents, grandparent, or descendant of grandparents, in states that follow the parentelic system the estate would be distributed to great grandparents, or their descendants by right of representation, and if none, to great, great grandparents, or their descendants by right of representation, and so on. This can entail pretty remote relatives (so-called laughing heirs) and some states preclude distribution beyond a certain degree. For example, the UPC does not recognize as heirs relatives who are more remote than grandparents and their descendants. |
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Term
More Remote Heirs: The Degree of Relationship System |
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Definition
Some states do not follow the parentelic system of determining the decedent’s heirs by passing up and down the family tree. Instead, they abandon representation at some level (such as if there is no parent or descendant of parents) and distribute the portion not passing to a spouse (the entire estate if there is no surviving spouse) to more remote family members under a degree of relationship (consanguinity) system. Distribu- tion typically is in equal shares to all who fall within the nearest degree of consanguinity, with no rights of representation. Degrees of consanguinity are determined by adding (1) the number of steps from the decedent up to the nearest common ancestor of the decedent and the relative to (2) the number of steps down from the common ancestor to the relative |
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Term
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Definition
Escheat would apply if there is no one alive to take the decedent’s property (i.e., the decedent had no heirs) under the applicable intestate succession rules. In that case the estate would pass to the state. In some states, the statute of descent and distribution limits the extent to which ancestors and collaterals of remote degree are considered heirs (e.g., UPC §2–103 limits heirs to grandparents and their descendants and, under UPC §2–103(b), step-children of the decedent and their descendants). This laughing heir limitation is designed to preclude property passing to someone who is so removed from the decedent as not to be personally affected by the decedent’s death. These states claim the property over those heirs who would laugh all the way to the bank if allowed to inherit. |
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Term
INTESTATE SUCCESSION ANALYSIS |
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Definition
• First determine the surviving spouse’s share. The surviving spouse may receive the entire estate depending on which other relatives survive the decedent and the governing law. • In most jurisdictions whatever the surviving spouse does not receive will pass to descendants. So, next consider the shares of the decedent’s descendants and the representation issue. • If no descendants survive the decedent, the governing statute may dictate that the entire estate pass to the surviving spouse. If not, or if there is no surviving spouse, usually the decedent’s parents are next in line. • If the decedent also is not survived by either parent (or if no surviving parent takes the entire estate), next in priority are descendants of the decedent’s parents, by representation. • If the decedent is not survived by a spouse, any descendant, any parent, or any descendant of a parent, the estate will pass to more remote family members, generally either under the parentelic or degree of relationship system. • If there still are no takers, the estate will escheat (unless there are step-children or their descendants who take under the UPC or in a few non-UPC states). Remember that under the UPC a relative who is not a grandparent of the decedent, a descendant of a grandparent of the decedent, or a descendant of the decedent’s spouse cannot be an heir. |
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Term
No residue of the residue rule (common law rule) |
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Definition
If the deceased beneficiary was intended to inherit part or all of the residuary estate, then that portion of the estate would pass by intestate succession, as though the testator had left no will. This rule is referred to as the doctrine of no residue of a residue, because the portion of the residuary estate that did not itself pass under the will could not be considered part of the residuary estate at all. Most states and UPC sec. 2-604(b) change this result so that the other residuary beneficiary would take the share, not intestate heirs. Under section 2-604(b) of the uniform probate code, "if the residue is devised to two or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or to other residuary devisees in proportion to the interest of each in the remaining part of the residue." Simply put, if there are two parties in the remainder and one has not survived, the entirety of the remainder goes to the surviving residuary devisee or devisees. |
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Term
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Definition
Assume that a testator expressly disinherits a family member (let’s say a child) with language in the will stating that the child will take nothing under the will or by intestacy. If the testator dies partially intestate the child would be an heir of the testator’s estate, in most states despite the will (sometimes referred to as a “negative will” with respect to the child) specifically disinheriting the child. The theory is that the property undisposed of by the will passes outside of its terms to the decedent’s heirs as determined solely by the jurisdiction’s intestacy statute. UPC §2– 101(b) is nearly unique in allowing the testator to override application of the intestate succession statute by use of a negative will. If the testator then dies partially intestate, the part of the estate that otherwise would have passed to the disinherited heir passes as if the heir had disclaimed the intestate share. |
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Term
Effect of Divorce or Annulment |
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Definition
A former spouse will not be treated as a spouse for intestate succession purposes if the decedent divorced the spouse prior todeath, but this treatment is not universal. See Chapter 4 for a discussion of the effect of divorce on provisions for a former spouse in a will, trust agreement, or other dispositive instrument. A similar result may obtain if a marriage is annulled. See, e.g., UPC §2–802(a). |
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Term
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Definition
A married couple will not be treated as divorced if they enter into a decree of separation that does not terminate their relationship as husband and wife. Upon the death of one the other will be treated as a surviving spouse. This might change if an order was issued purporting to terminate all marital property rights. UPC §§2–802(a) and (b)(3), and 2–213(d). |
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Term
effect of Desertion or Adultery |
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Definition
Moreover, desertion or adultery generally will not affect the marital status of the parties, or otherwise bar the offending party from exercising rights as a surviving spouse on the other’s death. |
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Term
effect of common law marriages |
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Definition
In a minority of jurisdictions persons who live together as husband and wife and hold themselves out to the public as such (a “common law” marriage) will be treated as being married to each other even if they have not participated in a formal marriage ceremony. |
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Term
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Definition
Finally, a survivor may enjoy spouse status in jurisdictions that recognize civil unions, domestic partnerships, or marriages between same sex partners for state law property purposes, including intestate succession. Even if state law does not allow the creation of such status in that state, a few state laws (but not most) recognize a marriage, union, or partnership that was validly created elsewhere. |
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Term
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Definition
A posthumous child is one who was conceived before, but who is born after, the decedent’s death. Usually such a child can take as an heir of the parent, because posthumous children are treated as born at conception if they subsequently are born alive. Depending on state law this may apply only to children of the decedent and not with respect to other representa- tives. |
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Term
Children of Assisted Conception |
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Definition
The question of status as a child has taken on a new significance with respect to children of assisted conception. For example, a biological childcan be conceived after the death of the DNA provider. The issue is whether state law will follow the Uniform Status of Children of Assisted ConceptionAct or the Uniform Parentage Act and treat those whose birth is engineered (e.g., artificial insemination with the frozen sperm of a long deceased “father”) as not the children of the gamete providers. Case law to date appears to favor these children, meaning that these advances have altered traditional estate planning concepts. We return to this concept at ¶ 108 because effective estate plans probably do not want to leave this issue to chance or to litigation. |
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Term
Share of a Half-Blood Sibling |
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Definition
In most jurisdictions (e.g., UPC §2–107) whole blood and half blood would share equally inD’s estate. In a few states half-bloods receive half the share received by a whole-blooded relative, or the whole-blooded relative is favored to the total exclusion of a half-blood. |
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Term
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Definition
Most jurisdictions now sever the natural parent-child relationship when a child is adopted away (except, as discussed below, in the step-parent adoption context) and the adopting parents take the natural parents’ place for all purposes. This makes the adopted child the same as a natural born to the adopting parents for all purposes, even to inherit through the adopting parents from the adopting parents’ relatives. |
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Term
Nonmarital children; outta wedlock |
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Definition
a. Mother and Child [¶ 103] The typical intestacy statute today allows a nonmarital child to inherit from its mother and vice versa. Although nonmaritals also may inherit through their mother (and vice versa) in most states, in a few states they may not. b. Father and Child [¶ 104] Trimble v. Gordon, 430 U.S. 762 (1977), held unconstitutional under the Equal Protection Clause of the FourteenthAmendment an Illinois statute prohibiting a nonmarital child from inheriting from her putative father who died intestate, notwithstanding that his paternity had been established premortem and he had openly acknowledged and supported her during his life. The Court held that only legitimate state interests may be effected by statutes that discriminate against the rights of nonmarital children. |
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Term
children of science (artificial incemination, etc.) |
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Definition
whether a child conceived after the death of a sperm or egg donor can inherit as an heir of the donor, and the difficulties such a result could pose to the timely administration and distribution of the donor’s estate. State statutes vary and may define heirs differently (e.g., in terms of a “surviving” child’s right to inherit) or may impose requirements such as premortem consent of the sperm or egg donor(whichislackingincasesinwhichtheDNAisobtainedpostmortem), timelynoticetothedecedent’spersonalrepresentativeandthenposthumous conception within a specified time after the decedent’s death. |
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Term
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Definition
most states have this to prevent a murderor from inheriting money from the person who he murdered -Typically, only felonious and intentional killings trigger application of a slayer statute. Thus, a successful insanity defense will prevent operation of most statutory bars, as may conviction of an offense that does not establish intent (such as involuntary homicide). Moreover, many statutes require a conviction before the slayer must forfeit an inheritance, meaning that the slayer’s death before adjudication of guilt may prevent operation of the bar. This most often arises in a murder-suicide situation. If there is no conviction, some moreenlightened statutes (e.g., UPC §2–803(g)) permit the probate court to adjudicate the question of guilt as if it was a criminal proceeding and some statutes also permit determination of “guilt” in this case (or if the slayer was found not guilty in a criminal case) by applying a lower threshold than beyond a reasonable doubt. |
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Term
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Definition
If P gives child C $10,000, and P then dies intestate, the question is whether the $10,000 gift counts against C’s intestate share of P’s estate. |
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Term
advancements, partial intestacy |
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Definition
a. Partial Intestacy Known as the concept of advancements, the question generally applies only to fully intestate estates. UPC §2–109 applies the concept to partially intestate estates as well, but the logic behind inapplicability to a testate estate is a presumption that a testator would state any intent regarding the effect of prior transfers on dispositions under a subsequently executed will. Similarly, we presume that the testator was aware of the provisions in an existing will when a gift was made, and determined to make the gift anyway. -advancement statutes now apply to all descendants, or even to all heirs, but frequently not to a spouse (UPC §2–109 is unusual in that it does apply to a spouse). |
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Term
Advancement example, Applicability to Descendants of Deceased Donee |
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Definition
P made an advancement to P’s child C, who predeceased P leaving one child, GC, surviving. Should GC’s entitlement as C’s representative be reduced by the advancement to C? Conversely, if P gave the advance to GC but C survived to take, would C’s share be adjusted because of the gift to GC? The UPC does not charge advancements down to representa- tives of an advanced party unless the decedent indicated an intent to do so in writing (§2–109(c)) and fails to even consider charging advancements up to ancestors of recipients. Most statutes are silent on both questions. |
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Term
Advancements, Proof of intent |
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Definition
Lifetime gifts to children were presumed to be advancements at common law. Statutes in most states have reversed this presumption and now require some proof of intent to treat a gift as an advance- ment. This reveals that the doctrine of advancements is not favored, especially with respect to small amounts (think of the administrative difficulties of proving the amounts of gifts made by a parent to several children over a lifetime and who died intestate at, say, age 80). |
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Term
advancements, what will prove intent: |
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Definition
(1) A Writing of the Donor or the Donee (2) Intention of Donor at the Time of the Transfer Controls |
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Term
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Definition
refers to the blending or combining of property in order to ensure equality of division |
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Term
Hotchpot example: Assume that: (1) Decedent’s probate estate is $100x; (2) inter vivos advancements (all declared in contemporaneous writings by Decedent) included an outright transfer of $40x to Child A, placement of $60x in joint tenancy with Child B, and an insurance beneficiary designation of Child C that will pay proceeds of $80x; and (3) Child D received nothing. Computation of any advance- ment is at the fair market value when the transfer was made, computed without interest. Note the unfairness in that approach: the recipient receives (but is not charged in the hotchpot process for) the use of the money from the time of the gift to the decedent’s death, along with any income earned and appreciation generated. So, in this illustration, if all the recipients of lifetime transfers participate in hotchpot (which we will see they likely will not all do in this case), each child’s share of the probate estate would be determined as follows: |
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Definition
Probate estate at death $100x Add advancements: to Child A $40x to Child B $60x to Child C $80x Total $280x divided by four would give each child $70x, which would be reduced by their respective advancements. |
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Term
Does advancement apply to life insurance? |
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Definition
One issue we’ve begged here is whether advancement applies to insurance. If it does, would we count the insurance as an advancement at the value of the policy at the time of the beneficiary designation, or at the higher face amount of the proceeds payable at death? For now, let’s assume state law is clear and that the latter is the case. |
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Term
Opting Out of Hotchpot: On the basis of these two assumptions, C cannot benefit from P’s probate estate (because C already received $80x, which is more than C’s $70x share under hotchpot) so C probably will “opt out” of hotchpot—no one can be forced to participate.With C and C’s advancement out of the picture, the hotchpot would be recomputed at only $200x, and it would be divided by three to give each of the other three children $66,66x. To reflect amounts that A and B already received, the distribution of P’s probate estate then would be made as follows: |
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Definition
Child A receives $66.66x – $40x = $26.66x Child B receives $66.66x – $60x = $6.66x Child D receives $66.66x – $0x = $66.66x Total distributions = $99.98x |
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Term
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Definition
A release is an agreement between a potential heir and the property owner, sometimes called a “liquidated” or “negotiated” advance- ment. In effect, A could ask for early distribution of A’s share of P’s estate in exchange for a release of A’s expectancy. If A dies after the release and before P, and P is survived by children of A, those grandchildren of Pwill be barred byA’s release so that B will take the entire estate. An exception to this general rule may apply, however, if B also predeceases P, in which case some jurisdictions will allow A’s children to share in P’s estate. |
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Term
advancements, concept of assignment |
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Definition
An assignment is the transfer for consideration of an expectancy by a potential heir, in this case to a third party. Assignment is not common in the United States because the assignee receives only what the assignor is entitled to receive, which is zero if the assignor is disinherited by or predeceases the decedent. Because a prospective assignee of an expectancy has no way to protect the “right” to benefit from the expectancy when the prospective decedent dies, an assignee generally will not be willing to pay much for the assignment (unless the prospective decedent becomes involved in the transaction and contracts or otherwise commits not to take any action that would defeat the assignee’s expectancy). Furthermore, although a release usually will bind descendants of the releasing potential heir, an assignment will not. It is easy to find fault with the distinction, but it is said to be based on the fact that a release is an agreement with the decedent (a “negotiated” disinheritance) while an assignment is a contract with a third party to which neither the decedent nor the assignor’s representatives were parties. |
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Term
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Definition
A disclaimer, sometimes called a renunciation, is a refusal to accept an inheritance or other property interest. Disclaimers of intestate property were not recognized at common law, but statutes typically now permit them. |
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Term
disclaimer is also referred to as... |
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Definition
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Term
tax motivated disclaimers |
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Definition
Typically most people disclaim either for federal tax reasons or to preclude their creditors from reaching the disclaimed property. In the example above, the disclaimer is not regarded as a gift by C to GC if it is “qualified” under the rules of Internal Revenue Code §2518. Rather, the property disclaimed would be treated for tax purposes as having passed directly from P to GC, meaning that C would have no adverse gift tax consequences (and a generation-skipping transfer tax might be imposed). |
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Term
Disclaimer to avoid creditors |
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Definition
in the main a disclaimant can protect property from creditor claims by disclaimer |
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Term
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Definition
Both old UPC §2–801(d) and newer §2–1106(b) provide that only the “disclaimed interest” passes as if the disclaimant had predeceased thedecedent. Most statutes provide for the decedent’s entire estate to pass under that presumption. The rationale for this carefully drafted UPC modification is to be certain that a disclaimer does not alter the size of other shares of the estate under either UPC per capita system of representation. |
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Term
Disclaimers made by personal representative |
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Definition
UPC §2–1105(b) also makes clear what many state statutes do not, that a disclaimer is permissible by a personal representative on behalf of a deceased beneficiary. This is important because often the decision to disclaim occurs when the taker dies quickly after the decedentwhoseestateispassingandananalysisofthetaxconsequences reveals that a disclaimer will reduce taxes. Although it is clear that the federal estate tax liability may be reduced in such a manner, state law in many jurisdictions remains unresolved as to whether other creditors may be disfranchised by disclaimers made by personal representatives for deceased beneficiaries. |
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Term
disclaimers, survivorship |
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Definition
UPC §2–702 imposes a 120 hour survivorship condition on the ability of an heir to inherit from an intestate decedent (and on the ability of a devisee under a will or a beneficiary under any other dispositive instrument to take, if the will or other instrument does not address the survivorshipissue). Thus, under the UPC, C will not share in P’s estate if P dies intestate, survived by C, who dies within 120 hours after P’s death. |
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Term
Will Execution formalities and contest. ******BEGIN TOPIC****** |
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Definition
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Term
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Definition
Today, anyone who is of the requisite age and mentality may execute a will. Thus, lack of testamentary capacity can be of two types: the testator is too young or lacks mental capacity. Most capacity issues involve the latter. |
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Term
Presumption of testator sound mind |
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Definition
the test of mental capacity is subjective. The requisite mentality usually is articulated as something like “of sound mind.” Usually this is presumed to exist if the will properly was executed and attested by witnesses. |
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Term
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Definition
Most statutes do not address the mentality necessary to meet the statutory requisite; this is determined by case law. Generally, courts hold that being of sound mind means that the testator had the ability to understand: (1) the nature and extent of the testator’s property; (2) the natural objects of the testator’s bounty (i.e., those persons—usually family members—who the testator “ought” to have in mind when deciding to whom to leave property); (3) the disposition being made; and (4) how these three interact with each other. |
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Term
Actual Knowledge Not Required [ |
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Definition
It is not necessary that the testator actually understood these things; it only is necessary that the testator had the capacity (i.e., the ability) to understand them. Nor does the capacity to understand the disposition the testator is making require an appreciation of all the technical aspects of the plan. The testator only needs to be able to comprehend the general pattern of the dispositive provisions. Boil- erplate, technical tax jargon, drafting formalities, and such need not be within the ken of the average individual. |
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Term
Understanding the Natural Objects of theTestator’s Bounty |
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Definition
In addition, a testator can know and understand the natural objects of the testator’s bounty without providing for them. The key is whether the testator knew that any unnatural dispositive provisions were out of the ordinary (such as leaving the estate to a friend or caretaker, instead of to children, or leaving the entire estate to one child to the exclusion of others). |
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Term
Effect of “Normal” or “Unjust” Dispositions |
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Definition
That the dispositive provisions are “normal” will not prove capacity, nor is capacity belied by an unjust or unnatural disposition.Aperson with capacity may make as eccentric, injudicious, and unjust a will as caprice, frivolity, or revenge may dictate. Eccentricities, peculiari- ties, exaggerated personality traits, religious beliefs, or beliefs in the supernatural typically will not invalidate a will on grounds of insanity. |
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Term
Understanding the Nature and Extent of the Testator’s Property |
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Definition
The testator need not know with any precision the property the testator owns. The testator needs only the ability to understand the kinds and values of property owned. Thus, it may be that a marginally competent testator would have the requisite mental capacity to dispose of a small or simple estate, but lack the capacity to dispose of a large or complex one. |
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Term
Capacity to Contract Not Determinative |
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Definition
Although cases sometimes refer to a testator’s ability to perform other tasks as indicative of testamentary capacity, it is not determinative whether a testator could contract, transact normal business, or manage the normal affairs of living. Indeed, a greater level of capacity generally is required to enter into a contract or to conduct normal business affairs than to execute a will. |
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Term
Capacity to Create a Trust |
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Definition
Curiously, in some jurisdictions (but not under UTC §601, if the trust is revocable), the capacity to enter into a trust relationship (which could transfer all of a person’s property) is higher than to execute a will. Thus, a marginal case may create problems if both a will and a trust are involved. |
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Term
Will being declared incompetent or having a guardian or conservator appointed prove capacity to execute a will? |
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Definition
Also curious is that being declared incompetent or having a guardian or conservator appointed will not prove incapacity to execute a will, especially if a guardian or conservator was appointed to ease the burdens of property administration for a testator who was late in life, ill, or just did not want to be bothered. |
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Term
When is capacity required? |
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Definition
at the Time of Execution: Capacity is tested at the moment of execution; losing it thereafter, or lacking it before execution, will not affect validity. Incapacity may be fleeting; the impairment may be temporary (a chronic alcoholic may execute a valid will while sober) or testators with serious mental impairments may enjoy a “lucid interval.” As a consequence, the most important testimony truly is from witnesses to the execution. |
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Term
LACK OF MENTAL CAPACITY 1. Deficient Capability and Derangement |
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Definition
Two forms of mental incapacity can affect the validity of a will: (1) Deficient capability, meaning that the testator simply was unable to understand the four items required for a proper execution. Derangement, which may be paranoia, general dementia, or a delusion, each of which generally affects the validity of only those portions of the will that are the product of the derangement. Either results in a lack of capacity. A person lacks testamentary capacity if there is either derangement that affects any part of the will or deficient capability, or both. |
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Term
what is the relationship Between Mental Derangement and Deficient Capability? |
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Definition
Relationship Between Mental Derangement and Deficient Capability [¶ 16] Evidence of mental derangement also may show that the testator had deficient capability. For example, In re Hargrove’s Will, 28 N.Y.S.2d 571 (1941), involved a decedent who allegedly suffered from an insane delusion that two children born to his wife during their marriage were not his, and that he therefore had deficient capability because he was not able to know the natural objects of his bounty. |
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Term
What are Insane Delusions? |
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Definition
An insane delusion is a belief to which the testator adhered without knowledge or evidence that a sane person would believe. An insanedelusionmustaffectthedisposition(s)underthewill,andthe conclusion(s) the testator drew from the delusion must be such that no rational person would draw. Some states also require that the falsity of the testator’s conclusions were pointed out and the testator continued to believe them nevertheless. Thus, it is not an insane delusion if the testator’s belief is based on evidence a rational person could believe, from which a rational person might draw the same conclusion. |
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Term
Is testator's Ability to Pass Four Part Test Determinative of Testamentary Capacity |
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Definition
No, it is not. A person may have basic mental capacity but still lack the mentality to execute a will. In Strittmater and Honigman, for instance, the question was not whether the testators had the ability to understand the nature and extent of their property, the objects of their bounty, the disposition they were making of their property, and the relationship among these three. Rather, the questions were whether they suffered from a derangement and whether any part of their wills was a product of that derangement. |
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Term
To be a valid will the decedent must execute it with the intent that it be a will. Lack of testamentary intent is unusual because it may serve as a will contest ground or a ground to deny probate to a will. Contest grounds usually are notadequate to deny probate of a will. The usual remedy if there are grounds to contest a will is: |
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Definition
to admit the will to probate and then challenge its validity ina contest action. |
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Term
Presumption of Testamentary Intent |
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Definition
Proper execution of a will raises a presumption that the testator knew the contents of the will and understandingly executed it with the requisite capacity and intent. The burden in this regard is on the contestant to rebut the presumption of testamentary intent raised by proper execution. |
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Term
One common source of a challenge based on lack of testamentary intent is a client letter to an attorney asking for the preparation of a will... |
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Definition
spelling out the client’s testamentary objectives. This letter cannot constitute a will even if it otherwise meets the statutory requisites for execution of a will, because the client did not intend the letter to constitute a will. The client clearly knew the difference between them and intended only that the letter result in the production of a will. |
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Term
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Definition
Occasionally a decedent’s duly executed will is challenged on the ground that it was executed to accomplish a purpose other than disposition of the testator’s property and thus was invalid due to a lack of testamentary intent. |
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Term
Undue influence: What Influence Is Undue? |
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Definition
A will beneficiary can exert influence on a testator that affects the testator’s dispositive provisions without that influence being undue. For influence to be undue, it generally must satisfy three requisites |
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Term
For influence to be undue, it generally must satisfy three requisites: |
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Definition
1.)Relates to Execution of Will: 2.)Improper Purpose 3.)Overcoming the Testator’s Free Will |
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Term
For influence to be undue, it generally must satisfy three requisites: 1)Relates to Execution of Will... |
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Definition
First, the influence must be directly connected with execution: required is a causal connection between the influence and the will, operating at the time of execution (although the influencer need not be present at the time of execution). Thus, general influence unrelated to execution of the will is not undue influence. |
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Term
For influence to be undue, it generally must satisfy three requisites: 1.) 2.)Improper Purpose |
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Definition
...Influence directed at dispossessing someone else is not undue influence, although it might be actionable fraud, deceit, or tortious interference with an expectancy. So, the second requisite is that the influence must be directed toward procurement of a disposition in favor of the influencer or someone the influencer wishes to favor. |
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Term
For influence to be undue, it generally must satisfy three requisites: 1.) 2.) 3.)Overcoming the Testator’s Free Will (2 subtopics) |
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Definition
The third, and perhaps most important, requirement for activity to be undue influence is that the influence must destroy the testator’s free will and result in a will that reflects the wishes of the influencer instead of the testator.The testator’s independence must be overcome such as to leave the testator unable or unwilling to resist the influence. (1) Susceptibility Thus, in many jurisdictions a factor bearing on the question whether influence was undue is the susceptibility of the testatorto influence. As a result, undue influence claims (which are difficult to prove in any case) are most likely to succeed with respect to elderly, dependent, and weak-willed testators. (2) Effect on Testator [¶ 33] To prove undue influence it is necessary to show what this testator thought and whether this testator was influenced. It will not suffice to show what the average individual in the testator’s circumstances would have done or thought in the face of an alleged influence. |
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Term
How is undue influence distinguishable From Duress? |
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Definition
Undue influence frequently is said to involve an element of coercion. The influencer so overcomes the will of the testator as to coerce the testator into executing a will that reflects the influencer’s wishes rather than the testator’s. Duress is not common as a will contest ground, but it relates to undue influence because a will executed by a testator under duress may not reflect the testator’s testamentary desires. Holding a gun to the testator’s head during the signing makes the will invalid because it was signed under duress. Moreover, a threat need not be unlawful to constitute duress. See, e.g., In re Sickles’Will, 50 A. 577 (N.J. Prerog. Ct. 1901), in which a threat to abandon a paralyzed elderly testator was held to be undue influence. |
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Term
What is the effect of “Unnatural” Disposition? |
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Definition
Unjust or unnatural provisions in a will may support (but will not prove) a case that the testator was prevailed upon to do something that otherwise would not have been done, and that this influence was undue. In addition, some courts improperly state that influence is not undue if it does not result in an injustice. That conclusion is wrong, although it might be hard to make the case and it depends on what the court would consider an “injustice.” To illustrate, consider a will leaving an equal share to a child who exerted undue influence to overcome the testator’s antipathy toward the child that resulted in a previous will that cut the child out completely |
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Term
Who bears the burden of proof with undue influence? |
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Definition
The initial burden of proof with respect to undue influence is on the contestant. This burden requires evidence of the testator’s subjugation to the will of the influencer, which could be next to impossible to produce: because the influence usually occurs in private, proof of undue influence usually is scant, often only circumstantial and lacking in verifiability. |
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Term
Undue influence: Shifting the Burden of Proof: |
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Definition
Consequently, in many jurisdictions proof of three elements suffices to shift the burden of proof from the contestant to the proponent ofthe will. As a practical matter, it typically is the burden shifting that is most important to winning an undue influence case. To shift the burden of proof, typically it is necessary to show three things: (1) That the testator’s condition or state of mind made the testator susceptible to undue influence (the more feeble minded the testator, the easier will be the proof of this element). (2) That the influencer had the opportunity to exercise control over the testator, with special scrutiny if the alleged influence came from the testator’s attorney or other advisor. (3) That the alleged influencer was disposed to exercise control over the testator (i.e., there was a motive). Proof of actual activity exercising control, or of advantage to be obtained by the influencer, usually will suffice and frequently is shown by a testamentary gift to the influencer (or someone the influencer wanted to favor) in an amount that is greater than would have passed without the alleged influence. |
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Term
What are examples of proof that will not establish undue influence? |
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Definition
argument, persuasion, advice, assistance, affection, kindness, or solicitude. Normally, to be undue influence this activity must rise to the level of violence, abuse, litigation, or abandonment. |
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Term
Example to illustrate card #157 |
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Definition
To illustrate, assume that T’s child, C, cares for T in T’s home. C threatens to move Tto a nursing home and files litigation to declare T incompetent and have C appointed as T’s conservator, all with the intent of procuring a will that leaves all of T’s estate to C (to the exclusion of T’s other children). Any new will that T executes in exchange for C abandoning the litigation and allowing T to remain in C’s care is infected by undue influence. |
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Term
What is the standard of proof with undue influence? |
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Definition
The level of persuasion is very important given the nature of the proof required and the elements that must be proven. Typically only a preponderance of the evidence is required, although clear and convincing evidence is the standard applied in some jurisdictions. |
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Term
Presumption of Undue Influence: In many jurisdictions in two circumstances a presumption of undue influence will shift the burden of proof to the proponent: (2) |
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Definition
1.) Drafter/Beneficiary: One such circumstance is if the will benefits the drafter of the will or a natural object of the drafter’s bounty. That drafter is presumed to have exerted undue influence over the testator. For a case in whichthe presumption was not applied (we think improperly), see Lipper v. Weslow, 369 S.W.2d 698 (Tex. Civ.App. 1963), in which an attorney child of the testator drafted a will that left her estate equally to her two children by her second marriage, with no provision for children of a deceased child by her first marriage. Had the burden shifted, the child who was the proponent of the will would have been required to prove that the will was not the product of undue influence. 2.) Confidential Relationship [¶ 42] More common is the presumption of undue influence arising if there is a confidential or fiduciary relation with the testator, if the dominant party in that relation participated in procurement of the will. In this case the relation is not enough; there must be proof of participation in preparation of the will. Relations that allow application of this presumption include clergy (especially because of the demise of mortmainasaprotectionagainstend-of-lifeunduereligiousinfluence), attorney, physician, nurse, trustee, conservator, or close business partner. |
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Term
what are the alternative Confidential Relationship Tests? |
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Definition
Different tests for raising a presumption of undue influence are used in some cases if the influencer was in a confidential relationship with the testator. Rather than ask whether the influencer participated in the procurement of the will, one test is met if the influencer received the bulk of the testator’s estate and the testator’s intellect was weakened The test for raising a presumption of undue influence under §8.3 of the new Restatement (Third) of Property (Wills and Other Donative Transfers) is that the influencer was in a confidential relation- ship with the testator and the will was executed under suspicious circumstances |
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Term
What relations are not covered, undue influence? |
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Definition
Usually insufficient to raise undue influence presumptions would be relation as a parent, spouse, or child (although a child who cares for and manages the finances of an aged parent may be held to occupy aconfidentialrelationshipwiththeparent).If,however,thedrafter/beneficiary also is the testator’s attorney (as was the case in Lipper), the presumption of undue influence would arise both because the will drafter was a beneficiary and because of the confidential attorney- client relationship |
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Term
Suggested Analysis Procedure, Undue Influence |
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Definition
In an undue influence case, first determine what constitutes undue influence (conduct by the influencer that is directly connected with execution of the will, that is designed to produce a provision benefiting the influencer or someone the influencer wishes to favor, and that so overcomes the free will of the testator as to substitute for it the desires of the influencer). Then consider whether the burden of proving undue influence shifts from the contestant to the proponent (e.g., depending on the jurisdiction, because of (1) susceptibility, opportunity, and disposition or motive, (2) a confidential relationship and participation in procurement of the will, or (3) other suspicious circumstances). A presumption of undue influence can be overcome in some jurisdictions by a showing that the testator received independent legal advice (which is unlikely if the testator’s attorney also represents the influencer); that showing also might negate that the testator’s free will was overcome by the influencer. The will proponent also can introduce direct evidence tending to negate that the testator’s free will was overcome by the influencer. For example, atestator may be elderly, infirm, and dependent on others for physical care, but still be strong willed, with an independent mind and a free spirit that is not malleable to the influence of the will’s proponent. |
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Term
What's the effect of Undue Influence? |
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Definition
Afinding of undue influence will vitiate only the affected parts of the will. The entire plan will fail only if the remaining portions cannot stand alone, or if the court concludes that entire invalidity is required to best implement the testator’s intent. Notice also that an allegedly revoked will can be admitted to probate if the testator revoked it pursuant to undue influence. |
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Term
Bequests to Attorneys; Undue influence? |
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Definition
Apresumption of undue influence arises if a testator’s will includes a gift to the drafting attorney, or to objects of the attorney’s bounty. The same may be true if the attorney did not actually draft the will but participated in its preparation in some other way. A“natural” bequest no larger than if another drafter were involved may be permissible, without contest concerns (e.g., if a single testator with two children and no descendants of deceased children leaves half of the estate to one child who is the attorney/drafter). Nevertheless, a bequest to the drafter in a will always raises eyebrows and presents the potential for a contest. See ¶ 35 as to the possibility of undue influence even if there is not an “unnatural” disposition. |
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Term
What about a Drafting Attorney as Fiduciary or Witness to the Will; undue influence? |
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Definition
Awill nominating the drafting attorney as personal representative, or as attorney for the personal representative, does not create the same kinds of problems as a will devising property to the drafting attorney (because the nominations are not binding, and an attorney who serves in one or both of those capacities will provide services for which compensation will be received, rather than receiving a gift under the will). Neither is the attorney signing the will as a witness a will contest or ethics problem. But overreaching or solicitation in obtaining an appointment is an ethics concern, and writing the drafter’s name into a document for any purpose always raises questions of propriety. Even so, for an attorney to serve as a fiduciary for an estate or trust of a client is not necessarily unethical and should not raise serious will contest concerns if proper precautions are taken. |
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Term
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Definition
Generally speaking, fraud as a ground for a will contest is a trick, device, or deception, typically involving a misrepresentation to the testator. To be a contest ground it must be intended to deceive the testator and to induce execution of a will or codicil that benefits the perpetrator of the fraud. |
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Term
Preventing Revocation of Existing Will or Execution of New One |
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Definition
It also may be fraud to prevent revocation of a prior will, or to prevent execution of a new will (although these are not nearly as common). |
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Term
What are the two types of fraud? |
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Definition
-fraud in the execution -fraud in the inducement. |
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Term
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Definition
Fraud in the execution is a deception as to the provisions of the document the testator intended to sign, or as to the character of the document itself. It is more likely with someone who is unable to read (poor eyesight, illiteracy, or the testator knew only a foreign language and was relying on a true translation). |
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Term
example of fraud in the execution |
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Definition
Example: Testator (T) is told by X that the will T is about to sign leaves the entire estate to a church, which T intends, but the instrument actually leaves the estate to X; or T is asked to sign a document that is presented as a lease agreement for T’s apartment, but in fact it is a will. |
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Term
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Definition
Fraudinthe inducementoccurswhenthetestatorknowinglyexecuted the document, with provisions that the testator intended to include, but the will or its provisions resulted from a deception worked upon the testator in forming that intent. |
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Term
Six elements must be proven to establish fraud in the inducement: |
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Definition
(1)false statements or material omissions of fact that prevented the testator from recognizing the truth (e.g.: “Dad, brother Billy is bankrupt—a spendthrift”); (2) if false statements are involved, they were made with knowledge that they were false; (3) the statements or omissions were made with the intent to deceive; innocent misrepresentations or omissions are not actionable; (4)the statements or omissions were material; (5) the statements or omissions actually deceived; and (6) causation, being a link between the misrepresentation or omission and production or execution of the will or the affected provision. |
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