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Estates (Revocation (Operation of law (Testator Divorces after making the…
Estates
Revocation
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Operation of law
Testator Divorces after making the will--all provisions in favor of the ex-spouse become ineffective unless provisions were intended to survive divorce.
Surviving Spouse married Testator after Testator executed the will. Surviving Spouse entitled to the value of the share she would have received if the Testator had died intestate (w/o a will).
Physical Act - Burning, tearing, cancelling, obliterating, or destroying the will or any part of it.
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Dependent Relative Revocation - Testator Revokes an old will w/ the intention that a newly executed will replaces it. If new will is not made or is invalid, some jx will admit the revoked will to probate. Requires evid. of Testator's intent.
Presumptions - arise when the will is found after a testator's death, but is mutilated. Need extrinsic evid. to show Testator's intent.
Revival After Revocation - a prior will is revived upon undergoing all formalities of making a will or by codicil. Otherwise, a will is only revived if it is evident from the circumstances that of the revocation that the subsequent will or the testator's contemporary declarations that the Testator intended the previous will to take effect as executed.
Beneficiaries
Issues mainly arise when beneficiary dies prior to the testator or when a child of the testator is not included as a beneficiary
Beneficiary Dies First: That person's gift lapses, or fails. It does not automatically pass to that person's heirs, but falls into residue.
Slayer Act: No gift for a beneficiary participates in the willful and unlawful killing of the testator.
Omitted after-born or after-adopted: This beneficiary may receive a share of the decedent's estate unless the omission was intentional or the testator has provided for the child outside of the will.
Simultaneous Deaths
Occurs when two or more persons, one of whom is the beneficiary of the other, die under circumstances where there is insufficient evid. to determine which party survived the other.
Under the Uniform Probate Code, a person who cannot be established to have survived the decedent by 120 hours is deemed to have predeceased the decedent.
Dislcaim - a Person may disclaim any interest in property under a will. A disclaimer must be in:
- Writing or other record
- Declare the disclaimer
- Describe the interest or power disclaimed
- Be signed by the disclaiming party
- and be delivered or filed.
Bequests
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Satisfaction
Occurs when a gift has been satisfied by an inter vivos transfer from the testator to the beneficiary subsequent to the will's execution.
Advancement
Is a lifetime gift made to an heir with the intent that the gift be applied against the heir's share of the estate. Lifetime gifts are presumed not to be an advancement unless intended as such.
Spouse's Elective Share
Protects surviving spouses from disinheritance and allows surviving spouse to take under statutory share in lieu of taking under the will. Under most stats. the amount is one third of the net probate estate if the decedent is survived by issue and one half if the decedent is not survived by descendents.
Step 1: Type of Bequest
Specific Bequest - gift of a specific art. or other property identified and distinguished from all other similar things and is satisfied only by delivery--HINT: use of words like "my"
General Legacy - Payable out of the general assets of the decedent's estate and is not in any separated or distinguished fund from other things of the same kind.
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Intestate Succession
If no will exists or a will is found to be invalid, the decedent's property passes under intestate succession laws.
No surviving descendent's, spouse takes the entire estate.
Surviving Descendants, spouse takes one-third or one-half of the estate and the descendants take the remainder.
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