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Decedent's Estate (Beneficiaries: problems here arise when a…
Decedent's Estate
Beneficiaries: problems here arise when a beneficiary dies prior to the testator or when a child of the testator is not included as a beneficiary
Lapse: a failure that occurs when beneficiary dies before testator. Causes the item devised to beneficiary to fall into the residue of the estate. Residuary beneficiaries who survive the testator take the deceased beneficiary's share of the residuary estate.
Anti-lapse statute: Operates to save the gift when the predeceased beneficiary was in a specified degree of relationship to the testator and left descendants.
Some states require the beneficiary and the beneficiary's descendant to be a descendant of the testator. The UPC extends the statute's application to the testator's stepchild, a grandparent, or a descendant of the testator's grandparent.
Slayer act: Designed to prevent beneficiary from participating in the willful and unlawful killing of the testator.
Omitted after-born: A child born/adopted after creation of will may receive a share of the decedent's estate unless the omission was intentional or the testator provided for the child outside of the will
Simultaneous death: occurs when two or more persons, one of whom is the beneficiary of the other, die under circumstances where there is insufficient evidence to determine which party survived the other. Under the UPC, a person who cannot be established to have survived the decedent by 120 hours is deemed to have predeceased the decedent.
Disclaim: A beneficiary may disclaim an interest in property under a will. To properly disclaim, the beneficiary must:
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Revocation
Presumptions: arise when the will is found after a testator's death, but is mutilated. There must be some extrinsic evidence to show testator's intent. A prior will is revived upon undergoing all formalities of making a will or by codicil.
Methods
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Physical act: burning, tearing, canceling, obliterating, or destroying the will or any part of it.
Operations of Law
Testator divorces after making a will - all provisions in favor of the ex-spouse become ineffective for all purposes, unless the provisions were intended to survive the 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.
Revival after revocation: a prior will is revived upon undergoing all formalities of making a will or by codicil. Otherwise the previous will is revived only if it is evident from the circumstances of the revocation of the subsequent will or the testator's contemporary declarations that the testator intended the previous will to take effect as executed.
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Dependent relative revocation: testator revokes an old will with the intention that a newly executed will replaces it. If new will is not made or is invalid, some jurisdictions will admit the revoked will to probate. Need evidence of testator's intent.
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Look for dependent relative revocation when the testator revokes based on a mistake of law or fat where the testator would have made a different bequest but for the mistaken belief
Bequests: Subject to ademption, satisfaction, advancement, and a spouse's elective share
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Ademption: applies to specific bequests that are not in the testator's estate at the time of death. The gift is considered "adeemed" and other property is not substituted. Does not apply to general or demonstrative legacies.
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. The testator must provide for the satisfaction in the will or a contemporaneous writing or the devisee acknowledges in writing.
Advancement: 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.
Elective share statutes: protect surviving spouses from disinheritance. Gives spouses the chance to take a statutory share in lieu of under the will. On average is 1/3 if deceased died with children/issue, and 1/2 if no issue.
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Intestate Succession
Intestate succession: If no will exists or a will is found invalid, the then decedent's property passes according to the state's intestacy statutes. Surviving spouse takes one third or one-half of the estate if there are descendants. Descendants take rest. See book for better explanation of what this is.
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