Modules 1 & 2: Freedom of Disposition and Intestacy

Question 1

Dying with a will

Answer 1

When someone dies with a will (testate), they leave a document appointing an executor (or personal representative) to execute their wishes with regard to their estate. This person is issued letters testamentary from the court giving this authority.

The estate is made of real and personal property. Real property, or permanent property that cannot be moved, such as land and anything affixed to it, and is passed by devise to devisee. Personal property is any moveable piece of property, which is given via bequest to the legatee.

Question 2

Dying without a will

Answer 2

When someone dies without a will (intestate), the court will appoint a personal representative, or administrator, to distribute the decedent’s estate by issuing a letter of administration.

Under intestate, real property descends to the heirs of the decedent and personal property is distributed to the next of kin.

Question 3

Functions of probate

Answer 3

Collect and identify assets
Manage assets during probate
Protect creditors
Pay debts and claims
Distribute property
Evidence of transfer of title

Question 4

2 types probate

Answer 4

Formal
Informal (independent administration)

Question 5

6 Alternatives to Probate

Answer 5

Universal succession (UPC allows)

Will substitutes (to pass outside of probate)
1) joint tenancy
2) POD accounts - bank accounts
3) pensions
4) stock
5) life insurance
6) trusts
7) transfer on death deed

Family settlements

Affidavit

Will as title document

Declaration of heirship

Question 6

Why is it desirable to avoid probate?

Answer 6

Lower costs (no estate taxes)
Time

Question 7

Will contests

Answer 7

Must have standing to contest a will - pecuniary interest, other interest

Question 8

Grounds for a will contest

Answer 8

will formalities not followed (technical problems)

intent: either testator’s mental state or the effect of 3rd parties on the testator revocation of the will

Question 9

Jurisdictions of disposition

Answer 9

1) primary - domicile of the deceased
2) ancillary - where other property (usually property) is located

Question 10

Non claim statutes

Answer 10

Statutes that cut off creditors claims at some point

Question 11

Types of common errors in wills practice

Answer 11

1) clear mistake
- drafting (getting an amount, property, or beneficiary wrong)
- execution (proper number of witnesses, procedures, signatures)

2) detail mistakes
- failure to obtain proper information from client (current situation, future plans, marriage, divorce, children, moving, etc.)

3) knowledge mistakes
- failure to understand more complex estate planing issues (tax, future interests, rule against perpetuities, other technical issues)

Question 12

Simultaneous Death (usually spousal)

Answer 12

One person has to live more than 120 hours after another person dies to be considered to have survived that person

Question 13

Methods of Shares to Descendants

Answer 13

1) per stirpes (by the root)
2) per capita with representation
3) per capita at each generation

Question 14

per stirpes distribution

Answer 14

“by the root”
common law view

Question 15

per capita with representation distribution

Answer 15

aka modern per stirpes
TX view, majority view
- go to the first generation where someone is alive, and divide shares from there

Question 16

per capita at each generation

Answer 16

UPC view
- go to the 1st generation where someone is alive, and divide, do the same at each generation

Question 17

Collateral heirs

Answer 17

Heirs that are not direct descendants of the decedent but could inherit through the parentelic system

Question 18

Half blood heirs

Answer 18

UPC/majority view: takes the whole share
TX/minority: take a half share

Question 19

Laughing heir

Answer 19

someone who inherits the property of a distant relative with whom they had little or no emotional connection with the decedent

Question 20

Negative disinheritance

Answer 20

disinheriting one or more people who would ordinarily inherit
“to all my heirs except Alice”

not permitted at common law
permitted in the modern trend

Question 21

Inheriting via adoption

Answer 21

can inherit from parents and through parents

Question 22

Adopted children inheriting via biological parents

Answer 22

CAN inherit from BPs and through BPs in TX
- split issue at the state level
- adopted child does not automatically inherit from biological parent unless named in will, same for through BP

ex.: can a child inherit from bio father’s brother?

in TX, yes if named in will

Question 23

Equitable Adoption

Answer 23

Majority:
Agreement to adopt
for the child’s benefit only (in TX, adoptive parents can benefit)
May inherit from adoptive parents, but not through adoptive parents
Proof of agreement is key

Question 24

Posthumous Children

Answer 24

In TX, children born within 300 days of death of spouse or acknowledged parent

Question 25

Non marital children

Answer 25

Common Law: - "child of no one" neither a child of mother nor father Modern Trend: Mother: parentage by birth or adoption Father: parentage by birth, adoption, adjudicated statement of paternity, DNA testing (even after death)

Question 26

Posthumously conceived children

Answer 26

UPC: - consent in writing or via clear and convincing evidence - child is in utero within 36 months of death, born within 45 months of death majority: - consent in writing, notice to executor or administrator, and child is conceived within 2 years of death Restatement: child is conceived in a reasonable time after death

Question 27

Can the killer take if the decedent is their homicide victim?

Answer 27

In TX, a constructive trust is created (a remedy, not a trust) Other heir(s)n can bring action against slaying heir to exclude them from inheriting from the victim. Should action be brought and the slaying heir be convicted or found liable, law mandates the constructive trust. BUT if the slayer is the sole heir to the victim, they will inherit in TX

Question 28

Inheritance by perpetrator of involuntary manslaughter

Answer 28

TX: The probate court may re-evaluate the evidence and if truly involuntary, killer may take