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Flashcards in Vocab Deck (83)
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1

Parentellic

First to grandparents and their descendants, then to great-grandparents and their descendants, etc.

UPC limits to two generations because of the laughing heirs problem.

2

Degree of Relationship (MA System)

Count up to ancestor, then down to taker to determine the degree of relationship.

Parentellic tiebreaker: if there are two people with the same degree of relationship, person with the closest parentella wins.

3

Impact of Adoption (UPC)

Adopted individuals is the child of adopting parent for all purposes, not of natural parents, but adoption of child by spouse of natural parent has no effect on (1) the relationship between child and natural parents (2) right of child/descendant of child to inherit from or through the other natural parent

4

Adult Adoption

UPC: excludes person adopted after reaching the age of 18 from a class gift to adoptive parent's children, issue, descendants, heirs by someone other than the adoptive parent unless the adoptive parent was adoptee's step/foster parent, or the adoptive parent functioned as a parent of the adoptee before the age of 18.

5

Principle of Equitable Adoption

Because a child and parent behave as and do all of the things that parent and child should do, they should be recognized as such under the law.

6

Unmarried Parents (Old Rule vs. Modern Rule)

Old rule: children are of the mother but not necessarily of the father.

Modern rule: paternity can be established by subsequent marriage of parents, acknowledgment of father, or clear and convincing evidence of paternity.

7

Posthumous Children (common law vs. modern rule)

treated same as if born during life if proven

common law: inspect mom to see if she was pregnant when dad died

modern: if child born within 280 days of husband's death, presumed to be child of husband

8

Posthumously Conceived Children (MA rule)

if child is born within reasonable amount of time and if father intended for sperm to be used after death, then we will consider them issue of father for purposes of intestacy

9

Doctrine of Advancement (common law vs. modern)

common law: all lifetime gifts were intended to be advancements, therefore reducing the share of what the child would take under intestacy

modern: lifetime gifts not treated as advancements unless there is a writing that states that it should be

10

Hotchpot

1. put all estate assets and intervivos gifts into hotchpot
2. divide amongst heirs
3. subtract advancement from recipient's share
4. distribute shares - even if recipient's share is "negative" after subtracting, the don't owe $ to other heirs

11

Guardian (of person)

can be appointed for minor - if you provide for it in a will, treated as a recommendation by the court

responsible for everything not financial (home, etc.)

12

Guardianship (for money)

given responsibility to hang on to principal until minor reach 18 - have to go to court to access

13

Conservatorships

same as guardianship, but more control to conservator to manage money on behalf of minor

14

Custodianship

A as custodian for B under the [state] [UTMA/UGMA]

UTMA: property outright to child @ 21
UGMA: property outright to child @ 18

15

Slayer Rule (3 possible approaches)

Rule: if you cause the death of the decedent, then you can't inherit from them

Options:
1. some states don't apply
2. slayer denied legal title
3. slayer get property in constructive trust - goes to next taker

16

Disclaimer

When someone is given an inheritance that they don't want

Policy: avoid creditors, want it to just go to kids, personal relationship with testator

17

Duties to Intended Beneficiaries

Rule: beneficiary can sue lawyer for failing to capture T's intent

Rule: you have a duty of reasonable care to the intended will beneficiaries

18

Conflicts of Interest

Rules:
1. disclose to client that you are repping other family
2. get everyone to sign informed consent in writing that you won't keep confidence
3. withdraw if actual conflict comes up

19

Cautionary/Ritual Function

ensure that T knows that they are creating a legally binding document, have time to reflect

20

Evidentiary Function

need more than just someone's word to determine what T wanted; signature and attestation

21

Protective Function

get witnesses to ensure that what is being done is of T's free will

22

Chanelling Function

standardized format, allows for efficiency, keeps out a lot of documents/evidence that would make it hard to determine what a formal will is

23

Formal Will Requirements

1. writing
2. signature
3. attestation by 2 witnesses

24

Strict Compliance with Will Requirements

although it may be clear that the will expresses true intent of T, some courts will refuse to give it effect if it fails to meet formalities

25

UPC Relaxation of Will Formalities

1. both witnesses don't have to be present at same time
2. allows notary instead of witnesses (not widely adopted)
3. witnesses don't have to sign immediately
4. witnesses don't have to be disinterested

26

Line of Sight Test

the person signing and the document being signed must be in witness' line of sight

27

Conscious Presence Test

witness was there and knows what is going on

28

Self-Proving Affidavit

separate document signed by the testator and witnesses and notarized - can be used in lieu of testimony from witnesses during probate process

says the same thing as attestation clause in a will, just in past tense

29

Substantial Compliance

Judicial doctrine where courts accept a will without all formal requirements if
1. the T intended the instrument to be their will
2. whether the document substantially complies with will act requirements

30

Harmless Error/Dispensing Power

legislative doctrine that allows courts to dispense with formal requirements of a will if they determine that the mistake is a harmless error