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Wills and Trusts
Fall 2011
| Question | Answer |
|---|---|
| Prima geniture | feudal times employed this technique that gave property to oldest male |
| testacy | dying with a will |
| intestacy | dying without a will |
| problem of the dead hand | when decedent conditions a gift to a beneficiary upon them getting it in a certain way. property owners usually have broad discretion to dispose of property however they want. |
| probate property | property that passes under the decedent's will or by intestacy |
| nonprobate property | property passing under an instrument other than a will |
| Examples of nonprobate property | joint tenancy w/ rights of survivorship; beneficiary designations: life insurance, contracts with POD provisions, interests in trust; legal life estates and remainders; inter vivos trust |
| Are tenants in common probate? | Yes |
| Probate functions (3) | 1. provides evidence of transfer of title to new owners by a probated will or decree of intestate succession 2. it protects creditors by requiring payments of debts 3. it distributes the decedent's property to those intended after the creditors are paid |
| Duties of Personal Representative | 1. inventory and collect the assets of the decedent 2. manage the assets during admin 3. receive & pay claims of creditors and tax collectors 4. clear titles to cars, real estate, or other assets 5. distribute the remaining assets to those entitled |
| Informal Probate Process | 1. file application 2. admit will to probate 3. appoint PR 4. application for formal/informal probate 5. court issues order admitting to probate and appointing PR 6. file inventory |
| Formal Probate Process | 1. hearing in front of judge 2. file petition for formal probate, get court date, provide notice to interested parties (must wait at least 5 days after death to file application.) |
| Acceptable actions of Personal Representative | 1. retain assets 2. receive assets 3. perform contracts 4. execute/deliver deed 5. divest assets, if needed 6. acquire or dispose asset 7. make ordinary repairs 8. divide land 9. enter lease (basically anything you can do with your own property) |
| Notice of Disallowance | informs creditor that claim will not be paid w/o litigation |
| Order for payment of claims | a. insufficient assets to pay all 1. costs and expenses of admin 2. reasonable funeral 3. debts and taxes w/ fed preference 4. med & hospital expenses 5. debts and taxes w/ state 6. all other claims |
| Negative Wills | exclude or limit the right of an individual to succeed to property. UPC generally allows |
| Intestacy Share of Spouse | NE 30-2302 and 30-2303 1. O issue, 0 parents -> spouse gets 100% 2. 0 issue, at least 1 parent -> spouse gets $50k probate and half of the rest. 3. At least 1 issue, of which are mutual with spouse -> gets $50k + half rest 4. 1 child not mutual: gets |
| Divorce, annulment, separation | |
| English per stripes | |
| Modern per stripes | |
| Per capita at each generation | |
| collateral kindred | |
| first line collaterals | |
| second line collaterals | |
| parentelic scheme | |
| degree of relationship scheme | |
| adopted children | |
| nonmarital children (common law) | |
| nonmarital children (modern law) | |
| advancements | |
| Guardian of minor child | |
| Custodian of Property | |
| Conservator | |
| Bars to Succession (2) | 1. Homicide 2. Disclaimer |
| NE effect of Homicide | |
| Disclaimer | |
| Requirements of Disclaimer | |
| Effect of Disclaimer on Gov't tax liens & Medicaid | |
| Mental Capacity Requirements for Will | |
| Insane Delusion | |
| Undue Influence | |
| Contestant of Will for Undue Influence, Duress, Fraud | |
| Bequests to Attorney | |
| No Contest Clause | |
| Disinheritance Clauses | |
| Fraud | |
| Fraud in the inducement | |
| Fraud in the execution | |
| Duress | |
| Constructive trust | |
| Tortious Interference | |
| Requirements to prove tortious interference | |
| parties to a trust | |
| inter vivos trust | |
| declaration of trust | |
| deed of trust | |
| testamentary trust | |
| duty of loyalty | |
| duty of prudence | |
| subsidiary rules | |
| trustee functions (3) | |
| creation of trust (4) | |
| NE 30-3828 Creation of Trust | |
| Constructive delivery | |
| symbolic delivery | |
| resulting trust | |
| taxation of grantor trust | |
| spousal attribution rule | |
| necessity of trust beneficiary | |
| power of appointment test of validity | |
| general power of appointment | |
| limited power of appointment | |
| Honorary trust | |
| mandatory trust | |
| discretionary trust | |
| spray trust | |
| support trust | |
| discretionary support trust | |
| Unitrust | |
| duty to inquire | |
| simple discretion | |
| exculpatory clause | |
| simple trust | |
| complex trust | |
| total return trust | |
| unitrust total return | |
| annuity | |
| mandatory arbitration clause | |
| rights of beneficiaries creditor's | |
| exception to creditors rights | |
| spendthrift trust | |
| self-settled asset protection trust | |
| creditors claims against settlor | |
| modification of irrevocable trust | |
| virtual representation | |
| termination of trust | |
| Whether default trust is revocable or irrevocable? | |
| removal of trustee | |
| gifts to classes | |
| per stripes | |
| modern per stripes | |
| per capita at each generation | |
| Class-closing rule | |
| exceptions to Class-closing rule | |
| post-poned gifts | |
| gifts of specified sums |
Created by:
aajohn64
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