Mortuary Law Quiz #7

Distribution Problems under Wills

1. Abatement 2. Ademption 3. Death of Heir 4. Spouse's Election to take against the will 5. Disinheritance

Revocation: The Act of Testator

1. Destroy: May deliberately destroy the will and this will constitute a revocation. If it is merely altered, it may or may not revoke it, depending upon the nature and the extent of the alteration. 2. Write a New one

Methods of Distribution of Intestacy/Intestate

1. Per Capita 2. Per Stripes

Probate Court

A court having jurisdiction over estates

Legacy/Bequest

A gift of personal property by will

Operation of Law concerning Wills

1. Divorce: Automatically revokes a will to the extent of the property left to the divorced spouse if the court orders a division of property; otherwise, a divorce usually in no way affects the will 2. Marriage or Re-Marriage: If a single person makes a will and later marries, the marriage may revoke the will in whole or part, or the court may presume it is revoked unless made in contemplation of the marriage or unless it made provision for a future spouse. 3. Birth of Children/Adoption: A child may be born or adopted after a person makes a will. If the original will does not provide for the child, this revokes or partially revokes the will.

Formality in Wills

1. In Writing: Generally a will must be in writing. In a number of states a will written in the testator's own handwriting and dated need not be witnessed. Many states also require the testator to inform the witness that the instrument being signed is the testator's will. This is called publication. 2.Signed by Testator/Testatrix 3. Contain Witnesses

Requirements of a Will

1. Legal Age 2. Testamentary Capacity (Intent, Know nature and extent of estate, and know natural objects of bounty) 3. Formality (In writing, signed by testator/testatrix, and have witnesses)

Legal Age

18 years old for executing a will

Power of Attorney for Health Care

A document that designates an agent or proxy to make health decisions if the patient is no longer able to make them.

Living Will

A document which governs the withholding or withdrawal of life sustaining treatment from an individual in the event of an incurable or irreversible condition that will cause death within a relatively short time and which becomes effective when such person is no longer able to make decisions regarding his or her medical treatment

Executor/Executrix

A man/woman appointed by the will of a deceased person to carry out the provisions thereof and settle the estate

Uniform Probate Code

A model law intended to achieve uniformity in probate proceedings through the U.S.

Soldiers' and Sailors' Will

A nuncupative will, informal in nature, in which a soldier in the field or a sailor at sea may dispose of personal property only; does not have to comply with formalities required of other wills; These wills are in force even after the testator returns to civilian life. They must be revoked in the same manner of other wills.

Intent of a Will

A valid will is one that represents the maker's intention to transfer and distribute his/her property. When it can be shown that the decedent's plan of distribution was the result of fraud or of undue influence., the will is declared invalid.

Revocation/Amendments to Wills

A will can be revoked at any time prior to the death of the testator and may take many forms

Holographic Will

A will written entirely by the hand of the testator/testatrix May not be recognized in some states

Solvent Estate

An estate in which the assets exceed the liabilities

Will

An instrument executed with require formality by persons making disposition of their property to take effect upon their death

Power of Attorney (POA)

An instrument granting someone authority to act as agent or attorney-in-fact for the grantor; an ordinary power of attorney is revocable and automatically terminates upon the death or incapacity of the principal.

Durable Power of Attorney

Exists when one person appointed an agent, agent states which will become or remain in effect in the event the original party should later became incapacitated In effect when you are both cognizant and incapacitated. For example, you might give a son or daughter power over your finances or certain assets because they're better with money or because you don't have the time.

The Nature & Extent of the Estate

The total property that is owned by a decedent prior to the distribution of that property, in accordance with the terms of the will or when there is no will, by the laws of inheritance in the state of domicile of the decedent

Natural Objects of Bounty

This is a term in wills and estate law that refers to the individuals that a testator would be most likely to devise his or her estate, generally a spouse or children. It usually describes those to whom property of a dead person will go if the dead person did not make and leave a will.

Abatement

A proportional reduction of a legacy under a will when assets out of which such legacy are payable are not sufficient to pay it in full

Mortgage

A secured loan on a parcel of real estate

Spouse's Election to Take Against the Will

A spouse may elect to take that share of property that would have been received had the deceased die without leaving a will or the share provided by statute, if the spouse's will does not leave as large a share. It ensures the spouse received a fair share of the estate.

Testamentary Capacity

A testator must be of sound mind and legal age. A person's mental capacity is not so readily provable. They should be absolutely rational to understand the act of making a will, realize the nature and disposition of his/her property and recognize his/her heirs. A person who suffers from mental illness can still be considered of testamentary capacity if he/she makes a will during a lucid period.

Testatrix

A woman who makes a valid will

Springing Power of Attorney

A written instrument authorizing one person to act as an agent for another effective only upon a certain event occurring For example, when the principal becomes disabled or mentally incompetent

General Power of Attorney

A written instrument authorizing one person to do anything for the principal. In other words, one party has full power of attorney for another party

Codicil

An addition or amendment of a last will and testament executed with the same formality of the will

Escheat

Forfeiture of a decedent's property to the state in the absence of heirs

Accounting

Inventory Value plus income less expenses

Inventory

Listing and valuation of a decedent's assets by personal representative of the estate

Administration/Administratrix

Man/Woman who is appointed by the court to settle the estate of a decedent who dies without a last will and testament.

Intestate Succession

Method used to distribute property owned by a person who does without a valid will

Heir

One who inherits or is entitled to receive property by will or by laws of intestacy

Legatee

One who inherits property in a will

Nuncupative Will

Oral will declared or dictated by testator during last illness before appropriate witnesses to dispose of personal property and afterwards reduced to writing (not valid in all states)

Funeral Expenses are a _______________________________ claim.

Preferred

Administrative Expenses

Reasonable costs and expenses of estate administration for attorneys and the professionals

Secured Claims/Liens Deducted from Value

Security Interest deducted from Value

Testate

The condition of leaving a will at death

Insolvent Estate

The condition of the estate of a deceased person which is unable to pay the debts of the decedent and/or the estate

Ademption

The extinction or withdrawal of an inheritance because decedent did not own the named property at the time of death.

Per Capita

The method of dividing an estate by which an equal share is given to each of a number of persons, all of whom stand in equal degree of kindred to the decedent.

Per Stripes

The method of proportionally dividing an estate between beneficiaries according to their deceased ancestor's share

Revocation

The omission or cancellation of an instrument, act, license, or promise

Probate

The process of preserving the estate, determining the validity of a will and distributing the estate to the proper heirs

Estate

The property of a deceased person, both real and/or personal

Probate Estate

The property of a decedent that is subject to administration by the executor or administrator of an estate

Intestate

The state or condition of dying without having made a will, intestacy

Disinheritance

To exclude from inheritance or the right to inherit

Number of witnesses necessary

Usually two witnesses but sometimes states require 3. It will vary with each state.

Devisee

A gift or real estate, the act/process of transforming ownership of real property (applies to both transfers as well as by wills)

Divise

A gift or real estate; the act/process of transferring ownership of real property. Applies to both transfers as well as by wills

Health Care Directive Concerning the Living Will

A legal document that allows one to set out written wishes for medical care, name a person to make sure those wishes are carried out or both.

Testator

A man who makes a valid will