Decedent Estates

General Disclaimer Rules

1 - Must be in writing and adequately describe interest or power disclaimed. 2 - may be partial in nature 3 - irrevocable once delivered 4 - Barred if the person accepts the property. 5 - Releaser or Renunciator can't direct where the property goes after they have disclaimed it.

Look at the Analytical Principle Chart Right now

1 = Pre Will A = Execution of Will, but before death. 2 = Anti lapse/lapse, class gifts, issues. Predecease issues. B = Death of Testator 3 = Vesting, contingency, defeasance, etc. Determining who gets what C = Distribution of Possession. Determining who gets what 4 = Distribution to those with additional conditions.

Proof of Paternity for intestate reasons - 4 Methods

1. BORN DURING MARRIAGE - Paternity presumed if the kid is born during the marriage 2. CHILDBIRTH CLOSE TO MARRIAGE TERMINATION - If child is born within 300 days of death, divorce, or other termination, paternity assumed. 3. PRE-MARRIAGE CLOSE TO CHILD BIRTH - If husband wife marry before the birth of the child, paternity assumed, even if the marriage later turns out to be invalid. 4. PUTATIVE FATHERS - Husband and wife marry after the birth of the child and husband asserted his paternity over child and a. assertion in filed record b. He agrees to be and is named child's father on birth certificate. c. He promised in a record to support child.

Arkansas Hierarchy and Intestate Secession Pattern

1. Children or their descendants if pre-deceased get it all. 2. Surviving spouse as dictated by statute - but only receives 50% of the property if married less than 3 years. 3. Surviving parents (and they only take what was not given to the issue or spouse).

Three thoughts on who the attorney is responsible to during DE issues.

1. Client/Testator Only 2. Client + Persons specifically named in the will (middle ground) 3. Basically everyone.

The 4 Methods of Distributing Wealth Intestate (list)

1. Old UPC/Modern Styles (per capita - per stirpes comb) 2. New UPC (per capita only) 3. Strict Per Stiirpes 4. Next of Kin (no survivors).

Spousal Protection Statutes/Rights

1. Right to contest the will for formalities or intentions 2. Right to status as pretermitted spouse if left out. 3. Right to elect against the will. This means the spouse basically says the will is shoddy, and tries not to probate it or wants nothing to do with it. 4. Statutory entitlements, such as the right to use the property of the deceased spouse as a life estate so long as the estate owns it.

The 4 Statutory Requirements for wills (list + describe)

1. SIGNATURE - must be signed and dated by testator, or someone else did it on their behalf in his presence, at his direction. Or if the testator already signed the will, he can just have witnesses acknowledge it. 2. COMPETENT WITNESSES - Must have at least two competent witnesses and they must sign, together, in testator's presence, or alternatively acknowledge their signatures in each other's presence later. Witnesses are competent if they have no stake or standing in the will and didn't have any undue motives. 3. TIME LIMIT - Witnesses must sign within 30 days of each other. 4 PUBLISH - Testator must public the instrument as his will.

How does one become a surviving spouse - Marriage Options

1. STATUTORY MARRIAGE - get the license, go through all the procedures, get married by a valid individual able to do so. 2. COMMON LAW MARRIAGE - When two people live with each other for long enough and meets the requirements for marriage but did not go through the formal process, they will be considered common law married. Usually, this includes staying together and treating each other like a family. 3. PUTATIVE SPOUSE - A curative device. Where one spouse was duped into entering a faulty marriage, but that spouse didn't know, then the innocent spouse will still be considered married for property purposes, but the other will not.

General Hierarchy and Order of distribution in Intestate Succession

1. Share of the property given to surviving spouse. 2. Share of the heirs/issues distributed: With Blood children first, step children second, Children by assisted reproduction third and Posthumously conceived kids last if they were in utero no later than 36 months after death or born within 45 months after. 3. Collateral Heirs by blood, with siblings favored. 4 Escheat to the state. So - Spouses > Issues > Ancestors > Remote Heirs

The six types of future interests and Trusts (list)

1. Shifting Executory Interest (Beneficiary) 2. Springing Executory Interest (Beneficiary) 3. Possibility of Reverter (settlor) 4. Right to reenter and retake (settlor) 4. Reversion (Settlor) 5. Contingent Remainder (beneficiary) 6. Vesting or vesting subject to defeasance (beneficiary)

Categories of Wills (list)

1. Statutory and Form Wills 2. Nuncupative (oral) wills 3. Holographic Wills

How to Calculate the Hotchpot for advancement purposes

1. Take the full inheritance total. ($1000) 2. ADD the alleged advancement ($200) onto the inheritance total ($1200) 3. Distribute new total equally. 4. Subtract the Hotchpot ($200) from the person who got the advance.

When the 120 hour survival minimum is not requires.

1. The governing instruments explicitly deals with simultaneous deaths on its own. 2. The government instrument expressly indicates that an individual does not have to survive by any specific period of time - just have to survive generally.

Signature Rules for Wills (list and describe)

1. To be valid, the signature must be FULLY INTENDED and not accidental (of course, with help if you need it). Signature must happen either before witnesses or at the same time. 2. Signature must be at the END OF THE DOCUMENT. Anything below the signature will not be probated. 3. Signature can be made of WHATEVER MARK IS NORMAL for the testator to make for their signature. This includes computer images, water marks, stamps, whatever. 4. Signature can be accomplished with assistance from someone else if you really can't do it yourself. But has to be in your presence at your direction.

When does intestate succession occur?

1. When there is no valid last will or testament or will substitutes taking care of the property. 2. The will or will substitutes don't distribute all of the property. 3. The will is revoked or found invalid 4. Decedent directs in the will that property should pass intestate 5. Non-probate instruments such as insurance policies are payable to heirs and not the estate.

Disclaimer - Releases

A person may disclaim benefits of a will or intestacy DURING THE LIFETIME of the donor or testator. This is called releasing the claim. This is a mutual agreement between two people, and usually requires consideration, though the giving up of rights usually suffices. prenuptial agreements are a good example.

What is a trust?

A trust, kind of a like a will, gifts property, but a the property within the trust can only be used by beneficiary for a specific purpose. Trusts are managed by trustees.

General Powers and responsibilities of a trustee

A trustee has the powers given to them by the trust as well as all powers over the trust property or any powers necessary to manage it.

Trustee, Reasonable reliance on trust instrument

A trustee may act in reasonable reliance on a trust instrument to execute his or her powers. If he does so, he cannot be held liable.

Will Validity - Testamentary Capacity

A will is not valid if the testator was, 1. Not of sound mind, or 2. Not old enough (not 18), or 3. Under undue influence, fraud, or duress. See: Barnes v. Marshall, the case about the guy who gave most of his money to a certain church, as he was rambling on about god.

The Types of Ademption

Ademption by Extinction - When the property to be gifted is no longer part of the testator's estate at the time of death. Ademption by satisfaction - When the property is given to the person during the life of the testator, and ONE of these is met: 1. The will provides for the deduction 2. An additional contemporaneous writing incorporated into the will by reference calls for it. 3. The Devisee acknowledges the gift in writing to be in satisfaction of the will devise.

Will Revival

After a will is revoked, the will stays revoked, UNLESS the testator revokes the new will and it is clear from the circumstances that he intended for the old will to take effect. If the subsequent will was only partially revoked, then the revoked part of the original will is revived unless it is evident that the testator intended the new ill not to be revoked.

Springing and Shifting Executory interests

An executory interest does not vest until a certain point in the future, when a condition established by the settlor takes place. Springing Executory interests shift from the settlor to the beneficiary ("From A to B, unless B doesn't graduate college, then to C if he completed med shool) Shifting goes from one beneficiary to another. (From A to B, unless B doesn't graduate college by 2019, then to C).

Vesting/Vesting subject to defeasance

An interest created in someone who simply must outlive the testator/settlor or some other event. Vest = Fee simple. Not going anywhere. Vest subject to defeasance = Vested in you, but could go somewhere else contingent on an event.

Relatives and anti lapse laws

Anti lapse laws almost always apply only to relatives of the testator. Usually descendants.

Will Substitutes

Any title, ruling, or transaction that handles distribution of the decedants assets automatically upon death or in life that may be passed to someone else. This is the PRIMARY way of property transferal. Insurance plans tenancies by the entirety joint savings accounts retirement accounts, etc

In Re estate of Beale

Beale pleaded to the court that his proper will was unnatural, as it left out a lot of money that should have gone to his 10 year old son, leaving him only a contingent remainder. The son argued that this couldn't have been Beale's intent in his will, especially since past wills spoke differently. The court agreed, claiming that although Wisconsin law does not permit the probate court to entertain the argument that a will can be denied just because it appears to be unjust to a natural object of a testator's bounty, Beale made revisions to the document and failed to sign it again and have witnesses to the will again, making it so that the will, though entirely new, did not revoke the past will

Revoking or Amending a trust:

Before death, the settlor can revoke or amend a trust at ANY time.

Requirements for an advance - Common Law and Minority

COMMON LAW - If there was a big gift, we will assume there was an advancement when it comes to children. UPC/MINORITY - 1. Decedent declares in writing or heir acknowledges by writing that property received is an advancement. 2. This writing otherwise indications (intention) that the gift is to be taken into account in computing the division.

Copies of Wills

Can be used to prove the original contents of a will, but a rebuttable presumption will still exist.

Animal and pet trusts

Can only be created for an animal alive during the life of the testator.

In Re estate of McKown

Case in which the couple were not divorced yet, but were separated when the husband died. The court determined that since a valid divorce had not been achieved, Ms. McKown could still inherit all of Mr. McKown's stuff.

Tulsa Professional Collection Services v. Pope

Case the court determined that the state is required to do its due diligence and put out actual notice of when probation starts to potential creditors to the estate, so that they may see it and be able to collect. In this case, it revolved around Pope's debt to the hospital that held him before he died.

Barcelo v. Elliot

Case where the decedant's grandkids attempted to come at the lawyer for rendering an invalid will. It was not determined whether the will was invalid due to the attorney's blunder, or something else. Regardless, the court determined that the attorney only had a duty to his client, the decedent.

Pre-Mortem Probate

Certain states allow pre mortem probate, which basically allows the testator to probate the will while alive to make sure everything works out. Arkansas has this

Self-proved Will/Self Proving Affidavit

Certain states have form wills that, once completed, signed, and executed correctly, the formalities associated with execution of wills becomes irrebuttable.

Issue

Children, grandchildren, etc. Direct Descendants.

Equitable Estoppel - Non Marital Relationships

Common law marriage is now a normal thing, and those that are considered common law married (cohabitate like they are married and treat each other as married) can inherit from each other via equitable estoppel. Basically - just the legal term for the right to gain property from the other person in common law marriage.

When do benefits vest?

Determined by considering the entire instrument granting said gift.

Government's Role in estate transference #2 - Procedural Responsibilities to Non-Claim suits.

Due process requires that the government give ACTUAL notice to any estate creditor whose identity is KNOWN OR EASILY ASCERTAINABLE for non - claim suit.

Testate Secession

Dying with a valid will that can be probated.

Intestate Secession

Dying without a valid will that can be probated, forcing the State to divide your assets according to intestate distribution rules. Generally speaking, Intestate secession may happen when their is absolutely no will or will substitutes, or when there is any residual of the estate that has not been divided based on those methods.

Lapse And Anti Lapse - Generally

Effectively what per stirpes is. If a beneficiary predeceases the decedent, the money given to them would generally lapse back to the estate, where it might be given to someone else in the residuary that you did not intend. To prevent this, EVERY SINGLE STATE has anti lapse laws that instead of letting the devise go to waste, pushes it to some family member or descendant of the beneficiary. Anti Lapse laws can ONLY be defeated by specific words in the will saying that anti-lapse laws shall not apply. Survivorship language may also defeat anti lapse laws in the MAJORITY view.

Holographic (handwritten) Wills.

Entirely hand written wills. Roughly half of states (Arkansas) allow these. Requirements: 1. Signature and material portions of the document completely in testator's handwriting 2. Dated 3. Signed. 4. Must include some sort of "death talk" indiating that the document is to be taken as a will. This intent must be apparent.

Equitably adopted children and inheritance.

Equitably adopted children may only inherit from their parent, not through their parent. There are no "equitably adopted grandkids".

State Non-Claim statutes: Time limitations (+ Arkansas)

Every state will set a certain time limitation for how long a creditor with a non-claim suit may wait before coming forward and claiming their prize. For ARKANSAS - this is six months after probate starts or Five years if it never started.

Order of transference of Property after death.

First - Will Substitutes take effect. Second - Last Wills and Testaments take effect. Third - Intestate Succession takes effect for the remainder.

Rule of Administrative Conveniece

First Distribution Rule If the bequest in a trust or will is to a class of beneficiaries that is subject to keep increasing, the class CLOSES to future entrants as soon as the first beneficiary of the class is entitled to take.

Class Gifts - Class Rules for lapse

For a devisee to be described as a class, the class must contain a number of beneficiaries and the size of the shares must be uncertain. When a class gift is given, it does not lapse to family members of the individuals in the class, but rather, it lapses to other members of the class itself.

Will Validity - Intentional Creation

For the instrument to be valid, the testator must show the proper intent necessary to create a will. Without this proper intent, the document will just be an unexecuted codicil. Intent is shown by the evidence.

Issue Protection Statutes

Generally, statutes treat children as pretermitent. That is, we assume that the child was supposed to inherit from the will, and if they are not mentioned in the will, we assume that was an accident and give them something anyway. This can only be defeated if the testator specifically shows that he or she did not what the children to inherit (like giving them all $1).

In re estate of hall

Harmless error Doctrine The case where the Halls created a will before, tore it up with their lawyer, and created a new joint will together that was to act as their real will. They didn't have any additional witnesses, however, and there was a dispute as to whether the will was executed properly. The Court determined that because there was SUCH a strong intent to revoke the last will and accept this new one, that it was fine.

Collateral Heirs

Heirs that inherit from the original person named in the will that are NOT actual descendants of the individual inheritor. Such as siblings, parents, grandparents, aunts/nephews, etc.

Will Validity - Undue Influence

If a person who has a confidential relationship exerts undue influence on you, or the influence arises out of the attorney's conflict of interest while creating the will, it is invalid. Undue influence can only be rebutted by clear and convincing evidence.

Will Validity - Revocation exception

If it can be proved that the beneficiary of a presently executed will uses fraud, duress, or undue influence to prevent the testator from executing a new one, the old will is NOT held as valid as to that provision.

Will Validity - Fraudulent Misrepresentation

If portions of a will are created based on the testator's belief in: a - false data (that is not simple hyperbole) b - given to him by a beneficiary c - that the beneficiary knew to be false Then the will is invalid. See: In Re Roblin's Estate, where one child lied to the father about another child receiving certain inheritance rights, causing the father to give all of his inheritance to that child, but the court held it to be actual hyperbole.

Adoption - death of a parent.

If the parents were in the process of adopting the child, but one died before the process was complete, the child will be considered as being officially adopted by that parent when the process ends, and can inherit as if they were adopted before the death.

Revocation - Subsequent Instrument

If the testator creates another instrument that is valid and properly executed that changes parts of or completely negates the old will, then the old will is revoked in favor of this new document. This only counts if the subsequent document MATERIALLY changes the will.

Revocation - Revocatory Acts

If you physically destroy the original will, then this revocatory act will revoke it. This includes tearing the will up, burning it, or otherwise obliterating it in some way.

Byrne v. Laura

In Byrne, Flo had refused to marry skip because she would lose money from her previous marriage she needed to support her kid, but she and skip lived together and treated each other as husband and wife for all intents and purposes. When skip died, she had to fight to see if she could claim his property. The court determined that since they were husband and wife in everything but official title, they were common law marred and thus through equitable estoppel, Flo could take the money.

What is the BEST way to revive a will.

Just re-execute it.

Non-Ademption Clauses

MINORITY VIEW (Arkansas) Gives people the value of the item or property that was ademed by extinction if it could not be passed because it didn't meet the specific devise.

Proof of Maternity?

No real proof of maternity tests exists. It just only assumed that the mother who gave birth is the mother for intestate reasons.

Stututory and Form Wills

Normal wills. In a few states like california there are special form wills that a person can download/print and fill in the blanks to a make a valid will. These are usually VERY basic. This just saves the trouble of going through the wil process.

Ademption - Specific Devises

Only occurs for specific devises, not residuary, general ("$1000 to my niece), or demonstrative devises ("$4000 from my Bank of America account to my Niece"). A specific devise is the transfer of all of something, or unique item, to another. ("My gold watch with my initials on it sitting in the bathroom to my niece").

Partial revocation

Partial revocations are allowed so long as the person leaves the material portion of the will in tact. So you can destroy (mark though), formally revoke, or created a separate document, addendum, or amendment to the will and still have the original will work. These included unexecuted codicils. Generally, if you do that, staple them together.

Types of Ambiguities in wills

Patent (No clue) ambiguities are those that are on the face of the document itself. These patent ambiguities are obvious and give no options to discover what the testator actually meant. You need to use extrinsic evidence to determine the meaning. EXAMPLE: "To X my bombaboska" Latent (too many options) Ambiguities are those that could be one of multiple options, and you will need to use extrinsic evidence to determine which one of the options the term was referring to. EXAMPLE - "I give my Car to Mr. Travino". Okay, which car? Which Travino? You can even use extrinsic evidence to determine that an ambiguity exists on its own.

Surrogate Parents

People are free to engage in surrogate parenthood with each other, and the original couple or individual that asked for the surrogate parenthood will be considered the lawful father/mother of the child, EVEN IF THE CHILD ISN'T GENETICALLY RELATED AT ALL.

New UPC Distribution Style

Per Capita ONLY 1. Start with first horizontal line with a survivor and make per capita distribution. 2. Then go to next line and distribute remaining shares equally to everyone on that line on a per capita basis. Repeat until depleted.

Old UPC/Modern Style Distribution

Per capita then per stirpes distribution. 1. Start from first horizontal line with a survivor, make a per capita distribution. 2. From then do per stirpes for predeceased on each succeeding line until wealth is depleted. EXAMPLE - X dies, succeeded by A, B (2 kids) and C (3 kids) but B and C are predeceased. A gets his 1/3 share, B's kids each get 1/6 share (1/3 divided 2), and C's kids get 1/9 share (1/3 divided 3).

Administrator

Person named by the court to distribute a will's assets when the will itself doesn't name an executor.

Personal Representative

Person paid to manage and distribute assets during intestate distribution by the state.

Posthumous Conception Parenthood for intestate Purposes

Posthumously conceived kids can inherit through intestacy IF: 1. Genetic relationship to the decedent is established. 2. the deceased parent consented to the posthumous conception and posthumous support of the child.

Attorney's duty of care to clients - Privity

Privity refers to who the attorney has a duty of care towards, or in other words, who must the attorney work for and appease? In DE cases, traditionally, the attorney only has a duty of care to the individual he or she actually represents (the Decedent) and not to the beneficiaries of a will or trust if those beneficiaries weren't the client. In modern times though, jurisdictions have broadened past this to extend privity to those specifically named in the will.

Things that may reasonable restrain transfer of wealth

Slayer Statutes (to prevent someone from killing another for property transfer). Fraud Transfers deemed wasteful

Harmless Error Rule and Notarized Wills

So long as it is clear that the instrument was adopted to be the testator's will, the law will be lenient if the will was not EXECUTED properly. There is some leeway there. An example of this is notarized wills. People have such a strong misconception that to execute a will you have to notarize it, that even though this isn't the correct way to do it, It will generally be accepted. The notarization and intention to make a will must be shown by clear and convincing evidence, however.

Test for determining testamentary capacity

So long as the testator understands the nature of the business that he or she is engaged in, its all good. Even an otherwise crazy testator can make a will while in a lucid state and it will be valid.

Intestacy - Advancement

Sometimes, someone could have received part or all of their inheritance during the lifetime of the decadent through some sort of gift like a wedding or college tuition. This is an advance. The advancement will be taken out of the child's share of the hotchpot, which includes all funds distributed to heirs.

Next of Kin Distribution

Survivors only Wealth goes to the first level where there is a survivor of the closest degree of kinship, and that person or group of people take. Only distribute to the survivors on that line. Nothing else happens.

Per Stirpes Distribution

Taking based on representation, or taking based on someone else. For example, if your father received inheritance, but your father had pre-deceased the decedent, you would take per stirpes from him.

Substantial Compliance exception to Will Formalities

The MODERN RULE in most states is that substantial compliance with the formalities of creating a will is enough. If you can prove by clear and convincing evidence that a will substantially complies with the formality rules in these certain states, the will MUST be probated.

Witness Rules - Conscious Presence Test and Psych Test

The Majority rule States that when witnesses are signing the will, the testator must only be conscious of it, that is, if you can use your senses to know that your witnesses are working on your will, it is valid. The Minority Rule Strict Psych Test states that the testator must be able to see the pen hitting the paper of the witnesses. This experience must be irrefutable.

Half - Blood v. Whole Blood Relatives for distribution purposes

The UPC DOES NOT make a difference between half-blood and whole blood siblings/relatives for distribution purposes, but states still have the right not to adopt these rules. Arkansas follows the UPC

Janus v. Tarasewicz

The case where the couple died while ingesting tylenol laced with cyanide. While the husband died almost immediately, the wife held on to life for a few more days before being pronounced dead. The court said that the wife's estate could inherit from the husband because she was not pronounced ofiicially dead until much later, despite being in a dying state the entire time.

In re Kimmel's Estate

The case where the dieing father sent a letter to his sons that lived in different parts of the country indicating what they should receive after his death. The court upheld the letter as his will.

Ademption - Excession

The concept that the item to be gifted to the beneficiary is the item at the value of its worth at the time of the testator's death, and not at the time the will was written. So if value in stocks and bonds are given, they are given at the value they are at the time of death. EVERY JURISDICTION PRESUMES EXCESSIONS

Exoneration

The concept that the person receiving a piece of property through inheritance will receive it free of mortgage or other debts. The estate of the decedent will work to pay off the debt or mortgage of that property that is being given from the estate's residue, unless the will says otherwise. THIS IS THE MAJORITY VIEW.

Reasonable Restrictions on Transfer of Wealth

The fifth amendment prevents the government from totally restricting someone's right to transfer wealth either in life or death. Just the same, citizens can't put restraints on transfers of wealth unless those transfers are reasonable. REASONABLE EXAMPLE - Requiring a child to marry within a particular religion to obtain wealth. UNREASONABLE EXAMPLE - Requiring the father in a divorce decree (forced) to raise the child in a catholic church.

Government's Role in estate transference #1 - Constitutional Guarantees

The government gives every person the constitutional right to transfer property and right not to have that property taken without just compensation under the Fifth Amendment. This right can't be taken away entirely. Thus, the government can only limit the right in certain reasonable ways, and when it does take it away, it must compensate you for the loss.

Government's role in estate transference #3 - Taxation at Death

The government has the right to impart certain taxes onto the estate, even if the decedent still has control of the property.

Executor

The individual appointed by by the testator to handle the administration of the property spoken about in the will.

Testator/Testatrix

The individual that drafts the will for the decedent. Could be the decedent themselves or the lawyer.

Common Law v. Community Property States

The majority of states are common law states. This means that even through a marriage, property can be held individually in one spouse's name but not the other. Property owned before the marriage stays in the ownership of the individual who owned it. Only property acquired through marital funds or given to the couple as a gift or what have you are marital property. In a minority of states, EVERYTHING is marital property, or community property, and thus up for grabs by anyone.

Hodel v. Irving

The native american case where the Supreme Court first decided that people must be justly compensated for their loss. This also dealt with property escheating to the state.

Residue

The remaining portion of the estate that has not been distributed after the will or any will substitutes have taken effect.

Right to Reenter and Retake

The right of the settlor to reenter the property and take it back from the beneficiary if some condition is not met. Unlike possibility of reverter, this is not automatic. The Settlor can can in at any point after the condition is met. Landlords and tenants are often in this type of relationship

Equitable Adoption vs. Common Law Marriage differences

There is not such thing as common law adoption. While common law marriage couples will be treated the same as statutory married couples, that is not true of adoption. Just having a child and holding that child out as your kid does not make you common law adopt them. Equitable adoption just allows the child to take property from the parent that held them as their own, but legally speaking they are still not adopted. ARKANSAS DOES NOT HAVE EQUITABLE ADOPTION

Nuncupative (oral) wills

These aren't recognized by the UPC But in some some states, you can make an oral will to transfer property, but the rules are VERY restrictive as to what you can transfer. These usually occur in connection with a last illness and MUST 1. Be stated in the presence of three people, and 2. Those people must reduce the statement to writing within a specified time.

What use are incompetent witnesses

They can still be used to testify as to the validity of the will or to clear up some other matter as to the will's validity, but their share of the will is purged.

Pretermitted Children

Those children left out of a will who were intended to benefit. We generally assume that if the testator leaves his children out of a will, it was accidental, as everyone wants to take care of their children. So we call them pretermitted. A child is only NOT pretermitted if the testator includes specific language in the will showing that the children shall not inherit (like leaving them each $1).

Events of independent significance

Those events that help prove what exactly will be distributed through ademption or other specific devises. If flannery gives to the class the baseball hats he collected from every game, you have to know all of the games he went to and where those hats are.

Laughing Heirs

Those heirs that would take from the original beneficiary of the will through representation that are so far removed through the lines of consanguinity, so they are referred to as laughing heirs because they probably would not even grieve the beneficiary. We try to keep them from inheriting.

Heirs

Those who inherit according to intestacy OR if specified in a will, those who will take via representation (per stirpes) from someone named in the will. Usually just includes children by by blood.

Non-Claim Suit

Those with non-claim suits against the decedent get first dibs on any property transference at death. A non-claim suit includes any kind of debt that the decedent may have at death towards those seeking expenses and fees, such as hospitals taking care of the decedent before death. The state is required to give public notice so that those individuals with non-claim suits know that they may come forward and get their fees paid.

Simultaneous Death Rules for wills or intestate

To inherit property, the general rule is that property from wills or intestate must be intended to go to someone that will survive the testator. The GENERAL RULE is that to inherit in intestate succession or wills, the person must survive at least 120 hours after the decedent. If that does not occur, the two people are treated as having died simultaneously. The party wanting to fight the ruling has the burden of proof to prove that the beneficiary actually lived that long. This must be proved through CLEAR AND CONVINCING evidence.

Resignation of trustee

Trustee may resign if they give a 30 days notice or with the approval of court. But the court may issue orders and impose conditions reasonably necessary for the protection of the trust property.

Revocation - Generally

Unless otherwise stated in a statute, a will can be revoked at any time by the testator, but there are three methods to do so: 1. Subsequent Instrument 2. Revocatory Acts 3. Formal Revocation

How are trust created?

Usually created through a will, but can be created in life as well. Requirements: 1. Settlor has capacity to create the trust 2. Settlor has intention to create the trust. 3. The trust is made for definite and ascertainable beneficiaries.

Strict Per Stirpes Distribution Style

Usually similar to Old UPC/Modern Style - but survivors aren't necessary 1. Go to first horizontal line, REGARDLESS OF SURVIVORSHIP, and do per capita. 2. Then do Per stirpes distribution until depletion.

Rules of Election against the will.

WHO CAN ELECT? Only the spouse, unless they waive their right against it through some prenuptial agreement or posnuptial agreement. WHEN CAN THEY ELECT? Election must be made within nine months after the date of the death, or six months after probate begins JUST LIKE NON-CLAIM creditors.

Survivorship with respect to future interests under terms of trust

When a beneficiary fails to survive the distribution date of a gift, then: 1. WHEN ITS NOT A CLASS GIFT, a substitute give is created for descendants 2. WHEN IT IS A CLASS GIFT for someone other than family, substitute gift is created for descendants. 3. Any alternative future interests created by the will supercede the substitute gifts

Disclaimer - Renunciation

When a person wants to disclaim their inheritance AFTER THE DEATH of the donor or testator. You must disclaim within NINE MONTHS after receiving the property.

Domicile in relation to probate succession

When probating property or dividing it based on intestate succession, the property will always be divided based on the law of the state where the individual was domiciled at the time of death. Domicile = the place where the person intends to live in. Not necessarily just where they were at the time of death.

What is ademption

When property that would normally pass from the decedent to a beneficiary is no longer able to because it no longer meets the criteria of the specific devise made in the will. The property in the possession of the estate must be able to meet the very specific devise made by the testator towards the beneficiary, if it doesn't, it is adeemeed and passes to someone else or is put in with the residuary to pass intestate.

Reversion

When someone gives a life estate to another and at some point that property is going to return to the original settlor or his or her estate. "To A for life". After A's death, it reverts back to O

Escheat to the State

When the decedent dies without any will and without anyone that can take from her via intestate succession, the property will escheat back to the state. The state compensates the estate for the property and then owns it.

Possibility of Reverter

When the person gifts property to another with a condition. If that condition is met or they fail to meet it, the property is returned to the original owner. "To A, so long as A maintains a 3.0 GPA in school". When he drops below a 3.0, the property right returns to O.

Per Capita Distribution

When the person receives in and of himself from the decedent. That is, the person inherits based on the will or intestate succession because they were the descendant or person named, and they are not taking through representation of the actual heir or named individual.

Power of Appointment

When the testator gives to someone the power to determine who receives a gift after them. "To X for life, with power of appointment."

Attestation Clause

Where the witnesses must sign the document, stating that this is the testator's will and it was his or her intention for it to be a will.

Will Validity - Delusions

Will is invalid if individual is suffering from delusions when writing it. The challenger of the will has the burden of proving delusions. MAJORITY VIEW (Arkansas) - Anything that qualifies as insanity will be enough to be a delusion that invalidates a will. For a "Delusion" to be sustained, it must be reasonable. MINORITY VIEW - If there is ANY facts supporting your "delusion", then the challenger loses.

Revocation - Formal Revoke

You can revoke a will formally in a similar manner as executing a will, but creating a document, signed by the testator and witnesses to revoke the will. A formal revocation may also occur through operations of law that would materially change parts of the will, such as divorces or more kids being born.

Incorporation by Reference - What it is and the 4 requirements.

You may use a separate document or unexecuted codicil that may be incorporated by reference into the will to further explain certain provisions so long as 1. The language of the will manifests the intent to incorporate the document (See: X) 2. The will describes the writing sufficiently to permit its identification (including death talk). 3. The document was in existence at the time of execution of the will or codicil 4. The document itself is show by adequate proof to be the document talked about in the will.

Arkansas Rule on Privity/Duty of Care

You only have privity with the client that hired you, EXCEPT 1. If you commit fraud or intentional misrepresentation, or 2. If the lawyer knew or it could be proved by another that the services rendered were primarily for the benefit of someone else specifically named.