Decedents' Short Outline

Decedents' Short Outline - I Introduction a Power to...

Info iconThis preview shows pages 1–3. Sign up to view the full content.

View Full Document Right Arrow Icon
I. Introduction a. Power to transfer b. Dead hand control c. Professional responsibility II. Intestacy a. Surviving Spouse b. Descendants/issue i. Per stirpes ii. Per capita with representation iii. Per capita at each generation iv. Parent married v. Adoption vi. Equitable adoption vii. Child born out of wedlock viii. Advancements – irrebuttably presumed to count against the child’s share of the intestate estate. 1. Hotchpot – amount of advancement added back into decedent’s intestate estate and then each heir’s share of the hotchpot is determined. c. Collateral relatives – parentelic d. Survival requirement – to qualify as an heir must prove by clear and convincing evidence that survived the decedent by 120 hours (5 days). e. Bars to succession – i. Homicide – felonious and intentional killing. Treated as if predeceased. Preponderance of the evidence. ii. Disclaimer – treat as if predeceased. III. Limitations on the testamentary power a. Spousal support i. Social security ii. Private pension plans (ERISA) iii. Homestead exemption iv. Personal property exemption v. Family allowance b. Elective share – upon death the surviving spouse is entitled to a share of the deceased spouse’s property regardless of the terms of the deceased spouse’s will. i. Nonprobate property covered if intent to defraud the marital share. ii. If surviving spouse is incompetent, the spouse’s guardian can, in the best interests of the spouse and with the probate court’s approval, claim the elective share for the spouse. iii. Waiver – in writing, signed, and executed after a fair disclosure of the other party’s financial situation. Voluntary or unconscionable. c. Pretermitted spouse – KY does not have. d. Pretermitted child – a presumption arises that did not intend to disinherit that child. Receive intestate share.
Background image of page 1

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full DocumentRight Arrow Icon
IV. Wills a. Capacity i. General testamentary capacity 1. The ability to know the nature and extent of his property 2. The natural objects of his bounty 3. The nature of the testamentary act he is performing 4. How all of these relate to constitute an orderly plan of distributing his property. 5. Strong presumption of capacity. ii. Insane Delusion – a false perception that the T adheres to against all reason and evidence to the contrary and the delusion must have caused the T to dispose of his property in a way that he would not have done otherwise. iii. Undue influence – another substitutes his intent for the T’s intent. Common law – plaintiff must prove the T was susceptible, the D had the opportunity, and disposition was the result of undue influence. Presumption doctrine/burden shifting approach? 1. No contest clauses – generally valid, but narrowly construed. 2.
Background image of page 2
Image of page 3
This is the end of the preview. Sign up to access the rest of the document.

This note was uploaded on 04/27/2010 for the course LAW 840 taught by Professor Tim during the Spring '10 term at University of Louisville.

Page1 / 6

Decedents' Short Outline - I Introduction a Power to...

This preview shows document pages 1 - 3. Sign up to view the full document.

View Full Document Right Arrow Icon
Ask a homework question - tutors are online