Wills and Trust

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  1. When does intestacy law apply?
    It applies last. People who do not make wills or otherwise dispose of their property by non-probate transfers accept the intestacy law as their estate plans by default
  2. What happens when there is no one left in the family for the intestates's property to go to?
    The property escheats to the state
  3. What is the surviving spouse's intestate share when the decedent left no children? (real property)
    The spouse might get everything or might share with the decedents parents if they are still alive
  4. What is the surviving spouse's intestate share when the decedent leaves children? (real property)
    • One child - 1/2
    • More than one child - 1/3
  5. What happens to the personal property of the decedent if they left one child?
    IF the net personal property value is less than 30,000, the spouse gets all the personal property

    IF the net personal property value is more than 30,000, the spouse gets the sum of 30,000 plus 1/2 of the balance of the personal property
  6. What happens to the personal property of the decedent if they left two or more children?
    If the net personal property is less than 30,000, the spouse gets all the personal property

    If the net personal property is more than 30,000, the sum of 30,000 plus 1/3 of balance of the personal property
  7. How do you apply English per stirpes?
    Divide at the first generation of descendant's

    • The property is divided into as many shares as there are living children of the designated person AND deceased children who have descendants living. The system views the family in vertical terms. System treats each line of
    • descendants equally. Ex: if mother has 3 children (dead or alive), each child gets 1/3. If on the mothers death, one child (B-who is also deceased) has left two children, each child of the deceased represents the deceased and  gets 1/6 (half of the 1/3 that B would have got had he been alive) etc.
  8. How do you apply Modern per stirpes?
    The estate is divided into shares at the first generation leaving survivors. It is "per capita" at the first level that has survivors, and "with representation" after that.

    Under this approach, one looks first to see whether any children survived the decedent. If so, the distribution is identical to that under English per stirpes. If not (and all of the decedents children are dead), the estate is divided equally (per capita) at the first generation in which there are living takers, which is usually the generation of the decedent's grandchildren.

    Any deceased descendant  is represented by her descendants using an English per stirpes distribution. This system treats equally each line beginning at the closest living generation.
  9. How do you apply Per Capita at Each Generation?
    • Divide the estate in a series of steps. First, find the first generation with survivors and add the number of survivors plus the number of those who died leaving descendants
    • who survive. (ex. 1 survivor and 3 dead leaving descendant's, total would be 4). Next, move down a generation and divide the remainder of the estate
    • according to the same principle. How many survivors are there in this generation, and how many in this generation have died leaving decendants. Keep repeating the process until you run out of takers.

    • The initial division of shares is made at the level where one or more descendants are alive (as under modern per stirpes), but the shares of deceased persons on that
    • level are treated as one pot and are dropped down and divided equally among the representatives on the next generational level.
  10. How are adopted children treated?
    Adopted child can take from adopted family (full transplant theory, in adopted family tree for all purposes)

    Adopted child CANNOT take from natural family

    • Natural parents CANNOT take from an adopted child UNLESS the natural parent is married to the adopting
    • parent.

    The adopted child is removed from the other natural parents family.
  11. What are the elements necessary to show an equitable adoption?
    An express or implied agreement to adopt the child

    Reliance on the agreement

    Performance by the natural parents of the child in giving up custody

    • Performance by the child by living in the home of the foster parents and acting as their child
    • Partial performance by the foster parents in taking the child in their home and treating the child as their own, and

    The INTESTACY of the foster parents

     Does not apply if there is a will.
  12. How are half blood and whole blood siblings treated?
    the same, there is no distinction
  13. What is an advancement?
    • Lifetime gifts intended to come out of an intestate share
    •  Person has decided (beforethey die) that they are not going to have a will and that they are going to allow their property to be dispersed by intestacy. It is an irrevocable, anticipatory gift.
  14. What is the presumption in NC when it comes to advancements?
    If an individual makes an intervivos transfer, there is a presumption in NC that the transfer is an absolute gift and not an advancement UNLESS shown to be an advancement.
  15. What are gifts in satisfaction?
    Lifetime gifts intended to take the place of gifts made by will
  16. Guardian of the Person
    A guardian of the person has responsibility for the minor child's custody and care. 

    A guardianship of the person terminates when the minor reaches the age of majority, dies, or is adopted.
  17. Guardianship of the Property
    A guardian of the person has NO authority to deal with the child's property.

    • The guardian of property, does not have title to the minor's property. They cannot change investments without court order. The guardian has the duty of preserving the specific property left to the minor and delivering it to the minor at
    • age 18, unless the court approves a sale, lease, or mortgage. The guardian ordinarily can only use the income from the property to support the minor; the guardian needs court approval to go into the principal to support the minor
  18. Conservatorship
    The conservator is given "title as trustee" to the protected person's property, as well as investment powers similar to those of trustee's. Conservator has more flexible powers than a guardian.

    Terminates when the child reaches the age of majority or dies before then.
  19. Custodianship
    A custodian is a person who is given property to hold for the benefit of a minor under the Uniform Transfers to Minor Act. A donor can also act as the custodian

    • The custodian has the right to manage the property and to reinvest it. The custodian is a fiduciary and is subject to the standard of care that would be observed by a prudent
    • person dealing with property of another.

    The custodian is not under the supervision of a court, as is a guardian or conservator, and no accounting to the court annually or at the end of the custodianship is necessary, but an interested party may require one if he wishes.
  20. Bars to Sucession:
    What is a slayer?
    What happens to the slayer's share? 
    A slayer is a person convicted as principle or accessary of willful and unlawful killing

    Or found to have committed the crime in a civil action by preponderance of the evidence 

    A Juvenile who is adjudicated delinquent for killing

    Enters plea of guilty or no contest

    Slayer deemed to have predeceased for purposes of succession; share goes to the slayer's heirs 
  21. Bars to Succession: Spouses
    A spouse from whom or by whom an absolute divorce or marriage annulment has been obtained or from whom a divorce from bed and board has been obtained; or

    A spouse who voluntarily separates from the other spouse and lives in adultery and such has not been condoned; or

    A spouse who willfully and without just cause abandons and refuses to live with the other spouse and is not living with the other spouse at the time of such spouse's death; or

    A spouse who obtains a divorce the validity of which is not recognized under the laws of this State; or

    A spouse who knowingly contracts a bigamous marriage

  22. Bars to Sucession: Parents
    Any parent who has willfully abandoned the care and maintenance of his or her child shall lose all right to intestate succession in any part of the child's estate and all right to administer the estate of the child, except

    Where the abandoning parent resumed its care and maintenance at least one year prior to the death of the child and continued the same until its death; or

    Where a parent has been deprived of the custody of his or her child under an order of a court of competent jurisdiction and the parent has substantially complied with all orders of the court requiring contribution to the support of the child.
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Wills and Trust
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