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What is NC default rule for intestacy distribution?
per capita at each generation
What is per capita at each generation?
- estate divided into as mny shares are there are surviving descendants in the nearest degree of kinship that contains any surviving descendants or deceased descendants leaving issue
- surviving descendants nearest degree allocated one share
- remainder divided in same manner at the next nearest degree with survivors
What is per capita by representation?
- divided into as many equal shares as there are surviving descendants in nearest degree of kinship and deceased person in same degree eaving issue
- surviving heir in nearest degree one share
- share of each deceased person divided among his issue
What is per stirpes?
- divided into shares at first generation below the decedent even if all dead
- one share allocated to each member of that generation alive and deceased
- trickles down and division continues until someone receives the shares
What is the share of surviving spouse if spouse and one child survive?
- 1/2 undivided interest in real property
- first $30,000 + 1/2 personal property
What is the share of surviving spouse if spouse and mroe than 1 child survive?
- 1/3 undivided interest in real property
- first $30,000 + 1/3 personal property
What is share of surviving spouse if spouse and parent survive?
- 1/2 undivided interest in real property
- first $50,000 + 1/2 personal property
What is share of surviving spouse if only spouse survives?
all real and personal property
What is the elective life estate in lieu of intestate share?
surviving spouse may elect to take a life estate in 1/3 value of all real estate owned outrigh by decedent alone at any time during the marriage
What is exempt from the elective life estate?
- real estate surviving spouse waived
- real estate SS released or quitclaimed
- real estate SS not required by law to join in conveyance
- real estate SS otherwise not legally entitled to
What is the dwelling place rule?
SS may choose a life estate in the dwelling house occupied by SS and fee simple ownership of the household furnishings
When must SS fie notice of election if taking elective share?
- w/in 12 months if no administrator
- w/in 1 month after expiration of time to file claims against estate if administrator
The share of estate not distributed to SS is first distributed to whom?
children and their descendants by representation
If there ae no children/issue, who gets their share of the estate?
- parents of decedent equally
- if either parent dead the surviving parent takes it all
If there are no children or living parents, who gets their share of the decedent's estate?
brothers and sisters and their descendants by representation
If there are no children, living parents, and no siblings, who gets their share of the estate?
grandparents and their descendants take by representation
What is the limitation on lineal succession in intestacy?
What is the limitation on collateral succession in intestacy?
no right of succession more than 5 degrees of kinship removed if there are any surviving collateral kin w/in 5th degree
Who do adoptive children inherit from?
adoptive parents in same manner as natural legitimate children
Do biological parents and children inherit from each other if the child has been adopted by someone else?
If a child born out of wedlock hasn't been legitimated, what are the rules of intestacy inheritance?
- treated as legitimate child of mother
- treated as legitimate child of father if paternity has been established or child has been acknowledged
What share is an illegitimate person's SS entitled to?
same as the SS of a legitimate person
A parent who willfully abandoned a mnior child forfeits all rights to intestate succession and all rights to administer the child's estate unless what?
- resumed care/maintenance of child at least 1 year prior to death and continued until child's death
- deprived of custody of child by court order and has substantially complied with all orders
How are missing heirs dealt with in intestacy?
personal rep may deliver the share of such heirs to the clerk of superior court which may be claimed w/in 1 year of deposit by missing heir
What happens to property belonging to a missing heir after 1 year passed since its deposit with clerk of superior court?
deemed abandoned and transferred to state treasurer
What happens to amount recovered in wrongful death action?
- doesn't become part of the estate and passes thru intestacy
- recovery for pain and suffering is part of estate passing either by will or intestacy
What is an advancement?
- property given inter vivos to an heir, by an intestate
- deducted from heir's share
- ONLY applies in intestacy
What must a person who has received an advancement do if he wishes to participate in the distribution of the estate?
go into hotchpot by figuratively returning the advancement to the estate and distribution determined with its addition
What happens when value of advancement equals or exceeds the recipient's intestate share?
- receives nothing
- doesn't have to refund anything
What happens if the advancement is less than recipient's intestate share?
entitled to receive the difference
If the money or property given to heir created a debt rather than an advancement, what must the recipient do?
repay the entire amoun regrdless of the size of the heirs intestate share
What happens if recipient of advancement decides not to go into hotchpot?
barred from participating in distribution of estate
From when is the valuation of advancement measured?
- when recipient came into possession or enjoyment
- OR time of intestate's death
- whichever happens first
What happens if the recipient of the advancement fails to survive the decedent?
propertyadvanced shall be taken into account in determining the share of any lineal heir of the recipient
What is the rule under the Uniform Simultaneous Death Act?
person must have survived decedent by 120 hours (5 days) otherwise treated as predeceasing the decedent for distribution purposes
If all beneficiaries die such that impossible to determine the order and disposition depends on priority of death, what is the result?
shares are distributed equally to all the beneficiaries's estates
What is the result when a gift to a class is definedas those surviving another person and one or more members die simultaneously with the person defining the class?
each member of the class deemed to have survived that person
How is property distributed if no sufficient evidence that 2 JT or TE died other than simultaneously?
- 1/2 as if one survived
- 1/2 as if the other survived
How old must a person be to have legal capacity to make a will?
What is the mental state requirement for making a will?
- testamentary intent - intend doc to act as will
- testamentary capacity - sound mind at time of execution
What are the 5 elements to testamentary capacity?
- understand that dc to be signed is a will
- understand that the effect of the doc is to distribute proeprty after death
- know the nature/extent of proeprty subject to distribution
- know the natural objects of the testator's bounty
- comprehend the 4 previously mentioned elements at same time
What is NC presumption regarding person's capacity to make a will?
every person has sufficient mental capacity to make a valid will
What is an attested will?
- one signed by the testator and at least 2 competent witnesses
- T must sign either in the presence of W or by acknowleding his signature to them
What is the line of sight test regarding witness to an attested will?
must sign in the presence of the T but need not sign in the presence of each other
Who is an interested witness?
one having a pecuniary interest under the will
What is the result if there are fewer than 2 disinterested witnesses to a will?
interested witnesses take nothing under the will
How may a will be self-proved?
- acknowledgment that free and voluntary act
- at least 18 years of age and of sound mind acting under no constraint or undue influence
What are the requirements for a valid holographic will?
- in the T handwriting
- T signed the will
- will was found after T death among T valuable papers or effects
- no attesting witnesses required
A holographic will may be probated only upon what?
- testimony of at least 3 competent W that will and signature are in T handwriting
- testimony of 1 W to statement of facts showing that will was found after T death
If a beneficiary testifies regarding a holographic will, does he forfeit his benefit?
What are the requirements for a nuncupative will?
- person suffering from a final sickeness or imminent peril of death
- person doesn't survive
- T declares statement to be his will before 2 competent W simultaneously present and specifically requested
When must a nuncupative will be probated?
w/in 6 months of time it was made unless it was reduced to writing w/in 10 days of its making
What is a codicil?
- addition to or alteration of a will
- must be executed with same formalities as a will
What is the effect of a codicil?
- republishes will as of the date of the codicil
- modifies UNLESS express language of revocation or inconsistencies b/t codicil and will
What happens if the codicil and will are inconsistent?
inconsistencies reconciled as much as possible to avoid, or at least limit, an implied revocation of the will provisions
What are the requirements for incorporation by reference?
- separate doc in existence at time will executed
- will refers to the separate doc with sufficient certainty to identify it
- doc meets such description
What are the requirements for conditional wills or gifts?
- clear on its face
- complies with formal requirements of a will
- no extrinsic evidence allowed to make facially valid will conditional
- condition is an event indp of the making of the will
What are the only allowable methods of revoking a will?
- by subsequent written will, codicil, or other revocatory writing executed under written will formalities
- being burnt, torn, canceled, obliterated, or destroyed with intent to revoe by T
What happens to a provision in favor of an ex-spouse after divorce?
- the provision of the will is revoked but the rest of the will still valid
- revived by subsequent remarriage to the former spouse
Is a will revoked by a subsequent marriage of the maker?
- SS may petition for an elective share when there is a will made prior to marriage
What is the presumption regarding lost wills?
where will was once in existence and last seen in possession of T but couldn't be found after his death, presumed that it was destroyed by his consent with intent to revoke
What does the presumption regarding lost wills impose upon the person asserting the will?
- burden of proving that it wasn't so destroyed, or that T wasn't of sound mind at time of such presumed destruction
- if successful then copy of will may be probated in place of the original
What is the mental capacity required to revoke a will?
same as to make a will
What is the Dependent Relative Revocation doctrine?
- where old will is revoked with intent that newly executed will shall replace it and new will isn't valid, the old will remains in effect
- 2 wills must have similar provisions
How may a revoked will be revived?
- re-execution of the will
- execution of another will or codicil that incorporates the revoked will by reference
What is a contractual will?
- one executed pursuant to a separate K to make a gift or not to revoke a will
- must clearly state the requirements of the will
- takes effect in same manner as any other K (subject to SoF and must be supported by consideration)
What is a joint will?
exectued by 2 or more T that is intended to serve as the will for all who signed it
What is a mutual will?
separate wil executed by 2 or more persons with reciprocal provisions for distribution of assets
Does the execution of a joint or mutual will create a presumption of a K not to revoke the will?
no therefore freely revocable and its provisions won't be strictly enforceable
What are reciprocal wills?
wills containing similar provisions regarding the distribution of property to the other T
What are the rules of construction regarding wills?
- T intention governs
- testacy presumed
- devise presumed to be in fee simple
What are patent ambiguities?
- appear on face of will and must be resolved w/in the 4 corners of the instrument
- extrinsic evidence not admissible
What are latent ambiguities?
- arise when language of the will, otherwise clear, is applied to the thing given or the person benefited
- extrinsic evidence admissible b/c required to property interpret the will
What is ademption by extinction?
- property specifically bequeathed or devised isn't in the T estate at time of T death then gift fails
- applies only to specific bequests/devises
What is ademption by satisfaction?
- property given by T inter vivos may be treated as satisfaction of testamentary gift
- look to intent of T and surrounding circumstances
In NC, what is the presumption regarding inter vivos gifts by a parent to a child?
presumed to be in satisfaction of a testamentary gift
In NC, when will a lien be exonerated against property before disribution?
when clear intention present in the will
What is CL lapse?
gift to person who predeceases the T fails and if no alternative beneficiary named it falls into the residue of the T estate or passes thru intestate
What is the anti-lapse statute?
a gift to a deceased or renouncing beneficiary passes to the issue of the beneficiary only if the devisee is a grandparent or a descendant of a grandparent of the T
Can the creditors of a deceased devisee rec the devised property?
no b/c it passes directly from T to the substitute taker
Under the anti-lapse statute, what happens if a class member dies w/o qualified heirs?
other members of the class will receive a proportionately larger share
Who qualifies as a slayer under the slayer statute?
- one who is found guilty, pled guilty, or nolo contendre to willfully and unlawfully kills another person
- found by PoE in civil action brought w/in 2 years after death
Does the term slayer include someone found not guilty by reason of insanity?
Under the slayer statute, the slayer is deemed to what?
died immediately before the decedent and therefore receives nothing from the estate
If the slayer would have recovered under intestacy and has living issue, what is the result?
property distributed to issue per stirpes
What is the result if slayer and V held property as TE?
- 1/2 property immediately passes to decedents estate
- slayer retains life estate in other half
- slayer dies the property passes to V heirs
What is the result if slayer and V held property JT with RoS?
- V sare passes immediately to V estate
- slayer shall have use of the property and be entitled to the income during slayer's lifetime
If a 3P obtains property from slayer that would hav been the slayer's except for the slayer statute, the 3P is protected if what?
- acquired in good faith
- adequate consideration
- w/o notice
- b4 sayer's interests were adjudicated
The instrument of renunciation shall contain what?
- identify transferor, interest, or creator of the property
- describe property/interest renounced
- declare the renunciation
- signed and acknowledged
When must the renunciation of a present interest be filed?
w/in 9 moths of decedent's death
When does abatement arise?
when assets of T estate are insuffcient to pay creditors and the devises under the will
If the will doesn't indicate the order in which assets of the estate should be paid toward debts, how are they abated?
- property not disposed of by the will
- residuary devises
- general devises
- specific devises
What is a caveat?
challenge to validity of will
What are the gronds for will contest?
- lack of testamentary capacity
- undue influence
What are the factors for undue influence that must be proven in a will contest?
- person who is subject to influence
- opportunity to exert influence
- disposition to exert influence
- result indicating undue influence
What are 2 types of fraud regarding wills?
- fraud in inducement
- fraud in the execution
What is fraud in the inducement?
- proof that beneficiary knowingly mae a false rep to the T to induce the T to draw a will in the beneficiary's favor
- T did so as a result of fraud
What is fraud in the execution?
fraud as to the very nature of an instrument or contents
What is mistake in the inducement?
- mistake as to facts outside of the will that induce T to dispose of property in certain manner
- provisions not set aside
What is mistake in the factum?
- mistake in the will itself
- goes to T testamentary capacity then will invalid
What are no contest clauses?
- provision requiring any beneficiary who contests the will to forfeit the gift
- petition brought in GF doesn't result in forfeiture
Who has standing to contest a will?
interested person - one with pecuinary interest in the matter
What are the elements for a gift?
- present donative intent
- delivery - actual or constructive
- acceptance by donee
What are 3 types of conditional gifts?
- contemplation of marriage
- by an infant subject to condition subequent that infant may disaffirm
- revocability of gift by causa mortis
What is a gift causa mortis?
given in fear of imminent death but recovers and wants property back
What is probate?
procedure by which court decides the validity of the instrument before the court and ascertains whether it is the last will of the deceased
Who is responsible for probate of a will?
clerk of superior court
What is the time limit for filing a will for probate?
w/in 2 years after death of T
What is the time limit for filing caveat to will after probate?
w/in 3 years
Who isn't qualified to serve as personal representative regarding a will?
- under 18
- adjudged incompetent
- convicted felon
- nonresident of NC
- corp not authorized to act as PR
- otherwise unsuitable
- reonounced either expressly or by implication
When does appointment as PR terminate?
- on order of the court or clerk of superior court
- death of PR
- appointment of a conservator for PR
An adminstrator of intestate estate must post bond unless what?
- all heirs over 18 and agreed to waiver in writing
- administrator is sole heir
- sole purpose of appointment is to bring wrongful death action
What are the duties of PR?
- settle and distribute decedent's estate
- collect and manage estate assets
How is the spouse's elective share calculated?
on total assets minus value of property passing to SS
When does SS lose right to receive a share under the Intestate Succession Act
- absolute divorce, annulment, divorce from bed and board
- voluntarily left decedent and lived in adulterous relationship not condoned
- willfully abandoned and refused to live with decedent until death
- divorce not recognized in NC
- knowlying contracted a bigamous marriage
The SS and children are entitled to a statutorily set payment for support for how long?
1 year after decedent's death
What is the allowance for spouse?
$20,000 for 1 year after death
What is the allowance for children?
- $2000 for one year if:
- under 18
- under 22 and full time student
- under 21 and mentally incompetent or totally disabled
- under 18 and residing with decedent at time of death
What are the factors considering regarding whether to increase the amount of allowance?
- size of estate
- previous standard of living
- other available assets
Does the birth or adoption of a child revoke a previously executed will?
An excluded child is entitled to share equal to share child would have received had the T died intestate unless what?
- provision in the will for the child
- intentionally omitted
- children living when will was executed take nothing under will
- SS receives all of the estate
- other provision for the child takes effect on T death