FSP Wills

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

• 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

• 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

• 1/2 undivided interest in real property
• first $30,000 + 1/2 personal property

• 1/3 undivided interest in real property
• first $30,000 + 1/3 personal property

• 1/2 undivided interest in real property
• first $50,000 + 1/2 personal property

all real and personal property

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

• 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

SS may choose a life estate in the dwelling house occupied by SS and fee simple ownership of the household furnishings

• w/in 12 months if no administrator
• w/in 1 month after expiration of time to file claims against estate if administrator

children and their descendants by representation

• parents of decedent equally
• if either parent dead the surviving parent takes it all

brothers and sisters and their descendants by representation

grandparents and their descendants take by representation

no limit

no right of succession more than 5 degrees of kinship removed if there are any surviving collateral kin w/in 5th degree

adoptive parents in same manner as natural legitimate children

no

• treated as legitimate child of mother
• treated as legitimate child of father if paternity has been established or child has been acknowledged

same as the SS of a legitimate person

• resumed care/maintenance of child at least 1 year prior to death and continued until child's death
• OR
• deprived of custody of child by court order and has substantially complied with all orders

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

deemed abandoned and transferred to state treasurer

• 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

• property given inter vivos to an heir, by an intestate
• deducted from heir's share
• ONLY applies in intestacy

go into hotchpot by figuratively returning the advancement to the estate and distribution determined with its addition

• receives nothing
• doesn't have to refund anything

entitled to receive the difference

repay the entire amoun regrdless of the size of the heirs intestate share

barred from participating in distribution of estate

• when recipient came into possession or enjoyment
• OR time of intestate's death
• whichever happens first

propertyadvanced shall be taken into account in determining the share of any lineal heir of the recipient

person must have survived decedent by 120 hours (5 days) otherwise treated as predeceasing the decedent for distribution purposes

shares are distributed equally to all the beneficiaries's estates

each member of the class deemed to have survived that person

• 1/2 as if one survived
• 1/2 as if the other survived

18

• testamentary intent - intend doc to act as will
• testamentary capacity - sound mind at time of execution

• 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

every person has sufficient mental capacity to make a valid 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

must sign in the presence of the T but need not sign in the presence of each other

one having a pecuniary interest under the will

interested witnesses take nothing under the will

• acknowledgment that free and voluntary act
• AND
• at least 18 years of age and of sound mind acting under no constraint or undue influence

• in the T handwriting
• T signed the will
• will was found after T death among T valuable papers or effects
• no attesting witnesses required

• testimony of at least 3 competent W that will and signature are in T handwriting
• AND
• testimony of 1 W to statement of facts showing that will was found after T death

no

• orally
• 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

w/in 6 months of time it was made unless it was reduced to writing w/in 10 days of its making

• addition to or alteration of a will
• must be executed with same formalities as a will

• republishes will as of the date of the codicil
• modifies UNLESS express language of revocation or inconsistencies b/t codicil and will

inconsistencies reconciled as much as possible to avoid, or at least limit, an implied revocation of the will provisions

• separate doc in existence at time will executed
• will refers to the separate doc with sufficient certainty to identify it
• doc meets such description

• 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

• 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

• the provision of the will is revoked but the rest of the will still valid
• revived by subsequent remarriage to the former spouse

• no
• SS may petition for an elective share when there is a will made prior to marriage

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

• 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

same as to make a will

• 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

• re-execution of the will
• execution of another will or codicil that incorporates the revoked will by reference

• 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)

exectued by 2 or more T that is intended to serve as the will for all who signed it

separate wil executed by 2 or more persons with reciprocal provisions for distribution of assets

no therefore freely revocable and its provisions won't be strictly enforceable

wills containing similar provisions regarding the distribution of property to the other T

• T intention governs
• testacy presumed
• devise presumed to be in fee simple

• appear on face of will and must be resolved w/in the 4 corners of the instrument
• extrinsic evidence not admissible

• 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

• 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

• property given by T inter vivos may be treated as satisfaction of testamentary gift
• look to intent of T and surrounding circumstances

presumed to be in satisfaction of a testamentary gift

when clear intention present in the will

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

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

no b/c it passes directly from T to the substitute taker

other members of the class will receive a proportionately larger share

• 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

no

died immediately before the decedent and therefore receives nothing from the estate

property distributed to issue per stirpes

• 1/2 property immediately passes to decedents estate
• slayer retains life estate in other half
• slayer dies the property passes to V heirs

• V sare passes immediately to V estate
• slayer shall have use of the property and be entitled to the income during slayer's lifetime

• acquired in good faith
• adequate consideration
• w/o notice
• b4 sayer's interests were adjudicated

• identify transferor, interest, or creator of the property
• describe property/interest renounced
• declare the renunciation
• signed and acknowledged

w/in 9 moths of decedent's death

when assets of T estate are insuffcient to pay creditors and the devises under the will

• property not disposed of by the will
• residuary devises
• general devises
• specific devises

challenge to validity of will

• lack of testamentary capacity
• undue influence
• fraud
• mistake

• person who is subject to influence
• opportunity to exert influence
• disposition to exert influence
• result indicating undue influence

• fraud in inducement
• fraud in the execution

• 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

fraud as to the very nature of an instrument or contents

• mistake as to facts outside of the will that induce T to dispose of property in certain manner
• provisions not set aside

• mistake in the will itself
• goes to T testamentary capacity then will invalid

• provision requiring any beneficiary who contests the will to forfeit the gift
• petition brought in GF doesn't result in forfeiture

interested person - one with pecuinary interest in the matter

• present donative intent
• delivery - actual or constructive
• acceptance by donee

• contemplation of marriage
• by an infant subject to condition subequent that infant may disaffirm
• revocability of gift by causa mortis

given in fear of imminent death but recovers and wants property back

procedure by which court decides the validity of the instrument before the court and ascertains whether it is the last will of the deceased

clerk of superior court

w/in 2 years after death of T

w/in 3 years

• under 18
• adjudged incompetent
• convicted felon
• nonresident of NC
• corp not authorized to act as PR
• illiterate
• otherwise unsuitable
• reonounced either expressly or by implication

• on order of the court or clerk of superior court
• death of PR
• appointment of a conservator for PR

• all heirs over 18 and agreed to waiver in writing
• administrator is sole heir
• sole purpose of appointment is to bring wrongful death action

• settle and distribute decedent's estate
• collect and manage estate assets

on total assets minus value of property passing to SS

• 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

1 year after decedent's death

$20,000 for 1 year after death

• $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

• size of estate
• previous standard of living
• other available assets

 no

• 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