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If all of the decedent’s descendants are also descendants of the surviving spouse, and the surviving spouse has no other descendants, according to the Uniform Probate Code, the surviving spouse takes __________ of the estate.
all
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If the decedent is survived by a parent but no descendant, the surviving spouse takes __________.
$300,000 and 75% of the remainder
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Under the Uniform Simultaneous Death Act, an heir must be proved by __________ to have survived the decedent by __________.
Clear and convincing evidence, 120 hours
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Generally, a posthumously born child must be born within __________ days of the father’s death. Under the UPC, the child must be born within __________ days of the father’s death.
280, 300
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Under what method of calculating shares is the estate split at the first generational level, then split among the first surviving issue within each branch?
Per stirpes
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Which method of distributing shares to issue is followed by the UPC?
Per capita at each generation
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Under the UPC, a decedent __________ disinherit an heir by __________.
may, a properly executed will
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When a testator had possession of his will and that will cannot be found after the testator’s death, the burden is on the __________ to prove the will’s existence or non-existence by __________.
proponent, clear and convincing evidence
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Revocation of a will __________ revoke all codicils; revocation of a codicil __________ revoke the will to which it relates.
does, does not
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What is the correct order of abatement?
Residuary, general bequests, specific bequests
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Under the UPC, __________ evidence will be permitted to aid a court in interpreting a will to resolve __________.
extrinsic, both patent and latent ambiguities
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The __________ rule prevents a party from taking under the decedent’s will when the party __________.
slayer rule, murders the testator
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Under the UPC, an omitted spouse is entitled to
50% of the augmented estate.
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Under the UPC, a forfeiture clause is __________ if __________ exists.
unenforceable, probable cause
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A non-claim statute prevents a(n) __________ from pursuing a claim after a certain time period.
creditor
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A person who has a __________ power of appointment may enter into a contract, agreeing to exercise the power in a particular way.
Lifetime
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A __________ trust is one in which the trustee is __________ to make distributions to the beneficiary.
mandatory, required
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What is the person who creates a trust called?
Settlor
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A(n) __________ trust is one that is created __________.
inter vivos, during the settlor’s life
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A __________ trust is imposed when the beneficiary is __________ of the settlor’s bounty.
Purchase-money resulting trust, not the natural object
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When does a resulting trust occur?
When a trust, or part of a trust, fails and the assets are given back to the settlor or his estate.
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What is created if the trustee is given complete discretion regarding whether to make payments to the beneficiary?
discretionary trust
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If the settlor is not alive, the trust can be terminated if the __________ consent(s) and the trust has no __________ remaining to be fulfilled.
beneficiaries, material purpose
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Under the old rule, the life beneficiary was entitled to __________ and the remainder interest holder was entitled to __________.
income, principal
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A __________ is a future interest held by the __________ following a life estate.
reversion, grantor
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A __________ executory interest divests the __________.
springing, grantor
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A fee simple determinable is followed by a
possibility of reverter.
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How does the UPC distribute by intestacy if:
o All of decedent’s descendants are also descendants of SS, and SS has no other descendants, or
o Decedent (D) has SS, but no descendants or parents
Surviving spouse (SS) takes the entire estate
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How does the UPC distribute by intestacy if:
No descendant of D survives D, but D has a surviving parent
SS takes $300,000 and 75% of the remainder of the estate
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How does the UPC distribute by intestacy if:
All of D’s issue are also issue of SS, and SS has other issue
SS takes $225,000 and 50% of the remainder of the estate
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How does the UPC distribute by intestacy if:
D has issue not related to SS
SS takes $150,000 and 50% of the remainder of the estate
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How is community property divided upon death?
- all property acquired during the marriage is jointly owned by both spouses unless it is gift, inheritance, or devise given to only one spouse
- • CP is divided equally—SS owns 50% of CP outright
- • If D dies intestate, then D’s 50% of CP is given to SS and D’s separate property (SP) is then distributed pursuant to the general intestacy scheme
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What is the requirement for a surviving spouse to take under a will or inhereit
- • Common law—must have survived D for any length of time
- • Uniform Simultaneous Death Act (USDA)
- o 120-hour rule—must have survived D by 120 hours
- o Insufficient evidence of order of death—the property of each individual passes as though the other individual predeceased him
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How are posthumously born children treated for the purpose of taking by intestacy or under a will
- rebuttable presumption: the child is the child of the deceased husband if the child is born within 280 days of his death
- If born out of wedlock, they are not recognized as child of the deceased parent.
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What is the modern trend for children born out of wedlock to inherit?
- cannot inherit from the natural father unless:
- The father subsequently married the natural mother;
- The father held the child out as his own and lived with the child or provided support;
- Paternity is proven by clear and convincing evidence after the father’s death; or
- Paternity is adjudicated during the father’s lifetime by a preponderance of the evidence
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How does the Uniform Parentage Act treat children born out of wedlock for the purpose of inheritance?
- requires proof of paternity for a child to inherit
- When a father holds a child out as his own—presumption of paternity; the child can bring an action to establish paternity at any time
- Otherwise—no presumption of paternity; the child must bring an action within three years of reaching the age of majority
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Per capita with representation is calculated by:
- o Property is divided equally among the first generation with at least one living member
- o The share of a non-living member of that generation passes to the living issue of that member
- o Non-living member with no living issue—no property is allocated to the non-living member
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Under the Uniform Simultaneous Death Act, an heir must be proved by __________ to have survived the decedent by __________.
Clear and convincing evidence, 120 hours
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A non-claim statute prevents a(n) __________ from pursuing a claim after a certain time period.
creditor
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Under the UPC, __________ evidence will be permitted to aid a court in interpreting a will to resolve __________.
extrinsic, both patent and latent ambiguities
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Which method of distributing shares to issue is followed by the UPC?
Per capita at each generationn
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Under what method of calculating shares is the estate split at the first generational level, then split among the first surviving issue within each branch?
per stirpes
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A person who has a __________ power of appointment may enter into a contract, agreeing to exercise the power in a particular way.
Lifetime
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A trust is presumed ____________, unless the trust document states otherwise.
irrevocable
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A Mandatory Trust:
Trustee must make distributions from the trust. Trustee has no discretion.
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Discretionary Trust:
- Trustee may make distributions in her discretion. Trustee has complete discretion as to whether she will make a distribution.
- Creditors cannot reach trust property, because beneficiary cannot demand payment
- Creditors can reach when trustee makes payment
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What is a "pour-over trust?"
a provision in a will that directs the distribution of property to a trust upon the happening of an event, even if the trust instrument was not executed in accordance with the Statute of Wills, as long as the trust is identified in the will and its terms are set forth in a written instrument
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