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Decedent's Estates Mnemonics

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Decedent's Estates Mnemonics DECEDENT’S ESTATES MNEMONICS WILLS 1) A valid will must be SWEPT: S – SIGNED by an adult testator W – In WRITING E – Signed at the END by the testator P – PUBLISHED T – TWO witnesses (who don’t have to be adults) 2) A will contest can TIE the executor’s hands: T – Lack of TESTAMENTARY capacity I – Undue INFLUENCE an Fraud E – Improper EXECUTION (improperly SWEPT) 3) A will is valid in any jurisdiction, if valid and executed by a SWEDE-P: UPC § 2-506 & Restatement, Third of Property (Will(s) § 3.1(c) S – SIGNED by the testator W – In WRITING (no nuncupative wills except for military personal), and the will was properly executed in accordance with the laws of EDE – P E – The state where it was EXECUTED D – The testator’s domicile at DEATH E – The testator’s domicile when he EXECUTED the will P – The law where the will is being PROBATED 4) I FACE SIR sidesteps an in terrorem (“no contest”) clause: I – An INFANT can always object to a will without violating a no contest clause F – Litigating to establish the will as a FORGERY, but only if based on probable cause A – Demanding an ACCOUNTING or questioning the conduct of the fiduciary C – Petitioning for a CONSTRUCTION of a will provision to determine the testator’s intent E – Surviving spouse exercising the right of ELECTION S – Objecting to SUBJECT matter jurisdiction or the court’s jurisdiction over the will I – A person judicially declared INCOMPETENT can object to the will without violating the no contest clause R – Where the will offered for probate was REVOKED by a later will, based on probable cause © 2016 Pieper Bar Review 1 5) DAMN CAR LAW can alter an existing will: D – DIVORCE A – AFTER-BORN children M – MARRIAGE of the testator N – NO CONTEST CLAUSE breach C – CY PRES of charitable bequests A – ADVANCEMENT of a bequest aka a satisfaction R – RENUNCIATION by a beneficiary L – LAPSED legacies (but always consider the Anti-Lapse Statute) A – ADEMPTION or abatement W – WRONGFULLY killing the testator 6) If a surviving spouse can JAG TIP increases the right of election: J – Post-marriage JOINTLY-HELD bank accounts, stock brokerage accounts, U.S. savings bonds, or jointly-held personal property, but only to the extent that consideration was furnished by the decedent A – Stock ACCOUNTS or DEEDS payable on death. G – GIFTS causa mortis T – Revocable lifetime TRUSTS or Totten Trusts I – INTER VIVOS gifts, even to charity, exceeding $14,000 if made within the one year prior to the testator’s death (absent written waiver by other spouse) UPC § 2-202 P – General POWER of Appointment 7) A beneficiary who uses I-DROPS is deemed to predecease the testator: I – INTERROREM clause breach D – DIVORCE or Annulment decrees R – RENUNCIATION O – Death within ONE hundred and 20 hours from testator’s death P – PREDECEASES testator S – SLAYS the testator 8) AL SIGH to use the anti-lapse statute: ANTI-LAPSE – SIBLING or ISSUE of testator, and in some states (UBE § 2-603) the testator’s GRANDPARENTS’ HEIRS: uncles, aunts and cousins 9) A judgment of Divorce, or Annulment, impliedly revokes the survivorship interest of the former spouse named in TRIP JAW: UPC § 2-804 1. A TOTTEN trust 2. A REVOCABLE lifetime trust 3. A life INSURANCE policy 4. A PENSION plan (if not inconsistent with federal pension plan law) 5. A JOINTLY held realty or a joint bank account 6. A power of ATTORNEY 7. A WILL © 2016 Pieper Bar Review 2 10) A killer is permitted to acquire property from the victim’s estate if the killing was in SIN: S – Done in SELF-DEFENSE I – The killer was INSANE at the time of the homicide N – The homicide was accidental (NEGLIGENT homicide) 11) DIE rights of a surviving spouse are defeated by a DIVA: D – Wrongful DEATH proceeds from the other spouse’s death I – INTESTATE share where the deceased spouse had no will E – Right of ELECTION against the deceased spouse’s will D – A DIVORCE or ANNULMENT V – A VOID marriage (bigamous or incestuous) I – The surviving spouse, had earlier obtained an INVALID DIVORCE decree outside the state A – ABANDONMENT by the surviving spouse without the other spouse’s consent, which continued until the spouse’s death INTESTATE SUCCESSION Rule 1. If the decedent died with a surviving spouse and surviving minor or adult issue, and those issue are also descendants of the surviving spouse, then the surviving spouse takes 100%. This is sensible because people who die intestate tend to leave small estates. Thus, a surviving spouse having to raise her or his minor children will need as much financial assistance from the deceased spouse as is available. UPC § 2-102. Unlike a surviving spouse’s elective share against a deceased spouse’s will which is dependent on the length of the marriage, the length of a marriage for intestacy purposes is irrelevant. Rule 2. Intestate distribution is affected by our multiple marriage society. If the decedent dies intestate with a surviving spouse and only surviving issue who are not descendants of the surviving spouse (they are out of wedlock children or from the decedent’s prior marriage, i.e., the surviving spouse’s stepchildren), then as we recall from the movie Cinderella, since a stepparent is not as likely to treat stepchildren as favorably as biological children then the surviving spouse gets the first $150,000 plus one-half of any balance while the surviving spouse’s stepchildren receive the other half of the balance. UPC § 2-102(B)(4). Thus, if the decedent died with a net estate of $150,000 or less, the surviving spouse receives the entire estate and the surviving spouse’s stepchildren receive nothing. If the decedent left issue, some of who are also the issue of the surviving spouse and some of who are not, then the surviving spouse takes the first $225,000 while one-half of the balance is distributed to the decedent’s surviving issue. Rule 3. If a parent, parents, or issue does not survive the decedent, then 100% of the decedent’s estate passes to the surviving spouse. © 2016 Pieper Bar Review 3 Rule 4. If a decedent was survived by a parent or parents and a surviving spouse, but no issue, then the surviving spouse takes the first $300,000 plus three-fourths (3/4) of the balance and the parent(s) gets one-fourth (1/4) of that balance. Rule 5. If a decedent had no surviving spouse but was survived by issue, then the issue takes 100% of the estate by representation. Rule 6. If the decedent left no surviving spouse and no issue, but left a parent or parents, then 100% of the estate passes to the surviving parent or parents. Rule 7. If decedent left no surviving spouse, no issue (no children, grandchildren or great grandchildren), and no parent, then the decedent’s estate passes to the issue of the decedent’s parents by representation, e.g., the decedent’s siblings, nephews, or nieces. Any intestate property passing to the decedent’s issue or siblings passes by representation. If all class members (e.g., children or siblings) are alive, then they equally divide the intestate estate. However, if some members of the class have predeceased the decedent leaving issue (e.g., grandchildren or nephews and nieces or grandnephews and grandnieces of the testator) who survive the decedent, such issue will share the predeceased distributee’s portion of the intestate estate by representation. UPC § 2-106. Rule 8. If decedent died without a surviving spouse, issue, parent, or anyone who would be classified as issue of the decedent’s parents, then the decedent’s estate is divided in half with one half distributed to the decedent’s paternal grandparents or grandparent and the other half distributed to the maternal grandparents or grandparent and, if none survive, their respective shares pass down to their issue (the decedent’s paternal or maternal uncles, aunts, cousins (i.e., the decedent’s grandparents’ grandchildren)). If heirs exist on only one grandparent’s side of the family, those heirs inherit 100%. If no heirs are found on either the paternal or maternal side, then the estate escheats to the state, but only if the decedent did not have stepchildren from a predeceased spouse who would then take the intestate estate (even though they are not the decedent’s heirs) rather than having the intestate estate escheat to the state. UPC § 2-103(b). Most states do not go further (up to great grandparents and their issue) because of the extraordinary effort, time, and expense involved in locating such distant heirs. Such heirs (e.g., second cousins) are referred to as “laughing heirs,” because upon being located and told they are inheriting from a distant relative, such distant heirs don’t cry with grief. Instead, they laugh all the way to the bank to cash their inheritance checks. © 2016 Pieper Bar Review 4 .
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