NC Wills - Lists

22 terms by aecolvin

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Requirements for a Witnessed Will:

- (1) T must be 18 or older.
- (2) Testamentary intent.
- (3) T must sign will.
- (4) In the presence of 2 witnesses.
- (5) Who sign will in T's presence.

Requirements for a Holographic Will:

- (1) Entirely in T's handwriting.
- (2) Either signed by T or name appears on will.
- (3) Found in a "safe place."

A nuncupative (oral) will is valid to dispose of personal property of unlimited value provided:

- (1) It is spoken in T's last illness,
- (2) Before two disinterested witnesses,
- (3) T dies from the illness, AND
- (4) It is offered for probate within 6 months of when T spoke it, OR one of the witnesses reduces the statement to writing within 10 days of when T spoke it.

To be admitted to probate, a typewritten will must be proved by the testimony of TWO ATTESTING WITNESSES who testify as to:

- (1) T's sound mind,
- (2) T's signature, and
- (3) Witnesses' attestation in T's presence.

To be valid, a physical act of revocation done by another must be:

- (1) At T's request, and
- (2) In T's presence.

NC "lost wills" statute requires:

- (1) Due execution must be proved in the normal way.
- (2) Contents of will must be clearly and distinctly proved by either a copy of the will or the testimony of a witness.
- (3) Absence of the will must be explained.
o Must overcome presumption of revocation.

Once a Will is revoked, there are ways in which it may be REVIVED:

- (1) Re-execution
- (2) Republication by codicil
- (3) DEPENDENT RELATIVE REVOCATION

Any document extrinsic to a valid will can be incorporated by reference if:

- (1) Extrinsic writing must be in existence when the Will was executed;
- (2) Will must show an intent to incorporate the writing; and
- (3) Will must describe the writing with reasonable certainty, so that there can be no mistake as to the document referred to in the Will.

Abatement of Legacies: Claims are first paid out of PERSONAL PROPERTY in the following order:

- (1) Intestate property.
- (2) Residuary estate.
- (3) General legacies.
- (4) Demonstrative legacies.
- (5) Specific bequests.

Statutory Exceptions to the Ademption Doctrine:

- (1) Reward/Insurance
- (2) Happening after T becomes incompetent
- (3) Bequest of Securities

If T dies intestate, survived by spouse and parent but no issue, spouse takes:

- (1) ½ interest in real property,
- (2) The first $50,000, AND
- (3) ½ of balance of personal property.

If T dies intestate survived by spouse and only 1 line of lineal descent, spouse takes:

- (1) ½ interest in real property,
- (2) The first $30,000, AND
- (3) ½ of balance of personal property.

If survived by spouse and more than one line of lineal descent, spouse takes:

- (1) 1/3 interest in real property
- (2) The first $30,000, AND
- (3) 1/3 of balance of personal property.

SHARE NOT GOING TO SPOUSE OR ALL OF ESTATE IF NO SPOUSE SURVIVES

- (1) All to issue, if any.
- (2) If no issue, then to surviving parents.
- (3) If no issue or parents, to siblings or their issue.

Illegitimate children cannot inherit from their father unless:

- (1) Legitimized by marriage.
- (2) Formal acknowledgement by father.
- (3) Adjudication of paternity before death.

If you are asked to discuss the rights of a surviving spouse, consider:

- (1) SS's right to a year's allowance.
- (2) SS's right to an elective share.
- (3) Reduction for property passing to SS.

Net assets is the sum of the probate estate PLUS:

- (1) Property other than wrongful death proceeds payable to the decedent's personal representative because of the decedent's death.

- (2) ½ of any right of survivorship property held by the decedent and spouse, and ALL of any right of survivorship property held by the decedent and other persons.

- (3) Donative transfers made by the decedent during life where the decedent retained either the right to the income or the possession of the property or the decedent retained the right to revoke the transfer.

- (4) Gifts (to the extent that they exceed $10,000 per donee) made without the spouse's consent during marriage to persons other than the spouse within the 6-month period before decedent's death.

The elective share as determined above is reduced by the sum of the following:

- (1) ½ the value of property passing to the spouse by right of survivorship.

- (2) Property (other than Social Security Benefits) passing to the spouse under the decedent's will, by intestacy, or by beneficiary designation, including life insurance.

- (3) The year's allowance awarded to the SS.

- (4) The value of any gifts made to the spouse by the decedent for which a gift tax return was filed.

- (5) The value of any property passing in trust for the exclusive benefit of the spouse during the balance of his or her lifetime, but only if the trust has a non-adverse trustee.

- (6) The net value of the marital estate awarded to the spouse after decedent's death.

As an alternative to the elective share, SS has a right to take statutory dower, which includes:

- (1) A LE in the usual dwelling house + absolute ownership of household furnishings; OR

- (2) A life estate in 1/3 of all real property owned by the decedent during marriage.

A pretermitted child is entitled to take his intestate share UNLESS:

- (1) It appears from the will that omission was intentional.

- (2) The will provides for the child (amount of provision is not relevant).

- (3) T had other children at the time he executed his will and the other children don't take anything under T's will either.

- (4) T leaves his entire estate to his SS.

- (5) T made other provision for the child outside of the will by a transfer that takes effect at death (ex: life insurance).

TEST FOR CAPACITY: At the time of execution, did T have sufficient capacity to:

- (1) Understand the nature of the act he was doing?
- (2) Know the nature and extent of his property?
- (3) Know the natural objects of his bounty?

VOCAB - Terms to Know

Surplusage Rule
Ancillary Probate
Self-Proving Will
NC "Lost Wills" Statute
Dependent Relative Revocation
Incorporation by Reference
Doctrine of Independent Significance
Anti-lapse Statute
Ademption by Extinction
Abatement of Legacies
Exoneration of Liens
Per Capita
120-hour Rule
Advancements
Doctrine of Satisfaction
Elective Share
Net Assets

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