Probate

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Slide1: 

Iowa Probate Law

Intestate Succession: 

Intestate Succession The Law Governing the Distribution of Estates of Persons Who Die Without A Will

Share of Surviving Spouse 633.211: 

Share of Surviving Spouse 633.211 No issue of intestate All issue of intestate are issue of the spouse

Share of Surviving Spouse-- 633.211: 

Share of Surviving Spouse-- 633.211 All real property owned at any time during the marriage Exempt personal property All nonexempt personal property

Share of Surviving Spouse--633.212: 

Share of Surviving Spouse--633.212 Spouse survives One of more issue of intestate NOT issue of the surviving spouse

Share of Surviving Spouse--633.212: 

Share of Surviving Spouse--633.212 1/2 value of real property owned during marriage All exempt personal property 1/2 nonexempt personalty At least $50,000

Exempt Personal Property (I.C. 627.6)--Examples: 

Exempt Personal Property (I.C. 627.6)--Examples Clothing Internment space up to 1/2 acre Shotgun, plus either rifle or musket Up to $1,000 in books Up to $2,000 in household goods Life insurance

Exempt Personal Property (I.C. 627.6)--Examples: 

Exempt Personal Property (I.C. 627.6)--Examples Pension benefits One motor vehicle Professional personalty Books and tools Farming implements Livestock and feed

Who is a Surviving Spouse: 

Who is a Surviving Spouse Determined at time of death Effect of divorce Finality

Shares of Others--633.219 : 

Shares of Others--633.219 Issue of intestate per stirpes Parent(s) or their issue Maternal/Paternal Grandparents Issue of deceased grandparents If none, Flip to other side

Distribution Among Issue: 

Distribution Among Issue

Distribution Among Issue: 

Distribution Among Issue A B C E D

Distribution Among Issue: 

Distribution Among Issue A B C E D gb2 gb1 gb3

Distribution Among Issue: 

Distribution Among Issue A B C E D gb2 gb1 gb3 gc

Distribution Among Issue: 

Distribution Among Issue A B C E D gb2 gb1 gb3 gc gd1 gd2

Distribution Among Issue: 

Distribution Among Issue A B C E D gb2 gb1 gb3 gc gd1 gd2 ge

Another Look at a Distribution: 

Another Look at a Distribution

Distribution Among Collaterals: 

Distribution Among Collaterals M Intestate F

Distribution Among Collaterals: 

Distribution Among Collaterals Intestate F

Distribution Among Collaterals: 

Distribution Among Collaterals MGP MGM Intestate PGM PGF

Distribution Among Collaterals: 

Distribution Among Collaterals M Intestate F U A PGM FC1 FC2 FC PGF

Distribution Among Collaterals: 

Distribution Among Collaterals Intestate FC1 FC2

Shares of Non-Relations --633.219-: 

Shares of Non-Relations --633.219- Issue of deceased spouse State of Iowa (Escheat)

After-born (Postumous) Children--633.220: 

After-born (Postumous) Children--633.220

Children Born Out-of-Wedlock: 

Children Born Out-of-Wedlock Taking from (and through) biological mother Taking from biological father General and notorious recognition

Adopted Children--633.223: 

Adopted Children--633.223 Right to take from biological parents extinquished Right to take from adopting parents Special rule for step-parent adoption

Step-parent adoption: 

Step-parent adoption M F

Step-parent adoption: 

Step-parent adoption C M F

Step-parent adoption: 

Step-parent adoption C M

Step-parent adoption: 

Step-parent adoption C AF M

Step-parent adoption: 

Step-parent adoption C AF M Adoption

Step-parent adoption: 

Step-parent adoption C AF M GM Adoption

Half-Blood Distribution: 

Half-Blood Distribution C B B M F I B takes 3/4 (1/2 of F’s share and all of M’s share C takes 1/4 (1/2 of F’s share)

Advancements--633.224: 

Advancements--633.224 Common-law rule Iowa Statute Rebuttable presumption Any competent evidence Hodgepot

Testate Succession: 

Testate Succession The Law Governing the Distribution of Estates of Persons Who Die With A Will

Who Can Execute A Will: 

Who Can Execute A Will Full age 18 or older Earlier emancipation Sound Mind

Formal Execution Requirements-Acts of Testator: 

Formal Execution Requirements-Acts of Testator Signed by Testator (or another) Declared by Testator Request to Witness

Other Formal Execution Requirements: 

Other Formal Execution Requirements Testator signs or acknowledges in presence of witnesses Witnesses sign in presence of Testator Witnesses sign in presence of each other

Strict Compliance Rule: 

Strict Compliance Rule Failure to comply with statutory formalities-Yes Substantial compliance doctrine-No

Wills Executed Out-of-State: 

Wills Executed Out-of-State Valid if: Comply with law of Iowa Comply with law of place of execution Comply with law of Testator’s domicile at time of execution

Wills Executed Out-of-State: 

Wills Executed Out-of-State Valid if: In writing Subscribed by Testator

Who can be a Witness: 

Who can be a Witness 16

Who can be a Witness: 

Who can be a Witness Interested witness Meaning of interestness Two other disinterested witness If only one other, fofeit excess over intestate share

Revocation of Wills: 

Revocation of Wills Execution of subsequent will Physical destruction with intent to revoke Cancellation with intent to revoke

Revocation of Wills-By Subsequent Will: 

Revocation of Wills-By Subsequent Will Execution of a subsequent will Is document #2 a “subsequent will” Necessity of express revocation clause

Revocation of Wills-By Physical Act Destruction: 

Revocation of Wills-By Physical Act Destruction What acts suffice ? Intent to revoke

Revocation of Wills-Cancellation: 

Revocation of Wills-Cancellation What is it ? “In same manner as the making of a new will”

The “Barrie” Case: 

The “Barrie” Case

Slide49: 

I, Mr. Barrie, give my entire estate as follows: 1. My Iowa Farm to Niece 2. My car to nephew 3. Residue of my estate to X. Mr. Barrie Witness Witness

Slide50: 

I, Mr. Barrie, give my entire estate as follows: 1. My Iowa Farm to Niece 2. My car to nephew 3. Residue of my estate to X. Mr. Barrie Witness Witness Void

Miscellaneous Rules: 

Miscellaneous Rules Doctrine of integration Facts of independent significance Incorporation by reference

Surviving Spouse’s Elective (Forced) Share: 

Surviving Spouse’s Elective (Forced) Share 1/3 of value of realty owned at any time during the marriage All exempt personal property 1/3 value of non-exempt personal property

Definition of Homestead: 

Definition of Homestead Principal residence 1/2 acre if on city or town plat 40 acres otherwise

Rights in Homestead: 

Rights in Homestead Life estate Set aside by executor in satisfaction of right to REALTY forced share

Right of Spouse to Reach Nonprobate Property: 

Right of Spouse to Reach Nonprobate Property Realty transferred without spouse’s consent Illusory or fraudulent transfers

Share of After-born Children: 

Share of After-born Children Equal to intestate share If spouse survives Unless will otherwise provides

MALPRACTICE: 

MALPRACTICE

Classication of Legacies: 

Classication of Legacies General Specific Demonstrative Residuary

Death of Beneficiary Before Testator: 

Death of Beneficiary Before Testator Common law rule Lapse statutes-Generally Protected person Substitute takers

Lapse Statute-As Applied to Deceased Individual: 

Lapse Statute-As Applied to Deceased Individual “Unless will otherwise provides” Applicable to any “devisee” Devisee must have “issue” who survive

Lapse Statute-As Applied to a Class gift: 

Lapse Statute-As Applied to a Class gift Living when will signed Born thereafter Dies before Testator

Simultaneous Death: 

Simultaneous Death Evidence insufficient Testator/Beneficiary Intestate/Heir Joint tenancy Insured/Beneficiary

Slayer Statute: 

Slayer Statute Forfeiture Deemed to predecease victim Effect on others Effect of conviction/acquittal

A Must Remember: 

A Must Remember Testator’s Intent is the Polestar

Ademption: 

Ademption Voluntary Involuntary

Contractual Wills: 

Contractual Wills Statutory requirement Right to revoke during both lives Will always revocable Contract irrevocable after first testator dies

Abatement: 

Abatement Undisposed of property Residuary, except passing to spouse General, except passing to spouse Specfic, except passing to spouse Property passing to spouse Unless will otherwise provides

Disclaimers: 

Disclaimers 9 month rule Disclaimant deemed to predecease the decedent

Probate Process: 

Probate Process

Functions of Probate: 

Functions of Probate Title Proving Title Clearing Timing of probate The five year rule

Sample Assets: 

Sample Assets Household furniture and goods Bank account (joint/individual) Stocks and bonds (joint/individual)

Sample Assets: 

Sample Assets Life insurance policy Automobile (joint/individual) Real property

Probating The Will: 

Probating The Will Petition Affidavit of Witnesses (Self-proving; other) Bond Oath Designation of the attorney

Filing Will With the Court: 

Filing Will With the Court Clerk’s Office Letters testatmentary

Notice of Probate: 

Notice of Probate Notice of Probate (Notice to Creditors) Once each week for two weeks The Tulsa Case Legislative Response 4 months/1 month Mail notice to known persons whose whereabouts are known

Duties of the Personal Representative: 

Duties of the Personal Representative Collect assets Pay debts and expenses Distribute balance to the distributees of the estate

Debt Collection : 

Debt Collection Notice to creditors Allowance by personal representative Disallowance by personal representative 20 days to file notice with the court

Will contest: 

Will contest Mental capacity General mental incapacity Insane Delusion Undue influence

General Mental Incapacity: 

General Mental Incapacity Nature and extent of property Knowledge of who are the “natural objects” of your bounty Disposition being made Relationship of disposition and effect thereof on “natural effect” Understand document is a will

Insane Delusion: 

Insane Delusion False belief held and adhered to against reason to the contrary

Undue Influence: 

Undue Influence Susceptibility to undue influence Disposition to commit undue influence Opportunity to commit undue influence Will provision consistent with their being undue influence

Final Report: 

Final Report Three year rule Waivable by court Includes accounting unless waived Affidavit re fees

Slide83: 

Good Luck on the Exam