Unit 5 Assignment - Complete
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Unit 5 Assignment: Will Terminology and the Effect of Creditor Claims
Angela Campbell
Online Paralegal Certification, Post University
LAW105: Estate Administration and Probate Practice
Professor Salmon
October 1, 2023
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1.
The article about Aretha Franklin mentions her significant debt to the IRS.
Explain the process of abatement, and using one of her holographic Wills, describe how
the abatement process would affect the distribution of legacies and devices according to
that Holographic Will. Use both the textbook and article links for your citations.
Abatement is the process of reducing the gifts given in a will because the assets of the
estate are not sufficient to pay all of the debts of the estate and also distribute the gifts
as the testator intended.
The order in which to use certain categories of assets is
determined by the state.
[1] Generally, personal property is the source of the funds
used to pay debts and taxes, but in some cases, real property has to be taken away
from an heir to pay debts or taxes. Aretha’s estate is worth millions and includes her
main home in Bloomfield Hills, as well as several other homes, furs, jewelry, assets
related to her music, and bank balances. [2] That being said, her assets would be sold
until all debts and taxes were paid.
After that process was complete, the remainder of
her estate could be divided to the best of her wishes.
2. Using your textbook, explain the term "per stirpes" and how it differs from
"per capita" distribution in intestate succession. After each definition, provide an
example.
In a per stirpes distribution, beneficiaries with the closest linear relation to you inherit
an equal share of your estate when you pass away. [3] For example, assume you have three
children– John, Kevin, and Mary.
If all three children survive you, they will each inherit 1/3 of your estate. But let’s
assume one of your children, John, dies before you. In such a scenario, John’s descendants
(John’s children) will split the 1/3 of your estate that would have gone to John if he had
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survived you. If John had no descendants, then Kevin and Mary would inherit John’s 1/3 of
your estate, in addition to their own 1/3 shares.
In contrast, a per capita distribution is only divided among surviving beneficiaries in
the same generation. [4] As an example, assume again that you have three children – John,
Kevin, and Mary.
If all three children survive you, they will each inherit 1/3 of your estate. However,
let’s assume again that John predeceases you. In a per capita distribution, only the two
surviving children – Kevin and Mary – share the estate, each receiving half.
3. Explain the inheritance rights of a surviving spouse (this is NOT a discussion
of the intestate statutes we discussed in the forum. Look to the readings--what can a
spouse do if the testator tries to disinherit him/her?).
When the decedent spouse dies without a will, the surviving spouse’s rights to the
intestate spouse’s estate are determined by state statute and by which other family members
survive the intestate.
In a will, a testator is permitted to disinherit anyone except a surviving
spouse.
Most states offer a surviving spouse the choice to either take the benefits in the will
or to choose a share of the deceased spouse’s estate recognized by state statute. Generally, the
surviving spouse chooses whichever share is greater. [5]
4. Explain the advantages and disadvantages of a Will.
One of the greatest advantages of having a will is that you can choose who will
receive what from your estate. Without a will, the people you would like to benefit may
receive little or nothing, while others with whom you're not as close receive the bulk.
Accordingly, if you are not married but have a long-term partner, he or she could receive
nothing under such laws. Alternatively, if you are in the process of a divorce but it has not
been finalized, without a will, your estranged husband or wife could make a claim on your
estate.
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One disadvantage of having a will is that it may need to go through probate court
before things are disbursed.
If you have assets that pass under your will worth more than a
certain amount, your will must be filed for probate, the procedure through which a decedent's
assets are distributed; this can be a long process, which can, in turn, be costly for the estate.
[6]
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References
[1] Dennis R Hower,
Wills, Trusts, And Estate Administration
94-95 (2021),
https://ambassadored.vitalsource.com/books/9780357452301
.
[2] Brian McCollum,
Aretha Franklin’s handwritten wills reveal window into her
private world: Read them here
, Detroit Free Press (2019),
https://www.freep.com/story/entertainment/music/2019/05/21/aretha-franklin-handwritten-
wills/3753633002/
.
[3] Dennis R Hower,
Wills, Trusts, And Estate Administration
91 (2021),
https://ambassadored.vitalsource.com/books/9780357452301
.
[4] Dennis R Hower,
Wills, Trusts, And Estate Administration
90 (2021),
https://ambassadored.vitalsource.com/books/9780357452301
.
[5] Dennis R Hower,
Wills, Trusts, And Estate Administration
98-99 (2021),
https://ambassadored.vitalsource.com/books/9780357452301
.
[6] Dennis R Hower,
Wills, Trusts, And Estate Administration
117-118 (2021),
https://ambassadored.vitalsource.com/books/9780357452301
.