Estates & Trusts Outline
Introduction
The thrust of this course is the transfer of wealth upon death.
There are 2 types of trusts
i. Inter vivos
ii. Testamentary
iii. The distinction is that the testament, because of the will, must run through the probate process.
Default system – Intestate succession.
i. One has a right to dispose of his property with any restrictions as long as it does not violate public policy.
1. The right to receive property by will is a creature of the law, not a natural right or one guaranteed or protected by either the Ohio or US Constitution.
ii. Slayer’s rule states that person may not be enriched by the victim of a murder if he is the murderer.
1. Exception to Slayer’s rule: Insanity.
755/5 ILCS 2-6 is IL’s version of the Slayer’s Rule.
i. If person convicted of 1st or 2nd murder, then the Slayer’s rule kicks in.
Role of the Lawyer and Lawyer-Client relationships
i. Now, the law has changed and there is a duty to third parties in the will, and is actionable if the lawyer makes a mistake.
Probate and Non-Probate transfers
i. In order to have a valid inter vivos gift, there must be a delivery of the gift, either by a physical delivery of the gift or a constructive delivery.
ii. Under the false assumption of imminent death, a gift made in expectation of imminent death is revocable if death does not result.
Intestate Succession (Intestate is the default system)
755 ILCS 5/2-1
i. If there is a surviving spouse and a descendent, then 1/2 of the entire estate to spouse and 1/2 to the descendents per stirpes.
ii. If no spouse, then entire estate to descendent per stirpes.
iii. If neither, then to parents and siblings, (if 1 parent, then double portion), and siblings per stirpes.
iv. If none, 1/2 maternal gp and 1/2 paternal gp.
Introduction and Terms:
i. Per stirpes: with representation. Means the descendent shall move up to take the place of their parent to represent the parent of their parent.
ii. Per capita: without representation. Descendent shall not move up.
iii. Lapping hei
adopted child may inherit from the adopting parents.
a. An adopted child takes when adopting parent dies.
b. However, an adopted child must have lived with parent before the age of 18.
c. Because condition is satisfied, children can take.
3. Equitable adoption
a. A couple never took formal legal steps to adopt, but raised and cared for child and raised child as their own. Equitable adoption doctrine permits child to take in inheritance even without formal steps of adoption.
b. IL does not recognize equitable adoption.
ii. Non-marital children
1. 755 ILCS 5/2-2: child born out of wedlock.
a. If 1 parent is eligible, then passes through regular intestacy.
2. 755 ILCS 5/2-3: posthumous child.
a. Shall receive the same share of an estate as if the child had been born in the decedent’s lifetime.
iii. Deceased sperm and egg donors
1. In IL, artificially conceived children shall enjoy the same rights as naturally conceived children.
iv. Simultaneous death
755 ILCS 5/3-1: Simultaneous death.