Ward 07 JMLS
WILL ESTATES AND TRUSTS OUTLINE
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DEFINITIONS:
Intestate Succession Terms
Intestate Succession
Passage of property when the decedent dies without a will
Descent
Succession to real property
Distribution
Succession of personal property
Intestate
Dying without a will. The phrase intestate refers to the person who dies without a will.
Heir
A person entitled to take under the intestate succession laws. Remember, you have no heirs because you are alive. You be an heir, but you cannot have heirs.
Ancestor
A person related to the decedent in an ascending lineal line, such as parents or grandparents.
Descendant
A person related to the decedent in a descending lineal line, such as children or grandchildren.
Collateral Relative
A person related to the decedent but not descending or ascending, such as a brother, uncle or cousin.
Consanguineous
A biological or blood relationship
Affinity Relationship
A relationship by marriage
Will Terms
Testate Succession
The passage of property under the decedents will.
Will
A written document or oral declaration directing who will own the decedents property upon the decedents death.
Codicil
A type of will that merely amends an already existing will
Testator
A person who dies with a valid will.
Devise
A gift of real property in a will. A person who receives a devise is a devisee.
Bequest
A gift of person property in a will
Legacy
A gift of money in a will. The person who receives a legacy is called a Legatee. A legacy is a type of bequest.
Beneficiary
Generic term for a person who receives property under a will, regardless of whether it is real or personal property.
Trust Terms
Trust
A property conveyance whereby the owner divides title to the property into legal and equitable interest and imposes fiduciary duties on the holder of legal title to deal with the property for the benefit of the holder of the equitable title.
Settlor
The person who creates a trust by making the property transfer which divides title and imposes duties. Settlor may also be called the trustor, grantor, or the donor.
Beneficiary
The person who receives the equitable title to trust property and hence the right to benefit from that property according to the settlers instructions. Also may be called the donee or grantee.
Trustee
The person who hold the legal title to trust property and has the fiduciary duty to manage that property according to the settlers instructions and applicable trust law.
Principal
The property conveyed in trust form. The total worth of the property in the trust. Also known as the corpus.
Income
The profits or other earning made by the property after it is conveyed into trust form. Such as interest or rent made off investments or buildings.
General Terms
Administration
The process of collecting and managing all a decedents property so that the decedents creditors are paid to the fullest extent allowed by law and the remaining property, it any, is turned over to the heirs or beneficiaries.
Administrator
The person in charge of administering the estate of an intestate decedent,
Executor
The person in charge of administering the estate of a testate decedent.
Personal Representative
Generic term for the person in charge of administering the estate
Probate
In a broad sense, probate refers to the entire process of administering a decedents estate. In a narrow sense, probate means to prove a document or oral declaration to be the decedents valid will.
Probate Asset
An asset of a decedent that passes either under intestate succession or through a will.
Non-probate Asset
An asset that passes other than through a will or intestate succession. Such as joint tenant rights with right to survivorship, life insurance, retirement plans.
Introduction to Estates and Trusts (1-61)
The Living and the Dead: Whose money is it?
Shapira v. Union National Bank
The son would only take under the will of his father if he married a Jewish girl. The son challenged the will provision saying that it was depriving his const right to marriage and that it violates public policy. The court looked at the provision, an held it to be reasonable. A partial restraint on marriage that imposes only reasonable restrictions is const and not contrary to public policy. The son was not being forced to do anything, he was not being blackmailed, it was his choice. The will provision was nothing more or different that consideration in a contract. Since there would be no forfeiture based on these conditions, the will provision was reasonable. The son was given nothing, so nothing could be taken away unreasonably.
The right to receive property by will is a creature of law and is not a natural right or one guaranteed by the const.
If the will provision said you can’t marry anyone, then you will receive, that would be contrary to public policy and restricts his const right to marry, but that was not the case here.
The testator can decide who and how his property will be disposed of, so long as not contrary to public policy or illegal. If he wants his son to get nothing, that is his right.
Having created wealth by the sweat of her brow, the testator is naturally free to do with it as she pleases, including passing it along to others.
Ford v Ford
SLAYERS RULE
A person who intentionally and unjustifiably causes the
and the Lawyer-Client Relationship
The most important role of the estates lawyers, however, is the role of planner. C comes to L with objectives in mind, they want to assure their property reaches its intended beneficiaries, minimize taxes, etc… Also, the L must educate the C, keep them informed so they can achieve their objectives. The C expects the L to act as a wise counselor.
Holtz v. Minyard
A fiduciary relationship exists when one has a special confidence in another so that the latter, in equity and good conscience, is bound to act in good faith.
Here, the L had two C, the father and daughter, both were existing C. The L prepared a will for the father, and lied to the daughter about the content of the will per the instructions of the father. Because the L was their family L, and because the L had a special/fiduciary relationship with the daughter, from family and because of the fact she was a current C, the L breached his duty when he lied to her.
Also, in this case, the L opened the door and talked to the daughter. All he had to say is he wont talk about it, and he would be fine. But because he put himself out there, spoke to the daughter when he did not have to, he placed the duty on himself, and breached it.
Shit case, do not agree with the outcome.
Barcelo v. Elliott
L, prepared a C will and inter vivos trust, was sued for malpal by a ben of the trust. The probate court declared the trust invalid, and the grandchildren, who were POTENTIAL bens, were screwed out of money.
Does a L retained by a testator to draft a will owe a professional duty of care to persons names as bens under a will?
No.
There is no privity in this situation to place the L liable to the POTENTIAL bens.
If you draft and make a mistake, you are not liable to third parties. There is no privity. If you screw up a trust, and a beneficiary is to receive 10k, if you screw it up, that person can not come and get you, you are free from him, even though your mistake screwed him out of 10k. You are only liable to a third party when they are an intended ben and when the settler intentionally leaves them out of the will.
IF THE PARTY IS AN INTENDED BEN, THERE IS A DUTY TO MAKE
