Trusts & Estates Outline
I. Transfer of the Decedent’s Estate
a. Terms
i. Probate = property that passes under the decedent’s will or by intestacy
ii. Nonprobate = property passing under an instrument other than a will, which becomes effective before death
1. Joint Tenancy Property
2. Life Insurance
3. Contracts with payable-on-death provisions
4. Interests in trusts
iii. Personal Representative = wind up the decedent’s affairs
1. Inventory and collect assets
2. Manage assets during administration
3. Receive and pay claims of creditors and tax collectors
4. Distribute remaining assets to those entitled
iv. Executor = if decedent dies testate, and will names a personal representative
v. Administrator = when the will does NOT name a personal representative (intestate)
1. Appointed by probate court
a. Statutory list of persons given preference
2. Must give a fiduciary bond
vi. “To go through probate” = to have an estate administered
b. *Person dying testate devises real property to devisees and bequeaths personal property to legatees*
c. Intestacy
i. Real property = descends to heirs
ii. Personal property = distributed to next of kin
1. Statute of descent and distribution
d. Opening Probate
i. Three Functions
1. Provides evidence of transfer of title to new owners
2. Protects creditors by requiring payment of debt
3. Distributes the decedent’s property to those intended after creditors are paid
ii. First probate where decedent was domiciled
iii. Notice must be given to interested parties before probate of a will or appointment of personal representative
iv. Three year statute of limitations under UPC for a will, after that assume intestacy
1. No statute of limitations under common law
e. Intestacy
i. Die without a will
.
g. Ascendant, or ancestor, describes a person related to an intestate in the ascending lineal line.
h. Descendant describes a person related to an intestate in the descending lineal line.
i. Issue is a synonym for descendant, not just children of a decedent.
j. Collaterals are relatives who trace relationship to an intestate through a common ancestor, but are not in the lineal ascending or descending line.
k. Persons related to an intestate through one common ancestor are called “collaterals of a half-blood”
l. Relationship by marriage is called relationship by affinity.
m. Relationship by blood is called relationship by consanguinity.
n. Your spouse at common law is not an heir of yours upon your death.
o. If a decedent leaves a valid will his property passes in accordance with the terms of his will rather than the intestate wills.
p. A will is a written or oral expression of a person’s intention concerning disposition of his property at death.
A decedent who leaves a valid will dies testate, and is called a testator if male, testatrix if female.
