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Trusts and Estates
Rutgers University, Newark School of Law
Thomas, George C.

· CHAPTER 1 – Introduction to wills trusts and estates
o Historical perspective
§ power to transfer at death is not natural right
o Government cannot abrogate right completely
o It is a right to transfer not to receive
o Dead Hand Control
§ conditions a gift to a beneficiary upon a beneficiary behaving in a certain way
§ Valid Conditions
· do not violate public policy
§ Invalid Conditions
· Absolute restraints on marriage
o But partial restraints okay
§ reasonable time, even religious background
· Cannot force someone to remain member of certain religion
· Encourage divorce/separation
· Promoting family strife
· Property destruction directive
o Who takes decedents Property?
§ A will disposes of probate property only
§ Probate is the default
§ Non Probate
· Joint tenancy with right of survivorship
· Life insurance
o modern trend includes all pod contracts
· Legal Life estates and remainders
· Intervivos trusts
· Non probate property goes to those named in the instrument
§ Probate Property
· If no will passes through intestacy
o Probate Process
§ provides for orderly transfer of title for the decedents property
§ ensures that creditors receiv notice and opp to present claims
§ extinguishes claims of creditors who do not timely file claims
§ property is properly distributed
§ Opening Probate
· present decedents death certificate
· ancillary jd is for real estate owned in a different jd from domicile
o Personal Reps duties
§ Inventory decedents assets
§ Give notice and pay creditors
§ Distribute decedents probate property
o Costs and delays of probate – ties property up
o Probate is necessary for titled property
o Avoiding Probate
§ nontitled and small estates
o Purpose of ET is to give effect to T’s intent
o Avoid estate taxes
o Avoid Probate
§ Couples
· Joint Tenancy
· Intervivos trusts – by placing real property in IV trust avoids ancillaryprobate
· POD contracts
o Professional responsibility
§ Tort theory – must prove negligence
§ Contract theory – must show privity of contract
§ Common Law approach
· Tort – no duty to beneficiaries
· Contract – No privity with beneficiaries
§ Modern Trend
· Tort – duty to beneficiaries
· Contract – privity to beneficiaries
§ Alternative grounds for finding duty
· T’s atty may owe a duty to third parties if the atty has ongoing atty-client relationship with the 3rd party and the 3rd party has special confidence in the atty
· Chapter 2- intestacy (limited- go thru outline for more info)
o Advancements- does an IV gift d made to an heir count against heir’s share of the probate estate?
§ CL- irrebuttable presumption arises gift is an advancement that counts against the c hilds share of the probate estate
· HOTCHPOT- all IV gifts to child are added back into probate estate to create hotchpot. Then hotchpot is divided equally among the d’s heirs. Any advancement received by a child is counted against that kids share of the hotchpot. Kid actually receives from parents intestate estate only their share of the hotchpot minus any advancements received.
· This applies to child who predeceased and their kids step up to take for them.
§ Modern trend- doesn’t count as advancement unless- donor creates creating at the same time as the gift.
o Bars to succession-
§ H

t cause the testator to get rid of property in way otherwise wouldn’t have
· But for analysis – strong argument that there is no causation in Honigman
· Might have affected –more likely to find causation
§ Religious beliefs not considered for policy reasons
§ Unnatural disposition is likely to cause a testamentary challenge
§ Mistake- if there is a mistake- court doesn’t court
§ UI – is substituted intent, the will expresses the influencers intent not testators
§ Traditional Rule Statement
· Susceptibility
· Opportunity
· Motive
· Causation
o this is the decisive factor in most all cases
§ Burden Shifting (part challenging has burden of proof)
· Confidential Relationship
· Receives Bulk of Estate
· Weakened Intellect
· If above factors shown then burden shifts to D to rebut presumption
§ Deterring Challenges
· No Contest Clause
o if bene contests instrument he gets nothing
· Narrowly Construed
· Majority approach
o will refuse to enforce when
§ probable cause to support contest
§ fraud
§ misconduct by witness or drafter
· Intervivos Trusts
o much harder to strike down clauses in IV trust, still alive, property changes forms
· Explanatory statement
o not recommended best to write letter personally ES are likely to hurt feelings and cause lawsuits
o will is public doc