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Wills, Trusts, and Estates
Rutgers University, Newark School of Law
Knee, Peggy Sheahan

Trusts and Estates Outline
I) Introduction to Family Property Law
a) Freedom of Transferability: The US uses common law so we can choose how to transfer our property at death; civil law countries tell you where wealth must go
b) Irving Trust Co. v. Day
i) States can regulate the disposition of assets (like giving wife an elective share) but the regulation cannot amount to a taking
c) Intestate: Dying without a will
d) Testate: Dying with a valid will. Person who died is Testator or Testatrix
e) Partially Intestate: Person who died with will that disposes only some of her property
f) Devise UPC §1-201: Testamentary disposition of real or personal property
g) Probate: Legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person’s property under the valid will
h) Non-Probate: Property that passes outside of the will either because of no will, will substitute (ex: trust), or because of invalid will
i) Intestate Succession: If there is no will or there’s an invalid will, any property not distributed passes through intestate succession according to the state’s laws
j) Examples of Will Substitutes (non-probate):
i) Life insurance, pension accounts, joint accounts, revocable trusts
(1) Some want to avoid probate because it’s expensive, delays, and annoying
k) Probate Performs 3 Essential Functions:
i) Title Clearing – makes property marketable again
ii) Protects Creditors – pay debt of decedent 1st and then remainder gets passed on
(1) Even though most law recognizes that in will substitutes, creditors still take precedent over beneficiaries, probate is still much more favorable to creditors
(a) This is because probate is very centralized and official
iii) Distribution – distribute the remaining property according to testator’s intent
l) Authorities: Restatement of Property, Restatement of Trusts, Uniform Probate Code (UPC), and Uniform Trust Code (UTC)
m) Problem 1-20
II) Intestate Succession
a) UPC §1-202: Share of Spouse
b) UPC §1-203: Share of Heirs other than Surviving Spouse
c) Primogeniture: Oldest son used to inherit the property from the dead dad and the mother and other kids were out of luck
d) Ancestors: Father, Grandfather
e) Descendants: Daughter, Grand daughter
f) Collateral Heirs: Aunts, Uncles, Cousins
g) Rights of Survivorship:
i) UPC §1-204: When H & W died almost at the same time, families would fight over who died first to get the property; now there is 120 hour survival requirement
ii) UPC §1-208: People in gestation at the decedent’s death are treated as if they were alive at the death as long as they are born alive
(1) Cannot get property via intestacy or devise if not existing yet
h) Problems 2-9
i) A dies intestate survived by B and both their parents
(1) Estate is $60,000 = B gets full amount. Estate is $1 million = B gets $200,000 + ¾ the $800,000 and A’s parents get ¼ $800,000 and B’s parents get nothing.
ii) B survives, no parents, estate worth $200,000
(1) A and B have no children = $200,000 to B. A and B have 2 joint children = $200,000 to B.
iii) B survives, no parents, $200,000 estate, 2 joint children, 1 child from former marriage for B = $150,000 to B + ½ $50,000, ½ $50,000 to joint children, none to B’s child
iv) B survives, no parents, $200,000 estates, no joint kids, 2 former marriage kids for A and 1 former marriage kid for B = $100,000 to B + ½ $100,000, ½ $100,000 to A’s kids, nothing to B’s kid (refer to 2-103)
v) B survives, no parents, $200,000 estates, 2 joint kids, 2 former marriage kids for A, and 1 former marriage kid for B = $100,000 to B + ½ $100,000, ½ $100,000 to the 2 joint kids and A’s individual kids in even shares, none to B’s solo kid
i) Intestate Succession Systems:
i) Strict Per-Stirpes: Start dividing the shares equally at the children’s level even if all children are dead
ii) Modified Per-Stirpes: Don’t start breaking it up into equal shares until you’re at a level in which there is at least 1 living person in it (skip to GC if children are dead)
iii) Former UPC: Pay very specific attention to the primary share guy (the 1st generation of children). Each time a 1st generation primary share guy dies, he is treated as a decedent himself.
(1) So, if A has 3 kids named B, C, and D, and B dies, then B’s 1/3rd share is treated like B is a decedent and is split among the 1st generation below him to have at least 1 living member of that group. So if B has 3 kids, since B is now a decedent basically, his 1/3rd gets split between them 3. If C also died and had only 1 kid, C is now a separate decedent and his 1/3rd share goes straight to C’s 1 kid.
iv) Current UPC: Divide shares equally at each generation level and ignore everything else; so all children get equal shares to each other, GCs get equal shares, etc
j) Guardians/Conservators: they handle assets passed to minors/incapacitated heirs
k) Parentelic System:
i) Spouse always gets a share
ii) 1st Parentelic – decedent’s own surviving descendants
iii) 2nd Parentelic – decedent’s parents and then their descendants
iv) 3rd Parentelic – decedent’s grandparents and then their descendants (final level)
l) Nearest Kindred: If there is no parentelic survivors, we divide the estate to everyone in the closest degree to the decedent
i) Great grandparents are 3rd degree; great great grandparents are 4th degree, etc
ii) To calculate the degree, we do 2 steps (Civil-Law Method):
(1) Count the number of generations up from the testator to the common ancestor of the testator and the relative in question
(2) Count down from that common ancestor to the relative in question
(a) The total of the 2 figures constitutes the degree of kinship
(i) So a sibling is 2nd degree and an uncle/aunt/niece/nephew is 3rd degree
iii) Modified Civil Law Method
(1) If 2 people are of equal degree but from different common ancestors, the one claiming through the common ancestor nearest to the decedent inherits it all
m) Advancements and Related Doctrines §2-109
i) Advancement: gift made before testator’s death, to a family member, which will reduce how much he’ll get intestate once the testator finally does die
(1) This reducing effect insures that all the children receive assets equally
n) Releases and Assignments
i) Assumed heirs can release their expected interest back to the testator and can also assign the interest to a 3rd party
III)The Changing American Family
a) Tenancy in Common– 50%/50% and each spouse can do whatever
b) Tenancy by the Ent

Bank v. Mills(Stranger-to-the-Adoption Rule)
(1) Facts: Grandfather dies and made a trust saying to “living grandchildren, and to the living children of each deceased grandchild.” P’s father adopted 2 kids who wanted to be considered living grandchildren and inherit.
(2) Holding/Reasoning: We go by the law in place when the trust is made and won’t presume that the grandfather’s intent was different. Grandfather was a stranger-to-the-adoption because he wasn’t alive for the adoptions. We won’t presume he intended them to be in the class unless he was alive and there for the adoption or if he stated in the trust he wanted future adopted kids to count.
h) Adoption of Adults – Can adopt to prevent disinheritance unless you’re the adult’s spouse or domestic partner
IV)Execution of Wills
a) Executor (or personal representative) offers the will for probate and court decides if it’s valid – appointed representative is done by letters testamentary or letters of administration
i) Last will and testament, so it won’t take effect until death
b) Broad Statutory Formalities – A Will Must Be:
i) In writing
ii) Signed by the testator – sometimes you can have someone sign on your behalf
iii) Attested by credible witnesses – usually requires 2 credible witnesses
(1) English Wills Act – Signature must be at the foot of the document
(2) Published – Some states require testator declares to witnesses that it’s his will
c) Strict-Compliance Approach: Traditionally, rules must be strictly followed (UPC and Restatement lax strict requirements later)
i) Dalk v. Allen (note case) – Did everything but forgot to sign the will so it didn’t count
d) UPC §2-502 codified the 3 above requirements
e) UPC §2-503 created the Harmless Error Rule
i) Rule states that the will is valid even if not made in conformity with §2-502 if the proponent can show the decedent meant for it to be his will
ii) Video and audio tapes aren’t writing and cannot operate as a will, however, a disc file that was unsigned counted due to harmless error (all depends on court)
f) Attestation Clause – Basically the witnesses sign and say the testator was sane and was not coerced into signing this will
g) Estate of McKellar (attesters did not see testator sign it/acknowledge signing it)
i) Witnesses didn’t read will, see testator sign it, nor hear testator acknowledge it, thus, the will was invalid
h) Holographic Will: Will that is entirely hand-written and signed by testator
i) Pre-Printed forms are no good and is part of it is pre-printed, the court will disregard that part (so if it makes no sense afterwards, will is invalid)