Wills Trusts and Estates – Maldonado – Fall 2016
Conditions Courts will not enforce on public policy ground:
Encouraging divorce
Encouraging crime
Encouraging waste
Types of Nonprobate Property – Will Substitutes
Inter vivos Trusts
Pay on death contracts
Transfer on death contracts
Life insurance (type of TOD)
Pension/Retirement Plans
JTWROS
Types of Probate Property
Wills
Intestacy
Probate Procedure
Probate courts in each county
First probate property under court and laws where person is domiciled (that state law)
Then probate any real property located elsewhere subject to that state law (ancillary jurisdiction)
First perform common form (informal probate) probate – ex parte proceeding with no notice issued, will proven by oath of executor
Never go back to court after informal proceeding
If it is challenged by a party then it goes to in solemn form probate (formal probate) – notice given to parties and go through court process
Executor under continuing authority of court
Appoint a personal representative (executor/administrator)
Executor – named in will
Administrator – court appointed
They collect the property
They File tax returns
They Distribute Property
Executor Relieved of duty
Need court approval in formal probate
Just file sworn statement if informal
When is probate unnecessary?
Decedent has only nonprobate property and personal property
AND/OR
Small bank accounts/wage claims/cars
AND
Statute permits transfer by simply filing forms
OR
Estate is small enough to qualify for summary administration (less than $100k generally but depends on state) – just need to file affidavit with probate court
FAMILIES CAN EVEN SKIP THIS IF ALL PARTIES AGREE AND NO CHANGE IN TITLES
Creditors
Creditors required to file claims within specified period (creditor nonclaim statutes)
Formal probate sets date – they have 2-6 months to file
If no probate, then creditors have longer period – 1-5 years to file
Therefore to bar creditors, formal probate is way to go
(Gives them notice in newspaper)
Intestacy (if following survive T)
Spouse (with kids from marriage or without kids)
All to spouse
Spouse, some kids from pervious marriage, some kids of this marriage
Spouse gets first $225k, plus ½ remainder…other ½ to T’s prior kids
Spouse, all kids belong to previous marriage, no kids of this marriage
Spouse
pts)
Child is adopted post death of his parents (who didn’t put up for adoption)
Simultaneous Death Act
if both die at same time, old rule is that beneficiary predeceases T
Now have to survive 120 hours post death of T
Permanently brain dead is dead for succession purposes
When Parents don’t take from deceased child
parents rights terminated
child died before of age of 18 and there is clear and convincing evidence that immediately before death, parent’s rights could have been terminated for non-support, abandonment, abuse, etc.
Lifetime advancements
old rule is that presumptively a gift is an advancement
UPC – ONLY if T dies intestate AND decedent OR heir stated so in a contemporaneous writing
Then take value out of hotchpot
Will Formalities (non-holographic wills)
Mental Capacity
Writing
Signature
Or subscription
Attestation
Or publication
Wills Regulations
Statute of Frauds
Wills Act
UPC
