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Trusts and Estates
Seton Hall Unversity School of Law
Maldonado, Solangel

WILLS, TRUSTS AND ESTATES
FALL 2009
Professor Maldonado

A.      INTRODUCTION
a.        Shapira v. Union Bank “Conditional Will”
i.      Issue: Is a condition in a will in which inheritance is conditioned upon certain marriage restrictions, unconstitutional?
ii.      Holding: Court says no.
iii.      Restriction is on inheritance, not marriage.
iv.      Partial restraint on marriage which imposes only reasonable restriction is valid.
v.      Gifts conditioned upon the beneficiary’s marrying within a particular religious class or faith are reasonable.
b.       Probate Court
i.      Oversees distribution of assets
ii.      Validates the will
iii.      Provides protection to creditors (Creditors must act before statute of limitations runs out)
1.       Every state has statutes providing statute of limitations for creditor claims
2.       UPC is 4 months after probate proceedings are begun
3.       Whether or not probate proceedings are commenced, claims are barred within a longer period after decedent’s death, generally 1-5years
4.       UPC is 1 year after decedent’s death, regardless if probate proceedings are commenced.
5.       Supreme Court held creditor must receive actual notice after probate proceedings are begun.
6.       Protection to Devisee and Heirs
iv.      Mechanism to gathering and distributing assets
v.      Probate Property
1.       401k, Pension Plans, Life Insurance: only if beneficiary dies before owner
2.       Savings Account and Home: only if single owned
3.       Stocks and Bonds: only if there’s no designated beneficiary
4.       Property with no assigned title already designated (i.e. cars, jewelry, art work)
c.        Simpson v. Calivas “Probate Courts Not Binding”
i.      Attorney failed to draft will that reflects intent of deceased
ii.      Extrinsic evidence allowed unless it contradicts the will
iii.      Probate Court determined that T’s intent was to leave property to wife
iv.      Why Isn’t Probate Courts Decision Binding?
v.      Collateral Estoppel applies
vi.      Actual Intent wasn’t necessary to probate court’s decision
1.       Construed intent was part of probate’s court decision
vii.      Actual Intent was integral to Superior Court’s decision
viii.      Superior Court can go beyond the will to determine actual intent (looking at extrinsic evidence)
ix.      Probate Courts looks to language of the will (construed intent)
d.       Formal Probate “Solemn Form” (UPC §3-401)
i.      Under the UPC, formal probate is a litigated judicial determination after notice to interested parties.
ii.      Court supervises and approves the actions of the personal representative in administering the estate.
iii.      These safeguards are preserved for any case in which an interested party asks for them.
e.        Informal Probate “Common Form” (UPC §3-301)
i.      The personal representative, after appointment by T, administers the estate without going back into court
ii.      The representative has the broad powers of a trustee in dealing with the estate property and may collect assets, clear titles, sell property, invest in other assets, pay creditors, continue any business of T and distribute the estate – all without court approval.
iii.      Representative petitions for appointment
iv.      No notice requirement to interested parties
v.      Interested parties can within a period of years (UPC – 3 years) file “caveats” requiring the will to go through formal probate
vi.      UPC §3-301 cannot be used if there is more than one will and it is not expressly revoked
f.         A v B “Confidential Information of Co-Client”
i.      Husband and Wife are clients of law firm (through drafting of will)
ii.      Woman brings paternity claim for illegitimate child through same law firm agai

equally at the first generation in which there are living takers.
iii.      The decedent’s estate is divided into shares at the generational level nearest to the decedent in which one or ore descendants of the decedent are alive.
iv.      Any deceased descendant on that level is represented by her descendants using an English Per Stirpes distribution
v.      Modern Per Stirpes treats equally each line beginning at the closest living
vi.      are alive, but the shares of the deceased persons on that level are treated as one pot and are dropped down and divided equally among the representatives on the next generational level.
h.       Negative Will
i.      Barred heir is treated as if he disclaimed his intestate share
i.         Spouse cannot be disinherited. Marriage is an economic partnership
j.         Shares of Ancestors and Collateral
i.      Definitions:
1.       Collateral Kindred – All persons who are related by blood to decedent but who are not descendants or ancestors
2.       First Line Collateral – Descendants of the decedent’s parent, other than the decedent and the decedent’s descendants
3.       Second Line Collateral – Descendants of the decedent’s grandparents, other than decedent’s parents and their descendents
ii.      If decedent is not survived by a spouse, descendent, or parent, then intestate property goes to brother and sisters and their descendents
iii.      Nephews and nieces take by representation
iv.      Parentelic System
1.       Intestate estate passes to grandparents and their descendants, and if none, to great-grandparents and their descendants, if none, then great-great-grandparents and their descendants and so on until heir is found.