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Wills and Trusts
St. Thomas University, Florida School of Law
Butler, Gordon T.


Chapter 1
Distinction between Probate Assets and Non Probate Assets
Rules for probate and non-probate are different
· Non Probate Assets – Assets that determines the beneficiary of the asset upon death, e.g. Trust
· Beneficiary takes at decedent’s death w/o any further action by the courts
§ Pass to the beneficiary at death
§ Non probate assets include: life insurance (whole life policy and term policy), revocable trust, joint ownership property with right of survivorship (joint tenancy and tenancy by the entirety (have to be married)), and pension accounts
· Know the difference between whole life policy and term policy
o Whole life policy – life insurance that covers an insured for life, during which the insured pays fixed premiums, accumulates savings from an invested portion of the premiums, and receives a guaranteed benefit upon death
o Term life insurance policy – covers the insured for only a specified period.
· Decedent can designate non-probate assets “to my estate” and can become probate assets
· Probate Assets are everything else – property the decedent owns at death + property acquired by the decedent’s estate at or after the decedent’s death.
· Probate Process – Probate estate moves through the probate court where creditors are paid off, and the balance to the beneficiaries, heirs, legatees, etc.
§ E.g. $1million dollars (probate asset) at death goes to the probate estate
§ Such as cars, stocks, cash, furniture….
§ Probate Court → court that has jurisdiction over the personal property of the decedent wherever located, and real property of the decedent where the court is located
· Ancillary Proceeding – to get jurisdiction of real property in another state
§ Personal Representative (PR) – court appointed person that takes control of an estate, pays debts, and distributes assets
· Can be an administrator (by intestacy)
o Distribute property according to Law of descent (Intestacy Law)
§ This kicks in when there is no will → 732.102/3
· Executor – person named in will to be a PR

· Donative Freedom
· Cultural Tradition
§ Rest 3d of Property – the organizing principle of the American law of donative transfers is freedom of disposition.
§ Freedom of Disposition/Donative Freedom encompasses several distinct yet related ideas
· The right to give your property away during life and pass it on at death,
· The right to choose who receives it,
· The right to choose the form in which they get it, AND
· The right to give another person the right to make those choices even after your death
· Constitutional Protection
§ The power to transfer wealth at death is not a constitutional right, it is created by statute
§ Donative Freedom is not considered to be constitutionally protected against ALL forms of interference or limitation (although it does have some)
· There are multiple laws which restrict who, how and when you can transfer your property
o i.e. marriage laws, Rules against Perpetuity, etc
§ Irving Trust Co. v. Day → SC held that the 14th Amendment does not prohibit a state from granting the decedent’s spouse and elective share in the decedent’s estate
· Case seems to state that Succession of Property of a Deceased are of STATUTORY CREATION and the LEGISLATURE has the power to regulate this particular area
§ The dead hand rules succession only by sufferance – The state gives you the right to choose who gets your property
§ Babbitt v. Youpee/Hodel v. Irving – SC cases which seem to contradict Irving
· Stated that the govt’s restriction on a property owner’s right to transfer property at death amounted to a taking without just compensation
· 14th Amend doesn’t prohibit state from making rules about limiting passing assets on death
· Irving case concerned a statute that said Indian land can’t descend by intestacy or devise but escheats to the tribe
o Owner could have still used a recoverable trust to bypass law
· The State can’t restrict devise and law of intestacy
o But states still have a broad discretion to limit transfer at death
· Notes: Irving casts a cloud over the idea that the dead hand rules succession only by sufferance – the state has complete control over the distribution of property at death
§ So how do the Courts Interpret these Cases all Together?
· What the court may be saying is that “Complete abolition of both descent and devise of a particular class of property MAY be a taking” in circumstances such as those in the Indian Case
· Descedent – a person who has died
· Intestate – a person who dies without a VALID WILL

§ Partially intestate – when a person dies with a VALID WILL, but has failed to dispose of ALL OF HIS PROPERTY
· The Intestate Property is Distributed in accordance with intestate succession rules (whether it is Fully or Partially Intestate!)
§ Descent – the inheritance of land
§ Heirs – those who took land by intestacy
§ Distribution – succession to personal property when person is intestate (this is b/c the title of personal property passed to a PERSONAL REPRESENTATIVE, who made distribution to those entitled to share in an intestate’s personal property after paying the debts and any other claims against the estate.)
· Distributees or next of kin – those who took personal property by intestacy
· Testate – a person who dies with a VALID WILL
· Testatrix (woman) or Testator (man)
§ Devise – a disposition of LAND by will
· Devisee – the one to whom the land was given by will
§ Legacy or Bequest – the disposition of PERSONAL PROPERTY
· Legatee – the one to whom PERSONAL PROPERTY is granted by WILL (recipient of a legacy or bequest)
§ Legatee and Devisee – modernly the two words are used interchangeably, especially Devisee (even according to the UPC)
§ UPC Definition – Testamentary disposition of LAND or PERSONAL PROPERTY is referred to as DEVISES and the recipient as DEVISEES
· Important English Law Difference b/t LAND and PERSONAL PROEPRTY (which still effects us today)
· Intestate
§ Title to and Right of Possession of LAND pass directly to the HEIRS
§ Title to and Right of Possession for PERSONAL PROPERTY pass to the ADMINISTRATOR, a Fiduciary who is now often called the PERSONAL REPRESENTATIVE
· Testate
§ Title to and Right to Possession of LAND pass directly to Devisee
§ Title to and Right to Possession of PERSONAL PROPERTY will vest in the PERSONAL REPRESENTATIVE, often called the EXECUTOR
· However, When there is LEGISLATION on the point, title to both real and personal property usually pass DIRECTLY to the heirs or devisees, subject to a right of possession in the personal representative for purposes of properly administering the estate
· The Probate/NonProbate Dichotomy
· Probate Estate – see pg. 1
· Non-Probate Estate – see pg.1
· Trusts – a fiduciary relationship with respect to property, in which title and beneficial ownership are separate
§ Trusts can be created WITH WILL (probate)
· Testamentary trusts
§ Trusts can be created WITHOUT WILL (non-probate)
· Lifetime trusts, inter vivos trusts, or non-testamentary trusts can be created by nonprobate instruments
· WILL SUBSTITUTES – The Nonprobate Revolution and the Future of the Law of Succession (article)
· Imperfect will substitutes
§ Joint Tenancies
· Non-Probate System has 4 main WILL SUBSTITUTES

les for distributing personal property equally among decedents children
§ If no living descendants, it passes to collateral heirs (bros and sis’s)
§ Ancestors are not considered, they were completely excluded from inheriting land
· In America, when the Intestate dies, we may consider ancestors and we do not take the sex of the descendant into account
· Policy Bases of Intestate Succession (UPC 2-104)
· Provide a distribution of real and personal property that approximates what decedents would have done if they had made a will (King v. Riffee)
· Other Objectives of Intestacy Laws
§ 1) protect the financially dependent family
§ 2) avoid complicating property titles and excessive subdivision of property
§ 3) Promote and Encourage the Nuclear Family
§ 4) Encourage the Accumulation of property by a Individual
§ 5) Produce a pattern of distribution which recipients will believe to be fair
· Requirements of Survival
· Only persons who SURVIVE the decedent are entitled to succeed to the decedent’s property by TESTATE or INTESTATE succession.
§ Unless altered by STATUTE survival by only an instant is sufficient!
· Uniform Simultaneous Death Act (USDA) § 1à Where the title to property or the devolution thereof depends upon priority of death AND there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived (presumes testator/intestate survived the other)
§ Almost all states have a statute like this
§ Revised USDA – adopts UPC’s 120 hour requirement
· Only Several States have adopted this new USDA
· Current UPC 2-104 – any individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent, must ALSO be established by “CLEAR AND CONVINCING EVIDENCE”
§ UPC 2-702 – adopts the 120 hr. requirement of survival for all donative dispositions, including wills and life insurance, and for joint tenancies and joint accounts w/ a survivorship feature.
§ Former UPCà “any individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent”
· Florida 732.601 – Simultaneous Death Law- Unless a CONTRARY INTENTION appears in a GOVERNING INSTRUMENT
§ When title to property or its devolution depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if that person survived.
· This is a rule of construction
· Applies to more then just wills
· Apply this rule unless will says otherwise
· Definition of Death
· Uniform Determination of Death Act– a person is deemed dead when:
§ 1) irreversible cessation of circulatory and respiratory functions; or
§ 2) irreversible cessation of all functions of the entire brain, including the brain stem
· A determination of death must be made in accordance with accepted medical standards.