Wills & Trusts Final Outline
WILLS
I. Limits on Property Distribution
a. The Dead Hand Control Problem
i. The controlling consideration in determining the meaning of a donative document is the donor’s intention. The donor’s intention is given effect to the maximum extent allowed by law.
b. Shapira v. Union National Bank
i. Father David made provisions in his will that if his 2 sons don’t marry Jewish women within 7 years they lose their part of their estate.
ii. Furthermore, the daughter did not have to take part in this b/c Jewish traditions are passed down from the woman and she was therefore safe.
iii. Son challenges this provision under Equal protection clause because of the right to marry whoever you want and it’s against public policy to have the state enforce a racial provision.
iv. Court found it wasn’t a state action even if the state enforces it.
II. Probate Process
a. Definition
i. property that passes under the decedent’s will or by intestacy
ii. Probate provides formal settlement of ownership and clear title
b. Non Probate Property (not supervised by a judge in the probate court)
i. Property passing under an instrument other than a will. Reasons for non probate transfer: speed, expense, convenience and privacy
ii. Examples:
1. Joint tenancy (real and personal)
a. Two people both own the entire estate. When one dies, the other “still” owns the entire part
b. Tenancy in Common – each person owns 50% of the property and can pass their 50% on to whom ever they wish.
2. Life insurance
3. Contracts with payable on death (POD) provision
a. Pensions
b. 401(k)
c. Bank accounts
4. Inter vivos trusts
c. Estate planning Language
i. Probate court: the judicial procedure that administers the probate estate
ii. Personal Representative: someone who oversees the winding up of a decedent’s affairs
iii. Administrator: a person appointed by the court to manage the assets and liabilities of an intestate decedent.
iv. Beneficiary: person designated by the will to receive the gifts
v. Executor: a person named by a testator to carry out the provisions in the testator’s will
vi. Bond: a type of surety bond required of a trustee, administrator, or executor to ensure the proper performance of duties
vii. Codicil: a supplement or amendment to a will
viii. Heir: person designated by statute as being the next in line to inherit (next of kin)
ix. Descendant: one who follows in lineage (child, grandchild)
x. Intestate: to die without a valid disposition of property
xi. Intestate succession: process of becoming beneficially entitled to the property of decedent.
xii. Trust: the beneficial enjoyment of property to which another person holds legal title
xiii. Settler: one who sets up a trust
xiv. Trustee: one who, having legal title to property, holds it in trust for the benefit of another.
d. Opening of the probate Process
i. Couple of places to open probate
1. State of Domicile (primary)
2. Location of the property (ancillary)
ii. Letters (testamentary v. administration)
y property PC § 102
i. The decedent’s surviving spouse may require the transferee of property in which the surviving spouse had an expectancy under § 101 at the time of the transfer to restore the decedent’s estate 1/2 of the property if the transferee retains the property or, if not, 1/2 of its proceeds.
e. Surviving Spouse § 6401
i. (a) and (b) Community and Quasi community property
1. Living spouse gets deceased spouse’s 1/2 of CP
ii. (c) Separate Property
1. Spouse gets entire estate if no other issue, parent, sibling or issue of siblings.
2. 1/2 the estate if only one child or if parent(s)
3. 1/3 of the estate if more than one child or issue.
f. Intestate Succession If no Spouse or DP § 6402
i. The portion of the estate which does not go to the spouse (Separate property) goes to ( in order)
1. children
2. parents
3. siblings and their issue
4. grandparents and their issue
5. former step children and issue
6. next of kin
7. former in laws and their issue
g. Failure to Survive 120 hours after decedent § 6403
i. Person who fails to survive the decedent by 120 hours (clear and convincing standard) is deemed to have predeceased the decedent for the purposes of intestate success.
ii. Provision only applies when the people die intestate. NOT applicable to people who die with wills written. You can still write in a provision in the will that makes the have to survive you for 120 hours if you want.
