Ancestors: came before you-go up (grandparents, parents)
Descendants/Issues: A person to whom an estate descends A person who proceeds directly form the body of another
Collaterals: to the side, brothers, sisters etc.
Consanguinity: relationship by blood
Descend: The transfer of real estate by inheritance & the operation of law,NOT BY WILL.
· UPC: Only uses descendents & not issues to avoid confusion.
Devisavit vel non: Latin phrase maning “he devises or not.” Used to denote a probate court’s sending of a will to a court of law to determine its validity.
Devise: A gift of real property by will.
· Compare bequeth
o May be contingent (doesn’t vest) until a future event occurs of vested at death of testator
o Probate transfer
o Law in effect at time of death governs, not what is in effect when will made.
Expectancy interest: estates in anticipation.
Types
· Remainder: created by the act of the parties to the estate
· Reversion: created by an act of law.
Heirs: (intestate): take property when person dies intestate (w/o a will)
· Take when no will-not a beneficiary of a will
· Even with a will, heirs need to be determined & contacted-entitled to notice of probate
· created at death-living person doesn’t have heirs
· Ask who prospective or potential heairs would be if died intestate right now
· Statutory: Statute in effect at time of death tells who heirs are
§ Usually spouses 1st, descendands 2nd
§ commonly spouse got 1/3 & descendendts split other 2/3
· Under this, in Hodel the land continued to get more fractionated so Congress jumped in & came up w/ Indian Land Consolidation Act: The problem was..a taking w/o compensation
· Today all J include living spouses as an heir-sometimes as sole heir
Intestate: Without a valid will- be default the distribution of probate property will be governed by the statute of descent & distribution of each state.
· Law of state where descedent’s real property is located governs disposition of real property.
· Law of state where decedent domiciled at death governs disposition of personal property.
Issue: All persons who are descendants from a common ancestor.
Joint tenants w/right of survivorship: You both own the property in equal shares If one of you die, then their share automatically passes to the other (even if you have a Will that gives your share to someone else – your Will cannot override a joint tenancy)
Nimo Revocandi: Latin phrase meaning “intent to revoke.”
Personal Representative:In charge of the administration of the descedent’s estate.
Traditional approach: Court looks over their shoulder every step of the way.
Court approves/disapproves everything.
UPC & TX: you go to ct that says “yes, you are the rep.” & you can do everything on your own then go back to the court to approve discharging of your duties when done. Much cheaper.
OH like ???2 above???
Revokable trusts: These are extremely common in OH because it keeps it out of probate which costs a lot of money and takes a long time. Revokable trusts:
-keeps out of probate by setting up a trustee
-Call it revokable because can change the terms
· a trust is just a fiduciary relationship.
· Trustee holds title for the beneficiary.
· The trustee is usually the creator/grantor
· The beneficiary is usually the himself
· The successor steps in once you die…might say leave ti to my kids once they are old enough, just like a will.
Rule Against Perpetuities/RAP: Future (or contingent) interest which, by any possibility, can’t vest w/in 21 years after a life or lives in being at the time of its creation is void from the time it is created. The rule was introduced to promote the free transfer of land & to restrict tying up the land indefinitely for some unknown claimant.
· Ends up about 100 years max.
· Some states are allowing opting out so trust can go on indefinitely.
Tenants in common: You can still choose to own the property in equal shares (or unequally, if you wanted to). If one of you passed away, your Will decides who gets your ownership share.
Standing: you would benefit economically by the will not being valid
Will substitutes: More than 50% pass this way
1) Revokable trusts
2) Life insurance
3) Pensions
4) Joint tenancy
5) POD bank accounts
6) IRA
7) anything you designate a beneficiary
EXAM
Combination of essay & objective (M/C)
Essays sometimes long & sometimes short.
< 50 % m/c
· Usually facts, then how would be the estate be distributed under the UPC.
3 hours
tries to not create a time crunch, usually successful.
Awards points for
· Organization
· Clarity
· Better put together an
LICY; is to encourage marriage & family but the issue here is a reasonableness test.
RESTATEMENTS: where do they come from? The american law institute which consists of professors, judges, attys etc who make these productions. Tells us what is the law on this question, but in the past this was needed, so now they have become reform oriented. A huge argument is that this change they are undermining their authority.
-This is a great case of what is a lawyer’s role in representing a client? Many people believe (inc. Newman) that atty must be competent to communicate the law, intentions but more than that, they must show judgment, perspective, etc. It is relationship building. In the context of this case, did the dad understand the legal arena he put himself (& his family in) when he made this decision. 20 years later, this man still couldn’t talk about it. Did dad’s atty advise him of this?
What if will says
1. Leave in trust for my spouse but if my spouse remarries then there interest terminates, it goes to kids? Based on kids, we would say…not reasonable because public policy is to encourage marriage but in actuality if it is the 2nd or subsequent marriage would uphold this bz when that spouse remarries, their circumstances change and spouses have a legal duty to support each other so they don’t need the trust support.
2 Condition NOT to get divorced usually upheld but new restatement has changed this. The arguemetn in this is to prevent someone from leaving an abusive situation
3. Dad has daughter who is 35 & married to a man he hates. He provides that for her to get, she must reach age 65, 2. she must be a widow or 3. she divorces
he wants her to divorce him if he doesn’t die. Daughter lost this case bz he was providing for her when she has a need…she gets old (retired), or is widowed or divorced. The atty drafted to support these policies.
