Wills and Trusts Outline – Weisburg
A. Organization of course
1. Intestacy – dying w/out a will. Testate is dying w/ a will.
2. Wills –
a. Creation and validity
4. Probate process
II. Historical Background
A. Real Property –
1. 1066 William the Conqueror – Battle of Hastings. Before this time real property passed by grant from the king making succession uncertain.
2. Will made a system based on land tenure – gave land based on money and service (feudal system).
3. Will set forth rules about what happened to real property on death = Canons of Decent – rules to decide the takers of a decedents intestate real property.
4. Purposes of the Cannons of Decent.
a. To prevent the fracturing of land – keep large holdings together cuz they owned kings the most.
b. To keep the passage of land certain – William wanted to know who owed him money.
5. Two Courts formed to enforce the Canons:
a. Royal/common law courts – devolution of land.
b. Ecclesiastical – distribution of personal property
*Above means that there were two different bodies of law to govern property at death.
1. First thing that court did was make the rule that land could not be devised by will, it went automatically to the oldest son – primogenitur.
2. Statute of Wills – (1066) – (1540) land could not be devised.
6. What do the Canons of Decent Mean:
a. Under the rule of primogenitur land goes to the oldest son (see below).
1. X = father, A, B, C, D sons, A has child
a. Father dies, A gets, if A is dead B takes, unless A has children then it goes to them.
b. A and B die first, C and D are daughters – daughters share.
2. X dies w/out children –
a. Ascendants do not inherit (i.e. the parents will not get it b/c they can’t make money for the king like a younger male can.) So it would go to the oldest brother.
3. Summery of Above – inheritance lineally = no ascendance (i.e. parents don’t get), oldest male child gets it if two, females shared, collaterals take only on failure of issue (again eldest if brother gets, do collateral sisters share (?)).
B. Personal Property –
1. Land was t
ion allowing A to split the land. This use is the forerunner of the law of trust.
3. Parallel vocabulary – “The last will and testament” this relate to the distribution of land and deathbed giving of personalty.
III. Terminology –
1. Bequest/bequeath = personal property. Legatee takes personal property
2. Devise/devisee = real property.
3. Heirs – takers of an interstate’s real property. At common law a spouse is not considered an heir, administered to spouse by dower.
4. Real Property – descendants, heirs
5. Personal property – distributed to the next of kin.
6. Probate – a procedure, a process, and a court.
a. A procedure is the proving of the validity of a will after death.
b. The process of administering, marshaling and administering an estate.
c. The probate court – Diff. States diff names.
1. NY – Surrogate Ct
2. Penn – Orphans court
3. Ga. – Ct of Ordinary