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Trusts and Wills
University of California, Hastings School of Law
Weisberg, D. Kelly

Fall 2001

Introduction: Terms and Concepts
A. Probate has two meanings:
1. procedure of proving validity of will after death
2. process of marshaling distributing and distributing the estate
A. UPC is not the majority rule: only 20 states follow it
B. Intestate: a person who dies without a will
C. Testator or testatrix: one who has dies testate
D. Many statutes today use Adevise@ to refer to a testamentary disposition of land and personalty. Traditionally:
1. testator devises real property to the devisee
2. testator bequeaths personal property to a legatee: legacy is a bequest of a sum of money; bequest is also a generic term for testamentary gifts of personalty
A. Modern law: persons person designated by statute to take intestate property, real and personal, are the Aheirs.@ Traditionally:
1. Next of kin: intestate successor of personalty
2. Heir: intestate successor of land
A. A living person has no heirs
B. Personal representative: the person appointed to handle the estate to collect the assets, pay creditors, and distribute the remaining property
1. administrator: the personal representative appointed by the court to administer an intestate estate
2. administrator d.b.n. (de bonis non, i.e. of goods not administered): successor of the administrator
3. executor or executrix: personal representative nominated by the will and appointed by the court to be the administrator
4. administrator and executor are used interchangeably in casual usage
A. Consanguinity: relationship by blood
B. Affinity: relationship by marriage
C. Ascendants or lineal ascendants are ancestors
D. Descendants or issue: children, grand children, and others of all degrees in the descending line.
E. Collaterals: relatives that are not ascendants or descendants but are related to the person in question through common ancestry. For example: sister, uncle, cousin.
F. Trust:
1. Settlor or trustor: grantor of trust
2. Trust property: subject matter of the trust; res, corpus, principal
3. Inter vivos trust: living trust created during the settlor=s lifetime
4. Testamentary trust: created in the testator=s will
5. Resulting trust: reversionary interest
6. Constructive trust: remedial device to recover or obtain property to prevent unjust enrichment

I. Share of Surviving Spouse, Issue, and Others

General Patterns of Intestate Succession: the law of the decedent=s domicile should determine succession to land as well as to personalty. However, a decedent=s property is administered where it i

on that has takers living. Descendant
b. If no issue, then to parents or to the surviving parent of decedent
c. If no issue or parent, to the issue of parents or either of them by representation
d. If no issue or parent, then to grandparents or their issue.
e. If no taker yet, then to the state.
1. UPC represents the modern trend to narrow the circle of relatives who can take and increase the occasion of escheat. Compare California Prob. Code section 6402(e): if there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, but the decedent is survived by the issue of a predeceased spouse, then to such issue. Section 6402 (g) also provides for property to pass to certain of the decedent=s in laws specifically to parents or the issue of the parents of the decedent?s predeceased spouse, before escheat will occur. While 10 other states include the issue of the predeceased spouse in their scheme of intestate succession, none goes so far as California in extending inheritance rights to relatives by affinity/