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

Wills and Trusts
 
1)       Introduction
a)       Definitions/Terminology
i)         Intestacy – dying w/o a will
ii)       Testate – dying with a will
iii)      Heir – persons who take real or personal property of the intestate ( next of kin used to denote person who took personal property at common law)
iv)      Devisees – People who take under a will
v)        Descent referred to passage of real property to the heirs of a person who died intestate
vi)      Distribution referred to the passage of personal property
vii)     Probate (many meanings)
(1)    procedure of establishing validity of a will after death
(2)    process of marshalling assets and administration of an estate
(3)    court responsible for process and procedure
viii)   Probate estate – property that passes in probate
ix)     Personal Representatives:
(1)    Executor – Testate Estate
(2)    Administrator – Intestate Estate
b)       Uniform Probate Code
i)         Joint effort of the ABA and NCCUSL as a an attempt to provide a standard/model code that could be adopted by states
ii)       Few states have adopted it in entirety, most use parts they like or chip away at parts they don’t like – Not the “Majority Rule”
iii)      However, still influential
c)       Social Policy Concerns
i)         Doctrine of Testamentary Freedom:
(1)    Theme of course is that we try and respect the freedom of the testator to give away money as he/she saw fit
(2)    Why do we have a policy of testamentary freedom?
(a)     Psychological well being
(b)     Efficient Land Use
(c)     Care of Dependents
(d)     Capitalism
(e)     Discourages Fraud on elderly
(f)       Stimulates economy
(g)     Practicality
(h)     Perpetuate name or family
(3)    However, we often have social policy concerns that Conflict with this freedom
ii)       Fred Sparks: Will gave residual estate to the PLO; court invalidates the bequest because the PLO is a terrorist organization that he could not have given money to while alive
iii)      Cogswell College: Left trust for a SF college for technical education – college began to lose money and wanted to move to Silicon Valley
(1)    Changed circumstances – wills/trusts should be responsive to changed circs.
(2)    Testamentary Intent – he said in his will that he wanted it to be in SF; very clear expression of intent in the instrument
(3)    Testamentary Freedom – it was his money and should be allowed to do what he wants with it. He could have set up the college himself during life.
(4)    Policy against dead hand control – After a hundred years, should he be able to control from the grave?
(5)    Purpose of the bequest – could the purpose be better served in SF
(6)    Policy against waste – if only a few students could be helped in SF and many more could be trained in SV then that would be a less wasteful use of the bequest
(7)    Family protection – protection of remaining family members
d)       Will Property
i)         What may be

t share of SS, then to remaining heirs.
(ii)     Some JX limit SS share to 1/3 while most have increased to ½
(c)     UPC Method – purpose is to increase share of SS
(i)       SS gets entire estate if:
1.       No descendant or parent of decedent (D) survives D; or
2.       All of the D’s surviving descendants are also descendants of the SS & there is no other descendant of the SS who survives the D
(ii)     SS takes first $200k + 3/4 balance if D left no issue, but a parent is surviving
(iii)    SS takes first $150K + 1/2 balance if all of the D’s surviving descendants are also descendants of the SS and the SS has 1 or more surviving descendants who are not D’s
(iv)    SS takes first $100k + 1/2 balance if 1 or more of the D’s surviving descendants are not descendants of the SS
(d)    CA – Community Property
(i)       CP is all property acquired during marriage that was not acquired by gift, devise, or inheritance
1.       The SS already owns 1/2 of all the CP – in CA if the D dies intestate than the SS takes all of the CP
2.       The D could have devised his 1/2 of the CP if he wished to
SP is all property acquired prior to marriage or by gift, devise, or inheritance