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Wills and Trusts
University of California, Hastings School of Law
Zamperini, Michael A.

Zamperini
Wills and Trust
Fall 2013
 
 
 
 
INTRODUCTION
 
Vocabulary
·         Intestacy – You die owning property, and you have no will. 
·         Testacy – You die owning property, and you wrote a will. 
·         Descent – What happens to your property when you die.  Moving real estate to your heirs. 
·         Distribution – What happens to your property when you die.  Moving your personal property, not only to heirs, but to your next in kin. 
·         Decedent – person who died
·         Ascendant – Person related to you in straight line upwards (mother and father and grandparents)
·         Descendant – Person related to you in straight line downwards (e.g. children, grandchildren but not brother and sister)
·         Lineal – Both ascendants and descendants are your lineal.  They are related to you in a straight line (DadàYouàDaughter).
·         Collateral – Whom you are related to going up and over.  For example, your sibling, Uncle; he is your kin but he is not lineal
·         Collateral of the Half Blood – Your sister and you share dad’s blood.  Each of you is half dad’s blood.  If your sister is product of Dad’s marriage to another woman, then you and your sister only share half blood; legally she is your collateral of the half blood.  Only half of your blood matches your sister’s. If you have the same mom, then you and your sisters are collateral of the whole blood (all your blood is the same). 
·         Consanguinity – Blood relationship (e.g. sibling). 
·         Affinity – Related to someone through marriage.  When you are married, in addition to your spouse, you get in-laws, they are also related to you by affinity. 
·         Escheat – when you have no relatives, no marriage, no nothing, then the state will take your property (e.g. orphans with no relatives)
·         Testator (current term)/Testatrix (female) – A person who has written a will
 
Old terms that had to be used in wills:   
·         Devise – It’s what you did to dispose real property.  Your will had to say “I devise this acre to Joe Smith.”  If you did not write “devise”, you did not have a will. 
·         Bequeath – Old term for disposition of personal property
·         Legacy – Old term for a gift of money.  Nowadays, we simply give.  “I give my money to Joe Smith.” 
 
3 ways to have a valid will
·         Attested- It was witnessed when testator was writing will.  We have people other than the testator attesting to the fact that this is the will
·         Holographic Will – Handwritten will with no witnesses
·         Nuncupative – oral or spoken will, as opposed to first two that are written. 
 
Purpose of will: A will disposes of property and death
·         Codicil – A change of some sort to a will.  Change can be anything; increase, change people. 
 
Probate
·         Probate – the judicial process of dealing with the decedent’s property, unless you get rid of it all.  It goes through some court process. 
·         Executor/executrix – If there was a will, the person named by the decedent as the fiduciary to represent estate as personal representative
·         Administrator/Administratrix – If there was no will, and the court designates someone (usually a close family member) to push it through the probate.
·         Administrator CTA (cum testimento annexo).  If you forget to name executor but you have will, you have an administrator appointed by the court and that administrator does what the will says
·         Administrator DBN (de bonis non) If your executor or administrator dies during probate process, the court appoints a new administrator
·         Ancillary – If real property is owned by decedent in a county other than the one where the probate process is taking place, that property is taken care of through an Ancillary administration.
o   You generally file probate in the county where the decedent resided.  If you live in Oakland, you file in Alameda superior court.  If you also own property in Ohio, Ohio wants control of their own real property.  You can do it ancillary, they will rubberstamp it
 
History
·         Feudal – A series of contractual relationships between the upper classes, designed to maintain control over land (legal dictionary)
·         Primogeniture – the practice of giving the oldest son the entire estate of his parents (or nearest ancestor). If there was no male heir, the daughters inherited the property in equal shares. If you die, then it went to your eldest son in the olden days. It all went in one place; while we don’t have a strict process, we still have preferences.  We have one generation blocking another.
·         Outlaws – mother-in-law, son-in-law.  They are related to you in a social way.  With few exceptions, they are not related to you in a legal way.  Your spouse provides for your mother in law, and not you.  You provide for your own mother
·         Per Stirpes – by stock or share
·         Per Capita – by head.  Anyone who is alive gets. 
·         Uniform Probate Code – If you use a certain rule, then what results.  Professor doesn’t use UPC.  UPC is only adopted in seven states.  UPC is concerned with state centered thing – what do we do about title to property in our state left by resident of our state? It becomes localized of what people do. 
 
Misc
·         Inter vivos – transfer or gift made during one’s lifetime
·         Bequest – will
·         Malpractice – negligence by a professional in performing that profession
 
Basic concepts
1.       Wills and trusts are gratuitous transfers of wealth.  With gratuitous, there is no requirement of where it goes.  It is up to the decedent.  Why?
a.       It encourages people to build wealth if you can give it to people you want to
b.       People tend to want to do stuff with what’s theirs
c.       Wealth should go back to the family. 
2.       There is no constitutional right to inherit someone’s money.   Inheriting is what the state says inheriting is.  State can say what the rule is for inheriting. 
3.       You can require anything in a will, as long as it does not violate public policy.  As long as not contrary to the constitution, public policy, and not unreasonable, a person can do whatever they want in a will.
 
 
Role of the Attorney
 
Attorneys owe professional responsibility to both husband and wife if attorney represents both spouses. If you are attorney for both, and one wants to do something against the wishes of the other, the attorney has several options:
·         Tell the spouse your personal ethics cannot do what is requested. 
·         Refer to someone else because there’s COI. 
·         If spouses refuse to get separate attorneys and you’re going to do something that’s questionable, get a knowing waiver.  There’s a chance in relationship with conflict and attorney needs to be protected (CA requires knowing waivers).
 
A fiduciary relationship exists when one [client] has a special confidence in another [attorney] so that the latter [attorney], in equity and good conscience, is bound to act in good faith.  Dobson [The attorney] had no duty to disclose the existence of the second will, but had a duty to deal in good faith and not actively misrepresent the first will.
 
Attorney only required to use care and skill of reasonable attorney under comparable circumstances.  Need to prove that attorney knew of your existence as a class and had a duty to you.
 
Common law: under common law approach, attorney owes no duty of care to, and is not in privity of contract with, intended beneficiaries.  Accordingly, intended beneficiaries cannot sue for malpractice.
 
Modern trend, majority approach: attorney owes a duty of care to intended beneficiaries, and intended beneficiaries are third-party beneficiaries with respect to the k between the attorney and testator.  Intended beneficiaries have standing to sue for malpractice.
 
Modern trend—compromise approach: Extends duty and privity beyond the client to include intended beneficiaries—but only those intended beneficiaries identified in the testator’s estate planning instrument (typically a will or trust)
 
 
Gifts
·         If it was a gift (dad transferred title of painting), then the

column 1 AND column2 as being close to the decedent as to your separate property. 
o   (1) Surviving spouse gets 100% of separate property if X dies with…
§  No issue;
§  No parent;
§  No sibling; OR
§  No issue of dead siblings
o    (2) Surviving spouse gets 50% of separate property if X dies with:
§  One child, OR one deceased child’s issue; or
§  No children, BUT parent or parents are alive; or
§  Issue of parents if parents are dead
o    (3) Surviving spouse gets 33% (1/3) if X dies with:
§  (a) Two or more children, OR
§  (b) One child AND one or more dead children’s issue, OR
§  (c) Two or more dead children’s issue,
 
§6402 Multiple lineal: Except as provided in Section 6402.5, the part of the intestate estate not passing to the surviving spouse or surviving domestic partner, as defined in subdivision (b) of Section 37, under Section 6401, or the entire intestate estate if there is no surviving spouse or domestic partner, passes as follows [you will always only be in one category; will never be in more than one] :
·         2.  (a) Descendant’s issue. 
o   Equally if they are all same degree of kinship  to decedent
o   Unequal degree – use 240.
·         3.  (b) Parents
o   If you have one parent, that parent gets it. 
o   Equally if both parents living
·         4.   (c) Issue of parents or either of them.
o   Equally if they are all of the same degree of kinship to the decedent
o   If unequal degree – use 240.
·         5.  (d) Grandparents  
o   Equally. 
·         6.  (d) Issue Of Grandparents
o   Equally if they are all of the same degree of kinship to the decedent
o   If unequal degree we use 240
·         7.  (e)  Issue Of Predeceased Spouse. 
o   Equally if they are all of the same degree to the predeceased spouse
o   If unequal degree those of more remote degree, use 240.
·         8.  (f) Next Of Kin – By Degree Of Relationship. 
o   To the next kin in equal degree
o   But where there are two or more collateral in equal degree who claim through different ancestors, those who claim through the nearest ancestor are preferred to those claiming through an ancestor more remote.
·         9.  (g) Parents of Predeceased Spouse (in-laws)
o   Equally to parent or parents
o   If both parents deceased, issue take equally if the same degree of kinship to the predeceased spouse 
o   If unequal degree, use 240.
·         10 (h) Issue of in law parents.  
·         11 . (?) State – escheats to the state.
 
§240 The Default for intestacy.  Modern Per Stirpes.  This is the default if X dies without a will.  240 is called “modern per stirpes” because you start it all off at the first sign of life. 
·         General 240 rule: when X dies, divide at the level of the nearest generation with living members.  Divide into 1 share for each living member and 1 share for each deceased member who HAS A LIVING issue (remember: only if they have issue!).  For deceased members who leave issue, divide that 1 share in the same manner among the deceased members’ descendants. 
 
246(a) Pure/Traditional Per Stirpes – This section is not intestacy.  This provision must be written in a will, trust, or other instrument. You might want 246 option because you don’t know who is going to have more descendants.