Saturday, December 3, 2016
INTRODUCTION AND OVERVIEW
What happens if you die and have no will – the probate code – who gets how much.
Writing a will.
Formalities – provide us with a way of interpreting what you wrote in your will.
Changing – changing your mind, updating a will.
Contesting a will – what grounds can a person have to throw a will out.
Legal document that is extremely flexible.
Integrating Wills & Trusts
Someone has to shepherd the will through court –> what are the obligations and benefits for that person.
Main theme – gratuitous transfer of property (not a contract) –> setting up for your benefit so I get to control that –> but were going to put certain limits on that control.
If you've acquired wealth, you have the ability to decide what to do with it.
Concept of death – will be a trigger for a lot of things.
Ascendants – everyone in a straight line up
Decedents – everyone who comes after you
Collaterals – everyone else who shares blood with you (not lineal)
Collaterals of the Half Blood
Affinity – like (i.e. spouse)
Consanguinity – share some percentage of the same blood
Escheat – property goes to the state
Testator/Testatrix – person who wrote the will
Devise – personal property
Attested – the will has been witnessed
Holographic will – all in the testator's handwriting, no witnesses
Nuncupative will – oral will (we don't have them anymore)
Codicil – some sort of amendment to a will (i.e. change, deletion, etc.)
Probate – legal process to establish death and distribution of assets
Executor/Executrix – person who shepherds a will through the probate process.
Administrator/Administratrix – the person who shepherds a will through the probate process –> automatically appointed if there is no will.
Administrator CTA (cum testimento annexo) – executor dies.
Administrator DBN – executor dies in the middle of the process.
Ancillary probate – (i.e. dies in CA but has property in NV).
Per Stirpes – by root, shares
Per Capita – by the head
Uniform Probate Code
Why do we permit gratuitous transfers of wealth?
Individual situation may not fall into what the intestacy statutes provide.
Capitalism – positive incentive to acquire property – keeps stream of commerce flowing.
Why and how do we limit the power to transfer wealth?
Contrary to public policy – can’t encourage something against public policy (ex. Divorce).
Goals we are trying to accomplish
Want all of these statutes to be clear so anyone can figure it out.
When they figure it out, everyone will come to the same conclusion.
Want someone who has property to be able to exercise control over it, and if they’ve done something, what is their intent – want to give people who have property what they want.
Probate is for intestacy without a will or with a will (doesn't matter how the decedent left their estate).
Difference is minor: the person shepherding it through: executor or administrator (administrator is determine by close relationship – spouse, then children, then grandchildren).
We want probate process to go quickly and smoothly (ease of administration).
Grief is not the best time to conduct business.
Title of property passes from descendent to the decedent's estate and is overseen by the personal representative.
Personal representative (executor/administrator) has three jobs:
Locate the assets;
Pay the decedent's debts;
Leftover is distributed.
Reasons People Do Not Like Probate
Things can get complicated.
Open process – element of privacy that you do not have.
Tendency to avoid the legal system.
Ways to Avoid Probate
Not having any assets or having managed to die without property solely in your own name – if you die with joint tenancy property, the surviving joint tenant gets the property.
Why then don't people put all of their property in joint tenancy? You do not own it individually in FSA. People don't like to give up absolute control.
Life insurance proceeds go directly to the beneficiary.
Property in trust goes directly to the beneficiary.
Bank accounts have various provisions.
*You can minimize or push the tax off, but at some point the government is going to get it's share.
All intestate statutes have some variation of this:
Issue (lineal descendants – broad group)
Blocks below and to the side
Blocks below and to the side
How far out do we go before we get to escheat?
CA allows you to go out far.
Based on traditional notions:
Blood is thickest
Want spouse to get something
Used to exclude:
Reasons for intestacy:
Money is tied up and we want it back in circulation
Per Capita (by the head):
*Treat all grandchildren the same.
B C D
E F G H I J
Look at people related and the degree removed.
All the grandchildren are twice removed.
If all are EQUAL than they take EQUALLY
All the grandchildren have 25% of A's blood and will get 1/6.
Per Stirpes (also called the Right of Representation)
*Close to the family, not the individual.
B(1/3) C(1/3) D(1/3)
E(1/9) F(1/9) G(1/9) H(1/3) I(1/6) J (1/6)
We think in terms of A forming sub-tribes
A-B, A-C and A-D sub-tribes.
E, F and G represent B, where they would split his share (they would each get 1/9).
rm), the child is treated as if it was born in Dad's lifetime if proven by clear and convincing evidence that:
Dad gave his permission in writing (signed and dated) and Dad designates the person who will use the material.
The child was conceived within two years of Dad's death or the entry of judgment, whichever occurs first.
6450 Relationship existence
A parent-child relationships exists if:
They are the natural parents (regardless of marital status)
They are the adoptive parents.
An adoption severs the parent-child relationship UNLESS:
The natural parent and child lived together at any time OR the natural parent died before the child was born (and was married or cohabitating with the other natural parent when the child was conceived).
The natural parent's spouse adopted the child OR the child was adopted after the death of the natural parent.
The natural family does not inherit through the child (EXCEPT a whole-blood sibling or their issue) UNLESS the adoption was by the spouse or surviving spouse of the natural parent.
A prior adoptive parent-child relationship is treated the same as a natural-parent child relationship.
6452 Conditions preventing a parent from inheriting from or through a child
A parent does not inherit from or through a child if:
Parental rights were terminated and were not reestablished by the court.
Parent did not acknowledge the child.
Parent left during child's minority without an effort to provide child support OR communication for at least 7 consecutive years until the end of minority with the intent to abandon the child (presumed).
A parent who does not inherit predeceases the child.
6453 Natural parents
A natural parent-child relationship is presumed where:
Dad is married to Mom
Dad receives child into his home & holds out as his
Found by court to be Dad:
Paternity action during his lifetime;
By probate that he received/held out;
By probate that it was impossible to hold out (Dad didn't know you existed) but clear and convincing evidence that he was Dad (DNA).
6454 Foster parent or stepparent
A foster/stepchild cannot inherit through a foster/stepparent UNLESS:
Relationship started in child's minority and continued through their lifetimes.
Foster/stepparent would have adopted the child but for a legal barrier (clear and convincing evidence).