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

Wills and Trusts
I.         Preliminary Information
A.      Terminology
1.       Testator or testatrix is one who has died testate, leaving a will.
2.       Intestate dying without a will (v. testate)
3.       A testator devises real property to a devisee and bequeaths personal property (or personalty) to a legatee.
4.       If a person dies intestate, person who would have taken a decedent’s personalty are traditionally next of kin, while intestate successors to realty are decedent’s heirs. But now because a single statute governs descent and distribution, all persons are referred to as heirs. And you can devise everything.
5.       Administration/probate is handling of estate, though strictly probate is the process of validation of the will
6.       Personal Representative
a)       Person who handles an estate (collects assets, pays creditors, and distributes remaining property)
7.       Administrator
a)       If appointed by court
b)       A successor administrator is called an administrator d.b.n (de bonis non).
8.       Executor
a)       If appointed by the will
b)       If nominee predeceases the testator or cannot be appointed, becomes an administrator c.t.a. (cum testamento annexo)
c)       If either an executor or administrator c.t.a ceases to serve after commencing administration, an administrator c.t.a., d.b.n. is appointed.
B.      Rights of succession to property of a deceased are of statutory creation and nothing in Constitution forbids legislature to limit, condition , or even abolish the power of testamentary disposition. Irving Trust v. Day (1942)
But might be constitutionally protected since…
Hodel v. Irving (1987), p. 12
Facts: Indian Land Consolidation Act of 1983 abolished descent and devise of property, even when it doesn’t further governmental purpose of the consolidation of ownership of Indian lands.
Issue: Can a total abrogation of descent and devise be upheld?
Holding: No. While fractionation of Indian lands is a serious problem, and adjusting the rules of descent and devise are ok without implicating the guarantees of the Just Compensation Clause, this goes too far, and could be a taking.
Despite prevailing view that there is no natural or constitutional right of succession, it is recognized that succession in some form and in some types of property is virtually a universal institution of civilized societies. 
Narrowing class of relatives entitled to succeed and expanding occasions of escheat, and imposition of estate and inheritance tax is a modern trend.
Today, planned giving and tediously planned testamentary dispositions are widely used to reduce income and death taxation as far as the donor and beneficiary are concerned.
It is a serious question to ask ourselves if we should allow the perpetuation of economic power even though it may no longer reflect the qualifications and merit of the holder.
Some argue that higher death taxes will end in higher consumption at the expense of the capital base leading to a worse off result for all
Nathanson, The Ethics of Inheritance
System of inheritance has ethical value, that of one wanting to provide for those left behind, yet for some it is impossible and it remains an academic exercise.
But not fair if dead hand puts emotional straight-jackets on children, telling them what they can and cannot do becomes a tool of reward or punishment.
The Setting: An illustrative Case History
Issues of using current transfers to limit tax liability upon death…
Professional Responsibility
Malpractice and ethics
After Lucas v. Hamm (1961) the drafting atty can be liable to disappointed beneficiaries despite the lack of privity.
II.       Historical Background (formerly three categories of succession)
A.      Real Property
1.       1066-Norman Conquest, Battle of Hastings where our knowledge of how property passes at death. Before, was up to good will of the king to let property pass to your descendents.
2.       William the Conquerer was strong believer in strong central system
3.       Willy made rules about what happened to property at death, and courts to enforce these rules.
4.       Canons of Descent
a)       What happens to real property when intestacy, still based in feudalism
b)       Parentelic system
c)       Land was not capable of being willed, but would go to heirs
d)       Impossible, because no enfiefment ceremony cuz main person was dead, so no evidence
e)       Few people could read
f)        Policy reasons:
(1)     To prevent fracturing of land
(a)     Want to keep large land owners happy
(2)     To keep passage of land certain
(a)     So king knows where to send the bill
g)       Eldest male children takes (primogeniter)
h)       If person committed felony, land escheated back to king
i)         Land could not be devised until after 1540
j)        Examples:
(1)     X dies owning Chartreuceacre with 4 kids A, B, C, D. A and B are boys, C and D are girls.
(a)     A gets it.
(b)     If A predeceases X, and A has issue, issue will take before second oldest boy because first born blood is sacred.
(c)     If A and B predecease X and leave no issue, C and D will share Chartrecueacre because there is no priority among female issue.
(d)     If everyone dies before X, then will go to collaterals, i.e. bros and sistas, but WILL NOT go to parents as there is no ascendancy under Canans.
(e)     If really everyone’s dead, will escheat to the crown. 
5.       Two kinds of Courts:
a)       Royal
(1)     Called the common law courts
(2)     Controlled succession to land
b)       Ecclesiastical
(1)     Staffed by church
(2)     Controlled succession of personal property
B.      Personal Property
1.       Land was primarily source of wealth, not personal property
2.       Death Bead instructions
3.       Testaments: Made provisions on death bed for your soul (payment to church) and church official wrote down what you said, and supervised distribution of wealth
4.       Statute of Distribution (1670)
a)       If died with no testament, ecclesiastical authority devised a system for what happened if no testament
b)       Intestacy, meaning no testament, was very rare, because it was essential to saving of soul, without it was considered a sin
c)       Anyone who died intestate, property went to crown
d)       Caused great deal of dissatisfaction
5.       First line of Magna Carta (1215) said persons personals should go to next of kin, but didn’t get enacted until 1670
C.      Chancery
1.       Court system of Chancellor
2.       Holder of King’s seal
3.       Ecclesiastical authority
4.       If relief was not coming in kings court, could look to chancery
5.       Began to compete with king’s court, petitioner paid judge’s salary, and people became dissatisfied with king’s court
6.       Since you couldn’t will land, would establish a use in this court, which was more flexible
7.       Predecessor of trust was the use
8.       A has title but B+C has use
9.       Most of land at time of War of Roses was in use
10.    Henry VIII needed money so abolished the use
a)       Turned equitable use into legal interest
11.    Chancery created lots of exceptions, whi

r divorce
b)       Wanting to make sure someone gets something
c)       Close call w/ death
d)       Having kids
e)       To designate a guardian
f)        Most want property to go to spouse
B.      Terminology
1.       Issue
a)       persons lineal descendants at all generations
2.       Generations
a)       Horizontal classification, degree of relationship to decedent
3.       Stocks
a)       Vertical classification
b)       Each child of decedent is a separate stock
4.       Collateral
a)       Not ascendant or descendant (bros/sis)
C.      Intestate succession: Share of Surviving Spouse and Issue
a)       Remote descendants do not compete with living ancestors
b)       If living generation in-between, they will take
1.       Share of Surviving Spouse (SS)
a)       Common Law/statute of distribution
(1)     For personal property
(2)     In England until 1925
(3)     At common law until mid 1800’s, when woman married, all her property became husband’s, so “wife” did have gender significance, but not afterwards
(4)     Adopted in most American jxs.
(5)     A lot still follow it in one form or another
(6)     Examples:
(a)     H-W: wife gets ½, nok get other ½
(b)     if C1, C2, wife only gets 1/3
(c)     still gets 1/3 regardless of how many kids
(d)     spouse gets 1/3, remainder is divided equally between living kids and children of dead kids.
(7)     Why is she given so little?
(a)     Because traditionally, most wealth was in land, so a little of personalty not a big deal
b)       UPC
(1)     if no descendant or parent survives, all goes to spouse
(2)     If children are of couple, wife still gets it all
(3)     2-102 § 4, takes into consideration prior and post marriages of both
(4)     When minor gets share, involves guardianship
(5)     guardian of person
(a)     person with care, custody, education of child
(6)     guardian property/estate
(a)     possession, control, of estate
(7)     Usually surviving spouse becomes both (even if separated)
(8)     If both parents die, can be split up
(9)     Spouse will take care of children
(10)guardianship gets complicated, have to go to probate court
(11)Were planners of UPC planning for persons with large or small estates?
(a)     Prolly smaller estates, cuz persons with larger estates probably have a will
(12)UPC § 20102
(a)     if no surviving parents or descendants all goes to spouse
(b)     if decedent’s only descendants are also descendants of surviving spouse, and surviving spouse has no other kids, ss gets all.
(c)     If decedent has no descendants but has parents, the spouse gets first $200,000 plus ¾ of the remainder
(d)     If all of decedent’s descendants are also of the surviving spouse, but spouse has other descendants, then spouse gets first 150k plus ½ remainder
(i)       Don’t want to give step kids money, cuz we’re mean
If decedent has kids