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Wills and Trusts
University of Dayton School of Law
Searcy, E. Dale

I.                   Introduction
Ways to avoid probate:
1)     Joint tenancy avoids the probate problem.
2)    Life insurance is a K between a life insurance policy owner and a company which spreads the risk.
3)    A revocable trust. A trust is an arrangement involving 3 parties: the first is called a settlor or a grantor or a trustor or a donor. That is the person who transfers property. The second person is the trustee, the person to whom the property is transferred. The third party is a beneficiary, that’s the person who is entitled to distributions from the trust. There may be more than one of any of these parties. The essence is the separation of legal title form equitable title and the trustee holds only legal title. The beneficiary holds only equitable title. Before the trust, there was no separation.
4)    Inter vivos pension plan-aka a Successor-Donor Transportation.
USDA=Uniform Simultaneous Death Act(USDA) Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived.
120 Hour Rule: Any individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent. Reduces to few to almost no cases that need a USDA of any kind because it is quite rare for two people to die in such a way that we do not have credible evidence as to whether or not A survived B by 120 hours(5 days).
II.               Descendants: Intestacy and Class Gifts in Wills
UPC 2-103- Share of Heirs other than Surviving Spouse
UPC 2-106-Representation
Use of Per Stirpes in Wills & Trusts
UPC 2-701 Scope-Statutory Rules of construction are presumptions only.
UPC 2-709(c)-Per Stirpes
UPC 2-709(b)-Representation; per capita at each generation
Variation 1: C-1 predeceased G.
·         Under all systems, C-2 and C-3 take 1/3 each, and GC-1 and GC-2 take 1/6 each.
Variation 2: C-1, C-2, and C-3 predeceased G.
·         Under the strict per-stirpes system, GC-1 and GC-2 take 1/6 each; GC-3 takes 1/3, and GC-4, GC-5, and GC-6.
·         Under all other systems, each grandchild takes 1/6.
Variation 3: C-1, GC-1, and GC-2 predeceased G.
·         Under the strict per-stirpes and the modified per-stirpes systems, GGC-1 and GGC-2 take 1/12 each and GGC-3 takes 1/6.
·         Under the former and current UPC systems, GGC-1, GGC-2, and GGC-3 take 1/9 each.
Variation 4: C-2 and C-3 predeceased G.
·         Under the strict per stirpes, the modified per-stirpes, and the former UPC systems, GC-3 takes 1/3 and GC-4.GC-5, and GC-6 take 1/9 each.
·         Under the current UPC system (per capita at each generation), GC-3, GC-4, GC-5, and GC-6 take 1/6 each.
Per-Stirpes System
Per stirpes literally means the roots.
3 Steps:
1)     Divide the estate into primary shares at the generation closest to the descendant (children). A child who was born and died before the parent without leaving any descendants who survived the parent is NOT counted.
2)    Allocate the primary shares (as many shares are roots). A share is given to each person in the closest generation to the decedent.
3)    Divide and subdivide each primary allocated to the living descendants of a deceased child. Each of these primary shares is divided and subdivided among the deceased child’s descendants.
Modified Per Stirpes (Per-Capita-With-Representation System)
With the exception of the first step, it’s identical to the strict per-stirpes system.
*Step one in this system is to divide the estate into primary shares at the generation nearest to the decedent that contains at least one living member.
Current UPC-Per Capita at Each Generation
The current version of UPC assures quality among members of the same generation whose parents predeceased them.
3 Steps:
1)     Divide the estate into primary shares at the nearest generation to the decedent that contains at least one living member. The number of primary shares is the number of living persons in that generation plus the number of deceased persons in that generation who have living descendants.
2)    Allocate one primary share to each living member of the primary-share generation.
3)    Combine the remaining primary shares, if any, into a single share and assume that the descendants already allocated a share had predeceased the decedent. Then distribute tha

Restatement § 3.3 Excusing Harmless Errors
A harmless error in executing a will may be excused if the proponent establishes by clear and convincing evidence that the decedent adopted the document as his or her will.
Crossed Wills: The crossed will could not be probated as W’s will because it was not signed by her, and that the other will signed by W is a meaningless nullity. You could make an argument for substantial compliance, but there would be no argument under strict compliance. Argument that there could be no intent because you cannot intend to give all of your property to yourself.
VI.             Attestation
UPC 2-502(a)(3)
The Attestation Requirement
Nearly all statutes require two witnesses and require the witnesses to “sign” the will.
Non-UPC statutes commonly prescribe that the witnesses must sign the will in the presence of the testator.
·         The line of vision test requires that at a minimum “that the testator, without changing his position, might have seen the will being attested; it is not necessary that he actually saw it.”
·         A decent number of courts, along with the Restatement, have adopted the “conscious-presence” test, which recognizes that a person can sense the presence of another without seeing another person. Any type of electronic communication does not qualify under this type of test.
·         Presence is not required within the UPC. The UPC does not require the witnesses to sign in the presence of the testator or in the presence of each other.
·         The UPC’s abrogation of the requirement that the witnesses sign the testator’s presence raises a question about whether there is any time limit on when the witnesses must sign the will after they have witnessed the testator’s signature of acknowledgment of the signature or of the will.