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

Introduction to Wills
Probate Processà Lesson #1
·         Functions of Probate
·         Introduction to Estates
·         Probate Process Defined
·         Not Subject to Probate
·         Personal Representative
·         Criticisms of Probate Process
·         Who is served by the probate process?
·         Timing of Estate
·         The UPC Generally
Fiduciary Administration
·         Personal Representatives
·         Guardians and Conservators
Surviving Spouses and Heirsà Lesson #2
·         Basics
·         Simultaneous Death of Spouses
·         Death
·         Gestational Heirs
Spousal Shares
·         Introduction
·         Children
·         Jurisdictions
·         Marital Deduction
Representation Among Descendantsà From Lesson #3
·         Basics
·         Representation Generally
·         Various Systems of Representation
o        Per Stirpes System
·         Computation of Shares
·         Meaning of “Representation”
·         Share of Heirs other Than Surviving Spouse
·         Meaning of “Descendant”
Parents and Their Issueà From Lesson #4
·         General Rule
·         Basics
·         Other Relatives
·         Rearranging Intestate Succession
·         Disclaimers
Advancements and Related Doctrinesà From Lesson #5
·         Advancements
·         Negative Wills
·         Adoption
Will Execution à Formal Requirementsà From Lesson #6
·         Introduction
o        Substantial Compliance Doctrine
o        Strict Compliance Doctrine
o        Validity and Statutory Formalities
·         Writing Requirement
·         Signature Requirement
o        General Rule à All wills must be signed
o        Form and Position of Signature
·         Attestation Clauses and Witnessesà From Lesson #7
o        Introduction
o        Witnesses Generally
o        Self Proved Wills
·         Unattested Wills – Formalitiesà From Lesson #8
o        Introduction
o        Nuncupative (Oral) Wills
o        Holographic (Handwritten) Wills
·         Inter Vivos Gifts
o        Introduction
o        Property Types
o        Delivery
o        Testamentary Transfers
·         Testamentary Capacityà From Lesson #9
o        Requirements
o        Client’s Possible Future Incapacityà L. # 26
§         Durable Power of Attorney
§         Health Care Decision Making
·         Living Wills
·         Health Care and DPOA
o        Disinheritance and the Naturalness of a Will
o        Undue Influence
o        Fraud
o        Tortious Interferenceà From Lesson #10
o        Incorporation by Reference
o        Codicils and Republication
o        Acts of Independent Significance
Revocation of a Willà From Lesson #11
·         Introduction
·         Revocation by Instrument
·         Revocation by Physical Act
·         Revocation by Changes in Circumstancesà Lesson #12
·         Revival of a Will
o        Introduction
o        UPC View
o        Dependent Relative Revocation (DRR)à L. #13
·         Ademption, Abatement, and Lapse
o        Ademptionà From Lesson #14
o        Abatementà From Lesson #15
o        Tax Apportionment
o        Exoneration
·         Involuntary Transfers
·         Accessionsà (also) From Lesson #14
Spouse’s Elective Shareà From Lesson #16
·         Introduction
·         Elective Shares
·         Other Benefits Conferred on Spouse
·         Making the Election
·         Disinheritance of a Spouse
Trustsà From Lesson #17/Handout
·         Introduction to Trusts
o        Terms and Definitions
o        A Trust is an Instrument..
o        The Two Halves of Ownership
o        Fiduciary Relationship/Nature of a Trust
o        More About Trust Property
o        More About Trust Parties
o        Rights and Duties Created by a Trust
o        Requirement of Corpus
o        Death of a Trustee
·         Creating Express Trusts
o        Requirements of a valid private trust
o        “Express Trusts”
o        Methods of Trust Creation
o        Expression of Trust Intent
o        Executors and Trustees
o        Agents and Trustees
o        Guardians and Trustees
o        Termination or Modification of a Trust
o        Trustee à Prudent Investor Ruleà L. #25
·         Revocable Trusts and Spendthrift Provisionsà L. # 18
o        Revocable Trusts
§         Testamentary v. Inter Vivos Trusts
o        Pourover Estatesà From Lesson #23
o        Spendthrift Provisions and Trusts
§         Spendthrift Provisions
§         Spendthrift Trusts
§         Exceptionsà From Lesson #21
·         Discretionary and Support Trustsà From Lesson #19
o        Discretionary Trusts
§         Introduction
§         Administrative Discretion
§         Fiduciary Discretion
§         Continuum of Discretionary Trusts
§         Abuse of Discretion
§         Inalienability
o        Support Trusts
o        Tax Classifications
·         Constructive and Resulting Trustsà From Lesson #27
·         Powers of Appointmentà From Lesson #20
·         Offshore Asset Protection Trusts (OAPTs)à L. #21
Reformation of Documentsà From Lesson #22
·         Introduction
·         Mistake and Ambiguity
Anti-Lapseà From Lesson #24
·         Introduction
·         Anti-Lapse Statutes Generally
·         Class Gifts and Anti-Lapse
·         Anti-Lapse and Trusts
Minorsà From Lesson #28
·         Introduction
·         The UTMA
·         The UTCAà N.B., Not on Exam!
End. (Twenty-eight Lessons Total.)
Introduction to Wills
o        Wills (and Trusts) have changed dramatically over the last 40 years or so
o        This class deals with “tradition notions” of Wills and Trusts
o        Concerned with arranging of gratuitous transfers of wealth (i.e. not selling)
o        Not just about intestate ( transmissions, but also testate conveyances
o        Theme à passing property without consideration
Probate Process
o        From Lesson #1
o        Generally
o        Over the past 50 years, there has been a major move to avoid probate
§         Many people feel that it is undesirable and does not operate in the best interest of the surviving beneficiaries/heirs, or the public
o        Searcy:
§         Taxes à People think that avoiding probate means less taxes. à FALSE!
§         Costs of Distribution à People think that it costs more to distribute an estate through probate à FALSE
§         So then, why avoid it? See below!
o        Functions of Probate
o        Collect assets
o        Pay all creditors
o        Distribute what is left
o        Introduction to Estates
o        About Probate
§         1) Refers to admitting a will into evidence in a court (“probating the will”)
§         2) Process whereby a decedent’s property is transmitted after death (“probate process”)
o        Process
§         A will is “offered” for probate by the “proponent” of the will
§         The will’s validity is determined à If valid, will is “admitted to probate” as the decedent’s last will
o        Probate Defined
o        “Probate” court is a court system collect the assets of decedents, distributes $ to creditors for the decedent’s debts, resolves conflicts among beneficiaries, and distributes what is left to the appropriate persons or institutions.
o        Probate is a process of collecting decedent’s property after death, protecting it, paying costs of process, and paying decedent’s creditors, and distributing remainder
§         See Waggoner, pp. 21 – 25
o        Deals with who takes decedent’s property
§         Taker’s of decedent’s estate determined one of two ways
·         1) If there is a will à then whoever is in the will takes property
·         2) If no will à statute designates who takes property
§         Used when there is a need to clear title (i.e. land, vehicles, planes, boats, stock, anything else that you need to get title to)
§         Can be avoided when there is one of the following (below) or if there are no items in the estate which need title to be transferred
·         When items need to be transferred, probate is a necessity
·         Sometimes there are statutes which allow vehicles to be transferred w/o probate, by way of an affidavit showing that there is no will à usually this is only for sole heirs
o        Consists of admitting the will into evidence
o        Not Subject to Probate
o        Property that the decedent held alone or as a tenant in common is subject to the system
o        Joint tenancy (or tenancy by the entirety) property
o        Life insurance proceeds on the decedent’s life, and property in lifetime trusts are all outside of probate
o        Depending upon local rules, the decedent’s half of community property may or may not pass through probate
o        Certain trusts (See later)
§         Inter Vivos Trusts/Transfers
o        Personal Representative
o        Usually a family member
o        Someone will petition a court in the decedent’s state of domicile to appoint a “personal representative” to handle the work
§         Executors (if there is a will)
§         Administrators (if there is no will)
o        Criticisms of Probate Process

beneficiary is only a “potential beneficiary” until his interest vests which doesn’t happen until the Testator dies
·         In other words, it is not certain that the potential beneficiary will survive the conveyor
o        Survivorship
§         Only persons who survive the decedent are entitled to succeed the decedents by testate or intestate succession
§         But, there is an exception when “anti-lapse” occurs à Anti-Lapse, generally speaking, lets a devisee who predeceases the testator, to pass the gift which they would have received, on to their own heirs/beneficiaries
·         Example:
o        A dies, and leaves Blackacre to B
o        B has a child, C
o        B predeceases A
o        The gift from A to B now goes from A to C instead, provided that an anti-lapse statute allows for this
·         See more below!!
o        Simultaneous Death of Spouses
o        Introduction
§         This section deals with what happens when two spouses die, and it cannot be determined who died first (i.e., a plane/automobile accident, etc.)
§         Searcy: the term “simultaneous death” is misleading and should be avoided b/c it is impossible for two people to die at the exact same time
·         In other words, there is always going to be like, 1/1,000,000 of a second’s difference b/t when two people actually stop living
§         Common Law Rule
·         It must be proved that the beneficiary in fact survived (outlived) the decedent whose estate is being administered
§         The Uniform Simultaneous Death Act (USDA) à p. 641 in the supplement
o        General Rules
§         Uniform Simultaneous Death Act (USDA)
o        Promulgated in 1940, and later revised
·         Old View à
o        it used to be okay that a person survived by one minute or less. 
o        But, because of the problem of insufficient evidence to show who died first, the UPC changed
·         New View à
o        The UPC adopted (from the USDA, §2) a 120 hour (5 day) provision which they added as UPC § 2-702 which says that a beneficiary must survive the decedent by at least 120 hours
§         This is a default setting, but can be expressly overridden!
§         Alteration of the new Rule
·         The UPC/USDA rule can be altered by terms of a will/estate planning
o        Example:
§         A’s will can say that no one takes unless they survive him by 3 hours or by 50 days, or whatever
§         Will can also say that in the event of simultaneous death, wealthier spouse is determined to have predeceased poorer spouse
·         Ensures that inheritance from richer spouse will pass to poorer spouse’s will
·         This is better for tax treatment b/c if the poorer spouse’s estate passes to the wealthier spouse’s estate, WAY more taxes are paid!
·         See, USDA § 6 à Exceptions
o        Allows for a “governing instrument (e.g., a will) to deal with situations of simultaneous death, and change the requirement
o        When USDA Applies
§         Where there is no evidence of who dies first…
·         Ex. Automobile or plane crashes
o        Car T-boned on drivers side
o        Husband was driving t-boned car, and wife was passenger
o        Expert can show (did show) evidence that husband died 7/100 of a second before wife
o        120 Hour Rule à Good or Bad?
§         Dispute as to whether this law is good for society
·         Reduces litigation
·         Searcy believes that in general, all things being the same, a very important characteristic in determining the quality of a rule of law is the predictability of the outcome
o        Says uncertainty in the law is a bad thing
·         The 5 day/120 hour rule produces a predictable outcome…we know exactly how long a beneficiary must survive the decedent by!