Trusts and Estates Outline

 
Trusts and Estates Outline
Professor Wright
Fall 2015
University of Florida Law
 
 
I.                    Intestate Share
 
Surviving Spouse's Share
UPC Provision
FL Difference
Decedent and spouse have no children and Decedent has no parents
100%
§ 2-102(1)(A)
 
Decedent and spouse have no children and Decedent  has at least one parent
First $300k and 3/4
§ 2-102(2)
 
Decedent and spouse have no children together but decedent has children by a different partner
First $150k and 1/2
§ 2-102(4)
FL Stat 732.102??
SS gets 50%
Decedent and spouse have no children together but spouse has children by a different partner
100%
§ 2-102(1)(A)
 
Decedent and spouse have no children together but both have children by a different partner
First $150k and 1/2
§ 2-102(4)
 
Decedent and spouse have children together and neither has children by different partner
100%
§ 2-102(1)(B) and in FL
 
Decedent and spouse have children together and decedent has children by a different partner
First $150k and 1/2
§ 2-102(4)
 
Decedent and spouse have children together and spouse has children by a different partner
First $225k and 1/2
§ 2-102(3)
SS gets 50%
Decedent and spouse have children together and both have children by a  different partner
First $150k and 1/2
§ 2-102(4)
 
 
II.                  Intestacy Continued
a.       Mathematical Distribution Schemes for Intestate Estates
                                                               i.      Classic Per Stirpes
1.       Follow traditional English rule of diving the estate with each line of descendants
2.       Most common and prevails in about 1/3 of the states
3.       If X dies with 4 kids, 3 of which are living…then X’s estate is divided into 4 and each kids takes an equal share. The deceased kid’s share will be divided equally among the deceased kid’s descendants
4.       Relatively simply because each person who takes by representation takes the share (or portion of the share) that would have gone to their ancestor
5.       As each share drops down to the next level, it is distributed equally among takers at that level
6.       If potential heir has predeceased the decedent but does not leave surviving issue, that person’s share is redistributed to the other takers at that level
a.       **Spouses are NOT descendants so if one of X’s kids died and left a spouse and not kids, then the spouse gets NOTHING
b.      However, many states allow for adult adoption so if the deceased spouse adopted their surviving spouse prior to death, the surviving spouse would then get a portion as an adopted child
                                                             ii.      Per Capita by Generation (PCBG)
1.       UPC model and adopted by about 12 states
2.       Goal is to treat all the descendants of the same relational level equally
3.       Basic principle is that the takers at each generation are treated equally and that no division is one at a generation level where there are no survivors
a.       If only one of X’s four children are alive, that child gets ¼ of the estate. The remaining ¾ are divided equally among the descendants of the deceased children
4.       ***Important principle of PCBG is that descendants who take by representation take equal portions if they are of the same generation as others
a.       Unlike per stirpes, all descendants at the same generation level take an equal share
b.      This means that whatever is not distributed at any given level is combined and passed down to the next level to be divided equally by the number of living descendants and deceased descendants with surviving issue
                                                            iii.      Per Capita with Representation (Modern Per Stirpes)
1.       Hybrid of classic per stirpes and per capita
2.       The initial division is done at the first general in which there is living issue
3.       Once the initial distribution is done, we follow per stirpes for the successor generations
b.      Collateral Relatives
                                                               i.      Those who descend from ancestors
                                                             ii.      Siblings, aunts/uncles, cousins, nieces/nephews, and other more remote relatives
                                                            iii.      UPC order of Passing to Collateral Relatives
1.       Parents
2.       Descendants of parents
3.       Siblings and their descendants
4.       Grandparents
5.       Descendants of grandparents
6.       Aunts/uncles and their descendants
7.       If no living relative that is at least a descendant of a grandparent, then the UPC provides that the estate shall descend to the descendants of the last surviving spouse (step-children), and if none, it will escheat to the state
c.       Two Principal Schemes for descent of intestate property to collateral relatives
                                                               i.      Parentelic
1.       Scheme used by the UPC
2.       Refers up to certain an