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Trusts and Estates
University of Georgia School of Law
Love, Sarajane N.

A. The Family Property Lawyer
1. this class is about the transmission of wealth at death – family wealth transfer
B. Shifting Demographics
1. marriage rate is declining, divorce is increasing, more single-parent homes, more spouses that have been previously married
C. Donative Freedom
1. Donative freedom is the right to do what you want with your property.
a. Expectations – Donative freedom operates in the context of the expectations of the people who surround the donor (Families, close friends & charities). A donor who makes decisions that don’t match those expectations has let loose a whirlwind of litigation and will contests. Law must decide whose expectations control.
2. Constitutional Protection? Donative freedom is not constitutionally protected against all forms of interference
a. examples – Rule Against Perpetuities, elective share
D. Terminology
1. Intestate – dying without a will
2. Testate (testator) – dying with a will
3. Partially intestate – When part of a will is valid, but at least some property passes through intestacy.
4. Devises (devisees) – testamentary dispositions of land or personal property.
5. Heirs – those who take through intestacy(statutorily defined), in other words, the people who take the estate if someone dies without a will through the state’s intestate succession statute.
a. Misuse of the word – This word is most commonly misused, because if you are alive you don’t have heirs. Also will beneficiaries aren’t really heirs because they take by devise.
b. Will doesn’t eliminate possibility of heirs – If you do have a will, there is a possibility that you may have heirs to take care of things that are not distributed by will. Even if everything is distributed by will, a person may have heirs to protect the estate if the will is not valid. There should be someone who could do something about the will being incorrect.
c. Contemplate heirs when writing will – You still need to be conscious of potential heirs even if there is a will; they are the ones who could bring a challenge. (If there was a previous will, the previous will beneficiaries could also raise a challenge.)
6. Executor – personal representative of an estate when you have a will.
7. Real v. Personal Property – Different terms are used to distinguish the passage of real property from the passage of personal property.
a. Descent – When the property is real estate, that property is said to pass by descent. The statute that provides for the handling of an intestate decedent’s real property is typically called a statute of descent.
b. Distribution – When personal property passes, the person receiving it is generally called the distribute or next of kin. The statute governing personal property in intestacy is generally called the statute of distribution.
c. Significance of distinction – Under early English law, the distinction between real and personal property was of great significance. One given land was a devisee and one who received personal property was a legatee. Modern legislation for the most part has abolished the practical distinction between real estate and personalty in intestate situations, although the terminology is still in common use.
8. Consanguinity – A blood relationship between two people. It is either lineal or collateral.
a. Lineal – A lineal relationship between two people means that the two are directly related to each other, in either a descending or ascending line. Thus, father-son, grandfather-granddaughter, great grandmother-great grandson, are lineal relationships.
b. Collateral – A collateral relationship between two people means that they have a common ancestor. Examples are siblings, cousins, and uncles and aunts.
E. The Probate/Nonprobate Dichotomy
1. Probate – the process of establishing whether decedent had a will (taking will to court to determine if it is valid).
a. Administration – Once the will is probated, there is a process of paying off creditors and getting assets together.
b. Administrator – The one who administers the probate estate.
c. No need for probate if no will – Go straight to open administration.
(1) Georgia – File a paper for letters of administration.
d. Other use of “probate” – The word is also used to refer to the process of administration. “Avoiding probate” means to avoid the process of administration, not avoiding dying without a will so you don’t need to probate it.
2. Will substitutes (Non-Probate) – the line is beginning to be blurred between probate and non-probate. Probate laws are being applied to will substitutes and vice versa.
a. Necessity for a will – You need a will even if you have will substitutes.
b. Inter vivos trusts (lifetime trusts, non-testamentary trusts) – created by non-probate instruments.
c. Types of Will substitutes – Non-probate system is made up of four main will substitutes – life insurance, pension accounts, joint accounts and revocable trusts – when properly created, they function the same as a will (complete lifetime dominion with power to name and change beneficiaries until death).
d. Joint tenancies are imperfect will substitutes because they ordinarily affect lifetime transfers.
e. Categorizing assets: Problem (25)
a. Car – title in G
b. Checking acct – joint title in G and A
c. Savings acct – title in G
d. Mutual funds – title in G and A as equal tenants in common
e. CODs – G and A as joint owners with right of survivorship
f. Savings bond – title in G, payable on death to A
g. Home – title in G and A as joint tenants with right of survivorship
h. Life insurance – on life of G with A as named beneficiary
i. Pension plan – provided by Gs employer with A named as beneficiary
j. What assets are probate assets? Car, savings account and mutual funds; everything else is nonprobate; ½ of the Mutual fund because there is joint ownership with A.
k. What are “pure” will substitutes? Savings bonds, life insurance, pension plan – A is the beneficiary, they are revocable, and A has no title at the time of creation.
l. What are “imperfect” will substitutes? checking acct, CODs, home because A has some right at time of creation
F. Sources of Family Property Law
1. The Restatements – characterized as what the Common Law is – can operate as default rule if no case is on point
2. The Uniform Probate Code – adopted by 10 states (GA has not adopted it); these are proposed statutes.
A. Purpose of intestacy s

(Although these days, medical technology may allow women to have posthumous children with surrogates.)
1. Common Law – children in gestation at time of decedent’s death (e.g., man dies with wife pregnant) treated as if they were alive at decedent’s death if they are subsequently born alive (can be heirs).
2. UPC codifies this – child must survive for minimum of 120 hours.
3. OCGA § 53-2-1(a)(1) – Children of the decedent who are born after decedent’s death are considered children in being at the decedent’s death, provided they were conceived prior to the decedent’s death, were born within 10 months of the decedent’s death, and survived 120 hours or more after birth. (will only apply to infant mortality)
a. Hypo – Mom has son. Son dies with wife pregnant. This creates a grandchild in gestation at the son’s death. Mom dies. Son cannot be heir because he did not survive Mom. Can grandchild take in son’s shoes?
(1) Georgia- GA statute says children of the decedent, so grandchild is not included, unless we interpret children to mean descendants. Is the baby not going to be an heir because it only addresses the situation in regard to the son’s estate? Does 53-2-1(a)(1) dictate the conclusion that because you weren’t included you are therefore excluded? Hasn’t come up yet so who knows.
(2) However, the son is not the heir of his mother – he is not living at the time of the decedent’s death. If this were a will, we could look to grandma’s intent.
(3) Common law – The Common Law treats children in gestation as if they are born alive. It doesn’t say specifically, children of the decedent. You also have to be conceived prior to the decedent’s death and born within 10 months.
4. Reproductive technology also creates problems –
a. Hypo: Man with leukemia deposits sperm. Wife fertilized after he dies. Twins born 18 months after he dies. Are they heirs?
(1) Georgia: under GA statute, no;
(2) UPC – court decided that the UPC did not exclude those children
D. General Patterns of Intestate Succession
1. Spouse – The spouse is the only heir that has no blood relationship with the decedent.
a. UPC § 2-102 – The intestate share of a decedent’s surviving spouse is:
(1) Spouse gets entire estate if:
(a) No descendants or parents – Spouse gets the entire estate if no descendant or parent of the decedent survives the decedent.
If the only children are of the marriage for both spouses – If all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the descendant (all kids a