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Trusts and Estates
University of Georgia School of Law
Beck, J. Randy

Beck, T&E Spring 2014

I. Introduction

a. Freedom of disposition- Idea in American law is that a testator should be free to dispose of belongings as he/she pleases, similar to how the testator would have control to do such during his lifetime. Thus, Testator’s Intent controls in any will disputes and intestacy statutes are modeled in a way to reflect the intent of a general person who has died without a will.

b. General Mechanics and Terminology

i. Probate- Transfers that pass under the will or via intestacy statutes

1. Personal Representative- appointed by the court to oversee the winding up of decedent’s affairs, acts as a fiduciary who collects/inventories property, manages and protects during administration.

2. Executor/Administrator- person who dies testate will appoint an executor of the will; one who dies intestate will have an administrator appointed for them.

3. Beneficiaries

a. Testate- A person dying testate is said to devise real property to devisees and bequeath personal property to legatees.

b. Intestate- Real property descends to heirs; personal property is distributed to next-of-kin. Both heirs and n.o.k. are usually those who are designated by the applicable statute to take.

ii. Non-probate Transfers- Those that pass outside of the will or relevant intestacy statute by way of a will substitute; A few examples:

1. Inter Vivos Trusts

2. Life Insurance

3. Pay/transfer on death Contracts

4. Joint Tenancy

iii. Probate Administration

1. Core Functions of Probate Process- 1) provide evidence of transfer of title to new owners; 2) protect creditors by providing a procedure by which to pay for decedent’s debts; 3) distributes decedent’s property to those intended after decedent’s creditors are paid.

2. Opening in Probate and Choice of Law

a. Primary Jurisdiction- law of the state where the decedent was domiciled at time of death governs disposition of real property.

b. Ancillary Jurisdiction- law of state where real property is situated will govern the disposition of that property.

i. In order to avoid conflicts and delays due to an ancillary probate proceeding, attorneys generally advise clients to put property located in another state into an inter vivos trust.

c. Authorizing Executor/Administrator- Each state has a procedural process for authorizing, generally an executor or administrator must give bond when it is an individual (most common). A will can waive the bond req. for an executor as that person is typically a trusted family member, very common to waive.

3. Common Form and Solemn Probate- old English terms, but generally states provide for an equivalent process and may use the same terminology.

a. Common Form- ex parte proceeding in which no notice or process is issued to any person. Due execution of the will proven by oath of the executor/any witnesses req’d by statute. No objections, finished; Within the statute of limitations, one could object and file a caveat which would require will to go through solemn form.

b. Solemn Form- Notice to interested parties given, execution proven by witnesses and involves greater court oversight.

4. Formal and Informal Probate- Typically the more modern terminology, same terminology used under the UPC.

a. Informal- UPC 3-301 dictates the requirements for informal, if informal sought, validity of will/determination of intestacy will not be litigated unless objected to (3-108 establishes a 3 yr statute of limitations, since no probate informal or formal may be initiated past three yrs. After 3, determined to be intestate). Without giving notice, the representative can petition for appointment, if for appointment to probate a will, must contain the will in petition. A will w/ attestation clause showing that req’s have been met will be probated w/o further proof (3-303). Within 30 days must mail notice to all parties including anyone apparently disinherited by will (3-705). Any party mailed notice may file petition for formal probate via 3-402.

b. Formal- Governed by UPC § 3-401 & 3-402. This is a litigated determination after notice is given to interested parties. Formal proceeding may be used to probate a will, block an informal proceeding, or secure a declaratory judgment of intestacy; become final judgments if not appealed.

5. Supervised and Unsupervised Administration

a. Supervised- personal representative is subject to continued monitoring of the court, requires court approval of many different aspects of execution. 3-501, 3-504.

b. Unsupervised- after appointment, can administer the will without going into court. Given broad powers of a trustee and may do a number of things without court approval. 3-715.

i. Default proceeding under UPC, but an interested party may petition for supervised administration at any time via 3-502.

6. Barring Creditors- every state has a nonclaim statute which comes in two general forms. 3-803

a. Bars claims not filed within 2-6 months of probate proceeding’s initiation (4 under UPC).

i. Under this statute, creditors are notified to file claims only by publication in the official organ after probate proceeding is opened.

b. Self-executing- Bars claims not filed within a longer period of time, generally 1-5 years after death of decedent (one under UPC).

i. Will provide greater protection, whether probate opened or not. Due Process Clause requires that known or reasonably ascertainable creditors be notified be

ion of all others.

i. Representation- all states provide that child’s descendants shall represent the dead child and divide child’s share among themselves.

1. English Per Stirpes- 1/3 of states, treats each “line” of descendants equally. Split at top and then split along each line below if deceased child.

2. Modern Per Stirpes- Nearly one half of states, treats each line equally beginning at the closest living generation.

a. If there is a surviving first line child works the same as English.

b. Differs when there are no surviving first line, split equally among next line in which there is a living taker.

3. Per Capita at Each Generation- About 12 states and UPC 2-106(b). “Equally near, equally dear.”

a. Initial division of shares is made at closest generation, but any deceased individual’s shares are “dropped down” and divided equally at the next level.

e. Collaterals/Ancestors/Parents- If decedent is survived by a descendant then collaterals, ancestors, etc do not take. In about half of states, if there are no surviving descendants, the rest of intestate property goes to the parents (minus spousal share) UPC 2-102(2). All persons not descendants who are related by blood are collaterals, first line- brothers/sisters; second line- descendants of decedent’s grandparents other than D’s parents & their descedants.

i. Pantellic System- Intestate property passes to the grandparents and their descendants; if none then great-grandparents and their descendants, etc.

ii. Degree of relationship system- Intestate property passes to closest degree of kin. GA 53-2-1 degrees:

1. Children- those who survive share equally with descendants of any deceased taking English Per Stirpes.

2. Parents- Surviving parents share equally

3. Siblings/Nieces and Nephews- Surviving share equally, to descendants of deceased EPS; UNLESS no surviving siblings, nieces/nephews share equally, their descendants EPS

4. Grandparents- surviving share equally

5. Uncles and Aunts/Cousins- share equally, similar structure to 3rd degree; no Aunts/Uncles then to 1st cousins.

6. More remote degrees go by chart p. 86; surviving relatives with lowest degree share equally