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Decedent's Estates
University of Illinois School of Law
Fleisher, Miranda Perry

Decedents’ Estates Notes
I.             Policy Considerations
a.    Ways property can be distributed at death
                                 i.    All to government
1.   Ascher: 6 exceptions (marriage, minor dependent, parent or grandparent, charity, and disabled people); promotes equality and the economy
2.   Incentive to earn less or give everything away before dying
                                ii.    Free for all: ridiculous system
                               iii.    Bury it w/ her or destroy it: waste for society
                              iv.    Mandatory distribution to heirs: keeps money w/ the “haves”
                                v.    Honor her wishes: unlimited or limited by:
1.   Kristol: limit to each person $1M; libertarian idea of keeping things in the hands of the people
2.   Limited: avoid the dead hand problem only if it creates loss to society (ordering things destroyed, etc.)
b.    Effects of distribution: economic, familial, social, private property, concentration of wealth, equal opportunity, behavioral
c.    Policies on Limitations
                                 i.    Reasonable partial restraints are valid: father can pass on convictions by giving to son if marries a Jewish woman (or to state of Israel) but can’t require a Quaker to marry among group of 5 eligible men (Shapira v. Union Nat’l Bank)
                                ii.    Can’t be: against public policy (consider shifting ideas)
1.   Disruptive to the family
2.   A sort of punishment to the person
3.   Based on how convicted someone is to their faith
4.   Harmful to society (e.g. destroying property)
II.         Intestacy
a.    How to fall under intestacy laws: anything not under will passes intestate § 2-101
                                 i.    No will at all, will is invalid, or will only partially disposes of property
                                ii.    Probate property: handled in state where died, not where property located
1.   Probate/Will: process by which decedent’s property is taken, creditors are paid, and the rest is redistributed to heirs as re-titled properly; any possible takers are notified and will is made public so it can be challenged
2.   Non-probate: passes based on something intrinsic in itself rather than through a will (e.g. life insurance policies, property owned w/ rights of survivorship, etc.)
a.    General: financial or pensions accts, payable-on-death designations
b.    Joint Property: if one dies, the other gets complete title; used in real estate, unmarried couples, holdings in multiple states, protecting against creditors, etc.
c.    Revocable trusts
d.   Pour Over Wills: § 2-511 all property pours into trust upon death
e.    Life Insurance: income replacement when household contributor dies, liquidity for debts, or to equalize the estate if property can’t be broken up evenly, etc.
                                                                                 i.    Term: pay monthly payments and get it back when you die
                                                                                ii.    Whole: forced savings acct; set premiums until it is paid up and you don’t pay anymore
b.    Spousal Share
                                 i.    UPC § 2-102: spouse also gets ½ of any community property under § 2-102A
1.   If no parents and only kids are also spouse’s kids: spouse gets everything
2.   If parents: spouse gets $200K plus ¾ balance of estate
3.   If shared kid but spouse also has separate kid: spouse gets $150K plus ½ balance of estate
4.   If decedent’s kid only: spouse gets $100K plus ½ balance of estate
                                ii.    755 ILCS 5/2-1: no distinction b/w kids and stepkids
1.   If kids and spouse: spouse gets ½ and kid(s) get ½
2.   If no spouse: all to the kids per stirpes
3.   If no kids: all to the spouse
4.   If no spouse or kids but parent, sibling, niece or nephew: entire estate to them in equal parts; surviving parent gets double portion; nieces and nephews take the portion which the sibling would have taken
5.   If none of the above but grandparent or descendent of grandparent: ½ to material and ½ to paternal grandparents or if neither survives, to their descendents; if none on one side, all to the other
6.   If none of the above, in equal parts to the nearest kindred.
7.   If none of the above, property escheats to the State.
c.    Simultaneous Death: default pass to spouse then to only his heirs and double taxing
                                 i.    UPC § 2-104: if heir dies w/in 120 hours, he is treated as though he predeceased the decedent
                                ii.    Uniform Simultaneous Death Act § 2-5: death is simultaneous if there is clear and convincing evidence (Janus v. Tarasewicz) that a person died w/in 120 hours of their spouse; also § 2-702
d.   Descendents: if will just says “per stirpes”, use the state’s chosen method
                                 i.    If all kids alive, distribute evenly and if one dead and no descendents, that line is ignored altogether; spouses are ignored in all 3 systems
                                ii.    Strict/English per stirpes (IL): split into as many equal shares as kids; if any kid predeceases decedent, grandkids split their parent’s share equally so grandkids may get different amounts; get nothing if parent is still alive
                               iii.    Modern/America per stirpes: if any kids living, split evenly among them; if none living, split equally among grandkids
                              iv.    Per Capita at Each Generation (UPC § 2-106): 2 part system; start out at first generation where kids are living; if any kids predeceased, their shares are put in one pot and split evenly among the total group of grandkids
e.    Ancestors and Collaterals: order of distribution
                                 i.    Descendents: kids or spouse
                                ii.    Parents: gets at least something if no kids or spouse
                               iii.    Collateral kindred: related by blood but not descendents or ancestors
1.   First line collateral: brothers/sisters and their descendents
2.   Second line collateral: other descendents of grandparents but not parents; cousins and their descendents (or ancestor: great grandparents)
                              iv.    Systems
1.   Parentelic: grandparents and their descendents then great-grandparents and their descendents
a.    § 2-103: limited to grandparents’ successors; no “laughing heirs”
b.    § 2-105: if no heirs are found, the property escheats to the state
c.    § 2-107: half-bloods are treated the same as whole blood; some states exclude completed and other give them half
d.   § 2-113: individual related to decedent 2 ways is entitled to only a single share, whichever is larger
2.   Degree of Relationship Table: counting degrees of kinship (up to nearest common ancestor; down to claimant from common ancestor); if equal degrees, preference to person w/ closest common ancestor
f.     Special Issues Concerning Children: think statutory construction allowing fairness

o devisee and then immediately to the next intestate successor
b.    Testate: can refuse title altogether and avoid any tax
2.   § 2-1105 and 2-1106: disclaimant is treated as having predeceased the decedent so disclaimant receives nothing and transfers nothing
3.   No time limit on disclaiming
III.       Wills
a.    Requirements for Execution:
                                 i.    Requisite mental capacity:
1.   Purpose: protects intent, legal definition of a “person”, legitimacy of reasoned decisions, society from irrational acts, T from exploitation, etc.
a.    Witnesses confirm mental capacity; once attested requires a connection b/w T’s idiosyncrasies and ability to execute a proper will, not just isolated weirdness (In re Estate of Wright)
2.   CL Test: based on capability; must be over 17 and understand
a.    Nature/extent of property
b.    Natural objects of bounty
c.    Disposition you’re making
d.   Relate these together and make orderly plan
Effect: Lack of Volition
Effect: Mistaken Term
Cause: Intentional Wrongdoing
Undue Influence
Cause: Innocent Acts
Insane Delusion
3.   Insane Delusion: only the part of will w/ causal connection to delusion fails (same w/ UI/fraud); T adheres against all contrary rational evidence
a.    Some Courts: if there is any factual basis, T is not insane
b.    Often involves a delusion about family members
c.    Often colored by social norms even though it shouldn’t be (In re Strittmater; woman willed to NWP found insane for hating men)
d.   Courts will find T insane if it’s reasonable that the disposition was caused by insane delusion (In re Honigman; cheating wife)
4.   Undue Influence: can’t just influence T’s desires; must override free will by coercing T to do something you want rather than what he wants
a.    Most Courts: show w/ clear and convincing evidence that T was susceptible to UI, influencer had disposition/motive  and opportunity to exercise UI, and disposition is result of UI
                                                                                 i.    Sometimes based on social norms (In re Kaufmann; man who cared for gay lover can’t take b/c UI)
b.    Contestant has BoP to show confidential relationship, person enjoying such relationship receive the bulk of the estate, and decedent’s intellect was weakened (Estate of Lakatosh/Reichel)
                                                                                 i.    Rebuttable presumption of UI if attorney-drafter takes unless attorney is related (Lipper v. Weslow; In re Will of Moses)
                                                                                ii.    If shown, proponant has BoP to show clear and convincing evidence that the donor acted freely, intelligently (consider education levels), voluntarily, and in good faith