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Estates and Trusts
University of Kansas School of Law
DeLaTorre, Phillip E.

Estates and Trusts Outline

I. What is Probate
a. What
i. Will that is a valid will of the deceased or several valid wills
ii. Decedent died intestate
b. Why
i. Court determines the validity of the claims and
ii. Property is distributed
iii. Claims are processed an disposed of
1. Creditors – either paid or are barred
2. Taxes – both state and federal are filed
c. What goes into probate
i. Probate property – disposed of by the testator’s will or intestate succession statutes
ii. Non-probate property – passes by some kind of intervivos transaction by the decedent
iii. Examples (will substitutes):
1. Life insurance
2. Joint tenancy
a. The decedent’s interest disappears completely at death
b. No interest is actually passed to the survivor
3. Pay on death Provisions
a. Pension Plans, IRAs, Keoghs
4. Intervivos trust arrangements (living trust)
5. Life estate remainder arrangement
II. Probate Process
a. Initiated by filing
i. Petition for probate (if there is a will)
ii. Petition for administration (no will)
iii. Who can file:
1. An interested party
2. i.e. executor, devisee, creditor, intestate heir
b. A personal representative (PR) is appointed by the court
i. Executor (if there is a will)
ii. Administrator (no will)
iii. How:
1. Letters of administration
iv. Function:
1. Authorized for various duties by the court, but
2. Activities must be approved by probate court in a hearing
v. Duties:
1. Gather assets of decedent
2. Manage assets during administration until final distribution
3. Pay creditors, including taxes
4. Distribute assets to those properly entitled
c. Notice
i. Notice is needed before a hearing (and thus before a PR can do anything)
ii. Who must have notice:
1. Heirs
2. Devisees
3. Creditors
d. Closing
i. Final decree made by the court
ii. It is binding except for the usual appeals process
III. Types of Probate Procedures
a. Simplified Administration
i. Begins with filing a petition
ii. Petition must contain:
1. List of heirs, devisees
2. Inventory of assets
3. List of debts owed
4. Statement of a list of funds
5. Proposed final order
iii. Personal Representative
1. Authorized to:
a. Pay claims
b. Sell property
c. Distribution of assets
iv. Closing
1. Like formal probate
2. Final accounting
3. Notice to all parties
4. Chance for a party to make an objection
b. Informal Administration
i. Begins with filing a petition
ii. Petition must contain
1. How assets should be distributed
iii. Court then has a hearing to decide if informal probate is appropriate and the family allowance
iv. One is not necessarily entitled to Simplified or Inform probate, but must petition for it
v. What is considered:
1. Size of estate
2. Solvency of estate
3. Cost of administration
IV. Statute of Limitations on Probate
a. Forms
i. If going to probate a will it must be done within a certain time after death (KS – 6 months)
ii. Non-claim statute – sets time limit for creditors to arrest claim against estate. Time starts running with notice to creditor (KS – 4 months notice)
V. Contesting Wills
a. Why
i. Attempt to prevent a will to be administered in probate
ii. Will invalid
iii. Will revoked
iv. Will superseded
b. Who
i. Must be a qualified party – a party that has a direct financial interest in the estate to challenge
VI. Dispensing with Probate
a. How:
i. Put assets in will substitutes
ii. Some states have stream-lined statutes about what needs to go to probate
VII. Professional Responsibility when drafting wills
a. Ogle v. Fuiten
i. Lawyer only covered 2 of possible 3 situations for death of couple
ii. The will had to go to intestacy because conditions were not met
iii. Intent to directly benefit test – testator declared in will of intent to devisee
iv. Rule – There is a duty to potential beneficiaries of the will to write the will right
b. Duties
i. Duty to know basic principles of law that are commonly known to attorneys
ii. Duty to discover additional rules of law that can be found by research
iii. Duty to refer matters of specialty to attorneys in that specialty
VIII. Intestate Succession
a. Definition
i. The means by which there is a distribution of assets of a person who dies without a will
ii. Statutory state by state
iii. Issues in each state are broadly the same but the solutions are different
b. Whom does it apply to
i. Person who dies without any will of any kind
ii. Applies when there is partial intestacy; will doesn’t dispose all assets
iii. Will/trust calls for intestate statute of succession intestate
c. Objective
i. Approximate what average person would want done if they had made a will
d. Surviving Spouse
i. Most states provide for the surviving spouse
ii. Typically they get 100% of the assets if there are no surviving issue
iii. If there are issue:
1. Spouse 1/2 and Issue 1/2
2. Spouse 1/3 and Issue 2/3
3. California:
a. If 1 child – S 1/2 and C 1/2
b. If >1 child – S 1/3 and C 2/3
iv. Uniform Probate Code:
1. If all decedents issue are spouse’s issue, the spouse gets 100%
2. Spouse’s take is lowered if living parents of the decedent
IX. Rights of Descendants: Direct Lineal
a. Terms
i. Per Capita – Generational level à everyone at the level takes equally in own right ignoring prior generations
ii. Per Stirpes – Each person at generational level steps into the shoes of the ancestral level
1. i.e. – grandson in shoes of mother
b. Formula
i. # of survivors + # of non-survivors who leave surviving issue
c. Systems of Distribution (see handout)
X. Rights of Ancestors and Collaterals:
a. Definitions
i. Ancestors – Anyone that is above the decedent in lineage (mother, grandmother are ancestors)
ii. Collaterals – Someone related to me because of some ancestor in common (cousin is a collateral because we have common grandparents)
b. Preference for Inheritance
i. Vertical heirs (downwards) are preferred (grandchild is prefe

. Advancement – There is no obligation to re-pay, but it is taken into account when splitting up the estate
d. How to calculate the effect of the advancement on estate
i. There is an advancement and the donee wishes to share further in the estate – must allow advancement to be brought into hotchpot
ii. If the donee doesn’t wish to share further in the estate, they can walk away and keep advancement and receive nothing further
iii. Must decide which amount is larger – hotchpot or walk away amount
e. Example
i. D gives A $5,000; B $1,000; and C $0. Probate estate is $8,000
1. Hotchpot = $5,000 + $1,000 + $8,000 = $14,000
2. Each would get $4,667 if split even
3. A is better if he just takes the advancement and walks away
4. B and C then split the rest
5. Hotchpot = $1,000 + $8,000
6. B and C each get $4,500
7. B takes $1,000 (advancement) + $3,500 (hotchpot)
8. C gets $4,500 from the rest of the estate
f. Advancement and Per Stirpes inheritance
i. Situation – D gives C1 advancement. C1 predeceases d leaving GC1
ii. GC1 is responsible for C1’s advancement and it’s as if D made the advancement to GC1
iii. Per stirpes = GC1 is stepping into C1’s shoes
iv. Example:
1. D has 2 children C1 and C2. Both C1 and C2 have children GC1 and GC2. D gives C1 an advancement of $40,000. C1 predeceases D.
2. D dies leaving an estate of $60,000
3. Hotchpot = $40,000 + $60,000 = $100,000
4. C2 would get $50,000
5. GC1 would get $10,000 + $40,000 advancement
v. Exception to rule:
1. If D makes an advancement to C1 and all of the C generation predeceases D, then GC1 is NOT responsible for the advancement
2. GC1 would take per capita in own right
3. Any of the $40,000 left is a windfall to GC1
XIII. Releases
a. Definition
i. Occurs when a child or other issue surrenders all of their future claim or any share in the decedent’s estate in exchange for valuable assets
ii. Completely bars the issue from further claim
b. Example
i. P has 2 children, C1 and C2. C2 has one child GC. P gives C2 money for the release of C2’s share of the estate.
ii. Whatever the probative value of the estate, C1 will get it all after P dies
iii. If C2 predeceases P then under the modern per stirpes rule GC would be barred from sharing in the estate because he steps into the shoes of C2.
iv. Exception to per stirpes rule – If both C2 and C1 predecease P then GC would get the estate.
c. Consideration